Secretary to the Department of Justice and Community Safety v JR (a pseudonym) (Ruling)
[2025] VCC 234
•12 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-21-01911
| IN THE MATTER of the Serious Offenders Act 2018 | |
| and | |
| IN THE MATTER of an application under s22(1) of the Act for a Renewal of Supervision Order | |
| and | |
| IN THE MATTER of an application for recusal on the ground of apprehended bias | |
| BETWEEN | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Applicant |
| and | |
| JR (A PSEUDONYM) | Respondent |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2025 | |
DATE OF RULING: | 12 March 2025 | |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v JR (a pseudonym) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 234 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Apprehended bias application
Legislation Cited: Serious Offenders Act 2018 (Vic); Evidence Act 2008 (Vic)
Cases Cited:DPP v Mitchell (A pseudonym) [2018] VCC 912; QYFM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] HCA 15; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas v Charisteas (2021) 273 CLR 289; Livesey v NSW Bar Association (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488
Ruling: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr E Nekvapil SC | Doogue + George |
| For the Respondent | Mr O P Holdenson KC | Russell Kennedy |
HER HONOUR:
Introduction
1The respondent in this proceeding, JR, has made an application that I recuse myself from further hearing of the proceedings on the ground of apprehended bias.
2The current proceedings before the Court relate to an application issued by the Department of Justice and Community Safety (“the Department”) seeking a renewal of the Supervision Order in relation to JR. The application was issued on 8 July 2024.
3I will refer to JR using female pronouns, though the relevant offending occurred when JR was a male.
Background
4JR is a twenty-seven-year-old transgender woman. She was born in 1997 and was a male at birth.
5On 18 May 2023, JR changed her sex from male to female, and her name, with the Registry of Births, Deaths and Marriages.
6Prior to May 2023, JR had a significant criminal background.
7Judge Hogan sentenced JR to four-and-a-half years’ imprisonment in relation to the charge of intent to commit a sexual offence and six months on the charge of handling stolen goods. Her Honour directed that two months of the sentence in relation to stolen goods be served cumulatively, which meant the total effective sentence was four years and eight months’ imprisonment.[1]
[1]Exhibit “A”: DPP v Mitchell (A pseudonym) [2018] VCC 912
8After JR had completed a period of imprisonment, she became the subject of Supervision Orders and Interim Supervision Orders. On 7 October 2021, JR was made the subject of a Supervision Order, which remained in force until 6 October 2024.
9On 6 September 2024, there was a directions hearing before me. There was a further directions hearing before his Honour Judge Purcell on 16 September 2024.
10The substantive hearing of the application for renewal of the Supervision Order commenced before me on 23 January 2025, 24 January 2025 and 28 January 2025, at which time Mr Holdenson KC appeared on behalf of the Department and Mr Nekvapil SC appeared on behalf of JR.
11On 23 January 2025, after hearing submissions, I ruled that the application for renewal of the Supervision Order should be dealt with in two parts:
·first, to deal with the question of whether the Supervision Order should be renewed or not; and
·second, if necessary, to deal with issues in relation to the duration of any Supervision Order and relevant conditions.
12After I delivered that ruling, the Department tendered various material and called Simon James Candlish, psychologist. Mr Candlish gave evidence-in-chief on 23 January 2025 and cross-examination commenced. On 24 January 2025,cross-examination of Mr Candlish continued.
13During the morning of 24 January 2025 and in the course of Mr Candlish’s cross-examination, an issue arose as to JR’s desire to challenge the validity of an assessment instrument described as Static-99R.
14Upon resuming after lunch, the parties asked for some time. As a result, the matter was adjourned to the next available date, Tuesday 28 January 2025.
15On Monday, 27 January 2025, a public holiday, JR’s solicitors informed the Court and the Department, via email, that they had been instructed to make an application for recusal on the grounds of apprehended bias.
16On 28 January 2025, JR’s counsel sought a copy of the transcript of the hearing on 23 January and 24 January 2025 in order to consider the recusal application. The matter was adjourned to a mention 13 February 2025 to enable JR time to review the transcripts once they had been made available.
17In the recusal application, JR relies upon the following documents:
· Exhibit 1: Affidavit of Ms Skaburskis, affirmed on 21 February 2025, together with exhibits.
· Exhibit 2: Summary of Proposed Closing Submissions for the Respondent Supporting Line of Cross-Examination of Mr Candlish, handed to the Court on or about 28 January 2025.
18JR also relies upon an Outline of Submissions on Application for Recusal dated 22 February 2025, prepared by Mr Nekvapil and Ms Skaburskis.
The legal principles
19The relevant legal principles are not in dispute in this application.
20The test for apprehended bias has often been referred to as “the double might” test. A judge should be disqualified from hearing a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions which the judge is required to decide.[2]
[2]QYFM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] HCA 15 (“QYFM:”) at paragraph [37]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 344, paragraph [6]; Charisteas v Charisteas (2021) 273 CLR 289 at 296-7, paragraph [11]
21The test involves two steps. First, in this case, an identification of the factors which it is asserted might lead a judge to resolve the question other than on its legal and factual merits. Second, there must be an articulated logical connection between those factors and the apprehended deviation.
22It is not necessary to show that a judge was in fact biased. It is sufficient to show a reasonable apprehension of bias. Accordingly, when considering whether there was an apprehension of bias, the Court does not look to the mind of the judge, but at the impression which would be given to a fair-minded lay observer.
23The High Court has repeatedly cautioned against courts being too willing to accede to applications for disqualification. In particular, in Livesey, the Court said:
“… it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court. … .”[3]
[3]Livesey v NSW Bar Association (1983 )151 CLR 288 at 294
24Judges are not at liberty to decline to hear cases without good cause and do not select the cases they hear.[4]
[4]Ebner at 348, paragraph [19]
The allegations of apprehended bias
25At the hearing on 26 February 2025, Mr Nekvapil did not seek to make oral submissions to supplement the Outline of Submissions on Application for Recusal dated 22 February 2025.[5]
[5]Transcript of proceedings, 26 February 2025 at Transcript (“T”) 5, Lines (“L”) 2-3
26The Department submitted it was adopting a neutral stance in relation to the application, but highlighted a number of matters, including the Court’s power to control proceedings and to intervene when necessary.
27The Department referred to the case of Johnson v Johnson[6] and the observations of the High Court at [13]:
‘Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx…’
[citations omitted]
[6](2001) 201 CLR 488
28Effectively JR relied on two grounds seeking the recusal:
· Ground 1: an alleged dismissal of an application on 6 September 2024.
· Ground 2: the Court’s interventions on 23 January 2025 and 24 January 2025.
29The grounds will be dealt with in turn.
Ground 1
30It was alleged that an application had been made and refused at a directions hearing on 6 September 2024 to remove reference to the applicant’s “dead name”.
31At no time was a formal application made in relation to the reference of JR’s “dead name”. This part of the recusal application is without merit.
Ground 2
32The second part of the objections relate to the conduct of the hearing on 23 and 24 January 2025, in what is described as being my numerous interventions in the course of Mr Nekvapil’s cross-examination of Mr Candlish, and the manner in which the interventions were made.
33First, a complaint was made that a request for recordings was refused. On 28 January 2025, Mr Nekvapil indicated that his instructions were to proceed with the recusal application, but it would be preferable to have a copy of the transcript available. In the course of that hearing, enquiries were made with the transcribers to ascertain when the transcript would be available. The Court indicated that, if the transcript was made available in a timely manner, the Court would not release the recordings to the parties, as they had only been requested for the purpose of obtaining the transcript.
34At no time did JR request access to the recordings for any purpose other than obtaining a transcript. This part of the recusal application is without merit.
35Second, JR relies upon thirteen instances, some of which overlapped, in which she asserts the Court intervened in a way which may lead a fair-minded observer to consider it to be evidence of apprehended bias.
36Before dealing with each of those complaints in turn, it is appropriate to refer to s41 of the Evidence Act 2008. Section 41 reads as follows:
“41 Improper questions
(1) The court must disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered.
(2)[repealed]
(3)In this section, improper question or improper questioning means a question or a sequence of questions put to a witness that—
(a) is misleading or confusing; or
(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
(4)[repealed]
(5) A question is not an improper question merely because—
(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or
(b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.
(6) A party may object to a question put to a witness on the ground that it is an improper question.
(7)However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(8) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.”
37JR’s right to cross-examine witnesses is not unfettered. It must be exercised in accordance with the rules of evidence and the provisions of the Evidence Act.
38Pursuant to the Serious Offenders Act 2018, while this proceeding is civil in nature, it is not a civil proceeding to which the rules regulating the practice and procedure of the Court in a civil proceeding apply.[7] However, the rules of evidence do apply.
[7] Serious Offenders Act 2018, s 6
39Section 131 of the Serious Offenders Act reads as follows:
“(1) Subject to subsection (2) and sections 134 and 135, the rules of evidence apply to evidence adduced in the hearing of an application under Part 3, 4, 5, 6, 7 or 8 [supervision orders fall under Part 3, interim supervisors fall under Part 4 and reviews of supervision orders fall under Part 8 of the Act].”
40Turning now to the particular matters which JR complains about:
· First, JR says that, on 23 January 2025 at Transcript 54, Line 10, I had inferred that Mr Nekvapil had asked a misleading question. The relevant transcript commences at Transcript 53:
“MR NEKVAPIL:
Q:… just looking at paragraph A there, where she explains her expertise, would you accept that Dr Mortimer is a general practitioner with professional expertise in treating patients with gender incongruence and providing gender affirming hormone therapy?---
A: Yes.”[8]
[8]Transcript 23 January 2025 at T53, L23-28
I interrupted the questions as follows:
“HER HONOUR:
- - - just - she doesn't say that. She says, she has an interest in it. You've read expertise instead of interest.
MR NEKVAPIL:
Well, that's the question I'm putting to the witness, Your Honour, based on her description of her - - -
HER HONOUR:
Well, can you rephrase the question, because it was phrased in a way as if the doctor was saying that that was her expertise, whereas she says it's her interest.”[9]
[9]Transcript 23 January 2025 at T54, L-10
The point taken by JR is that “[h]er Honour intervened to suggest that Mr Nekvapil was suggesting that Dr Mortimer had said that she had expertise (and, by inference, that the question was misleading).”[10] The question was misleading. Dr Mortimer did not assert, in her report, that she had the expertise described by Mr Nekvapil. The question was not allowed because it was misleading.[11] This example would not satisfy the “double might” test – a fair-minded lay observer would accept that a misleading question should not be asked.
[10]See Outline of Submissions on Application for Recusal prepared by JR at paragraph [39(1)]
[11]See s41(3)(a) of the Evidence Act
· Second, JR says that, at Transcript 58, Lines 27 to Transcript 62, Line 1, Mr Nekvapil was cross-examining Mr Candlish about his understanding of when JR commenced hormone therapy. He referred Mr Candlish to a medical report which had been tendered to Judge Hogan.
JR asserts I implied Mr Nekvapil was inadvertently misleading the Court, as he had not taken Mr Candlish to another report which had been tendered to Judge Hogan, which suggested that JR had commenced hormone therapy at an earlier date. The question was potentially misleading, given the existence of other medical material regarding the timing of the taking of hormones by the respondent. This example would not satisfy the “double might” test – a fair-minded lay observer would accept that a misleading question should not be asked.
· Third, JR says that, at Transcript 62, Mr Nekvapil was suggesting to Mr Candlish that Associate Professor Darjee had a particular expertise.
There were questions from the Bench regarding Associate Professor Darjee’s expertise and whether he could provide an opinion about the relevance of hormones and gender-affirming treatment. JR had foreshadowed, at the request of the Court, that it would produce Associate Professor Darjee’s CV. At the time of delivery of this ruling, Associate Professor Darjee’s CV has not been produced to the Court. There can be nothing objectionable about the Court enquiring as to whether a witness upon whom a party wishes to rely is qualified to provide an opinion on a particular point. This example would not satisfy the “double might” test – a fair-minded lay observer would accept that an expert can only give evidence within his or her area of expertise.
· Fourth, JR says that, at Transcript 80, Line 2, the Court asked the cross-examiner for an assurance that the coding rules could apply differently, depending on an individual’s gender. It was asserted that a fair-minded observer might infer that there was some degree of suspicion because I asked for an assurance that the assessing tools mandated different approaches based on gender. A request from the Court asking for an assurance does not evince bias and is not evidence of any apprehended bias. This example would not satisfy the “double might” test – a fair-minded lay observer would not make the inference suggested by JR.
· Fifth, JR says that, at Transcript 84, Lines 22 to 23, the Court asked Mr Nekvapil why he was “cherry-picking” parts of the coding rules and asked “why don’t you put the whole of it to the witness?” The question has to be considered in the context of the questions or series of questions being asked at the time. The relevance of the questions should be considered in the context of the following exchange:
“MR NEKVAPIL:
… I mean, just to be clear, Mr Candlish relies on this and he says this applies to [JR] and that’s why I’ve applied the tool.
HER HONOUR:
Well, the tool says it does.
MR NEKVAPIL:
Well, the tool says it does - - -
HER HONOUR:
Yes, so what - - -
MR NEKVAPIL:
- - - but I want to explore whether that's sufficiently cogent evidence to persuade Your Honour to a high probability, in circumstances where Dr Darjee says there is no empirical clinical or theoretical basis for the tool saying it does.
HER HONOUR:
Well, then get the authors of the tool and cross-examine them. You're not going to do it through this witness. If you're trying to criticise the tool in this way, then it's the people who wrote - who prepared the tool. The doctors and clinicians that are required to apply the tool can only apply the tool - they're not the authors of it.
MR NEKVAPIL:
Well, Your Honour, if an expert witness is giving opinion evidence, then they of course are able to, as part of the basis for their opinion, refer to other material which is in the field of their expertise, but they need to be able to - or they can be tested on whether that other material on which they base their opinion is a proper basis for that opinion and that's what I propose to do, so that if Mr Candlish is unable to say anything about the tool and its operation and whether it provides a good basis, then he wouldn't be able to use the tool, but I don't suggest that. What I seek to do is, explore with him whether the tool does provide a proper basis within his field of expertise for expressing an opinion about my client.
HER HONOUR:
Well, what do you want the court to make of the sentence? For Static-99 - for Static-99 purposes, the individual must not have a penis and have lived for at least two years as a woman. Static-99R does not apply to a female to male transgender offenders, as they are outside the sampling frame of the scale. So you're saying that this witness should ignore the directive, or was, what, applying the directive inappropriately?
MR NEKVAPIL:
This witness says, ‘I've based my application of the tool on this’.
HER HONOUR:
Yes.
MR NEKVAPIL:
This witness, in fact, himself in the second addendum report refers to some criticisms of this guidance, but he says, ‘The basis on which I've applied Static-99 - - -
HER HONOUR:
Yes.
MR NEKVAPIL:
- - - is this guidance.’
HER HONOUR:
Yes, but you're attacking - you're attacking the words of the guides, rather than through this witness. I mean, I just - I - why do you say - sorry, why are you cherry-picking that part of Static-99R and gender transformation, the directive there? Why are you - why don't you put the whole of it to the witness?”.[12]
[12]Transcript dated 23 January 2025 at T83, L1 ꟷ T84, L24
Further, the following exchange took place:
“HER HONOUR:
You can put his [Associate Professor Darjee’s] opinion to this witness, but if you - you can put his opinion - - -
MR NEKVAPIL:
So - - -
HER HONOUR:
- - - but just be careful in the way you question him about these guides, because this man is not the author of the guides.
MR NEKVAPIL:
I understand that Your Honour. Perhaps I'll proceed, but this really is central to our case and so if - - -
HER HONOUR:
Well, if this is essential to your case, the fact that it's dealt with in one paragraph - where else does he deal with it?”[13]
[13]Transcript dated 23 January 2025 at T85, L13-24
It is difficult to understand the basis of this complaint, as it is not articulated in the written submissions. Consequently, it cannot be said that this example would satisfy the “double might” test, as it is impossible to assess what a fair-minded lay observer would make of this point.
· Sixth, issue was taken with the way in which the Court disallowed a series of questions directed to Mr Candlish, a psychologist, on the basis that he was not qualified to give evidence as to the effect of hormone treatment on erections. An objection was made by Mr Holdenson. If an expert witness does not have the qualifications to give an opinion, then he cannot do so. This example would not satisfy the “double might” test – a fair-minded lay observer would accept that an expert witness can only give evidence relevant to his or her expertise.
· Seventh, JR referred to a passage of transcript at T101, Line 5 and suggests that my intervention was inappropriate when I disallowed questions regarding female-to-male transgender offenders. The full context was as follows:
“MR NEKVAPIL (to Mr Candlish):
… can I just ask you then, if you could go to that part of the coding rules - - -?---
A: Yes.
MR NEKVAPIL:
- - - and that was the paragraph which is at p21 in the document I've given Your Honour - - -?---
A: Yes.
Q:- - - do you see, it says in the last sentence of that paragraph, that it does not apply to female to male transgender offenders, as they are outside the sampling frame of the scale?---
A:Yes.
Q:And what do you understand to be meant by outside the sampling frame of the scale?
HER HONOUR:
No, what relevance is that? This is not a situation of a female to male transgender offender.
MR NEKVAPIL:
Well, I'm just trying to explore with the witness his understanding of this guidance note - - -
HER HONOUR:
Well, isn't it reasonably clear that where this -whether it is something - whether the language is language that would be used in 2025 is a different issue, but this speaks about male to female transgender clients and has some comments about that class of individuals and then says it doesn't apply to female to male transgender offenders, but that's not the case that's before me.
MR NEKVAPIL:
No, but - all right, I'll ask the next question, Your Honour - - -”[14]
[14]Transcript dated 23 January 2025 at T101, L16 ꟷ T102, L7
There is nothing in this objection. JR is a transgender female offender and not a transgender male offender. This would not satisfy the “double might” test – a fair-minded lay observer would accept that an expert witness can only give evidence relevant to his or her expertise.
· Eighth, it was asserted that the Court asked Mr Nekvapil to “move on please” on two occasions, when it was considered that the Court was not being assisted by a particular line of questioning. It is not accepted that such a request could form the basis of an application of apprehended bias. This would not satisfy the “double might” test – a fair-minded lay observer would accept that judge is entitled to request counsel to move on when the Court is not being assisted.
· Ninth, when Mr Candlish was being cross-examined about the opinion of Associate Professor Darjee, there was an objection to the question and the question was disallowed. In further cross-examination, Mr Nekvapil sought to put Associate Professor Darjee’s opinion. The Court intervened and disallowed the questions on the basis that they misstated Associate Professor Darjee’s opinion. This was an appropriate intervention and consistent with s41 of the Evidence Act. This example would not satisfy the “double might” test – a fair-minded lay observer would accept that a misleading question should not be asked.
· Tenth, JR says that an exchange regarding use of the term “transgender” at Transcript 113, Lines 15-23, where clarification was sought from Mr Nekvapil as to what he meant when he used the term “transgender” when cross-examining Mr Candlish, was inappropriate. The Court was seeking clarification in order to understand the question and any answers. This clarification was sought in the context of a question being asked about an RSVP tool, where the Court had been informed that another tool, the Static-99R tool, had set specific criteria around when a transgender female client could be considered male for the purposes of the Static-99R tool’s use. This would not satisfy the “double might” test – a fair-minded lay observer would accept that it is appropriate for the use of terminology to be clear.
· Eleventh, Mr Nekvapil sought to cross-examine Mr Candlish regarding cisgender women. The Court intervened and would not allow cross-examination relating to questions regarding cisgender women. Once more, this is a proper application of the statutory obligation on the Court provided in s41 of the Evidence Act. The Court did suggest that the questions could be asked in a different way, but ruled that the questions relating to cisgender women were not allowed. JR is not a cisgender woman. There was no forensic relevance or purpose in asking questions about cisgender women. It appears that the complaint in this regard is not in relation to the Ruling. Indeed, at the hearing on 28 February 2025, Mr Nekvapil specifically said that JR was not asserting there was a wrong ruling, but said that the Ruling could form part of the context.[15] This complaint appears to be an attempt to go behind the Ruling that questions relating to cisgender females were not permitted. This would not satisfy the “double might” test – a fair-minded lay observer would accept that irrelevant questions should not be allowed.
[15]Transcript 26 February 225 at T33, L4-13
Conclusion
41While it was not specifically stated, it was implicit in JR’s submissions that there were unreasonable interruptions from the Bench in the cross-examination. Given that the Bench interrupted from time to time in respect of questions based on a misstatement of the evidence, or to clarify misleading or confusing questions, I do not accept this contention.
42The Court has an obligation to disallow improper questions or improper questioning pursuant to s41 of the Evidence Act. Section 41 of the Evidence Act directs that the Court “must” disallow an improper question or improper questioning. The Court’s power to do so exists irrespective of whether an objection has been made. In circumstances where questions were either misleading or confusing, the Court’s intervention was entirely appropriate.
43Therefore, I do not agree that, when considering the above factors, a fair-minded lay observer would have the impression I might not have brought an impartial or unprejudiced mind to the resolution of the issues in dispute.
44For the reasons outlined above, taken in isolation, the individual complaints either lack a proper basis for the allegations or have limited substance.
45In QYFM, it was noted by Jagot J that, in circumstances where a judge did not determine that apprehended bias exists, the judge should consider his or her duty to sit, when she said:
“… The duty to sit is not absolute, even where no reasonable apprehension of bias is involved. Accordingly, in ‘a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification’ [quoting from Ebner]. This reflects the fact that, along with their duty to sit, a judge has a duty to ensure continuing public confidence in the administration of justice. Generally, the latter duty is best fulfilled by judges adhering to the former duty unless they are disqualified from so doing on a proper basis (be it a reasonable apprehension of bias or actual bias). But if tension between these two duties exists and is irreconcilable, the latter must prevail.”[16]
[16]QYFM at paragraph [279]
46Consistent with this, I have given careful consideration as to whether the conduct of the proceedings to date gives rise to a ground on which I ought disqualify myself from hearing these proceedings.
47Consideration has to be given to the question of whether a real doubt arises, even where there is no reasonable apprehension of bias involved.
48It is the cumulative effect I have to take into account when considering whether it is appropriate to recuse myself.
49The cumulative effect raises questions as to the impact of s41 of the Evidence Act. This in turn may raise a doubt as to whether the section was properly applied.
50Having regard to the principles stated in Ebner and more recently in QYFM, I am not satisfied that the grounds of apprehended bias exists. However, having regard to the fact there is a tension between my duty to sit and my duty to ensure continuing public confidence in the administration of justice, and to dispel any apprehension of bias on my part, I have determined that it is appropriate to recuse myself from the hearing.
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