By Paul Gregoire and Ugur Nedim
Sydney solicitor Danny Eid requested in email to the New South Wales Local Court registry in October 2022, that Magistrate Hugh Donnelly “not preside” over a secondary application as the judicial member had already dealt with the hearing of a mental health application in respect of a client.
The solicitor made the request on the basis that “it is usual convention for a different magistrate to consider a fresh application”.
The second application was made under the provisions of section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) – previously known as a ‘section 32 application’ – calling on the court to dismiss the charge brought against the solicitor’s client and divert her into a mental health treatment plan.
Mr Eid’s client had been charged with the offence of common assault under section 61 of the Crimes Act 1900 (NSW). The defendant remained anonymous, as the alleged assault was against her daughter and, as the complainant was a child, the law requires that nothing identifying them be released publicly.
The first section 14 mental health application was refused by Magistrate Donnelly on 7 September 2022. On making his second application on 11 October of that year, the solicitor was informed that the matter had been listed for the 1 November with the same magistrate set to determine the matter once more.
So, as a request to replace a magistrate set to preside over a matter is an issue that “should be dealt with in open court”, determination of the request was scheduled to go before the court on the hearing date of 1 November, with Magistrate Donnelly allocated to decide upon it.
Requirement to inform opposing party
To begin his findings, Magistrate Donnelly called out Mr Eid for not having included the prosecution in his email request for a different magistrate, as rule 22.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) requires matters of substance to be communicated to the opposing party.
His Honour referred to two recent cases determined in the Supreme Court regarding this conduct rule, which involved breaches that saw legal practitioners making contact with justices’ chambers, and although magistrates in our state don’t have associates, Local Court registrars act in a similar capacity.
Mr Eid apologised for what he described as an oversight.
In explaining why Mr Eid’s request for a different magistrate should be determined in open court, his Honour outlined that judicial officers are meant to exercise their functions in a transparent manner as this is “an essential element of the administration of justice”.
Legislative history
In determining Mr Eid’s application, Magistrate Donnelly first considered the legislative history of diversionary mental health orders, and in doing so, he explained that the law regarding the disqualification of magistrates was amongst a number of amendments made to the Crimes Act in 1989 that established such a regime.
These changes included the since-revoked section 428XA of the Crimes Act, which had provided that if, after consideration, a defendant had not been diverted from a case on mental health grounds, then the magistrate making the determination was required to disqualify himself or herself if the accused requested this.
Magistrate Donnelly explained that the second reading speech relating to the 1989 bill provided no reasoning for this new law. He further noted that the 1989 regime was repealed and replaced by the Mental Health (Forensic Provisions) Act 1990: legislation that initially had a different name.
His Honour proceeded to explain that the magistrate disqualification provision was repealed in 2005 by then NSW attorney general Bob Debus, as it was found to permit “spurious applications to be made to facilitate magistrate shopping”. Mr Debus opined that existing common law rules were sufficient to protect against magistrate bias or partiality.
Magistrate Donnelly continued to outline that after two reviews of the metal health statutory regime by the Law Reform Commission, the old legislation was replaced by the current Act, stating that legislators would have been aware of the magistrate disqualification provision yet determined not to include one.
Application for a different magistrate refused
His Honour underscored that the fact the 2020 legislators had decided not to include the provision to request magistrate replacement “when a court continues to hear a matter after refusing a first application” bore relevance upon Mr Eid’s request for a different magistrate.
The Magistrate noted that a rule requiring a member of the judiciary to disqualify himself or herself would be impracticable in country courthouse with only a single magistrate, while at the same time pointing out that that section 30 of the Criminal Procedure Act 1986 (NSW) already permits shifting cases to other courts due to perceived bias.
“At present there is no judicial practice in country courts or country circuits with a single magistrate of disqualification by the magistrate and changing the venue for a second diversionary application,” his Honour set out.
“If a second application is made it is determined on the merits applying the relevant statute on its terms.”
Decision is consistent with other areas of the law
In relation to how magistrate disqualification is not reflected in other aspects of the law, Magistrate Donnelly cited section 74 of the Bail Act 2013 (NSW), which permits multiple release applications – also known as bail applications – to be made with no requirement that decision-makers differ for each determination.
His Honour then considered authorities on judicial bias. In 1994’s Webb versus The Queen, the High Court established four key principles in establishing such bias, which include a judge’s interest in a matter, their conduct, any associations they have or extraneous information about them.
While the High Court found in 1983’s Livesey versus NSW Bar Association that reasonable perception of judicial bias did exist in a case that considered whether a barrister should be struck off, as two of the judges deliberating on it had made adverse findings regarding the defendant in a previous case.
But this apprehension did not exist in the present, according to his Honour, because there was “no suggestion in this case that in the first diversionary application” he had “made any adverse findings as to the credibility of the applicant”.
No convention to disqualify
“The application that I disqualify is refused,” Magistrate Donnelly set out in his 7 December 2022 determination.
“In summary, the applicant has failed to establish that there is a ‘usual convention for a different magistrate to consider a fresh application’”.
Indeed, his Honour set out that a review of the legislative history in New South Wales reveals that magistrate disqualification had been a part of state law but was then repealed as it was found to lead to “magistrate shopping”: the process of trying to obtain a preferable judicial officer.
Further, Mr Eid had made no reference to any common law authorities that would support his magistrate replacement request, and in comparing other aspects of the law that involve secondary applications, there are no such practices that necessitate the allocation of a different judicial officer.
“There is no judicial practice of disqualification in that area of the law for second applications. There is no reason the same approach should not apply to diversionary applications,” his Honour remarked, as he determined that he should remain presiding over the second diversionary application request.
