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  • Supreme Court judge finds there was a 'reasonable apprehension' of magistrate's apparent bias in case
  • By Steve Butcher
  • 07/10/2014 Make a Comment
  • Contributed by: Rosco ( 3 articles in 2014 )
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A Victorian magistrate suspected of alleged bias in a court case later put her name to an email in her defence that a judge of the Supreme Court has now found created a "reasonable apprehension" that she was apparently biased.

The email was sent by a "senior" colleague of Mary-Anne MacCallum after the two discussed an application by defence lawyers to the judge that she was "apparently biased" against their client.

When Justice Kevin Bell showed the email to the lawyers opposed in the application before him for a judicial review, both submitted that Ms Maccallum could not continue to hear the case.

Justice Bell later found that the sending of the "message" (email) and its "argumentative contents inevitably created a reasonable apprehension of apparent bias on the part of" Ms MacCallum.

Ms MacCallum and Wyndham City Council were co-defendants in the application by Frank Grima, who last month faced contested planning charges before her.

In his judgment, Justice Bell said during submissions before him by Mr Grima's barrister Simon Matters, a court officer produced an email message "sent on behalf of" Ms MacCallum.

Justice Bell said the message had been sent by an administrative officer of the Magistrates Court to the prothonotary of the Supreme Court.

"It forwarded an email which had been sent to that officer by a senior magistrate with whom (Ms MacCallum) had discussed the application before this court," he said, adding that it recorded she had asked that the Practice Court of the Supreme Court of Victoria "be advised of various matters 'as a matter of urgency' ".

The judge continued: "Then a number of contentious assertions were made which, without actually saying so, went to why (Ms MacCallum) was not apparently biased.

"Included were assertions about 'the strategy being adopted by the defence' and an assertion that the conduct of the defence lawyers 'towards the Bench was inappropriate and intimidatory'."

Justice Bell noted that in law the "usual and proper" practice for the court or tribunal to take in judicial review proceedings "is not to participate as a party but to abide by the decision of the court".

While there may be occasions when it was appropriate for the court or tribunal to provide factual or similar information, it was "generally not appropriate" for either to "enter the fray" and make "contentious submissions as to the merits of the issues in the case, as (Ms MacCallum) did in the present case", he said.

Justice Bell added that the foundation "of this principle" was that it was "very difficult, and usually impossible, for the tribunal or court to participate in a judicial review proceeding without creating a reasonable apprehension of bias".

A forwarded email was "hardly an appropriate way" for a court or tribunal to present evidence or make submissions to his court, he said, while the responsibility for the party opposing the application was to present evidence and make submissions.

"Both the sending of the message and its argumentative contents inevitably created a reasonable apprehension of apparent bias on the part of (Ms MacCallum)," Justice Bell said.

In the judgment, he said Mr Grima had submitted that a reasonable apprehension of apparent bias was created because Ms MacCallum had "placed undue pressure" on him in relation to the conduct of the defence case.

At the start of what was expected to be a 10-day hearing with 25 prosecution witnesses, Mr Matters told Ms MacCallum that the prosecution was "being put to its proof" and mentioned other specific issues to which she sought more details.

She said that if Mr Matters' client "is of the view that he wants to maintain his silence and put the prosecution to that proof and it goes against him, then he will be, and I am sure you have explained to him ... facing a costs order if he wants to play it that way".

Mr Matters replied that the "primary defence ... is (Mr Grima) is actually making the prosecution prove their case".

Ms MacCallum: "Then costs is potentially a big issue for him."

Mr Matters: "If he is unsuccessful."

Ms MacCallum: "If he is unsuccessful." She again soon after gave Mr Matters a "warning" about costs and listed the number of witnesses and "this huge case" but added that she was not "prejudging it".

Justice Bell said that "in these circumstances, I would have upheld (Mr Grima's) submission that (Ms MacCallum's) remarks created a reasonable apprehension of apparent bias".

It was understandable, he said, that the magistrate was "concerned to ensure that the limited resources of the court were used efficiently" and that the hearing went "no longer than what was reasonably necessary".

"But (Mr Grima) was presumed to be innocent and had a right to remain silent," Justice Bell found.

At the end of the (magistrates' court) hearing, he said, it might have been possible to conclude that Mr Grima had conducted a time wasting defence or - without prejudice to his rights or intended cross examination of witnesses - that he could have given more details about his defence than he did, which might have been relevant to costs. But Justice Bell continued: "(Ms MacCallum) went well beyond permissible reference to these issues when, at the start of the proceeding, she twice gave a 'warning' about the conduct of the defence.
"With respect, there was nothing exceptional or unusual about the submissions of (Mr Grima) justifying this course.

"Any legitimate concern about the intended conduct of the defence case could have been dealt with by any other means and without creating a reasonable apprehension of apparent bias".

Justice Bell ordered that the council pay Mr Grima's costs.

The charges against him have been adjourned to a contest mention hearing next month.
There was no appearance before Justice Bell of anyone for Ms MacCallum, who was appointed last March.


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