McQuillan v R (No 2) [2023] NSWSC 443

Supreme Court New South Wales

Medium Neutral Citation: McQuillan v R (No 2) [2023] NSWSC 443 Hearing dates: 19 April 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: I order: 1. Leave to amend the Plaintiff's Summons be granted. 2. Amend Summons to remove the Crown as a respondent/defendant. 3. Grant an extension of time to lodge the appeal. 4. Leave to appeal be granted. 5. The appeal be allowed. 6. Set aside the interlocutory order of the Local Court at Forster made on 30 September 2022 disallowing the withdrawal or traversal of the guilty plea in the matter R v Jasmine McQuillan bearing JusticeLink file No. 2020/0061374. 7. Remit the proceedings to the Local Court to be dealt with by a different Magistrate according to Law. 8. Second Respondent to pay the Applicant's costs as agreed or assessed. Catchwords: STATUTORY APPEAL — Appeal from decision of the Local Court — Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(b) — where plaintiff sought leave to withdraw guilty plea for offence of larceny as a bailee before Local Court — leave refused — issues of apprehended bias and procedural fairness — whether to grant leave to appeal and remit matter to Local Court as parties agreed — leave granted COURTS AND JUDGES — Bias — Apprehended bias — pre-existing association between Magistrate and person involved in proceedings — where need for recusal earlier accepted — reasonable apprehension of bias established Legislation Cited: Crimes Act 1900 (NSW), s 125 Crimes (Appeal and Review) Act 2001 (NSW), s 53 Criminal Procedure Act 1986 (NSW), s 207 Evidence Act 1995 (NSW), s 65 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 Cases Cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 McQuillan v R (Supreme Court (NSW), Yehia J, 7 December 2022, unrep) Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 R v Boag (1994) 73 A Crim R 35 Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Category: Principal judgment Parties: Jasmine McQuillan (Plaintiff) R (First Defendant) SC M Todd (Second Defendant) Representation: Counsel: Ms D Hawkins (Plaintiff) Ms S Williams (Second Defendant)