Smart v Albuquerque

(2011) 273 ALR 429; [2011] WASCA 231

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Leave to appeal against conviction
4. › Whether reasonable prospect of success
5. › Criminal Appeals Act 2004 (WA), s 9(2)
1. Criminal Law
2. › Appeal
3. › Unsafe or unsatisfactory verdict
4. › Whether open to magistrate to be satisfied beyond reasonable doubt
5. › Credibility findings
6. › Advantage of trial judge in seeing and hearing witnesses
1. Practice and Procedure
2. › Bias
3. › Disqualification of judge
4. › Actual bias
5. › Whether judge's mind committed to conclusion already formed
6. › Apprehended bias
7. › Whether fair-minded lay observer might reasonably apprehend lack of impartiality
8. › Prior role as prosecutor
9. › Prior adverse ruling in unrelated proceedings
1. Criminal Law
2. › Assaulting a public officer
3. › Spitting on prison officer performing functions of office
4. › Criminal Code (WA), s 318(1)(d)

Quick Take

The fact that a judge was formerly a prosecutor and had refused bail in unrelated proceedings is insufficient, without more, to ground an allegation of actual or apprehended bias. The unsafe or unsatisfactory verdict test from M v The Queen applies by analogy to trials before a magistrate.