Supreme Court New South Wales Medium Neutral Citation: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426 Hearing dates: 13 April 2015 Date of orders: 14 April 2015 Decision date: 16 April 2015 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1)Amended Summons dated 12 February 2015 dismissed. (2)Plaintiff to pay the first defendant's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – prerogative relief sought – prohibition and certiorari – whether Magistrate biased – no basis established – inappropriate to exercise discretion Legislation Cited: Bail Act 2013 Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Disability Discrimination Act 1992 (Cth) Supreme Court Act 1970 Cases Cited: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 Gawne v Gawne (1979) 2 NSWLR 449 Jeans v Cleary [2006] NSWSC 647 Jenkins v Director of Public Prosecutions [2013] NSWCA 406 Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531 Lee v Cha [2008] NSWCA 13 Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CL 82 Vakauta v Kelly (1989) 167 CLR 568 W O v Director of Public Prosecutions NSW [2009] NSWCA 370 Texts Cited: Not Applicable Category: Principal judgment Parties: Sandra Lazarus (P) Director of Public Prosecutions (NSW) (D1) Local Court of NSW (D2) Representation: Counsel: In person (P) C A Webster SC (D1) Submitting Appearance (D2) Solicitors: In person (P) NSW Crown Solicitor's Office (D1) NSW Crown Solicitor's Office (D2) File Number(s): 2015/36376 Publication restriction: Not Applicable ___________________________________________________________________ Judgment 1. On 27 November 2014, Magistrate Keogh, sitting in the Local Court of NSW, for the reasons which she then delivered, found Sandra Lazarus guilty of 44 criminal offences, being 15 offences against s 178BB of the Crimes Act 1900, and 29 offences against s 300 of the Crimes Act. 2. At that time, Keogh LCM also found Ms Lazarus not guilty of 14 other offences against s 300 of the Crimes Act, with which she had been charged. 3. These findings were made after a lengthy, but not continuous, hearing which had commenced on 25 August 2014, and finally concluded on 22 October 2014. Written submissions were also provided. 4. Having delivered her verdict and reasons, Keogh LCM stood the proceedings over for a hearing on sentence to 9 February 2015. 5. In these proceedings, originally commenced by Ms Lazarus on 5 February 2015, she now seeks orders in an Amended Summons filed 12 February 2015, which would have the effect that Keogh LCM would be disqualified from hearing the proceedings further, and that the proceedings in the Local Court would be reheard and determined by another Magistrate, according to law. 6. Ms Lazarus has joined in these proceedings as the first defendant the Director of Public Prosecutions (NSW) ("DPP"), who has been the active opponent. As well, she has joined the Local Court of NSW as a second defendant. It has, appropriately, filed a submitting appearance. 7. Because these proceedings were commenced before the hearing of the sentencing proceedings in the Local Court, and before the imposition of any sentence upon Ms Lazarus for the 44 offences in respect of which there has been a finding of guilt, and because the proceedings in the Local Court have been temporarily stayed, the hearing of the proceedings in this Court has been expedited and it is important that judgment be delivered as promptly as is possible. 8. Accordingly, on 14 April 2015, I pronounced orders dismissing the Amended Summons, and ordering Ms Lazarus to pay the costs of the DPP. I indicated that I would deliver reasons promptly. These are the reasons for the orders made. 9. These reasons are necessarily expressed somewhat more concisely than may otherwise have been the case were there no constraint as to time. 10. The Court has been assisted by written and oral submissions by both Ms Lazarus herself and by senior counsel for the DPP. Those submissions, and the evidence upon which each party has relied, have been carefully read and considered. Amended Summons 1. In the Amended Summons, Ms Lazarus relies upon 11 identified grounds to support the orders which she seeks. As she has prepared the Summons herself, including the 11 grounds, without assistance from a lawyer, the grounds are not as precisely drafted as may otherwise be desirable. 2. Grounds 1 and 2 refer to an application which was said to have been made on 10 October 2014, by counsel for Ms Lazarus in the Local Court. That application alleged that Keogh LCM was actually biased against Ms Lazarus and, as well, that an apprehension of bias would be held by a reasonable observer. Ms Lazarus made it plain in her submissions to this Court that it was her contention that Keogh LCM ought to have recused herself at that time, and that her wrongful failure to do so ought be rectified by orders from this Court. 3. In Ground 3, complaint is made about the absence of any record of the application, and the rejection of it, from the written transcript, as well as an apparent inaccuracy in the transcript of 15 October 2014. 4. Grounds 4 to 11 inclusive raise issues of bias, errors of reasoning and errors in factual findings claimed to have been made by Keogh LCM in her written reasons for judgment. It is not unfair to remark that the terms in which these grounds are expressed contain allegations about Keogh LCM's judgment and the motivation of Keogh LCM which are, in the terms used, inappropriate, scandalous and entirely unnecessary for the proper and orderly development of Ms Lazarus' arguments in this Court. Nature of the Relief Sought 1. The submissions of the DPP accepted that the Court should approach the relief being sought by Ms Lazarus as an application of the Court's power contained in s 69 of the Supreme Court Act 1970. This must be so. 2. It is clear that the orders sought by Ms Lazarus are orders in the nature of prerogative relief: in the first place, an order in the nature of prohibition to prevent Keogh LCM from proceeding to hear the balance of the proceedings, and in the second place, an order in the nature of certiorari to quash what has occurred to date on the basis of judicially reviewable error, with consequential relief to provide for a new hearing of the proceedings. 3. Section 69 of the Supreme Court Act provides the Court with power to restrain the continuation of proceedings by the making of an order in the nature of prohibition. A proper basis for the exercise of that power needs to be made out. One basis for granting relief would be the demonstration that the trial Judge was biased, or else that there was a reasonable apprehension of bias on the part of the reasonable observer: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Lee v Cha [2008] NSWCA 13 at [28]. 4. An order granting relief in the nature of certiorari is available where an inferior court exceeds its jurisdiction, or where there is error of law on the face of the record. A denial of procedural fairness is an adequate basis for an order in the nature of certiorari: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531 at [72]. 5. For the purpose of considering these applications for prerogative relief, and whether error is shown on the face of the record, s 69(4) of the Supreme Court Act provides that the face of the record includes the reasons expressed by the Court or the Tribunal for its ultimate determination. 6. The grant of relief either by way of prohibition or certiorari is discretionary. A number of factors may be relevant to such a consideration: Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [43]-[60] per Gaudron and Gummow JJ. 7. One matter which is of relevance to the exercise of discretion, in the circumstances which pertain here, is the existence of an appeal to another court which is a more convenient and satisfactory remedy than the grant of prerogative relief: R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400; Aala at [56]. 8. Here, s 11 of the Crimes (Appeal and Review) Act 2001 provides that a person in Ms Lazarus' position has a right of appeal from the Local Court to the District Court against a conviction or sentence or both. As Ms Lazarus has not yet been sentenced, time has not commenced to run for the filing of such an appeal. 9. Section 18 of that Act provides that an appeal against conviction is to be by way of rehearing on the basis of the evidence given in the original Local Court proceedings unless a direction is given by the District Court in accordance with s 19 of the Act for a person to attend and give evidence on an appeal. 10. As well, s 18 provides that fresh evidence may be given on an appeal where the District Court is satisfied that it is in the interests of justice to allow that to occur. 11. Such an appeal to the District Court is in all respects a process which can fairly address and resolve fully the merits of the proceedings. Legal Principles with respect to Bias 1. The basal principle is that a judge may not sit to hear a case if they are actually biased, or else if it might reasonably be considered that he or she could not bring a fair and unprejudiced mind to the decision: Ex parte Watson at [263]. But, the reasonable observation of a judge must be one which is made "in the real world of actual litigation": Vakauta v Kelly (1989) 167 CLR 568 at 570. 2. A judge must not sit to hear a case if a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question that the Judge is required to decide: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [43]. It is important to note that the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, not that he or she will decide the case adversely to one party or the other: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. 3. The test is an objective one. The subjective opinion of one person or another is not relevant. Whether there is a reasonable apprehension of bias requires, first, the identification of what it is said might lead the Judge to decide a case other than on its legal and factual merits and, secondly, an articulation of the logical connection between that matter and the possibility of not deciding the case on its merits: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8]. 4. One needs always to keep in mind the remarks of Jacobs J in Ex parte Watson at 294, where his Honour said that a judge is justified in proceeding with the conduct of matters before him (or her) upon the basis, and in the confidence, that their integrity is beyond question. His Honour went on to say in respect of the judge in that case, this: "That confidence may lead him into words or conduct in court which falls short of that model of conduct we would all aspire to but which none of us attain. Then it is fair and right that his words or conduct should be disapproved. But let it be remembered that it is confidence in his own integrity which supports him not only in his judgment, but in all his words and conduct, both that which may be approved and that which may be disapproved. Let none by conjecture or base imputation undermine that confidence, however much they may criticise his judgment or the way he conducts his court. To do so is to shake the foundations of justice." Grounds 1 – 2: Failure to Disqualify on 8 October 2014 1. On 8 October 2014, according to the transcript of that day, counsel then instructed for Ms Lazarus made an application to Keogh LCM that she should recuse herself. She declined so to do. Although the Amended Summons records the application as having occurred on 10 October 2014, this is an error. 2. As best as can be gleaned from the discursive and unfocussed submissions of counsel to Keogh LCM, which include, regrettably, the expressions of counsel's own personal opinion about matters and no reference to any specific authority, the basis of that application was that Keogh LCM was actually biased or, alternatively, reasonably apprehended to be biased against Ms Lazarus. 3. The basis of the application included the following: 1. Keogh LCM had wrongfully enquired if there was a legitimate forensic purpose when being asked to deal with access to subpoenaed documents; 2. The content of a remark made by Keogh LCM about the academic qualifications of Ms Lazarus; 3. That Keogh LCM had through facial expressions, such as by raised eyebrows, encouraged the prosecution to object to questions to which objection would not otherwise have been made; 4. She had inappropriately refrained from interfering in the cross‑examination of a witness, Mr Neiron, on the issue of whether or not the witness' answers were, or were not, responsive; 5. She had adopted a different approach to Ms Lazarus when she was giving evidence with respect to whether her answers were or were not responsive; 6. She had intentionally interrupted the examination in chief of Ms Lazarus by asking questions frequently about relevance which were inappropriate because relevance is a matter for counsel to determine; and 7. Her general conduct of the proceedings had created a belief in the minds of counsel for Ms Lazarus, and Ms Lazarus, that she had already decided that Ms Lazarus would be convicted. 1. The prosecution opposed the application. Keogh LCM declined to recuse herself, giving short reasons explaining why this was so. 2. Whilst the sound recording of the application made by counsel was tendered, Ms Lazarus did not tender the sound recording of any remarks made by Keogh LCM when she declined to recuse herself. 3. Notwithstanding adherence in the course of the submissions to the proposition that the application had been made on 10 October 2014, it became apparent that the transcript of 8 October 2014 contains the short remarks by Keogh LCM declining to recuse herself. A careful reading of those remarks indicates that there is nothing about the content of those remarks which is inappropriate, and which in any way suggests any legal error in the Magistrate refusing to accede to the application. 4. In particular, her Honour noted that prior to Ms Lazarus giving evidence, that she had been called upon to, and had made a decision, about whether there had been a prima facie case established by the evidence adduced by the prosecution. Counsel for Ms Lazarus conceded to her Honour that the prosecution had established such a prima facie case. To the extent that such a determination is made, it is not a demonstration of bias or pre-judgment on the part of the Magistrate but, on the contrary, is a demonstration that the Magistrate is ensuring that a proper and fair trial process is being followed. 5. To the extent that Ms Lazarus seems to submit that by reason of the matters raised by her counsel orally in submissions to the Magistrate, this Court should hold that either actual bias existed or else there was a reasonable apprehension of bias, I am unable to accept that submission. 6. Counsel's submissions challenged the failure of the Magistrate to intervene in the cross-examination of a prosecution witness, Mr Neiron (when it was said that his answers were unresponsive) and contrasted that failure with the Magistrate's intervention in the course of the evidence-in-chief of Ms Lazarus upon the basis that her answers were not responsive. Counsel sought to contrast this "inconsistent" behaviour on the part of the Magistrate in support of a submission that bias was demonstrated. 7. A magistrate, or any presiding judicial officer, has an obligation to ensure that when a witness is giving evidence, they do so in a way which is appropriate. Included in that assessment is the issue of whether a witness is responding to the question which they have been asked, that the witness is not arguing with the questioner, and that the witness is not, either intentionally or unintentionally, avoiding giving an answer to the question which has been asked. 8. The evidence given by Mr Neiron was not tendered in this Court. Counsel for Ms Lazarus, in his written submissions in the Local Court which were tendered in this Court, referred at pages 61-63 to the evidence of Mr Neiron, and there set out some parts of it. Although it was submitted to the Magistrate that she would not accept the evidence of Mr Neiron, it was not submitted that his evidence was unresponsive to the questions asked and, on that account, to be disregarded. The evidence which is set out in those submissions, assuming it to be an accurate record of what was said, does not support, without more, the conclusion that he was not a responsive witness. 9. On the other hand, the evidence of Ms Lazarus, given over a number of days in the Local Court, has been tendered in this Court. I was not taken to any part of that evidence to support the submission that the Magistrate had inappropriately intervened to such an extent that a reasonable apprehension of bias would arise. From my reading of that transcript, it is clear that on many occasions in the course of her evidence, Ms Lazarus did not respond appropriately to the questions which she was asked, and from time to time the Magistrate rightly intervened. 10. No basis has been established for any suggestion that there has been any inconsistent treatment by the Magistrate between the two witnesses nominated, nor that a fair-minded observer would have a reasonable apprehension of bias. 11. The balance of the matters raised by counsel for Ms Lazarus in the course of his submissions in the Local Court, are not the subject of any evidence tendered before this Court. The mere fact that counsel has raised a matter, such as an allegation about the general conduct of proceedings does not establish, in any admissible way in these proceedings, a proper basis for this Court to hold that the Magistrate should be prohibited from hearing the matter further. The mere fact that either counsel or his client were of the opinion that the Magistrate was exhibiting bias and ought recuse herself is not a sufficient basis for recusal: Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 at 50 per Samuels JA (Meagher JA agreeing). 12. I am not satisfied that it has been demonstrated that Keogh LCM was either actually biased or else that a fair-minded observer would have reasonably apprehended that she was. On the contrary, the evidence before me suggests that she conducted the trial, which was a lengthy and complex one, entirely appropriately. 13. Grounds 1 to 2 are not made out. Ground 3: Statement about Transcript 1. This ground draws attention to a statement made by Keogh LCM on 15 October 2014. The statement is entirely unremarkable. This ground does not raise any matter which is capable of constituting any reviewable error. Grounds 4 – 11: Errors in Verdicts and Reasons 1. These grounds identify various alleged deficiencies in the verdicts and reasons of the Magistrate, and assert that those deficiencies demonstrate that the Magistrate was biased, and made errors of fact and law sufficient to justify the making of the relief claimed. 2. The judgment of the Magistrate is a lengthy one, 33 pages and 166 paragraphs. It was delivered a little over a month after the last hearing day of the trial, and about ten days after the last set of written submissions was received. The delivery of the judgment in that time was commendably prompt. 3. To understand these grounds and submissions, a little more needs to be said about the case for the prosecution, and the case for the defence before the Local Court. 4. It was the prosecution's case with respect to the charges under s 178BB of the Crimes Act, that Ms Lazarus had made written statements which were false or misleading in a material particular, and which were made with the intention of obtaining a financial advantage. With respect to these offences, it was the prosecution case that invoices were created by Ms Lazarus which claimed money for goods which had been delivered and services which had been provided in circumstances where the goods were not delivered and the services had not been provided. 5. With respect to the s 300 offences, it was the prosecution's case that Ms Lazarus had created a large number of false instruments. The instruments were, in five cases, Vendor Maintenance Forms (which are used to enable the registration of a supplier on the relevant accounting systems thereby enabling payment to be made) and, in 39 cases, invoices for work carried out. It was alleged by the prosecution, relevantly, that the various signatures on these instruments were not genuine, but rather were forgeries. 6. The defence case, which was principally propounded by the evidence of Ms Lazarus, was that all of the work had been properly authorised and completed, and that all of the signatures were genuine and had been placed on the documents, in her presence, by the individuals concerned. 7. In support of Ms Lazarus' evidence, a handwriting expert, Mr Chris Anderson, gave evidence. Putting it globally, the effect of Mr Anderson's evidence was that the various signatures on the invoices and Vendor Maintenance Forms were genuine. 8. In large part the prosecution evidence consisted of the individual doctors who denied, or doubted, that the signatures were theirs. In addition to this direct evidence, the prosecution adduced significant circumstantial evidence. 9. Accordingly, the Magistrate was confronted with the initial task of determining what, and whose, evidence to accept. She then had to consider, in light of the resolution of the conflict in the evidence, whether she was satisfied beyond reasonable doubt that the prosecution had proved all of the offences alleged. 10. When her Honour came to consider the charges under s 178BB of the Crimes Act, she said that the evidence was overwhelming in establishing that the work was not done and the materials not provided. In support of that conclusion the Magistrate identified in a global way, 11 features of the evidence which she accepted and which she said all pointed to the fact that no work was done and no materials provided. 11. Her Honour then considered the evidence of Ms Lazarus, who had asserted that the work had been carried out at the relevant two hospitals, namely Royal North Shore Hospital and the Royal Hospital for Women. Her Honour concluded that the plaintiff was a person whose evidence carried little weight. 12. She supported this conclusion by drawing attention to nine areas of inconsistencies in the defence evidence. She then held that there were eight other matters which affected her assessment of the weight and reliability of Ms Lazarus' evidence. 13. Her Honour concluded that the offences against s 178BB of the Crimes Act were proved beyond reasonable doubt because the prosecution had proved that Ms Lazarus had performed no work and provided no goods and services in relation to the clinical trials. 14. In considering the charges involving offences against s 300 of the Crimes Act, her Honour first addressed the relevant legal requirements. No complaint is made of her judgment in that respect. 15. Her Honour accepted that the law required not only that the documents submitted were false because they sought payments for goods and services that were never rendered, but that the Court had to determine whether the: "true owners of the signatures wrote their signatures on the forms in question or did not, or whether the documents themselves were not authentic in some other way". 1. Her Honour then turned to consider the evidence with respect to the signatures. In that respect her Honour drew attention to the evidence which, as I have noted earlier, was in conflict with respect to whether the individual doctors signed the documents. Her Honour noted that the particular legal authorities to which she referred, required her to address all of the evidence on the question of whether the signatures were genuine, and that it would be erroneous, in the circumstances, to consider only the expert evidence on the signatures. 2. In particular, her Honour noted the evidence of Mr Anderson regarding the limitations surrounding his examination of the various signatures. 3. Her Honour then analysed each of the charges by reference to the identity of the signatories, and considered their evidence and the evidence of Mr Anderson, the expert. She found that some of the charges were proved, but that with respect to other documents, she was not satisfied beyond reasonable doubt that the signatures were not genuine. 4. Against that background, it is necessary to consider the grounds in the Summons which challenge the Magistrate's judgment. 5. Ground 4 in the Summons challenges the legal correctness of Keogh LCM forming the view that the expert evidence of Mr Anderson was not determinative of the issue before her, but rather needed to be considered together with all of the other evidence in forming a conclusion about her satisfaction, about the genuineness of various signatures. This ground specifically asserts that Keogh LCM was in error in relying upon a case which had been overruled by the High Court of Australia. 6. The two cases referred to by Keogh LCM in [107] of her judgment were Gawne v Gawne (1979) 2 NSWLR 449, and Jeans v Cleary [2006] NSWSC 647. 7. In Jeans, Johnson J held that handwriting expert evidence: "… forms one part of the body of evidence, both oral and documentary, upon which I must base my findings of fact. It would be erroneous to treat the expert evidence as being, in some way, decisive on its own in a case such as this … ." 1. His Honour cited Gawne, and concluded that as the tribunal of fact, in addition to all of the evidence he was entitled, to make a comparison between handwriting that is disputed and admitted, although, as he acknowledged, he should pay careful attention and have regard to expert evidence on the issue. 2. Neither of these cases has been overruled. Neither has been commented adversely upon. The principle expounded by Johnson J in Jeans is legally correct. The Magistrate was not in error to have regard to that principle. Ms Lazarus did not cite any case which she said overruled either of these decisions. 3. Whether or not a signature is genuine, is a question of fact. It is for the relevant Court to make up its mind as to what has or has not been established with respect to the signature. The Court needs to have regard to, take into account and resolve any conflicts of evidence about that issue. 4. Her Honour did so. In relying upon those cases, she was not in error. It follows that Ground 4 of the Amended Summons fails. 5. Ground 5 complains that the Magistrate erred in making a finding that Ms Lazarus had given evidence that she had "completed hundreds of trials". 6. This remark by the Magistrate does not accurately reflect the evidence. The evidence would permit the Magistrate to have found that Ms Lazarus had completed hundreds of tests which are an integral component of a clinical trial. It seems to me from reading the Magistrate's judgment that that is what she intended to say. 7. I do not think that the transposition of the word "trials" for "tests" has any relevant effect upon the Magistrate's conclusions, and I regard this ground as being without any substance. 8. Ground 10 raises a factual finding made by the Magistrate in [69] of her judgment. That statement is in the final paragraph on that page and refers to evidence said to have been given by Ms Lazarus to which the Magistrate had regard in considering the weight and reliability of the evidence of Ms Lazarus generally. The paragraph is, in part, in the following terms: "Her evidence in relation to the time it took to conduct an examination of a patient, and then to interpret the results, was unclear, unhelpful and contradictory. For example, she explained that an examination could take anything from 30 seconds to three hours and that a trained monkey would be capable of performing the test." 1. In her evidence, Ms Lazarus was asked to describe the time that a consultation and test being performed as part of a particular clinical trial typically occupied. In the course of that evidence, which I have carefully read, and which was, it must be said, rather confused, Ms Lazarus did say in estimating times that obtaining consent to the test and discussing the process with a person in the examination room could take from 30 seconds to four hours if she had to explain every "Medex point". The Magistrate's conclusion with respect to time was justified by this evidence. 2. Ground 10 is correct where it claims that there was no evidence given by Ms Lazarus that a trained monkey could carry out the test. It is unclear where the Magistrate drew that reference from. From the evidence given by Ms Lazarus as to how the test was carried out, the Magistrate may readily have concluded that it was a routine test, which did not require any particular intellectual skill, or physical ability. If such a conclusion was reached by the Magistrate, then the use of the vernacular of a "trained monkey" may have been apt. 3. However, in the context of the Magistrate's decision, that remark is of no real substance. It is to be recalled that at this part of the Magistrate's judgment, her Honour was dealing with the reliability and weight of the defendant's evidence. Her Honour described eight reasons why she regarded Ms Lazarus' evidence as being of little weight and unreliable. This last erroneous comment comes at the very end of each of those points, and its erroneous nature does not affect the substance of any of the other points upon which the Magistrate relies. 4. Indeed, it seems to me, that any one of those seven other points, standing alone, would have been a sufficient reason for the Magistrate to conclude that Ms Lazarus' evidence was unreliable and not worthy of weight. However, I do not have to make that determination. Simply put, I am not satisfied that the error which has been identified is of any substantive effect in the overall decision of the Magistrate. It did not contribute to any error in the reasoning process which resulted in the offences being found to have been proved. 5. The balance of the Grounds, namely, 6, 7, 8, 9 and 11 are grounds which complain about factual errors in the Magistrate's reasoning. I am not persuaded that any of these grounds have been made out. In my view, the remarks of the Magistrate were supported by the evidence and have not been demonstrated to be factually erroneous. Additional Submissions 1. Although the Summons contained only the grounds to which I have referred, Ms Lazarus additionally submitted that there was a basis for the upholding of the Summons because of events which occurred on 27 November 2014, when Keogh LCM delivered her judgment. 2. Ms Lazarus' account of the events is set out in her written submissions, which were read to the Court. Those submissions contained statements of fact. Although the statements were not contained in an affidavit, the first defendant, the DPP, did not object to the Court receiving those statements of fact from the bar table. 3. It is convenient to set out what the Court was told. It was: "6. On 27 November 2014 the plaintiff was in custody for approximately five hours. The plaintiff was forced to sit on a wooden bench without cushioning or support for her spinal injury. The plaintiff was strip searched. Finally, while in custody, the plaintiff was approached by an individual, unknown to her, who failed to identify themselves or what institution they belonged to. This individual offered the plaintiff an alternative to being in custody and told the plaintiff that she would once again be placed in custody on 9 February 2015, that is the plaintiff's sentencing date, unless she and her sisters signed documents releasing the doctors involved in the case as well as the hospitals involved in the case, from any legal action. … 7. Placing the plaintiff in custody on 27 November 2014 was employed as an intimidation tactic to compel the plaintiff and her sisters to sign the mentioned release documents. Whilst in custody the plaintiff was forced to sit on a wooden bench without cushioning or support and was also strip searched. As the plaintiff was not ordered to go to prison and was only required to remain in the holding cell until bail conditions were made on the day, a strip search was not required, yet the plaintiff was subjected to this and forced to endure approximately five hours sitting on a wooden bench without cushioning or support. This was in spite of the plaintiff's spinal medical condition which the Court was repeatedly made aware of and provided with relevant medical documentation. The fact that the Court provided the plaintiff with hourly 10 minute breaks during her local court hearing because of her spinal medical condition, is clear evidence that Magistrate Keogh was aware of the plaintiff's spinal medical conditions and related requirements." 1. Based upon these matters of fact, Ms Lazarus submitted that what occurred to her was evidence of the Magistrate's bias against her and amounted to a failure to provide her with natural justice. She also submitted that the Magistrate was in breach of s 5(2)(a) of the Disability Discrimination Act 1992 (Cth). 2. Ms Lazarus submits that this Court should infer that the Magistrate was "undoubtedly aware that when in custody, the plaintiff would not be permitted to take any therapeutic device into the holding cell …" and further, that having regard to her experience, the Magistrate could not reasonably have failed to recognise that the plaintiff was a "vulnerable person" for whom she ought to have made "reasonable adjustments" while the plaintiff was in custody. 3. The transcript of the proceedings in the Local Court on 27 November 2014, indicates that at the conclusion of the delivery of her verdict and reasons, and after she had made findings of guilt of the identified offences and dismissed other of the offences, a discussion occurred between the Bench and counsel for Ms Lazarus as to the appropriate date for a sentencing hearing. When it became apparent that sentencing would be adjourned for a period (at that stage thought to be a little over two months) the prosecutor made a detention application, that is, the prosecution made an application that Ms Lazarus be detained in custody pending the sentencing hearing. Later, it became apparent that what the prosecutor was in fact seeking was the imposition of bail with conditions relating to residence, and the surrender of Ms Lazarus' passport and any other relevant travel documents. In addition, the prosecution sought the imposition of a surety. 4. After further discussion, it became apparent that Ms Lazarus had a current passport but she was not in physical possession of it in the courtroom. It would need to be brought to the Court, a process which could take some time. Upon hearing of that, the Magistrate directed that Ms Lazarus would need to remain in custody until such time as the passport was surrendered and other conditions fulfilled, so that the grant of bail could be given effect to. Keogh LCM then indicated she would have officers of the Department of Corrective Services come up to court to attend to Ms Lazarus upon her being remanded into custody. 5. Further discussion ensued, and the Magistrate was asked to delete the condition with respect to surety and impose a once weekly reporting condition. Her Honour indicated that she was not prepared to grant bail without a condition as to surety. The Magistrate went on to finalise the conditions of bail and confirmed that Ms Lazarus would need to remain in custody until her bail was entered. The Corrective Services officers who had attended at Court then took Ms Lazarus into custody. 6. What Keogh LCM did in directing that Ms Lazarus be taken into custody pending the fulfilment of her bail conditions, was an ordinary, and not atypical, incident of the administration of justice at the stage of the proceedings that had been reached. Keogh LCM had just determined that Ms Lazarus was guilty of a significant number of offences which were serious. She was asked to grant conditional bail. The Bail Act 2013 required that she be satisfied that there were no unacceptable risks before granting bail. She attended to this issue and determined that providing conditions were imposed, bail could properly be granted. 7. The Magistrate was not responsible for the length of time which Ms Lazarus spent in custody. That length of time was determined by Ms Lazarus' capacity and ability to comply with the bail conditions which needed to be addressed prior to her release. The Magistrate was not responsible for the conditions in which Ms Lazarus was held in custody. They were the responsibility of the Corrective Services officers who were present, and who controlled the custody facilities for the Downing Centre Local Court. 8. The assertion by Ms Lazarus that the Magistrate was in some way connected to the unidentified individual who made some offer to Ms Lazarus whilst she was in custody is wholly without any factual or logical foundation. It can only be the product of the "… fertile and unqualified imagination …" of Ms Lazarus: Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292, which is not a proper basis for relief. 9. The attribution of bias to the Magistrate by reason of the events which have been recounted is without substance. 10. There is no basis for any conclusion that the events of 27 November 2014 give rise to any matter of concern whatsoever about Keogh LCM's conduct. Discretion 1. As I have earlier indicated, the Court retains a discretion with respect to whether or not prerogative relief, or orders in the nature of prerogative relief ought be granted. 2. Were I persuaded that there had been an error of any substantial kind in the Magistrate's conduct of the trial or her judgment as the grounds in support of the Amended Summons assert, and I am not, then I would have been required to consider whether I should exercise my discretion to make orders of the kind sought. I would not have been so minded, in the particular circumstances of this case. 3. There are a number of reasons for this. The first is that there exists a full right of appeal from the decision in the Local Court to the District Court of NSW. It is a right of appeal which enables a determination of the matter having regard to its merits in circumstances where the presiding Judge has the task of rehearing the proceedings on that appeal. In the words used by Kirby P in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508: "This appeal is an equally effective and convenient remedy. In fact it is more convenient. It is the appropriate way in which any resolution of the issues about whether there was evidence to support the findings, what weight should be given to the evidence, whether the evidence of any one witness or another was reliable, ought all be addressed." 1. The second reason is that this proceeding has been brought at a time after the verdict and reasons have been delivered and prior to the completion of the proceedings, including the sentencing hearing and the imposition of such sentence as the Magistrate regards as appropriate in the circumstances. 2. Courts, when asked to exercise their supervisory jurisdiction as this Court is in these proceedings, are reticent to interfere in criminal proceedings before the completion of those proceedings: Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [84]; W O v Director of Public Prosecutions NSW [2009] NSWCA 370 at [19]. 3. There is simply no reason in this case why the criminal proceedings ought not be allowed to take its course and be concluded as would ordinarily be expected. 4. Even if there had been a basis identified for the possible exercise by the Court of its discretion, I would not have done so. Conclusion 1. These are the reasons for my ordering on Tuesday 14 April 2015, that the Amended Summons be dismissed. 2. The formal orders which were made on that day were: 1. Amended Summons dated 12 February 2015 dismissed. 2. Plaintiff to pay the first defendant's costs. ********** 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. Decision last updated: 16 April 2015