New South Wales Court of Appeal CITATION: DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 5) [2010] NSWCA 240 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 1, 2 June 2010 JUDGMENT DATE: 15 September 2010 JUDGMENT OF: Allsop P at 1; Basten JA at 2; Macfarlan JA at 178 DECISION: (1) Dismiss the summons; (2) Order the applicant to pay the costs of the second and fifth respondents. CATCHWORDS: ADMINISTRATIVE LAW – judicial review – apprehended bias – whether rulings on evidence comments in the judgment dismissal of the recusal application refusal to state a case in the Court of Criminal Appeal and refusal to adjourn to permit the issue of s 78B notices indicated apprehended bias - CONSTITUTIONAL LAW – District Court – whether provisions relating to the appointment of acting judges, appointment of retired judges from another State or Territory render proceedings invalid – District Court Act 1973 (NSW), s 18 - CONSTITUTIONAL LAW – District Court – whether appointment of acting judges compromised the institutional integrity of the Court so it was no longer a Court of the State for the purposes of Ch III of the Constitution - CONSTITUTIONAL LAW – District Court – whether invalid preclusion of certiorari – District Court Act, s 176 - PROCEDURE – District Court – whether primary judge was partly heard on expiry of his commission – District Court Act, s 18(3A) - PROCEDURE – summary proceedings – court attendance notice – essential elements of offence - PROCEDURE – Local Court – role of prosecutor – whether potential financial interest of prosecutor in outcome rendered prosecutions invalid - Fines Act 1996 (NSW), s 122(2) - PROCEDURE – Local Court – role of prosecutor – whether the prior role of prosecutor rendered prosecutions invalid - WORDS AND PHRASES – District Court Act 1973 (NSW), s 18(3A) - "partly heard" Australian Courts Act 1828 (9 Geo IV, c 1) Constitution, ss 72, 73, 77 Constitution Act 1902 (NSW), ss 7B, 52, 53; Pt 9 Constitution Further Amendment (Referendum) Act 1930 (NSW) Courts Legislation Amendment Act 2001 (NSW), Sch 2 [2] Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 19, 20 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 Criminal Appeal Act 1912 (NSW), s 5B Criminal Law Act 1826, 7 Geo IV, c 64 Criminal Procedure Act 1986 (NSW), ss 3, 11, 12, 16, 21, 172, 175, 178; Ch 2, Pt 2 Cruelty to Animals Act 1850 (14 Vic c 40) (Imp), s 13 District Court Act 1973 (NSW), ss 13, 18, 176, Pt 4 Duties of Justices (Summary Convictions) Act 1848 (12 Vic, c 43), s 18 Fines Act 1996 (NSW), s 122 LEGISLATION CITED: Fines and Penalties Act 1901 (NSW) Jervis' Act of 1848 (11 & 12 Vic c 43), ss 1, 3 Judicial Officers Act 1986 (NSW), s 44 Judiciary Act 1903, s 78B Justices Act 1850 (14 Vic, c 43) Justices Act 1902 (NSW) Local Courts Act 1982 (NSW) Mental Health (Criminal Procedure) Act 1990 (NSW) Occupational Health and Safety Act 1983 (NSW), ss 10, 15, 53 Police Offences Act 1901 (NSW), s 101 Police (Special Provisions) Act 1906 (NSW) Prevention of Cruelty to Animals Act 1979 (NSW), ss 4, 5, 6, 8, 24D, 24I, 24J, 34AA; Pt 2, Pt 2A, Div 2 Summary Jurisdiction Act of 1879 (42 & 43 Vic c 49), s 39 Supreme Court Act 1970 (NSW), ss 37, 69 Uniform Civil Procedure Rules 2005 (NSW), rr 6.4, 6.12A CATEGORY: Principal judgment Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 Downey v Acting District Court Judge Boulton (No 3) [2010] NSWCA 50 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Ell v Alberta [2003] 1 SCR 857 Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 Fox v Percy [2003] HCA 22; 214 CLR 118 Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539 International Finance Trust Company Ltd v NSW Crime Commission [2009] HCA 49; 240 CLR 319 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75 John Holland Group Pty Ltd v Industrial Relations Courts of NSW [2006] NSWCA 93; 153 IR 97 John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 Johnson v Miller [1937] HCA 77; 59 CLR 467 Kable v The Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 CASES CITED: Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Knaggs v Director of Public Prosecutions [2007] NSWCA 83; 170 A Crim R 366 Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 Lodhi v Regina [2006] NSWCCA 121; 199 FLR 303 Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386 North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; 218 CLR 146 Porter v Magill [2002] 2 AC 357 R v El Helou [2010] NSWCCA 111 R v Hughes [2000] HCA 22; 202 CLR 535 Re The Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44; 200 CLR 322 Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; 165 IR 7 Spanos v Lazaris [2008] NSWCA 74 Valente v The Queen [1985] 2 SCR 673 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 Ruth Downey – Appellant His Honour Acting District Court Judge Boulton – First Respondent Royal Society for the Prevention of Cruelty to Animals – Second Respondent PARTIES: District Court of NSW – Third Respondent State of New South Wales – Fourth Respondent Gary Ashton – Fifth Respondent Local Court of NSW – Sixth Respondent FILE NUMBER(S): CA 2010/22284 P E King – Appellant COUNSEL: R F Sutherland SC/M Castle – Second and Fifth Respondents M G Sexton SC SG/J K Kirk - Fourth Respondent Submitting appearances – First, Third and Sixth Respondents Sam Hegney Solicitors – Apepllant SOLICITORS: I V Knight, Crown Solicitor – First, Third, Fourth and Sixth Respondents Smythe Wozniak – Second and Fifth Respondents IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/22284 ALLSOP P BASTEN JA MACFARLAN JA 15 September 2010 Ruth DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 5) Headnote Ms Ruth Downey, the applicant, ran cattle on "Roseleigh", Pilliga, in northern NSW. For some months prior to June 2007, officers with the Royal Society for the Prevention of Cruelty to Animals ("the RSPCA") had been concerned as to the lack of feed available on the property and the emaciated condition of the cattle. On 28 June 2007, 96 court attendance notices were issued alleging offences under ss 6 (aggravated cruelty) and 8 (failure to provide proper and sufficient food) of the Prevention of Cruelty to Animals Act 1979 (NSW) ("the Cruelty to Animals Act"). On 24 October 2008 Magistrate Mackintosh, at the Local Court at Narrabri, found each of the offences proved and proceeded to impose a bond in respect of each offence, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and ordered the applicant to pay the costs of the prosecution. On 17 November 2008 the applicant lodged a notice of appeal to the District Court in relation to each of the offences, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW). The matter was listed before Boulton ADCJ who dealt first with a motion brought by the applicant seeking leave to adduce fresh evidence, pursuant to s 18. That application was dismissed, but various further applications were made to Acting Judge Boulton, requesting him to disqualify himself from hearing the appeals, because of a reasonable apprehension of bias, contending that he was unable to hear the appeals because his commission had expired and, ultimately, challenging the constitutional validity of his appointment as an acting judge of the District Court. His Honour rejected these challenges and set the proceedings down before him as a matter in which he was part heard. His Honour proceeded with the hearing and dismissed the appeal against the findings of guilt. On 25 January 2010 the applicant commenced proceedings in this Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). The issues for determination on appeal were: (i) whether the court attendance notices failed to plead essential elements of the offences charged and were therefore invalid? (ii) whether the prosecutions in the Local Court were invalid because the prosecutor lacked authority to commence and maintain the proceedings based on the prosecutor's "interest" in proceedings? (iii) whether the proceedings in the District Court were invalid because: (a) s 18 of the District Court Act 1973 (NSW), pursuant to which acting judges are appointed, is invalid; (b) sub-s 18(4A), which permits the appointment of a retired judge from another State or Territory, is invalid; (c) the number and circumstances of recent appointments of acting judges in the District Court compromised the institutional integrity of the Court so that it was in 2006-2010 no longer a Court of the State for the purposes of Ch III of the Constitution; (d) s 176 of the District Court Act, insofar as it purported to preclude the relief sought by the applicant, is invalid; (e) the last appointment of Boulton ADCJ expired on his 75 th birthday, in circumstances where he was not "partly heard" in the proceedings; and (f) the judge was disqualified on account of a reasonable apprehension of bias? The Court held, dismissing the application: In relation to (i) 1. The gravamen of the charges brought against the applicant, under ss 6(1) and 8(1) of the Cruelty to Animals Act, was that the applicant failed to provide proper and adequate food to her animals. While no such words appeared in the court attendance notice in respect of each s 6 offence, the language of the notice sufficiently indicated that the relevant omission was a failure to provide that which would alleviate the poor nutrition and emaciated condition, namely food: [46]. 2. It was contended that the s 8 offences failed to specify that which was not supplied, contenting itself with the words of the section ("food which is proper and sufficient") and, as a consequence, failed to identify that which was reasonably practicable to provide. Further particulars might have been sought, but a fair reading of the charge does not indicate that it is defective in that it has omitted some essential factual or legal element of the offence: [46]-[48]. 3. The inadequate pleading of the offence charged in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 contaminated not merely the pleading itself, but the procedure in the trial court and the ultimate conviction. That is not so in the present case in which the charge made clear that which had not been supplied was proper and sufficient food. It was further alleged that that omission contributed to the poor body condition of the animal which, at least by necessary inference, constituted an allegation that whatever had been provided was not both "proper and sufficient". It followed that the essential elements of the offence were addressed in the charge: [49]-[50]. Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 distinguished. In relation to (ii) 4. The challenge to the "authority" of the RSPCA and Mr Gary Ashton was said to arise from a perceived conflict between Mr Ashton's "interest" in the commencement and conduct of the proceedings and his duty to proceed only in the public interest and deal fairly with the applicant. Mr Ashton's interest was said to be a need to justify his own conduct in respect of the destruction of the applicant's cattle. There is no statutory or practical requirement to bring proceedings to "justify" the destruction of an animal. The mere fact that both powers were exercised by the same officer cannot, of itself, demonstrate an abuse of process. On the facts, the laying of the charges was not shown to be other than appropriate: [57]-[62]. 5. Mr Ashton's interest was also said to be based upon the right of the prosecutor to a moiety should a fine be levied, pursuant to s 122(2) of the Fines Act 1996 (NSW). From the history of summary proceedings it can be deduced that, at least in a historical context, there is nothing inconsistent with the proper administration of justice arising from the prosecutor being rewarded for costs incurred in conducting a prosecution; the remuneration for the prosecutor being conditional upon the outcome of the proceedings; the prosecutor not being an official or public officer; and the court having power to order a defendant to pay the prosecutor's costs in the event of a successful prosecution. If a defendant can properly be ordered to pay the costs of the prosecution, in addition to any penalty imposed, it would be surprising if some different perception as to the administration of justice should arise from the fact that a payment could be made to the prosecutor out of the penalty otherwise imposed: [63]-[71]. R v El Helou [2010] NSWCCA 111 followed. Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75; Kable v The Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51; International Finance Trust Company Ltd v NSW Crime Commission [2009] HCA 49; 240 CLR 319 cited. In relation to (iii) 6. Absent reliance on s 18(3A) of the District Court Act, Boulton ADCJ had no power to deal with the matter after November 2009 and all steps taken thereafter before his Honour would be treated as null and void. The assessment of whether the requirements of s 18(3A) were fulfilled is a matter to be determined by this Court on the basis of the circumstances that had arisen prior to November 2009. It is clear that at the hearing on August 11 2009, the applicant expected the whole of the appeal to be deal within the time fixed. This is consistent with other factors which suggest that the primary judge was dealing with a stage of the appeal, there being clear indications that when the proceedings commenced on 11 August what was listed, what was opened, and what was expected to be addressed was the appeal itself, including the application to call fresh evidence: [84]-[99]. 7. It is fanciful to think that an informed observer would view the volume of the Court's caseload undertaken by acting judges in 2009 and 2010 as diminishing the status of the Court as a body comprised almost entirely of permanent judicial officers. The primary judge had no interest in determining cases in any way which might thought to promote his opportunities for reappointment, as the relevant appointment was his last. Whatever the circumstances in which the appointment of acting judges might undermine the institutional integrity of the District Court, it cannot be said that that point was approached in 2009-2010. There is no reason to suppose that the final reappointment of Boulton ADCJ was invalid because it demonstrated a lack of independence from the Executive Government: [100]-[127]. Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 followed. R v Governor, Goulburn Correctional Centre, Ex parte Eastman [1999] HCA 44; 200 CLR 322; North Australian Legal Aid Service Inc v Bradley [2004] HCA 31; 218 CLR 146; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 204 CLR 337; Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268; Attorney-General (NSW) v Quin [1990] HCA 2; 170 CLR 1; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70; Porter v Magill [2002] 2 AC 357; Valente v The Queen [1985] 2 SCR 673; Ell v Alberta [2003] 1 SCR 857 cited. 8. The applicant submitted that sub-s 18(4A) amended provisions in Pt 9 of the Constitution Act 1902 (NSW) dealing with the State judiciary, in spite of section 7B of the Constitution Act, which requires that such an amendment be submitted to the electors in accordance with the Constitution Further Amendment (Referendum) Act 1930 (NSW). The purpose of Pt 9 is to protect the holders of judicial office. That protection is not relevantly affected by sub-s 18(4A) of the District Court Act: [128]-[132]. 9. While s 176 applies to the present proceedings, it is accepted that it does not prevent this Court from granting relief in respect of jurisdictional error: [133]-[134]. Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552; Spanos v Lazaris [2008] NSWCA 74 cited. 10. The demonstration of bias was said to arise from rulings on evidence; comments in the judgment; dismissal of the recusal application; refusal to state a case in the Court of Criminal Appeal; and refusal to adjourn to permit the issue of s 78B notices. The factors relied upon, whether taken singly or cumulatively, do not lead to the conclusion that a fair-minded observer might consider the primary judge might not bring an unbiased mind to the assessment of the applicant's case: [135]-[176]. Fox v Percy [2003] HCA 22; 214 CLR 118; Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39; Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 cited. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/22284 ALLSOP P BASTEN JA MACFARLAN JA 15 September 2010 Ruth DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 5) Judgment 1 ALLSOP P: I have read the reasons in draft of Basten JA. I agree with them and gratefully adopt them. I also agree with the orders proposed by his honour. 2 BASTEN JA: INDEX Paragraph (1) Procedural History 3 (2) Issues 5 (3) Validity of charges: pleading essential elements of offences 10 (a) factual background 10 (b) the offences 20 (c) court attendance notices: the general principles 26 (d) pleading offences under s 6(1) 46 (e) pleading offences under s 8(1) 47 (4) Authority of prosecutors 54 (a) conflict – prior role of informant 57 (b) conflict – financial interest in outcome 63 (5) Constitution of the District Court 72 (a) procedural background to appeal 73 (b) whether primary judge partly heard on expiry of his commission 80 (c) validity of s 18 100 (d) invalidity: State Constitution, s 7B 128 (e) District Court Act – validity of privative clause (s 176) 133 (6) Apprehension of bias 135 (a) issues raised 135 (b) rulings on evidence 136 (c) comments recorded in transcript 138 (d) assessment of evidence - hearing of motion 146 (e) prejudgment – comments during submissions 154 (f) prejudgment – comments in judgment of motion 157 (g) prejudgment - subsequent events 173 (h) factors taken cumulatively 176 (7) Conclusions 177 (1) Procedural History 3 In May-June 2007, Mrs Ruth Downey ("the applicant") ran cattle on a property known as "Roseleigh", Pilliga, in northern New South Wales. For some months prior to May 2007, officers with the Royal Society for the Prevention of Cruelty to Animals ("the RSPCA") had been concerned as to the condition of stock on the applicant's property. Earlier in June 2007, there had been discussions between officers and the applicant in relation to the lack of feed available on the property and the emaciated condition of the cattle. On 28 June 2007, 96 court attendance notices were issued to the applicant alleging offences under the Prevention of Cruelty to Animals Act 1979 (NSW) ("the Cruelty to Animals Act"). 4 On 24 October 2008 Magistrate Mackintosh, at the Local Court at Narrabri, found each of the offences proved and proceeded, without recording a conviction, to impose a bond in respect of each offence, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW): Local Court Tcpt, 24/10/08). He also ordered the applicant to pay the costs of the prosecution: Tcpt, p 43. (2) Issues 5 On 17 November 2008 the applicant lodged a notice of appeal to the District Court in relation to each of the offences, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"), s 11. The matter was listed before Boulton ADCJ who dealt first with a motion brought by the applicant seeking leave to adduce fresh evidence, pursuant to s 18 of the Appeal and Review Act. 6 That application was dismissed, but various further applications were made to Acting Judge Boulton, requesting him to disqualify himself from hearing the appeals, because of a reasonable apprehension of bias, contending that he was unable to hear the appeals because his commission had expired and, ultimately, challenging the constitutional validity of his appointment as an acting judge of the District Court. His Honour rejected these challenges and set the proceedings down before him as a matter in which he was part-heard. 7 On 25 January 2010 the applicant commenced proceedings in this Court by way of summons issued in the supervisory jurisdiction of the Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). Interlocutory relief was sought to prevent Boulton ADCJ determining the matters before him. On 16 March 2010 the Court dismissed the motion seeking to restrain Boulton ADCJ from proceeding to hear the applicant's appeal: Downey v Acting District Court Judge Boulton (No 3) [2010] NSWCA 50. His Honour proceeded with the hearing and dismissed the appeal against the findings of guilt and, by the time the summons was listed for final determination in this Court, was considering what steps to take by way of consequential orders, including conviction and penalty. 8 In accordance with the requirements of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 6.4(1)(b1), the applicant correctly commenced the proceedings seeking the exercise of the Court's jurisdiction under s 69 of the Supreme Court Act, by way of summons. However, although a number of documents, including notices to admit facts, suggested certain grounds which might be relied upon in support of the relief identified in the summons, the summons, even after several amendments, did not contain a statement setting out briefly but specifically the grounds relied upon in support of the claim, as required by UCPR r 6.12A(b). This has created some difficulty in identifying the issues which the applicant sought to agitate in this Court. However, the matters addressed in submissions were as follows: (a) the court attendance notices by which the criminal proceedings were commenced failed to plead essential elements of the offences charged and were therefore invalid; (b) the prosecutions in the Local Court were invalid, because the prosecutor lacked authority to commence and maintain the proceedings; (c) the proceedings in the District Court were invalid because – (i) the last appointment of Boulton ADCJ expired on his 75 th birthday, in circumstances where he was not "partly heard" in the proceedings; (ii) s 18 of the District Court Act 1973 (NSW), pursuant to which acting judges are appointed, is invalid; (iii) s 18(4A), which permitted the appointment of a retired judge from another State or Territory is invalid; (iv) the number and circumstances of recent appointments of acting judges in the District Court compromised the institutional integrity of the Court so that it was in 2006-2010 no longer a Court of the State for the purposes of Ch III of the Constitution; (v) s 176 of the District Court Act , in so far as it purported to preclude the relief sought by the applicant, is invalid, and (vi) the judge was disqualified on account of a reasonable apprehension of bias. 9 Although the constitutional issues were placed at the forefront of the interlocutory proceedings and on the hearing of the summons in this Court, those issues should not be addressed in circumstances where a case may be determined on the basis of a non-constitutional ground: see R v Hughes [2000] HCA 22; 202 CLR 535 at [66] (Kirby J); Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162 at [135] (Gummow J); John Holland Group Pty Ltd v Industrial Relations Courts of NSW [2006] NSWCA 93; 153 IR 97 at [10] (Spigelman CJ); Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386 at [40]. However, because each of the other grounds fails, the constitutional issues must be addressed. As all challenges fail, the summons must be dismissed with costs. (3) Validity of charges: pleading essential elements of offences (a) factual background 10 The background to the charges which were laid against the applicant may conveniently be drawn from the judgment of the Magistrate in the Local Court at Narrabri at pp3-6. The circumstances giving rise to the charges which were laid on 14 June 2007 can be said to have commenced, for present purposes, in February 2007. On 12 February the applicant was visited by an officer of the RSPCA, Mr Richard Holland, in company with a ranger, Heidi Mackay, from the Rural Lands Protection Board. Prior to the visit, the RSPCA had received a complaint concerning the physical condition of cattle on the property. Mr Holland gave the following evidence as his Honour noted: "He observed approximately thirty animals confined. He stated that without exception, all of the cattle were thin to the point of emaciation. He observed tail, head, hip and rib bones protruding from their bodies, there did not appear to be fat covering bone structure. He stated that in his opinion their body score was between zero and one. He took photographs of some of the cattle …." 11 Mr Holland gave evidence that having described the animals to the applicant as being "dreadfully thin", she had responded that "they are strong": judgment, p 4. Mr Holland then said: "Well I don't think they are, they are emaciated and unless you get some really good feed into them, they will starve to death." 12 Ms Heidi Mackay was in attendance on that occasion, apparently at the request of the district veterinarian, to take food samples of hay "that seem to be toxic" and was directed by the applicant to cattle that she said had been affected by the toxic hay. Ms Mackay took a sample of the hay. It appears that the animals were all being hand-fed and that Mr Holland observed that "other than what he considered to be woody weeds, eucalypts and [cypress] pines, there was no grass or other vegetation present, and the property was undergoing bad drought conditions". 13 A second visit took place on 20 February 2007, by two inspectors with the RSPCA, Gary Ashton and Ann Jackson, and two officers from the Department of Primary Industries ("DPI"), Juliet McConochie and Pip Brown. Mr Ashton observed "eighty to ninety head of cattle in extremely poor emaciated condition and severely malnourished". Mr Ashton also observed cattle on another part of the property in "reasonable to good body condition". Mr Ashton then issued what he described as "verbal feeding instructions", with a promise that "the DPI beef officer" (Ms McConochie) would draw up and provide a set of written feeding instructions. 14 On 1 March 2007 Mr Ashton returned to the property with a veterinarian from the Rural Lands Protection Board, Dr Sean Slattery. Mr Ashton made a video-recording of some 50 head of cattle which he described as being "in extremely poor emaciated condition and severely malnourished". He attempted to hand a copy of the written feeding instructions and a management agreement to the applicant, but she refused to take them. They were handed to her son, Dr Adam Downey, who was present at the time of the visit. The "management agreement" purported to be between the applicant and the RSPCA and related to "approximately 80 cross-breed" located on Roseleigh. It was dated 1 March 2007 and read: "Following the inspection of your cattle at 'Roseleigh'. The following options are out lined below and you are required to adopt one of these options. 1 To feed cattle as per feeding instructions as per attachment from the Department of Primary Industries or de stock within the next period of 60 days from the 1 st March to the 14 th April 2007. 2 Humanely destroy. Notification of intention to transport cattle with destination, day and time advised. Transport must be on single deck transport only." 15 The attached recommended feeding program was signed J L McConochie, Livestock Officer (Beef Products), Walgett. It was dated 23 February 2007. 16 The feeding instructions required that all cattle be fed daily, identifying the nature of the feed and the average amount per head per day, depending upon the average weight of the particular mob, with a recommendation that the cattle be divided into two mobs of average weight 300kg and 400kg respectively. 17 Mr Ashton returned with Dr Slattery and Ms McConochie on 16 April 2007. In his evidence, Mr Ashton described approximately 50 head of cattle as being in "extremely poor emaciated condition and severely malnourished". He made a video-recording of the cattle observed on that day. 18 On 16 May 2007 Mr Ashton returned with Dr Slattery and Ms McConochie and a second DPI beef officer, Mr Bob Kilgour. In his evidence he described seeing approximately 64 head "in extremely poor emaciated condition and severely malnourished". He also gave evidence that the paddock in which the cattle were secured had water, but "little to no pasture of any value available to the cattle". He expressed his view to the applicant that "the cattle have gone backwards in condition". 19 On 14 June 2007 Mr Ashton returned to Roseleigh with Ms McConochie, Dr Slattery, Mr Kilgour, Ms Jackson, Mr Michael Makeham (a third RSPCA inspector), Dr Graham Doherty (a veterinarian) and Police Constable Mark Mills. Some 60-65 cattle were mustered into one paddock and inspected by the veterinarians. The veterinarians selected which animals were to be destroyed and those so selected were shot by Mr Ashton. Forty-eight animals found on the applicant's property were destroyed. (b) the offences 20 In respect of each animal destroyed, two charges were laid against the applicant, under ss 6 and 8 respectively of the Cruelty to Animals Act. In order to evaluate the complaints in relation to the charges, it is necessary to identify the statutory provisions under which they were laid, together with the procedural provisions in relation to the formulation of criminal charges. 21 Section 5 of the Cruelty to Animals Act makes it an offence to commit "an act of cruelty upon an animal". Omitting the penalty, it reads: " 5 Cruelty to animals (1) A person shall not commit an act of cruelty upon an animal. (2) A person in charge of an animal shall not authorise the commission of an act of cruelty upon the animal. (3) A person in charge of an animal shall not fail at any time: (a) to exercise reasonable care, control or supervision of an animal to prevent the commission of an act of cruelty upon the animal, (b) where pain is being inflicted upon the animal, to take such reasonable steps as are necessary to alleviate the pain, or (c) where it is necessary for the animal to be provided with veterinary treatment, whether or not over a period of time, to provide it with that treatment." 22 Section 6 is headed "[a]ggravated cruelty to animals" and creates a more serious offence, providing that "[a] person shall not commit an act of aggravated cruelty upon an animal." A court is empowered to convict a person under s 5 if charged under s 6, where the court is satisfied only that the person is guilty of the lesser offence: s 6(2). Both offences require reference to definitions contained in sub-ss 4(2) and (3), which provide: "(2) For the purposes of this Act, a reference to an act of cruelty committed upon an animal includes a reference to any act or omission as a consequence of which the animal is unreasonably, unnecessarily or unjustifiably: (a) beaten, kicked, killed, wounded, pinioned, mutilated, maimed, abused, tormented, tortured, terrified or infuriated, (b) over-loaded …, (c) exposed to excessive heat or excessive cold, or (d) inflicted with pain. … (3) For the purposes of this Act, a person commits an act of aggravated cruelty upon an animal if the person commits an act of cruelty upon the animal or (being the person in charge of the animal) contravenes section 5(3) in a way which results in: (a) the death, deformity or serious disablement of the animal, or (b) the animal being so severely injured, so diseased or in such a physical condition that it is cruel to keep it alive." 23 It was not in dispute that the cattle were animals for the purposes of these provisions, nor that the applicant was a person in charge of the cattle. The term "pain" was defined to include "suffering and distress": s 4(1). 24 A second set of charges were laid, for contravention s 8 of the Act which then provided: " 8 Animals to be provided with food, drink or shelter (1) A person in charge of an animal shall not fail to provide the animal with food, drink or shelter, or any of them, which, in each case, is proper and sufficient and which it is reasonably practicable in the circumstances for the person to provide. … (2) In any proceedings for an offence against subsection (1), evidence that an animal was not provided with clean water during a period of 24 hours is evidence that the person accused of the offence has failed to provide the animal with proper and sufficient drink during that period. (3) In any proceedings for an offence against subsection (1), evidence that an animal was not provided with food or shelter during a period of 24 hours … is evidence that the person accused of the offence has failed to provide the animal with proper and sufficient food or shelter during that period. (4) Before commencing proceedings for an offence against subsection (1) in respect of a stock animal depastured on rateable land …, the prosecution must obtain advice from a rural lands protection board and the Department of Agriculture about the state of the animal (if practicable) and the appropriate care for it. (5) The prosecution may, with leave of the court granted in such circumstances as the court considers just, commence or continue proceedings for an offence against subsection (1), despite having failed to comply with subsection (4)." 25 There was no dispute that the cattle were stock animals for the purposes of s 8(4) and that the land was rateable land. The required advice was obtained from a relevant authority and the Department of Agriculture before the prosecution was brought. (c) court attendance notices: the general principles 26 In order to provide the context in which the general principles fall to be applied, it is convenient to set out first the form of the charges under s 6(1) of the Cruelty to Animals Act. Each charge, as identified in the relevant court attendance notice, related to one animal, but was otherwise in standard form. The charge of aggravated cruelty was identified as being laid under s 6(1) of the Cruelty to Animals Act, identified the place of the offence as the applicant's property and the time and date of the offence as 14 June 2007. Under the heading "Description of offence" the following appeared" "AGGRAVATED CRUELTY Being the person in charge of an animal, did commit an act of aggravated cruelty upon an animal, to wit, a cow." 27 The following short particulars were provided in respect of each animal: "The Accused being in charge of an animal, to wit, a brown cow, did commit an act of aggravated cruelty upon an animal. The brown cow (RSPCA Tag No 1) was in poor nutrition and emaciated condition and was cruel to be kept alive." 28 The grammatical structure of the short particulars left something to be desired, but the intent was reasonably clear. The offence was described in the statutory terms, namely by reference to an act of aggravated cruelty upon a particular animal, the consequence being that identified in s 4(3)(b), namely that the treatment resulted in the animal being in such a physical condition (identified as poor nutrition and emaciation) that it was cruel to keep it alive. What the statement of the charge did not expressly identify was the conduct of the applicant which had led to the identified consequence. The conduct, to fall within the definition in s 4(3), must have involved either an act of cruelty or a contravention of s 5(3). It was possible to reason back from the reference to "poor nutrition and emaciation" to the inference that the animal had not been provided with proper and sufficient food. Such conduct would not obviously fall within the four categories of epithet identified in the definition of act of cruelty in s 4(2), although it might involve an act or omission as a consequence of which the animal was "inflicted with pain" within sub-par (d), the term "pain" encompassing suffering and distress. Alternatively, it might be inferred that the conduct in question was the failure to take reasonable steps necessary to alleviate the suffering and distress of the animal, arising from lack of food, being a contravention of s 5(3)(b). 29 In practical terms, little may turn upon which is the correct inference, in circumstances where the person in charge is responsible for the initial infliction of suffering and distress due to lack of food and also fails to remedy the existing circumstance, once it arises, by providing adequate food. However, the validity of the charge depends upon whether it is sufficient that such an inference can be drawn as to the underlying conduct of the applicant, or whether the charge is invalid because it fails to identify that conduct in express terms. The applicant contended that the failure to identify the conduct in express terms involved the omission of an essential element of the offence, rendering each charge laid under s 6(1) invalid. In support of that conclusion, the applicant relied upon the reasoning of the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. 30 For reasons which will be explained below, the principles discussed in Kirk do not control the outcome of the present complaint. In short, the inadequate pleading of the offence charged in Kirk contaminated not merely the pleading itself, but the procedure in the trial court and the ultimate conviction. That is not so in the present case. Further, the procedural scheme applicable in Kirk was similar to, but not identical with, that presently relevant. 31 The charges in question in Kirk involved alleged contraventions of the Occupational Health and Safety Act 1983 (NSW) ("the OH&S Act") resulting in the death of an employee of the corporate employer for which both the company and its director (Mr Kirk) were held responsible. The primary provision under which the charges were laid, s 15(1) of the OH&S Act imposed an obligation on the employer to "ensure the health, safety and welfare at work of all the employer's employees". Section 15(2) identified, in very general terms, conduct which might constitute a contravention of the section. Thus it was a contravention for the employer to fail "to provide or maintain plant and systems of work that are safe and without risks to health" and to fail to provide "such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees": s 15(2)(a) and (c). Pursuant to s 53(a) of the OH&S Act, a defence was available if the employer proved it was "not reasonably practicable" for it to comply with the provision, breach of which constituted the offence. The charges laid by the prosecution against the employer and its director, adopted the statutory language, but did not identify any particular act or omission, the reasonable practicability of which would need to be assessed in considering the defence raised. As the High Court explained at [28]: "The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of [s 15(1)]. The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to [the employee] …. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable." 32 After referring to the reasoning of the trial judge, the Court held: "37 … For present purposes it is sufficient to observe that his Honour's reasons disclose a wrong understanding of what constituted an offence against [s 15] and how the defence under s 53(a) was to be applied in proceedings for such an offence. His Honour did not appreciate that no act or omission on the part of the Kirk company had been charged. To the contrary, his Honour accepted the proposition that the prosecutor is not required to demonstrate that particular measures should have been taken to prevent the risk identified. 38 A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a)." 33 The conviction and orders in Kirk were, in those circumstances, held to be tainted by error of law on the face of the record and, significantly, given the existence of a privative clause, jurisdictional error. 34 The current law with respect to criminal pleadings is a product of the tension which arose in 19th Century England between the use of certiorari to set aside convictions by justices, often on highly technical grounds, and legislative protection against such outcomes. As explained by Jordan CJ in Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 167: "So strict were the requirements for the valid exercise of the summary jurisdiction that it was not difficult to pick holes in a conviction, and, on occasion, when the ingenuity of counsel failed, the Court of King's Bench was astute to discover defects for itself …. In the result, large numbers of delinquents escaped punishment upon grounds some of which were highly technical. Legislation which had the effect of rendering summary convictions less open to attack was passed in England in the Nineteenth Century." 35 The legislation to which his Honour referred was the Duties of Justices (Summary Convictions) Act 1848(11 & 12 Vic c 43) ("Jervis' Act of 1848"), ss 1 and 3 of which were the forerunners of s 16(2) of the Criminal Procedure Act 1986 (NSW). That section relevantly provides: " 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: … (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, … (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, … (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant." 36 This provision appears in Pt 2 of the Criminal Procedure Act, for the purposes of which, the term "indictment" is defined to include a court attendance notice: s 15(2). Summary proceedings in a Local Court are to be commenced, as occurred in the present case, by the issue and filing of a "court attendance notice" in accordance with Ch 4, Pt 2, Div 1 of the Criminal Procedure Act: see s 172. The form of a notice is to comply with s 175: " 175 Form of court attendance notice (1) A court attendance notice must be in writing and be in the form prescribed by the rules. … (3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence …." 37 The English Summary Jurisdiction Act of 1879 (42 & 43 Vic c 49), s 39(1) (noted in Buckley at 169) was the predecessor to s 11 of the Criminal Procedure Act which states: " 11 Description of offences The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law." 38 Further, s 12 of the Criminal Procedure Act states: " 12 Short description of certain offences (1) For the purposes of this or any other Act, a summary offence … is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. … (4) Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document." 39 Further incrustations of case law developed around the remedial legislation. At least in relation to decisions of magistrates, it might have been expected that the significance of this history would quickly dissipate once a general right of appeal to the District Court (then Quarter Sessions) was provided in 1900. That provision was accompanied by a privative provision preventing removal of any conviction or order by certiorari into the Supreme Court: see Buckley at 172-173. 40 Not all provisions in Ch 2, Pt 2 of the Criminal Procedure Act are equally apt to apply both to summary proceedings and to indictments presented before juries. Nevertheless, s 21, permitting amendment in a case where an indictment is "defective but, having regard to the merits of the case, can be amended without injustice" is applicable to a court attendance notice: s 21(1). The Court is empowered when permitting an amendment, to make such other order as it thinks necessary to meet the circumstances of the case, including an adjournment to allow a defendant to prepare a defence to the new element: s 21(3). 41 The long history of such provisions has allowed for clarification of the requirements of valid pleading of a criminal charge. First, it is necessary to draw a distinction between identifying "the nature of the offence" and "the necessity of specifying the time, place and manner of the defendant's acts or omission": Johnson v Miller [1937] HCA 77; 59 CLR 467 at 486 (Dixon J). 42 Secondly, unless it is possible to cure the omission or there is some overriding statutory protection, a failure to state an essential factual ingredient of the offence will be fatal to the validity of the "indictment": see John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 at 520-521 (Mason CJ, Deane and Dawson JJ). So much is implicitly recognized by s 16(1)(g) of the Criminal Procedure Act. 43 Thirdly, where it can be said that the omission is a failure to supply adequate particulars, the result is a contravention of s 175(3)(b) of the Criminal Procedure Act, but the statement of the charge is not, for that reason alone, invalid or the proceedings a nullity: Knaggs v Director of Public Prosecutions [2007] NSWCA 83; 170 A Crim R 366 at [40]-[54] (Campbell JA, Mason P and Tobias JA agreeing). Campbell JA further noted: "57 The claimant made no application for better particulars of the charge, either prior to the hearing in the Local Court, or at the Local Court hearing itself. He made no submission to the magistrate that the CAN was void and that hence, the magistrate had no jurisdiction. 58 The appeal to the District Court was an ' all grounds' appeal. The Notice of Appeal stated the grounds of appeal to be ' because I am not guilty' . No complaint was made to his Honour Judge Hosking about the inadequacy of the particulars that had been supplied, nor was any argument advanced in the District Court appeal, that the conviction was void by reason of the inadequacy of the particulars contained in the CAN." 44 Fourthly, an indictment will be bad and incapable of supporting a valid conviction, if it omits an essential legal element of the offence charged, so that it does not, in its terms, identify an offence known to the law: see Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; 165 IR 7 at [24]-[28] (Spigelman CJ); Lodhi v Regina [2006] NSWCCA 121; 199 FLR 303 at [88]-[94]. 45 In Rockdale Beef, although Spigelman CJ was in dissent as to the outcome in a particular respect, his statements at [24]-[28] were not inconsistent with, but more concise than, those of the majority. His Honour's concern was that the charge failed to note that the premises were "controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person", for the purposes of a contravention of s 10(3) of the OH&S Act. The point of departure of the majority was that in my view, with which Mason P agreed, the relevant statutory provision identifying the requirements of a valid application, was limited to a statement of "the nature of the offence" (at [109]) and that the element identified as omitted in express terms was sufficiently fulfilled by a statement that the plant in question was "used by people at work" and was identified as "a drag chain conveyor", language which gave rise to the clear inference that it was machinery of a kind used in the course of a trade, business or other undertaking: at [125]. (d) pleading offences under s 6(1) 46 The form of the charges laid under s 6(1) have been set out at [26]-[27] above. There was no doubt in the present case that the gravamen of the charges brought against the applicant, under s 6(1) as well as those under s 8(1) of the Cruelty to Animals Act, was that the applicant failed to provide proper and adequate food to her animals. While it is true that no such words appear in the court attendance notice in respect of each s 6 offence, the combined allegation was that the applicant was in charge of the animal, committed an act of aggravated cruelty upon it and that it was "in poor nutrition and emaciated condition". The Oxford English Dictionary (2nd ed, 1989) defines "nutrition" as "the action or process of supplying, or of receiving, nourishment or food", as well as "that which nourishes; food, nutriment". Accordingly, the ordinary meaning of being "in poor nutrition" is being in a state caused by the failure to receive nourishment or food. The language of the notice sufficiently indicated that the relevant omission was a failure to provide that which would alleviate the poor nutrition and emaciated condition, namely food. It may be that further particulars might have been sought, but a fair reading of the charge does not indicate that it is defective in that it has omitted some essential factual (or legal) element of the offence. (e) pleading offences under s 8(1) 47 The same approach should be adopted in respect of the second set of charges under s 8(1) of the Cruelty to Animals Act. The court attendance notice provided the following details of that offence: Description of offence: FAIL TO PROVIDE PROPER & SUFFICIENT FOOD Being the person in charge of an animal, to wit, a cow, did fail to provide the said animal with food which was proper and sufficient and which is reasonably practicable in the circumstances for the person to provide. Time and date of offence: Between 14 th May, 2007 and 14 th June, 2007. Place of offence: Property 'Roseleigh' Pillaga to Coonamble Road, Pillaga. Short particulars: Being the person in charge of a brown cow, did fail to provide the said animal with food which was proper and sufficient. The brown cow (RSPCA Tag No 1) was without proper and sufficient food for over a period of about 4 weeks which contributed to its poor body condition. 48 The applicant's complaints in respect of this charge were that it failed to specify that which was not supplied, contenting itself with the words of the section ("food which is proper and sufficient") and, as a consequence, failed to identify that which it was reasonably practicable to provide. The applicant sought to draw an analogy with the circumstances in Kirk. 49 The analogy with Kirk is superficial only. Further, care must be taken in seeking to rely upon supposedly analogous factual situations in a higher court, as giving rise to a precedent, rather than the precedent being found in the legal principle to be applied in assessing such facts. In Kirk, there were real issues as to what steps the employer should have taken to ensure the safety of its experienced farm manager who was driving the all-terrain vehicle (the ATV). Not only did the uncertainty as to the prosecution case make it (at least) difficult for the defendant to identify whether the relevant steps would have been reasonably practicable, but it also created a difficulty in establishing a causal link between the relevant omissions and the accident. For example, it might have been necessary to ask whether the training which had not been provided would have taught the deceased anything about the vehicle which he did not already know. In the present case, the charge made clear that that which had not been supplied was proper and sufficient food. It was further alleged that that omission contributed to the poor body condition of the animal which, at least by necessary inference, constituted an allegation that whatever had been provided was not both "proper and sufficient". 50 It followed that the essential elements of the offence were addressed in the charge. The nature of the feed required by cattle, and its availability in the area at the relevant time, would have been matters for evidence. If particulars had been sought, a court may have directed the prosecutor to give them. None were sought, either in the Local Court or the District Court. 51 The failure to seek particulars may have been in part a practical decision flowing from the fact that the applicant had, on 1 March 2007, been provided with a "recommended feeding program for cattle on Roseleigh", prepared by a livestock officer employed in the NSW Department of Primary Industries at Walgett. 52 On 17 March 2010, the penultimate day of the hearing in the District Court, counsel for the applicant handed to the primary judge a document headed "Questions of Law", which were treated as grounds of appeal: Judgment, 13 April 2010, p 40. Although ground 8 raised a question as to whether the proceeding in respect of each information "before the Local Court is a nullity", this was treated by the primary judge as raising a question concerning the status of the prosecutor and the relationship between counsel for the prosecution and the RSPCA: Judgment, pp 52-53. Although it found no reflection in the document, counsel for the applicant had raised orally, on 17 March 2010, (a) a complaint that the charge under s 6(1) was "wholly uncertain and bad for duplicity" (Tcpt, 17/03/10, p 25(40)); (b) even if there were a valid pleading, there was no evidence of an act of aggravated cruelty upon any cow (Tcpt, p 26(50)), and (c) a failure to plead the elements of the definitions in s 5(3) upon which reliance was sought to be placed (Tcpt, p 27). It appears to have been in support of the last point that the judge was referred to Kirk's case: Tcpt, pp 28-29. 53 If the pleadings were deficient in failing to identify an essential element of either offence, it may not matter whether the issue was raised by a challenge by way of demurrer before the trial, or in the course of the trial, or not at all in the trial court. A conviction based on a charge not revealing an offence against the law will be invalid. However, if the complaint is in truth one of a failure to provide particulars, which were not sought at or during the trial in the Local Court or on appeal, a different analysis is required and invalidity will not usually result. In the present case, the complaint is no more than a failure to provide particulars which were not sought but may (though not inevitably) have been ordered if sought. The challenge to the validity of the proceedings and the resulting conviction on this ground is rejected. (4) Authority of prosecutors 54 It is convenient to deal next with a challenge to the "authority" of the RSPCA and the informant, Mr Garry Joseph Ashton, being the second and fifth respondents respectively, to "issue and proceed upon the Court Attendance Notices issued against the Applicant": Summons, ground 10. In order to understand the nature of the complaints raised by this ground, it is necessary to extract from the somewhat discursive submissions for the applicant the basis of the complaint and the suggested consequences. 55 A preliminary question arose as to the identification of the "prosecutor" in respect of the offences brought before the Local Court (and on appeal to the District Court). Under the Criminal Procedure Act, the term is defined in s 3(1) as follows: " prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor." 56 Proceedings for a summary offence are "commenced" by the issue and filing of a court attendance notice: Criminal Procedure Act, s 172(1). The proceedings are "taken to have commenced" on the date on which the court attendance notice is filed in the Registry of the relevant court: s 178(1). The "prosecutor" identified in the court attendance notices in the present proceedings was "RSPCA Inspector Garry Ashton". He was identified by reference to his "department/organisation" which was stated to be the RSPCA. The applicant identified either Mr Ashton or the RSPCA, or both, as constituting the prosecutor. At least for the purposes of the Criminal Procedure Act, it is clear that there may be more than one "prosecutor" in relation to a particular matter. It is not necessary for present purposes to resolve which of the two respondents was the prosecutor, it being sufficient to assume that both were. For convenience, the argument will be addressed, as it was primarily presented, by reference to the position of Mr Ashton. (a) conflict – prior role of informant 57 The first ground of challenge arose from a perceived conflict between Mr Ashton's "interest" in the commencement and conduct of the proceedings and his duty to proceed only in the public interest and deal fairly with the applicant. His interest was said to arise in two ways, namely, first as a need to justify his own conduct in respect of the cattle and, secondly, his entitlement to a moiety should the prosecution succeed and a fine be imposed on the applicant. 58 In order to understand the way in which the first limb of his personal interest was identified, it is necessary to refer to other provisions of the Cruelty to Animals Act. 59 First, the Cruelty to Animals Act confers powers on two categories of person, identified as "officers" and "inspectors". The latter is a sub-category of the former. Pursuant to s 4(1): " officer means: (a) a member of the police force or an inspector within the meaning of the Animal Research Act 1985 , (b) an officer of an approved charitable organisation who is a special constable within the meaning of the Police Offences Act 1901 , or (c) a public servant who is appointed by the Minister, or by an officer of the Department of Primary Industries authorised by the Minister, as an officer for the purposes of this Act." 60 Pursuant to Pt 2A, various powers are conferred on officers. However, of significance for present purposes are the particular powers identified in Pt 2A, Div 2, conferred on "inspectors". Those powers include entry upon land for the purposes of exercising a function under the Division, a power to examine animals if the inspector suspects on reasonable grounds that an offence is being committed in respect of the animal (s 24I) and the power, where the inspector suspects on reasonable grounds that the animal is in distress or that it is cruel to keep it alive, to destroy the animal: s 24J. An inspector now also has authority to prosecute offences against the Act although that provision did not commence until 1 January 2008, a date well after the issue of the court attendance notices in the present case: s 34AA(1)(b). 61 Mr Ashton was a special constable appointed under s 101 of the Police Offences Act 1901 (NSW) (now the Police (Special Provisions) Act 1906 (NSW)) and was therefore an officer for the purposes of the Cruelty to Animals Act: s 4(1) "officer". Mr Ashton was also an inspector, being the holder of an authority issued with the approval of the Minister under s 24D(2) of the Cruelty to Animals Act. 62 The relationship between the circumstances preceding the commencement of the proceedings and the power to commence proceedings was not clearly articulated. It is understandable that the applicant was distressed by the events of 14 June 2007 when Mr Ashton carried out the destruction of most of the applicant's cattle. However, the submission that he was "then a party to the proceedings seeking fines by way of penalty brought to justify his decision" (presumably the decision to destroy the cattle) is obscure; applicant's written submissions, p 20. The power of destruction depends upon a suspicion, to be held on reasonable grounds, that the animal is either in distress or that its condition is such that it is cruel to keep it alive. There is no statutory or practical requirement to bring proceedings to "justify" the destruction of an animal. In some circumstances, the state of the animal will not be the result of an offence under Pt 2 of the Cruelty to Animals Act. On the other hand, the mere fact that both powers were exercised by the same officer cannot, of itself, demonstrate an abuse of process. On the facts, the laying of the charges was not shown to be other than appropriate. If (which was also not demonstrated) Mr Ashton harboured some private opinion that his decision to destroy the cattle would be vindicated, in some practical way (rather than legally) by the institution of proceedings for offences, that would not demonstrate an abuse of process in instituting the proceedings. (b) conflict – financial interest in outcome 63 The second ground on which the challenge was mounted concerned the right of the prosecutor to a moiety should a fine be levied. No fine was imposed in the Local Court and no penalty has yet been determined by the District Court. It follows that no application has been made for payment of any part of the fine either to Mr Ashton, or to the RSPCA. Accordingly, the applicant's case was based on the proposition that a conflict arose in respect of the commencement and conduct of the proceedings from the existence of a power in the Court to direct that a portion of the fine be paid to the prosecutor, pursuant to s 122(2) of the Fines Act 1996 (NSW). 64 The power in s 122 to order such a payment applies in any proceedings in which a statute makes provision for the imposition of a fine but does not make provision for its application when recovered, so long as the prosecutor is not a police officer: s 122(1). If the existence of such a consequence of a successful prosecution is to render the proceedings an abuse of process, it will have that effect in all cases and thus invalidate the very proceedings upon which its operation depends. If that submission were correct, it might be thought to lead to the unconstitutionality of s 122, rather than the invalidity of prosecutions brought otherwise than by police officers. However, it was the latter consequence for which the applicant contended. (The precise scope of s 122 is by no means clear: there are many circumstances in which a government officer will be a prosecutor, a circumstance in which, given the history of the provision, it is unlikely that it was intended to apply: see Fines and Penalties Act 1901 (NSW), now replaced by the Fines Act 1996.) 65 It may be accepted that "no narrow view" should be taken of what may constitute an abuse of process: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75 at [27] (French CJ, Gummow, Hayne and Crennan JJ). Nevertheless, what constitutes an abuse of process can only be determined taking into account relevant provisions of a valid statute which condition the legal circumstances in which the conduct complained of arises: Jeffery & Katauskas at [41]-[43]. Accordingly, the applicant's claim must depend upon establishing invalidity of part at least of the statutory scheme identified above. 66 As explained by the Solicitor-General, a provision in the form of s 122 of the Fines Act, permitting a "common informer" to recover a statutory penalty for his or her own benefit has a long history in this country and in the United Kingdom. In the particular context of this case, he noted that the Cruelty to Animals Act 1850 (14 Vic c 40) (NSW) provided in s 13: "And be it enacted, That all fines forfeitures and penalties imposed by this Act shall be paid one moiety to Her Majesty, Her Heirs, and Successors, for the public uses of the said Colony, and in support of the Government thereof … and the other moiety to the use of the informer or party prosecuting." 67 Although there is a longstanding principle that the Crown or State, as prosecutor, neither receives nor pays costs of a criminal trial, the rule has long been otherwise in respect of summary proceedings. Indeed, the question of costs incurred by prosectors predated the establishment of a statutory police force. Thus, in England in 1752, legislation empowered a court before whom a person had been tried and convicted of a felony to order the treasurer of the county to pay the prosecutor a reasonable sum not exceeding the expenses of the prosecution and a reasonable allowance for time and trouble: 25 Geo II, c 36 (1752) and 58 Geo III, c 70 (1818). The scheme was extended to proceedings before magistrates by the Criminal Law Act 1826, 7 Geo IV, c 64, which applied in New South Wales pursuant to the Australian Courts Act 1828 (9 Geo IV, c 83) (Imp). The Solicitor-General also noted s 18 of Jervis' Act of 1848, which applied in New South Wales pursuant to the Justices Act 1850 (14 Vic, c 43). (Much of the early legislative history is referred to in the Report of the Departmental Committee Appointed to Inquire into the Allowances to Prosecutors and Witnesses in Criminal Prosecutions (1903), CD 1650, House of Commons Parliamentary Papers (Online).) 68 A number of points may be deduced from this history. First, there is nothing inconsistent with the proper administration of justice (at least in an historical context) arising from the following propositions: (a) the prosecutor being rewarded for costs incurred in preferring and conducting a prosecution, including an allowance for time spent, both of the prosecutor and of any witnesses; (b) the remuneration for the prosecutor being conditional upon the outcome of the proceedings; (c) the prosecutor not being an official or public officer; (d) the court having power to order a defendant to pay the prosecutor's costs, in the event of a successful prosecution. 69 It must follow that, if a defendant can properly be ordered to pay the costs of the prosecution, in addition to any penalty imposed, it would be surprising if some different perception as to the administration of justice should arise from the fact that a payment was made to the prosecutor out of the penalty otherwise imposed. 70 It would further seem to follow that, to the extent that such arrangements were commonplace at the time of Federation, it would not then have been perceived as incompatible with the exercise of federal judicial power for a State court to have power to make orders of the kind referred to above. That being so, there is no basis to suggest that the regime identified under current State law significantly impairs the institutional integrity of the courts, so as to compromise their role as a repository of federal jurisdiction, in terms articulated in Kable v The Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 and more recently in International Finance Trust Company Ltd v NSW Crime Commission [2009] HCA 49; 240 CLR 319 at [53]-[54] (French CJ), [88]-[89] (Gummow and Bell JJ), [140] (Heydon J). To adopt the language of Allsop P in R v El Helou [2010] NSWCCA 111 at [37] there is "simply no compromise of this polity's courts in any way to engage Kable … or any other case reflective of the protection of the independence and fairness of the judicial system". 71 It follows that the status of the prosecutor was not such as to render the proceedings commenced by him invalid because of his prior role, nor were the proceedings an abuse of process, nor were the impugned statutory provisions as to payment of costs invalid, nor was the function placed on the Court in determining the proceedings incompatible with its constitutional role as the repository of federal judicial power. These grounds are rejected. (5) Constitution of the District Court 72 The remaining grounds of appeal all concern the constitution and continuation of the proceedings on appeal in the District Court. Because it is concluded that all of these grounds should be rejected, the constitutional challenge cannot be avoided. Accordingly, it is appropriate to approach the issues as they logically arise. (a) procedural background to appeal 73 On 17 November 2008 the applicant appealed from her convictions to the District Court under s 11 of the Appeal and Review Act. Because the course of the proceedings in the District Court gave rise to a ground of review, it is necessary to indicate the nature of appeals in that Court. Relevantly, Pt 3 of the Appeal and Review Act provides: " 18 Appeals against conviction to be by way of rehearing on the transcripts of evidence (1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 19. (2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. … 19 Circumstances in which evidence to be given in person (1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied: (a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or (b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. (2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct. (3) If an application for such a direction is refused, the District Court must give reasons for the refusal. (4) A direction may be withdrawn only on the application, or with the consent, of the appellant. (5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1). (6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings. 20 Determination of appeals (1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or (2) The District Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal." 74 In the District Court, the applicant sought leave to call "fresh evidence", pursuant to s 18(2). The Court considered and dismissed that application. The applicant also sought to have persons attend to give evidence, pursuant to s 19(1). The first limb of that provision is not engaged and accordingly the matter needed to be determined by the Court considering whether there were "substantial reasons" why the persons in question should attend and give evidence, pursuant to sub-s (1)(b). That application was also rejected. For reasons which will become apparent, there is an issue as to whether Boulton ADCJ was "part heard" when dealing with applications under ss 18 and 19. 75 On 11 August 2009 the appeal was listed before the primary judge, directions having been given that it be heard as a "special fixture" in Sydney. The parties had estimated that the appeal would take five days. The first day was a Tuesday, the morning session being abbreviated by a part heard sentence matter which his Honour completed before commencing the hearing of the appeal. His Honour noted that he had a concern in respect of time, as he was commencing a three week circuit in East Maitland on the following Monday: Tcpt, 11/08/09, p 7(10). His Honour also noted that he finished his term as an acting judge in mid-November, but believed, "in the event of being part heard in matters that one can continue to hear them to completion": Tcpt, p 7(15). At that stage counsel for the applicant expressed the hope that it would be possible to complete the matter within the week, "or should it go into a couple of extra days it can be dealt with when your Honour returns from the circuit": Tcpt, p 7(40). His Honour noted (after a short adjournment) that the Court arrangements were for him to continue to hear the matter through to Friday: Tcpt, p 10(25). His Honour continued: "In the event of the matter going beyond Friday I'll need to put it over[;] apparently there are plenty of courts available in the [District Court complex in Sydney] at later points of time to which it could be put. And I could hear the matter through to completion. I mention the foreshadowing of a possible case stated, apparently there's no impediment to my continuing to hear the matter even if it did go elsewhere and come back. So I'm quite happy to continue to hear the matter in those conditions." 76 The significance of the timing and the primary judge's age arose because his appointment was as an acting judge which did not (and could not) continue after he reached the age of 75 years. There was, nevertheless, provision for him to continue to deal with certain matters in which he was, to put the question neutrally, already engaged. The timing became significant, because, the matter not being completed on the fixed days of 11-14 August 2009, the hearing was stood over until 20 October 2009 for mention. On 14 August, his Honour had delivered a judgment on the notice of motion seeking leave to call fresh evidence. For reasons which were not immediately apparent, that was followed, within 10 days, by a notice of motion inviting the primary judge to recuse himself from "further hearing of the appeal": notice of motion, 23 August 2009. The motion was accompanied by an affidavit of the same date, which merely annexed a copy of the interlocutory judgment. 77 The recusal motion came before the primary judge on 20 October 2009. There was also an application that, for reasons personal to the applicant, the matter be transferred to the District Court at Tamworth. At that stage counsel for the applicant raised the possibility that the recusal application might be unnecessary (Tcpt, p 1(25)): "If I am correct in thinking that your Honour hasn't embarked on a hearing of the appeal it may be that our application is unnecessary because, as I think was discussed on the last occasion, your Honour may be retiring at some stage before it would be possible to hear the appeal so it [the motion] will be irrelevant." 78 The matter was stood over until Monday, 14 December 2009. (The transcript records that the further hearing occurred on "Friday, 15 December 2009", which was presumably a reference to Tuesday, December 15, or possibly Friday, December 18.) At the conclusion of the hearing, his Honour reserved judgment, with respect to: the recusal motion; the expiry of his commission, and the application for change of venue. On Friday 18 December, his Honour held that his commission had not expired and refused to recuse himself for apprehended bias, arising from his earlier interlocutory judgment. His Honour was conditionally minded to transfer the matter to Tamworth, but, after discussion of the logistics with counsel, fixed the matter for hearing in Sydney in the week commencing 15 March 2010. 79 Against this background, it is convenient to address the following challenges to the validity of the proceedings in the District Court, namely: (a) the finding that the primary judge was partly heard in the appeal; (b) the validity of the provisions for appointment of acting judges, namely s 18 of the District Court Act , and (c) the validity of the appointment of the primary judge as an acting judge of the District Court. The challenge to the refusal of the primary judge to recuse himself for apprehended bias will be addressed separately, as it involves findings on evidence presented in this Court. (b) whether primary judge partly heard on expiry of his commission 80 For the purposes of this challenge and the challenge to the constitutionality of s 18, it is convenient to set out the section in full, in the form it bore in the District Court Act in November 2009: " 18 Acting Judges (1) The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge for a time not exceeding 12 months to be specified in the commission. (2) In subsection (1), qualified person means a person qualified for appointment as a Judge. (3) The person so appointed, for the time and subject to the conditions or limitations specified in the person's commission, shall have the powers and authorities and fulfil the duties of the Judge and shall, for the purposes of this or any other Act (other than the Statutory and Other Offices Remuneration Act 1975 ), be deemed to be a Judge. (3A) The person so appointed may, despite the expiration of the period of the person's appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period. (3AA) While a person completes or otherwise continues under subsection (3A) to deal with any matters relating to proceedings that have been heard or partly heard by the person before the expiration of the person's appointment, the person has all the entitlements and functions of a Judge (subject to the conditions and limitations specified in the person's commission) and, for the purposes of those proceedings, is taken to continue to be a Judge. (3B) The person so appointed is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975 . The remuneration payable to such a person is to be paid to the person so long as he or she continues to hold office. (4) A retired Judge of the Court or of another court in New South Wales … may be so appointed even though the retired Judge has reached the age of 72 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years. (4A) A person who is or has been a judge of the Federal Court of Australia or of the Supreme Court, District Court or County Court of another State or Territory may be so appointed even though that person has reached the age of 72 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years. (5) The conditions or limitations specified in a commission under this section may exclude the whole or any part of the period of appointment from being regarded as prior judicial service (within the meaning of section 8 of the Judges' Pensions Act 1953 ) by the person. (6) A person appointed under this section may be appointed under the title of Acting Judge or Associate Judge." 81 It was common ground that the primary judge turned 75 in November 2009. His last commission, which commenced on 1 July 2009, concluded on that day. There were no conditions or limitations specified in the commission which affected the power to complete or otherwise continue to deal with any matters relating to the proceedings if they were proceedings that "have been … partly heard, by the person before the expiration of that period": s 18(3A). 82 Each of the applicant and the prosecutor (the RSPCA) made submissions as to whether his Honour was partly heard on the day his commission expired. His Honour had expressed a view in that regard in his judgment delivered on 18 December 2009, the validity of which no doubt depended upon the answer given to the question. Although presumably the State has continued to pay the primary judge since the date on which his commission expired, the Solicitor-General made no submissions in respect of the issue as to whether he validly continued to act, nor did he make submissions as to how this Court should approach an assessment of that question. 83 The RSPCA based its submissions on the proposition that, if the proceedings were the appeal, they had been "partly heard" by 14 November 2009, with the result that his Honour could continue to deal with any matters relating to the appeal, including its determination. In the alternative, the RSPCA submitted that if the proceedings were the motion to adduce further evidence, it had undoubtedly been heard and what remained in the appeal were matters "relating to" that motion. 84 The alternative construction reverses the focus and meaning of sub-s 18(3A). It is the "proceedings" that must have been heard or partly heard; where the substantive issues have not yet been addressed by the Court, proceedings cannot be said to "have been heard". If the substantive issues have been addressed but questions of interest on a judgment, costs or some ancillary consequential matter have not been determined, those matters can be completed. On the other hand, where the judge is one week into a two week trial, it is clear that he or she may "continue to deal with" and "complete" the substantive issues as well as any consequential matters. Where a preliminary matter has been heard (or partly heard) the liberty granted by the section is not engaged so as to permit the judge whose appointment has expired to commence hearing the substantive issues in dispute. What is less clear is whether a preliminary matter is being dealt with, in a particular case, as part of the substantive hearing, or as a preliminary matter, separately and before the substantive hearing. In the present case the question is whether the application to hear further evidence was being heard as part of the appeal or separately and before consideration of the appeal against the convictions. 85 Proceedings "have been heard" where the hearing of evidence and submissions has finished, but judgment has not been delivered. The section would permit delivery of judgment in such circumstances, after the expiration of the judge's commission. It is arguable that the first limb of the conferral of power ("complete") attaches to proceedings "that have been heard", whereas the second limb ("otherwise continue to deal with") attaches to the second limb of the state of the proceedings, namely those that are "partly heard". While such a construction has a superficial attraction, it is not necessary to limit the operation of the language in this way and the likelihood that any such limitation was intended is diminished by the separation of the subject of the two sets of elements, the first dealing with matters relating to proceedings and the latter with the proceedings themselves. 86 The Court was referred by the RSPCA to the decision of Hall J in Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092. That case involved an application to set aside orders made by the magistrate refusing an application under certain provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW). One ground of the review sought asserted that the magistrate had determined the application in circumstances where another magistrate was part-heard. Intervention in such a case has been held by this Court to be warranted: see Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 649C under the heading "Principles governing substitution of judges". In Khalil, Hall J looked at the circumstances of the case, including the manner in which the first magistrate had dealt with the proceeding before him, to determine whether he was in fact "part heard". As his Honour concluded that the first magistrate was not part heard, the legal consequence of the ground of appeal as formulated in those terms was not considered. 87 In the present context, the legal consequence is not in dispute: absent reliance on s 18(3A), the primary judge had no power to deal with the matter after November 2009 and all steps taken thereafter before his Honour must be treated as null and void. 88 The assessment of whether the requirements of s 18(3A) were fulfilled is a matter to be determined by this Court on the basis of the circumstances that had arisen prior to November 2009. There is no doubt, in that regard, that various factors pointed in different directions and that the parties themselves adopted different positions at different stages. The material events may be dealt with chronologically. First, on 11 August 2009, counsel for the applicant commenced with an opening described in the following terms (Tcpt, 11/08/09, p 2(10)): "In these opening remarks, your Honour, I will give a short narrative of the facts of the matter, including a review of the reasons for judgment, outline the grounds of appeal, the evidence in the matter that is proposed to be led in the court pursuant to the court's powers under sections 18 and 19 of the Act, refer briefly to the case of the respondent, and then I hope to conclude these opening remarks shortly before the luncheon adjournment, if not sooner." 89 The opening was clearly undertaken on the basis that the motion to admit further evidence would be dealt with as part of the appeal. Indeed, as counsel later indicated, he did not envisage that the primary judge would rule on the admissibility of the evidence at that stage, but indicated (Tcpt, p 9(20)): "I proposed to introduce to your Honour the additional material we wish to lead. If we're successful in having that led then the court will take it into account. It will be part of our submission your Honour should simply admit it provisionally under the Evidence Act and deal with it in the judgment if it's appropriate to say. If not it will be rejected and then nonetheless we still propose to proceed with the appeal and the costs order, because of the importance of the matter." 90 It is clear that what had been fixed for hearing on 11 August was the appeal: the debate which ensued concerned the likelihood of the appeal being concluded within the five days. Although the applicant did not consider that there would be a problem, as indicated above at [75], it would have been open to the primary judge to have decided to deal with the question of evidence separately and not to embark on the hearing of the appeal itself. However, the need to consider how the further evidence might be seen to operate in circumstances where the appeal would otherwise proceed by reference to the transcripts of the evidence given before the magistrate, might have rendered any possible separation inefficient, if not counterproductive. Thus, while it may be accepted that where the hearing of the appeal has commenced, the Court may nevertheless abandon that course and limit itself to a specific preliminary issue, there is no suggestion that such a course was taken in the present case. The appeal was listed for hearing, the hearing commenced, counsel opened generally, and the matter proceeded for the next four days. The fact that the whole of the period was taken up in debating the application to call further evidence does not demonstrate that that application, important as it was, in the applicant's view, to the outcome of the appeal, was not being dealt with as part of the appeal. 91 On the Friday of the first week, following the delivery of judgment rejecting the application, the parties considered further dates for the hearing and attempts were made to find a further three days. At least in the applicant's view, the bulk of the extra time was considered necessary because of an expectation that there would be a challenge to the reasonableness of the costs which were sought to be recovered by the RSPCA, in the event that the conviction were upheld: Tcpt, 14/08/09, pp 2-3. Otherwise counsel noted that his Honour had had "the opportunity of perusing the transcript", being that in the Local Court, although he anticipated that the primary judge "may need to revisit it of course": Tcpt, p 2(40). There seems to have been little anticipation that there was much left to say in respect of the substance of the appeal. 92 The motion for recusal signed by the solicitor for the applicant on 23 August 2009 sought that his Honour "be recused from the further hearing of the appeal". It may be inferred from that step that the applicant's legal advisors were then of the view that the matter was partly heard before his Honour, although the present issue was probably not then in contemplation. 93 When the matter came back before the primary judge on 20 October 2009 counsel raised the possibility that if the matter were not completed by November 2009, the recusal application might be unnecessary. His Honour noted that if he were "embarked on the appeal" he was allowed to finish anything that he had commenced and stated (Tcpt, 20/10/09, p 2(1)): "I would, without having heard argument on the matter, take the view that hearing an application for leave to bring further evidence is part of the appeal process and that rarely I am part heard on the appeal. Now I am prepared to hear argument either way on that issue." 94 That argument did not in fact take place until 15 December 2009. 95 Leaving to one side what happened after November 2009, it is necessary to refer to some aspects of the judgment of 14 August 2009, on which the applicant placed reliance. In that judgment his Honour was dealing with the motion to call fresh evidence, which required leave pursuant to s 18(2) of the Appeal and Review Act. His Honour commenced by noting the principles to be applied in dealing with such an application and stated (Judgment, p 5): "The prosecution case in the court below ran for ten days. I need to say something about the conduct of the case because I was asked by counsel from both ends of the bar table to read the evidence and view the exhibits from the court below. I have done so. I might say it was no small task." 96 His Honour noted the procedural history and the fact that reference had been made in the course of argument before him to the disparity in experience of the counsel appearing for the parties in the Local Court. He continued, having referred to the care with which counsel had presented the applicant's case (Judgment, p 7): "I noted that his address to the magistrate made at the very conclusion of the case was extremely lengthy and extremely detailed. That is not to say the inequality in level of seniority of counsel is a matter which is likely to prevail as an issue on appeal. I am, of course, here not dealing with the appeal. I am only dealing with the application for leave to appeal. Unless there were gross incompetence on the part of her counsel, it would be very unusual for an appellate court to be interfering with an outcome merely on the basis of the difference in the level of experience of counsel. It's necessary, unfortunately, that I make some comment about the facts." 97 Before us, the applicant sought to invite attention to the primary judge's statement that he was "here not dealing with the appeal". However, read in context, that statement is neutral. In that judgment, he was not determining the appeal, but the application for leave to call fresh evidence. (Indeed the next sentence misstates the nature of the application, although it is not in doubt that his Honour knew the nature of the exercise in which he was actually engaged.) Given that it was necessary to make some comment about the submissions and the factual material before him, it was also necessary for his Honour to note at various stages that he was not determining the appeal but only the application. There was nothing of significance to be inferred from that statement, for present purposes. 98 In the course of the hearing on 11 August, it was counsel for the RSPCA who raised the possibility that the case would not be completed that week. After submitting that the matter could be dealt with either within the time envisaged or within a short additional period, counsel for the applicant stated (Tcpt, pp 7-8): "Mrs Downey is an elderly lady, she lives on her own at the farm, she's got several country witnesses all down here. They're being looked after very nicely by the Salvation Army people but it is a distress for them to have to come all this way. Folk who are just ordinary folk who are very concerned about what happened in this case which has had some publicity and the matters that we wish to bring before the court are very proper and so your Honour we are very concerned to proceed before your Honour this week as far as we can get. We think that with co-operation between counsel, it can even be finished this week." 99 From that statement, it was clear that the applicant expected the whole of the appeal to be dealt with in the time fixed. That expectation was not of course conclusive as to what happened thereafter. Nevertheless, it is consistent with other factors which suggest that the primary judge was dealing with a stage of the appeal. There being clear indications that when the proceedings commenced on 11 August what was listed, what was opened, and what was expected to be addressed, was the appeal itself, including the application to call fresh evidence, it is necessary to look for indications after the commencement of the proceedings that some different course was taken. The fact that it was only the application to call fresh evidence which was ultimately completed does not, of itself, provide any clear indication that the hearing of the rest of the appeal was no longer in contemplation before that judge, even if it were necessary to obtain a further special fixture. There is nothing else, beyond the later submissions of counsel for the applicant, suggesting a change in course. Accordingly, the applicant has failed to demonstrate that the primary judge was not "partly heard" in respect of the appeal from the proceedings in the Local Court when his commission expired. This ground of challenge to the proceedings in the District Court is rejected. (c) validity of s 18 100 The scope of the applicant's submissions in respect of constitutional invalidity of s 18 is not easy to encapsulate in a simple statement. The primary basis of the submission was the statement of principle in Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45. Forge was concerned with an argument that s 37 of the Supreme Court Act 1970 (NSW), providing for the appointment of acting judges to the Supreme Court, was invalid because it compromised the institutional integrity of the Court as a body required to exercise federal judicial power, and as recognised by the Constitution. Section 37 was found not to be invalid in Forge, and it was not demonstrated that it had not been validly engaged to appoint the acting judge who had heard the case from which the appeal was brought: at [102]. While rejecting the appellant's submissions in that case, the High Court acknowledged that the appointment of acting judges, who lacked tenure and hence independence, could impugn the institutional integrity of the Court. Thus, Gummow, Hayne and Crennan JJ stated at [101]: "Whether, or when, the institutional integrity of the court is affected depends, then, upon consideration of much more than the bare question: how many acting judges have been appointed? Regard must be paid to who has been appointed, for how long, to do what, and, no less importantly, why it has been thought necessary to make the acting appointments that have been made. Those alleging invalidity in the present matter did not seek to make a case founded in any examination of the circumstances that led either to the successive appointments of Foster AJ, or any of the other appointments made at or about the time of his appointments." 101 The applicant sought to rely upon that passage to justify an extensive exploration of those issues in respect of the period in which the primary judge was appointed and reappointed, namely between 1 July 2006 and 1 July 2009. The applicant also sought to rely upon a point of construction discussed in the joint judgment at [72] in the following terms, dealing with s 37 of the Supreme Court Act. "Given that it distinguishes between acting and permanent appointments in the way described, the Supreme Court Act would not easily be read as permitting the appointment of so few persons as judges, and so many to act as judges, as would permit the conclusion that the court was predominantly, or chiefly, composed of acting judges. On the proper construction of the Act the power to appoint acting judges under s 37 would not extend to authorising the making of so many appointments." 102 Despite accepting the relevance of the raw numbers, the Court eschewed reliance upon some "quantitative criterion" taken alone: at [90]. As their Honours further explained, a significant difference might be identified between the appointment of a retired judge, and that of a legal practitioner, to act as a judge for a temporary period: at [96]-[98]. Their Honours continued: "99. That is not to say that the importance of these considerations may not be reduced if account is taken of the reasons that lead to the making of an acting appointment. The greater the necessity for the appointment, the less influential on perceptions of impartiality and integrity may be the considerations of the possible frailties of the person or persons appointed. That is, the institutional integrity of the court is less likely to be damaged by response to pressing necessity than it is by the change of character that may be worked by a succession of short-term appointments for no apparent reason other than avoiding the costs associated with making full-time appointments or, perhaps worse, a desire to assess the 'suitability' of a range of possible appointees. 100. As is implicit in what is just said, 'pressing necessity' refers to some necessity arising from the work of the court, not simply a desire, by the Executive, to avoid the costs of making full-time appointments. In particular, the proposition that a sudden increase in the work of a court may turn out to be 'of a temporary nature only' will seldom amount to such a pressing necessity. It is an assertion which serves only to obscure first, the fact that '[j]udicial power is exercised as an element of the government of society' and secondly, and no less importantly, that 'the third great department of government' cannot discharge its functions without adequate financial support from the other two departments." 103 Relying on these passages, the applicant submitted that, despite calls for the production of relevant material, nothing had been produced by the State which demonstrated any "pressing necessity" for the appointment of the primary judge as an acting judge, or the appointments of others made at approximately the same times. 104 The applicant also relied on a number of features of the case as in some way demonstrating the invalidity of the appointment of the primary judge. Properly understood, such material was only available to demonstrate, in a practical sense, how the appointment of an acting judge might create conflicts of interest and duty and demonstrate a lack of independence. In fact, for reasons which will be outlined below, factors particular to this case can do little more than illustrate the principles articulated in Forge. 105 The constitutional principles at stake commence in certainty but lose that characteristic as they approach their penumbra. The first proposition, which flows from s 72 of the Constitution, is that no justice appointed to the High Court or to another court created by the Parliament can be appointed for a fixed term or for any term beyond the age of 70 years. Secondly, that provision applies to federal courts in the narrow sense and does not extend to the Supreme Court of the Australian Capital Territory: Re The Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44; 200 CLR 322. However, the underlying principle was applied to the constitution of the Local Court of the Northern Territory and the fixing of the remuneration of the Chief Magistrate for a fixed period: North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; 218 CLR 146. 106 Thirdly, the role of State Supreme Courts is recognised in the Constitution (s 73) in a way which precludes interference by the government with the essential supervisory jurisdiction of those courts as it existed at the time of Federation: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [97]-[100]; see also Spigelman JJ, "The Centrality of Jurisdictional Error" (2010) 21 PLR 77 at 78-79. That principle may not apply to inferior State and Territory courts generally, except to the extent that they may exercise federal jurisdiction: s 73(ii). However, the fact that the Parliament may invest federal jurisdiction in "any court of a State", pursuant to s 77(iii), and has invested such jurisdiction in the District Court, places it in a position similar to that of the Supreme Court for this purpose. 107 Fourthly, the fact that a State court is capable of exercising federal jurisdiction requires that such a court "be and appear to be an independent and impartial tribunal": Bradley, at [29] referring to the remarks of Gaudron J in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [81] where her Honour observed: "Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system. Because State courts are part of the Australian judicial system created by Ch III of the Constitution and may be invested with the judicial power of the Commonwealth, the Constitution also requires, in accordance with Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, that, for the maintenance of public confidence, they be constituted by persons who are impartial and who appear to be impartial even when exercising non-federal jurisdiction." 108 Fifthly, as the judgment in Bradley continued, a difficulty arises in discerning "the relevant minimum characteristic of an independent and impartial tribunal": at [30]. The joint judgment referred, with apparent approval, to the remarks of McHugh J in Kable at 119 that the boundary of legislative power – "is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court." 109 Referring to the opinions in the House of Lords in Porter v Magill [2002] 2 AC 357, especially at [88] (Lord Hope of Craighead), Gleeson CJ in Bradley noted that in considering whether a tribunal is independent, "regard must be had inter alia to the manner of appointment of its members and their term of office, and the existence of guarantees against outside pressures": at [3]. After referring to numerous sources for the proposition that the "fundamental importance of judicial independence and impartiality is not in question", his Honour continued: "Within the Australian judiciary, there are substantial differences in arrangements concerning the appointment and tenure of judges and magistrates, terms and conditions of service, procedures for dealing with complaints against judicial officers, and court administration. All those arrangements are relevant to independence. The differences exist because there is no single ideal model of judicial independence, personal or institutional. There is room for legislative choice in this area; and there are differences in constitutional requirements." 110 The comments of McHugh J in Kable suggest that the boundary of legislative power is identified by reference to arrangements which "might lead ordinary reasonable members of the public to conclude that [a court] as an institution was not free of government interference" in administering its judicial functions. That test is redolent of the standard required of individual judges in carrying out their functions in a particular case, free from a reasonable apprehension of bias. Although not easy to apply in particular cases, the use of such language appears to lead the Court into well-trod territory. However, its application in respect of "institutional integrity" requires normative judgments of a different kind. It is also necessary to consider the consequences of a conclusion that the relevant boundary of either legislative or executive power has been crossed. Where there is a lack of institutional integrity, can the consequences be limited to the particular case in which that is determined? If not, there will be circumstances where a declaration of invalidity may have a far greater effect in diminishing public confidence in the court as an institution, than the legislative or executive act which crossed the relevant boundary. 111 Most of the cases applying these principles have arisen in respect of the existence or exercise of powers of removal of judges: see, eg, in Canada Valente v The Queen [1985] 2 SCR 673; Ell v Alberta [2003] 1 SCR 857. Other cases deal with the independence and impartiality of tribunals: see, eg, Porter v Magill. 112 Questions about appointment of judicial officers raise different issues. Such questions arose in one particular context with the introduction of the Local Courts Act 1982 (NSW) and the requirement that stipendiary magistrates appointed under the Justices Act 1902 (NSW) apply for reappointment under the new Act. Issues relating to the mechanism for appointment of "former magistrates" were discussed in Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 and in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1. As noted by Mason CJ in Quin at p 18: "However, in the present case there is no justification for granting relief in a form which would compel the Executive to adhere to an approach to judicial appointment which it has discarded in favour of a different approach which, in the opinion of the Executive, is better calculated to serve the administration of justice and make it more effective. Generally speaking, the judicial branch of government should be extremely reluctant to intervene in the Executive process of appointing judicial officers. Apart from s 12 [of the Local Courts Act ], under the constitutional arrangements which prevail in New South Wales and the doctrine of separation of powers, to the extent to which it applies in that State, the function of making appointments to the Judiciary lies within the exclusive province of the Executive. According to tradition, it is not a function over which the courts exercise supervisory control." 113 Brennan J, agreeing with the Chief Justice as to the result, stated at pp 33-34: "It is not the function of a court to direct or to affect the selection of judicial officers. A remedy (quo warranto) can be granted only in the exceptional case where the appointment is not authorized by law. It is not to the point that some appointments to judicial office have been made for unworthy purposes or of unworthy people; the responsibility for appointments to judicial office, by constitutional convention if not by constitutional law, belongs to the Executive Government. The courts are not responsible for their own constitution. The calibre of appointments to the judiciary depends solely on the Executive Government and that is a heavy responsibility which the Executive Government alone must bear. Therefore it is the criteria which appeal to the Executive Government, not the criteria which appeal to the courts, which necessarily prevail in the selection of judicial officers." 114 Departure from these principles where constitutional requirements render interference necessary, should be a rare case. As will be explained, it is not necessary in the circumstances of the present case to chart the occasions on which such interference will be appropriate, nor the consequences thereof. 115 In Forge, the joint judgment noted that the appointment of a serving judge of another court of equivalent jurisdiction as an acting judge could not possibly give rise to any concern as to institutional integrity of the court to which he or she was appointed: at [95]. Similarly, the appointment of a retired judge from a court of equal standing for a particular case, with no immediate prospect of reappointment, could have no adverse effect on institutional integrity: at [96]. Apart from those clear cases, the Court envisaged possible adverse impacts, depending on the circumstances. As the Court noted at [92]: "Different considerations affect these different classes of qualified persons. The prospect of appointment as a permanent judge, or reappointment as an acting judge, will most likely bear differently upon those who, at the time of appointment as an acting judge, are judges of [another court] from the way in which they bear upon retired judges, judges of other, inferior, courts, or legal practitioners in active practice." 116 Their Honours' reference to the concept of "pressing necessity" may reflect the exception to the rule with respect to apprehension of bias which, if applied in the usual way, would disable a tribunal from performing its statutory functions: see, eg, Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 88-89 (Mason CJ and Brennan J). So understood, it would be a factor which operated by way of an exception in circumstances where a failure of institutional integrity of the court had been established. By contrast, in the present case, the applicant sought to argue that, having demonstrated either a prima facie case of the integrity of the Court being undermined, or of the individual officer having a conflict of interest and duty, it was a matter for the State to demonstrate the "pressing necessity" for the appointment. 117 In particular, he noted the remarks in Forge that "pressing necessity" was contrasted with the effects of a succession of short-term appointments "for no apparent reason other than avoiding the costs associated with making full-time appointments": Forge at [99]. 118 The submission that Forge renders justiciable the purposes or criteria affecting an individual appointment as an acting judge, or indeed a series of such appointments, would involve a major intrusion on the principles stated by members of the Court in Quin. The extent to which and the circumstances in which that submission should be accepted need not be determined. Because the test involves an assessment of the reasonable conclusions of "the informed observer", the unrevealed purposes and intentions of the Executive Government are unlikely to be decisive; it is the objective appearance which must be assessed: Forge, at [93]. 119 In addition to the reasons for caution noted above, the Court should not, at the instance of an individual litigant, involve itself in any inquiry into the institutional integrity of a particular court beyond the period necessary to dispose of the specific case. The applicant sought to rely upon statistics for the years 2006-2009, although her case did not come to the District Court until early 2009. The period was chosen because it encompassed the period during which the primary judge was an acting judge of the Court. However, as appears from the material in evidence, circumstances differed significantly over that period. For example, some 33 persons held appointments as acting judges over the calendar year 2006, whereas, in the current year, only 14 persons have held such appointments (other than judges continuing to deal with partly heard matters) and all were persons who had held previous judicial offices. Because it is unnecessary to do so, it is inappropriate to speculate as to what might be the legal consequence of a finding that the Court lacked institutional integrity in one year, but had regained it in the next. 120 In 2010, the 14 acting judges should be seen in the context of there being 63 permanent holders of judicial office in the District Court. Further, although the figures are not available for 2009 or 2010, in 2008 when there were 19 acting judges, the actual number of sitting days of those judges, was equivalent to two full-time appointments: District Court of New South Wales Annual Review 2008, p 29. 121 Although quantitative criteria are not determinative, they should not be irrelevant. Assuming that the government has some flexibility in assessing the need for judges against variations in the workload of a particular court, together with fluctuations in availability of judges caused by eligibility for extended leave and illness, it is fanciful to think that an informed observer would view the volume of the Court's caseload undertaken by acting judges in 2009 and 2010 as diminishing the status of the Court as a body comprised almost entirely of permanent judicial officers. 122 The second important consideration is that, since 31 July 2009, no acting judge has been appointed other than from the holders of previous judicial offices. 123 Thirdly, considering the circumstances relating to the appointment of the primary judge in particular, the relevant appointment was, by law, his last. Accordingly, he had no interest in determining cases in any way which might be thought to promote his opportunities for reappointment. 124 To the extent that the applicant submitted that even after turning 75, he might have an interest in being recommended for "other judicial or quasi-judicial work such as commissions of inquiry or references by the Attorney-General under the" Appeal and Review Act, the Solicitor described the point as "fanciful". The description is apt. 125 It follows that, whatever the circumstances in which it might be thought that the appointment of acting judges had undermined the institutional integrity of the District Court, it cannot be said that that point was approached in 2009-2010. Further, there is no reason to suppose that the final reappointment of the primary judge was invalid because it demonstrated a lack of independence of the Executive Government. 126 In the second further amended statement of claim, the applicant sought declarations that the primary judge was not "authorised" by s 18 to hear or further hear the proceedings and a declaration that s 18, in so far as it purported to authorise the primary judge to hear or further hear the proceedings, was invalid. The sense in which s 18 "authorised" the primary judge to hear the proceedings appears to have been a reference to his appointment as an acting judge on 1 July 2009. The reference to authority to continue to hear the proceedings could be understood as a challenge to the validity of s 18(3A), permitting an acting judge whose commission has expired to continue to deal with proceedings that have been heard or partly heard prior to the expiration of the commission. However, no separate argument was put specifically in that regard. 127 Consistently with Forge, s 18 is not invalid. Nor did the circumstances of the appointment of the primary judge in 2009 demonstrate any relevant failure of institutional integrity. (d) invalidity: State Constitution 128 The applicant raised a separate argument as to the validity of s 18(4A), which permits the appointment as an acting judge of a person who, amongst other qualifications, had been a judge of the District Court of another State and who had reached the age of 72 years. This provision, without which the appointment of the primary judge could not have occurred, was inserted in the District Court Act by the Courts Legislation Amendment Act 2001 (NSW) ("the 2001 Amendment Act"), Sch 2 [2]. The effect of this provision, the submission proceeded, was to amend, expressly or impliedly, provisions in Pt 9 of the Constitution Act 1902 (NSW) dealing with the State judiciary. Since its insertion in the Constitution Act in 1995, s 7B required that such an amendment be submitted to the electors in accordance with the Constitution Further Amendment (Referendum) Act 1930 (NSW), absent approval by whom, the Bill may not be presented to the Governor for assent. 129 It is clear that sub-s 18(4A) does not, expressly, repeal or amend any part of Pt 9 of the Constitution Act. It was therefore necessary for the applicant to identify some manner in which it impliedly amended (repeal was not suggested) some provision in Pt 9. That result was achieved, the applicant submitted as follows: "33. Recognised and protected by Part 9 as part of the State judiciary for certain purposes[,] in particular preventing despotic dismissal of acting judges[,] are acting appointments to judicial office: s 53(4) and (5). 34. State legislative arrangements in relation to the judiciary including its 'composition' and nature, are part of the Constitution of NSW, even though not all such provisions form part of the Constitution Act 1902 …. 35. The composition of the State judiciary is described generally in Part 9, supplemented by laws which identify the judges and acting appointments referred to. … Section 18 [the] District Court Act 1973 made prior to the entrenchment law, purports to 'deem' persons appointed to the position of acting judges as 'judges' of the [District Court]." 36. Subsection 4A purports to extend the composition of the State's judiciary to former judges of other States and to other jurisdictions outside the State's judicial structure, whether or not they have ever been 'judicial officers' of New South Wales, with no experience whatsoever of NSW laws and usages or the administration of justice in this State, and who exceed the age of judges who may lawfully be appointed judges of this State." 130 In their terms, these submissions misconceive the scope of Part 9 of the Constitution and the purpose and effect of sub-s 18(4A). Dealing first with the operation of sub-s 18(4A), the class of persons who may be appointed is not identified by that provision, but by sub-s 18(2), which specifies that qualification for appointment as an acting judge is the same as that for appointment as a judge. That in turn picks up the definition of "qualified person" in s 13(2), which presently includes "a person who holds or has held a judicial office of this State or of the Commonwealth, another State or a Territory": s 13(2)(b). However, that definition was, itself, introduced by the 2001 Amendment Act which introduced s 18(4A). Prior to that amendment, s 13(1) provided that a person qualified for appointment as a judge was "a Magistrate, or a legal practitioner of at least 7 years' standing": former s 13(1). Thus, the complaint based on an expansion of the pool of eligible persons for appointment to office must be referable to the insertion in 2001 of new sub-s 13(1) and (2). The purpose of sub-s 18(4A) was, as the Solicitor-General pointed out, to overcome the effect of the Judicial Officers Act 1986 (NSW), s 44, which imposed a retirement age of 72 years. 131 The applicant's submission, however, fails at a more fundamental level. The assumption that the 2001 Amendment Act affected Pt 9 of the Constitution Act depended upon the characterisation of Pt 9 as identifying, not the members of the judiciary, but the pool of eligible candidates for appointment to judicial office. None of the five sections in Pt 9 (ss 52-56) has that effect. Section 52 defines "judicial office" for the purposes of the Part and identifies various categories by reference to particular courts. The other sections deal with removal, suspension and retirement from judicial office, and the abolition of judicial office, respectively. No section deals with appointment. Section 53, to which reference was made in the applicant's submissions, provides protection from removal, otherwise than in accordance with Pt 9. It alone refers to acting judges and does so by extending the operation of s 53 to "acting appointments to judicial office, whether made with or without a specific term": s 53(5). That the purpose of Pt 9 is to protect the holders of judicial office, whoever they may be, is reflected in the entrenchment provision in s 7B which excludes from its own operation the provision of a Bill that would amend s 52 "for the purpose of extending the application of Part 9 to additional judicial officers or classes of judicial officers": s 7B(8). 132 The protection accorded by Part 9 is not relevantly affected by s 18(4A) of the District Court Act. The submission that s 18(4A) or, more properly, that provision and sub-s 13(2), are invalid because they were not enacted in accordance with s 7B of the Constitution Act is rejected, because the requirements of s 7B were not engaged. (e) District Court Act – validity of privative clause 133 As noted above, a summons seeking relief under s 69 of the Supreme Court Act is required to contain a statement setting out "briefly but specifically" the grounds relied on in support of the claim: UCPR, r 6.12A(b). The failure to comply with that provision gave rise to a degree of uncertainty as to the grounds, which needed to be extracted from the various emanations of the written submissions of the applicant. According to the notice served under s 78B of the Judiciary Act 1903 (Cth), one of the constitutional issues which arose was the validity of s 176 of the District Court Act: Notice, par 2(c). The notice further stated that the applicant has "no or limited rights of review by certiorari" in respect of a decision of the District Court in a criminal cause. The reference may have been defensive, in the expectation that one of the respondents would seek to call in aid s 176, which appears in Pt 4 of the District Court Act, headed "The criminal jurisdiction of the Court", and provides: " 176 No proceedings in the nature of certiorari No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court." 134 No respondent sought to rely upon this provision in resisting the relief sought by the applicant. As the Solicitor-General submitted, while s 176 applies to the present proceedings, it is accepted that it does not prevent this Court from granting relief in respect of jurisdictional error: see Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] and [45]; Spanos v Lazaris [2008] NSWCA 74 at [15]. Were it otherwise, the provision might well exceed the power of the State legislature: Kirk at [100]. It is unnecessary to say anything further in respect of this issue. (6) Apprehension of bias (a) issues raised 135 Following the unsuccessful application to lead fresh evidence, the applicant requested the primary judge to disqualify himself from further hearing of the appeal on the ground of apprehended bias and, indeed, actual bias. The demonstration of bias was said to arise from, chronologically: (a) observations made on 12 August 2009 during the hearing of the application to call fresh evidence; (b) comments made in the course of the judgment of 14 August 2009 dismissing the application with respect to fresh evidence; (c) dismissal of the recusal application on 18 December 2009; (d) refusal, in March 2010, to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW), and (e) refusal, also in March 2010, to adjourn to permit the issue of a s 78B notice under the Judiciary Act . (b) rulings on evidence 136 In relation to (a), because there was a transcript of the hearing on 12 August 2009, it is possible to identify certain remarks which may have been those relied upon with respect to this issue. However, the applicant sought in addition to call evidence from persons present in the Court to state their own apprehensions as to the bias of the primary judge. Rulings were made on the admissibility of that material in the course of the hearing on 1 June 2010, but it is necessary to give reasons in respect of those rulings. They may be briefly encapsulated as follows: (1) Affidavit of Ruth Downey dated 6 May 2010: paragraphs 5-21 were rejected as irrelevant, with leave to retender if any issue as to discretion arose in relation to relief. The paragraphs described the background to the applicant's farming operation and were self-evidently irrelevant. No question of relief arises and therefore no question of retender. (2) Affidavit of Ruth Downey dated 6 May 2010 (second affidavit of that date): this brief affidavit sought to put before the Court evidence as to what happened during the hearing before the primary judge between 11 and 14 August 2009. To the extent that this and affidavits to similar effect sought to describe the deponent's response to the statements made in Court, the evidence was rejected as irrelevant. To the extent that the affidavit (and others to similar effect) recorded statements made in the Court, the material was admitted. The relevant admissible parts of this affidavit were as follows: "2. During the court hearing at the Downing Centre, from 11/8/2009-14/8/2009, I distinctly remember hearing the Acting District Court Judge Boulton say words to the effect, 'I'm reluctant to go against the judgment of the court below.' Judge Boulton was referring to the Narrabri hearing, and magistrate Mackintosh. 3. … On reading the transcript, I can find no record of this phrase. 4. … I heard Judge Boulton say words to the effect, 'This is pretty graphic stuff, isn't it.'" (3) Affidavit of Adam John Downey dated 5 May 2010: the whole of the affidavit was rejected on the grounds of relevance. It related to conversations between Dr Downey and Mr Ashton (and an unidentified officer at the local Police Station) concerning the state of the cattle. The material had no bearing on the proceedings in this Court. (4) Affidavit of Adam John Downey dated 6 May 2010: this related to words he heard spoken in the District Court on 11 August 2009. The relevant words, which he said had been repeated at various stages during the proceedings, were admitted and were to the effect: "After considering both the evidence of the independent expert Vet, Dr Doherty, who described the cattle as being in such poor condition, and the Magistrate's report and findings in this case; I would find it difficult to overturn the decision handed down in the court below." Other aspects, concerning his response to the words, were rejected for the reasons already given in respect of such material. (5) Affidavit of Catherine Ellen Peach dated 5 May 2010: Ms Peach also attended the hearing and her affidavit was admitted, subject to rejection of her response to what she heard in Court. The relevant paragraphs were as follows: "Shortly after the first session began on the morning of Tuesday, 11 August 2009, I heard Acting District Court Judge Boulton say words to the effect, 'I would be reluctant to overturn the ruling of the Local Court.' In that same session, on 11 August 2009, I also heard Acting District Court Judge Boulton quote from the testimony of the RSPCA's Vet, Graham Doherty, with his Honour saying words to the effect, 'The cattle were in a deplorable state.'" (6) Affidavit of Peter McCleod Schmidt dated 13 January 2010: Mr Schmidt was the applicant's solicitor and the affidavit set out in some detail the background to the matter in the Local Court and in the District Court and expressed the deponent's opinions in respect of some matters and ignorance in respect of others. All of the material rejected was either irrelevant or otherwise inadmissible. His statement as to the circumstances of the appointment of the primary judge, the availability of suitable candidates for appointment and the absence of special circumstances were matters in respect of which his evidence was either speculation or hearsay and was rejected. His evidence as to the value of the applicant's farm was irrelevant for the proceedings in this Court and based on hearsay: it was rejected. His evidence was otherwise admitted, but does not go to the question of bias. (7) Affidavit of Peter McCleod Schmidt dated 10 March 2010: the first three paragraphs of this were not read. The fourth sought to annex a copy of an article in the Sydney Morning Herald of 8 March 2010, part of which was concerned with the appointment of acting judges. The material was irrelevant and was rejected for that reason. (8) Affidavit of Peter McCleod Schmidt dated 6 May 2010: no objection was taken to this affidavit which set out the history of the notices to admit facts and the responses thereto. (9) Affidavit of Peter McCleod Schmidt dated 13 May 2010: only paragraphs 6 and 7 were sought to be read; these two paragraphs set out in summary form a description of proceedings in the District Court, referring to documents and transcript which were otherwise before the Court. Objection was taken to the form of the paragraphs and they were accordingly rejected. 137 Other affidavits filed by the applicant were not read. (c) comments recorded in transcript 138 Each of the applicant, Dr Adam Downey and Ms Peach were cross-examined on their evidence as to what occurred during the course of the proceedings in the District Court in August 2009. Before referring to their cross-examination, it is convenient to identify relevant passages in the hearing, as recorded in the transcript. 139 At the commencement of the hearing, the primary judge noted that he knew nothing about the matter at that stage: Tcpt, 11/08/09, p 1(25). After discussion as to the likely time to be taken by the hearing (discussed above in relation to whether his Honour was "partly heard" in the proceedings at the end of that week), Mr King (for the applicant) commenced his opening. His Honour interrupted him (Tcpt, p 13) to raise an issue in relation to the nature of the proceedings under the Appeal and Review Act. After referring to certain authorities, noting that in an appeal of the kind then in issue, his Honour stated that an appeal court "would place due reliance upon the opportunity of the Local Court magistrate to see and hear the witnesses, and to hear to [the?] entirety of the evidence … and to pay then [due ?] regard to the superior position that the magistrate enjoyed from having heard the evidence and being able to decide questions basically of what weight to give to particular evidence": Tcpt, pp 13-14. His Honour continued at p 14(10): "I just mention this because if it's a matter of on appeal seeking to undermine a view that the magistrate might have taken not only of lay witnesses but also of expert witnesses the superior position enjoyed by the magistrate in being able to hear and view this evidence might be a hurdle that you have to get over." 140 Counsel acknowledged the force in his Honour's point but also stated (Tcpt, p 14(20)): "It's only where in the limited case the magistrate may have enjoyed an advantage on a point of credit that this court might find itself reluctant to intervene. And we say that might arise in this case." 141 After further general discussion as to the background of the matter, counsel for the applicant turned to the transcript of the Court at p 16(25). No further relevant comment from the primary judge is recorded before the luncheon adjournment: Tcpt, p 19(25). After lunch, there was some discussion by counsel for the applicant of the expert evidence given by Dr Doherty, which he described as "unsatisfactory": Tcpt, p 24(20). After detailing aspects in which it was unsatisfactory, counsel stated that "at the end of the day, I think your Honour will be convinced once your Honour looks at that evidence … indeed he himself almost acknowledged it [that he?] was a hire[d?] gun". His Honour responded (Tcpt, p 24(35)): "Just before you leave that, and of course I know very little about the facts of this matter, but just looking at page 16 of the reasons down the bottom, this apparently is the evidence of Dr Doherty. 'Dr Doherty observed each cattle to be immediately deceased on falling to the ground.' That would seem to contradict the reports to the effect that they were still running around in pain." 142 His Honour then read, apparently verbatim, an extract from the reasons of the magistrate at pp 16-17, which it is convenient to take from the original judgment: "He [Dr Doherty] states that in his opinion all of the cattle were in the body condition they were as a result of inadequate food and nutrition. He found no other cause of this body condition of the entire herd other than a lack of adequate nutrition for a period of greater than two months. The group of cattle demonstrated stress and suffering and weakness. They were all reluctant to move, some stumbling with poor muscle strength, several cattle had scarring and granulating wounds, consistent with periods of being in a recumbent position unable to stand, several of the younger cattle demonstrated severe long-term starvation by signs of growth stunting where the body is much undersized in proportion to the head size." His Honour added the comment: "This is pretty graphic stuff, isn't it?" 143 Counsel, continuing to open the case generally, made a number of criticisms of the magistrate's reasons, including the following (Tcpt, p 26 (15)-(25)): "The learned magistrate never considered the nature or the quality of the appellant's relevant conduct; for example, whether there was a defence of honest and reasonable mistake was clearly an issue arising from facts in circumstances where she was actually feeding her very own cattle. … I anticipate again it may be said that such a defence was not put below, but our case is that if it was put it was never considered by the learned court and hence that is a miscarriage of justice; or if it was not put, that was due to the incompetence of counsel below and on that ground there was a miscarriage of justice." 144 As counsel was completing that portion of his opening which was dealing with the magistrate's reasons and moving to the question of costs, his Honour interrupted (Tcpt, p 27(5)): "Before you go on to that I'm still interested in this proposition that because Mrs Downey thought she was acting reasonably in feeding the cattle, despite the fact that just for the sake of this argument, the cattle were deteriorating badly as described in that earlier passage. Does that failure to give the cattle adequate sustenance, such that they're going to deteriorate badly, not constitute an offence under the Act?" 145 In response, counsel discussed the relevant sections of the Prevention of Cruelty Act and a 1997 judgment in respect of those provisions, referred to an order for bales of hay and the fact that soaking rains occurred the day that the cattle were slaughtered. The following interchange then took place (Tcpt, p 27(40)): "HIS HONOUR: Just going back to where we were before, about this description of the animals, very unsteady gait, staggering and that type of thing, how could Mrs Downey have an honest and reasonable, perhaps mistaken belief, that she was feeding the cattle if before her eyes they were demonstrating severe evidence of inadequate nutrition? KING: Well there's two answers to that. Firstly that wasn't the true position on the facts. HIS HONOUR: The observations apparently to the contrary in the evidence but you seem to indicate that honest and reasonable belief was not put before the magistrate. KING: What I submitted was if it was then it wasn't addressed by the learned magistrate. If it wasn't then nonetheless that's a basis for miscarriage. HIS HONOUR: I mean you can only put various defences in a criminal matter before the magistrate or before a jury in the event that they have been raised on the evidence and if the cattle were in a deplorable state, and there seems, just reading what I've read, there seems to be evidence to the effect that they were in a deplorable state, would it not be a matter that would highly relevant as to whether one could fairly advance honest and reasonable belief in those circumstances to the point where, on appeal, I can say well there has been a miscarriage of justice here." (d) assessment of evidence - hearing of motion 146 Two general considerations need to be taken into account in assessing the evidence. First, the proceedings in the District Court were sound-recorded and the transcript, which is in evidence in this Court, reads, with few exceptions, as a faithful record of what was said below. In the passage read by the primary judge from the judgment of the magistrate, there are, for example, minor verbal changes to the first sentence which do not change the meaning. It is not possible to know whether the variations resulted from a misreading by the primary judge or a mistranscription of what he actually said. However, while the possibility of omissions cannot be ruled out, acceptance that things were said but not recorded requires consideration of the accuracy of the memory of the witnesses who asserted that words were said, but not recorded. (That each was seeking to give evidence to the best of her or his recollections is accepted.) 147 Secondly, although all three witnesses affirmed their belief in the accuracy of the matters they recorded, none made a note of the comments at the time and, apart from discussion within the family, the first occasion when they were each asked to record their recollections of things said in the course of the hearing in August 2009 appears to have been April 2010. That at least was the evidence of Ms Peach: CA Tcpt, 01/06/10, p 43(35); Dr Downey stating that he was not asked to write down the actual words used at any time in 2009 (CA Tcpt, p 38(45)), and, although the applicant was less clear, it seems likely that she first made a record of her recollection of what was said about the time she received the transcript early in 2010: CA Tcpt, p 33(30). 148 In the circumstances, it seems likely that the words recorded in the transcript were the words used by the primary judge, as opposed to the kind of language the deponent thought he may have used, based on an impression obtained during the hearing. Though not impossible, it is implausible that the primary judge actually stated that he was "reluctant to go against the judgment of the court below", as recorded by the applicant in her affidavit. It is not the language of an appellate judge generally, nor is it in conformity with the language of the primary judge as recorded through dozens of pages of transcript; whereas it is a plausible reconstruction by a lay person who heard the interchange set out at [139]-[140] above referring to "the superior position" of a magistrate who heard the evidence, the "hurdle" that the applicant would have to get over and, quite tellingly, the words of her counsel that on a point of credit the Court "might find itself reluctant to intervene". I am satisfied that the account referred to by the applicant is that which is set out in those extracts from the transcript at p 14. I accept as more probable than not that the transcript accurately records the interchange. 149 The second statement that was recorded by the applicant in her affidavit was word for word the language of the transcript. As, on her own account, she had read the transcript before preparing the affidavit, the second passage was likely to have been taken from, or at least confirmed by, a reading of the transcript. 150 The passage referred to by Dr Adam Downey in his evidence did not conform to the language reported by either of the other witnesses. It is a reasonably lengthy extract and therefore it is more implausible that those words were used with none of them being recorded than in respect of the shorter extracts. Again, Dr Downey did not make a note of the statement contemporaneously or indeed, within the following few months. 151 Dr Downey ascribed the statement to the morning session on Tuesday, August 11. As indicated above, that was a period during which the case got no further than the applicant's opening. At that stage, the primary judge had not considered the evidence of Dr Doherty. The suggestion that he made a remark of that kind in those circumstances would have been sufficient to raise concerns on the part of the applicant's solicitor and counsel. However, there was no evidence that they had such concerns during or immediately following the hearing in August 2009. To the contrary, although a recusal application was filed immediately following the delivery of judgment on 14 August 2009, none of this material was put before the primary judge as a basis for recusal. It may be inferred that at no stage prior to the hearing of the recusal application in December 2009, did either of the lawyers think it desirable to record or rely upon evidence as to what had been said during the course of the hearing. Although the test of a reasonable apprehension of bias requires assessment of the possible views of the informed lay observer, if two lawyers, who had demonstrated diligence in exploring means to advance the interests of their client, failed to identify any such apprehension based on spoken words, at the time they were supposedly uttered, it is certainly less likely than might otherwise be the case that words were used which may have given rise in the lay observer to any such apprehension. 152 What in fact happened, as recorded in the transcript and set out at [142] above, was that the primary judge read a passage from the judgment of the magistrate who had indeed considered the evidence of Dr Doherty and described its effect. At the distance of six months, it is highly likely that Dr Downey ran together in his own mind the difficulty identified earlier by the primary judge in interfering with findings based in part on credit, and the reading out of the passage where the magistrate had made findings on the basis of Dr Doherty's evidence. The conclusion that, in those circumstances, the primary judge would find it difficult to overturn the decision in the Local Court was in conformity with the view expressed by his Honour and set out at [139], from which the applicant's counsel saw no reason to dissent. Accordingly, I would accept the evidence of Dr Downey, not as a verbatim report of what was said, but as an impression gained during the course of the hearing on Tuesday, August 11, as reflected in the transcript of that day. 153 Ms Peach ascribed two statements to the primary judge. She was unable to give any context to the words, "I would be reluctant to overturn the ruling of the Local Court" although she said it was made for the first session on the morning of Tuesday, August 11. For reasons already given, the concept had a clear basis in the language recorded in the transcript of that morning. The second statement, also ascribed to that session, undoubtedly referred to the reading by the judge of the extract from the magistrate's reasons. She, too, appears to have believed, at least in May 2010, that his Honour was quoting from the evidence of Dr Doherty, whereas it is clear from the transcript that he was not, but was reading the magistrate's account of the evidence. The passage which his Honour quoted undoubtedly described cattle that were in a deplorable state: whether his Honour used those words or not, their effect does not differ significantly from his own remark that this was "pretty graphic stuff". (e) prejudgment – comments during submissions 154 What is important about the language recorded in the transcript and the language recorded in the affidavits is not the variation in verbiage, but the ability of the transcript to locate the words in a context. A fair understanding of the comments is impossible without taking into account the context. 155 The first passage (at [139]-[141] above) occurred in an unexceptionable exchange as to the difficulties faced on an appeal from the Local Court which is no longer a hearing de novo, but is now one in which the principles discussed in Fox v Percy [2003] HCA 22; 214 CLR 118 may well have operation, as discussed in the cases to which his Honour referred in the course of the first day's hearing, namely Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 and Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539. That passage gives rise to no conceivable basis for a reasonable apprehension of bias. 156 The second passage (at [142] above) occurred in the course of a discussion of the reasons of the Magistrate. The introduction (at [141] above) to the extract which his Honour read may be thought to have cast some doubt upon the credibility of Dr Doherty and was not in disagreement with the propositions which had been put to him by counsel for the applicant. It was also prefaced by the words "of course I know very little about the facts of this matter". To say that the passage, in a document to which his Honour was being taken, was "pretty graphic stuff" might have been thought to be a statement of the obvious. It is doubtful that an independent lay observer would have formed any different impression from the passage. The lay observer would also have appreciated, as undoubtedly did counsel for the applicant, that unless the primary judge could be persuaded to take a different view of the evidence, at least on a factual basis the appeal would have difficulty in succeeding. (There were of course legal issues as to the nature and elements of the offences.) It is clear that the witnesses who appear to have been referring to this episode misunderstood what was happening, each thinking that the primary judge was quoting testimony and accepting it. An appreciation of what was actually happening gave the exchange context and dissipated any reasonable suggestion of prejudgment. The proposition that a recusal application could succeed on the basis of this material alone must be rejected. (f) prejudgment – comments in judgment on motion 157 It is necessary to turn next to the passages relied on in the reasons given by the primary judge for rejecting the motion to call fresh evidence. 158 The passages relied upon do not lend support to the view that a fair-minded lay observer might apprehend that the trial judge might not bring a mind free of prejudgment to determination of the final issue. The passages will need to be identified to explain that conclusion. However, it is important to bear in mind that in the course of giving his reasons for refusing to admit fresh evidence, his Honour had to take into account the nature of the evidence which had been given in the Local Court, the issues agitated in cross-examination and the findings made by the magistrate, particularly if they were based on assessments of credit, which could not easily be weighed against conflicting evidence called in the District Court, which had not been before the magistrate. Further, the reason why particular evidence had not been called was also relevant to the exercise being undertaken. It required the primary judge to engage in a reasonably detailed appraisal of many aspects (though by no means the whole) of the case below. That counsel for the applicant appreciated and anticipated that eventuality may be seen by the fact that argument on the motion extended over approximately three days. Nevertheless, if, on an interlocutory application, the primary judge was indeed required to make final assessments, or if he ventured further in making such assessments than was necessary for the purpose of the judgment, a case of apprehended bias, or even actual prejudgment, would be available. 159 The first and fifth passages relied on, each of which involved a comment as to the destruction of the cattle, may be dealt with together. It is necessary first to provide their context. 160 After setting out some background in respect of the application, his Honour commented on the facts, which he approached on a chronological basis: Judgment, p 7. He noted the background to the laying of the charges, involving several visits by various persons, concerned as to the health of the cattle, to the applicant's property. He further noted that the evidence of "Slattery and Doherty who were the two who combined to decide the state of the animals as warranting their destruction was … a central issue in the case as far as the prosecution was concerned": p 8. He noted that evidence of emaciation was the subject of cross-examination, particularly in considering whether cows who were lactating could be in an advanced state of emaciation. He continued (p 9): "Other issues of course arose as to the conduct of the destruction, as to whether it was done humanely. That aroused of course a good deal of hostility in the [applicant] and members of her family and indeed others within her circle of friends. To an extent that level of emotion not only coloured the hearing before the magistrate but it was fairly apparent in the conduct of this appeal." 161 There is no complaint as to the accuracy of that statement ("the first passage"), which appears to have been an entirely apt description of the conduct of the litigation, as may be seen from the various statements of evidence and the transcript which was before this Court. Nevertheless, in written submissions, it was put that this statement (or at least an extract from it) "may relate to the Judge's attitude to the appeal, namely that Mrs Downey was not interested in a legal outcome but wanted to air a grievance, and to abuse the process of the courts for that purpose": written submissions, par 58(b). 162 In this context the applicant also relied on the reference at the end of the reasons ("the fifth passage"), to there being a video of calves whose mothers had been destroyed. His Honour stated at p 16: "That was obviously a matter of considerable emotional impact as far as Mrs Downey and her friends and relatives were concerned. But the issue of this trial did not concern the consequence to calves of the destruction of their mothers if it were found that they were in such poor emaciated condition that it would have been cruel to allow them to remain alive. That was the opinion that was advanced on behalf of the veterinarians in the case brought for the prosecution." 163 This (fifth) passage had significance in the applicant's argument for two reasons: first, it was relied upon to support the inference that his Honour was of the view that the applicant was abusing the process of the Court by bringing the appeal. It was also said to be a finding by his Honour, on the facts, that it was "cruel to allow them to remain alive". Neither the inference that the applicant was abusing the process of the Court, nor the suggestion that his Honour made a finding to that effect, is a tenable proposition. In relation to the latter point, the extraction of a few words, whilst omitting the introductory words, "If it were found that", is not a submission that warrants consideration from the Court. 164 In respect of the inference that the applicant was abusing the process of the Court, reference was also made to the following passage in the course of argument on the second day of the hearing, noting that there appears to be a "consensus of opinion" between two experts "arrived at over a period of time" that certain identified cattle were so emaciated that it was cruel to leave them alive": Tcpt, p 80(25). His Honour continued: "Now the magistrate obviously accepted that view. … Now how am I to set aside the finding of the magistrate based upon that body of evidence without having heard that evidence given in the first place, being reliant only upon the transcript, when I might hear oral evidence from somebody else and the two really don't engage. I am somewhat bemused as to how I can possibly receive this evidence and on that basis set aside a large body of evidence for the prosecution without hearing anything further from those people." 165 The difficulty being identified by the primary judge in that passage was not novel: indeed, in a somewhat different context, it was identified as an issue requiring determination on a rehearing following an unsuccessful appeal, by this Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [102]. No reasonable reading of this passage could give rise to an inference that the Court thought the applicant was abusing the process of the Court, rather than identifying a difficulty inherent in the particular application. 166 This disposes of the first and fifth passages relied upon by the applicant in support of this contention. The second passage, which followed immediately upon the first (at p9) was identified in the written submissions as a "finding on credit regarding Mrs Downey that it was her refusal to adopt the suggestions of the RSPCA officers over a period of time ventilated with her and were a very significant part of the case, ie prosecution case". 167 The characterisation is achieved by taking some words out of context. In full, the relevant paragraph appears as part of a description of the proceedings before the magistrate. The passage reads as follows: "She was cross-examined extensively as to her financial affairs, as to the capacity of her property to be able to sustain the cattle in appropriate condition. Of course her refusal to adopt the suggestions of the RSPCA officers over a period time was ventilated with her and was a very significant part of the case. It was of course Mrs Downey's contention that the animals while thin were nonetheless in good health and their condition did not warrant their destruction." 168 The passage is a description of the course of proceedings: there was no finding as to her conduct but merely a statement that a particular matter was ventilated with her and was a very significant part of the case. It is impossible to derive any inference of prejudgment from this material. 169 The third passage (at p 12), also defined as a "finding", was that the cows were in such poor and emaciated condition that it would have been cruel to keep them alive, that being the opinion of the veterinarians: written submissions, par 58(d). The full passage in the judgment does not support that paraphrase. It reads as follows (pp 12-13): "More importantly, though, this was a case which was decided on the central issue of what was the state of malnourishment of these cattle as at 14 June 2007 when they were assessed by the veterinarians and some of them were destroyed. The evidence as to whether or not there might have been grazing opportunities for the cattle would fall to be contradicted by the end result, that being the extremely poor and emaciated condition of the cattle regardless of whether they had received certain feeding and regardless of whether they had had an opportunity to forage in the other bush country on the property. This evidence is then, in my view, not explained as to why it was not brought and does not appear to be such as to affect the outcome of the case. It's evidence concerning matters that were the subject of evidence and counter-evidence in the court below and it's not then evidence that should be brought by leave." 170 In the passage complained of, his Honour was addressing that part of the application which sought to call evidence from Dr Adam Downey as to the value of native grasses and marginal grazing from native growth. The written submissions suggest that the evidence in question was that of local graziers, Messrs McDowell and Tanner: however, that was not correct, their evidence being dealt with later in the judgment. 171 The fourth passage relied upon to demonstrate prejudgment referred to further evidence sought from two proposed witnesses, Mr Alan Roach and Mrs Clare Roach, to the effect that the cattle were healthy. His Honour said there was "any amount of this type of evidence before the magistrate", which was at variance with the expert evidence. He continued, stating at pp 15-16, in relation to the statement proffered from Mr McDowell: "He arrives at a conclusion that the cattle did not have to be shot. He speaks of the loading ramp facilities and suggests that the cattle might have been carried elsewhere. These were all matters that were ventilated in the court below where questions arose which concerned the alternatives to their destruction. They did not find favour and Mr McDowell's statement would not be such as to be capable of altering the findings in the court below. I repeat the comment that if Mr McDowell's statement had been thought to be of such strength and persuasiveness, there is no explanation as to why it was not brought, particularly when the defence had such lengthy notice of what the Crown case was. It was a period of something of the order of six months when these sorts of issues could have been considered." 172 These passages do not give rise to any possible inference of apprehension of bias. Neither can it be said that all the passages taken cumulatively give rise to such an inference. Although the relevant assessment must be made by reference to the whole of the judgment and, arguably, as illuminated by the hearing which preceded it, the possible apprehension of prejudgment is diminished, rather than increased, by taking the passages cumulatively and in their context. (g) prejudgment - subsequent events 173 Two matters remain to be considered, as matters said to support a finding of apprehended bias. The first concerns the refusal to state a case to the Court of Criminal Appeal: written submissions, par 58(g). 174 On 22 March 2010 this Court dismissed an application seeking an order restraining the hearing of the appeal before the primary judge until the present proceedings had been disposed of. The applicant then sought to have the primary judge adjourn the proceedings, separate the issue of conviction from penalty and costs, adjourn the hearing on penalty and costs, state a case to the Court of Criminal Appeal and, separately, adjourn the hearing of the conviction issues until there had been an opportunity to serve notices under s 78B of the Judiciary Act. 175 How the refusal of the application to state a case and to adjourn to permit s 78B notices to be served demonstrated a reasonable apprehension of bias was not clearly explained. The steps taken by the primary judge did no more than demonstrate an intention to complete the proceedings without unnecessary delay, in circumstances where the issues sought to be raised were squarely before this Court and in circumstances where this Court had declined to restrain the further hearing of the matter. The fact that the course taken was undesirable, or even legally inappropriate, does not, without more, demonstrate any element of bias. The mere fact that the applications which were refused were made by the applicant is insufficient to give rise to the inference sought to be drawn. (h) factors taken cumulatively 176 In a case where numerous separate aspects are relied upon to suggest a reasonable apprehension of bias, it will usually be necessary to assess the individual elements separately and then cumulatively. Indications, each in itself insufficient, may give rise to an apprehension of bias on the relatively undemanding test designed to protect public confidence in the administration of justice. In the present case, the factors relied upon, whether taken singly or cumulatively, do not lead to the conclusion that a fair-minded observer might consider the primary judge might not bring an unbiased mind to the assessment of the applicant's case. The submissions to the contrary failed to accept that the fair-minded lay observer is a person who must appreciate that a court will explore with counsel the weaknesses in his or her case, seek to ascertain how counsel proposes to deal with those weaknesses and, in determining a particular issue, may legitimately express views which, if maintained after evidence is completed and argument has been heard, will be unfavourable to one party. This ground of review is rejected. (7) Conclusions 177 The applicant having been entirely unsuccessful in the issues raised in her second further amended summons, the application to this Court must be dismissed with costs. The following orders should be made: (1) Dismiss the summons; (2) Order the applicant to pay the costs of the second and fifth respondents. 178 MACFARLAN JA: I agree with Basten JA. ********** 16/09/2010 - Amend orders on coversheet - Paragraph(s) Coversheet 08/10/2010 - Anonymisation of date - Paragraph(s) 6 in headnote, 81, 87, 88, 93, 95 18/07/2011 - Amending name of Act cited - Paragraph(s) 35, 67 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.