Heywood v Local Court of New South Wales [2024] NSWSC 1047

Supreme Court New South Wales

Medium Neutral Citation: Heywood v Local Court of New South Wales [2024] NSWSC 1047 Hearing dates: 24 November 2023, 7 December 2023 and 12 February 2024, (final part of recording of the proceedings in the Local Court provided 24 February 2024) Date of orders: 21 August 2024 Decision date: 21 August 2024 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Pursuant to s 69 of the Supreme Court Act 1970 (NSW), an order is made in the nature of prohibition precluding Magistrate Mark Richardson from hearing the proceedings Police v Heywood. (2) Submissions will be heard with respect to the costs of the proceedings. Catchwords: COURTS AND JUDGES – apprehended bias – claim for prerogative writ following refusal by Magistrate to disqualify himself – robust exchanges in Court – rude and bullying comments by counsel for the accused to and about the police prosecutor – patronising, lecturing tone adopted by counsel for accused directed to the Magistrate and police prosecutor – counsel for the accused's overly sensitive response to objections taken – poorly framed questions by counsel in cross-examination of child – asserted cumulative effect of attitude of Magistrate to legal representatives of the accused – application that Magistrate disqualify himself on ground of apprehended bias – application refused by Magistrate – wrong test applied in the reasons – error of law in decision refusing disqualification application – test for actual bias articulated rather than test for apprehended bias – fair-minded lay observer – apprehended bias established – a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is to decide – "double might" test is a relatively low bar – prohibition and certiorari granted Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Summary Offences Act 1988 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Adacot v Sowle [2020] FamCAFC 215 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) [2013] FCAFC 150 Polsen v Harrison [2021] NSWCA 23 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 Roylance v Director of Public Prosecutions (NSW) [2018] NSWSC 933 State of New South Wales v Madden [2024] NSWCA 40 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872 Category: Principal judgment Parties: Brigid Heywood (Plaintiff) Local Court of New South Wales (First Defendant) Senior Constable Heath Aiken (Second Defendant) Representation: Counsel: S Howell (with J Pappas present on 24 November 2023) (Plaintiff)