When Googling Can Cause a Mistrial 2

When Googling Can Cause a Mistrial

DLA Piper, Australia – By James Morse – In the recent decision of Le v Magistrate Barbara Lane [2014] WASC 494, the Supreme Court of Western Australia was called upon to consider whether to prohibit a magistrate from continuing to hear a trial on the basis she had ‘Googled‘ some matters relevant to the trial before her, and then put certain matters to a witness as a result of that internet search.

The facts were that a witness had named certain labour hire companies he had allegedly had dealings with. Later in the proceedings, the learned magistrate asked the witness: ‘Are they Western Australian companies? Because I Googled them and I couldn’t find them …’. Some of the Defendants then made an application for the learned magistrate to disqualify herself, on the basis that her Honour had undertaken investigations with a view to ascertaining evidence, which would create a reasonable apprehension of bias. That application was refused, and review proceedings were commenced in the Supreme Court.

The Supreme Court noted that, whilst ‘[t]here has been no suggestion … that the enquiries made by her Honour in this case were anything other than conscientious and innocent … the issue which has arisen from what occurred is that it has been disclosed that the learned magistrate undertook, independently and outside the courtroom, enquiries bearing on the accuracy or reliability of evidence which had been given in the courtroom thus giving rise to a reasonable apprehension that those enquiries or their results, or the possibility of other similar enquiries, may influence her Honour’s decision on certain aspects of the case, leaving the impression that there is a danger that the decision may be based not on evidence received in the courtroom but on other material or the influence of that other material upon evidence which was received in the courtroom. That appears to be, with all respect, an insuperable risk and problem in the present circumstances and one which is not eradicated or allayed by the detailed subsequent explanations which her Honour gave‘.

The Supreme Court therefore ordered that the learned magistrate be prohibited from continuing with the trial, and there should be a retrial before a different magistrate.

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