Legal posturing over magistrate appointment

THE magistrate being considered to hear a death driving charge against Tasmania's top prosecutor had lunch with the accused this year and frequently saw him at parties, the Hobart Magistrates Court has heard.

Deputy Chief Magistrate Michael Daly is the second to be asked to hear the case against Director of Public Prosecutions Tim Ellis, after Chief Magistrate Michael Hill excluded himself this month.

Mr Ellis has pleaded not guilty to causing death by negligent driving for a fatal two-car crash on the Midland Highway on March 24, which resulted in the death of 27-year-old Launceston woman Natalia Pearn.

Mr Ellis has been excused from attending court until progress is made with the case.

An interstate prosecutor has been appointed to try the case, but lawyers for Mr Ellis have objected to an interstate magistrate being appointed.

Mr Daly told the court today he was concerned the public might doubt the fairness of the case if he heard it, given his social acquaintance with Mr Ellis.

He said he and Mr Ellis had a social relationship, if not a friendship, and he was friends with Mr Ellis' wife.

``The relationship between the magistrate and the defendant is described by numerous social and professional encounters over a very long period, certainly over my entire legal career, too numerous to detail, where many small kindnesses, perhaps, have been extended by the defendant,'' he said.

``I may yet recuse myself .. it is something that I have certainly considered was  possibility. I may need some convincing that I shouldn't.''

Counsel for Mr Ellis, Michael O'Farrell, said Mr Ellis did not object to Mr Daly hearing the case and that he could only disqualify himself if he was satisfied a fair-minded observer would assume he was unable to be impartial.

``These are things that people can expect in relatively small communities like Tasmania, but citizens are entitled to have their cases heard by a judicial officer,'' Mr O'Farrell said.

``Even ones they end up at parties with, not infrequently?'' Mr Daly replied.

``Have you got a case that says if a magistrate and defendant in a calendar year in which the incident occurred had a lengthy lunch together it would pass muster?''

Mr Daly said he wanted to resolve the issue quickly, for the sake of Miss Pearn's family who ``must be closely watching all this irrelevant legal naval-gazing.''

He will announce his position next Wednesday.

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