R v TW - [2022] NSWLC 16

Local Court

New South Wales

Medium Neutral Citation: R v TW [2022] NSWLC 16
Hearing dates: 1 November 2022
Date of orders: 7 December 2022
Decision date: 07 December 2022
Jurisdiction: Criminal
Before: Donnelly LCM
Decision:
The application that Magistrate Donnelly disqualify himself from presiding in a second diversionary application under s 14 Mental Health and Cognitive Impairment Forensic Provisions Act, 2020 in the same criminal proceedings where he determined the first application is refused and dismissed.

Catchwords:
Courts and Magistrates - Bias

Legislation Cited:
Bail Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Mental Disorder) Amendment Act 1989 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Mental Health (Criminal Procedure) Act 1990 (NSW)
Mental Health (Criminal Procedure) Amendment Act 2005 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 22.5

Cases Cited:
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2
Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
DPP v Sami El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Re JRL; Ex parte CJL (1986) 161 CLR 342
Stanizzo v Badarne [2014] NSWSC 689
Tugrul v Tarrants Financial Consultants Pty Ltd (in liquidation) [No 2] [2013] NSWSC 1971
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Texts Cited:
Government Gazette of the State of New South Wales, No 93, 8 September 1989, at 6584
Government Gazette of the State of New South Wales, No 158, 16 December 2005, at 1190
New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: Diversion (Report No 135, June 2012)
New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences (Report No 138, May 2013)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1989 at 7330
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 8 November 2005 at 19214

Category: Procedural rulings
Parties: Police (Prosecution)
TW (Defendant)
Representation: Defendant: Mr D Eid
Prosecution: Sergeant Coote

File Number(s): 2022/159120
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) there is to be no publication of information that identifies or is likely to lead to the identification of the alleged victim.

JUDGMENT

Mr Eid has made an application by way of email that I “not preside over” a second application for a diversionary order under ss 12, 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW). What follows is a judgment setting out the law as I understand it. It is in no way intended to be a personal criticism of Mr Eid who is an experienced and highly regarded legal practitioner.

An email communication

The applicant…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v TW

Details

AGLC: R v TW [2022] NSWLC 16
Case: [2022] NSWLC 16
Decision Date: 07 December 2022

CaseChat Overview and Summary

The case of R v TW involved the respondent, TW, applying to disqualify Magistrate Donnelly from presiding over a second diversionary application under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act, 2020. The application was made in the same criminal proceedings where Magistrate Donnelly had previously determined a first diversionary application. The application was heard and ultimately dismissed by the Local Court of New South Wales.

The central legal issue before the court was whether Magistrate Donnelly should be disqualified from presiding over the second diversionary application due to a perceived bias, as argued by TW. The respondent contended that the magistrate's handling of the first application indicated a bias that would prevent him from making an impartial decision on the second application. The court needed to determine whether the actions of the magistrate in the first application warranted his disqualification and if the respondent's argument was substantiated by the evidence and legal principles applicable to judicial impartiality.

In dismissing the application, the court found that the magistrate's conduct during the first application did not demonstrate bias or a failure to act impartially. The court held that the magistrate's decisions were based on the evidence presented and the applicable legal standards. The judge found that there was no evidence to suggest that Magistrate Donnelly would be unable to approach the second application with an open mind, free from any preconceived notions or bias. The court emphasised the importance of ensuring that any perceived bias was grounded in actual bias rather than mere suspicion or dissatisfaction with the outcome of the proceedings. Consequently, the application to disqualify the magistrate was refused and dismissed.

Orders

Orders of the court

The application that Magistrate Donnelly disqualify himself from presiding in a second diversionary application under s 14 Mental Health and Cognitive Impairment Forensic Provisions Act, 2020 in the same criminal proceedings where he determined the first application is refused and dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v TW [2022] NSWLC 16
Hearing dates:	1 November 2022
Date of orders:	7 December 2022
Decision date:	07 December 2022
Jurisdiction:	Criminal
Before:	Donnelly LCM
Decision:	The application that Magistrate Donnelly disqualify himself from presiding in a second diversionary application under s 14 Mental Health and Cognitive Impairment Forensic Provisions Act, 2020 in the same criminal proceedings where he determined the first application is refused and dismissed.
Catchwords:	Courts and Magistrates - Bias
Legislation Cited:	Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Mental Disorder) Amendment Act 1989 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health (Criminal Procedure) Act 1990 (NSW) Mental Health (Criminal Procedure) Amendment Act 2005 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 22.5
Cases Cited:	British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 DPP v Sami El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Re JRL; Ex parte CJL (1986) 161 CLR 342 Stanizzo v Badarne [2014] NSWSC 689 Tugrul v Tarrants Financial Consultants Pty Ltd (in liquidation) [No 2] [2013] NSWSC 1971 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Texts Cited:	Government Gazette of the State of New South Wales, No 93, 8 September 1989, at 6584 Government Gazette of the State of New South Wales, No 158, 16 December 2005, at 1190 New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: Diversion (Report No 135, June 2012) New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences (Report No 138, May 2013) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1989 at 7330 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 8 November 2005 at 19214
Category:	Procedural rulings
Parties:	Police (Prosecution) TW (Defendant)
Representation:	Defendant: Mr D Eid Prosecution: Sergeant Coote
File Number(s):	2022/159120
Publication restriction:	Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) there is to be no publication of information that identifies or is likely to lead to the identification of the alleged victim.