Queensland Supreme Court rejects apprehended bias claim in contempt of court case

The case arose from an alleged DV offence

Queensland Supreme Court rejects apprehended bias claim in contempt of court case

The Queensland Supreme Court has rejected an apprehended bias claim in a recent contempt of court case.

In Attorney-General for the State of Queensland v Wood [2023] QSC 78, Ian Andrew Wood was charged with choking in a domestic relationship, allegedly a domestic violence offence. The attorney-general brought an application seeking to have him dealt with for contempt of court because he allegedly sent several offensive emails to the district court staff and the office of the director of public prosecutions. These allegedly undermined public confidence in the administration of justice and lowered the court’s authority.

Wood was arrested and brought before Judge Dick, who revoked his bail. Wood’s criminal charge was mentioned before Judge Rafter. Wood made an oral application for a declaration under s. 29(7) of the Human Rights Act 2019 that his detention was unlawful, but Judge Rafter adjourned the matter to the next day.

Wood sought a referral to the Queensland Supreme Court under s. 49 of the Human Rights Act 2019, asking the court to rule on whether the s. 29(7) application has been appropriately brought, whether Judge Rafter acted lawfully in failing to decide without delay and whether it was appropriate for Judge Rafter to ask the prosecutor to make an argument regarding the matter when it should have simply been a case of the facts to the judge as to why the bail was revoked.

The Human Rights referral came to Judge Davis of the Supreme Court, who ruled that the s. 29(7) application was not appropriately brought and refused to rule on whether the district court was obliged to hear the application on the day it first came before the court. Judge Davis also granted bail.

Grounds for alleged apprehended bias

Wood applied for Judge Davis to disqualify himself from hearing the contempt application because he has an apprehended bias. Wood argued that:

  • Judge Davis is corrupt, dishonest and a perjurer due to his rulings on the Human Rights referral.
  • Judge Davis dishonestly gave Wood bail to avoid an appeal from his decision on the Human Rights referral.
  • to determine the apprehended bias application, Judge Davis would have to assess whether he is corrupt or acted corrupt; therefore, there is a conflict of interest in his hearing of the apprehended bias application.
  • Judge Davis failed to report that conflict under s. 89 of the Public Sector Act 2022.

Judge Davis wrote in his decision that the well-established test for determining applications for disqualifications based on apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”

He further explained that the test first requires identifying what was said, which might lead a judge to decide a case other than on its legal and factual merits. Second, there must be a logical connection between that matter and the feared departure from the judge deciding the case on its merits.

Matters raised by Wood

As to the allegation that Judge Davis is corrupt, dishonest, and a perjurer in his rulings on the Human Rights referral, he clarified that there was no connection between the contempt application and the Human Rights referral. Judge Davis noted that Wood did not file any appeal from that decision, and there was no basis upon which any fair-minded lay observer might apprehend bias against Wood.

Judge Davis also pointed out, “The notion that bias is apprehended as a result of granting bail to the party alleging bias is an odd one.” He said there was no evidence suggesting he granted bail to avoid appeal upon determining the Human Rights referral. He emphasised that no fair-minded lay observer would apprehend bias against Wood due to giving him bail.

Wood further asserted that Judge Davis should have referred the alleged conflict of interest to the chief executive under s. 89 of the Public Sector Act 2022. However, Judge Davis noted that a judge is not a “public sector employee” within the meaning of the law.

Since none of the grounds had merit, Judge Davis dismissed Wood’s apprehended bias application and proceeded to hear the contempt application.

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