Eastman, D.H. v Special Magistrate John Murphy and Sergeant Michael Reay

No judgment structure available for this case.

DAVID HAROLD EASTMAN v. SPECIAL MAGISTRATE JOHN MURPHY and SERGEANT MICHAEL
REAY
No. ACTG30 of 1992
FED No. 251
Number of pages - 14
Courts and Judges - Criminal Law and Procedure - Particular Offences -
Jurisdiction - Practice and Procedure - Inferior Courts - Australian Capital
Territory
(1993) 66 A Crim R 97
(1993) 42 FCR 145

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Gummow(1) and Foster(1) JJ

CATCHWORDS

Courts and Judges - apprehended bias - whether reasonable apprehension that magistrate not unprejudiced and impartial - magistrate's order that defendant be removed to cells without charge for wilful interruption of proceedings - defendant returned to court and persisted in interruptions - defendant charged with wilful interruption of proceedings - bail refused and defendant remanded in custody - whether refusal of bail used punitively - magistrate's refusal to disqualify himself - whether discriminatory conduct against the defendant - language used by magistrate - whether disqualification from hearing charge of wilful interruption of proceedings leads to apprehended bias in respect of substantive charges.

Criminal Law and Procedure - Particular Offences - Offences Relating to Administration of Justice - wilful interruption of proceedings - s 255 Magistrates Court Act 1930 (ACT) - repetitive disruptive statements by defendant - failure to desist - defendant removed to cells - defendant returned to court and persisted in interruptions - defendant charged.

Criminal Law and Procedure - Jurisdiction - Practice and Procedure - Miscellaneous Powers of Courts - removal of persons wilfully interrupting proceedings - s 255 Magistrates Court Act 1930 (ACT) - detention of person in custody - necessity of laying of charge prior to detention.

Inferior Courts - Australian Capital Territory - Magistrates Court.

Crimes Act 1914 (Cth) - s 85ZE(1)

Magistrates Court Act 1930 (ACT) - s 255, s 255(1), s 255(2)

Magistrates Court (Amendment) Act 1993 (ACT)

Re Bolton; Ex parte Beane (1987) 162 CLR 514

Eatts v Dawson (1990) 93 ALR 497

The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248

Metropolitan Properties Co (FGC) Limited v Lannon (1969) 1 QB 577

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Vakauta v Kelly (1989) 167 CLR 568

Galea v Galea (1990) 19 NSWLR 263

HEARING

CANBERRA, 5 April 1993 #DATE 23:4:1993

The appellant appeared in person

Counsel for the first respondent : Mr P. Walker

Solicitor for the first respondent : ACT Government Solicitor

Counsel for the second respondent : Mr J.D. McArdle

Solicitor for the second respondent: Director of Public

Prosecutions (Cth)

ORDER

THE COURT ORDERS THAT: 1. The appeal be allowed.

2. The judgment of the Supreme Court of the Australian Capital Territory be varied by setting aside orders 2 and 3 of the orders made on 3 July 1992 and in lieu thereof it be ordered that:-

(a) the respondent magistrate be prohibited from further hearing and determining the offences under s 85ZE of the Crimes Act 1914 of which David Harold Eastman presently stands charged, being the offences the subject of the consolidated information laid by Michael Edward Reay ("the informant") on 6 December 1991; and

(b) the informant pay the costs of the proceedings commenced by the order of the Supreme Court (Gallop J) made on 24 April 1992.

3. The second respondent pay the appellant's costs of and incidental to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NEAVES, GUMMOW AND FOSTER JJ This is an appeal from the judgment of the Supreme Court of the Australian Capital Territory (Ryan J) whereby the Court ordered the partial discharge of an order nisi granted by that Court (Gallop J) on 24 April 1992. Gallop J had, on the application of the appellant ("Eastman") ordered that the first respondent ("the magistrate") show cause why a writ of prohibition should not issue commanding him to disqualify himself from:-

(a) hearing;

(b) continuing to hear; or

(c) determining

any of the matters with which Eastman stood charged before the ACT Magistrates Court on the grounds that Eastman or the public might reasonably suspect that the magistrate was not unprejudiced and impartial.

Ryan J discharged this order nisi except insofar as he ordered that the magistrate "be prohibited from determining or adjudicating the charge under s 255 of the Magistrates Court Act laid by the respondent (magistrate) against the appellant (Eastman) on the 31st day of March 1992."
It is Eastman's contention in this appeal that Ryan J should have made absolute the whole of the order nisi pronounced by Gallop J.
In the appeal the magistrate entered a submitting appearance. The second respondent, who was the prosecutor before the magistrate, appeared through counsel to resist the appeal. There was no cross-appeal and the second respondent filed no Notice of Contention in respect of any aspects of the decision of Ryan J.
Eastman had been charged before the magistrate by information alleging that between 1 June 1990 and 29 October 1990 he committed offences under s 85ZE(1) of the Crimes Act 1914 (Cth) in that he knowingly used a telecommunications service supplied by a carrier to harass or menace some 32 named persons. The charge insofar as it related to one of those persons was subsequently dismissed. Each alleged offence fell within the summary jurisdiction of the magistrate. The magistrate commenced hearing the charges on 30 March 1992. The transcript of the proceedings before the magistrate indicates, clearly enough, that Eastman, who was unrepresented, having made an unsuccessful attempt to have the magistrate declare the prosecution an abuse of the Court's process, embarked upon a course of action which was significantly disruptive of the hearing. When prosecution witnesses were called to give evidence he prevented the giving of their testimony by the making of repetitious statements from the bar table in a manner described by the magistrate, in the transcript, as "chanting". These statements were to the effect that various named police officers should be charged with crimes against him. The transcript shows that he claimed to be entitled to follow this course in the interests of justice. Whether he genuinely held this view or not, the result was that his conduct effectively prevented the adducing of the prosecution evidence.
The magistrate called upon Eastman to desist on a number of occasions. Indeed, the transcript, so far as the written word is able to do so, indicates that the magistrate showed considerable patience and forbearance in a situation which must have clearly presented an affront to the dignity, authority, and effectiveness of the Court.
Eventually, on 31 March, the magistrate took the steps which led to the applications before Gallop J and Ryan J, and to this appeal. He stated to Eastman that he believed that he had given him ample warning to conduct himself properly and to allow the proceedings to be conducted in an orderly manner and that Eastman had continued "to wilfully interrupt these proceedings". Eastman maintained that he believed that he had conducted himself in a fair and proper manner and "continued to protest at a miscarriage of justice" in the Court. The magistrate ordered that he "be removed forthwith to the cells pending the further hearing of these matters". He then took a short adjournment.
In so ordering, it is tolerably clear the magistrate had in mind the exercise of powers under s 255 of the Magistrates Court Act 1930 (ACT). Since the occurrence of the events giving rise to this appeal s 255 has been repealed by the Magistrates Court (Amendment) Act 1993 (ACT). This substitutes a far more detailed provision. Nothing, however, turns upon the new provision for the purposes of this appeal. At the material time, the section provided:-

"255(1) Any person who wilfully insults any Magistrate sitting in the exercise of her or his jurisdiction under this Act or any other Act or Ordinance, or wilfully interrupts, or is guilty of contempt during the proceeding of the Court, may be excluded from the Court by order of the Court, and may, whether she or he is so excluded or not, be summarily convicted by the Court on view, and, on conviction shall be liable to a penalty not exceeding Fifty dollars, and, in default of immediate payment, to be imprisoned for a period not exceeding fourteen days.

(2) No summons need be issued against any such offender, nor need any evidence be taken on oath, but she or he may be taken into custody then and there by a police officer by order of the Court, and called upon to show cause why she or he should not be convicted."

Section 255 as it stood at the relevant time is to be construed in accordance with the precept that legislation should not be construed as effecting a derogation from the liberty of the subject in the absence of a clear legislative intent to that effect: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, 532. The expression "taken into custody" in sub-s 255(2) identifies the state or condition which follows arrest or other similar official act; cf the context considered in Eatts v Dawson (1990) 93 ALR 497.
Even without regard to the precept to which we have referred, it appears to us that sub-s 255(2) does not provide support for the existence of a power to order detention in custody unless the alleged contemnor has been charged with contempt and called upon to show cause why he or she should not be convicted. In this, we differ, with respect, from the view expressed by the primary judge.
In our view, the legislation proceeds on the footing that at the time when the Court orders that the person in question is to be taken into custody "then and there" by a police officer and called upon to show cause why he or she should not be convicted, that person shall already have been charged with the contempt for which the conviction is sought. In the period before the person is charged there may be in force an order under sub-s 255(1) that the person be excluded from the Court. Such an order may or may not, in the particular case, be followed by a contempt charge. But what cannot be done under s 255 is for the Court to order that a person be held in custody before there is a charge of contempt.
We are satisfied that the magistrate in ordering that Eastman be removed to the cells and detained therein was acting in excess of the powers given by the section. Those powers did not extend beyond the ordering of the removal of Eastman from the Court and his exclusion from the hearing. His taking into custody could occur only after he had been formally charged with a breach of the section.
When Eastman was removed from the Court to be detained in the Court's cells, doubt was raised by counsel for the prosecution as to the validity of the course that had been followed. Some detailed consideration was then given to the section, with concern being expressed by counsel that Eastman was "presently in custody". As a result of this consideration, it appears, Eastman was brought back to Court. He was not then charged under the section but inquiry was made of him as to whether he was prepared to refrain from "clearly wilfully interrupting proceedings". Eastman maintained his position that what he had been doing did not amount to an interruption to proceedings but was an activity designed to aid in the achievement of "a just result". He asserted to the magistrate that he saw "these whole proceedings as being a set up that does you no credit and the Court no credit". In this context the magistrate adjourned the proceedings until 3.30pm indicating that he intended to start the evidence of the first witness at that time. It is clear that he hoped that in the intervening period Eastman would decide to co-operate in the orderly conduct of the proceedings.
However, when the proceedings recommenced in the afternoon, Eastman maintained his previous attitude. He interrupted the presentation of the evidence of the first witness right from the outset. When warned by the magistrate that if he continued so to interrupt he would be dealt with under the provisions of s 255 of the Magistrates Court Act, he asserted that he was not interrupting the proceedings but merely stating that, in his view, they were an abuse of the process of the Court. Indeed, he stated that "your Worship has continued to perpetrate, in company with the prosecutor, a cynical miscarriage of justice with the assistance of police officers who are themselves guilty of the very offences with which they have wrongly charged me."He asserted that the magistrate should stop the proceedings as they were an abuse of the Court.
The magistrate directed that the proceedings continue. Eastman continued to interject and interrupt. It was impossible for the matter to proceed. The magistrate indicated that Eastman was "now intent on not allowing the prosecutor to examine the witness". He ordered the arrest of Eastman and indicated that he proposed to charge him "with wilfully interrupting the proceedings". He adjourned for a short period to enable him to frame the charge, with Eastman being held in custody. When the hearing resumed the following exchange occurred:-

"HIS WORSHIP: Mr Eastman, you are charged at Canberra in the Australian Capital Territory on the 31st day of March 1992 that during the sittings of the Magistrates Court of the said territory presided over by Magistrate Murphy, a magistrate lawfully appointed to the said court, did wilfully interrupt the said magistrate. Do you wish to seek legal representation on that charge?

THE DEFENDANT: Yes, I do.

HIS WORSHIP: All right, well, what I have done is I have had the charges typed. Green copy to the prosecution? Yellow. Yellow copy to the prosecution, green copy to Mr Eastman. All right, well, the matter will be adjourned till 10 am on 1 April 1992. You will be remanded in custody in the meantime and also in relation to the substantive charges before the court in the meantime. I will have my clerk contact Legal Aid or whatever the procedure is - Legal Aid Service so that someone can be made available to speak with the defendant and represent him in the morning. Thank you. THE DEFENDANT: Is that 10 am?

HIS WORSHIP: 1 April, next - tomorrow.

THE DEFENDANT: Okay. And why is bail refused, your Worship?

HIS WORSHIP: Well, I am remanding you in custody, that is why. Thank you, adjourn the court.

THE DEFENDANT: Well, I seek leave to appeal against the bail decision.

HIS WORSHIP: Well, you can do that.

THE DEFENDANT: Right. Do that, then."

The proceedings were then adjourned until the following day, 1 April 1992. Eastman was detained in the Belconnen Remand Centre overnight and brought before the Court that morning. The transcript shows that at the commencement of proceedings, Eastman applied to the magistrate to disqualify himself on the grounds of apprehended bias. In relation to this application the transcript shows as follows:-

THE DEFENDANT: Your Worship, I have got a threshold application to make which is an application for your Worship to disqualify yourself on the grounds that I apprehend bias from you and that I believe a fair-minded member of the public would do likewise.

HIS WORSHIP: I think at this stage - the matter before the court at this stage is the charge of wilfully interrupting proceedings and I will deal with that matter first and then I will hear any application you had in relation to the charges.

THE DEFENDANT: With respect, your Worship, the authorities are quite clear that a person could not proceed to adjudicate on any matter, certainly not a criminal charge which is what a contempt charge is, if there were a reasonable apprehension of bias on that (sic) part of that person, so I submit that you have to deal with the bias application first because if that were to succeed, it would be quite improper for you then to proceed to adjudicate on the contempt charge. The authorities are that when bias is apprehended, the defendant in fact has a duty to draw it to the attention of the presiding magistrate immediately and I am acting in accordance with that well-established procedure. Very briefly, the grounds for my apprehending bias is that I believe that you have used a remand in custody punitively and unreasonably. Your Worship has at this stage only laid a charge, no conviction has been recorded, and indeed, you have not heard my response to the charge.

HIS WORSHIP: Yes, that is what I am going to do this morning.

THE DEFENDANT: Yes, well just a minute, please, your Worship. And you are required as a magistrate to keep an open mind on the issue until you have determined it and I submit that you have in fact behaved punitively towards me which indicates that you have not got an open mind on the question of a contempt charge and in fact you have sought to punish me for contempt before you have even adjudicated on whether there was contempt. Now the punishment for contempt has taken the form in this case of an unreasonable refusal of bail. Your Worship knows that I am self represented, you must know that it is pretty impossible for a self represented person in custody to prepare for their defence, and you nevertheless saw fit, over my objections, to refuse bail, and as a result of that, there has been no opportunity whatsoever to prepare for the contempt matter. I have not had access to the Supreme Court library, all the papers that I have on the issue of contempt are in fact at home and the proper grounds for refusal of bail are if there is a question of (a) non-appearance, and I have no record whatsoever of failing to appear. In fact I am punctilious about appearing in court. Secondly, if there is a possibility of interference with evidence or with witnesses. Since your Worship is the informant, that is scarcely a credible possibility. Thirdly, if there is a possibility of a repetition of the offence, and obviously where proceedings are adjourned, an offence of contempt cannot possibly be repeated. So on all of those grounds, I submit that your - - - HIS WORSHIP: All that I am interested in, quite frankly, is the case proceeding in an orderly manner. It is as simple as that. If you are prepared to behave yourself and not interrupt as you did yesterday - - - THE DEFENDANT: Your Worship, I am making an application to disqualify and I am indicating that the application is made on the basis that there was an unreasonable refusal of bail by your Worship which pre-judged the contempt issue before you and that you in fact used bail in a punitive way, refusal of bail in a punitive way. You sought to punish me by detaining me in custody overnight on a matter where you had not yet determined the substantive issue. It was quite inconsistent with you (sic) alleged reasons for adjourning the proceedings which was to give me time to seek legal advice.

HIS WORSHIP: Yes.

THE DEFENDANT: You must realise that a self represented person locked up in the Belconnen Remand Centre cannot do anything useful about preparing their representation. So it is clear, I submit, that you in fact refused bail to, as it were, punish me in advance for what you regarded as contempt before you had determined the contempt issue itself and you have pre-judged the contempt issue, and pre-judgment of an issue is by many authorities a clear basis for the reasonable apprehension of bias and I apprehend it and I believe that a reasonable fair-minded member of the public would also consider that you have remanded me in custody punitively in advance of determining the issue of contempt and that they would apprehend that you may not bring an impartial mind to bear now on the contempt charge; for that matter, I would submit on any further proceedings in these courts and in respect of the other charges currently before you. Therefore I request that your Worship disqualify yourself on those grounds."(emphasis added)

The magistrate refused to disqualify himself, stating that the laying of the charge was a step that was not taken lightly. He assured Eastman that he was not biased and that he would get a fair hearing. There was further argument, Eastman asserting that he was not in a position to defend that charge, without having time and opportunity to prepare the defence. The magistrate, after further discussion, indicated that he would take the course of standing the contempt charge down. He said "I will now proceed with the other charges. I do not intend to exclude myself on the grounds of bias."He indicated that Eastman would get a fair hearing.
Eastman opposed the adjournment of the hearing of the contempt charge. He asserted that it was logical that it be disposed of first. The transcript clearly enough indicates that the proceedings became heated. The magistrate stood all matters over until 2 o'clock in the afternoon with a view to then disposing of the charge of wilful interruption. In fact, at 2.00pm, Eastman indicated to the magistrate that he had appealed to the Supreme Court against the magistrate's refusal to disqualify himself from hearing the contempt charge and also from continuing the hearing of the substantive charges. Further discussion then ensued which resulted in all matters being adjourned until 10.00am on 2 April. The magistrate announced the adjournment and dealt with the question of bail in the following terms:-

"Well, I will simply adjourn all matters till 10.00am, the day after April Fool's Day, 2 April and bail not required."

Eastman's application to the Supreme Court was unsuccessful. The nature and details of this application and determination have not been placed before this Court by either party. There has been no appeal by Eastman against the determination, nor has the second respondent in these proceedings relied upon it as, in any way, limiting the rights of Eastman to prosecute the subsequent proceedings brought by him including this appeal. In the circumstances we simply exclude this event from our consideration.
When proceedings resumed before the magistrate on 2 April 1992, the magistrate was advised of the result of Eastman's application to the Supreme Court and the prosecution indicated that it would prefer that the hearing continue in respect of the substantive charges with the charge under s 255 being deferred for later hearing. Eastman opposed this course, but the magistrate decided to follow it.
The prosecution called a witness. Eastman commenced interrupting the evidence. The magistrate then ordered his removal from the courtroom. He said to Eastman, "I do not intend to place you in custody but you will be excluded from the courtroom pending the determination of these proceedings."It is not suggested, nor could it be, that the magistrate was in error in taking this course. He gave short reasons for doing so, which appear in the transcript, and which plainly justify the course he took.
It then appears from the transcript that proceedings continued in the absence of Eastman until the completion of the prosecution's evidence. It is apparent that Eastman was then provided with a copy of the transcript, so that he could make submissions to the magistrate. He commenced to make submissions on 8 April.
Towards the end of that day, in the course of his submissions, Eastman made a comment about the conduct of prosecuting counsel. Counsel, apparently, interpreted the comment as being an allegation of impropriety. This led to a brief altercation at the bar table. So far as the transcript indicates the magistrate exercised care and patience in resolving the matter and restoring tranquillity to the courtroom. However, when the matter resumed the next day Eastman made a further application that the magistrate disqualify himself. That application and the resulting discussion are recorded in the transcript as follows:-

"THE DEFENDANT: Your Worship, before returning to the no case submission that I was in the middle of making when we adjourned yesterday there is a threshold issue that I wish to raise. And that is a renewed request on additional grounds for your Worship to disqualify yourself. I refer to the unfortunate incident yesterday afternoon when in the course of making my submission I was interrupted by the prosecutor. Now, as your Worship knows you have accused me of interrupting the proceedings on a number of occasions and as I understand it if the defence is making a no case submission and there is something that the prosecution disagrees with they are not entitled to interrupt the no case submission to voice their disagreement at that particular point. If there is anything that the prosecution disagrees with they should say so in their reply when their turn comes. And it seems to me there that the proper and the fair way for your Worship to have dealt with that was to tell the prosecutor quite frankly to shut up and not to interrupt me.

HIS WORSHIP: Well, I am a gentleman.

THE DEFENDANT: Now - or at least tell him not to interrupt perhaps not to use the word shut up. At any rate, that was not done, not only did you not tell the prosecutor not to interrupt me but I would submit that you in fact condoned and to a certain extent encouraged the interruption by agreeing with the complaint that the prosecutor was making which was that it was an unfair reflection on him to suggest that he neglected his duty in failing to elicit from Mr Duby evidence to the effect that Mr Duby was not concerned at all by these alleged calls on the grounds that that was not a neglected duty because Mr Duby's reaction to the calls is not a relevant consideration.

Now, whether that argument is right or wrong is beside the point. The point is that you sympathised with that argument of the prosecutor and as a result of that sympathy and that agreement with that argument you encouraged and prolonged his interruption and you gave an appearance of condoning the interruption by the prosecutor. That is the first basis on which I put my renewed submission and I find that there is blatant double standards there. I am quite sure - - - HIS WORSHIP: You quite amaze me, Mr Eastman, you quite amaze me.

THE DEFENDANT: Well, I do not really care what you - - - HIS WORSHIP: Yes, I am getting to that stage with you too, I mean you - - -

THE DEFENDANT: Yes, well, Mr Murphy - -

HIS WORSHIP: They are just frivolous points you are putting up at the moment this morning.

THE DEFENDANT: They are not - they are not frivolous points. They are not frivolous points.

HIS WORSHIP: Get on with your argument, will you, I do not even intend to entertain such nonsense.

THE DEFENDANT: Look - well, it is not nonsense. HIS WORSHIP: There was a proper objection by the prosecutor acting in the course of his duties. THE DEFENDANT: Yes.

HIS WORSHIP: And acting properly and would you get on with the submissions that you made yesterday, if you would not mind.

THE DEFENDANT: Well, I do not - well, I am making a submission for disqualification and - - - HIS WORSHIP: Well, I am not going to disqualify myself, I do not intend to sit here and listen to such nonsense. THE DEFENDANT: Well, I have not finished making the submission. Now, your Worship, I have said - - - HIS WORSHIP: Unless you have got anything further to say - - -

THE DEFENDANT: I have got something further to say but if your Worship keeps interrupting me I will not be able to say it.

HIS WORSHIP: Well, say it, will you. Just utter nonsense, you are stalling, you are wasting the court's time. THE DEFENDANT: I am not stalling or wasting time. HIS WORSHIP: Well, get on with your points, will you. THE DEFENDANT: You are wasting my time.

HIS WORSHIP: Well, get on with your points. THE DEFENDANT: All right. You are wasting my time - - - HIS WORSHIP: Well, get on with your points, mister - - - THE DEFENDANT: - - - and you are in breach of section 43 of the Crimes Act, attempting to pervert the course of justice and so is the prosecutor.

HIS WORSHIP: Goodness me.

THE DEFENDANT: With a list of 31 concocted charges that should have been thrown out on the first day. The time wasting is not being done by me.

HIS WORSHIP: Well, get to the issue of what you were on yesterday, I mean you were making some points yesterday but this other nonsense that you are going on with, please."

After some further exchanges in this vein, the magistrate refused to disqualify himself. The case was finally concluded and the magistrate reserved his decision on the substantive charges and also on the charge under s 255. Shortly thereafter Eastman sought and obtained an order nisi for the issue of a writ of prohibition which led to the hearing before Ryan J. In those proceedings Eastman sought that the magistrate be prohibited from determining any of the matters in respect of which he had reserved his decision. As already indicated he succeeded only in respect of the charge the magistrate had himself laid under s 255.
His Honour considered six specific heads of complaint which were raised by Eastman in relation to the proceedings before the magistrate. These were:-

(1) the order that Mr Eastman be removed to the cells on 31 March 1992;

(2) the refusal of bail;

(3) the reference to April Fool's Day;

(4) the magistrate's failure to disqualify himself;

(5) the terms in which the magistrate reserved his decision;

(6) withholding decision on consolidated information until hearing of related informations.

His Honour rejected Eastman's submissions on each of these topics except that relating to the refusal of bail. In this appeal Eastman has disputed his Honour's decision only in respect of the first and fourth headings. He has, however, additionally challenged his Honour's conclusion that his determination in relation to the topic of refusal of bail should lead only to the magistrate's disqualification from hearing the charge under s 255, it being Eastman's submission that it should also have led to his disqualification from the determination of all the charges brought against him.
Before considering the submissions made to us in relation to these topics, it is convenient to make reference to what has been said in decisions of high authority on the question of disqualification for apprehended bias, this being the basis upon which it is submitted that the magistrate should have disqualified himself and, in the absence of his so doing, Ryan J should have made absolute the order for prohibition.
In The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 in the judgment of the majority (Barwick CJ, Gibbs, Stephen and Mason JJ) their Honours, after a discussion of relevant authorities, referred with approval to Metropolitan Properties Co (FGC) Limited v Lannon (1969) 1 QB 577 and said this of that decision (at p 259):-

"Lord Denning MR commenced his discussion by citing the oft-repeated saying of Lord Hewart CJ in R. v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256, at p 259: 'It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.' After saying that he stood by that principle, Lord Denning MR continued (1969) 1 QB at p. 599:

'...in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. ... Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough.... There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased."'"

In Livesey v New South Wales Bar Association (1983) 151 CLR 288 at pp 293-5 the High Court restated the principle from Watson as follows:-

"That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. ...

In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways' (per Aickin J in Shaw (1980) 55 ALJR, at p 16). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court. Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process in which the views of the judges who constitute the appellate court prevail over the views of the judge or judges who constituted the court from which the appeal is brought."

This statement of principle applies equally to a situation where a reasonable apprehension of bias results from some ruling, statement of reasons, or judicial remarks during the course of a hearing. (Vakauta v Kelly (1989) 167 CLR 568, Galea v Galea (1990) 19 NSWLR 263)
We come then to the specific matters of complaint raised by Eastman in relation to the decision of Ryan J. In the first place Eastman submitted that his Honour erred in dealing with the complaint about that part of the magistrate's conduct which involved him in ordering Eastman to be removed to the cells. His Honour said "it has been submitted by Mr Eastman that the Magistrate lacked power under that section (s 255 of the Magistrates Court Act 1930) to order his detention in custody and that his decision to do so betrayed a degree of animosity, giving rise to a reasonable apprehension of bias". His Honour held that this claim was not made out. He had regard to all the circumstances surrounding the order made by the magistrate and said:-

"The inference from those circumstances which commends itself to me is that the Magistrate was simply concerned to give Mr Eastman time, in a salutary way, to reflect on the likely consequences of continuing to disrupt the proceedings. That concern was entirely justified by what had happened to that point in the proceedings and was expressed with considerable restraint and forbearance."

Even though, as we have held, the magistrate erred in law in doing what he did, we are not persuaded that his Honour erred in finding that the making of the order in all the circumstances did not operate to create the reasonable apprehension of bias necessary to disqualify the magistrate from continuing his hearing of the matter.
Eastman, in the argument of his appeal, next addressed himself to the topic of "the magistrate's failure to disqualify himself". He took issue with the primary judge's finding that no reasonable apprehension of bias could have resulted from the magistrate's conduct in dealing with Eastman's application that he disqualify himself, made on the morning of 9 April. The relevant passage from the transcript is set out above. Eastman submitted that his Honour had committed an error of law insofar as the portion of his judgment relating to this matter "implied that a magistrate is justified in continually interrupting and disparaging an application for his own disqualification, if he considered that the application has no merit...Magistrates should always hear disqualification applications with patience and courtesy (see GIO of NSW v A J Golby (1992) NSW Court of Appeal pp 20-24, 35-36)". As part of this submission Eastman asserted that both in respect of his application for disqualification made on 9 April and also on 1 April, the magistrate had made such intemperate responses as to give rise to reasonable apprehension of bias.
Ryan J dealt with and rejected the same submission. He did so in the following terms:-

"In support of (the submission), Mr Eastman relied on what he contended was the discriminatory conduct of the Magistrate in allowing Counsel for the informant to interrupt his, Eastman's, submissions of no case to answer. That was impliedly contrasted with the Magistrate's impatience with earlier interruptions of the proceedings by Mr Eastman himself. It is true that the so-called renewed application was entertained by the Magistrate with only scant indulgence.

However, an examination of the whole transcript reveals that the interruptions by Counsel for the informant were provoked by Mr Eastman's imputing, in the course of his submission, that the same Counsel had been guilty of impropriety in his conduct of the case. In my view, those interruptions were no more than a measured and appropriate response to those imputations. In allowing them to be made, the Magistrate did not say anything which could excite in the mind of a reasonable objective observer any apprehension of bias or animosity against Mr Eastman.

It is true that, in the course of rejecting Mr Eastman's application that he should disqualify himself, the Magistrate said, 'You quite amaze me Mr Eastman. You quite amaze me', and later accused Mr Eastman of talking 'utter nonsense' and 'wasting the court's time'. That was, concededly, strong language but, in my view, it was warranted in the circumstances by the extent to which Mr Eastman had transgressed the bounds to be observed by Counsel in undertaking the task of which the New South Wales Court of Appeal noted in GIO of New South Wales v Glascock (New South Wales Court of Appeal, 19 February 1991, unreported):

'Such an application calls for that blend of courage

and courtesy spoken of by the Full Court in Ex parte Bellanto v Prior (1962) 63 SR 190 at 204, and it should be heard by the judge with courtesy and patience. Courts must do more than pay lip service to the duty of a Counsel to represent his or her client with courage.'"

Our consideration of the circumstances surrounding the magistrate's refusal to disqualify himself on 9 April and also on 1 April satisfies us that his Honour was plainly correct in what he said. This ground of appeal is consequently rejected.
We come then to Eastman's final ground of appeal, namely that the primary judge, after deciding that the magistrate was disqualified from hearing the charge he laid under s 255 should have taken the further step of holding that the grounds for disqualification in that respect equally required disqualification from the hearing of the substantive charges. It is necessary, in the first instance, to have regard to what his Honour found under the heading "the refusal of bail". The material in the transcript relating to this matter has already been set out above. His Honour made the following findings in relation to the magistrate's conduct in the refusal of bail:-

"This action of the Magistrate occurred peremptorily, without any apparent consideration of the criteria to be weighed in considering whether to grant or refuse bail. No adequate reason was given for the refusal of bail and I consider the inference most readily available is that the Magistrate had determined to detain Mr Eastman overnight by way of punishment for the offence with which he had been charged.

That inference is reinforced by the fact that when the hearing of the charge which had been adjourned to the following morning was resumed and further adjourned, Mr Eastman was no less peremptorily released with bail not required. In my view, these circumstances give rise to a reasonable apprehension that the Magistrate had prejudged Mr Eastman guilty of the offence under s.255 with which he had been charged. Prohibition must therefore go to restrain the Magistrate from hearing that charge."

In dealing with the question whether his finding of reasonable apprehension of bias in this regard should have a disqualifying effect outside the area of that charge, his Honour gave the following reasons in his judgment:-

"It will be apparent from my examination of the separate instances of reasonable apprehension of bias invoked by Mr Eastman that only the instance directed to the charge under s.255 of the Magistrates Court Act can sustain an order absolute for prohibition. I have given anxious consideration to whether suspicion of premature punishment for that offence, which I have considered can reasonably be entertained, should be regarded as tainting the Magistrate's ability impartially to resolve some or all of the substantive charges. However, on reviewing Magistrate Murphy's conduct in relation to those charges, particularly after 31 March 1992 when Mr Eastman stood by for some days before enunciating his present complaints, I am not persuaded that an apprehension of bias in relation to those remaining charges could reasonably be entertained by a party or observer."

In submitting that his Honour was in error in coming to this conclusion, Eastman took issue with his Honour's finding that he had "stood by for some days" after 31 March 1992. It is a little difficult to understand what his Honour had in mind in this particular part of his reasons. If, indeed, his Honour meant that Eastman made no application for disqualification for "some days" after 31 March 1992, then there was an error of fact. It is clear from the transcript, in the passage set out above, that Eastman made a spirited submission that the magistrate disqualify himself on 1 April 1992. That submission was based upon apprehension of bias resulting from the magistrate having taken, as found by his Honour, the course of punishing Eastman by refusing him bail. We emphasise that that finding by his Honour was not challenged in the appeal.
However, we do not need finally to decide whether there was some error of fact involved in this portion of his Honour's judgment. We have come to the conclusion, after careful consideration and with respect to his Honour's careful decision, that we must disagree with him in this aspect of his judgment. We are of the view that both Eastman and a reasonable observer of the course of the litigation, would have entertained a reasonable apprehension of bias on the part of the learned magistrate resulting from the punitive nature of his refusal of bail following upon the formulation of the charge under s 255. We come to this conclusion with some regret as it is apparent that the magistrate had been confronted with a significantly difficult task in controlling the litigation before him in the face of continued interruptions by Eastman persisted in by him despite warnings given from the bench which were, for the most part, measured and temperate. However, in using the refusal of bail as an obviously punitive measure in advance of any determination of the issues raised under s 255, the magistrate, in our view, unfortunately produced a situation where there arose a reasonable apprehension that he was biased against Eastman. We think it impossible to "quarantine" this appearance only to the issues arising under s 255. In our view it must necessarily affect the whole of the proceedings. Accordingly, we must differ from the decision of the learned trial judge. We uphold this appeal.
The Court makes the following orders:-

1. The appeal be allowed.

2. The judgment of the Supreme Court of the Australian Capital Territory be varied by setting aside orders 2 and 3 of the orders made on 3 July 1992 and in lieu thereof it be ordered that:-

(a) the respondent magistrate be prohibited from further hearing and determining the offences under s 85ZE of the Crimes Act 1914 of which David Harold Eastman presently stands charged, being the offences the subject of the consolidated information laid by Michael Edward Reay ("the informant") on 6 December 1991; and

(b) the informant pay the costs of the proceedings commenced by the order of the Supreme Court (Gallop J) made on 24 April 1992.

3. The second respondent pay the appellant's costs of and incidental to the appeal.