Gleeson v Director of Public Prosecutions [2021] NSWCA 63

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gleeson v Director of Public Prosecutions [2021] NSWCA 63 Hearing dates: 25 February 2021 Date of orders: 25 February 2021 Decision date: 21 April 2021 Before: Bell P; Macfarlan JA; White JA Decision: (1) Pursuant to s 69 of the Supreme Court Act 1970 (NSW), quash the judgment of his Honour Judge McLennan of the District Court declining to recuse himself from any further hearing of proceedings 2019/253909. (2) An order in the nature of prohibition prohibiting his Honour Judge McLennan from further hearing proceedings 2019/253909. (3) No order as to costs. (4) Reasons for judgment reserved. Catchwords: COURTS AND JUDGES – bias – apprehended bias – judge declined to recuse himself from presiding at criminal trial of applicant – judge's partner of 29 years a Crown prosecutor who gave advice to police as to laying of charges against applicant – that Crown prosecutor not involved in subsequent pre-trial steps – whether judge disqualified by interest or association – application of Ebner test – fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to his conduct of forthcoming trial of applicant Legislation Cited: Crimes Act 1900 (NSW), ss 61M(2), 66A(1), 66C(1) Criminal Procedure Act 1986 (NSW), ss 8, 66, 69-81 Director of Public Prosecutions Act 1986 (NSW), s 13 Evidence Act 1995 (NSW), s 97 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 Chamoun v District Court of New South Wales [2018] NSWCA 187 Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9 Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168; [1999] NSWCA 113 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Kennedy v Cahill (1995) 118 FLR 60; [1995] FLC 92-605 Polsen v Harrison [2021] NSWCA 23 The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Texts Cited: Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines (29 March 2021 ed) Category: Principal judgment Parties: Mr Jacob Gleeson (Applicant) Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent) Attorney General for New South Wales (Third Respondent) Representation: Counsel: G Bashir SC / Z C F Heger (Applicant) Submitting appearance (First and Second Respondents) D Kell SC / M Adams (Third Respondent)