EDWARDS v Police - [2004] SASC 419

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EDWARDS v POLICE
Judgment of The Honourable Justice Nyland
16 December 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE
Appeal against conviction - appellant charged with embezzlement as a public servant during employment as a police officer - information incorrectly particularised and amended during trial - whether magistrate erred in allowing amendment to the information after close of prosecution case - whether magistrate erred in finding a case to answer - whether magistrate erred in failing to declare a mistrial based on perceived/apprehended bias - appeal allowed - matter remitted to Magistrates Court for re-hearing before another magistrate.
Criminal Law Consolidation Act 1935, ss 177, 181, 281, referred to.
Ryan v Commonwealth Director of Public Prosecutions [1994] SASC S4506 (unreported), applied.
The Queen v Harper (1984) 117 LSJS 116; Petty v The Queen (1991) 173 CLR 95; Ling v Police (1996) 188 LSJS 488, considered.

EDWARDS v POLICE
[2004] SASC 419
Magistrates Appeal : Criminal

NYLAND J: This is an appeal against conviction. The appellant was charged on information that on 19 December 2002 at Murray Bridge, being employed in the public service of the Crown, he fraudulently embezzled money of the value of about $660, received by him for and on account of his employer, the Government of South Australia, contrary to the provisions of s 177(b) of the Criminal Law Consolidation Act 1935 (CLCA). The appellant pleaded not guilty to the charge and the trial proceeded before a stipendiary magistrate in the Adelaide Magistrates Court. At the conclusion of the prosecution case, counsel for the appellant submitted that there was no case to answer on the ground that the evidence had not proved the charge as particularised on the information due to the fact that the $660 alleged to have been received by the appellant was not “for or on account of his employer, the Government of South Australia”. The magistrate rejected this submission and allowed the particulars of the information to be amended to substitute for those words the words “by virtue of his employment”. The trial thereafter proceeded, and the appellant gave evidence. At the conclusion of the trial the learned magistrate found the appellant guilty of the charge against him.
Prosecution case at trial
At the relevant time the appellant was a police officer stationed at the Murray Bridge police station. The principle witnesses for the prosecution were Mr and Mrs Irvin, from Tailem Bend. They both gave evidence that at about 7.00 am on 19 December 2002 they left home and travelled to Murray Bridge to do their shopping. A few kilometres from Tailem Bend, on the Princes Highway, Mrs Irvin saw a purse on the gravel verge of the road, and instructed her husband to pull over. On alighting from their vehicle, the Irvins found not only a purse, but a licence, pension card, some credit cards and some cash notes. A closer examination revealed that more cash notes had blown across the highway onto the median strip. Whilst the couple were searching, one of their acquaintances drove past and was able to confirm in evidence their presence at the scene, although he did not stop to speak with them or ascertain their purpose. When they got back into their vehicle, Mrs Irvin counted the money they had found, which she said totalled $660. She put the money into the purse and they drove on to Murray Bridge.
The Irvins gave evidence that, after stopping briefly at the National Bank to withdraw money according to their usual habit, they took the purse to the Murray Bridge Police Station. They said that they gave the purse to the appellant who was the officer on duty, and explained that they had found it on the highway. Both Mr and Mrs Irvin said that they thought they told the appellant that there was $660 in it, and that the appellant said, “They will be happy to get that back for Christmas”. Mrs Irvin gave the appellant her name, address and telephone number, and both the Irvins said that he wrote the details on a piece of paper. The Irvins said the appellant responded “Thank you very much”. They then left the police station and went on to do their shopping. Both Mr and Mrs Irvin testified that the appellant did not at any stage examine the contents of the purse, nor offer to give them a receipt for the purse or its contents, nor inform them of any rights they may have as finders of it.
As a result of conversation with others, Mr Irvin thought that he should have been given a receipt for the purse and its contents. He remembered the name and address on the driver’s licence and found a telephone number, which appeared to match, through Telstra Directory Assistance. Mr Irvin telephoned the number but was put through to an answering service. He left a message requesting that the Ms Roddy, whose name was on the licence, return his call. Mr Irvin then telephoned the Murray Bridge Police Station and spoke with Constable Donna Liccione. She told him that receipts were generally issued when property was handed in. Mr Irvin said that he told Constable Liccione that he had handed in the purse, and asked if the owner had contacted the police station about it, mentioning the name “Roddy”. Constable Liccione had a look in the drawer where such items were usually placed, but could not see anything. She told Mr Irvin that she would look into the matter and contact him. It appears, however that Constable Liccione thereafter forgot the matter.
On the afternoon of Sunday 22 December, Ms Julie Roddy called the Murray Bridge Police Station. She had apparently travelled along the Princes Highway en route from Victoria to Perth. She left her purse on the rear bumper of the Toyota troop carrier vehicle in which she was travelling, following a stop at the Mobil Roadhouse in Tailem Bend. Ms Roddy spoke to Constable Kirsty Marnane at the Murray Bridge Police Station and asked her if her purse had been handed in. Constable Liccione was in the vicinity and heard the name “Roddy”. That reminded her of Mr Irvin’s telephone calls about the purse. Constable Marnane made an enquiry through the Police Property Management System (PPMS) and confirmed that the purse and licence were recorded, but there was no record of any money having been handed in. From the PPMS, she ascertained that the appellant had entered the details on the system. She asked Ms Roddy whether there had been any money in her purse, and was told that it had contained about $870.
Constable Liccione told Constable Marnane of Mr Irvin’s telephone calls, and Constable Marnane then called the appellant at home. The appellant told her that there had not been any money in the purse when he received it. Constables Liccione and Marnane subsequently reported the matter to their acting sergeant.
On the evening of 22 December, Constable Liccione phoned Mr Irvin at his home. At about 9 pm that evening two police officers arrived to interview Mr and Mrs Irvin separately. The following morning the appellant was asked to prepare a statement of his involvement with respect to receiving the purse and licence, and entering the details on the PPMS.
Apart from the evidence of Mr and Mrs Irvin, and Constables Liccione and Marnane, the prosecution relied on evidence establishing that it is common practice for a police officer receiving property handed in by the public to check the property, and in the case of a purse its contents, in the presence of the finder. Items are entered on the PPMS, and a receipt generated, which is given to the finder, itemising what was handed in. This is necessary because, depending on the nature of the item handed in, if it is not claimed after a certain period, the finder may have a right of claim to it. It is, therefore, important to ensure there is no discrepancy between what is handed in and what is claimed to have been handed in. It is also policy that the finder be advised of his or her rights in this regard. If cash is handed in, practice requires that it be placed in a cash tin, or if substantial, in a safe. This should also be recorded in a cash book. All property other than cash is then placed in a property room.
Defence case at trial
Following the finding by the learned magistrate that there was a case to answer, the appellant gave evidence on his own behalf. He said that he heard the front door open, and went to the counter where he saw Mr Irvin. He did not recall Mrs Irvin being present. He said that the purse was on the counter, which Mr Irvin told him he had found “out near the weigh bridge”. There was then some conversation about returning the purse to its owner which was interrupted by a telephone call. The appellant said he put the purse on a lower computer counter behind the front counter and went towards the rear of the office to answer the telephone, telling Mr Irvin that he could “hang on for a minute”. He said that Mr Irvin said, “No, that’s all right. As long as you can get it back”. The appellant said that while he was answering the telephone, he heard the front door of the station close, and when he looked, Mr Irvin had left the building. Telephone records showed an incoming call to the police station at 7.29 am. The appellant said that that was the extent of his dealings with Mr Irvin. The appellant denied that Mr Irvin mentioned money in the purse, and said that Mr Irvin did not stay long enough to allow an inspection of the contents of the purse, receive a receipt, nor offer his name and address.
The appellant said that following the phone call he forgot about the purse, and did not retrieve it until ten minutes later. He said that when he retrieved the purse from the counter at this point he examined its contents, and it did not contain any money. He did, however, find a licence, which provided him with a name allowing him to make checks as to whether the purse had been reported lost or stolen. He also said that he phoned Telstra Directory Assistance to ask whether there was a number for J Roddy, but that he was informed there was no listing for that name. The appellant said that, having recorded the purse and licence on the PPMS, he arranged for a letter to be sent to the address on the licence, informing the owner that it had been handed in at the Murray Bridge Police Station. He said that the property officer, Senior Constable Daly, then placed the purse in the property store.
The appellant suggested that during the ten minutes when the purse was left unattended, two other police officers who were on duty in the office adjacent to the reception area could have accessed the purse. Alternatively, there was the possibility that someone had entered the reception area through a door on the opposite side (which went through to the police cells and court house) and had access to the purse during those ten minutes. Finally, it was suggested that a friend or relative of a female who was arrested for committing traffic offences on that morning, and conveyed back to the police station, might have entered the reception area of the police station and reached over the counter to the purse. The appellant conceded, however, that he did not see anyone in the reception area at any relevant time.
Findings of the magistrate
At the conclusion of the evidence, the magistrate found the principal prosecution witnesses, Mr and Mrs Irvin, to be reliable witnesses, and honest in the way they dealt with Ms Roddy’s property and in the way they gave their evidence. He said he had “absolutely no hesitation in accepting Mr and Mrs Irvin’s account and rejecting the [appellant’s] account”. The magistrate found that the evidence was overwhelmingly in favour of Ms Roddy’s account of what occurred and capable of only one conclusion, namely, that the defendant had removed from the purse the $660 referred to by Mr Irvin and had kept it if for himself, recording the handing in of the purse and licence and deliberately omitting to include Mrs Irvin’s details as the finder. He therefore convicted the appellant and imposed a fine of $1500.
Grounds of appeal
The appellant’s complaints are:
1.     That the learned magistrate erred in finding a case to answer at the conclusion of the prosecution case.
2.     That the learned magistrate erred in allowing an amendment to the particulars of the information after the close of the prosecution case.
3.     That the learned magistrate erred in failing to declare a mistrial based on application of perceived/apprehended bias.
4.     That the learned magistrate erred in allowing the prosecution to cross-examine the appellant after re-examination.
On the hearing of the appeal, the appellant was represented by Mr Edwardson of counsel, and Mr Stewart of counsel appeared for the respondent.
Grounds 1 and 2
The first and second grounds of appeal arise out of the rejection by the magistrate of the no case to answer submission and his subsequent amendment to the particulars on the information.
The appellant was charged with embezzlement under s177 of the Criminal Law Consolidation Act 1935 (CLCA). Although this section has since been repealed, it was in force at the time of the offence, and states:
“Any person who, being employed in the public service of the Crown –
(a)steals any chattel, money or valuable security belonging to, or in the possession or power of, the Crown, or entrusted to, or received or taken into possession by, that person by virtue of his employment;
(b)embezzles, or in any manner fraudulently applies or disposes of, for any purpose except for the public service, any chattel, money or valuable security entrusted for, or received or taken into possession by, him by virtue of his employment,
shall be guilty of an offence and liable to be imprisoned for a term not exceeding eight years.”
The appellant was charged under s 177(b). The particulars of the charge alleged that he “being employed in the public service of the Crown fraudulently embezzled money of the value of about $660 received by him for or on account of his employer, the Government of South Australia”. Following the ruling that there was a case to answer, the particulars were amended by the deletion of the words “for or on account of his employer, the Government of South Australia”, and the substitution of the words “by virtue of his employment”.
In his ex tempore ruling on the no case to answer submission, the magistrate said that he was told, and accepted for the present purposes, that the words “for or on account of his employer” usually appeared in pleadings relating to charges of embezzlement. He noted, however, that embezzlement usually involves an employee taking money improperly during the course of employment where that money is actually paid to the employee for or on account of the employer. Clearly that was not the precise situation in this case, and the magistrate observed as much, noting that the money allegedly received by the appellant-
“… at all times belonged to its true owner but there was provision under the police regulations that if the true owner did not claim the money within a particular period of time the money could be paid to the finder of it and if not paid to the finder of it, could be forfeited to the Crown. The Government of South Australia at no stage had, or could assume title to the money save and accept that it was not claimed by its true owner or by the finder.”
Thus whilst the informant preparing the charge simply employed the wording that is habitually used in embezzlement cases, the particulars as charged reflected neither the wording of s 177(b) of the CLCA, nor the precise factual scenario before the Court.
Mr Edwardson submitted that the prosecution had proceeded on the basis that the money that was said to have been embezzled was, in fact, received for and on account of the appellant’s employer. As this could not be the position in reality, the appellant was entitled to expect the magistrate to find in his favour that the prosecution had not successfully made out a case to answer with respect to the charge as framed.
In his written outline, Mr Edwardson submitted that the prosecution case could, at its highest, only amount to a case to answer for the offence of larceny as a bailee. It was submitted both before the magistrate and before me, however, that s 181 of the CLCA (also now repealed) which had operated to allow a jury to return a verdict of larceny in the situation where the offending alleged was not embezzlement but rather a form of larceny, was inapplicable in this case for two reasons. Firstly, because the offence of larceny as a bailee was not referred to in s 181. Secondly, because even if the section did apply to repealed s 177, it did not apply to proceedings in the Magistrates Court, due to its reference solely to jury verdicts. Although s 130, which defines Part 5 of the Act, now defines “jury” to include a magistrate sitting alone, there was no corresponding provision in the CLCA at the time this offence was allegedly committed, and s 181 thus provided no comfort to the prosecution in these proceedings.
Mr Stewart submitted that the case against the appellant clearly and unambiguously amounted to a case of embezzlement by a public servant and not larceny by a bailee. He further submitted that s 181 had no application to this case. Although I refer to this submission for completeness, it should be noted that the magistrate did not indicate that he came to any conclusion one way or another on this issue. It seems clear from his amendment of the particulars that he did not rely on a finding of larceny to overcome the defective pleading. This submission was not agitated significantly in oral argument, and I do not think it has any real relevance to or bearing on the issues I need to resolve on appeal.
Mr Edwardson submitted that the charge as originally particularised was the case that the appellant came to court to meet, and the trial had proceeded on that basis. Mr Edwardson emphasised the importance of particulars in compelling the prosecution to clearly identify its case. He referred to the transcript of argument in R v Boxall, Pelle & Stillisano[1] (unreported) wherein Cox J commented:
“There are two purposes for which particulars are desirable: first and most obvious, so that the defendant will know what case he has to meet and, secondly, so that the Crown will be committed to a particular case. It is not uncommon in any kind of trial to find that, when the trial proceeds, there is a degree of ambiguity in the information, so that the Crown is left with some kind of option, or perhaps even duplication, about the case that it can finally present to the jury. Plainly, that is undesirable and it is only fair that an accused person should be entitled to know precisely what case he has to meet and, where there is such an ambiguity, which of the disclosed cases he has to meet.”
Mr Edwardson did not, however, point to any real ambiguity in this case which had prejudiced the appellant, nor any specific way in which the appellant had been prejudiced by the amendment of the information, other than the prejudice which is caused to any defendant by the strengthening of the Crown case against him.
[1] SASC Action No SCCRM-89-502
Mr Stewart submitted that very little prejudice was done to the appellant by the amendment of the information. He acknowledged that whenever an information is amended, prejudice is caused to an accused, but submitted that in this case it should have been obvious right from the start that the particulars did not correctly reflect the section. It was clear that the only entitlement that the appellant ever had to the purse and its contents was by way of his employment, and Mr Stewart submitted that, accordingly, the amendment to the particulars did not materially alter the allegation or change the case which the accused had to meet.

Section 281 of the CLCA, which deals with informations and amendments thereof, provides:
“(2)When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.”
The learned magistrate presumably had this section in mind as he said:
“I don’t consider that there is any prejudice or injustice to the defendant in the event that I allow the amendment. The defence knows fully the allegations against the defendant and knows fully the case that it is required to answer. I am of the view that there are imperfect pleadings in this case, I am of the view that it is a case where I should amend the pleadings to properly recite the wording of the section.”
Mr Stewart further submitted that there was an historical tendency for charges such as embezzlement and larceny to involve changes in particulars, and even in the charges themselves throughout the course of proceedings. Mr Stewart referred to the judgment of Cox J in The Queen v Harper[2], in which His Honour noted that there are reports, “not always reconcilable with one another, in which the offence proved was held to be either larceny or embezzlement, with the point often depending upon the nicest of distinctions.”
[2] (1984) 117 LSJS 116 at 118
Mr Stewart also submitted that the ground relied upon by the appellant for his no case submission should have been taken up earlier in the proceedings, rather than being left to the end of the prosecution case. In this regard, he pointed out that following the amendment of the information there was no application by the defence for an adjournment, a stay of proceedings, nor any application to recall any prosecution witnesses. This suggested that the appellant’s defence was not prejudiced by the late amendment.
Although Mr Edwardson submitted that the amendment of the information at the conclusion of the prosecution case allowed the trial to proceed on a different footing and was therefore an appealable error, he failed to demonstrate any real prejudice visited on the appellant by reason of the amendment. Section 281 of the CLCA has a directive quality which obliges the court to make an amendment where the pleading is defective, unless such amendment cannot be made without injustice. The elements of the offence stipulated in s 177(b) were the focus of the prosecution case, and the thrust of the case against the appellant had always been that he had received the money by virtue of his employment in the public service. Accordingly, the appellant and his counsel were aware of the case that had to be met. No prejudice appears to have been caused by the amendment of the information at the close of the prosecution case. In the circumstances I do not think that the magistrate erred in rejecting the appellant’s submission that there was no case to answer, nor in amending the information.
Ground 4
The events that give rise to ground 4 are also relevant to the third ground of appeal. For reasons which hereafter appear, it is convenient to deal with the fourth ground first. Ground 4 is a complaint by the appellant that the learned magistrate erred in allowing the prosecution to cross-examine the appellant a second time after re-examination had concluded.
As I have mentioned, the appellant gave evidence on his own behalf. During cross-examination by counsel for the respondent, the appellant was asked about his conversation with Constable Marnane when she phoned him at his home to enquire about the purse. The appellant testified that at the time he spoke to Constable Marnane he was not worried that there may have been money missing from the purse, because when he had opened the purse there had not been any money inside. He was asked whether it had crossed his mind that during the 10 to 15 minutes he had left the purse lying around somebody could have swiped the money, and he replied, “I knew I left it lying around for 10 minutes. That is what I put in my statement on the Monday.”
In re-examination, counsel for the appellant at trial, returned to the topic of the statement given by the appellant and asked whether, at the time he gave the statement, he also mentioned that he had called 1223 (Telstra Directory Assistance). The appellant said he was unable to recall what he had put in his statement. His counsel showed the statement to him and having looked at it, the appellant answered affirmatively that he had mentioned the 1223 call at the time he gave the statement.
Counsel for the respondent then asked the magistrate whether he could ask the appellant some further questions about the statement, as it had been “developed a little”. The appellant’s counsel objected to this course, but the magistrate indicated that as counsel had raised the document, identified it to the witness, and asked him a question arising from it, he would allow counsel for the respondent to further cross-examine with respect to it. Counsel for the respondent then proceeded to cross-examine the appellant about some suggested inconsistencies between what he had said in his statement as opposed to his evidence in court. Counsel for the appellant was then provided with a further opportunity for re-examination.
This ground was not addressed at any great length on appeal, but in the course of submissions I was informed that it had been agreed in the Magistrates Court that the appellant’s statement would not be used by either party in the trial. In answer to a question from counsel for the respondent, however, the appellant had volunteered information about it, as a result of which his counsel had shown the document to the appellant and re-examined him for the purpose of clarifying the evidence relating to the 1223 call. Mr Stewart submitted on the hearing of the appeal that as the re-examination did not show the whole nature of the document, the only fair way of dealing with it was to allow the whole context to be brought out by further cross-examination.
If in fact all the appellant did in the course of re-examination was to refer to the document for the purposes of refreshing his memory, then I have difficulty in seeing how that entitled counsel for the respondent to cross-examine further on the document. The matter is not, however, completely straightforward in view of the prior agreement between the parties not to refer to the document, the reason for that agreement being unclear. It may be that in view of that agreement, the course adopted by the learned magistrate was appropriate as a matter of fairness. It is unnecessary for me to reach any final conclusion about this matter, however, as the significant issue which arises from it is the fact that it resulted in a somewhat intemperate exchange between counsel for the appellant and the magistrate, which is of particular relevance to the third ground of appeal which was ultimately the focus of argument in the course of the hearing before me.
Ground 3
The third ground of appeal concerns the magistrate’s refusal to declare a mistrial on the basis of perceived/apprehended bias. An application for a mistrial was made by the appellant at the conclusion of the defence case, but was refused by the learned magistrate. Although the magistrate indicated that he would later provide reasons for that refusal, none were available on the hearing of the appeal. It should also be mentioned, in light of the nature of the appeal, that due to malfunctions with the tape recording equipment, not all the exchanges between the magistrate and counsel concerning these matters are fully recorded in the trial transcript. Both the appellant and the respondent have, however, provided affidavits from counsel at trial deposing to their recollections of what occurred at the hearing before the magistrate.
The appellant bases his application on two grounds. First, the attitude that the appellant alleges the magistrate showed towards the defence case at the beginning of the trial and during the cross-examination of the Irvins. Secondly, the exchange between the magistrate and defence counsel concerning the re-opening of cross-examination by the prosecutor after re-examination had concluded, and his ruling in this regard.
Mr Edwardson submitted that the case “got off to a very bad start” when, prior to the opening of the prosecution case, the magistrate asked counsel for the appellant what the issue was at trial. In his affidavit in support of the appeal, counsel for the appellant at trial said that he recalled informing the magistrate that the predominant issue was the credibility of the Irvins, and the circumstances concerning their attendance at the Murray Bridge Police Station. He said:
“I recall the initial reaction of the magistrate expressed surprise and involved the rolling of his eyes … The comment by the learned magistrate conveyed the impression that the defence mounted concerning the Irvins’ evidence was not usual and indicated in my opinion the fact that it could be apprehended by a fair minded observer that the learned magistrate was not approaching the defence with an impartial mind.”
Mr Edwardson submitted that the magistrate’s question to counsel was effectively a request to know what the defence was. As such, it contravened clear direction from the High Court in Petty v The Queen[3], and the Full Court in Ling v Police[4] that no judicial officer in any capacity should purport to ask that. In this way, Mr Edward submitted that there was a clear indication of apprehended bias.
[3] (1991) 173 CLR 95
[4] (1996) 188 LSJS 488
Mr Stewart submitted, however, that the magistrate’s behaviour could not be put as high as the appellant suggested, and pointed out that what occurred could have been no more than a magistrate sitting alone attempting to sort out the contentious issues and narrow down the matters in dispute. The respondent also produced an affidavit from counsel for the respondent as to what had occurred before the magistrate. He essentially agreed with the contents of the affidavit of counsel for the appellant in terms of the questions posed by the magistrate and the answer given by him. Counsel for the respondent recalled the magistrate saying, “But they’re the ones that are pushing this thing”, but went on to say:
“I would have characterised the response of the magistrate at the time as indicating that he found the defence contention somewhat curious or unexpected. I do not specifically recall the learned magistrate rolling his eyes and do not recall any further comment regarding this issue being made at the time. Following this exchange, my recollection is that the learned magistrate asked a series of further questions to ascertain what matters were genuinely in dispute and to ascertain what witnesses the prosecution would be calling and for what purpose.”
If the only perceived problem was that which was identified as being at the commencement of the trial, that might well have been the end of the matter. However, the interchange between the magistrate and counsel in response to what, in my view, was quite a proper objection arising out of the application to cross-examine further after re-examination, resulted in what was not only an inappropriate comment to counsel, but one which bordered on the offensive. As I said in Ryan v Commonwealth Director of Public Prosecutions[5]:
“In this case the issue is not whether there was actual bias on the part of the magistrate, but whether the magistrate’s comments would give rise to a reasonable apprehension of bias, and thereby undermine confidence in the impartiality of the judicial system. Confidence in the integrity and impartiality of the judicial system is of fundamental importance, and accordingly the authorities are strong in this area. The recent decisions of the High Court indicate the very high standards of manifest neutrality and impartiality to be adhered to by courts in Australia. The law is briefly stated by Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342 at 351-352:
‘The problem is governed by the principle that 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 NSW Bar Association (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.’”
[5] [1994] SASC S4506 (unreported)
In this case, it would appear that throughout the trial there were some unfortunate exchanges between the magistrate and counsel representing the appellant. While some may be considered to be no more than a robust exchange between counsel and a busy magistrate endeavouring to define the issues in the trial, when the accumulation of them is considered, I think the fair-minded lay observer would be left with the perception that the learned magistrate was biased against the appellant. In all the circumstances I think that as a matter of fairness, it is appropriate to allow the appeal, set aside the conviction and sentence, and remit the matter to the Magistrates Court for further hearing before another magistrate.