Heywood v Local Court of New South Wales - [2024] NSWSC 1047

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Heywood v Local Court of New South Wales [2024] NSWSC 1047
Hearing dates: 24 November 2023, 7 December 2023 and 12 February 2024, (final part of recording of the proceedings in the Local Court provided 24 February 2024)
Date of orders: 21 August 2024
Decision date: 21 August 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) Pursuant to s 69 of the Supreme Court Act 1970 (NSW), an order is made in the nature of prohibition precluding Magistrate Mark Richardson from hearing the proceedings Police v Heywood.
(2) Submissions will be heard with respect to the costs of the proceedings.

Catchwords:
COURTS AND JUDGES – apprehended bias – claim for prerogative writ following refusal by Magistrate to disqualify himself – robust exchanges in Court – rude and bullying comments by counsel for the accused to and about the police prosecutor – patronising, lecturing tone adopted by counsel for accused directed to the Magistrate and police prosecutor – counsel for the accused’s overly sensitive response to objections taken – poorly framed questions by counsel in cross-examination of child – asserted cumulative effect of attitude of Magistrate to legal representatives of the accused – application that Magistrate disqualify himself on ground of apprehended bias – application refused by Magistrate – wrong test applied in the reasons – error of law in decision refusing disqualification application – test for actual bias articulated rather than test for apprehended bias – fair-minded lay observer – apprehended bias established – a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is to decide – “double might” test is a relatively low bar – prohibition and certiorari granted

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Summary Offences Act 1988 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:
Adacot v Sowle [2020] FamCAFC 215
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) [2013] FCAFC 150
Polsen v Harrison [2021] NSWCA 23
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419
Roylance v Director of Public Prosecutions (NSW) [2018] NSWSC 933
State of New South Wales v Madden [2024] NSWCA 40
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872

Category: Principal judgment
Parties: Brigid Heywood (Plaintiff)
Local Court of New South Wales (First Defendant)
Senior Constable Heath Aiken (Second Defendant)
Representation:
Counsel:
S Howell (with J Pappas present on 24 November 2023) (Plaintiff)
Solicitors:
Hugo Law Group (Plaintiff)
Crown Solicitor’s Office (First Defendant) (Submitting Appearance filed on 14 July 2023)
Makinson d’Apice Lawyers (Second Defendant)

File Number(s): 2023/00215848
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the child Informant’s name or any other information that might identify her is prohibited.

JUDGMENT

Brigid Heywood seeks prerogative relief under s 69 of the Supreme Court Act 1970 (NSW) to prevent Magistrate Richardson (“the Magistrate”) from continuing to hear criminal proceedings involving two charges brought against her arising from her alleged conduct in respect of a child on 8 March 2022.
On 5 July 2023, the second day of the substantive hearing at the Local Court at Armidale, an oral application was made by counsel then appearing for Ms Heywood, Mr Pappas, first for an adjournment to obtain the transcript, and when that was refused, for the Magistrate to disqualify himself from further hearing the matter on the basis of apprehended bias.
The Magistrate refused the application. He also refused an application for adjournment of the hearing made immediately after his reasons were delivered. Ms Heywood’s counsel indicated an intention to prepare and file a Supreme Court summons seeking prerogative relief. A summons was filed in this Court the next day, 6 July 2023.
The proceedings continued in the Local Court for a third day on the afternoon of 6 July 2023. At the end of that day, further dates for hearing were discussed. The hearing was listed to continue on 2 April 2024 for three days before the Magistrate, but in January 2024, the dates allocated were vacated by the Local Court. My understanding was that this was done at the request of the Magistrate, apparently because of the part-heard Supreme Court hearing and potential delays to the continuation of the Local Court hearing because of these proceedings.
At that stage, the hearing in this Court had been adjourned from 7 December 2023, part-heard, to 12 February 2024, as it had been agreed that the tone with which certain things were said by the Magistrate (and counsel) during the hearing required that I listen to the audio file of the whole of the proceedings. At that time, the whole of the audio had not been obtained. The final part of the audio was provided on 24 February 2024.
Three grounds for judicial review were set out in the summons:

That the Magistrate should be disqualified from hearing the case on the grounds of apprehended bias (evidenced by his conduct in the trial).

That the Magistrate wrongly refused the application that he must disqualify himself on the grounds of apprehended bias.

That the Magistrate applied the wrong legal test when determining the application to disqualify himself, instead applying the test for actual bias.

The Local Court of New South Wales filed a submitting appearance. The second defendant, the Officer in Charge of the investigation, was represented by a solicitor, Mr Deards, who argued that none of the grounds of appeal were made out and that the matters complained of, taken cumulatively, did not establish a case for apprehended bias.
Due to the nature of the arguments, it is necessary to reproduce in full a number of the exchanges that occurred in the Local Court. Having listened to all of the audio, and having carefully considered the oral and written submissions made by Mr Howell of counsel on behalf of Ms Heywood, and of Mr Deards, I have come to the view, reluctantly, for the reasons that follow, that the relief sought in the summons should be granted and that all three grounds for judicial review have been established.
Pursuant to s 69 of the Supreme Court Act, an order in the nature of prohibition will be made, precluding the Magistrate from hearing the proceedings: Police v Heywood. The matter will now have to recommence before a different Magistrate.

The parties and background to the proceedings in the Armidale Local Court

On 8 March 2022, a public event was held at the Armidale Ex Services Memorial Club to mark International Women’s Day. The event was attended by members of the Armidale community, including students from several local high schools. Ms Heywood was one of three guest speakers at the event. At the time she was the Vice-Chancellor of the University of New England. It is alleged that as attendees mingled following the conclusion of the event’s formalities, Ms Heywood licked her index finger and wiped it on a schoolgirl’s face, making an offensive and racist comment as she did so.
On 1 August 2022, Ms Heywood was charged with offences contrary to s 61 of the Crimes Act 1900 (NSW), of common assault; and s 4(1) of the Summary Offences Act 1988 (NSW), of behaving in an offensive manner in a public place. She entered pleas of not guilty on 26 September 2022.

Principles - apprehended bias

As stated by Bell CJ in State of New South Wales v Madden [2024] NSWCA 40 at [100]:

“In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], the High Court stated that an apprehension of judicial bias arises where (see also Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]):
“…a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.”

I have taken into account the following propositions collected by Bell P (as the Chief Justice then was) in Polsen v Harrison [2021] NSWCA 23 that emerged from decisions of the High Court and various Courts of Appeal:

“[44] The first stage of the two stage Ebner test requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits whilst the second requires an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
…
[46] To the passages from the authorities extracted and emphasised by the trial judge (see [23]-[24] above) may be added the following propositions:
(i)   the application of the apprehended bias rule depends on the circumstances of each case; [1]
1. British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [133]; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87–88; [1990] HCA 31 (“Laws”)
(ii)    the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary; [2]
2. Webb v The Queen (1994) 181 CLR 41 at 73; [1994] HCA 30 (“Webb”); Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12] (“Johnson”); Grollo v Palmer (1995) 184 CLR 348 at 394; [1995] HCA 26; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 at [29]
(iii)    there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer “might” apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite “firmly-established” apprehension of bias; [3]
3. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (“Re JRL”); [1986] HCA 39; Tarrant v R [2018] NSWCCA 21 at [12]
(iv)    a finding of apprehended bias is not to be reached lightly; [4]
4. Re JRL at 371; [1986] HCA 39; CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140; [2019] HCA 50 at [56] (“CNY”)
(v)   this is because the training, tradition and oath or affirmation of a professional judge require him or her to discard the irrelevant, the immaterial and the prejudicial; [5]
5. Vakauta v Kelly (1989) 167 CLR 568 at 584–585; [1989] HCA 44 (“Vakauta”); CNY at [28]
(vi)    the duty of a judge to disqualify for proper reasons is matched by an equally significant duty to hear any case in which there is no proper reason to disqualify; [6]
6. Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 at [32]
(vii)    the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality, such that[7]
7. Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299; [1983] HCA 17 (“Livesey”)
(viii)    the rebuttal of this presumption requires a “realistic possibility” of the apprehension of bias which is not “fanciful or extravagant” but is based on “the established facts” of the matter; [8]
8. McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at [110]; Day v Sanders [2015] NSWSC 173 at [94]; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 518–519; [1972] HCA 53
(ix)    “neither complacent nor unduly sensitive or suspicious”, the fair-minded lay observer may have a level of scepticism as to professional pretensions, but will be cognisant of and vigilant against his or her own prejudices; [9]
9. Rouvinetis v Knoll [2013] NSWCA 24 at [24]; S&M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 375–376 (“S&M”); Johnson at [53]
(x)    the inquiry as to whether a judge might reasonably be apprehended to deviate from bringing an impartial mind to the resolution of a particular issue “requires no prediction about how the judge … will in fact approach the matter” and “admits of the possibility of human frailty”; [10]
10. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7]–[8] (“Ebner”)
(xi)    the fair-minded lay observer is not presumed to reject the possibility of pre-judgment of a matter, otherwise an apprehension of bias would never arise in the case of a professional judge; however,[11]
11. British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [145] (“British American Tobacco”); Livesey at 299
(xii)    interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge’s desire to understand the evidence and to advance the trial process; [12]
12. Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [4]; Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103]
(xiii)    it is “difficult, and probably impossible, to state in the abstract, in a manner suitable for application to cases generally, the degree of knowledge to be attributed to a fair-minded observer”; [13]
13. IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151; [1999] SASC 249 at [185]
(xiv)    there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the “actual circumstances of the case” as though the observer was sitting in the court; [14]
14. Webb at 73
(xv)    the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made; [15]
(xvi)    the context which must be considered includes the legal, statutory and factual context in which the decision is made, and “the totality of the circumstances”, although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles; [16]
(xvii)    the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time of an application for recusal and includes published statements made by the judge (whether prior, contemporaneous, or subsequent to the recusal application); [17]
(xvii)    the fair-minded lay observer will not act on “insufficient knowledge”, but will “inform himself [or herself]” of the relevant circumstances, without making “snap judgments”; [18]
(xix)    the judge’s own view about his or her ability to decide the case independently and impartially, as recorded in any reasons for dismissing a recusal application, carries little weight in the fair mind of the hypothetical lay observer, although [19]
(xx)    statements in a recusal judgment regarding factual matters, including the particular context of the comments or conduct in question, may be relevant; [20]
(xxi)    the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation; [21]
(xxii)    the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context; and[22]
(xxiii)    subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a particular point of view.” [23]
(Footnotes renumbered for this judgment).
15. Laws at 87
16. Webb at 73, fn 25
17. Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23] (“Isbester”); CNY at [58]
18. Isbester at [20]
19. CNY at [21]
20. Johnson at [13]
21. Webb at 73–74; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [28]; Isbester at [23]
22. S&M at 380–381; AB v Director of Public Prosecutions (NSW) [2016] NSWCA 73 at [21]
23. British American Tobacco at 309 and 331

In 2023, the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 at [37] to [38] per Kiefel CJ and Gageler J and per Gordon J at [67] to [73] further considered in practical terms what was required by the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63:

“[37] The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".
[38] Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
…
[67] As this Court held in Ebner v Official Trustee in Bankruptcy, a judge is disqualified, subject to qualifications relating to waiver or necessity, "if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The Ebner test has two steps: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
[68] Four aspects of the test are critical to observe. First, it is an objective test: it does not require a conclusion about the judge's actual state of mind or an assertion of actual bias. The principle gives effect to the requirement that justice should both be done and be seen to be done.
[69] Second, it is a test of possibility, not probability - whether the fair-minded lay observer might reasonably think that the judge might be biased. It has even been said that the fair-minded lay observer is generally taken to be mistaken because decision-makers will rarely be biased in the ways attributed to them, as the observer might have appreciated if fully apprised of the operation of a particular decision maker. That said, a finding of apprehended bias is "not to be reached lightly". In determining whether an apprehension of bias arises, relevant considerations include "the legal, statutory and factual contexts in which the decision is made" and "the nature of the decision ..., what is involved in making the decision and the identity of the decision maker".
[70] Third, the test is not prescriptive about the ways in which a reasonable apprehension might arise. "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty". Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: "the hypothetical observer would recognise that judges are human, not a 'passionless thinking machine' or robot just assessing information".

[71] Fourth, the adjective "lay" in relation to the fair-minded observer is critical – "[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer" with the knowledge and professional self-appreciation of a lawyer, let alone that of an experienced judge. The fair-minded lay observer is a member of the public because the principle is concerned with maintenance of public confidence in the justice system. "[I]t is the court's view of the public's view, not the court's own view, which is determinative".
Knowledge of the fair-minded lay observer
[72] The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it was made, and the circumstances leading to the decision. The fair-minded lay observer is taken to have "a broad knowledge of the material objective facts", as distinct from a detailed knowledge of the law or of the character and ability of the decision-maker. In considering whether an allegation of apprehended bias on the part of a judge is made out, "the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case".
[73] As the test is objective, the state of mind of the judge in question is irrelevant. So too are the reasons for judgment given by the judge ex tempore or published by the judge after the trial. The test turns on the facts and circumstances that might give rise to the apprehension of bias at the time of the hearing and determination. For that reason, Bromwich J's reasons are not within the knowledge of the fair-minded lay observer. The material facts stated by his Honour in his ex tempore reasons should have been provided to the parties in the associate's email or stated in open court during the hearing. That would have allowed the parties to address those facts in their submissions to the Court. It would also have allowed any facts known only to Bromwich J – for example, his level of conscious recollection – to form part of the knowledge of the fair‑minded lay observer, to the extent relevant.”
(Footnotes omitted).

Relevance was also placed by Mr Howell on the succinct observations of Johnson J in Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425 (“Gaudie”) at [87] to [89]:

“[87] As the rule is concerned with appearance of bias, and not the actuality, it is the perception of the bystander that provides the yardstick - it is the public's perception of neutrality with which the rule is concerned: British American Tobacco Australia Services Limited v Laurie at 331 [139].
[88] The bystander may have regard to the cumulative effect of factors: AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236 at 254-255 [67]-[68]. Later statements may serve to reinforce an impression created earlier: Antoun v The Queen at 52 [2].
[89] Similarly, it has been recognised that any statement by a judicial officer which qualifies, corrects, dispels or clarifies what has been said on a prior occasion, may be taken into account by the bystander, and may operate against a finding of apprehended bias: Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572, 587; Johnson v Johnson at 494 [14], 495 [18]. It has been said as well, however, that circumstances may exist where the appearance of bias is ineradicable: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 372.”

Ground 1 - disqualification for apprehended bias

Mr Howell submitted that the Magistrate manifested apprehended bias by reason of his comments to and about the legal representatives appearing for Ms Heywood, his intervention during cross-examination of witnesses, and his gratuitous and belittling comments made during the three hearing days in July 2023 and the return of subpoena argument that took place on 31 October 2022. It was submitted by Mr Howell that no individual event, exchange or comment relied upon established apprehended bias on its own, but that it is the cumulative effect of the passages relied on that gave rise to an apprehension that the Magistrate was biased.

(i) 31 October 2022 - return of Subpoena for Ms Heywood’s University employment records

Occurring first in time was an issue that arose regarding a return of a subpoena over which the Magistrate presided on 31 October 2022. Earlier in the day, a subpoena issued by NSW Police seeking documents be produced by Ms Heywood’s University employer had been mentioned before the Magistrate but the police prosecutor then appearing, (not Sgt Smith who was the Police Prosecutor with conduct of the matter), had failed to obtain access for the prosecution and had acceded only to a “first access” order to Ms Heywood’s representatives. The effect of this position was that the police had no access at all to the documents it had subpoenaed. This situation needed to be remedied.
The matter was re-mentioned by Sgt Smith. The transcript has been reproduced in full as Annexure 1 to this judgment, as the way the argument developed is intrinsic to the complainant about it and my conclusions about what occurred. The need to re-mention the matter was raised, and before any submissions were made, the Magistrate directed that Mr Taylor be contacted to reappear by AVL.
Mr Howell argued that during the resumed AVL hearing, the Magistrate spoke over Mr Taylor several times, “stopping him” from making further submissions, and then made a pre-emptive decision - “access to the Crown” - reversing the earlier ruling. He submitted that the Magistrate’s tone to Mr Taylor was rude and abrupt and that the Magistrate “demanded” written submissions within half an hour which was unreasonable and accused Mr Taylor of making submissions that he “knew” were incorrect. Mr Howell also submitted that the request that Mr Taylor “undertake” to return the documents was unnecessary, and implied that Mr Taylor could not be trusted.

(ii) Assessment of signs of apprehended bias during the return of subpoena hearing

Unfortunately, the language Mr Taylor used suggested that the prosecution should not be given access to the documents at all, which was not an appropriate submission to make.
The audio file demonstrated that on occasion both Mr Taylor and the Magistrate began speaking at exactly the same time. They were, in effect, cutting each other off. More than once Mr Taylor used an exasperated and defensive tone and interrupted the Magistrate after the Magistrate had been speaking for some seconds.
This can be a feature of AVL advocacy, (and it is difficult to assess the actual effect at the time of possible delays in transmission), but there does seem to have been an element of what could be interpreted as frustration and impatience on the part of the Magistrate to deal with the issue quickly, given more time was now being taken up with the same issue he had already dealt with earlier in the day, and defensiveness by Mr Taylor, who had obtained an order that was favourable to his client earlier in the day, but now that order was to be disturbed. He seemed to have been caught off-guard and was not adequately prepared to argue the merits of his maintained position.
Mr Taylor did not articulate a proper basis upon which the issuing party should be prevented from viewing the documents, using phrases such as “private information”, or that the documents “may have some sort of privilege”, and “there might be some sort of private information”, and that once the Prosecution “sees the documents they can’t be unseen”. These are not valid objections to inspection and access. As pointed out by the Magistrate, in a reasonable although brusque tone, documents cannot be deployed in the hearing if they are not admissible, not relevant or are protected by privilege.
The Magistrate was not persuaded by Mr Taylor’s unformed submissions, but still provided a fifteen minute adjournment for Mr Taylor to research the points he seemed to be trying to articulate. Mr Taylor came back with three examples of theoretical privileges which, in the circumstances here, could not realistically apply. The examples given were in the nature of public interest immunity and sexual assault complainant privilege.
The exchange is not a model of courtesy, but is not out of step with the occasional difficulties of AVL exchanges where people speak over each other, nor is it inconsistent with the robust no-nonsense exchanges that occur in the Local and other courts when what should be a simple procedural matter occupies more time than it should, partly because of the physical absence of a party from the courtroom. Parties were heard and a further opportunity given to Mr Taylor to prepare oral submissions. Ultimately the Magistrate adjourned the issue to a date in November. The documents previously provided to the agent for Mr Taylor were ordered to be returned. The status quo was restored. It appears that the issue of access was later sorted out between the parties, as it should have been to begin with. There was nothing extraordinary, in my view, in requiring an undertaking from the solicitor to ensure documents were returned. That has been, in my experience, standard practice adopted by many judicial officers.
There is nothing in the tone or conduct of the Magistrate on this date that adds any weight at all to the assertion of apprehended bias when considered either prospectively, or retrospectively.
Complaint is made by Mr Howell that his Honour adjourning the matter on 14 November 2022 to a January 2023 date was inappropriate and that requiring Mr Taylor’s physical appearance was unreasonable. I do not agree. The requirements on 31 January 2023 for the parties then present to go outside and “sort it out” is also not a valid cause for complaint. It is consistent with ss 56 to 60 of the Civil Procedure Act 2005 (NSW), directing parties to approach disputes in a way that saves court time. The fact that Mr Taylor is retained in a matter listed for hearing in a different state and location to the physical location of his office, is not a basis for preferential treatment.

4 July 2023 - first day of hearing - first complaint - timeframe for documents

The hearing commenced before the Magistrate with the accused represented by Mr Pappas, barrister, with Mr Howell (as junior counsel in a non-speaking role), instructed by Mr Taylor, solicitor. A police prosecutor, Sgt Smith, appeared for the prosecution. Prior to this, a different Magistrate had granted leave for the Informant child to give evidence by AVL from Rockingham in Western Australia, where she was then living with her parents.
A question arose immediately about whether the documents the complainant would require for cross-examination had been provided to the relevant location. The time in Rockingham was two hours behind Armidale. 11:00am in Armidale was 9:00am in Rockingham:

“PAPPAS: Before your Honour does that, I wonder if I can just raise a housekeeping matter that I raised with the sergeant. Yesterday afternoon, solicitors from my instructor’s Perth office attempted to lodge some documents at Rockingham Local Court so that they might be available for the complainant to look at during her cross examination today. They were told, that is the solicitors were told, that the Court would not accept the documents. I don’t quite understand why and I’m hoping that your Honour might be in a position this morning to facilitate the electronic transfer of those documents through this registry to the registry at Rockingham so that when we get to that stage, the documents are available to the complainant.
HIS HONOUR: Okay. Will that be possible? We’ll have a shot at it. Your instructing solicitor can produce the documents in ten minutes to the registry, he can go up and do it now.
PAPPAS: Thank you, your Honour.” [24]
24. Tcpt, 4 July 2023, p 1.40.2-6

Complaint is made by Mr Howell that the Magistrate “demanded” the solicitor attend to the task “in ten minutes” and that that presented timeframe was unreasonable given that at a later point that morning, the Magistrate allowed the police prosecutor a ten-minute break while a police witness was located.
There is nothing at all surprising, let alone demanding, about the Magistrate’s request that a timeframe be put around delivery of documents. It is important for the smooth running of the hearing that relevant documents make their way to the right place so that the Informant can be cross-examined and potential delays to that process are minimised. No doubt a timeframe within which the Rockingham Local Court can expect to receive the documents is also relevant to managing the situation. This exchange adds nothing at all to the question of apprehension of bias, when considered on its own, or in combination with all of the other matters of which complaint is made.

Early and “unnecessary” objections by Sgt Smith and Magistrate’s tone suggesting intolerance of counsel?

Mr Howell complained that Sgt Smith objected early and unnecessarily to cross-examination of the first witness called, the Officer in Charge of the investigation, and that his Honour’s words and tone suggested intolerance of counsel:

“Q.    Plain Clothes Senior Constable, in what circumstances was it that you were asked to take over this investigation?
A.    I was allocated this case by our criminal investigations supervisor.
Q.    Well, yes. Presumably you were told something about why you were taking over the case, were you?
A.    I believe it was a - a high media interest.
Q.    Someone told you that, did they?
A.    Yep. We had a discussion in regards to why that was the case.
Q.    Who was it that told you that that was the reason you should take over the investigation?
PROSECUTOR: Objection to
HIS HONOUR: Yes. Where is this going, Mr Pappas?
PAPPAS: I’ve got to start somewhere, your Honour, and at the moment there is no objection, as I understand it. I’m happy to express
HIS HONOUR: Just proceed.
PAPPAS
Q.    I think I’ve asked you who was it that asked you to take over the investigation.
A.    Like, I - I can’t
PROSECUTOR: Objection. That was asked and answered, your Honour.
HIS HONOUR: What was the answer?
PROSECUTOR: He can - you can - it was
HIS HONOUR
Q.    What was the answer?
A.    Yeah. I believe - I believe, like, I - I had a discussion with my supervisor and - and I was allocated the case.
PAPPAS
Q.    And I’ve asked who was that person?
A.    Well, my - my supervisor at the time was Acting Sergeant Matthew Robinson.
Q.    Did he tell you that there’d been some agitation from outside the police force for this matter to proceed?
A.    Not agitation, no.
Q.    Well, he may not have used that word. What did he say to you about outside interest in this matter proceeding?
A.    Nothing to do with outside interest. It was - I believe it was investigated initially by general duties however it was then referred to the Armidale Criminal Investigation Unit.
Q.    Do you remember the date that you took over the investigation?
A.    Not the exact date. I believe I made that reference in my statement from our case notes.
Q.    If I suggested to you that it was 11 May 2022, does that accord with any recollection you have?
A.    Definitely May. Yes.
Q.    Did you learn on 11 May 2022 that the local member of parliament, Adam Marshall MP had been writing to the police urging police to take action against my client?
PROSECUTOR: Objection to that statement.
HIS HONOUR: Why?
PROSECUTOR: Your Honour, first of all, it’s cross examination and this is - he’s asking for an opinion about an outside source that this officer couldn’t possibly know about. So, to ask
HIS HONOUR: Well, he can give evidence of what was said to him by his supervisor, if anything, about the substance of this question so to that extent I’ll allow the question.
PAPPAS
Q.    Would you like me to repeat the question?
A.    Yes, please.
Q.    Were you told by anyone, in fact
HIS HONOUR: No, that’s not what I allowed, Mr Pappas.
PAPPAS: Well, I withdraw
HIS HONOUR: Mr Pappas.
PAPPAS: Sorry, your Honour, I don’t wish to talk over you.
HIS HONOUR: Yes. Just listen to what I’m saying.
PAPPAS: Yes, I will, of course.
HIS HONOUR: Rephrase the question, Mr Pappas and proceed.
PAPPAS
Q.    I’ll withdraw the question that I asked, and I’ll ask this question. Were you told when you took over this investigation, by anyone, that the local member of parliament, Adam Marshall MP had written to police urging them to charge my client with an offence?
A.    No.
Q.    Did you subsequently learn about that?
PROSECUTOR: Objection.
HIS HONOUR: Yes. Vague question, Mr Pappas. More specificity is required, you know that.
PAPPAS: No, I don’t know that, I’m sorry, your Honour.
HIS HONOUR: Ask the question in a specific way, please.
PAPPAS: Your Honour, that
HIS HONOUR: When? When are you talking about, Mr Pappas?
PAPPAS: I asked whether the officer learned at any time subsequently, there’s nothing wrong with that as a question.
HIS HONOUR: A very general question.
PAPPAS: It is.
HIS HONOUR: Answer the question, Detective Sergeant.
WITNESS: I can answer half of that question. Yes I – subsequently I was aware that Mr Marshall had wrote to the police.” [25]
25. Tcpt, 4 July 2023, p 5.43 to p 8.28

Mr Howell complained that the objection at the fourth question had no proper basis and that the Magistrate interrupted when Mr Pappas sought to rephrase the question. He argued that the Magistrate’s tone was derisive and that he implied that Mr Pappas was acting improperly or incompetently or both.
I do not agree this complaint is made out. His Honour is attempting to assist in directing the track and tone of the cross-examination to relevant matters. I do not agree the tone was derisive. It was pointed.
Soon after this, the following objection was made and debated with Mr Pappas not being prepared to accept the ruling of the Court:

“Q.    I see. Now, as at May 2022, I imagine having regard to your rank you’d been a police officer for some time?
A.    Yes.
Q.    Roughly how long?
A.    20 years.
Q.    You had in that in 20-year period of experience learned, I imagine, that it is sometimes very important when you put an allegation to someone, tell them why they’re being investigated, to make a note of their response.
PROSECUTOR: Objection to that question, your Honour. That was very longwinded and it’s making a statement, a generalised statement about character.
HIS HONOUR: Yes. A few questions you need to ask before you ask that question, Mr Pappas.
PAPPAS: With great respect, that is simply not so, your Honour.
HIS HONOUR: It is. Ask him whether he actually recorded the response, for example, Mr Pappas.
PAPPAS: I have asked whether he made a note.
HIS HONOUR: No, you haven’t, Mr Pappas. Just proceed.
PAPPAS: Well, your Honour, I’m not here doing my first hearing in a Magistrates Court, and it is not helpful to have the Sergeant interrupt that cross examination which is absolutely according to Hoyle.
HIS HONOUR: That is what happens in a Magistrates Court, it’s what’s happened in this Court ever since I’ve been a Magistrate. Just proceed, Mr Pappas.
PAPPAS: Well, then perhaps it shouldn’t be happening, your Honour.
HIS HONOUR: Don’t waste my time.
PAPPAS: I’m not wasting your Honour’s time, I’m
HIS HONOUR: Yes, you are. Proceed.
PAPPAS: No, your Honour.
HIS HONOUR: Ask your question.
PAPPAS: I have a job to do, and I intend to do it.
HIS HONOUR: Ask your questions.
PAPPAS: I have asked the question. I’ll ask it again.
HIS HONOUR: Yes, do so. Please, sir.” [26]
26. Tcpt, 4 July 2023, p 9.26 to p 10.29

Mr Howell submitted that this exchange showed the Magistrate endorsing an objection without any proper basis and kept saying “proceed” or “just proceed” or “ask your question” suggesting impatience with counsel and disinterest.
Whilst annoyance is betrayed in the tone of the Magistrate, the stentorian, slow and labouring tone and content of the cross-examination was notable. I do not agree that the objection was not a valid one. More patience could perhaps have been extended when Mr Pappas made the speech drawing attention to his asserted experience, but this exchange remains in the category of unfortunate, and not one that might cause a fair-minded lay observer to notice anything untoward.

Overzealous objections

An overzealous objection was taken by Sgt Smith in the following exchange, but Mr Pappas, rather than moving on, the objection having been quickly overruled by the Magistrate, made gratuitous and insulting personal criticism of Sgt Smith referring to “fatuous objections”, and accusing her of making this objection, (and it seems the preceding objections which by then were only limited in number), to be “disruptive”:

“Q.    You’ve spoken of course to a number of witnesses, haven’t you?
A.    That’s correct.
Q.    And they’ve explained to you where they were and what they saw on 8 March 2022?
PROSECUTOR: Objection again to adducing evidence of other witnesses through this witness.
HIS HONOUR: It’s a fair question. I’ll allow it.
PAPPAS: It’s not the purpose of the question, as it will be obvious to your Honour.
HIS HONOUR: I’ll allow it, I said.
PAPPAS: Yes. The problem is, your Honour, as I tried to explain in my earlier exchange with your Honour, fatuous objections are disruptive and unnecessary. (Emphasis added).
HIS HONOUR: Thank you, Mr Pappas. Please proceed.” [27]
27. Tcpt, 4 July 2023, p 11.47 to p 12.17

Mr Howell submitted that this was the second time counsel raised the extent of the prosecutor’s objections and their lack of merit but the Magistrate was indifferent to counsel’s request for assistance. Instead he was hurried on to continue, and the Magistrate “cut off any wider discussion”.
There was no need for wider discussion. Counsel was being offensive. The ruling was made. It was not the time for a speech from counsel.

Criticism of counsel for unclear question

A question then put to the police witness by Mr Pappas as to where it was that the police officer “thought” that the events had occurred was rightly rejected after valid objection was taken:

“Q.    And walk along the area described as, “Landing,” you will come to another area altogether, described as, “Auditorium.” It’s not marked on this plan at all. Now, is that where you thought that these events occurred?
PROSECUTOR: Objection to relevance from this witness, your Honour.
HIS HONOUR: What’s the objection?
PROSECUTOR: Your Honour, he’s being asked, and he’s answered the question of what he knows of the room. Now he’s being asked general questions about rooms and his knowledge of it, not going to the facts in issue in this matter.
HIS HONOUR: Yes, I agree with that. I overrule the question. Not relevant the way it was put. You can put it another way and maybe it could become relevant.
PAPPAS
Q.    You agree with me, I think, that this diagram fairly represents the upstairs function room area at the Armidale Ex Services Memorial Club?
A.    So, if we’re talking about this diagram, where you’re saying the - the event was held, I actually thought it was the - the - the room at the far right of that landing.
Q.    I’ll just repeat the question. Do you agree that this diagram represents an area that is at the top of the stairs as you go upstairs slightly to the right and not the area to the far right that you believed was the area where the International Women’s Day event occurred?
PROSECUTOR: Objection again to this.
HIS HONOUR: Yes. Ask the question clearly, Mr Pappas. He’s already told you, Mr Pappas that he’s not really aware of which room this function was held in so what do you want to ask him?
PAPPAS
Q.    Do you agree that this diagram, sir, represents an upstairs function room at the Armidale Ex Services Memorial Club?
A.    I’ve never been in that room so.” [28]

28. Tcpt, 4 July 2023, p 13.26 to p 14.16

Short break allowed for the Prosecution to locate the next witness

Shortly after this exchange, the police witness’s evidence was completed and there was a six-to-seven-minute delay while another police witness was located and called. The following exchange occurred:

“HIS HONOUR: The next witness?
PROSECUTOR: Your Honour, the next witness would be the complainant however I don’t believe that witness is available so if I could just have a minute, I will just confer with the next witness in the meantime. The next witness I’ll call is a police officer, Christopher Jordan.
HIS HONOUR: Name of the officer?
PROSECUTOR: It’s Christopher Jordan.
PAPPAS: I have no objection to this officer’s statement being tendered, if that assists.
HIS HONOUR: Thank you.
PROSECUTOR: It’s a two-page statement.
HIS HONOUR: It has to be identified first.
PROSECUTOR: Yes. I’ll tender it now and show it to him.
HIS HONOUR: It has to be identified first.
PROSECUTOR: Right. Okay.
SHORT ADJOURNMENT” [29]
29. Tcpt, 4 July 2023, p 15.26-50

Mr Howell submitted that there is “an obvious conflict between the Magistrate’s “placid response to this period of delay” when compared with the treatment of Mr Taylor being required to “hurry up” and submit the documents necessary for cross-examination of the Informant to the Registry when the hearing commenced that morning.
This is a strained interpretation of events. I have already concluded that the timeframe placed around the transmission of documents at the start of the day was not unreasonable. Here, clearly, there is an issue regarding a witness’s physical presence which needs a moment’s pause. What is not reflected in the transcript is that Mr Pappas actually asked that the break be used for his client to go to the bathroom. The following can be heard on the audio recording, but is not reflected in the transcript:

“PAPPAS: Your Honour, while there’s this break in the proceedings I wonder if my client could be excused for the purposes of a toilet break?
HIS HONOUR: Yes sure.” [30]
30. Tcpt, 4 July 2023, not reproduced in transcript but heard on recording

The complaint regarding these events does not add anything to what a fair-minded lay observer might conclude or perceive. They are normal events in a hearing involving multiple witnesses.

The documents for cross-examination still had not reached Rockingham

Despite the steps taken earlier in the day (and the failure by the defence to have secured appropriate arrangements before the hearing commenced), problems remained regarding the documents sent to the Court at Rockingham for the complainant to access during cross-examination:

“PAPPAS: Can I raise, your Honour, that housekeeping matter. I understand through my instructing solicitor that there is still some impediment to the various documents, there are seven of them, that we have attempted to have produced at Rockingham Court, and I don’t quite understand what the impediment is, but the Rockingham Court apparently is not in a position to receive them or make them available to the witness at the remote facility.
HIS HONOUR: I understand that to be the case. Yes.
PAPPAS: That presents some difficulties because that was not of course anticipated when the prosecution made an application for the evidence to be taken remotely. That application was opposed in the first instance, of course it was granted, and we started the process of trying to get these documents to the Rockingham Court about ten days ago. I don’t know whether your Honour is in any position to assist in relieving the difficulty because --
HIS HONOUR: Well, yes, another magistrate made that decision. I’m aware of that. He made it in respect of two witnesses, I believe. Is that your understanding?
PAPPAS: It is, your Honour. One is --
HIS HONOUR: From my reading of the file this morning on this question, it was opposed by Mr Taylor, who is from Hugo Legal.
PAPPAS: It was opposed by me, your Honour. I appeared.
HIS HONOUR: You appeared. I don’t know. I don’t have any transcripts or anything, but I do note that the magistrate granted both applications. Prosecutor, do you wish to be heard on this?
PROSECUTOR: Well, yes, your Honour. I believe that we’ve sorted it out. We’ve asked the police to print those documents and take them there, and apparently they have. So, we’re hoping that will resolve that problem momentarily. Also, obviously young people are entitled to give their evidence via remote, it’s just that this person no longer resides in this state.
HIS HONOUR: I’m not cavilling with Magistrate Prowse’s decision. It’s got nothing to do with me. If that’s an ineffective decision, it can be attended to in a higher court. I will make no comment on the decision that he made, and I make no comment on rights of young persons to give evidence by way of AVL or anything of that kind. As far as I am concerned, all that can happen now is that the police, the prosecution should do what it is required to do, and that is to put in place a mechanism for this evidence to be taken by way of AVL. How long is that going to take?
PROSECUTOR: Well, I believe that
HIS HONOUR: You know what Mr Pappas’ concern is, and it’s a valid concern, and from my reading in the last half hour of the papers, I think it was point made by you, Mr Taylor, in your written submissions. So, how long do you need?
PROSECUTOR: I believe that they’re there now. Sergeant Tunks is just calling the police officer.
PAPPAS: Can I just add for your Honour’s assistance, there should be seven
HIS HONOUR: Seven documents?
PAPPAS: marked envelopes, that was the request, marked D1 to D7, and a schedule has been provided with the documents describing each one of D1 through to D7.
COURT OFFICER: Excuse me, your Honour, I’ve been given a pile of documents here.
HIS HONOUR: Are they marked D1 to D7?
COURT OFFICER: Yes, they are, your Honour.” [31]

31. Tcpt, 4 July 2023, p 19.12 to p 20.32

Spurious objections?

The Informant by this time was 17 years old. She gave her evidence by AVL from Western Australia. Her evidence in chief was short. She was cross-examined in a rather maladroit fashion by Mr Pappas. Mr Pappas complained early and frequently that his cross-examination was being interrupted by Sgt Smith deliberately making spurious objections. Having carefully examined the transcript, I do not accept that as a fair statement. Some objections were overzealous, Sgt Smith evidencing a wish to protect the child from what she perceived to be confusing and unfair questions, and some were incorrect and dismissed accordingly, but Mr Pappas seemed to take offence at any objections being made at all.
Umbrage was taken by Mr Pappas to a valid, if not elegantly articulated objection to a circuitous and confusing question early in the cross-examination:

“Q. Do you think then that when you told the prosecutor earlier that at the end of the speech or the speeches you went walking around and just talking to a few people and went towards the back and took a seat with your two friends to consume some food, that that’s something that might have happened a little later in the sequence of events that afternoon?
PROSECUTOR: Objection to “later than what?” It might need to be specified.
PAPPAS: Your Honour, it would be of very great assistance if when my opponent makes an objection she frames the objection either in a form known to the common law or recognised under the Evidence Act and it’s not helpful to make general objections because my friend doesn’t like the way I ask a question, which seems to be the substance of the objection.
PROSECUTOR: The objection is based on the form of the question. He asked a question about a sequence in time without giving a reference to when that time was to be after, and it’s very important that that be articulated.
HIS HONOUR: Maybe it just requires a little bit of clarification, Mr Pappas.
PAPPAS: Very well.
HIS HONOUR: I know what you’re getting at but maybe just phrase it slightly differently.
PAPPAS: I’ll try and perfect the question, your Honour.” [32]
(Emphasis added).
32. Tcpt, 4 July 2023, p 36.13-38

This is an example of the approach taken by Mr Pappas to attack Sgt Smith and her skill and experience, rather than just dealing with the substance of the objection in an appropriate fashion. The tone he used was stentorious and lecturing and the content was offensive and belittling. The Magistrate dealt with it in an even-handed fashion.

Further overzealous objections - descent into more personal remarks by Mr Pappas, this time directed to both Sgt Smith and the Magistrate

Shortly after this, the following exchange occurred:

“Q.    Now that I have shown you the photograph and asked you all of those questions, do you now remember it or are you still simply willing to accept it happened without having a memory?
A.    I remember taking the photo but that’s about it.
Q.    I’m asking you I think a slightly different question. Do you now remember the sequence in the way I’ve been putting to you or are you just accepting that that must be the way it happened?
A.    I don’t understand the question.
Q.    I’ll try and make it clear. I’ve suggested to you that the photograph at the front of the room with Prof Heywood was something that happened before you went walking around, talking to a few people, going up the back, having a seat and eating food with your friends. You follow that?
PROSECUTOR: Objection.
WITNESS: Yes.
HIS HONOUR: That’s a fair
PROSECUTOR: Yes, but it’s a question that’s been asked and answered. Both questions now.
HIS HONOUR: No, I think he’s trying to clarify the question for the witness, so I’ll allow it.
PAPPAS
Q.    Do you need me to restate the question, or can you answer it?
A.    Could you restate it, please?
Q.    Of course. Now that I have drawn your attention to the fact that you were at the front of the room with your friends and you had a photograph taken with Prof Heywood on this afternoon straight after the end of the speeches, do you accept that walking around, talking to a few people, taking a seat up the back with your friends and eating food must have happened after that?
A.    Yes.
Q.    In accepting that, is that simply because it seems logical or because you now have a memory, me having drawn it to your attention?
A.    Because it seems logical.
Q.    So, you still have no memory of it independent of any questions I’ve asked. Is that right?
A.    I remember taking the photo but yeah.
Q.    Well, “But, yeah,” does that mean, “No, Mr Pappas, I’ve got not the slightest memory of the sequence in which things happened,” is that what that meant?
PROSECUTOR: Objection, your Honour, to that. It’s harassing and intimidating of this witness. She’s answered it and now he’s putting forth the statement for an answer. That’s his wording.
PAPPAS: That is just a silly and obstructive objection which your Honour needs to control, with great respect.
PROSECUTOR: Well, your Honour, he’s still bombing the witness.
PAPPAS: There’s been too many of them. There’s been too many of them.
HIS HONOUR: I’m sorry, Mr Pappas. I won’t have any person speak to me like that.
PAPPAS: Sorry, your Honour?
HIS HONOUR: I won’t have any person speak to me like that. [said quietly in a crisp tone]
PAPPAS: Sorry, is your Honour addressing what I’ve just said?
HIS HONOUR: Yes, I do.
PROSECUTOR: Well
HIS HONOUR: I will govern this Court according to the law and according to my experience and with propriety, sir.
PAPPAS: Yes, indeed.
HIS HONOUR: She’s made an objection and you have saw fit to belittle it.
PAPPAS: Yes, I have.
HIS HONOUR: Well, don’t.
PAPPAS: Well, I do so.
HIS HONOUR: Make your reply to the objection.
PAPPAS: I have, and I’ve suggested to your Honour that it is not the first time that an objection has been made without any proper basis.
HIS HONOUR: In this Court, and I don’t know what court you appear in Mr Pappas, but you did say something about not often in this Court, I just remind you in this Court it is not unusual for the prosecutor and for defence attorneys to interject regularly during cross examination.
PAPPAS: I see.
HIS HONOUR: That is what is happening. Perhaps you should become accustomed to that, sir. Ask your question.
PAPPAS: No. With great respect, your Honour
HIS HONOUR: Don’t “with respect” me, sir. Ask your question.
PAPPAS: Your Honour --
HIS HONOUR: I am going to warn you. Ask your question.
PAPPAS: Your Honour, I will not be bullied.
HIS HONOUR: I’m not bullying you.
PAPPAS: You are, your Honour, I’m sorry.
HIS HONOUR: I am asking you to ask your question.
PAPPAS: I have a job to do, and I am asking your Honour to control the conduct of the sergeant who --
HIS HONOUR: She’s made her objection known. What is your response to it?
PAPPAS: My response is there was nothing wrong with the question I asked.
HIS HONOUR: What is the question? That’s what I’m trying to get you to repeat. What is the question? Ask your question.” [33]
(Emphasis added)
33. Tcpt, 4 July 2023, p 37.22 to p 39.50

The tone used in this exchange is important. The Magistrate’s tone was crisp and quiet. It is evident that the Magistrate considered, (correctly), that Mr Pappas was bullying Sgt Smith by using unduly personal and insulting terms to articulate his response to her objection and deliberately insulting the Magistrate’s competence in managing the proceedings. It is important to control the court’s process and to cut short, if possible, poor behaviour by one legal practitioner towards another, particularly where one is counsel of some years’ experience and the person being criticised, and, to an extent, bullied, is a police prosecutor of apparently less experience.
Mr Howell submitted that this exchange demonstrated that counsel was trying to “bring to a head” the fact that the police prosecutor was objecting to questions without any proper basis.
That is an overly generous view of what was occurring here. Counsel was unacceptably rude. I do not accept the Magistrate was ignoring the “substance” of counsel’s complaint although it could have been managed with more equanimity. Counsel’s complaint was exaggerated and overblown.
Mr Howell also complained the Magistrate was patronising, as if to suggest counsel might not understand how objections in the Local Court are dealt with. He submitted that the repetition of “what is the question” was openly mocking Mr Pappas. In using this approach he was simultaneously bullying and berating Mr Pappas.
The exchange was robust and unfortunate. The tone here has begun to shift away from one of maintaining control of the Court’s proceedings, to being overtly critical of counsel. The correction of the unduly personal approach that Mr Pappas had taken was valid as was the request for Mr Pappas to identify his question, but the tone and language used by the Magistrate to achieve that re-direction was beginning a descent towards insult. To say counsel was being “warned” in the context of the exchange, adds to the impression that counsel was doing something very wrong.

A different question then allowed

The exchange continued with Mr Pappas reading out onto the record Mr Howell’s note of the question. That note contained the substance of the question, but not the edge with which Mr Pappas had initially put it to the young person, which had carried with it a questionable tone and a potentially confusing manipulation of her evidence:

“PAPPAS: Would your Honour bear with me.
HIS HONOUR: You don’t recall the question?
PAPPAS: No, I don’t, now. That’s the very - that’s the very nub of my--
HIS HONOUR: All right. Would your junior please read out the question?
HOWELL: You asked her what she meant by, “I just remember the photo, but yeah,” and then you were saying to her, “What do you mean by the words, ‘but yeah’?”
PAPPAS: Thank you. I don’t know whether your Honour wishes to mute the connection whilst I--
HIS HONOUR: I just want you to repeat the question.
PAPPAS: I’m certainly happy to do so.
HIS HONOUR: Well, do so.
PAPPAS: The witness had said, “I remember the photo, but yeah.” I had put to the witness that that in essence meant, “I remember the photograph being taken, but I’ve got no independent recollection of the sequence of events that afternoon.” So, I was putting that to the witness by way of clarification of what she might have meant by, “I remember the photo, but yeah.”
HIS HONOUR: That flows out of the cross examination. It’s a logical question to ask as a consequence of the cross examination. Ask the question.” [34]

34. Tcpt, 4 July 2023, p 40.1-29

The question then asked was different in nature and tone of the one to which objection was taken. The sarcastic “edge” was removed and the confusing aspect to it that the (child) witness somehow “owed” her response to “Mr Pappas”, or that she was in some way beholden to him in the way she gives her evidence, was now absent:

Q.    Ms [REDACTED], I think you gave an answer some few minutes ago now to this effect, “I remember the photograph, but yeah.” Do you remember saying that?
A.    Yes.
Q.    What I seek to ask you is do you mean by that that having seen the photograph you can remember it was taken but you have no independent recollection of the sequence of events that afternoon?
A.    I remember the sequence of events and I do remember taking the photo.” [35]

35. Tcpt, 4 July 2023, p 40.33-41

Further “interrupting” objections

A little later, this objection was taken:

“Q. You’ll agree, I think, that the subject of the various speeches that afternoon was the difficulties faced by women in leadership roles, was one of the things being discussed?
PROSECUTOR: Objection.
WITNESS: I can’t remember, sorry.
HIS HONOUR: What’s the objection?
PROSECUTOR: Is he asking whether that was a conversation she heard or whether that was the subject of the speech? I think it’s confusing for this witness.
HIS HONOUR: No, he’s asking whether that was the content of the speeches. Ask the question.” [36]
36. Tcpt, 4 July 2023, p 41.44 to p 42.9

Mr Howell submitted that this was another deliberately interrupting and invalid objection. It was given short shrift by the Magistrate. It was an overzealous objection, and was treated accordingly.

Unprovoked pontification by Mr Pappas leads to a crisp response from the Magistrate

This is followed by what appears to be a deliberate misunderstanding by Mr Pappas of the Magistrate’s request to respond to the objection taken in the following exchange. When the Magistrate asks Mr Pappas: “What do you want to say”, instead of responding to the objection, Mr Pappas unhelpfully pontificates about the purposes of cross-examination:

“Q.    Would you accept from me that at that stage of the afternoon, there were a number of people milling at the front of the area delineated in that diagram I showed you before with the seats set out, that is at the front of that area immediately in front of what I suggested were barstools.
PROSECUTOR: Objection.
HIS HONOUR: What’s the objection?
PROSECUTOR: Your Honour, this witness has answered to the question of how many people were around. She’s now being asked to make opinions about places that aren’t in her direct purview in any event. She’s answered about how many people were in her direct vicinity and I would say that she can’t answer about the front of the room or other places.
HIS HONOUR: What do you want to say, Mr Pappas?
PAPPAS: I want to say, your Honour, that I am engaging in a process of cross‑examination. I am entitled to test the witness’ recall, to test what she has said and what she has not said. By my cross‑examination thus far, I have changed the narrative from that which was given in chief. That’s a fair illustration of the very purpose and the effect of cross‑examination.
HIS HONOUR: It’s for me to decide whether you’ve actually succeeded in doing anything. But you ask the question.
PAPPAS: Is your Honour allowing that question?
HIS HONOUR: I will. Ask the question.
PAPPAS
Q.    When you were at the front of the room listening to Prof Heywood talking to Ms Kennedy, would you accept that there were a number of people milling in that area of the room?
A.    I don’t remember.” [37]
(Emphasis added).

37. Tcpt, 4 July 2023, p 45.24 to p 46.9

An objection with no substance, but sarcasm was used by the Magistrate to Mr Pappas

The cross-examination proceeded for a while uneventfully and then a one-hour adjournment for lunch was taken. [38] A short time later after resuming after lunch, the following exchange occurred:
38. Tcpt, 4 July 2023, p 53.11

“Q.    But you’d accept, I think, that the other adults, whoever they were, were generally to your left?
A.    From what I can remember, Brooke Kennedy was in front of me, Brigid Heywood was to my right and that’s all I remember. But the adults, I do not remember where they were standing.
Q.    I thought only a second ago you had conceded that they were largely to your left?
A.    They could be, yeah.
Q.    When you say they could be, is that just a guess, is it?
PROSECUTOR: Just objection, your Honour.
HIS HONOUR: What’s the objection?
PROSECUTOR: The witness answered that she didn’t know where the other adults were and now it was put back to her that a minute ago she said something that she didn’t say, your Honour. So, I’d be saying that that’s misleading and confusing to this vulnerable witness.
HIS HONOUR: What do you want to say, Mr Pappas?
PAPPAS: Sorry, I was just listening to my junior. What was your Honour’s comment?
HIS HONOUR: Sorry, you’ve got other matters to deal with, have you?
PAPPAS: Sorry?
HIS HONOUR: What are you dealing with?
PAPPAS: I can’t hear, your Honour. I’m not being rude; I just can’t quite hear.
HIS HONOUR: I said what do you want to say?
PAPPAS: Thank you, your Honour. The objection has no substance. The witness had made what I suggest to her quite properly was a concession. She then qualified that concession in a later answer and I’m simply seeking to clarify where there is preference for one or the other.
HIS HONOUR: What is the question? Do you want to confer with your junior again about it? What’s the wording of the question?
PAPPAS: Your Honour, I--
HIS HONOUR: Off you go.
PAPPAS: Thank you, I will. The answer that was given was, “They could have been to my left.” I simply asked the witness whether that was a concession that what she had said earlier was accurate, that they were to her left.
HIS HONOUR: Is that what he asked, Prosecutor?
PROSECUTOR: No.
HIS HONOUR: It’s not my record of what he asked.
PAPPAS: And I--
HIS HONOUR: Ask your junior what you actually did ask.
PAPPAS: I asked whether it was a guess, your Honour.
HIS HONOUR: No, you didn’t. Ask your junior what the wording was.
PAPPAS: No, I don’t intend to do so, thank you, your Honour.
HIS HONOUR: Conference with your legal team, sir. I run this Court, not you.
PAPPAS: I will withdraw.
HIS HONOUR: Withdraw the question, thank you.
PAPPAS: I withdraw the question.
HIS HONOUR: I’ve made a note of it.” [39]
(Emphasis added).
39. Tcpt, 4 July 2023, p 53.47 to p 55.24

Mr Howell submitted this exchange was sarcastic and belittling and that it implied counsel was incompetent. I agree that is an available interpretation and a fair-minded lay observer may well hold that view.
There was then the following exchange immediately after:

“PAPPAS
Q.    When you were at the front of the room and you were facing Brooke Kennedy, you specifically remember that Prof Heywood was to your right? Is that right?
A.    Yep.
Q.    How close was Prof Heywood to you?
A.    I don’t remember how close, but she was standing to my right.
Q.    Was she within arm’s reach of you?
A.    Yes.
Q.    Were there any other people to your right that you noticed?
A.    I don’t remember.
Q.    When Prof Heywood spoke in the way you’ve described, did you look at her?
A.    I don’t recall if I looked at her, but I definitely heard her.
Q.    Is it possible, do you think, that you looked at her, turned to look at her?
PROSECUTOR: Objection. Asked and answered.
HIS HONOUR: Yes, we’re getting close to s 40, but ask it again. Can you remember the question, Mr Pappas, this time?
PAPPAS: Yes, I can, your Honour.
HIS HONOUR: Well, ask it again.
PAPPAS: There is absolutely no need for your Honour to be rude to me.
HIS HONOUR: I’m not being rude to you.
PAPPAS: Your Honour is being gratuitously rude.
HIS HONOUR: But you seem to entirely rely on your junior to remind you what the question was.
PAPPAS: No, your Honour is being gratuitously rude and it’s not necessary.
HIS HONOUR: I’m not being gratuitously rude. I just asked you to remember what the question is so that we can debate whether it’s a valid question or not.
PAPPAS: Yes.
HIS HONOUR: Move on.
PAPPAS: Now your Honour is raising your voice and shouting at me.
HIS HONOUR: I’m not being - I’m just asking you to move on.
PAPPAS: Your Honour is shouting at me.
HIS HONOUR: I apologise, Mr Pappas but I am probably going to warn you under s 40 unless you pull this together. First warning. Proceed.
PAPPAS: Sorry, I don’t understand a first warning.
HIS HONOUR: I think you’re getting very close to being in breach of that Evidence Act provision that precludes you asking questions that are harassing and intimidatory in nature given this is a young person who clearly on her evidence has had some issues since this alleged offence occurred. First warning, Mr Pappas. Proceed.
PAPPAS: Your Honour, there is
HIS HONOUR: Proceed or I’ll ask you to be removed from the Court. Proceed.” [40]
(Emphasis added).
40. Tcpt, 4 July 2023, p 55.28 to p 56.45

Mr Howell submitted that the sarcasm deployed by the Magistrate in: “Sorry, you’ve got other matters to deal with, have you?” was belittling and further called the conduct and competence of Mr Pappas into question. The suggestion Mr Pappas should be physically removed is unambiguous and humiliating.
The tone was deeply sarcastic and critical. A fair-minded lay observer might reasonably conclude that the Magistrate was taking a very dim view of Mr Pappas’s skills, probity and attention to his task. The exchange then deteriorated to a “push and shove” between Mr Pappas and the Magistrate, ending with a threat that Mr Pappas will be removed if he does not “proceed”.
This is frankly a shocking suggestion and has well crossed the line from a “short emotional exchange” into something entirely more serious.
The cross-examination of the Informant then continued as follows with an unfortunately phrased question at the end that prompted derision from the Magistrate:

“PAPPAS
Q.    Do you think it is reasonably likely that when someone spoke to you, that is Prof Heywood spoke to you, you turned to face her?
A.    I don’t remember.
Q.    When you went outside and spoke to your friends, your evidence before lunch was that you spoke to both of them together?
A.    Yes.
Q.    Do you know what the word, “Demeanour,” means?
A.    Not quite.
Q.    How were you at that stage? Were you visibly upset; do you think?
PROSECUTOR: Objection. Your Honour, she can’t comment on whether she was visibly upset.
HIS HONOUR: Yes, of course she can’t. Why don’t you ask a question she can answer. Was she upset? Was she crying?
PAPPAS: Would your Honour--
HIS HONOUR: Visibly upset is not something she can answer. Just think about it, Mr Pappas.
PAPPAS: I am thinking about it, your Honour. I’ve been doing this for a very long time.
HIS HONOUR: Apparently.
PAPPAS: Well, your Honour
HIS HONOUR: Just move on and ask the question in a way in which she can answer.
PAPPAS: No, I will not be bullied and moved on. Your Honour
HIS HONOUR: Ask the question in a way this witness can answer it.
PAPPAS: Your Honour is making this an impossible task by your Honour’s constant interaction with me in this fashion.
HIS HONOUR: With respect, Mr Pappas, it’s you that is making it a difficult task.
PAPPAS: No, not so, sir.
HIS HONOUR: When you ask - yes, you are, with respect. Ask the question, please.
PAPPAS: Prefacing it with, “With respect,” doesn’t make it a fairer hearing.
HIS HONOUR: That’s what I said to you earlier on.
PAPPAS: Yes.
HIS HONOUR: Just ask the question, Mr Pappas.
PAPPAS: I seek the indulgence of a short adjournment to take instructions, please, your Honour.” [41]
(Emphasis added).
41. Tcpt, 4 July 2023, p 56.49 to p 58.23

Mr Howell submitted that the Magistrate was openly mocking counsel. He was. There was contempt for counsel’s ability to ask an adequate question.

Overzealous premature objections not “controlled” by the Magistrate

On occasion, Sgt Smith’s objections were premature and overzealous. This is one of them. Sgt Smith was given short shrift by the Magistrate, with succinct reasons:

“PROSECUTOR: I just make an objection under s 44 of the Evidence Act in relation to this, your Honour, and the question that was asked. This witness cannot comment on any document produced by somebody else, they can agree words are written there but it cannot be cross examined on the content.
HIS HONOUR: All right. We’ll see what happens. I’ve noted the objection is under s 44.
ENVELOPE D7 SHOWN TO WITNESS
PAPPAS
Q. Just take your time to read quietly to yourself--
PROSECUTOR: Your Honour, s 44 objection, I think it needs to be stipulated that
HIS HONOUR: I don’t even know what the document is. I’ve got no idea. It’s just an envelope with a piece of paper in it. So, Mr Pappas is going to do a lot of work to try and establish the authenticity of the document and what it is, et cetera. I’m not in a position to rule on it. It just could be a blank piece of paper, as far as I’m aware. You know what it is, do you?
PROSECUTOR: I have an idea what it is. I don’t know exactly.
HIS HONOUR: I have no idea what it is so, Mr Pappas, I’ll leave it to you.
PAPPAS: Thank you, your Honour.
PROSECUTOR: But it could be to this
HIS HONOUR: I don’t know what it is. Do you want to tender the document so we can have an argument about admissibility of the evidence under s 44, I’ll go into a voir dire and this witness can be excused and can come back tomorrow, if that’s what it’s going to take. Mr Pappas?
PAPPAS
Q. All I’m asking you, Ms [REDACTED], at the moment, is just to read quietly to yourself the document which I’ve made available to you. Once you’ve done that, take your time, just let me know once you’ve read it all.
PROSECUTOR: Your Honour, I have to object. It’s an inappropriate format to be done before your Honour has looked at this document, considering my objection.” [42]
42. Tcpt, 4 July 2023, p 64.46 to p 65.40

At this point the Magistrate expressed frustration with Sgt Smith, not Mr Pappas, given Sgt Smith’s apparent difficulty with understanding the process being adopted here by Mr Pappas:

“HIS HONOUR: All right. In that case, we’ll adjourn the case until tomorrow and I will seek written submissions on the objections if necessary. Thank you for your evidence today. We’ll resume tomorrow at 9.30 and that is on the assumption that these objections will take some time.
PROSECUTOR [SIC: HOWELL]: Why is he adjourning the case?
PAPPAS: I don’t know. I’m happy to deal with the objection now.
HIS HONOUR: Hand up the Evidence Act, please, Prosecutor. It’s your objection. Where is the section?
PROSECUTOR: 44.
HIS HONOUR: Yes, where’s the section?
PROSECUTOR: It’s in the Evidence Act. I can get that printed out.
HIS HONOUR: Yes, but where is a copy of it, please?
PROSECUTOR: Yes.
HIS HONOUR: I’ll adjourn the Court and go and get my own copies.
SHORT ADJOURNMENT
Section 44, you say?
PROSECUTOR: Yes, your Honour.
PAPPAS: Your Honour, could the witness be muted whilst this debate takes place?
HIS HONOUR: Yes. Certainly.” [43]
43. Tcpt, 4 July 2023, p 65.43 to p 66.25

After some unedifying submissions from Sgt Smith and some apparent misunderstandings, the Magistrate effectively ruled in favour of Mr Pappas, but Mr Pappas was not content with the ruling which Mr Pappas interpreted, apparently, as “the end” of any further exploration of the documents, rather than the Magistrate communicating that he understood the argument and wanted to move on with the questioning on the document. Sgt Smith seemed not to understand that the document extracted from subpoenaed records could be admissible, in that context, as a business record and was quite obdurate about it being unfair to put it in his way to a vulnerable witness.
Unfortunately, rather than make a formal call on the subpoenaed material and/or explain courteously to his opponent before its deployment - or at least at the time of its deployment - the provenance of the document and its relevance and role, Mr Pappas waited to the end of the exchange to explain those matters. Exchanges became unnecessarily heated as a result of this approach. His Honour ruled in a way in favour of allowing questioning on the document, but indicating perhaps a preliminary view as to weight.
Instead of proceeding with the witness, the afternoon derailed:

“HIS HONOUR: It’s just notes on the doctor’s file, that’s all it is but I can’t see why 44(3) rules out that being put to this witness under 44(3)(c).
PROSECUTOR: Okay.
HIS HONOUR: That’s the end of it.
PAPPAS: Well, sorry, your Honour.
HIS HONOUR: You want to take it further?
PAPPAS: I do.
HIS HONOUR: Written submissions, thank you. Written submissions.
PAPPAS: It’s a very simple--
HIS HONOUR: Written submissions, Mr Pappas. It’s my Court, not yours.
PAPPAS: Yes, indeed.
HIS HONOUR: All right. How long is it going to take the parties to prepare written submissions? I’ve made an indication to try and push this thing along. Your client is nodding her head with approval. Do you wish to confer with your client?
PAPPAS: No.
HIS HONOUR: Written submissions. How long do you seek, Prosecutor? You can ask for as long as you like. What’s reasonable and fair?
PROSECUTOR: On an objection just written. I mean, I can’t do them - your Honour, the matter’s listed tomorrow and the next day. I will endeavour to have them for tomorrow, if that’s fair, for 11.30, if that’s the time that this witness will be back.
HIS HONOUR: We have a DPP list tomorrow. It will be 2 o’clock.
PROSECUTOR: Okay.
HIS HONOUR: Then we have a Children’s Court list on Thursday.
PROSECUTOR: On Thursday.
HIS HONOUR: I made that very clear to Mr Taylor when this matter was listed. It’s two half days.
PROSECUTOR: Yes.
HIS HONOUR: How long do you require to go into written submissions.
PROSECUTOR: Your Honour --
HIS HONOUR: Just tell me what you require, and I will hear whatever other evidence you have. I’m part heard in this matter, we’ll just press on and we’ll put this witness on abeyance until such a time as I make a ruling, which might be this year, it might be next year.
PROSECUTOR: This witness, I know that they - just give me one moment, your Honour.
PAPPAS: Whilst the sergeant’s conferring, your Honour, we can reduce our argument to writing by as early as you like tomorrow morning.
PROSECUTOR: I have a DPP list tomorrow morning, you won’t be before 2 o’clock.
PAPPAS: No, I heard what your Honour had to say in that regard.
HIS HONOUR: Mr Taylor was fully aware of that when this matter was listed.
PAPPAS: I think Mr Taylor suggested that it was a three-day matter and your Honour resisted that.
HIS HONOUR: I said I’d give you one day today and two half days. I made it very clear.
PAPPAS: Yes. All I’m saying--
HIS HONOUR: I’m quite prepared to go part heard, and I can tell you the first hearing date in this Court is November so it’s going to go into next year. It’s a matter for you and your client. Prosecutor, what do you want to say?
PROSECUTOR: Well, your Honour, I accept your proposition for 44(3)(c) to happen but my friend is going to go further.
HIS HONOUR: Mr Pappas does not accept it.
PROSECUTOR: So, I’m happy to have written submissions prepared by tomorrow for 2 o’clock but I don’t know what, given it’s Mr Pappas that
HIS HONOUR: Then they’ll have to be given to Mr Pappas so he can review them and reply. When do you think you’re going to reply?
PAPPAS: I won’t need a reply, your Honour. I’m perfectly happy to hang my colours on the mast with our written submissions. It’s a simple argument and that is that subs (2) governs the admissibility of what I’m doing.
HIS HONOUR: Subsection (2) of what section?
PAPPAS: Of that s 40.
HIS HONOUR: No, it doesn’t. It’s a question of whether it’s admissible or not.
PAPPAS: Well, it does, with respect, your Honour. The permission in subs (2)
HIS HONOUR: Depends on whether it is likely to be admitted or whether it’s admissible.
PAPPAS: That’s right. It’s produced on subpoena as a business record. Section 69 makes it admissible.
HIS HONOUR: Yes.

PAPPAS: Thank you, your Honour.” [55]
(Emphasis added).
55. Tcpt, 6 July 2023, p 35.29 to p 37.45

Mr Howell submitted that this exchange shows a deliberate choice to leave counsel in a state of uncertainty as to when the hearing would adjourn for the day, knowing this affected Ms Heywood’s team and no one else. The hostility to counsel was palpable, and the refusal to raise with Sgt Smith the frequency of her non-meritorious objections continued.
Shortly after, this exchange occurred:

“PAPPAS
Q.    If you let the laughing out of any account of what you say happened on that day, can you think of any reason why you would do so?
A.    I was under a lot of emotional distress. I was going through a lot after I was racially assaulted at the event and so that could definitely be a factor.
Q.    Would you agree with the proposition that laughter combined with apparently hurtful words can indicate that the speaker of the words did not mean to wound or hurt but was meaning to do something different?
PROSECUTOR: Objection.
HIS HONOUR: Yes. What do you want to say, Prosecutor?
PROSECUTOR: That’s asking an opinion, a supposition. That’s not asking a question of--
HIS HONOUR: Yes. I agree with that. Move on. I don’t allow that question.
PAPPAS: Would your Honour hear me?
HIS HONOUR: Yes. What do you want to say?
PAPPAS: It’s not asking for an opinion. It’s asking for this witness’s understanding of the use of the English language, nothing more. Whether she has an understanding that sometimes an apparently hurtful expression accompanied by laughter might not be received or understood as a hurtful expression.
HIS HONOUR: What do you want to say, Prosecutor?
PROSECUTOR: That’s exactly what I'm saying, your Honour. She can’t say an opinionated response.
HIS HONOUR: I don't know where it takes us anyway, Mr Pappas. What's the relevance of that question?
PAPPAS: The relevance is, as the witness has said, her recollection is of laughter accompanying these words.
HIS HONOUR: That’s her evidence. Yes.
PAPPAS: I'm entitled, with respect, to explore whether her understanding of language at that time was such that perhaps she misunderstood what was being said and done on her own version, not accepting the version to be accurate but on her own version.
HIS HONOUR: What's the question?
PAPPAS: Now we’re back in that line of country, your Honour.
HIS HONOUR: I beg your pardon.
PAPPAS: We’re back in the line of country about what I--
HIS HONOUR: What is the question?
PAPPAS: Your Honour, please, may I respond to you rather than be hectored with, “What is the question? What is the question?”
HIS HONOUR: Yes.
PAPPAS: Thank you. What happens continuously is that an objection is made, I have a debate of sorts with your Honour and then your Honour retorts, “What is the question?” It’s a very difficult way to proceed. I've not encountered it in many years of practice, ever.
HIS HONOUR: Sure.
PAPPAS: It seems to be unique to your Honour.
HIS HONOUR: I'm just asking you what the question is. What is the question?
PAPPAS: Sorry. I'm now leaning to my left to speak to my junior. It doesn’t help that your Honour then repeats, “What is the question?” In a demanding voice. I’ll withdraw the question, your Honour. I’ll ask it again. It’s so much easier.
Q.    Ms [REDACTED], was it your experience in March 2022 that sometimes apparently hurtful words spoken accompanied by laughter on the part of the speaker might be understood differently, that is not as hurtful words but as jocular words?
PROSECUTOR: Objection, your Honour.
HIS HONOUR: We've had the objection. I’ll allow the question. I asked him what the question was. He's now reiterated the question and I'm allowing the question to be asked.
PAPPAS
Q.    Ms [REDACTED], do you recall the question I've just asked you?
A.    Yes.
Q.    Was that your experience in about March 2022?
A.    No.” [56]
(Emphasis added).
56. Tcpt, 6 July 2023, p 41.16 to p 44.27

Further cross-examination proceeded in an apparent attempt by Mr Pappas to obtain a different answer from the Informant. Sgt Smith objected and the Magistrate ruled on the objection:

“Q. So, you could think of no circumstance in which someone might say something apparently hurtful but laugh at the same time, not meaning to be hurtful?
PROSECUTOR: Objection, your Honour.
AUDIO VISUAL LINK DEACTIVATED
HIS HONOUR: Why don’t you ask a clear question, Mr Pappas?
PAPPAS: Yes. Thank you, your Honour.
HIS HONOUR: It’s not clear at all what that question gets at.
PAPPAS: Thank you.
AUDIO VISUAL LINK ACTIVATED
Q. Ms [REDACTED], you understood in March 2022 that laughter very often accompanied someone playing a prank or telling a joke, that sort of thing, didn’t you?
PROSECUTOR: Objection.
HIS HONOUR: Why do you object to that?
PROSECUTOR: We’re asking what she affiliates with a prank or a joke, that laughter is something that happens with a prank or a joke and that’s simply not true. It’s a misguided question.
HIS HONOUR: He's just asking for her view.
PROSECUTOR: Sorry?
HIS HONOUR: He's just asking for her view. I think that’s a fair enough question. I can’t see where it takes us but ask the question, Mr Pappas.
PAPPAS: Will your Honour hear me again about--
HIS HONOUR: I'm allowing you to ask the question.
PAPPAS: Yes. I understand that. I'm seeking to re-agitate with you the matter that your Honour has been thinking about.
HIS HONOUR: I'm sure the prosecutor hears what you say.
PAPPAS: That doesn’t have--
HIS HONOUR: Please proceed, Mr Pappas.
PAPPAS: It doesn’t have any effect on the prosecutor, your Honour, without your Honour exercising the control that you have as the--
HIS HONOUR: Prosecutor, do I need to tell you that questions that you object to should be based on reasonable grounds?
PROSECUTOR: No, your Honour, and--
HIS HONOUR: Thank you.
PROSECUTOR: --all my objections are that way.
HIS HONOUR: Thank you, Mr Pappas.
PAPPAS: Thank you, your Honour.” [57]
(Emphasis added).
57. Tcpt, 6 July 2023, p 43.13 to p 44.27

Mr Howell submitted that this was a “parody” of redirecting Sgt Smith and would be seen as such by a fair-minded lay observer. He submitted that it would also be seen as encouragement to her to proceed as she had been doing.
I do not accept that is the only way the exchange might be viewed, but I accept a fair-minded lay observer might reasonably see it that way.
A short time later, objection was taken to an inept and confusing line of questioning, but Mr Pappas launched another assault on Sgt Smith’s probity and skill and the Magistrate’s competence in the way that he had been presiding and controlling the proceedings:

“Q.    But, if I said, “You're a mop-headed idiot,” and I laughed as I said it or even after I said it, you wouldn’t necessarily regard it as insulting of him, would you?
A.    Sounds like you're bullying him.
Q.    But you wouldn’t necessarily regard it as a serious insult, would you?
PROSECUTOR: Objection, your Honour.
HIS HONOUR: She's answered the question.
PROSECUTOR: She's answered that question.
HIS HONOUR: She says she regards it as you bullying him. Please proceed.
PAPPAS: Your Honour, I can’t continue with this cross-examination with the constant interruptions that I'm suffering and your Honour’s--
HIS HONOUR: I have warned the prosecutor. She understands the position. She is prosecuting this case. She has her professional obligations. I can do no more than that. Please move on.
PAPPAS: Well, there is more your Honour can do.
HIS HONOUR: What can I do?
PAPPAS: Your Honour has power under s 27 and 29 of the Evidence Act 1995 to control the conduct in the same way your Honour purports to control my conduct in court, and I'm inviting your Honour to do so because we've now got to the point where this has gone on and on and on.
HIS HONOUR: That’s quite so, sir. I agree. It’s going on and on and on.
PAPPAS: Yes. I know what your Honour means by that, that--
HIS HONOUR: Which is exactly how it has been. Yes.
PAPPAS: --the subtext is, “Yes. Mr Pappas, it’s you that’s dragging it on and on and on.”
HIS HONOUR: It’s quite possible.
PAPPAS: That’s what your Honour is saying to me.
HIS HONOUR: It’s quite possible.
PAPPAS: I'm not ignorant of your Honour’s inference.
HIS HONOUR: It’s quite possible.
PAPPAS: Your Honour’s animosity towards me is palpable.
HIS HONOUR: I have no animosity towards you.
PAPPAS: Your Honour clearly does.
HIS HONOUR: Come on.
PAPPAS: Clearly does. I know your Honour wishes to deny that.
HIS HONOUR: Mr Pappas, I don’t even know who you are. Please proceed, Mr Pappas.” [58]
(Emphasis added).
58. Tcpt, 6 July 2023, p 45.24 to p 46.34

Mr Howell submitted that his Honour’s disdain for counsel is clear from the sarcastic comments: “That’s quite so, Sir. I agree. It’s going on and on”. The comment was snide, and implied counsel’s cross-examination was inappropriately long.
In the context of asking for time to review the COPS material produced at 2:35pm that day, the following exchange occurred, with the Magistrate deploying a noticeably icy and sarcastic tone:

“PAPPAS: … could we have a moment to look at that or a few moments to look at that COPS material?
HIS HONOUR: Sure. You’ve got your taxis, have you?
PAPPAS: Sorry, your Honour?
HIS HONOUR: Are you booking taxis?
PAPPAS: No. Not at all.
HIS HONOUR: We’ll just bat on then. Thank you. I thought you were wanting to get away.
PAPPAS: I do. Is your Honour saying that we can?
[The words: “It’s unbelievable” are muttered by Mr Pappas able to be heard on the audio file, but it is unclear whether this was able to be heard in Court]
SHORT ADJOURNMENT.” [59]
(Emphasis added).
59. Tcpt, 6 July 2023, p 53.22-36

Mr Howell submitted that this broadened the cynicism that his Honour had displayed to Mr Pappas, to all three of Ms Heywood’s legal representatives. Mr Howell submitted that the comment was gratuitous, unfair and indicative of contempt for the honesty and professionalism of those legal representatives.
I agree that is an available interpretation of those comments and one that a fair-minded lay observer may reasonably make.
After a short adjournment, the following exchange ensued:

“HIS HONOUR: Yes?
PAPPAS: Thank you, your Honour. Just for absolute certainty, your Honour referred, as you departed the Bench, the ordering of taxicabs. No such taxi cabs have been ordered because of your Honour’s earlier indication but--
HIS HONOUR: I thought you said Mr Taylor had sick children.
PAPPAS: Yes. And he will be departing shortly but Mr Howell and I are trying to rearrange our life to be here for as long as your Honour wants to sit. But I thought I should inquire because it seemed to be implied that someone at least would be permitted to depart.
HIS HONOUR: If he's got sick children I can’t see any reason why I wouldn’t allow him to depart.
PAPPAS: I’d asked your Honour to give that indication earlier and your Honour specifically did not.
HIS HONOUR: I just gave it when I walked out just a minute ago, put the taxis--
PAPPAS: No. Your Honour mumbled something as you walked out that left us all in doubt as to what was intended,
HIS HONOUR: Thank you, Mr Pappas. Thank you, Mr Pappas.
PAPPAS: Is it the situation that Mr Taylor has your Honour’s permission to withdraw?
HIS HONOUR: Indeed.
PAPPAS: Thank you. Yes. All right.
HIS HONOUR: When are you leaving, Mr Taylor?
PAPPAS: Mr Taylor will leave in time to get to the airport, your Honour.
HIS HONOUR: But I need to address him before he leaves so when is he leaving?
PAPPAS: I see. I didn’t quite understand that your Honour wished to address him.
HIS HONOUR: I don’t need to address him. I just need to talk to him because I will inquire of you, Mr Taylor, through you, Mr Pappas, that you provide to this Court the availability of senior counsel, junior counsel and yourself for the rest of this year and through to 30 June next year so that I can set an adjournment date for these proceedings, and I require that you do that by close of business Monday.
PAPPAS: Your Honour can make those directions through me. There is simply no--
HIS HONOUR: Before he goes, Mr Pappas, he is your instructing solicitor--
PAPPAS: No. Your Honour, seriously there is simply no reason why, apart from your Honour’s desire to intimidate Mr Taylor, that you would require him to stand up while you address him in that way.
HIS HONOUR: Require him to stand up? I just said--
PAPPAS: Your Honour did. It’s all very well to nod and smile and say that’s--
HIS HONOUR: Mr Taylor, are you prepared to do what I have asked?
PAPPAS: Your Honour, please address me.
HIS HONOUR: I said through you.
PAPPAS: No. Your Honour is looking directly at Mr Taylor.
HIS HONOUR: Mr Pappas, would you ask your instructing solicitor--
PAPPAS: It’ll be done.
HIS HONOUR: --whether he's prepared to do that?
PAPPAS: It’ll be done.
HIS HONOUR: Thank you.
PAPPAS: Thank you.
HIS HONOUR: Close of business Monday.
PAPPAS: Yes. That's fine. That can be done.
HIS HONOUR: Mr Taylor, before you go, through you, Mr Pappas, would you ask him that he is to appear on-screen here, he can appear by way of AVL to fix this hearing date? Mr Pappas, through you Mr Taylor is to provide available dates for senior counsel, counsel and himself for the balance of this year and through 30 June 2024 by close of business on 10/7 and he is to appear by way of AVL on 14/7/2023 to fix a new hearing date.
PAPPAS: At what time, your Honour, on that AVL appearance?
HIS HONOUR: 9.30.
PAPPAS: Thank you.
HIS HONOUR: I’ll deal with this when I get to it but 9.30 is the usual day that Court starts, the time that Court starts.
PAPPAS: Thank you, your Honour.
HIS HONOUR: Yes?
PAPPAS: Thank you, your Honour.” [60]
(Emphasis added).
60. Tcpt, 6 July 2023, p 53.25 to p 55.48

This was, in my view, an example of Mr Pappas “picking a fight” with the Magistrate. Contrary to the submissions Mr Pappas made, the Magistrate did not ask Mr Taylor to stand. Mr Taylor was leaving. It is not unusual for a judicial officer to look at a solicitor who is being asked, through counsel, to make certain arrangements. By this time Mr Pappas was, in my opinion, actively looking for matters to complain about, but nevertheless, in end result, the nature of the exchange added some fuel to the perception that a fair-minded lay observer may have that the Magistrate considers the legal team to be dishonest and incompetent and the defence case potentially affected by that dishonesty and incompetence, and so requiring different and more scrutiny than the prosecution case.
Some nine pages of transcript later, the cross-examination of the Informant was completed. There was no re-examination and she was excused. There was then a courteous exchange regarding available dates and proceedings were adjourned to 14 July 2023 for the purposes of fixing a further hearing date.

Decision in respect of Ground 1

The test for apprehended bias has been met. The conduct of the Magistrate after the refusal of the recusal application did not change. No comments were re-visited or retracted with the new day. There was unfortunately more sarcasm and criticism directed to Mr Pappas.
With respect to his Honour’s attitude and dealings with Mr Pappas, a fair-minded lay observer may have noted, (amongst other things), that the cumulative effect of his exchanges with the Magistrate suggested that his Honour held a dim view of Mr Pappas. Various comments suggested his Honour thought Mr Pappas to be incompetent, rude, discourteous and a time-waster. Whether this is an accurate view for his Honour to hold or not, his Honour on occasion belittled, derided, hurried, harassed, “warned” and at one point threatened counsel with physical removal from the Court. By day three, a fair-minded lay observer might have thought the Magistrate was contemptuous of Mr Pappas.
His Honour effectively rebuffed concerns raised by Mr Pappas during the hearing about the overly zealous objections being taken by Sgt Smith. The way Mr Pappas chose to voice his concerns was offensive, supercilious and unprofessional, but the initial even-handedness of the Magistrate evaporated and gave way to sarcasm and belittling of Mr Pappas.
Mr Howell submitted that the totality of the issues that have arisen and the Magistrate’s conduct in this case to date, might lead a fair-minded lay observer to think that the Magistrate bore significant animus towards Ms Heywood’s solicitor and counsel. I accept that submission.
I also accept Mr Howell’s submission that the fact that the Magistrate’s hostility was directed towards Ms Heywood’s legal representatives and not her personally is not to the point: see Adacot v Sowle [2020] FamCAFC 215 at [102] (per Strickland, Ainslie-Wallace and Watts JJ). His conduct towards Mr Pappas has the appearance of either unfairness in the exercise of power by him, or exhibiting a concern that counsel, and therefore his client, were worthy of derision and so submissions made by him and cross-examination of witnesses conducted by him was not worthy of consideration.
Mr Howell submitted that by contrast, a fair-minded lay observer might think his Honour held no animus whatsoever towards Sgt Smith, and in fact enjoyed a good working relationship with her. He afforded her “preferential treatment” (allowing her to re-mention a return of subpoena by simply walking into Court); discussed matters with her in the absence of the plaintiff’s legal representatives; did nothing to discourage her from taking what became a chronicle of unjustified (and at times inchoate) objections to questions asked by counsel in the course of the hearing; made no disparaging comments towards her performance as an advocate; imposed no arbitrary or unreasonable time limits on her; and at all times extended to her courtesy and respect in the manner in which he spoke to her.
Whilst somewhat over-stated, I have concluded that this last submission has some fundamental truth and that attitudinal contrast would have been noticed by a fair-minded lay observer.
Mr Howell submitted that a fair-minded lay observer might think that such apparent prejudice and partiality might lead the Magistrate to decide the case other than on its legal and factual merits. I agree. The logical connection between the matters identified, and the feared deviation from the course of deciding Ms Heywood’s case on its merits is present here because of the cumulative effect of those factors I have gone over which were only reinforced as the hearing proceeded.
The perception of impartiality is the fundamental matter that the law in respect of apprehended bias protects. Here, the cumulative effect of what has occurred in this case supports a conclusion that a fair-minded lay observer may reasonably apprehend that given the Magistrate’s apparent animus, contempt and disdain for Ms Heywood’s counsel, and to a lesser extent, her solicitor, he might be unable to put aside a mindset unfavourable to Ms Heywood to a degree compatible with the dispassionate resolution of the case against her. His Honour’s conduct as it developed over the three days of the hearing did nothing to dispel that impression. The remarks went well beyond case management, occasional flares of ill-temper, misunderstandings or redirection of counsel to relevant issues.
I note the submissions of Mr Deards regarding discretionary matters. He submitted that if the relief sought in the summons is granted, the child Informant will be required to give evidence again and there has been a waste of court time and resources. He also referred to the general undesirability of fragmenting of criminal proceedings. I accept those considerations are important and are of relevance and concern, but they are not sufficient to persuade me that the relief sought should not be granted.

Orders

I make the following orders:

Pursuant to s 69 of the Supreme Court Act 1970 (NSW), an order is made in the nature of prohibition precluding Magistrate Mark Richardson from hearing the proceedings Police v Heywood.

Submissions will be heard with respect to the costs of the proceedings.

**********

Heywood - Annexures (156076, pdf)

Endnotes

Amendments

26 August 2024 - Typographical error corrected in the heading "Ground 3".

Par 99, line 1 - the word "tense" replaced with "terse".

Decision last updated: 26 August 2024

Medium Neutral Citation:	Heywood v Local Court of New South Wales [2024] NSWSC 1047
Hearing dates:	24 November 2023, 7 December 2023 and 12 February 2024, (final part of recording of the proceedings in the Local Court provided 24 February 2024)
Date of orders:	21 August 2024
Decision date:	21 August 2024
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) Pursuant to s 69 of the Supreme Court Act 1970 (NSW), an order is made in the nature of prohibition precluding Magistrate Mark Richardson from hearing the proceedings Police v Heywood. (2) Submissions will be heard with respect to the costs of the proceedings.
Catchwords:	COURTS AND JUDGES – apprehended bias – claim for prerogative writ following refusal by Magistrate to disqualify himself – robust exchanges in Court – rude and bullying comments by counsel for the accused to and about the police prosecutor – patronising, lecturing tone adopted by counsel for accused directed to the Magistrate and police prosecutor – counsel for the accused’s overly sensitive response to objections taken – poorly framed questions by counsel in cross-examination of child – asserted cumulative effect of attitude of Magistrate to legal representatives of the accused – application that Magistrate disqualify himself on ground of apprehended bias – application refused by Magistrate – wrong test applied in the reasons – error of law in decision refusing disqualification application – test for actual bias articulated rather than test for apprehended bias – fair-minded lay observer – apprehended bias established – a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is to decide – “double might” test is a relatively low bar – prohibition and certiorari granted
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Summary Offences Act 1988 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Adacot v Sowle [2020] FamCAFC 215 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98; [2013] NSWSC 1425 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) [2013] FCAFC 150 Polsen v Harrison [2021] NSWCA 23 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 Roylance v Director of Public Prosecutions (NSW) [2018] NSWSC 933 State of New South Wales v Madden [2024] NSWCA 40 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872
Category:	Principal judgment
Parties:	Brigid Heywood (Plaintiff) Local Court of New South Wales (First Defendant) Senior Constable Heath Aiken (Second Defendant)
Representation:	Counsel: S Howell (with J Pappas present on 24 November 2023) (Plaintiff) Solicitors: Hugo Law Group (Plaintiff) Crown Solicitor’s Office (First Defendant) (Submitting Appearance filed on 14 July 2023) Makinson d’Apice Lawyers (Second Defendant)
File Number(s):	2023/00215848
Publication restriction:	Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the child Informant’s name or any other information that might identify her is prohibited.