Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2)

[2010] ACTSC 13

Supreme Court of the ACT

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Interrogate

Catchwords

1. Practice and Procedure
2. › Bias
3. › Apprehended bias
4. › Disqualification of judicial officer
5. › Prior role as Director of Public Prosecutions opposing party in earlier proceedings
6. › Whether prior adversarial relationship gave rise to reasonable apprehension of bias
7. › Disqualification by conduct
1. Practice and Procedure
2. › Bias
3. › Apprehended bias
4. › Fair-minded observer
5. › Characteristics and attributes of hypothetical observer
6. › Knowledge of judicial practice and legal process
1. Practice and Procedure
2. › Bias
3. › Apprehended bias
4. › Duty of judge to sit
5. › Prudential approach in cases of real doubt
6. › Doctrine of necessity
1. Practice and Procedure
2. › Commencing proceedings
3. › Discontinuance and re-commencement
4. › Whether discontinuance to avoid particular judge constitutes abuse of process
5. › Judge shopping
6. › Court Procedures Rules 2006 (ACT), rr 1160, 1163(1)

Quick Take

A former Director of Public Prosecutions appointed to the bench is not necessarily disqualified from hearing all proceedings involving persons they prosecuted or opposed, but where the DPP was identified as the principal adversary in post-conviction inquiries and there is a risk that submissions addressed the litigant's credibility, a real doubt may arise warranting recusal. Robust but professionally proper submissions made as counsel do not, without more, disqualify a subsequently appointed judge. Discontinuance and re-commencement of proceedings to avoid a particular judge may constitute an abuse of process.