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Disqualifying a Magistrate


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:

  • The fact that the Magistrate is related to a party, or to one of the party’s legal representatives, at least where that legal representative is actually involved in the litigation, will normally be a ground for disqualification.
  • The fact that the Magistrate has had communication with a party, a witness or a legal representative, at or about the time of the hearing, in the absence of, and without the consent or approval of the other party, can also lead to disqualification.
  • The fact that the Magistrate has a direct pecuniary interest in the proceedings will however lead to automatic disqualification.
  • The fact that the Magistrate knows a party or witness may be a ground for disqualification, depending upon the degree and the circumstances of the acquaintanceship and association.

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.

Image Credit – Iakov Filimonov © 123RF.com

Written by Angela Cooney on May 10, 2018

Angela is able to assist clients with all criminal offences such as assaults, drug charges, traffic matters, theft, break and enters, firearms, sexual offences and apprehended violence orders. Angela is an experienced Court advocate having appeared in the Local and District Court, the Court of Criminal Appeal as well as in Federal jurisdictions in a multitude of matters, including complex strictly indictable trials. View Angela's profile


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