Maddocks Prosecution Report | September 2014

Please download the attached PDF to view this month's prosecution report.

Grima v MacCallum [2014] VSC 473

The Supreme Court (Court) recently handed down its decision in the case of Grima v MacCallum [2014] VSC 473. This was an interesting case that concerned an application brought by an accused to restrain a Magistrate from continuing to hear a criminal proceeding. The application, which was brought pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2005, alleged that the presiding Magistrate was apparently biased against the plaintiff. The plaintiff made the application on the basis that the Magistrate demonstrated a reasonable apprehension of bias by:

  • deciding to cancel a viewing on the belief that there was no need to view locations relevant to the hearing
  • pre-judging the request to adjourn the hearing
  • repeatedly warning about the risk of cost implications for a failure to articulate a defence.

While the plaintiff's counsel was making submissions, the Prothonotary brought into the Court an email message sent on behalf of the Magistrate. The email made a number of contentious assertions which were intended to explain why the Magistrate was not apparently biased. The email included assertions about 'the strategy being adopted by the defence' and an assertion that the conduct of the defence lawyers 'towards the Bench was 'inappropriate and intimidatory''.

The usual and proper practice for the court or tribunal to take in judicial review proceedings is not to participate as a party but to abide by the decision of the court. The Court explained:

There may be occasions when it is appropriate for the court or tribunal to provide factual or like information to the court. But it is generally not appropriate for the court or tribunal to 'enter the fray' and make contentious submissions as to the merits of the issues in the case, as her Honour did in the present case.

It was held that 'both the sending of the message and its argumentative contents inevitably created a reasonable apprehension of bias on the part of her Honour.' The Court made orders in the nature of prohibition, prohibiting the Magistrate from continuing to preside over the criminal hearing.

There is a strong rule against the fragmentation of criminal proceedings. The Supreme Court will only interfere with a part-heard proceeding in the Magistrates' Court in the 'most exceptional' circumstances. Here, the Court held that the present case fell within the most exceptional category. The Court also found that a reasonable apprehension of bias was created because her Honour had placed undue pressure upon the plaintiff in relation to the conduct of the defence case.

It is evident that the council, in both the Magistrates' Court proceeding and the Supreme Court proceeding, did not contribute in any way to the Magistrate's bias towards the plaintiff. Yet, because costs generally follow the event, the council was ordered to pay the plaintiff's costs. While this case falls into the exceptional category, it is nevertheless an example of how a prosecuting authority can be embroiled in Supreme Court proceedings, which arise during a Magistrates' Court hearing.