Who may apply to challenge a judge, and what must be true of the accused's wishes before defence counsel does so?
General information · Not legal advice
Material to check
In the practice file for this exercise, we read the prosecutor's own application, the accused's own application, any paper recording what the accused expressly stated about challenging the judge, and the copy of the ruling, because the right to apply turns on who is acting, on which ground, and on the accused's stated wishes.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading takes the first paragraph as giving the prosecutor and the accused each a right to apply to challenge a judge, in either of two situations: the judge falls within a ground listed in the provision that sets out the causes for challenge, or there is a fear that the judge will give an unfair trial.
Another reading reads the second paragraph as a limit on counsel alone: counsel may apply only where that does not contradict the accused's express wishes, so where the accused has stated nothing, no express wish exists for counsel's application to contradict and the condition as written is met.
Your judgment
Where the file shows the accused's wishes only loosely, what could show that counsel's application does not contradict what the accused expressly stated?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to change who may apply or to require the accused's consent rather than the absence of contrary wishes, or if a court decision explains what counts as a fear of unfair trial or as the accused's express wishes.