HOME / Counsel Criticised for “Picking a Fight” with Magistrate but Recusal still Properly Ensues

FEATURE ARTICLE - Issue 97: September 2024, Professional Conduct and Practice

Counsel Criticised for “Picking a Fight” with Magistrate but Recusal still Properly Ensues

BY Hearsay

216 Views

In Heywood v Local Court of New South Wales [2024] NSWSC 1047 (21 August 2024), Lonergan J dealt with an appeal in which a Magistrate refused recusing himself from hearing a quasi-criminal charge hearing. The decision is instructive apropos of not just the proper conduct of a judicial officer in a hearing, but also – more importantly for this section of Hearsay – judicial comment as to the proper conduct of counsel. Lonergan J wrote (the bold type emphasis is original but the underlined emphasis is added):

Brigid Heywood seeks prerogative relief under s 69 of the Supreme Court Act 1970 (NSW) to prevent Magistrate Richardson (“the Magistrate”) from continuing to hear criminal proceedings involving two charges brought against her arising from her alleged conduct in respect of a child on 8 March 2022.
On 5 July 2023, the second day of the substantive hearing at the Local Court at Armidale, an oral application was made by counsel then appearing for Ms Heywood, Mr Pappas, first for an adjournment to obtain the transcript, and when that was refused, for the Magistrate to disqualify himself from further hearing the matter on the basis of apprehended bias.
The Magistrate refused the application. He also refused an application for adjournment of the hearing made immediately after his reasons were delivered. Ms Heywood’s counsel indicated an intention to prepare and file a Supreme Court summons seeking prerogative relief. A summons was filed in this Court the next day, 6 July 2023.
The proceedings continued in the Local Court for a third day on the afternoon of 6 July 2023. At the end of that day, further dates for hearing were discussed. The hearing was listed to continue on 2 April 2024 for three days before the Magistrate, but in January 2024, the dates allocated were vacated by the Local Court. My understanding was that this was done at the request of the Magistrate, apparently because of the part-heard Supreme Court hearing and potential delays to the continuation of the Local Court hearing because of these proceedings.
At that stage, the hearing in this Court had been adjourned from 7 December 2023, part-heard, to 12 February 2024, as it had been agreed that the tone with which certain things were said by the Magistrate (and counsel) during the hearing required that I listen to the audio file of the whole of the proceedings. At that time, the whole of the audio had not been obtained. The final part of the audio was provided on 24 February 2024.
Three grounds for judicial review were set out in the summons:
- That the Magistrate should be disqualified from hearing the case on the grounds of apprehended bias (evidenced by his conduct in the trial).
- That the Magistrate wrongly refused the application that he must disqualify himself on the grounds of apprehended bias.
- That the Magistrate applied the wrong legal test when determining the application to disqualify himself, instead applying the test for actual bias.
The Local Court of New South Wales filed a submitting appearance. The second defendant, the Officer in Charge of the investigation, was represented by a solicitor, Mr Deards, who argued that none of the grounds of appeal were made out and that the matters complained of, taken cumulatively, did not establish a case for apprehended bias.
Due to the nature of the arguments, it is necessary to reproduce in full a number of the exchanges that occurred in the Local Court. Having listened to all of the audio, and having carefully considered the oral and written submissions made by Mr Howell of counsel on behalf of Ms Heywood, and of Mr Deards, I have come to the view, reluctantly, for the reasons that follow, that the relief sought in the summons should be granted and that all three grounds for judicial review have been established.

…

The parties and background to the proceedings in the Armidale Local Court

On 8 March 2022, a public event was held at the Armidale Ex Services Memorial Club to mark International Women’s Day. The event was attended by members of the Armidale community, including students from several local high schools. Ms Heywood was one of three guest speakers at the event. At the time she was the Vice-Chancellor of the University of New England. It is alleged that as attendees mingled following the conclusion of the event’s formalities, Ms Heywood licked her index finger and wiped it on a schoolgirl’s face, making an offensive and racist comment as she did so.
On 1 August 2022, Ms Heywood was charged with offences contrary to s 61 of the Crimes Act 1900 (NSW), of common assault; and s 4(1) of the Summary Offences Act 1988 (NSW), of behaving in an offensive manner in a public place. She entered pleas of not guilty on 26 September 2022.

Principles – apprehended bias

As stated by Bell CJ in State of New South Wales v Madden [2024] NSWCA 40 at [100]:

“In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], the High Court stated that an apprehension of judicial bias arises where (see also Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]):

“…a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.”

…

In 2023, the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 at [37] to [38] per Kiefel CJ and Gageler J and per Gordon J at [67] to [73] further considered in practical terms what was required by the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63:

“[37] The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”.

[38] Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

…

[67] As this Court held in Ebner v Official Trustee in Bankruptcy, a judge is disqualified, subject to qualifications relating to waiver or necessity, “if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The Ebner test has two steps: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

[68] Four aspects of the test are critical to observe. First, it is an objective test: it does not require a conclusion about the judge’s actual state of mind or an assertion of actual bias. The principle gives effect to the requirement that justice should both be done and be seen to be done.

[69] Second, it is a test of possibility, not probability – whether the fair-minded lay observer might reasonably think that the judge might be biased. It has even been said that the fair-minded lay observer is generally taken to be mistaken because decision-makers will rarely be biased in the ways attributed to them, as the observer might have appreciated if fully apprised of the operation of a particular decision maker. That said, a finding of apprehended bias is “not to be reached lightly”. In determining whether an apprehension of bias arises, relevant considerations include “the legal, statutory and factual contexts in which the decision is made” and “the nature of the decision …, what is involved in making the decision and the identity of the decision maker”.

[70] Third, the test is not prescriptive about the ways in which a reasonable apprehension might arise. “The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty”. Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: “the hypothetical observer would recognise that judges are human, not a ‘passionless thinking machine’ or robot just assessing information”.

[71] Fourth, the adjective “lay” in relation to the fair-minded observer is critical – “[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer” with the knowledge and professional self-appreciation of a lawyer, let alone that of an experienced judge. The fair-minded lay observer is a member of the public because the principle is concerned with maintenance of public confidence in the justice system. “[I]t is the court’s view of the public’s view, not the court’s own view, which is determinative”.

Knowledge of the fair-minded lay observer

[72] The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it was made, and the circumstances leading to the decision. The fair-minded lay observer is taken to have “a broad knowledge of the material objective facts”, as distinct from a detailed knowledge of the law or of the character and ability of the decision-maker. In considering whether an allegation of apprehended bias on the part of a judge is made out, “the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case”.

[73] As the test is objective, the state of mind of the judge in question is irrelevant. So too are the reasons for judgment given by the judge ex tempore or published by the judge after the trial. The test turns on the facts and circumstances that might give rise to the apprehension of bias at the time of the hearing and determination. For that reason, Bromwich J’s reasons are not within the knowledge of the fair-minded lay observer. The material facts stated by his Honour in his ex tempore reasons should have been provided to the parties in the associate’s email or stated in open court during the hearing. That would have allowed the parties to address those facts in their submissions to the Court. It would also have allowed any facts known only to Bromwich J – for example, his level of conscious recollection – to form part of the knowledge of the fair‑minded lay observer, to the extent relevant.”

…

Ground 1 – disqualification for apprehended bias

Mr Howell submitted that the Magistrate manifested apprehended bias by reason of his comments to and about the legal representatives appearing for Ms Heywood, his intervention during cross-examination of witnesses, and his gratuitous and belittling comments made during the three hearing days in July 2023 and the return of subpoena argument that took place on 31 October 2022. It was submitted by Mr Howell that no individual event, exchange or comment relied upon established apprehended bias on its own, but that it is the cumulative effect of the passages relied on that gave rise to an apprehension that the Magistrate was biased.

…

Overzealous objections

An overzealous objection was taken by [Police Prosecutor] Sgt Smith in the following exchange, but Mr Pappas, rather than moving on, the objection having been quickly overruled by the Magistrate, made gratuitous and insulting personal criticism of Sgt Smith referring to “fatuous objections”, and accusing her of making this objection, (and it seems the preceding objections which by then were only limited in number), to be “disruptive”:

“Q. You’ve spoken of course to a number of witnesses, haven’t you?

A. That’s correct.

Q. And they’ve explained to you where they were and what they saw on 8 March 2022?

PROSECUTOR: Objection again to adducing evidence of other witnesses through this witness.

HIS HONOUR: It’s a fair question. I’ll allow it.

PAPPAS: It’s not the purpose of the question, as it will be obvious to your Honour.

HIS HONOUR: I’ll allow it, I said.

PAPPAS: Yes. The problem is, your Honour, as I tried to explain in my earlier exchange with your Honour, fatuous objections are disruptive and unnecessary. (emphasis added)

HIS HONOUR: Thank you, Mr Pappas. Please proceed.”

Mr Howell submitted that this was the second time counsel raised the extent of the prosecutor’s objections and their lack of merit but the Magistrate was indifferent to counsel’s request for assistance. Instead he was hurried on to continue, and the Magistrate “cut off any wider discussion”.
There was no need for wider discussion. Counsel was being offensive. The ruling was made. It was not the time for a speech from counsel.

…

Spurious objections?

The Informant by this time was 17 years old. She gave her evidence by AVL from Western Australia. Her evidence in chief was short. She was cross-examined in a rather maladroit fashion by Mr Pappas. Mr Pappas complained early and frequently that his cross-examination was being interrupted by Sgt Smith deliberately making spurious objections. Having carefully examined the transcript, I do not accept that as a fair statement. Some objections were overzealous, Sgt Smith evidencing a wish to protect the child from what she perceived to be confusing and unfair questions, and some were incorrect and dismissed accordingly, but Mr Pappas seemed to take offence at any objections being made at all.
Umbrage was taken by Mr Pappas to a valid, if not elegantly articulated objection to a circuitous and confusing question early in the cross-examination:

“Q. Do you think then that when you told the prosecutor earlier that at the end of the speech or the speeches you went walking around and just talking to a few people and went towards the back and took a seat with your two friends to consume some food, that that’s something that might have happened a little later in the sequence of events that afternoon?

PROSECUTOR: Objection to “later than what?” It might need to be specified.

PAPPAS: Your Honour, it would be of very great assistance if when my opponent makes an objection she frames the objection either in a form known to the common law or recognised under the Evidence Act and it’s not helpful to make general objections because my friend doesn’t like the way I ask a question, which seems to be the substance of the objection.

PROSECUTOR: The objection is based on the form of the question. He asked a question about a sequence in time without giving a reference to when that time was to be after, and it’s very important that that be articulated.

HIS HONOUR: Maybe it just requires a little bit of clarification, Mr Pappas.

PAPPAS: Very well.

HIS HONOUR: I know what you’re getting at but maybe just phrase it slightly differently.

PAPPAS: I’ll try and perfect the question, your Honour.”

(emphasis added).

This is an example of the approach taken by Mr Pappas to attack Sgt Smith and her skill and experience, rather than just dealing with the substance of the objection in an appropriate fashion. The tone he used was stentorious and lecturing and the content was offensive and belittling. The Magistrate dealt with it in an even-handed fashion.

Further overzealous objections – descent into more personal remarks by Mr Pappas, this time directed to both Sgt Smith and the Magistrate

Shortly after this, the following exchange occurred:

“Q. Now that I have shown you the photograph and asked you all of those questions, do you now remember it or are you still simply willing to accept it happened without having a memory?

A. I remember taking the photo but that’s about it.

Q. I’m asking you I think a slightly different question. Do you now remember the sequence in the way I’ve been putting to you or are you just accepting that that must be the way it happened?

A. I don’t understand the question.

Q. I’ll try and make it clear. I’ve suggested to you that the photograph at the front of the room with Prof Heywood was something that happened before you went walking around, talking to a few people, going up the back, having a seat and eating food with your friends. You follow that?

PROSECUTOR: Objection.

WITNESS: Yes.

HIS HONOUR: That’s a fair

PROSECUTOR: Yes, but it’s a question that’s been asked and answered. Both questions now.

HIS HONOUR: No, I think he’s trying to clarify the question for the witness, so I’ll allow it.

PAPPAS

Q. Do you need me to restate the question, or can you answer it?

A. Could you restate it, please?

Q. Of course. Now that I have drawn your attention to the fact that you were at the front of the room with your friends and you had a photograph taken with Prof Heywood on this afternoon straight after the end of the speeches, do you accept that walking around, talking to a few people, taking a seat up the back with your friends and eating food must have happened after that?

A. Yes.

Q. In accepting that, is that simply because it seems logical or because you now have a memory, me having drawn it to your attention?

A. Because it seems logical.

Q. So, you still have no memory of it independent of any questions I’ve asked. Is that right?

A. I remember taking the photo but yeah.

Q. Well, “But, yeah,” does that mean, “No, Mr Pappas, I’ve got not the slightest memory of the sequence in which things happened,” is that what that meant?

PROSECUTOR: Objection, your Honour, to that. It’s harassing and intimidating of this witness. She’s answered it and now he’s putting forth the statement for an answer. That’s his wording.

PAPPAS: That is just a silly and obstructive objection which your Honour needs to control, with great respect.

PROSECUTOR: Well, your Honour, he’s still bombing the witness.

PAPPAS: There’s been too many of them. There’s been too many of them.

HIS HONOUR: I’m sorry, Mr Pappas. I won’t have any person speak to me like that.

PAPPAS: Sorry, your Honour?

HIS HONOUR: I won’t have any person speak to me like that. [said quietly in a crisp tone]

PAPPAS: Sorry, is your Honour addressing what I’ve just said?

HIS HONOUR: Yes, I do.

PROSECUTOR: Well

HIS HONOUR: I will govern this Court according to the law and according to my experience and with propriety, sir.

PAPPAS: Yes, indeed.

HIS HONOUR: She’s made an objection and you have saw fit to belittle it.

PAPPAS: Yes, I have.

HIS HONOUR: Well, don’t.

PAPPAS: Well, I do so.

HIS HONOUR: Make your reply to the objection.

PAPPAS: I have, and I’ve suggested to your Honour that it is not the first time that an objection has been made without any proper basis.

HIS HONOUR: In this Court, and I don’t know what court you appear in Mr Pappas, but you did say something about not often in this Court, I just remind you in this Court it is not unusual for the prosecutor and for defence attorneys to interject regularly during cross examination.

PAPPAS: I see.

HIS HONOUR: That is what is happening. Perhaps you should become accustomed to that, sir. Ask your question.

PAPPAS: No. With great respect, your Honour

HIS HONOUR: Don’t “with respect” me, sir. Ask your question.

PAPPAS: Your Honour —

HIS HONOUR: I am going to warn you. Ask your question.

PAPPAS: Your Honour, I will not be bullied.

HIS HONOUR: I’m not bullying you.

PAPPAS: You are, your Honour, I’m sorry.

HIS HONOUR: I am asking you to ask your question.

PAPPAS: I have a job to do, and I am asking your Honour to control the conduct of the sergeant who —

HIS HONOUR: She’s made her objection known. What is your response to it?

PAPPAS: My response is there was nothing wrong with the question I asked.

HIS HONOUR: What is the question? That’s what I’m trying to get you to repeat. What is the question? Ask your question.”

(emphasis added)

The tone used in this exchange is important. The Magistrate’s tone was crisp and quiet. It is evident that the Magistrate considered, (correctly), that Mr Pappas was bullying Sgt Smith by using unduly personal and insulting terms to articulate his response to her objection and deliberately insulting the Magistrate’s competence in managing the proceedings. It is important to control the court’s process and to cut short, if possible, poor behaviour by one legal practitioner towards another, particularly where one is counsel of some years’ experience and the person being criticised, and, to an extent, bullied, is a police prosecutor of apparently less experience.
Mr Howell submitted that this exchange demonstrated that counsel was trying to “bring to a head” the fact that the police prosecutor was objecting to questions without any proper basis.
That is an overly generous view of what was occurring here. Counsel was unacceptably rude. I do not accept the Magistrate was ignoring the “substance” of counsel’s complaint although it could have been managed with more equanimity. Counsel’s complaint was exaggerated and overblown.
Mr Howell also complained the Magistrate was patronising, as if to suggest counsel might not understand how objections in the Local Court are dealt with. He submitted that the repetition of “what is the question” was openly mocking Mr Pappas. In using this approach he was simultaneously bullying and berating Mr Pappas.
The exchange was robust and unfortunate. The tone here has begun to shift away from one of maintaining control of the Court’s proceedings, to being overtly critical of counsel. The correction of the unduly personal approach that Mr Pappas had taken was valid as was the request for Mr Pappas to identify his question, but the tone and language used by the Magistrate to achieve that re-direction was beginning a descent towards insult. To say counsel was being “warned” in the context of the exchange, adds to the impression that counsel was doing something very wrong.

…

An objection with no substance, but sarcasm was used by the Magistrate to Mr Pappas

The cross-examination proceeded for a while uneventfully and then a one-hour adjournment for lunch was taken. A short time later after resuming after lunch, the following exchange occurred:

“Q. But you’d accept, I think, that the other adults, whoever they were, were generally to your left?

A. From what I can remember, Brooke Kennedy was in front of me, Brigid Heywood was to my right and that’s all I remember. But the adults, I do not remember where they were standing.

Q. I thought only a second ago you had conceded that they were largely to your left?

A. They could be, yeah.

Q. When you say they could be, is that just a guess, is it?

PROSECUTOR: Just objection, your Honour.

HIS HONOUR: What’s the objection?

PROSECUTOR: The witness answered that she didn’t know where the other adults were and now it was put back to her that a minute ago she said something that she didn’t say, your Honour. So, I’d be saying that that’s misleading and confusing to this vulnerable witness.

HIS HONOUR: What do you want to say, Mr Pappas?

PAPPAS: Sorry, I was just listening to my junior. What was your Honour’s comment?

HIS HONOUR: Sorry, you’ve got other matters to deal with, have you?

PAPPAS: Sorry?

HIS HONOUR: What are you dealing with?

PAPPAS: I can’t hear, your Honour. I’m not being rude; I just can’t quite hear.

HIS HONOUR: I said what do you want to say?

PAPPAS: Thank you, your Honour. The objection has no substance. The witness had made what I suggest to her quite properly was a concession. She then qualified that concession in a later answer and I’m simply seeking to clarify where there is preference for one or the other.

HIS HONOUR: What is the question? Do you want to confer with your junior again about it? What’s the wording of the question?

PAPPAS: Your Honour, I–

HIS HONOUR: Off you go.

PAPPAS: Thank you, I will. The answer that was given was, “They could have been to my left.” I simply asked the witness whether that was a concession that what she had said earlier was accurate, that they were to her left.

HIS HONOUR: Is that what he asked, Prosecutor?

PROSECUTOR: No.

HIS HONOUR: It’s not my record of what he asked.

PAPPAS: And I–

HIS HONOUR: Ask your junior what you actually did ask.

PAPPAS: I asked whether it was a guess, your Honour.

HIS HONOUR: No, you didn’t. Ask your junior what the wording was.

PAPPAS: No, I don’t intend to do so, thank you, your Honour.

HIS HONOUR: Conference with your legal team, sir. I run this Court, not you.

PAPPAS: I will withdraw.

HIS HONOUR: Withdraw the question, thank you.

PAPPAS: I withdraw the question.

HIS HONOUR: I’ve made a note of it.”

(emphasis added)

Mr Howell submitted this exchange was sarcastic and belittling and that it implied counsel was incompetent. I agree that is an available interpretation and a fair-minded lay observer may well hold that view.
There was then the following exchange immediately after:

“PAPPAS

Q. When you were at the front of the room and you were facing Brooke Kennedy, you specifically remember that Prof Heywood was to your right? Is that right?

A. Yep.

Q. How close was Prof Heywood to you?

A. I don’t remember how close, but she was standing to my right.

Q. Was she within arm’s reach of you?

A. Yes.

Q. Were there any other people to your right that you noticed?

A. I don’t remember.

Q. When Prof Heywood spoke in the way you’ve described, did you look at her?

A. I don’t recall if I looked at her, but I definitely heard her.

Q. Is it possible, do you think, that you looked at her, turned to look at her?

PROSECUTOR: Objection. Asked and answered.

HIS HONOUR: Yes, we’re getting close to s 40, but ask it again. Can you remember the question, Mr Pappas, this time?

PAPPAS: Yes, I can, your Honour.

HIS HONOUR: Well, ask it again.

PAPPAS: There is absolutely no need for your Honour to be rude to me.

HIS HONOUR: I’m not being rude to you.

PAPPAS: Your Honour is being gratuitously rude.

HIS HONOUR: But you seem to entirely rely on your junior to remind you what the question was.

PAPPAS: No, your Honour is being gratuitously rude and it’s not necessary.

HIS HONOUR: I’m not being gratuitously rude. I just asked you to remember what the question is so that we can debate whether it’s a valid question or not.

PAPPAS: Yes.

HIS HONOUR: Move on.

PAPPAS: Now your Honour is raising your voice and shouting at me.

HIS HONOUR: I’m not being – I’m just asking you to move on.

PAPPAS: Your Honour is shouting at me.

HIS HONOUR: I apologise, Mr Pappas but I am probably going to warn you under s 40 unless you pull this together. First warning. Proceed.

PAPPAS: Sorry, I don’t understand a first warning.

HIS HONOUR: I think you’re getting very close to being in breach of that Evidence Act provision that precludes you asking questions that are harassing and intimidatory in nature given this is a young person who clearly on her evidence has had some issues since this alleged offence occurred. First warning, Mr Pappas. Proceed.

PAPPAS: Your Honour, there is

HIS HONOUR: Proceed or I’ll ask you to be removed from the Court. Proceed.”

(emphasis added)

Mr Howell submitted that the sarcasm deployed by the Magistrate in: “Sorry, you’ve got other matters to deal with, have you?” was belittling and further called the conduct and competence of Mr Pappas into question. The suggestion Mr Pappas should be physically removed is unambiguous and humiliating.
The tone was deeply sarcastic and critical. A fair-minded lay observer might reasonably conclude that the Magistrate was taking a very dim view of Mr Pappas’s skills, probity and attention to his task. The exchange then deteriorated to a “push and shove” between Mr Pappas and the Magistrate, ending with a threat that Mr Pappas will be removed if he does not “proceed”.
This is frankly a shocking suggestion and has well crossed the line from a “short emotional exchange” into something entirely more serious.
The cross-examination of the Informant then continued as follows with an unfortunately phrased question at the end that prompted derision from the Magistrate:

“PAPPAS

Q. Do you think it is reasonably likely that when someone spoke to you, that is Prof Heywood spoke to you, you turned to face her?

A. I don’t remember.

Q. When you went outside and spoke to your friends, your evidence before lunch was that you spoke to both of them together?

A. Yes.

Q. Do you know what the word, “Demeanour,” means?

A. Not quite.

Q. How were you at that stage? Were you visibly upset; do you think?

PROSECUTOR: Objection. Your Honour, she can’t comment on whether she was visibly upset.

HIS HONOUR: Yes, of course she can’t. Why don’t you ask a question she can answer. Was she upset? Was she crying?

PAPPAS: Would your Honour–

HIS HONOUR: Visibly upset is not something she can answer. Just think about it, Mr Pappas.

PAPPAS: I am thinking about it, your Honour. I’ve been doing this for a very long time.

HIS HONOUR: Apparently.

PAPPAS: Well, your Honour

HIS HONOUR: Just move on and ask the question in a way in which she can answer.

PAPPAS: No, I will not be bullied and moved on. Your Honour

HIS HONOUR: Ask the question in a way this witness can answer it.

PAPPAS: Your Honour is making this an impossible task by your Honour’s constant interaction with me in this fashion.

HIS HONOUR: With respect, Mr Pappas, it’s you that is making it a difficult task.

PAPPAS: No, not so, sir.

HIS HONOUR: When you ask – yes, you are, with respect. Ask the question, please.

PAPPAS: Prefacing it with, “With respect,” doesn’t make it a fairer hearing.

HIS HONOUR: That’s what I said to you earlier on.

PAPPAS: Yes.

HIS HONOUR: Just ask the question, Mr Pappas.

PAPPAS: I seek the indulgence of a short adjournment to take instructions, please, your Honour.”

(emphasis added)

Mr Howell submitted that the Magistrate was openly mocking counsel. He was. There was contempt for counsel’s ability to ask an adequate question.

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Ground 3 – the wrong legal test was applied

The judgment thoroughly deals with the matters raised, but unfortunately mis-states the relevant test for apprehended bias at a number of places. As correctly submitted by Mr Howell, the Magistrate conflated the test for disqualification on the ground of apprehended bias, with that of actual bias.
First, his Honour says in the context of dealing with the treatment of Mr Taylor in requiring him to hurry sending the documents to Rockingham as opposed to allowing the Prosecution time for Senior Constable Jordan to be located, his Honour asked, rhetorically: “Would they form a view that it was demonstrative of a bias or an apprehension of bias, on my part? I doubt it”. (Emphasis added).
Second, in the judgment his Honour denied bullying Mr Pappas – which was one of the accusations Mr Pappas rather volubly made – and denied that he sought to demean Mr Pappas, stating that “my objective was to ensure that the trial proceeded in as orderly a way as it could, and that the defendant has a fair hearing”. His Honour then mentioned the prolix cross-examination and noted that a lot of questions were not the subject of objection but were probably irrelevant questions. These are all reasonable observations to make, but the issue is not the intention of the judicial officer, but how what he says and does might be perceived by the fair-minded lay observer, and that was not addressed.
Third, his Honour says: “… the combination of things said to result in me holding his legal team in contempt. I do not hold them in contempt”. The subjective position of the Magistrate is irrelevant to the determination of apprehension of bias. In the context of the personal tone of the attack made by Mr Pappas, the direct response by his Honour to this particular accusation is understandable, but it adds to the impression, in the way deployed here, that the focus of his Honour was on actual not apprehended bias.
Fourth, later in the judgment his Honour says the following in the context of discussing “robust exchanges”:

“… well maybe I did raise my voice at times and maybe I was a bit intemperate in that regard but would a reasonable person observing the cut and thrust of the Local Court think that that was indicative of bias toward the defendant? I have indicated no bias towards the defendant all in the proceedings.” (Emphasis added).

This is clearly an articulation of the wrong test. The test is not “would” a reasonable person think this “was” indicative of bias; it is “might” a fair-minded person reasonably think his Honour “might” not bring an objective mind to the determination of the issues.
Finally, his Honour concluded that he does not think there is any reason why he should recuse himself without at any point in the judgment ever addressing the correct test.
Mr Deards on behalf of the second defendant submitted that in the context of counsel’s submissions reflecting the language of actual bias, it was not unreasonable for the Magistrate to contextualise his response using that language. He was accused of “deliberately” taking a course, “unfairly making orders” and that he had personal animus to Mr Pappas. He submitted that when the totality of reasons are considered, his Honour understood and appropriately considered the basis of the application.
Mr Deards submitted that his Honour was in effect in his reasons rejecting that there was any reasonable connection between the alleged state of mind he held, and an apprehension that he would not decide the case on its merits. This Court should make allowance the fact that this was an ex tempore decision in a busy Local Court list with an extremely heavy workload, and read the reasons fairly, making due allowance for the circumstances and not to overly scrutinise them: Roylance v Director of Public Prosecutions (NSW) [2018] NSWSC 933 at [13] per Bellew J. The application was also made without notice.
Mr Deards submitted that, properly constructed and read in totality, it is clear that the Magistrate applied the test in Ebner and decided the question with reference to what the fair-minded lay observer might think.
Unfortunately, nowhere in his Honour’s decision does he articulate the correct test, and in at least four different places, he articulated the test for actual bias. A fair and beneficial reading of the judgment as a whole cannot remedy that fundamental problem.
I acknowledge that the objective application of this particular test can be a challenging task for a presiding judicial officer to perform, particularly during the time pressures of a very busy list in the Local Court and the ups and downs of a hearing. His Honour had an apparently inexperienced police prosecutor, emotive subject matter, (allegations of racism and abusive conduct to a child), a young witness being cross-examined in an obtuse and repetitive fashion, and rude, offensive and truculent behaviour by defence counsel. However it is a task that must be done, and time must be taken to ensure it is done with focus on the appropriate test, and unfortunately here it was not. There was equanimity and patience extended to Sgt Smith at all times. Not so, Mr Pappas.
Mr Howell’s submissions on this point are correct. Ground 3 of the summons is established and that ground of judicial review succeeds.

Ground 2 – was the Magistrate in error in refusing to disqualify himself at the time of the judgment

Ground 2 of the summons raises the issue of whether at this stage, his Honour should have disqualified himself on the ground of apprehension of bias.
Mr Howell submitted that the reasonable fair-minded lay observer might conclude that the exchange set out at [63] and the suggestion that Mr Pappas would be “removed” from the Court if he did not “move on”, was the result of Mr Pappas pursing an unmeritorious case in an untrustworthy fashion that was so bad that despite being a barrister, he should be physically removed from the Court. There is a logical connection between that attitude (by that stage clearly demonstrated given the exchanges that had gone before) and the possibility of a feared deviation from deciding the case on its merits given the extreme nature of that threat.
Mr Deards argued that nothing complained of rose above “robust debate”, and that the terse tone was occasionally directed to both Mr Pappas and the police prosecutor and the fair-minded lay observer would take that into account.
In support of this submission, Mr Deards referred to GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) [2013] FCAFC 150:

“[33] … It is well established that it is for the judge assigned to hear the matter to decide whether he or she should withdraw for apprehended bias. The test formulated by the High Court assumes that, in the first instance, it will be applied by the judge concerned: Dr Melissa A Perry, Disqualification of Judges: Practice and Procedure, Discussion Paper (Australian Institute of Judicial Administration, 2001) at [2.39]. As the plurality observed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [74], “the ordinary, and the correct, practice” is for the judge to decide the matter for himself (or herself, as the case may be). …

…

[47] As in Concrete, the debate between bench and bar was robust and at times, the primary judge used emphatic language. But this would be readily understood by the fair-minded lay observer as part of the process of understanding and testing counsel’s arguments with a view to reaching the right decision on the application before him as quickly as possible. The primary judge made that clear at various times during the exchange, for example at T44:4–6 (“I just want to articulate it to you so you can see where my mental block is coming from if I’m getting it wrong”) and T93:17 (“I’m trying to tease out with you so I can understand — make sure I understand your case as best my frail mind can, and understand Ms Howard’s case and work out what the answer I’ve got to give about it is”).”

Those principles are no doubt correct, but “robust debate” is not what was occurring here. There was by this stage not “testing of counsel’s arguments”, but admonishments, insults and threats directed to Mr Pappas.
Mr Deards also relied on this quote from Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872:

“[81] Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230:

While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283.

As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.”

What occurred here was by this stage unfortunately more in the nature of “sustained ill-temper”, rather than “momentary outbursts and misunderstandings”. The focus of the ill-temper was on Mr Pappas.
It is not to the point to argue that Mr Pappas “gave as good as he got”. Mr Pappas’s behaviour was rude, defensive and obnoxious but the Magistrate has a deep-seated obligation to ensure the outer signs of impartiality are exhibited at all times, and to deal with the legal representatives for both sides in an even-handed fashion. If there is a slip into misunderstanding or outbursts of temper or annoyance, there is a need to ensure that they do not recur.
In my view by that stage there was sufficient material, when considered cumulatively along the lines set out in Gaudie, to satisfy the test that a fair-minded lay observer might reasonably conclude that the Magistrate might not bring an objective mind to the issues for determination. The fact that the Magistrate says he will be impartial, or that I personally think he will be impartial, is not the test.
Grounds 2 and 3 of the summons have been established, however I have proceeded to consider the transcript of the submissions about balance of the hearing, as requested by Mr Howell. It is appropriate that I consider whether there was any withdrawal, apology, improvement or re-balancing that occurred in the hearing after this stage that could serve to correct or modify any perceptions reasonably held by the fair-minded lay observer. As I have explained in the following part of this judgment, there was not.

…

6 July 2023 – third day of hearing

…

His Honour adjourned at 2:00pm for half an hour.
At 2:35pm Mr Pappas raised an issue in respect of documents he had only recently been given which he said that he needed to review before he could further cross-examine the Informant. He also raised matters regarding travel arrangements for his team:

“PAPPAS: 2.35pm and it’s now 2.36pm, a copy of the outstanding COPS entry. I haven’t looked to see how many pages it is in total because it’s not sequentially numbered but it appears to be about 20-odd pages of material. On a quick perusal of it some of it may be relevant but I’ve not had an opportunity to read it, neither have I had an opportunity to discuss it with my instructing solicitor or with my junior counsel as to how, so I’d seek some moments, perhaps not a long time but some moments to look at that.

HIS HONOUR: Yes.

PAPPAS: The other matters are more administrative than that. I know of course I’ve already alerted your Honour in general terms to the difficulties in sitting on this afternoon beyond what might be thought the usual court hours and I’ve indicated to your Honour that all three legal practitioners at the defence end of the Bar table are booked on the same flight out of Armidale at 4.55pm this evening. What I didn’t know, and I now indicate to your Honour is this. My instructing solicitor, Mr Taylor, has not only a flight from here to Sydney this afternoon but a flight from Sydney to Perth where he has an office. He is due to meet his wife in Perth and he understands, through correspondence with his wife, that their children who are travelling with her are both sick. I don’t know more about that illness at this stage but obviously in those circumstances he would be very concerned to make the connection from Sydney to Perth if at all possible this evening.

My junior, Mr Howell, also has a wife and three children. He was expected home this evening and indeed to appear in the Court, and I haven’t asked which court, Liverpool Local Court tomorrow in a matter that is listed for hearing. In those circumstances I renew the suggestion with great respect to your Honour that it would be appropriate to sit until the normal close of business to afford each of the legal practitioners including myself the opportunity of getting to the airport. I understand that takes about 15 minutes. We’re all prebooked on the flights so that we could in essence arrive at the airport at the last moment so that we can meet our normal professional and other obligations. There was never any suggestion made that the matter would somehow extend beyond what would be regarded as normal court hours and with great respect to your Honour to require more of the legal practitioners is simply unreasonable. The demands being placed upon the defence team are, in a broad sense, unreasonable and I ask your Honour to reconsider the position which you rehearsed with me earlier.

HIS HONOUR: Which was what?

PAPPAS: Which was, as I understand it, your Honour will sit on beyond the normal court hours to some–

HIS HONOUR: Yes. I probably will. Yes.

PAPPAS: –to some unspecified time.

HIS HONOUR: Yes.

PAPPAS: Is your Honour not prepared—

HIS HONOUR: I think the practitioners, there’s a flight tomorrow morning, there’s a flight later tonight. It’s not my problem.

PAPPAS: No. It’s not your Honour’s–

HIS HONOUR: We’ve got a witness on-screen who’s two hours behind us. I propose to allow her to give her evidence until 3 o’clock her time which is 5 o’clock the time here. Thank you.

PAPPAS: Your Honour–

HIS HONOUR: Thank you, Mr Pappas. I hear what you say.

PAPPAS: Thank you, your Honour.

HIS HONOUR: Prosecutor, do you wish to be heard on this topic?

PROSECUTOR: No, your Honour.

HIS HONOUR: Thank you.

PAPPAS: Has your Honour had the opportunity now to consider your position in relation to the matter I raised with you earlier about repeated objections from the prosecution end of the Bar table?

HIS HONOUR: I thought about it. Yes.

PAPPAS: Does your Honour–

HIS HONOUR: No. I don’t. I thought about it. I’m sure the prosecutor hears what you say.

PAPPAS: Well, she’s been hearing it since Tuesday, and it made not the–

HIS HONOUR: Thank you, Mr Pappas.

PAPPAS: No. Sorry, your Honour–

HIS HONOUR: Why do you want always to over-speak to me?

PAPPAS: No. I don’t, your Honour.

HIS HONOUR: Thank you, Mr Pappas. I have thought about it.

PAPPAS: Why does your Honour always cut me off like that?

HIS HONOUR: I’m not.

PAPPAS: You are.

HIS HONOUR: I’ve thought about it. You’re the cutting offer, sir.

PAPPAS: All right.

HIS HONOUR: With respect, you’re the cutter offer. Just please resume your seat. Prosecutor, we need the witness on the screen.

PAPPAS: Your Honour, I wish–

HIS HONOUR: Thank you. I will consider it and if it’s appropriate I will say something to her. To date it has not been appropriate. Thank you, Mr Pappas.

PAPPAS: Thank you, your Honour.”

(emphasis added)

Mr Howell submitted that this exchange shows a deliberate choice to leave counsel in a state of uncertainty as to when the hearing would adjourn for the day, knowing this affected Ms Heywood’s team and no one else. The hostility to counsel was palpable, and the refusal to raise with Sgt Smith the frequency of her non-meritorious objections continued.
Shortly after, this exchange occurred:

“PAPPAS

Q. If you let the laughing out of any account of what you say happened on that day, can you think of any reason why you would do so?

A. I was under a lot of emotional distress. I was going through a lot after I was racially assaulted at the event and so that could definitely be a factor.

Q. Would you agree with the proposition that laughter combined with apparently hurtful words can indicate that the speaker of the words did not mean to wound or hurt but was meaning to do something different?

PROSECUTOR: Objection.

HIS HONOUR: Yes. What do you want to say, Prosecutor?

PROSECUTOR: That’s asking an opinion, a supposition. That’s not asking a question of–

HIS HONOUR: Yes. I agree with that. Move on. I don’t allow that question.

PAPPAS: Would your Honour hear me?

HIS HONOUR: Yes. What do you want to say?

PAPPAS: It’s not asking for an opinion. It’s asking for this witness’s understanding of the use of the English language, nothing more. Whether she has an understanding that sometimes an apparently hurtful expression accompanied by laughter might not be received or understood as a hurtful expression.

HIS HONOUR: What do you want to say, Prosecutor?

PROSECUTOR: That’s exactly what I’m saying, your Honour. She can’t say an opinionated response.

HIS HONOUR: I don’t know where it takes us anyway, Mr Pappas. What’s the relevance of that question?

PAPPAS: The relevance is, as the witness has said, her recollection is of laughter accompanying these words.

HIS HONOUR: That’s her evidence. Yes.

PAPPAS: I’m entitled, with respect, to explore whether her understanding of language at that time was such that perhaps she misunderstood what was being said and done on her own version, not accepting the version to be accurate but on her own version.

HIS HONOUR: What’s the question?

PAPPAS: Now we’re back in that line of country, your Honour.

HIS HONOUR: I beg your pardon.

PAPPAS: We’re back in the line of country about what I–

HIS HONOUR: What is the question?

PAPPAS: Your Honour, please, may I respond to you rather than be hectored with, “What is the question? What is the question?”

HIS HONOUR: Yes.

PAPPAS: Thank you. What happens continuously is that an objection is made, I have a debate of sorts with your Honour and then your Honour retorts, “What is the question?” It’s a very difficult way to proceed. I’ve not encountered it in many years of practice, ever.

HIS HONOUR: Sure.

PAPPAS: It seems to be unique to your Honour.

HIS HONOUR: I’m just asking you what the question is. What is the question?

PAPPAS: Sorry. I’m now leaning to my left to speak to my junior. It doesn’t help that your Honour then repeats, “What is the question?” In a demanding voice. I’ll withdraw the question, your Honour. I’ll ask it again. It’s so much easier.

Q. Ms [REDACTED], was it your experience in March 2022 that sometimes apparently hurtful words spoken accompanied by laughter on the part of the speaker might be understood differently, that is not as hurtful words but as jocular words?

PROSECUTOR: Objection, your Honour.

HIS HONOUR: We’ve had the objection. I’ll allow the question. I asked him what the question was. He’s now reiterated the question and I’m allowing the question to be asked.

PAPPAS

Q. Ms [REDACTED], do you recall the question I’ve just asked you?

A. Yes.

Q. Was that your experience in about March 2022?

A. No.”

(emphasis added)

Further cross-examination proceeded in an apparent attempt by Mr Pappas to obtain a different answer from the Informant. Sgt Smith objected and the Magistrate ruled on the objection:

“Q. So, you could think of no circumstance in which someone might say something apparently hurtful but laugh at the same time, not meaning to be hurtful?

PROSECUTOR: Objection, your Honour.

AUDIO VISUAL LINK DEACTIVATED

HIS HONOUR: Why don’t you ask a clear question, Mr Pappas?

PAPPAS: Yes. Thank you, your Honour.

HIS HONOUR: It’s not clear at all what that question gets at.

PAPPAS: Thank you.

AUDIO VISUAL LINK ACTIVATED

Q. Ms [REDACTED], you understood in March 2022 that laughter very often accompanied someone playing a prank or telling a joke, that sort of thing, didn’t you?

PROSECUTOR: Objection.

HIS HONOUR: Why do you object to that?

PROSECUTOR: We’re asking what she affiliates with a prank or a joke, that laughter is something that happens with a prank or a joke and that’s simply not true. It’s a misguided question.

HIS HONOUR: He’s just asking for her view.

PROSECUTOR: Sorry?

HIS HONOUR: He’s just asking for her view. I think that’s a fair enough question. I can’t see where it takes us but ask the question, Mr Pappas.

PAPPAS: Will your Honour hear me again about–

HIS HONOUR: I’m allowing you to ask the question.

PAPPAS: Yes. I understand that. I’m seeking to re-agitate with you the matter that your Honour has been thinking about.

HIS HONOUR: I’m sure the prosecutor hears what you say.

PAPPAS: That doesn’t have–

HIS HONOUR: Please proceed, Mr Pappas.

PAPPAS: It doesn’t have any effect on the prosecutor, your Honour, without your Honour exercising the control that you have as the–

HIS HONOUR: Prosecutor, do I need to tell you that questions that you object to should be based on reasonable grounds?

PROSECUTOR: No, your Honour, and–

HIS HONOUR: Thank you.

PROSECUTOR: –all my objections are that way.

HIS HONOUR: Thank you, Mr Pappas.

PAPPAS: Thank you, your Honour.”

(emphasis added)

Mr Howell submitted that this was a “parody” of redirecting Sgt Smith and would be seen as such by a fair-minded lay observer. He submitted that it would also be seen as encouragement to her to proceed as she had been doing.
I do not accept that is the only way the exchange might be viewed, but I accept a fair-minded lay observer might reasonably see it that way.
A short time later, objection was taken to an inept and confusing line of questioning, but Mr Pappas launched another assault on Sgt Smith’s probity and skill and the Magistrate’s competence in the way that he had been presiding and controlling the proceedings:

“Q. But, if I said, “You’re a mop-headed idiot,” and I laughed as I said it or even after I said it, you wouldn’t necessarily regard it as insulting of him, would you?

A. Sounds like you’re bullying him.

Q. But you wouldn’t necessarily regard it as a serious insult, would you?

PROSECUTOR: Objection, your Honour.

HIS HONOUR: She’s answered the question.

PROSECUTOR: She’s answered that question.

HIS HONOUR: She says she regards it as you bullying him. Please proceed.

PAPPAS: Your Honour, I can’t continue with this cross-examination with the constant interruptions that I’m suffering and your Honour’s–

HIS HONOUR: I have warned the prosecutor. She understands the position. She is prosecuting this case. She has her professional obligations. I can do no more than that. Please move on.

PAPPAS: Well, there is more your Honour can do.

HIS HONOUR: What can I do?

PAPPAS: Your Honour has power under s 27 and 29 of the Evidence Act 1995 to control the conduct in the same way your Honour purports to control my conduct in court, and I’m inviting your Honour to do so because we’ve now got to the point where this has gone on and on and on.

HIS HONOUR: That’s quite so, sir. I agree. It’s going on and on and on.

PAPPAS: Yes. I know what your Honour means by that, that–

HIS HONOUR: Which is exactly how it has been. Yes.

PAPPAS: –the subtext is, “Yes. Mr Pappas, it’s you that’s dragging it on and on and on.”

HIS HONOUR: It’s quite possible.

PAPPAS: That’s what your Honour is saying to me.

HIS HONOUR: It’s quite possible.

PAPPAS: I’m not ignorant of your Honour’s inference.

HIS HONOUR: It’s quite possible.

PAPPAS: Your Honour’s animosity towards me is palpable.

HIS HONOUR: I have no animosity towards you.

PAPPAS: Your Honour clearly does.

HIS HONOUR: Come on.

PAPPAS: Clearly does. I know your Honour wishes to deny that.

HIS HONOUR: Mr Pappas, I don’t even know who you are. Please proceed, Mr Pappas.”

(emphasis added)

Mr Howell submitted that his Honour’s disdain for counsel is clear from the sarcastic comments: “That’s quite so, Sir. I agree. It’s going on and on”. The comment was snide, and implied counsel’s cross-examination was inappropriately long.
In the context of asking for time to review the COPS material produced at 2:35pm that day, the following exchange occurred, with the Magistrate deploying a noticeably icy and sarcastic tone:

“PAPPAS: … could we have a moment to look at that or a few moments to look at that COPS material?

HIS HONOUR: Sure. You’ve got your taxis, have you?

PAPPAS: Sorry, your Honour?

HIS HONOUR: Are you booking taxis?

PAPPAS: No. Not at all.

HIS HONOUR: We’ll just bat on then. Thank you. I thought you were wanting to get away.

PAPPAS: I do. Is your Honour saying that we can?

[The words: “It’s unbelievable” are muttered by Mr Pappas able to be heard on the audio file, but it is unclear whether this was able to be heard in Court]

SHORT ADJOURNMENT.”

(emphasis added)

Mr Howell submitted that this broadened the cynicism that his Honour had displayed to Mr Pappas, to all three of Ms Heywood’s legal representatives. Mr Howell submitted that the comment was gratuitous, unfair and indicative of contempt for the honesty and professionalism of those legal representatives.
I agree that is an available interpretation of those comments and one that a fair-minded lay observer may reasonably make.
After a short adjournment, the following exchange ensued:

“HIS HONOUR: Yes?

PAPPAS: Thank you, your Honour. Just for absolute certainty, your Honour referred, as you departed the Bench, the ordering of taxicabs. No such taxi cabs have been ordered because of your Honour’s earlier indication but–

HIS HONOUR: I thought you said Mr Taylor had sick children.

PAPPAS: Yes. And he will be departing shortly but Mr Howell and I are trying to rearrange our life to be here for as long as your Honour wants to sit. But I thought I should inquire because it seemed to be implied that someone at least would be permitted to depart.

HIS HONOUR: If he’s got sick children I can’t see any reason why I wouldn’t allow him to depart.

PAPPAS: I’d asked your Honour to give that indication earlier and your Honour specifically did not.

HIS HONOUR: I just gave it when I walked out just a minute ago, put the taxis–

PAPPAS: No. Your Honour mumbled something as you walked out that left us all in doubt as to what was intended,

HIS HONOUR: Thank you, Mr Pappas. Thank you, Mr Pappas.

PAPPAS: Is it the situation that Mr Taylor has your Honour’s permission to withdraw?

HIS HONOUR: Indeed.

PAPPAS: Thank you. Yes. All right.

HIS HONOUR: When are you leaving, Mr Taylor?

PAPPAS: Mr Taylor will leave in time to get to the airport, your Honour.

HIS HONOUR: But I need to address him before he leaves so when is he leaving?

PAPPAS: I see. I didn’t quite understand that your Honour wished to address him.

HIS HONOUR: I don’t need to address him. I just need to talk to him because I will inquire of you, Mr Taylor, through you, Mr Pappas, that you provide to this Court the availability of senior counsel, junior counsel and yourself for the rest of this year and through to 30 June next year so that I can set an adjournment date for these proceedings, and I require that you do that by close of business Monday.

PAPPAS: Your Honour can make those directions through me. There is simply no–

HIS HONOUR: Before he goes, Mr Pappas, he is your instructing solicitor–

PAPPAS: No. Your Honour, seriously there is simply no reason why, apart from your Honour’s desire to intimidate Mr Taylor, that you would require him to stand up while you address him in that way.

HIS HONOUR: Require him to stand up? I just said–

PAPPAS: Your Honour did. It’s all very well to nod and smile and say that’s–

HIS HONOUR: Mr Taylor, are you prepared to do what I have asked?

PAPPAS: Your Honour, please address me.

HIS HONOUR: I said through you.

PAPPAS: No. Your Honour is looking directly at Mr Taylor.

HIS HONOUR: Mr Pappas, would you ask your instructing solicitor–

PAPPAS: It’ll be done.

HIS HONOUR: –whether he’s prepared to do that?

PAPPAS: It’ll be done.

HIS HONOUR: Thank you.

PAPPAS: Thank you.

HIS HONOUR: Close of business Monday.

PAPPAS: Yes. That’s fine. That can be done.

HIS HONOUR: Mr Taylor, before you go, through you, Mr Pappas, would you ask him that he is to appear on-screen here, he can appear by way of AVL to fix this hearing date? Mr Pappas, through you Mr Taylor is to provide available dates for senior counsel, counsel and himself for the balance of this year and through 30 June 2024 by close of business on 10/7 and he is to appear by way of AVL on 14/7/2023 to fix a new hearing date.

PAPPAS: At what time, your Honour, on that AVL appearance?

HIS HONOUR: 9.30.

PAPPAS: Thank you.

HIS HONOUR: I’ll deal with this when I get to it but 9.30 is the usual day that Court starts, the time that Court starts.

PAPPAS: Thank you, your Honour.

HIS HONOUR: Yes?

PAPPAS: Thank you, your Honour.”

(emphasis added)

This was, in my view, an example of Mr Pappas “picking a fight” with the Magistrate. Contrary to the submissions Mr Pappas made, the Magistrate did not ask [the appellant, Ms Heywood’s, solicitor] Mr Taylor to stand. Mr Taylor was leaving. It is not unusual for a judicial officer to look at a solicitor who is being asked, through counsel, to make certain arrangements. By this time Mr Pappas was, in my opinion, actively looking for matters to complain about, but nevertheless, in end result, the nature of the exchange added some fuel to the perception that a fair-minded lay observer may have that the Magistrate considers the legal team to be dishonest and incompetent and the defence case potentially affected by that dishonesty and incompetence, and so requiring different and more scrutiny than the prosecution case.
Some nine pages of transcript later, the cross-examination of the Informant was completed. There was no re-examination and she was excused. There was then a courteous exchange regarding available dates and proceedings were adjourned to 14 July 2023 for the purposes of fixing a further hearing date.

Decision in respect of Ground 1

The test for apprehended bias has been met. The conduct of the Magistrate after the refusal of the recusal application did not change. No comments were re-visited or retracted with the new day. There was unfortunately more sarcasm and criticism directed to Mr Pappas.
With respect to his Honour’s attitude and dealings with Mr Pappas, a fair-minded lay observer may have noted, (amongst other things), that the cumulative effect of his exchanges with the Magistrate suggested that his Honour held a dim view of Mr Pappas. Various comments suggested his Honour thought Mr Pappas to be incompetent, rude, discourteous and a time-waster. Whether this is an accurate view for his Honour to hold or not, his Honour on occasion belittled, derided, hurried, harassed, “warned” and at one point threatened counsel with physical removal from the Court. By day three, a fair-minded lay observer might have thought the Magistrate was contemptuous of Mr Pappas.
His Honour effectively rebuffed concerns raised by Mr Pappas during the hearing about the overly zealous objections being taken by Sgt Smith. The way Mr Pappas chose to voice his concerns was offensive, supercilious and unprofessional, but the initial even-handedness of the Magistrate evaporated and gave way to sarcasm and belittling of Mr Pappas.
Mr Howell submitted that the totality of the issues that have arisen and the Magistrate’s conduct in this case to date, might lead a fair-minded lay observer to think that the Magistrate bore significant animus towards Ms Heywood’s solicitor and counsel. I accept that submission.
I also accept Mr Howell’s submission that the fact that the Magistrate’s hostility was directed towards Ms Heywood’s legal representatives and not her personally is not to the point: see Adacot v Sowle [2020] FamCAFC 215 at [102] (per Strickland, Ainslie-Wallace and Watts JJ). His conduct towards Mr Pappas has the appearance of either unfairness in the exercise of power by him, or exhibiting a concern that counsel, and therefore his client, were worthy of derision and so submissions made by him and cross-examination of witnesses conducted by him was not worthy of consideration.
Mr Howell submitted that by contrast, a fair-minded lay observer might think his Honour held no animus whatsoever towards Sgt Smith, and in fact enjoyed a good working relationship with her. He afforded her “preferential treatment” (allowing her to re-mention a return of subpoena by simply walking into Court); discussed matters with her in the absence of the plaintiff’s legal representatives; did nothing to discourage her from taking what became a chronicle of unjustified (and at times inchoate) objections to questions asked by counsel in the course of the hearing; made no disparaging comments towards her performance as an advocate; imposed no arbitrary or unreasonable time limits on her; and at all times extended to her courtesy and respect in the manner in which he spoke to her.
Whilst somewhat over-stated, I have concluded that this last submission has some fundamental truth and that attitudinal contrast would have been noticed by a fair-minded lay observer.
Mr Howell submitted that a fair-minded lay observer might think that such apparent prejudice and partiality might lead the Magistrate to decide the case other than on its legal and factual merits. I agree. The logical connection between the matters identified, and the feared deviation from the course of deciding Ms Heywood’s case on its merits is present here because of the cumulative effect of those factors I have gone over which were only reinforced as the hearing proceeded.
The perception of impartiality is the fundamental matter that the law in respect of apprehended bias protects. Here, the cumulative effect of what has occurred in this case supports a conclusion that a fair-minded lay observer may reasonably apprehend that given the Magistrate’s apparent animus, contempt and disdain for Ms Heywood’s counsel, and to a lesser extent, her solicitor, he might be unable to put aside a mindset unfavourable to Ms Heywood to a degree compatible with the dispassionate resolution of the case against her. His Honour’s conduct as it developed over the three days of the hearing did nothing to dispel that impression. The remarks went well beyond case management, occasional flares of ill-temper, misunderstandings or redirection of counsel to relevant issues.
I note the submissions of Mr Deards regarding discretionary matters. He submitted that if the relief sought in the summons is granted, the child Informant will be required to give evidence again and there has been a waste of court time and resources. He also referred to the general undesirability of fragmenting of criminal proceedings. I accept those considerations are important and are of relevance and concern, but they are not sufficient to persuade me that the relief sought should not be granted.

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(emphasis in bold in original; emphasis in underlining added)

A full link to the decision may be found here.