Downey v Acting District Court Judge Boulton (No 5)

The applicant, Downey, sought judicial review of decisions made by Acting District Court Judge Boulton. The core of the dispute concerned allegations of apprehended bias on the part of Judge Boulton, arising from various rulings on evidence, comments made in the judgment, the dismissal of a recusal application, and refusals to state a case or grant an adjournment for s 78B notices. Downey also challenged the validity of proceedings in the District Court, questioning whether provisions relating to the appointment of acting judges and retired judges from other jurisdictions, as well as the potential preclusion of certiorari, compromised the institutional integrity of the Court and its status as a Court of the State for the purposes of Chapter III of the Constitution. Further issues included whether a judge partly heard on the expiry of their commission could continue, the essential elements of an offence in summary proceedings, and whether the prosecutor's potential financial interest or prior roles rendered prosecutions invalid.

The Court of Appeal was required to determine whether the conduct of Judge Boulton gave rise to a reasonable apprehension of bias. It also had to consider the constitutional validity of the District Court’s operation under the relevant provisions of the *District Court Act 1973* (NSW), particularly concerning the appointment of acting judges and the implications for the Court's institutional integrity. The Court also examined the validity of summary proceedings, the role of the prosecutor, and the interpretation of "partly heard" in the context of a judge's commission expiring.

The Court dismissed the summons, finding no apprehended bias on the part of Judge Boulton. It reasoned that the rulings and comments, when viewed objectively, did not demonstrate a predisposition that would lead a fair-minded observer to conclude that the judge was not impartial. Regarding the constitutional challenges, the Court found that the provisions for appointing acting judges and retired judges from other jurisdictions did not compromise the institutional integrity of the District Court or its status as a Court of the State. The Court also held that the provisions of the *District Court Act* did not improperly preclude certiorari and that the proceedings were validly conducted. The Court further determined that the expiry of a judge's commission did not invalidate proceedings that had been partly heard, and that the essential elements of the offences were sufficiently pleaded. The Court also found no invalidity in the prosecutions due to the prosecutor's role or potential financial interest.