R v TW [2022] NSWLC 16

R v TW [2022] NSWLC 16

The application was refused because the defendant did not establish any usual convention or common law basis requiring a different Magistrate to hear a second diversionary application. The legislative history showed that a previous statutory disqualification provision was repealed to prevent spurious applications and magistrate shopping, leaving the ordinary common law test for bias to apply. No adverse credibility findings had been made against the defendant in the first application, none of the recognised Webb categories was established, and there was no reasonable apprehension of bias merely because the Magistrate had refused the first s 14 application.

Jurisdiction
Australia
Judgment Date
07 December 2022
Procedural Posture
Criminal Procedural Ruling on Application for Disqualification of Magistrate / Application That Magistrate Donnelly Not Preside Over a Second Diversionary Application Under S 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (nsw)
Outcome
Application refused and dismissed.
Legal Topics
['reasonable Apprehension of Bias' 'recusal or Disqualification of Magistrate' 'second Diversionary Application' 'ex Parte Communication With the Court' 'magistrate Shopping']
['criminal Law' 'judicial Bias' 'mental Health and Cognitive Impairment Forensic Procedure' 'professional Conduct'] ['reasonable Apprehension of Bias' 'recusal or Disqualification of Magistrate' 'second Diversionary Application' 'ex Parte Communication With the Court' 'magistrate Shopping']

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Procedural Posture

Criminal Procedural Ruling on Application for Disqualification of Magistrate / Application That Magistrate Donnelly Not Preside Over a Second Diversionary Application Under S 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (nsw)

Legal Issues

  1. 1 ['Whether Magistrate Donnelly should disqualify himself from presiding over a second diversionary application under s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) after refusing the first application in the same proceedings.' 'Whether there is a usual convention requiring a different Magistrate to hear a fresh diversionary application.' 'Whether the defendant established a reasonable apprehension of bias by reason of pre-judgment.' "Whether an email request to the Registrar that the Magistrate not preside over the application was an improper communication in the opponent's absence."]

Ratio Decidendi

The application was refused because the defendant did not establish any usual convention or common law basis requiring a different Magistrate to hear a second diversionary application. The legislative history showed that a previous statutory disqualification provision was repealed to prevent spurious applications and magistrate shopping, leaving the ordinary common law test for bias to apply. No adverse credibility findings had been made against the defendant in the first application, none of the recognised Webb categories was established, and there was no reasonable apprehension of bias merely because the Magistrate had refused the first s 14 application.

Court Disposition

Application refused and dismissed.

Orders

  • ['The application that Magistrate Donnelly disqualify himself from presiding in a second diversionary application under s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 in the same criminal proceedings where he determined the first application is refused and dismissed.']