Krysiak v McDONAGH

[2013] WASCA 100

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Application for leave to appeal against conviction
4. › Whether grounds have reasonable prospect of success
5. › Criminal Appeals Act 2004 (WA), ss 9, 18
1. Constitutional Law (Cth)
2. › Judiciary Act 1903 (Cth)
3. › Section 78B notice
4. › Whether constitutional issue arises
5. › Whether unarguable or frivolous constitutional assertion gives rise to obligation to issue notice
6. › Judiciary Act 1903 (Cth), s 78B
1. Practice and Procedure
2. › Apprehended bias
3. › Self-represented litigants
4. › Whether judicial intervention in course of proceedings gives rise to apprehended bias
5. › Whether formation of preliminary view constitutes bias

Quick Take

A constitutional issue does not arise for the purposes of s 78B of the Judiciary Act 1903 (Cth) merely because a party asserts it does; if the alleged constitutional issue is unarguable or frivolous and vexatious, there is no constitutional issue and no s 78B notice is required. A judge who has formed a preliminary view on the merits after reading written submissions, and who engages with a self-represented litigant to clarify submissions and explain the law, does not thereby give rise to apprehended bias.