DPP v A MAGISTRATE & anor [2003] NSWSC 797

New South Wales Supreme Court

CITATION : DPP v A MAGISTRATE & anor [2003] NSWSC 797 HEARING DATE(S) : 17/06/03 JUDGMENT DATE : 29 August 2003

JUDGMENT OF : Dowd J at 1 DECISION : D1 prohibited from further hearing proceedings brought by the plaintiff against D2 pending before Burwood Local Court; those proceedings to be heard by a magistrate other than D1; a declaration that D1 erred in law in his ruling of 9/05/2003 declining to disqualify himself from further hearing proceedings.

CATCHWORDS : Transmission by email of magistrate's personal notes in proceedings - apprehension of bias - integrity of judicial proceedings - need to disqualify magistrate by virtue of exposure of his notes to the parties. LEGISLATION CITED : Crimes Act 1900 CASES CITED : Ebner v Official Trustee (2000) 75 ALJR 277 Livesey v NSW Bar Association (1983) 151 CLR 288 Director of Public Prosecutions (Plaintiff) PARTIES : A Magistrate (First Defendant) Michael Arthur Thurbon (Second Defendant) FILE NUMBER(S) : SC 11243/03 COUNSEL : B Knox SC (Plaintiff) SE O'Connor (Plaintiff) SOLICITORS : IV Knight (First Defendant) Taylor & Scott Lawyers (Second Defendant)

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT A Magistrate JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

Friday 29 August 2003

11243/03 DIRECTOR of PUBLIC PROSECUTIONS (NSW) v A MAGISTRATE & anor

JUDGMENT 1 HIS HONOUR: The plaintiff ("the DPP") filed a summons which sought an order that the first defendant, a magistrate, be prohibited from further hearing proceedings brought by the DPP against the second defendant for three counts of Make a False/Misleading Statement with Intent to Obtain a Benefit in breach of s178BB of the Crimes Act 1900 ("the Act') and a further count of Take a Motor Vehicle Without Consent in breach of s154A of the Act, now part heard before the Burwood Local Court. 2 The DPP also sought an order that the proceedings in the local court against the second defendant be heard by a magistrate other than the first defendant. The DPP further sought a declaration that the first defendant erred in law in his ruling of 9 May 2003 in which he declined to disqualify himself from the further hearing of the proceedings in the local court against the second defendant. 3 The DPP also sought an order that the first defendant be restrained from further hearing the proceedings against the second defendant until the determination by this court of the orders sought in the summons. An order has been made to that effect. 4 The learned magistrate and the second defendant filed submitting appearances except as to costs. The second defendant, who is a police prosecutor, made no submission but attended the hearing to ensure the tender of Exhibit "A", the notification by the DPP of the police Judicial Commission complaint. 5 The second defendant is being prosecuted by the DPP for a count of Take and Drive Conveyance Without Consent in breach of s154A of the Act and three counts of Make False/Misleading Statement to Obtain Pecuniary Benefit in breach of s178BB of the Act in the Burwood Local Court before the first defendant, the hearing dates being 10, 11 and 12 March, 11 April and 9 May 2003, the matter being part heard. 6 The first offence alleged against the second defendant was that between 14 September 2001 and 17 September 2001 at Broken Hill, the second defendant did take a motor vehicle without the consent of the owner, the New South Wales Police Service. 7 The second offence was an allegation that on 24 September 2001 in Sydney, the second defendant, with intent to obtain for himself money, made a claim for a travelling allowance which was false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular. 8 The third offence was an allegation that in between 20 September 2001 and 1 January 2002 the second defendant with intent to obtain for himself money, made a claim for overtime/travelling time which was false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular. 9 The fourth offence was an allegation that in between 20 September 2001 and 20 October 2001 the second defendant with intent to obtain for himself money, made a claim for overtime/travelling time which was false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular. 10 The DPP was advised by the police department that a complaint had been made to the Judicial Commission of New South Wales ("the Commission") in relation to the conduct of the first defendant, the complaint being that the judicial officer either deliberately or negligently disseminated an email concerning a matter which he was currently hearing, revealing his deliberations and as a consequence the Commission was advised that the DPP intended on 9 May 2003 to apply that the first defendant disqualify himself on the basis of apprehension of bias. 11 The subject matter of the complaint to the Commission was the transmission of an email from the first defendant's home computer to his email site on the Attorney General's domain site, being his Chamber computer. The email showed a copy being transmitted to a "<thurbon> ". It was sent on Saturday 12 April 2003 at 3:52pm. The email showed an attachment described as "Thurbonew.rtf". The attachment was a summary of part of the proceedings, with notes on the proceedings referring particularly to the conduct of the prosecutor and problems that had arisen in relation to the prosecution case, but included expressions such as: "I babbled on about completeness relating to the link between the payslips and the evidence from ms. Beckers relating to the trip numbers",