R v Towney

In this matter, Towney was charged with multiple counts of sexual assault. The trial judge was initially responsible for the proceedings but had to recuse himself due to an apprehension of bias. The case was subsequently allocated to another judge for retrial. Towney applied for the new trial judge to also recuse himself, arguing that the assignment of the same judge to his retrial indicated a prejudgment on the part of the judicial system. The application was heard in the Supreme Court of Victoria.

The central legal issue was whether the assignment of the same judge to the retrial created a reasonable apprehension of bias in the mind of a fair-minded lay observer. The court considered whether the assignment alone, without any further evidence of bias, could be seen as prejudgment or an indication that the judge might not approach the case with an open mind. The court also examined whether the assignment was in itself sufficient to undermine the appearance of judicial impartiality.

The court held that the assignment of the same judge to the retrial did not, in and of itself, create a reasonable apprehension of bias. The court reasoned that the assignment did not provide any evidence that the judge had formed a view on the case or would not approach it impartially. The court emphasised that the fair-minded lay observer would consider the totality of the circumstances, including the judge's conduct during the trial and any comments made. The court further noted that the summing-up and comments on the facts during the trial were within the bounds of judicial balance and did not suggest any bias on the part of the judge. The application was dismissed.

The court ordered that the application for the trial judge to recuse himself be dismissed. The matter was to proceed to trial before the assigned judge.