The Court of Criminal Appeal held that a fair-minded lay observer might reasonably apprehend that a judge who was the subject of unresolved, serious allegations of police misconduct (including fabricating evidence) in a concurrent statutory judicial inquiry — where the judge had been cross-examined and his evidence attacked as false — might not bring an impartial mind to determining a stay/s 138 application involving allegations of police misconduct, even though the specific misconduct alleged differed. The Court emphasised this was an extraordinary case turning on the currency and severity of the unresolved allegations, and that the mere making of unsubstantiated allegations against a judge will not generally give rise to a reasonable apprehension of bias. The Court declined to determine the alternative case based on the possibility of actual misconduct, leaving open important questions about what the fair-minded lay observer is taken to know when assessing the plausibility of disputed allegations against a judge.
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