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There has been recent media attention surrounding Cardinal George Pell’s Lawyer having asked the Magistrate to disqualify herself from hearing the matter.
In what circumstances can this actually happen?
In NSW, you can make an application for a Magistrate to disqualify themselves based on actual bias, or apprehended bias.
More often than not, the application is made on the basis of apprehended bias.
The test for determining whether a judge should disqualify themselves for apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
Some circumstances that might lead to a Magistrate needing to disqualify themselves include:
This is not an exhaustive list and there are other things that could warrant an application being made as well.
Practically speaking these applications are made directly to the Magistrate that you are attempting to disqualify from hearing the matter which means you should always consider these sorts of applications carefully before making them.
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