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", and a comment: "In many respects (the prosecutor) is misleading." 12 The complaint of 17 April 2003 to the Commission set out details of the complaint and details of the prosecution and set out that the hearing involved thirteen witnesses, ten of whom are police officers, some of whom had already given evidence. 13 The solicitor for the New South Wales Police and a chief inspector of that service attended the office of the DPP on 17 April 2003 and delivered a letter addressed to Mr Stephen O'Connor, the solicitor for the DPP, which enclosed an email which was received by a Ms Thurbon, a clerk at the Goulburn local area command of the police service on her home computer. The letter stated that the material "gives rise to concern". The email was that which was referred to above. Ms Thurbon has a clerical role and is not connected, except by having the same surname, to the second defendant. 14 The DPP set out the history of the matter to the Commission and acknowledged that the receipt of the email by Ms Thurbon was capable of an innocent explanation but that the matter required urgent investigation and that the Secretary of the Commission had access to police investigatory services. The DPP asked that the Commission investigate the circumstances of the matter. 15 This court was advised that the complaint to the Commission had been dismissed and that there was no evidentiary basis to assert any impropriety on the part of the first defendant and that, the first defendant having given an explanation of what occurred, the DPP had not made any inquiries and was not in a position to say whether the explanation was right or wrong but that the fact of what the first defendant said in open court carried significant weight. 16 The court on the hearing of this summons, was also advised that the DPP did not make a comment in relation to the veracity or otherwise of the judgment handed down by the first defendant on 9 May 2003. 17 The second defendant advised the court that he did not wish to place any more material before the court and declined to make submissions having advised the court that he was aware of what was in the transcript of the proceedings at the Burwood Local Court which was by then exhibited before this court. 18 Mr Knox SC for the DPP advised that notice had been given to the Crown Solicitor who had expressed the view that it was not appropriate to notify the Attorney General of these proceedings. On the court requesting that the matter be specifically put to the Attorney General, a Ms Johnson appeared for the Attorney General and advised that the Attorney General did not wish to be heard. 19 On 9 May 2003 the DPP applied to the first defendant to disqualify himself and from further hearing the charges. The application was refused. 20 In refusing the application the first defendant handed down a document headed "DPP v Thurbon - Brief Note of the Reasons" in which he set out that the test as to apprehension of bias is that: "A tribunal should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that it might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. It is a possible such apprehension, not a probable one, with which we are concerned." 21 The first defendant in his reasons stated that an informed bystander would readily accept an explanation, which he had given in the court, that on his computer the Lotus Notes program caused the email to go to Ms Thurbon and that it was accidental and not intentional. The first defendant then went on to say that there is no real possibility that he knew Ms Thurbon or intended notes to go to her and that in the circumstances of his working on his computer at home and sending material to his work computer and when the material was again forwarded from his home computer that the Lotus Notes program's recently acquired facility of searching for names in the address line would flip up on to the program the name (namely "Thurbon") typed in as the subject matter, as a person to whom the email would be copied. 22 The first defendant said that an informed bystander would readily accept that the facts concerning the computer program are easily verifiable and easily disproved and that the bystander would readily accept that the first defendant was being truthful about it and there is no real possibility of his lying. 23 The first defendant's further reason was that the notes made by him were comments to himself and that it was not a concluded view and that he did not believe there was any possibility that there would be created in the mind of a bystander an apprehension that the first defendant might be biased against the DPP and that in the first defendant's view there is no possibility that a bystander might think he had formed a concluded view. 24 The first defendant further said in his reasons that the fact that there was a complaint to the Commission was not a basis for disqualification since any litigant could thereby remove a judicial officer by merely lodging a complaint with the Commission. 25 It was argued before the first defendant that the hearing concerning apprehension of bias should be heard in closed court. The first defendant acceded to that view and it is for similar reasons that I have closed this court today. It is clearly undesirable, in the administration of justice for matters relating to complaints to the Commission that the content and result of such complaints be aired in open court. 26 The submissions made to the first defendant were firstly, that the email, whether unintentionally, negligently or deliberately was sent to a person of the same, albeit uncommon surname as the defendant, setting out the views of the magistrate on the weaknesses of the prosecution and the prosecutor constitutes a breach of the rules of natural justice as the magistrate could be seen as seeking out one party, privately expressing his view of the proceedings and conveying his views to the defence, by implication, providing useful information as to how it might conduct its defence and that this would constitute grounds whereby a reasonable bystander might think that the magistrate lacked impartiality and was biased in favour of the defence and pre-disposed against the prosecutor. 27 It is unfortunate that the issue was dealt with by the first defendant by giving from the bench his own evidence about the problems with the computer being the likely cause of the communication. Clearly, there is no suggestion that the communication to Ms Thurbon was intended, and the first defendant's comments in relation to communication with her are not to the point. The issue is as to whether it was intended to go to the police prosecutor who was the second defendant. 28 The question of whether it was unintentional, negligent or deliberate cannot, to a reasonable bystander, be readily determined. Clearly, if the actions were unintended or negligent this action does not give rise to an apprehension of bias. It can only be if the action was intentional. 29 Before an informed bystander could form a view as to apprehension of bias the test is as set out in Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-295 and is as to whether a fair-minded, informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to adopt. 30 The law on this issue was set out in the majority decision of the High Court in Ebner v Official Trustee (2000) 75 ALJR 277 being the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ at 279: "[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 31 Although the obvious explanation is that furnished by the first defendant to somebody who understands the frailties of the operators of computer programs and, in some cases, the programs themselves, it is not necessarily something that the reasonably informed bystander would understand. The relatively small number, even of computer users, that would understand the problems of the particular program could not be said to be the general "informed bystander". 32 An informed bystander, although likely to accept the first defendant's explanation, might, in the peculiar circumstances of this case, hold an apprehension that someone in the first defendant's position, with the knowledge of the frailty of the computer program and thus able to give an explanation for his conduct, could have used this to mask his real intention or provide an explanation. 33 It must be remembered that the problem is exacerbated by the fact that a police prosecutor and a magistrate who work closely together over long periods of time within the relatively small compass of a courtroom will, in many cases, build up a relationship and, in some cases, some sort of friendship. This would be a factor that an informed bystander might apprehend would create a reason to favour a prosecutor who was before the court as a defendant, whereas that may not arise in the case of someone who is not clearly related to the judicial process. 34 The real issue here is as set out in the passage from Ebner above: "The question is one of possibility (real and not remote) not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what facts actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror." 35 It is my view that the reasonable bystander who understood the explanation would be likely to accept the version given by the first defendant. In saying that, I do not intend to reflect in any way on his actions. The issue, it seems to me, is that the likelihood of the magistrate having correctly explained how the action occurred that an informed, reasonable bystander, since he has been unable to have a detailed examination of how the issue might arise, might still have an apprehension in terms of the authority of Ebner cited above, since the informed bystander having formed a view, does not thereby exclude apprehensions he may have about the alternative view that the actions of the first defendant may have been intentional. 36 As I have indicated I do not think that the detailed explanation of how the transmission occurred would be within the knowledge, in any event, of that informed bystander. 37 Where one of the parties is a police officer who has been a police prosecutor, there is a greater need for the appearance of impartiality. There is considerable public interest in court proceedings particularly criminal proceedings. 38 It was further submitted that the notes themselves, that is, whether transmitted or not, show a pre-judging of the issue in terms of the prosecution case and the prosecutor. In my view, judicial officers must be able to make notes as a case progresses about aspects of the case, the parties and those appearing before them. It is inevitable that provisional views will be formed subject to displacement or confirmation by later evidence. 39 If, for example, there was a hopeless case on one side or the other and someone was clearly lying and someone was clearly misleading the court it would be appropriate for notes to that effect to be made. I do not consider that there is anything in the notes of themselves, that would give rise to an apprehension of bias in terms of the comments that were actually made. The issue, in this case, is as to whether there was an apprehension of a deliberate transmission of a note of the defects in the prosecution case to the second defendant to assist him in dealing with the balance of the hearing. 40 The issue raised as to the complaint to the Commission is a matter of some difficulty. There are clearly going to be cases of particular complaints of conduct of a gross nature which, as such, may cause a judicial officer to consider that he or she cannot continue with the proceedings. The fact of the complaint as such, for instance, for delay in the handing down of a judgment, cannot of itself necessarily give rise to an apprehension of bias. In the light of the other matters contained within this judgment it is not necessary to decide the limits of those cases where a judicial officer should decline to continue to hear a matter. Except to say that the lodgement of a complaint, as such, does not constitute a ground for apprehension of bias. 41 Quite apart from the question of apprehension of bias it seems to me the facts of this case warrant the making of the order sought in the summons for the first defendant to be prohibited from further hearing proceedings against the second defendant. 42 These proceedings and the proceedings before the first defendant for apprehension of bias will have exposed both parties to the proceedings to weaknesses in the DPP's case as set out in the first defendant's notes and both parties would now almost inevitably conduct the proceedings differently armed with the information provided by the transmission of the first defendant's notes. The integrity of judicial proceedings are such that the current part heard hearings are inevitably compromised by the indication of the first defendant's views on various matters and the course of the trial and the conduct of the prosecutor. Any orders now made at the end of the proceedings will be tainted with the information already available to both parties, which may operate as an advice on evidence. 43 The integrity of the proceedings, therefore, has been compromised and the proceedings should be discontinued before the first defendant and commenced before another magistrate. 44 On the issue of costs, it does not seem appropriate that either defendant should pay the costs of these proceedings and therefore, I propose that no order for costs be made. 45 Accordingly, in the light of my findings above, I make orders in the following terms: i. An order that the first defendant be prohibited from further hearing proceedings brought by the plaintiff against the second defendant alleging three counts of Make a False/Misleading Statement With Intent to Obtain a Benefit (pursuant to s178BB Crimes Act 1900) and one count of Take a Motor Vehicle Without Consent (pursuant to s154A Crimes Act 1900), currently pending before Burwood Local Court. ii. An order that the proceedings in the local court against the second defendant be heard by a magistrate other than the first defendant. iii. 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. iv. No order as to costs. ********** Last Modified: 09/02/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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