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Court in the Act
21 April, 2005  
"Appalled, ashamed and utterly bewildered ..."

Barristers shouldn’t be too precious about appearing before judges who have ticked them off in earlier cases. Apprehended bias is simply not an issue because judges possess fabulously impartial minds


imageJudge Judy, down at the Sydney Dizzo, was onto the freshly minted Briscoe-Hough judgment pretty damn quick in her recent Stephen Archer decision. See Theodora for Archer story

She said the facts of Archer were very similar to Briscoe-Hough v AVC Australia Security Venue Security Services Pty Ltd, which had been delivered by the NSW Court of Appeal four days earlier.

Archer, you recall, wants Judge Judith Gibson off his defamation case against The Newcastle Herald because the multiply bankrupted tax malingerer thinks the judge has “animus” towards him.

However, she found that Archer must be mistaken in his recollection that on two occasions she didn’t return his greetings. The judge suggested he might have his case tried by a jury when the defamation “reforms” take effect.

Less than two years before the Briscoe-Hough hearing Judge Jennifer English had written a letter of complaint to the NSW Bar n’ Grill about the conduct of barrister Robert Driver.

The Court of Appeal found it was unnecessary for the judge to disqualify herself when the same barrister subsequently appeared before her in Briscoe-Hough.

Consequently, Judge Judy thought that it was hardly necessary for her to step aside over events that happened 20 years earlier.

Gibson “gratefully” adopted the Court of Appeal’s “test” in Briscoe-Hough.

The unhappy events of that case were these: Driver was before Judge English at Gosford District Court. According to Acting Justice Brownie-Points the barrister was:

” unrobed, appeared to be dishevelled, his breath was said to smell of alcohol, he seemed unsteady on his feet, and he fell from a chair. He made a statement to the court monitor that perhaps only the court monitor heard, that she quite reasonably regarded as sexual harassment and later he attempted to follow her from the courtroom to an adjacent corridor”.

Judge English wrote to the Bar Association about this distressing episode and when the bar council lodged a formal complaint Driver confessed he was “appalled, ashamed and utterly bewildered” about being drunk in court and pursuing a court monitor down a corridor.

He agreed to be reprimanded and to undergo “appropriate treatment and counselling for his alcohol abuse problem”.

Twenty-two months later Driver again found himself before English DCJ, appearing for Peter Briscoe-Hough in a “nasty” dog-bite case.

It went like this:

Her Honour: Is this matter ready?

Driver: It is, your Honour. Your Honour, if I might make an application that your Honour disqualifies herself from hearing the case for reasons known to yourself and my learned friend.

Her Honour: Do you wish to be heard, Mr Torrington?

Torrington: No, I don’t.

Her Honour: I decline to disqualify myself, Mr Driver.

Driver: If your Honour pleases.

Her Honour: The incident you refer to happened well over two years ago. It has nothing to do with your competency, or the way in which the matter was dealt with. I see no reason to disqualify myself in the circumstances.”

Stuart Torrington was a member of the bar council so, “it can probably be safely inferred that he knew at least in general terms what had happened before the council”.

Judge English’s recollection was slightly astray, since the event happened 22 months earlier, not “well over two years ago”.

Driver sought leave to appeal on the basis of apprehended bias. He also wanted more damages for Briscoe-Hough.

Brownie-Points, Sheller and Santow were unanimous. Judge English’s letter to the Bar Association “cannot be regarded as a ground for disqualification”. Furthermore, the response to Driver’s conduct “went to him personally, and not to his client”. As Brownie-Points put it:

“It is one thing to think that a judge has disapproved, or even strongly disapproved of the conduct of a counsel in one case, but it is another thing altogether to think that the judge might therefore not bring an impartial mind to the conduct of another case in which the same counsel appears later on.”

Good heavens, how could anyone think such a thing?

Anyway, it was all a bit academic to Mr Briscoe-Hough, who had his damages for the dog bite upped by $15,000.