Gaudie v Local Court of New South Wales and Anor [2013] NSWSC 1425

Supreme Court New South Wales

Medium Neutral Citation: Gaudie v Local Court of New South Wales and Anor [2013] NSWSC 1425 Hearing dates: 29 August 2013 Decision date: 26 September 2013 Before: Johnson J Decision: 1. Pursuant to s.69 Supreme Court Act 1970, an order is made in the nature of prohibition precluding Magistrate Roger Clisdell from hearing the proceedings Police v Ryan Gaudie. 2. Submissions will be heard with respect to the costs of the proceedings. Catchwords: COURTS AND JUDGES - apprehended bias - claim for prerogative or appellate relief following refusal by Magistrate to disqualify himself - publication in newspaper of articles reporting criticisms by Aboriginal Legal Service ("ALS") of sentencing in Local Courts in north-west New South Wales - Magistrate thereafter wrote letter to national newspaper and gave interview to journalist - Magistrate commented on range of topics including incidence of domestic violence in Aboriginal communities and the plea of not guilty rate for persons represented by ALS - newspaper published articles reporting Magistrate's comments - Plaintiff an Aboriginal person charged with and pleading not guilty to breach of apprehended domestic violence order - Plaintiff represented by ALS - application that Magistrate disqualify himself on ground of apprehended bias - application refused by Magistrate - factors relevant to disqualification application - material known to fair-minded bystander - relevance of Guide to Judicial Conduct - relevance of judicial oath - relevance of judicial statements concerning domestic violence in Aboriginal communities - relevance of comments made by Magistrate in peremptorily dismissing disqualification application in another matter - comments of Magistrate in letter and interview expressed in vehement and trenchant terms - cumulative effect of matters complained of - errors of law in decision refusing application - apprehended bias established - prohibition granted Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Domestic and Personal Violence) Act 2007 Criminal Appeal Act 1912 Local Court Act 2007 Oaths Act 1900 Supreme Court Act 1970