Flavel v Morsby - [2012] VSC 433

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. S CI 5208 of 2012

HOWARD THOMAS FLAVEL	Plaintiff
v
GEOFFREY MORSBY	First Defendant
and
THE MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2012
DATE OF JUDGMENT:	12 September 2012
CASE MAY BE CITED AS:	Flavel v Morsby
MEDIUM NEUTRAL CITATION:	[2012] VSC 433

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ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Bias - Application for review of interlocutory decision in criminal proceeding - Whether apprehension of bias – Whether fragmentation of criminal proceeding justified – Discretionary considerations.

MAGISTRATES’ COURTS – Apprehended bias – Application for review of decision to reject disqualification submission made during hearing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Simon	Power & Bennett
For the First Defendant	Mr A Cockayne (Solicitor)	Department of Primary Industries
For the Second Defendant	No appearance

HIS HONOUR:

I have before me an application by originating motion for relief in the nature of certiorari following the refusal of a magistrate to disqualify himself from continuing to hear criminal charges at Horsham on the grounds of apprehended bias. The plaintiff has been charged with 55 counts under the Prevention of Cruelty to Animals Act 1986. The charges relate to the circumstances of treatment of horses.

The hearing of these charges, to which the plaintiff has pleaded not guilty commenced at the Horsham Magistrates' Court on Tuesday 11 September 2012. It has not yet concluded. During introductory discussions in the matter, the magistrate advised the court that he had an involvement or an interest in horses and he hoped that the case would not be too distressing. It appears that that statement did not result in any application being made to the magistrate.

Each of the prosecution and the defence completed opening statements. The detail of those matters, or at least what was said by way of opening statements, is not before the court.

By the afternoon of 11 September 2012, the prosecution was calling its second witness. During the course of the evidence, the magistrate remarked, "Is this the horse the subject of the charge of aggravated cruelty?" The prosecutor replied, "Yes". The magistrate remarked, "No wonder".

It is not clear from the affidavit what the evidence was that resulted in that exchange. The examination of the witness then continued and the magistrate interrupted counsel's examination of the witness addressing a remark to Mr Marshall who appeared for the plaintiff. The following exchange occurred.

His Honour:

Mr Marshall, can I just say this. I am telling you now, not prejudging the matter in any shape or form as you indicated in your defence what your defence was, the evidence relating to horses one, two, three and five is pitiful – extremely distressing and painful to listen to.
(Discussion ensued)

So the magistrate then said to Mr Marshall:

It is very upsetting and just appalling that a horse could be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flavel v Morsby

Details

AGLC: Flavel v Morsby [2012] VSC 433
Case: [2012] VSC 433
Decision Date: 12 September 2012

CaseChat Overview and Summary

Flavel v Morsby is a case involving an application for judicial review of an interlocutory decision made in a criminal proceeding. The applicant, Flavel, sought to have the decision reviewed on the grounds that the magistrate who presided over the case may have been biased. The respondent, Morsby, was the magistrate in question. The application was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the magistrate's conduct during the hearing gave rise to a reasonable apprehension of bias. The applicant argued that the magistrate's conduct indicated a partiality that would lead a reasonable observer to question the magistrate's impartiality. The respondent argued that the magistrate's conduct did not give rise to a reasonable apprehension of bias and that the application should be dismissed. Additionally, the court needed to consider whether the fragmentation of the criminal proceeding justified a review and what discretionary considerations were relevant in this context.

The court held that the magistrate's conduct did not give rise to a reasonable apprehension of bias. The court found that the magistrate's comments were made in the context of ensuring that the proceedings were conducted fairly and efficiently, and that there was no evidence to suggest that the magistrate was partial to any party. The court also held that the fragmentation of the criminal proceeding did not justify a review, and that discretionary considerations did not favour the applicant. As such, the application for judicial review was dismissed.

The court made no orders regarding costs.

Orders