Colquhoun v Magistrate Guy

[2010] NSWSC 235

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Colquhoun v Magistrate Guy [2010] NSWSC 235
Hearing dates:	29 March 2010
Decision date:	01 April 2010
Jurisdiction:	Common Law
Before:	Davies J
Decision:	(1) The summons is dismissed.  (2) The Plaintiff is to pay the Second Defendant’s costs.
Catchwords:	ADMINISTRATIVE LAW - prerogative writs and orders - certiorari and prohibition - bias alleged against Magistrate - bias based on evidentiary and other rulings.
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Criminal Procedure Act 1986
Cases Cited:	Lake Macquarie City Council v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263 Livesey v NSW Bar Association (1983) 151 CLR 288 Mikhael v Conroy & Smith (unreported – Finlay J – 6 December 1990; BC 9002962) Re JRL Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Webb v R (1994) 181 CLR 31 Wentworth v Wentworth (unreported – Santow J – 6 February 1998)
Category:	Principal judgment
Parties:	Darren Mark Colquhoun (Plaintiff) Magistrate Ian Guy (First Defendant) Director of Public Prosecutions (Second Defendant)
Representation:	Counsel: In person (Plaintiff) Submitting Appearance (First Defendant) J A Girdham (Second Defendant)   Solicitors: Crown Solicitor's Office (Second Defendant)
File Number(s):	SC 2009/298056

Judgment

1. Darren Colquhoun was charged with the common assault of his daughter and pleaded not guilty. The matter was heard before his Honour Magistrate Ian Guy sitting at the Local Court in Wollongong on 29 May 2009.

2. On that day his Honour found the offence proven and stood the proceedings over for sentence to 27 July 2009. On 19 June 2009 Mr Colquhoun filed a summons in this Court seeking, in effect, an order quashing the finding and directing a retrial before another magistrate. The summons also sought that the Magistrate be disqualified from hearing any matter relating to Mr Colquhoun or his family again.

3. That summons led to the proceedings in the Local Court being adjourned on a number of occasions, and most recently until 20 April 2010 to enable this Court to give judgment on summons.

4. The basis for the orders sought is said to be that the Magistrate pre-judged the hearing and was clearly biased.

Background

5. The charge ultimately arose out of the breakdown of the relationship between Mr Colquhoun and the mother of the daughter who he is alleged to have assaulted. It appears that the daughter lives with her mother and her mother’s partner of the last 4 years. However, the daughter saw Mr Colquhoun from time to time.

6. The occasion giving rise to the assault was 23 December 2008. The daughter had gone over to Mr Colquhoun’s residence at 7 Ira Street, Fairy Meadow. She said that this was by arrangement with her father who had wanted to see her. When she arrived he was not home from work but she let herself into the house as she was able to do.

7. Mr Colquhoun denied that he had made an arrangement for his daughter to come around and see him.

8. In any event, when Mr Colquhoun arrived home both he and his daughter agreed that she was on the telephone. She said she was ringing her mother’s partner to say that she would be longer at her father’s place than she expected because he was not then home.

9. Mr Colquhoun told her to get off the telephone and she then alleged that he kicked her in the buttocks. He denies having done that. That matter is significant for one of the complaints that Mr Colquhoun makes about the Magistrate in relation to bias.

10. There was then a discussion between them concerning the daughter having held parties at Mr Colquhoun’s place when he was not present. Indeed, she alleged that after he kicked her he asked her if she knew why he had done that and she said that she did not know. She alleges that her father then went on to say it was because of the parties she had held at his place.

11. She then started to walk away to leave the house through the front door. Both she and Mr Colquhoun agree that she walked in that direction first and he walked after her. He agreed that he was angry with her at that stage. She claims that she opened the door with her right hand and her left hand was part way out the door when he slammed the door on it bruising her left wrist. Mr Colquhoun claims that she opened the door so violently that when it hit his stationary foot it bounced back and jammed her hand in the door.

12. Mr Colquhoun wanted her to sit down on the lounge and watch a DVD that apparently depicted her mother. He said he wanted her to see why he and her mother broke up. She apparently sat down briefly but would not watch the DVD that he put on. Then she walked out of the house and went to wait at the neighbour’s place for her mother and her mother’s partner to collect her. She was upset and she said she was crying although Mr Colquhoun denied she was crying.

13. After she returned home and told her mother what happened police were contacted and Mr Colquhoun was subsequently charged. The Court Attendance Notice contained the details of the offence “common assault domestic violence related between 3:30pm and 6:00pm on 23/12/2008 at Fairy Meadow did assault [the daughter].”

14. The facts sheet made reference to both the kick in the buttocks and to the slamming the door on the daughter’s left forearm.

15. The hearing before the Magistrate proceeded with Mr Colquhoun acting for himself. Because the daughter was under the age of the 16 at the time of the alleged assault, although over 16 when the charge was heard, the Magistrate appointed a person to conduct the cross-examination of the daughter in lieu of Mr Colquhoun, apparently pursuant to the provisions of s 306ZL Criminal Procedure Act 1986.

Mr Colquhoun’s complaints

16. Mr Colquhoun also appeared for himself at the hearing before me. He had filed an affidavit in support of the summons on 8 September 2009 where he identified a number of matters in the transcript that he said showed bias on the part of the Magistrate. At the hearing before me he said that he relied on those matters but he drew attention to 4 matters in particular. Those matters were:

(1)   not permitting him to cross-examine his daughter;

(2)   not permitting the Court-appointed person to view the DVD Mr Colquhoun had made re-creating what happened in the doorway incident before that person cross-examined the daughter;

(3)   not permitting the showing of the DVD during the hearing in slow motion;

(4)   not permitting him to lead from his mother evidence about lawful correction of the daughter.

17. The other complaints set out in the affidavit can be summarised as being these:

(5)    dealing with the assault as including the kick in the buttocks;

(6)   not permitting him time at the end of his evidence-in-chief or re-examination to think about things to see if there was anything further he was to say;

(7)   making an apprehended violence order after finding the offence proved when it was never requested.

18. The claim by Mr Colquhoun in the present proceedings appears to be a claim for orders in the nature of certiorari and prohibition based upon this Court’s supervisory jurisdiction over inferior courts and tribunals. That is certainly how those appearing for the second Defendant understand the claim. The basis for the interference by way of prerogative writ, if made out, would be the bias alleged.

The principles

19. The tests concerning bias in a judicial officer are fairly well known but can be restated by reference to Re JRL Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 351 where Mason J said:

…[A] judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues (Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.

20. It has otherwise been said that the test is whether a fair-minded lay observer with knowledge of the material objective facts would apprehend that the judicial officer would not bring an impartial and unprejudiced mind to the resolution of the questions before that judge: Webb v R (1994) 181 CLR 31 at 47, Livesey v NSW Bar Association (1983) 151 CLR 288 at 293 and 29; and Wentworth v Wentworth (unreported – Santow J – 6 February 1998).

21. In the light of these principles I turn to consider the matters complained of by Mr Colquhoun. In doing so, it is not sufficient to deal with each complaint separately but to see also if the total of any complaints made out provide evidence of bias for which Mr Colquhoun contends.

(1)   Not permitting him to cross-examine his daughter

22. Section 306ZL applies to criminal proceedings arising from the commission of a personal assault offence. This was such an offence because under the definition in s 306M it includes an offence under Pt 3 of the Crimes Act 1900. This offence was charged under s 61 of the Crimes Act which falls within Pt 3. Section 306ZL(2) provides:

A vulnerable person who is a witness (other than the accused or the defendant) in a proceeding to which this section applies is to be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or the defendant.

23. A vulnerable person was defined in s 306M(1) as meaning a child, and s 306P limited that to a child under the age of 16 years at the time the evidence was given. Mr Colquhoun’s daughter was not under the age of 16 years when the evidence was given.

24. The Crown drew my attention to s 306ZB(2) which made provision for a child who is 16 or more but less than 18 years at the time the evidence was given but was under 16 years of age when the charge for the personal assault offence was laid. However, that extension of who amounts to being a “vulnerable person” applies only to s 306ZB which concerns the giving of evidence by means of closed-circuit television facilities.

25. Strictly speaking, the Magistrate was in error in relying on s 306ZL by appointing a person to cross-examine Mr Colquhoun’s daughter. However, in my opinion, he was probably entitled to take the course he did, perhaps in reliance on s 306ZN or simply by reason of being able to control the procedure in his own court. It does seem puzzling, and no doubt this would have confused the Magistrate, that an exception is made for a child over the age of 16 years in relation to the use of closed-circuit television (s 306ZB) but no exception is made in relation to cross-examination under s 306ZL. The effect is that Mr Colquhoun’s daughter was a vulnerable person for the purposes of one provision and not for another in a way that was unlikely to have been intended by the legislature.

26. It could not have been expected that Mr Colquhoun would have been able to draw this anomaly to the attention of the Magistrate and he cannot be criticised for not having done so.

27. It seems apparent to me, however, that the Magistrate made the direction he did, purportedly pursuant to s 306ZL, because he believed that was what the section required rather than through any indication of bias against Mr Colquhoun as Mr Colquhoun contends. But for one matter to which I will refer presently, a reading of the transcript of the cross-examination by Mr Phillips, the solicitor appointed, shows that Mr Colquhoun was not disadvantaged by the procedure that was followed.

(2)   Not permitting the cross-examiner to view the DVD

28. Mr Colquhoun had prepared a short DVD which was a re-creation by him of what he said happened on the day of the alleged assault. It apparently showed the door and door opening so that what happened could be better understood.

29. At the outset, Mr Colquhoun asked the Magistrate if the DVD could be shown to Mr Phillips. The following exchange occurred:

ACCUSED:   Your Honour we've got a DVD which is taken of the events of how that happened. At some stage I'd like to cross-examine, I suppose, I think you call it the witness on these DVDs. Now Mr Phillips may need to see these DVDs before I show them to the witness.

HIS HONOUR: No his role is only to ask questions, he is not to give advice on the matter.

ACCUSED: I know but I will need him to, when I ask the questions and I'll have to write these down on what I want him to ask, they'll have to be to do with that DVD, he'd have to have some understanding of that to be able to ask the right questions.

HIS HONOUR: No he won't be seeing anything in advance, that won't be his role. We'll get to that at a later stage in terms of any issue about the playing of the disk.

30. The Magistrate seems to have misapprehended what was being sought by Mr Colquhoun because he was not endeavouring to obtain advice from Mr Phillips but only to show him the DVD so that he had some understanding of the questions Mr Colquhoun wanted him to ask his daughter. That is apparent from that portion of the transcript where the Magistrate refused that request. That was the one way I consider that Mr Colquhoun may have been disadvantaged by the appointment of Mr Phillips purportedly under s 306ZL.

31. This disadvantage was to some extent ameliorated by the fact that the Magistrate permitted the playing of the DVD to the daughter and then permitted Mr Phillips to ask her questions about what she had seen in that regard. The transcript makes it clear that the length of the DVD (as Mr Colquhoun agreed) was two segments of only about 5 seconds each. It was not, therefore, a lengthy film where a great many things had to be pointed out. An examination of the transcript immediately following the playing of the DVD shows that Mr Phillips dealt competently and adequately with cross-examination based on what was shown in the DVD. It must be further remembered that the DVD was not a film of what actually happened but was a re-creation of what Mr Colquhoun said happened. The DVD was ultimately admitted into evidence by the Magistrate notwithstanding it was only a re-creation in that sense.

32. Even if the refusal by the Magistrate to permit Mr Phillips to view the DVD beforehand and to discuss it with Mr Colquhoun was an error in his discretion in that regard, I do not consider that a fair-minded observer would consider that error to represent bias against Mr Colquhoun. An evidentiary ruling by a judicial officer may be erroneous without it demonstrating any bias at all.

(3)   Not permitting the showing of the DVD in slow motion

33. When Mr Colquhoun gave his own evidence he said that he wanted to show the DVD again so he could point out certain things. This exchange occurred:

Can I give evidence on that - the DVD, if you don't mind showing that again so I can have a look at that, I want to point out certain things?

Q. No, what do you want to say about it?A. Well basically, that’s a recreation of what's happened and I want to basically slow It down because it was on fast speed, I'd rather go on a slower speed there step by step to point out a few things on that --

Q. No, I've seen it sufficient number of times, what do you want to say about it?

A. Yeah, well you'd have to actually slow it down, that’s the problem.

Q. Sir, I've seen it sufficient number of times, what do you want to say about it?

A. All right, well the DVD is a recreation of what’s happened. As you can see my hand or my body, as such, is nowhere near the door and that’s pretty much a recreation of what happened. …

34. As I have said, the DVD consisted of 2 5-second segments. It was shown to those in the Court immediately before the luncheon adjournment and was then shown to Mr Colquhoun’s daughter immediately after the luncheon adjournment. Given its brevity and the fact that it had been twice shown and was only, in any event, a re-creation, it does not seem to me that the Magistrate’s refusal to permit it to be shown for a third time, whether at a normal or a slowed rate, could constitute any sort of an error on his part let alone demonstrate bias against Mr Colquhoun.

35. It is fair that I consider the 3 of these complaints together because they are inter-related. Although I consider the Magistrate ought to have permitted the DVD to be shown to Mr Phillips in advance, I do not think an overall assessment of the appointment of Mr Phillips, the refusal to permit him to see the DVD in advance and the refusal to permit the showing of it for a third time during the hearing can have disadvantaged Mr Colquhoun. As I have said, Mr Phillips conducted a very competent cross-examination bearing in mind the short time he had to come to grips with the issue in the case. The DVD was by any standards very brief and was, in any event, a re-creation and not a depiction of anything that actually happened.

36. I do not consider that the Magistrate’s approach to these matters, when taken together, demonstrated any bias against Mr Colquhoun.

(4)   Not permitting evidence about lawful correction

37. Mr Colquhoun called his mother to give evidence on his behalf. He says that he was not permitted to lead evidence from her about the issue of lawful correction of his daughter. A reading of the transcript does not clearly disclose that. However, he asked this question:

[My daughter] for probably the last 12 months hasn't had a lot of direction in her life has she?

The Magistrate disallowed that question as not being relevant nor probative of the issues before the Court. It is possible that that is what Mr Colquhoun is referring to.

38. He also points to evidence that he wanted to give about why he and his daughter’s mother split up. That evidence was objected to and the Magistrate ruled that it was not admissible because the case was not one concerning family law.

39. The only event that it was suggested lawful correction concerned was in relation to the allegation that Mr Colquhoun kicked his daughter in the buttocks. He denied ever doing that. He expressly disavowed to me that the jamming of the arm in the door had anything to do with lawful correction.

40. Quite why he wanted to show the DVD concerning his daughter’s mother to her and how discussion about the reasons for the break-up were relevant to the issues of the assault was not made clear. Certainly, in the face of a denial from Mr Colquhoun that he kicked his daughter, there is no further relevance of the issue of lawful correction of her. The Magistrate’s rulings against him in relation to that cannot be shown to have been an error let alone evidence of bias.

(5)   What constituted the assault?

41. Mr Colquhoun submits that the Magistrate demonstrated bias as a result of an exchange involving Mr Phillips, the prosecutor, and his Honour where the following occurred:

PHILLIPS: Your Honour, just before I ask some questions of XX, is it that the prosecution are relying simply on the injury to the arm as the assault?

HIS HONOUR: Sergeant, I assume it’s covering the whole incident on the day.

PROSECUTOR: Yes, it is your Honour.

42. Mr Colquhoun submits that his Honour ought to have let the Prosecutor answer himself rather than providing the answer for the Prosecutor. He points further to the fact that when he cross-examined Constable Scerri and asked him what his understanding of the assault was Constable Scerri said it was that the daughter had her arm jammed in the door.

43. A few things can be said about this. First, the question Mr Phillips asked was a question asked of his Honour. It is ordinarily not appropriate for those representing 2 parties in any proceedings to conduct a dialogue with each other at the bar table. Legal representatives address the Court. Mr Phillips properly asked his Honour what the assault was and his Honour in answering it said he assumed it covered the whole incident.

42. Secondly, there was some justification for that assumption because the Facts Sheet clearly identified 2 allegations - the first being the kick in the buttocks and the second being the arm in the door.

43. Thirdly, it is apparent from the exchange quoted that the Magistrate referred the question to the Prosecutor although saying that he assumed it covered the whole incident. The Prosecutor was perfectly free to disagree with the Magistrate but, because of what appeared in the Facts Sheet, it was no surprise that he did not. The fact that Constable Scerri believed the assault simply involved the arm does not appear to me to be the matter of significance that Mr Colquhoun believes. There was sufficient legal justification for seeing the 2 events complained of as being part of the same assault: Mikhael v Conroy & Smith (unreported – Finlay J – 6 December 1990; BC 9002962 at 13 and 19) and Lake Macquarie City Council v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263 at [48]-[49].

44. It is, in any event, difficult to see how the Magistrate making an assumption at that stage about what constituted the assault, even if mistaken, demonstrated a bias against Mr Colquhoun.

(6)   Failure to permit a short adjournment before completion of Mr Colquhoun’s evidence

47. After the luncheon adjournment Mr Phillips continued to cross-examine the daughter. Her evidence was followed by Adam Moxon, the partner of the daughter’s mother. Mr Colquhoun briefly cross-examined Mr Moxon (cross-examination is less than 1 page of transcript). Mr Colquhoun then went into the witness box and gave his evidence subject to some objections from the Prosecution on what appears to have been grounds of relevance. The exchange that I have set out in para 33 above about playing the DVD in slow motion then occurred, and that was then followed by this exchange:

[ACCUSED] … What else have we got to say? I'm just trying to think now. Sir, I'd like about 5 minutes actually to have a think about this because we've just come straight out of a--

Q. No sir, this has been run for a very, very long time. Do you have anything further you want to say?

A. I'd need time to think about it, after the cross-examination we just did--

Q. No sir, no, you'll be asked some questions and then if there's anything you've overlooked in saying or anything you want to clarify from your answers I'll give you that opportunity. Yes sir?

A. Well your Honour, without--

Q. No, I've indicated you'll be given another opportunity in case there's anything you've overlooked in saying anything you want to clarify in the--

A. I understand that but I want to--

Q. Just wait, please sir, thank you.

CROSS-EXAMINATION BY PROSECUTOR

48. The Prosecutor then cross-examined Mr Colquhoun and the following exchange occurred at the conclusion of the cross-examination:

HIS HONOUR: Thank you.

Q. Mr Colquhoun, is there anything you want to clarify from the answers that you've given by way of re-examination?

A. I'd like time to think about it.

Q. No. Is there anything you want to say by way of re-examination, anything you want clarified from the answers that you've given?

A. There is, but I need time to think about it. No, I just can’t think at the moment, its just too rushed, I'm sorry.

49. Mr Colquhoun submits that he was required to give his evidence in a rushed and incomplete fashion with no time to think.

50. A reading of the transcript suggests that Mr Colquhoun’s evidence might have been given in a slightly rushed way but that does not appear to have been for any other reason than he was speaking too quickly. He was asked to slow down by the Magistrate 5 times in the space of 2 pages of transcript. That occurred simply during the time that he was recounting in his own words what happened. There is certainly no indication from the transcript that he was being rushed by the Magistrate or anyone else.

51. Minds might differ about whether it might have been appropriate for the Magistrate to permit Mr Colquhoun a short time to consider if there was any further evidence he wanted to give bearing in mind that he was acting for himself. Nevertheless, the case had been running for most of the day and Mr Colquhoun had indicated that he had 2 other witnesses he wished to call before addresses would be given. Regard must be had for the pressures on a Magistrate conducting a busy list. It is apparent from the transcript that on 3 occasions during the morning other matters were briefly interposed. The Magistrate was no doubt anxious to conclude the matter including delivery of his judgment on that day.

52. A perusal of the transcript shows that the evidence Mr Colquhoun gave about the events on the day concerned was given coherently and appears to cover all of the relevant matters about which evidence could be given. In my opinion it could not be said to be any error in procedural fairness on the part of the Magistrate not to have given Mr Colquhoun some extra time. It is very far from demonstrating bias against him.

(7)   The Apprehended Domestic Violence Order

53. Section 39(1) Crimes (Domestic and Personal Violence) Act 2007 relevantly provides:

(1)   If a person pleads guilty to, or is found guilty of, an offence against section 13 or a domestic violence offence (other than murder or manslaughter), the court hearing the proceedings must make an apprehended violence order for the protection of the person against whom the offence was committed whether or not an application for such an order had been made.

(2)   However, the court need not make an apprehended violence order if it is satisfied that it is not required (for example, because an apprehended violence order has already been made against the person).

…

54. In the present case Mr Colquhoun’s daughter had given some somewhat hard-hearted evidence that she had fears for her safety in relation to Mr Colquhoun.

55. In the light of that evidence it cannot possibly be seen as an error on the Magistrate’s part to have made an Apprehended Violence Order against Mr Colquhoun. Mr Colquhoun had, through Mr Phillips, cross-examined his daughter to suggest that she had voluntarily approached Mr Colquhoun on a few occasions after the incident complained of to show that she was not in any fear of him. She did not entirely accept what was put to her in that regard, but even if she had the Magistrate could not have been said to be in error given the terms of s 39(1) even allowing for the exception in sub-s (2).

56. The impression I gained was that Mr Colquhoun was not aware that s 39 required the making of the Order and he interpreted the Magistrate’s making the Order without it being requested by anyone as being a sign of bias. In all the circumstances, it cannot be regarded as demonstrating any bias on his part that the Order was made.

Conclusion

57. Even if all of these complaints are viewed as a whole I do not consider that they demonstrate bias on the part of the Magistrate. Even if I assume that matters (1), (2) and (6) constitute erroneous rulings (and I do not reach any firm conclusion about that because it is not part of my responsibility in these proceedings to do so) those rulings taken as a whole do not seem to me to indicate bias on the part of the Magistrate. I have read the entirety of the transcript of the proceedings before the Magistrate. True it is that he also made a number of other evidentiary rulings against Mr Colquhoun, but on more than one occasion he permitted questions to be asked by Mr Colquhoun over objections from the Prosecution. He admitted into evidence the DVD showing the re-creation of what happened according to Mr Colquhoun, when he might legitimately have refused to do so. He granted a short adjournment to Mr Phillips to confer with Mr Colquhoun after the daughter’s evidence-in-chief. He allowed Mr Colquhoun a reasonable degree of leeway in terms of the relevance of some of the matters Mr Colquhoun wanted to air in the proceedings that were not directly related to the assault.

58. As I have noted earlier, rulings on particular matters, evidentiary or otherwise, against a party do not of themselves demonstrate bias even if it can be shown that some of those rulings were made erroneously. Nothing was apparent from the transcript to show that the Magistrate had formed a view against Mr Colquhoun before he had heard appropriate evidence. There was a small measure of unfairness in relation to the ruling that Mr Phillips was not entitled to view the DVD prior to cross-examining the daughter. I have explained earlier why I do not consider that matter indicated bias on the part of the Magistrate. Apart from that matter the procedures adopted by the Magistrate (and even allowing for the error based on s 306ZL) do not provide any evidence that the Magistrate treated Mr Colquhoun in a less fair manner than he treated the Prosecutor nor did they unfairly disadvantage Mr Colquhoun.

59. In my opinion, no bias on the part of the Magistrate has been demonstrated.

60. In the result, I make the following orders:

1. The summons is dismissed.

2. The Plaintiff is to pay the Second Defendant’s costs.

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Amendments

04 August 2015 - paragraph [41] - name changed to "XX" to anonymise the child pursuant to s 15A Children (Criminal Proceedings) Act 1987

Decision last updated: 04 August 2015