LEE v DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT COURT OF NEW SOUTH WALES [1996] NSWCA 320

LEE v DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT COURT OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, CLARKE JA and COLE JA 24 April 1996

[1996] NSWCA 320

Priestley JA. There has been brought before the Court by summons filed in Court this morning, an application by Nathan Lee as claimant for a declaration that his Honour Judge Saunders erred by failing to disqualify himself from hearing the trial of Nathan Lee and for an order prohibiting Judge Saunders from further hearing the trial of Nathan Lee.

The proceedings were of some urgency because the trial referred to in the summons has begun. A jury has been empanelled and from what we have been told, it appears that Judge Saunders is waiting to hear the result of this application before deciding what he will next do.

In view of the urgency of the matter, the Court took the course of asking Mr Horler of Queens Counsel, who is counsel for Mr Lee, to put before us all the evidence upon which the claimant relies for the relief he seeks with a view to our considering whether that evidence would arguably justify the Court in granting any of the relief sought.

The evidence was put before us and consisted of an affidavit by Ms Beckett sworn on April 23 and the transcript taken before Judge Saunders, on Monday, 22 April and Tuesday, 23 April in which what has so far happened in the proceedings was recorded, this being subject however to the comment in part of Ms Beckett's affidavit that not everything that was said in the Court on those two days, appeared in the transcript.

The case for the applicant was that it was clear from the materials that I have mentioned that his Honour entertained actual bias against Mr Lee, or that in the alternative, upon those materials a reasonable observer would or might have a reasonable apprehension of bias.