Gleeson v Director of Public Prosecutions

Gleeson v Director of Public Prosecutions concerned an application for prohibition brought before the New South Wales Court of Appeal. The applicant sought to challenge a District Court judge's refusal to recuse himself from presiding over a criminal trial. The basis for the recusal application was that the judge's long-term partner was a Crown prosecutor who had provided advice to the police regarding the laying of charges against the applicant, although that prosecutor was not involved in subsequent pre-trial steps.

The central legal issue before the Court of Appeal was whether the judge’s association with the Crown prosecutor gave rise to a reasonable apprehension of bias, thereby disqualifying him from hearing the applicant's trial. The court was required to apply the test for apprehended bias, considering whether a fair-minded and informed lay observer, aware of all the relevant facts, might reasonably apprehend that the judge might not bring an impartial mind to the conduct of the trial.

The Court of Appeal found that the judge ought to have recused himself. Applying the principles established in *Ebner*, the court determined that the relationship between the judge and the Crown prosecutor, who had advised on the laying of charges, was sufficiently close and involved to create a reasonable apprehension of bias in the mind of a fair-minded lay observer. The court concluded that the judge's impartiality might reasonably be questioned due to this association.

Consequently, the Court of Appeal ordered that the District Court judge's decision declining to recuse himself be quashed, and issued an order in the nature of prohibition preventing him from further hearing the proceedings. No order was made as to costs, and the reasons for judgment were reserved.