B v Director of Public Prosecutions

[2014] NSWCA 232

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Apprehended bias
5. › District Court judge making generalised observation not based on evidence
6. › Whether observation integral to reasoning or mere aside
7. › Whether fair-minded lay observer might reasonably apprehend prejudgment
8. › District Court Act 1973 (NSW), s 176
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Apprehended bias
5. › Distinction between actual bias and apprehended bias
6. › Whether judge so committed to conclusion as to be incapable of alteration
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Apprehended bias
5. › Discretionary relief
6. › Whether relief should be granted where apprehended bias established
7. › Whether strength of case relevant to grant of relief
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Appeal by way of rehearing
5. › Use of common experience in fact-finding
6. › Whether generalised statement about human behaviour constitutes permissible use of common experience
7. › Evidence Act 1995 (NSW), s 144

Quick Take

A generalised judicial observation about how a reasonable person would behave in particular circumstances, not based on evidence in the case and not falling within common knowledge under s 144 of the Evidence Act, may give rise to apprehended bias if it forms an integral part of the judge's reasoning rather than a mere aside. Where apprehended bias is established, relief should ordinarily be granted regardless of the strength of the case, because apprehended bias raises a question of possibility not probability. The dissent illustrates that such observations may be characterised as permissible testing of an independently reached conclusion against common experience where the judge had other sound bases for the finding.