Cunningham v Local Court of New South Wales [2018] NSWSC 499

Supreme Court New South Wales

Medium Neutral Citation: Cunningham v Local Court of New South Wales [2018] NSWSC 499 Hearing dates: 19 April 2018 Decision date: 19 April 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: 1. Leave to appeal pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 against the order made in the Local Court on 6 June 2017 refusing to vacate a hearing date and transfer the proceedings to another court refused. 2. Application to quash the order made in the Local Court on 6 June 2017 refusing to vacate a hearing date and transfer the proceedings to another court refused. Catchwords: CRIME – appeal – interlocutory order of magistrate refusing to uphold claim of apprehension of bias – where applicant the defendant in Local Court criminal proceedings– where applicant's husband a Corrective Services officer in Local Court – where magistrate refused to uphold apprehension of bias – where second magistrate from different Local Court seconded for hearing – no basis for apprehended or actual bias – whether first magistrate failed to provide procedural fairness by refusing to adjourn matter – no procedural unfairness – whether first magistrate failed to apply Criminal Procedure Act s 30 – counsel failed to raise provision at hearing – whether first magistrate erred by making erroneous finding of fact – error did not vitiate decision Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 15A Crimes (Appeal and Review) Act 2001 (NSW) s 53(3)(b) Criminal Procedure Act 1986 (NSW) s 30 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 Supreme Court Act 1970 (NSW) ss 23, 69 Cases Cited: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 White v District Court of NSW (1998) 45 NSWLR 313 Category: Principal judgment Parties: Margaret Cunningham Local Court of New South Wales (First defendant) Constable Shannon Mulley (Second defendant) Attorney General of NSW (Amicus curiae) Representation: Counsel: Mr S Lawrence (Plaintiff) Mr R Ranken (Attorney General as amicus curiae)