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. When the matter came on a preliminary question arose whether this Court had jurisdiction to entertain the application in view of the provisions of s 5(F) of the Criminal Appeal Act, 1912. In the way the Court has approached the matter, it does not become necessary to decide whether we have the jurisdiction which the claimant asserts we do have. We are prepared, for the purpose of disposing of the matter, to assume that we have the necessary jurisdiction, but we do not decide upon it. We are taking that course, because, having considered the evidence relied on by the claimant and accepting that evidence in full for the purpose of considering the substance of the claimant's application at its highest, we have reached the conclusion that the evidence does not warrant this Court granting the relief or any version of the relief sought in the summons. We were referred to the authorities which state the relevant bias tests. It was mentioned in argument that the authorities, of which one which is very frequently referred to is Livesey's case, do not all state the test by which a Court is to decide whether a judicial officer is actually, biased or may be reasonably thought to be biased, in the same terms. 2 UNREPORTED JUDGMENTS However, Livesey and Spedley and the case which was drawn to our attention today of Bailich (No 2) 75 ACR 515, all are substantially to a similar effect. As stated in Bailich (No 2) (at 518) the question may be put as whether, in regard to apprehended bias, fair minded members of the public would reasonably perceive that the Judge might be regarded as biased. Without relying solely on that test but taking into account the tests as stated in the other two decisions are already mentioned, the Court is of the view that it would not be reasonable on the material before the Court to conclude, or for a reasonable observer to conclude, that the Judge might not bring to the decisions he had to make in the course of the conduct of the trial of Mr Lee, an unbiased or fair mind. Still less, in our view. would the material support the view that the Judge is actually biased against Mr Lee. On this footing therefore, the Court is of the view that the claimant's summons should be dismissed. Cole JA reminds me that the test is, on occasions, stated as applying to the view the accused might entertain of the behaviour of the judicial officer. What has already been said applies also to the unavailability to the accused, Mr Lee, of a reasonable apprehension of bias in the circumstances. We therefore will be dismissing the summons. What is the position about costs? CALVERT: There is no application for costs. PRIESTLEY JA: The only order we make then is that the summons is dismissed. CALVERT: Your Honour if I may there is a further matter in the Court of Criminal Appeal this morning there was a non-publication order made by the Chief Justice. I would ask that perhaps, as members of the press are present that that order might be reinforced. PRIESTLEY JA: I suppose you acquiesce in that Mr Horler do you? HORLER: Yes your Honour. PRIESTLEY JA: The Crown asks for it? CALVERT: Yes your Honour. PRIESTLEY JA: And the Chief Justice has already acquiesced to a similar application. CALVERT: That was made on the motion of the Court not on my application. HORLER: The Chief Justice initiated it. PRIESTLEY JA: It would therefore seem to be a good precedent. Do you have the actual form of the order that he made? Can anybody tell me what the order was? HORLER: I didn't make a note but it was short and to the point. The Chief Justice said 'I note members of the press are here. There is a jury trial pending, I direct that there be no publication of these proceedings' — or words to that effect. PRIESTLEY JA: I will make an order in those terms Mr Horler. The reference that you have made to the actual pendency of the jury trial makes the order a very proper one it would seem. And in case anybody hasn't followed what is going on, the Court orders that there be no publication of the proceedings that have taken place on the summons this morning. Orders accordingly.