NSW judge disqualified from child abuse trial over romance with Crown Prosecutor

A judge declined to disqualify himself from a child abuse trial despite being in a three-decade relationship with a Crown Prosecutor involved in the case.

A judge declined to recuse himself from a child abuse trial despite being romantically involved with the prosecutor. Picture: Bianca De Marchi

An accused child abuser won a legal battle to get a judge kicked off his case because the judge is in a relationship with a NSW Crown Prosecutor.

Jacob Gleeson was interviewed by police in early 2018 after a girl claimed she had been abused, the NSW Court of Appeal heard earlier this year.

Gleeson denied all wrongdoing but police reopened the case in June that year after speaking to the girl’s brother.

The case was suspended until the following year when the police asked the Office of the Director of Public Prosecutions for advice on whether to charge Gleeson.

Crown Prosecutor Smith advised Gleeson be charged for allegedly abusing the two children and police swooped.

Eventually the case wound its way through the courts until it landed in front of NSW District Court Judge Jeffrey McLennan SC.

Judge McLennan, the courts heard, has been in a relationship with Crown Prosecutor Smith for 29 years.

A District Court judge has been kicked off a case over concerns about his impartiality. Picture: Bianca De Marchi

Gleeson’s legal team asked for the judge to recuse himself because of his relationship with the prosecutor.

Gleeson argued that a reasonable person would be concerned Judge McLennan may not be impartial – known in the courts as an “apprehension of bias”.

But Judge McLennan declined to step aside because the case against Gleeson had been taken over by a different prosecutor.

“There could not be a reasonable apprehension of bias,” Judge McLennan said.

Gleeson’s lawyers took it to the highest court in NSW in their last ditch attempt to have Judge McLennan disqualified from the trial.

The Court of Appeal, in its reasons published this week, said Crown Prosecutor Smith would have an interest in the outcome of the trial against Gleeson because she had been the one to recommend the charges.

“It would be unrealistic to conclude that a professional person in Ms Smith’s position would be indifferent to the outcome of the charges against (Gleeson),” the three appeal judges found.

The trial against Gleeson was slated to be decided by jury so Judge McLennan would not have ultimately decided Gleeson’s fate – but he would have to make other decisions about what evidence was allowed and may need to direct the jury, the appeal court found.

The court also found a “fair-minded observer” might have concerns Judge McLennan might not bring an impartial mind because his decisions at Gleeson’s trial would affect his partner.

Justice must be done and be seen to be done, the appeal judges concluded, and judges must be independent and impartial.

The Court of Appeal prohibited Judge McLennan from hearing any further hearings involving Gleeson’s charges.