In re Ancillary Hearing in SD v tywearingtie 2025 SDCR 20
In re Ancillary Hearing in SD v tywearingtie [2025] SDCR 20
| Date of judgment | 17th November 2025 |
| Judges |
|
| Held | The lower court’s decision is affirmed, but the reasoning is supplanted. |
| Ruling | 3-0 |
| Applicable precedent |
MAJORITY OPINION by Judge Brandmal
(with Judge Terak agreeing and Judge ppatpat agreeing except for [10])
Introduction
[1] The appellant seeks review of a decision by the inferior court to not “disqualify” opposing counsel for being the judge that approved the original warrant of the defendant. They have made several arguments as to why their motion should have been approved.
Appellant’s arguments
[2] The appellant starts by arguing that Art. 5 § 1(a) and Art. 14 of the Courtroom Procedures Act 2025 (CPA) allow the Court to order counsel disqualified. The first statute reads:
“Article 5: Motions §1. The following motions are able to be made at any point in the trial or pre-trial – (a) Motion for substitution or recusal of the representation of a party, which may be used to substitute the Judge or the representation of any party in a case. (a)(i) A motion to recuse a Judge may be made if there is a real likelihood that a fair hearing or trial is not possible. (a)(ii) The Defense or Plaintiff may substitute their own counsel at any time by making this motion. The Judge may also do so if a trial is in absentia, there is sufficient reason to do so, and the counsel is provided by the state. (a)(iii) The Prosecution in a case may be substituted in accordance with Article 1, §1.2, but this does not limit the abilities of the Attorney-General in accordance with that section. (b) Motion for Adjournment or Recess, which shall be for no more than 10 days and shall not be made without adequate reasoning; (c) Motion for Mistrial, which shall be granted on the basis of an error severe enough to affect the legitimacy of due process; and, (d) Motion for Private Courtroom, which may be filed at any point in the proceedings on the basis that such a private courtroom would be in the interests of justice, or as may be otherwise provided for in this Act. Channels shall be made if private courtrooms are used, and the contents therein shall be stored until at least 6 months after the trial. (e) Motion to Dismiss, which may be made as specified by law, or for the purposes of dismissing a frivolous and vexatious claim. §1.1. A motion for Recusal is said to be made out if – §1.1.1. The Judge is the creditor or debtor of any of the parties, the complainant, the victim, or the injured party, §1.1.2. The Judge has a close friendship or serious enmity between any of the parties, the complainant, the victim, or the injured party, or the relevant judicial officer, §1.1.3. The Judge has previously participated in the proceedings outside of their position as Judge on the case. §1.1.4. The Judge has acted as a plaintiff or prosecutor in the proceedings. §1.1.5. The Judge is not able to preside over cases in a reasonably efficient manner. §1.1.6. Generally if there exists a conflict of interest that prevents them from being unbiased. §2. The Judge may also take such other motions at any time which are described and allowed by law. [...]”
[3] They argue that Article 5§1(a) gives the Court broad discretion to disqualify (meaning substituting or forcing the recusal of a party) any participant in a trial. They attempt to support that with the generalised power of the Court to issue court orders.
[4] The appellant is also of the opinion that “importing” the ICC Code for understanding what a conflict of interest is and the test derived from it, as Judge Ferris did, is an error of law. Said law is not part of the recognised judicial canon of SimDem. Hence, they claim the test derived from it can not be grounds for dismissing, and even if it could, the test was wrongly applied.
[5] The appellant also sees an “advocate-witness collision” (sic) coming up, as the state aims to call counsel in question as a witness. This would risk public confidence, as the judge that authorised a proceeding is now attacking it.
[6] The appellant also claims that the judge has “Invented” a new test and also misapplied it with the proposed “two-fold test”. The “no prejudice reasoning” is short sighted and overlooks the obvious problems with this constellation.
[7] Lastly the appellant sees precedent and the constitution on their side. Brandmal, ex parte State of SimDemocracy (Appellant) v Birdish (Respondent) [2025] SDCR 5 (“Brandmal”) allegedly supports the notion that a judge cannot re-enter a case after having ruled on it. Art. 22 of the Constitution guarantees due process, Art. 21 a fair hearing, which this kind of representation supposedly cannot. Nighteye (Appellant) v LordDeadlyOwl (Respondent) [2020] SDSC 5, they claim, also disallows the Court from including arguments not fronted by the parties in their verdicts.
Arguments from respondent
[8] The respondent disagrees with this assessment in full. They state that they, in their position as judge, merely found that probable cause existed, not that a crime actually occurred. Additionally they point to the exact wording of Art. 5 CPA, where §1. (a)(i) limits §1(a) and where every section above §1(e)§1.1.6. Refers to a judge being recused, not counsel. They point to Brandmal which they interpret to limit to forbidding judges from being the appellate judges of their own cases. Regarding the Judges use of his own arguments the respondent also argues that the wording of the relevant section of the CPA allows for more discretion. For all other arguments and cases they were mostly confused why they were even brought up.
Consideration by the Court
[9] Most arguments of the petitioner are rejected in full and found to be entirely without merit.
[10] To read Art. 5 §1 (a) in isolation and without any of the surrounding statutes robs it of important context. Where the subsections limit the broad discretion granted in (a), such limits must apply to the overarching authority as well as to not violate the principle of lex specialis (where a more and a less specific law govern the same matter, the more specific law must be applied). All other readings require interpretation beyond the text in line with In re Replacement of KingRed31 [2020] SDSC 21. Neither side made arguments that such was the case, nor do we see a reason for doing so, except for maybe the most extreme of circumstances, like extortion.
[11] Regarding the importation of the ICC we agree that using law, that is neither part of the SimDem judicial canon, nor a generalised legal principle or even part of classical common law is outside a judge's scope under Art. 10 §3. of the Constitution (regardless of how much of his free time a judge may dedicate to it). However, and in line with Appeal of Motion Decision in Domina et al. v SD [2025] SDCR 11 [8], we find this to be a case of harmless error, as the motion ought to be rejected anyways for the reason above.
[12] On the “advocate-witness-collision”, the Court finds that it is facially meritless. The decision in GxOZxerd (Appellant) v State of SimDemocracy (Respondent) [2020] SDSC 15 makes clear at [9.1] that it is unreasonable to assume judicial proceedings are prejudiced on the basis that a party in a case can not effectively make their case because the other will, or has threatened to commit an unlawful act. The primary concern is that the advocate will commit perjury on the stand. However, GxOZxerd is clear on the fact that such a concern is not a reasonable assumption. Therefore, no conflict can arise, or even appear to arise, since it is unreasonable to assume as such.
- [12.1] The alternative is that the prosecution is worried that the defence counsel will be called to the stand to provide testimony that may harm his client, and that that would then somehow be a conflict for their duty as defence counsel to their client. The Court is not persuaded by this argument. Essentially, the prosecution is saying “The defendant knowingly picked this lawyer, fully aware of the warrant-signing role, but we, their opponent, know better what’s good for them.” That is straight-up paternalistic and not what conflict-of-interest rules are for. Conflicts rules exist to protect the client’s interests, not to give the opponent a tool to override the client’s informed decision because the opponent doesn’t like who they picked. If the defendant wants to accept the tiny, speculative risk that their lawyer might one day have to testify, and that that testimony may harm them, that’s their call. It’s not the State’s job to “save” them from their own litigation strategy. Choosing their own representation is a fundamental right of every accused and needs to be upheld.
[13] Turning to the “two-fold-decision” Judge Ferris applied, we agree that it finds no rooting in law either. However yet again, no harm no foul, the decision's reasoning is insofar supplanted with the reasoning supplied by this Court.
[14] On the ancillary hearing we see how the wording of that section allows for a broader reading and a more inquisitorial process. While the crucial “may” does allow for the Judge to pose specific questions, or indeed none at all, it should not be seen as to allow the Judge to make up arguments. Such procedure is inconsistent with longstanding Inferior Court procedural precedent and also potentially violates the Right to a fair hearing, as it does not allow the defendant adequate time to actually prepare a defense (Art. 21 §4. of the Constitution).
[15] Regarding most other constitutional arguments and those regarding precedent, we strongly discourage the appellant from “throwing shit at a wall and seeing what sticks”. Mentioning every Right under the sun and summarising cases, like Brandmal, so badly that they are unrecognisable, is not a valid legal argument. We reject these attempts.
Verdict
[16] Judge Ferris’ decision is upheld. The reasoning in [6.1] and [4-4.2] is supplanted in full.
CONCURRING OPINION by Judge ppatpat
[17] I agree in part, and in large majority with the Court’s disposition of this appeal and with the reasons given for rejecting the State’s conflict-of-interest challenge. I write separately to elaborate on paragraph [10] and [13] of the Court’s judgment, which concerns the proper conduct of ancillary hearings under Article 29 of the Courtroom Procedures Act 2025 (“CPA”), the limits of the inquisitorial role that trial judges may adopt in an essentially adversarial system, and the role of comparative jurisprudence in our legal system.
On comparative jurisprudence and common law
[18] I write separately now to explain further my thoughts on paragraph [10] of the opinion.
[19] The ancillary ruling states that, to determine conflict of interest, “the court shall refer to article 16 of the code of professional conduct for counsel by the ICC”, treating it as the applicable standard on how conflicts may be nullified by full and informed client agreement. That is the crucial misstep. Nothing in the Constitution, the CPA, or any SimDem enactment gives the ICC Code the force of law. It has simply never been adopted.
[20] Put bluntly, whilst the ICC Code might be a useful document, it is not SimDem law. The real objection is therefore not that a judge may never look at foreign or international material, but that this particular material was treated as if it governed conflicts of interest in SimDem, when in truth it has no normative status beyond whatever persuasive weight it earns on its reasoning.
[21] Foreign or international materials can, at best, operate as persuasive authority. In this particular context, its persuasive force is weak. The trial judge did not even ask how the ICC rule interacts with the CPA provisions on substitution of counsel (Art. 5), court orders (Art. 14), or natural justice. He simply lifted the ICC standard and declared it determinative. That is not persuasive use, it is quiet displacement of the actual domestic framework.
[22] Furthermore, persuasive authority earns its keep when it helps solve a similar problem in a similar structure. Here, the judge did not show that the ICC’s conflict/waiver rule arose from fact patterns or statutory contexts analogous to “former warrant judge acting as defence counsel under the CPA”.
[23] SimDem is explicitly modelled on a common-law tradition. In such a system, the real normative work of judge-discovered law is done by analogical reasoning from decided cases.
[24] Courts identify the ratio decidendi of earlier decisions, they compare the facts and legal issues, they then extend, distinguish, or confine earlier rules based on those analogies.
[25] That is why we speak of “case law” and “judicial precedent” as foundational sources of law alongside legislation. The authority of a precedent does not come from its origin (domestic vs foreign) so much as from the fit between the earlier problem and the new one. A nineteenth-century English case can be highly persuasive in SimDem if, and only if, the facts and statutory framework are recognisably similar; a glossy modern code from The Hague is much less helpful if it floats free of our text and context.
[26] For that reason, when SimDem judges look beyond our own “judicial canon”, they should start with analogous case law in the wider common law. If guidance is needed on conflicts of interest and advocate-witness problems, there is a rich body of common-law authority on those issues.
[27] A domestic judge’s first question, therefore, should not be “what does the ICC say about conflicts of interest?”, but “what does our Constitution say, what does the CPA say, what have SimDem and cognate common-law courts done in similar circumstances, and only then, does anything in foreign or international material illuminate that analysis?”
On ancillary hearings
[28] Article 29 §1 empowers a pre-trial or trial court, at any time and even on its own motion, to “conduct an ancillary hearing to determine a question of law” or to state a case to this Court. Article 29 §1.1 then provides that “so far as is possible” the court should state the case through a question answerable “in the affirmative or the negative”.
[29] The provision directly at issue is Article 29 §1.2, which reads:
“Should the Court decide to conduct an ancillary hearing, it may require each party to make submissions and decide on the question of law, before continuing with the proceeding.”
[30] As the main judgment observes in [13], the wording of this section does allow for a somewhat broader and more inquisitorial judicial role than in an ordinary trial. An ancillary hearing is not about resolving contested facts; it is a structured pause in the proceedings for the Court to determine “the correct reading of the law”. Within that space, the judge is not constrained to passively await whatever authorities counsel happen to have to hand.
[31] However, the crucial term in §1.2 is the verb “may”. The fact that the Court may require each party to make submissions does not mean it may dispense with adversarial participation altogether, still less that it may invent and decide upon unheralded arguments of its own. To read §1.2 as a licence for the judge to “make up arguments”, as opposed to identifying and testing the legal consequences of the parties’ cases, would go against the adversarial nature of Inferior Courts, longstanding Supreme Court precedent from Nighteye (Appellant) v LordDeadlyOwl (Respondent) [2020] SDSC 5.
[32] It is helpful to distinguish three different things a judge might do in an ancillary hearing:
- [32.1] Ask no questions at all, and simply hear whatever submissions the parties choose to make.
- [32.2] Pose targeted questions (for example, drawing counsel’s attention to a statutory provision or binding authority and asking for comment).
- [32.3] Generate entirely new arguments or legal theories, never put to the parties, and decide the point on that basis without giving them a real opportunity to respond.
[33] Article 29 §1.2 clearly permits [32.1] and [32.2]. The Court “may require” submissions; that language arms the judge with the power to insist that parties engage with a legal question they might otherwise prefer to skate past. It also accommodates the reality that some questions of law are so straightforward that only minimal or no further submissions are necessary.
[34] What §1.2 does not authorise is [32.3]: the judge devising a fresh ground of decision that has not been sufficiently ventilated with the parties. Reading “may require” as an implied power to sideline the parties is inconsistent with the tenet that the case should be stated as a clear, closed question, so far as possible, which indicates that the parties must know what legal question they are answering before they lose or win on it.
[35] For future cases, I would summarise the proper approach to ancillary hearings under Art. 29 as follows:
- [35.1] Use the ancillary hearing to clarify, not to surprise. Frame the legal question under §1.1 in concrete, answerable terms and share it with the parties in advance wherever practicable.
- [35.2] Invite submissions as the default. Even though §1.2 says the court may require submissions, the default in a criminal context should be to invite both parties to be heard on any legal question that will materially affect the trial.
- [35.3] Flag new points. If, in the course of considering the matter, the judge identifies an argument or authority that has not been raised, they should put it expressly to the parties and allow submissions, rather than silently deciding on that basis.
- [35.4] Avoid advocacy from the bench. The judge may press both parties equally, but should not become the principal proponent of a position that one party has not adopted. If the judge finds themselves “making the case” for one side, that is a sign that the limits of adversarial adjudication are being overstepped.
- [35.5] However, I do understand that both parties may sometimes give a judge what a judge would consider to be both “wrong” interpretations of the law. In such cases, rare as they may be, I would say that one should refer that question of law to a higher court. Avoid your cases being appealed by just going to higher authority at first instance. It is more important to get it right, than to worry about a question of law taking a long time.
[36] For the reasons above, I concur.
DISSENTING OPINION by Judge ppatpat
[37] I dissent on one point. It is my firm belief the Inferior Court does have authority to entertain motions to substitute any counsel, and that my colleagues are, to use a phrase loved by the public, “legislating from the bench”.
[38] The trial judge treated Art 5 §1(a)(ii) as if it exhaustively defined when defence counsel can be substituted: only where (i) the defence initiates the motion, or (ii) trial is in absentia and counsel is state-provided. My colleagues themselves have thoughts on how this motion is apparently restricted to only substitute a party’s own counsel, or for opposing counsel only in extreme circumstances. I vehemently disagree with the interpretation for it only substituting a party’s own counsel as it is not rooted in any reasonable logic known to humanity. I further find that the majority has not elaborated sufficiently enough on what constitutes “extreme circumstances” for their interpretation to have any real weight. Perhaps I could agree with them, but they simply have not justified their logic sufficiently enough.
[39] The reading of the motion to substitute being limited to only substituting a party’s own counsel cannot be reconciled with the opening words of Art 5 §1(a), which state that the motion “may be used to substitute the Judge or the representation of any party in a case.” The power is framed by reference to the type of motion and the subject of substitution (judge or representation of any party), not by reference to which party is permitted to apply.
[40] Sub-paragraph (ii) identifies one guaranteed pathway – the defendant or plaintiff may at any time substitute their own counsel, and the judge may also do so in a specified scenario (trial in absentia + state-provided counsel). It does not say that no other actor can ever move for substitution.
[41] The Prosecution’s motion to dismiss / substitute counsel due to conflict thus fell squarely within the ambit of Art 5 §1(a), read with Art 14. The fact that it was brought by the Prosecution, rather than the defendant, does not deprive the court of jurisdiction. In my opinion, the contrary view adopted was, is, and remains an error of law.
[42] Perhaps it is in fact that conflict of interest is a valid reason to dismiss / substitute counsel by way of a motion. However, it just so occurs in this case that the appellant’s allegations of conflict on the defence are so wildly out of touch with reality that we are really left with no choice but to rule against.
[43] I do applaud the trial judge for being formalistic in interpreting a motion to dismiss counsel as its own vehicle, rather than interpreting it as a motion to substitute counsel. However, one wonders if this is excessively formalistic. A motion labelled “dismiss counsel” but grounded in alleged conflict is, in substance, a motion for substitution of representation under Art 5 §1(a). The Courts have had a substantive body of work that indicates and indeed prioritises looking at the substance, not the caption. I may myself disagree with this, but it is an observation for my colleagues when conducting trials.
[44] For the reasons above, I dissent.