Anyone who’s practiced in the summary jurisdiction for more than five minutes will have had the pleasure of appearing before one or other of our more interventionist magistrates.
Sometimes it’s just annoying, as for instance, your cross-examination is going along quite nicely thank you, gates are being closed one after the other, and the magistrate, unable to contain him or herself, asks the $64,000 question for you. Other times it’s extremely helpful, as, when often happens, the train of thought being pursued by either end of the bar table (or, indeed the witness box) slips from the tracks, and the magistrate nudges it back on line.
However, it becomes another matter altogether when interjections from the bench move into the realm of outright interference, and make a fair (to both sides) trial impossible.
The WA Supreme Court in the person of McKechnie J, delivered a stinging finding upon the behaviour of a magistrate during a contested hearing in Wragg v Bond [2009} WASC 383. Large chunks of the transcript are reproduced in the case, and one can imagine the frustration felt by defence counsel. (Despite the obvious enjoyment he felt in watching a defence barrister suffer, the prosecuting sergeant was, in my opinion, derelict in his duty in not intervening on his opponent’s behalf) It’s important to note that Wragg brought the appeal, not because “the magistrate was biased, but that the magistrate’s conduct led to a miscarriage of justice because there was an unfair trial.”
7. In R v Hircock  1 QB 67 Lord Justice Widgery said:
There is in our judgment a very important distinction between conduct on the part of the presiding judge which may be regarded as discourtesy and may show signs of impatience – and the conduct which cannot be commended in any way but which does not in itself invite the jury to disbelieve the defence witnesses and conduct which positively and actively obstructs counsel in the doing of his work.
8. The magistrate’s conduct actively obstructed counsel. Lawyers who appear in court should not be shrinking violets and should be robust enough to pursue their case with vigour, if necessary, against a degree of antagonism from the bench. Judicial officers after all are human and occasionally slip. Sometimes there is little counsel can do to deflect a judicial officer: Hobbs v C T Tinling and Co Ltd  2 KB 1. This was such a case.
We’ve all put up with this kind of thing plenty of times, or watched as it happens to our learned opponents. Despite the defence counsel being the victim in Wragg, the principle of a fair trial, and an advocate being able to present a case and test that of their opponent, applies both ways.