Andrew Murray v Loretta Alamani Tulikaki
[2022] ACTMC 12
•2 June 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Andrew Murray v Loretta Alamani Tulikaki |
Citation: | [2022] ACTMC 12 |
Hearing Date: | 2 June 2022 |
DecisionDate: | 2 June 2022 |
Before: | Special Magistrate Hopkins |
Decision: | See [53] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Galambany Court – circle sentencing – application for recusal of decision maker – apprehended bias – association – application to exclude defendant from circle sentencing process – whether association with Elders renders defendant ineligible – role of Elders |
Legislation Cited: | Bail Act 1992 (ACT) Criminal Code 2002 (ACT) 308, 713 Magistrates Court Act 1930 (ACT) ss 291M, 291N, 309 |
Cases Cited: | British American Tobacco Australia Services Limited v Laurie [2011]; (2011) 242 CLR 283 Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 Eastman v The Queen [2015] ACTCA 24 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 2005 CLR 337 Islam v Director General of the Justice and Community Safety Directorate [2015] ACTSC 279 Owen Patterson v Wendy Brookman [2021] ACTMC 16 Smorhun v Devine [2014] ACTSC 2008 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 |
Texts Cited: Parties: | Bennett, P., Specialist Courts for Sentencing Aboriginal Offenders (Federation Press, Sydney, 2016). Harris, M., "A Sentencing Conversation": Evaluation of the Koori Courts Pilot Program October 2002-0ctober 2004 (2006) Magistrates Court of Australian Capital Territory, Galambany Court Practice Direction No. 1 of 2012 Magistrates Court of Australian Capital Territory, Galambany Court Practice Direction No. 1 of 2022 Marchetti, E and Daly K., “Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model” (2007) 29 Sydney Law Review 415 Andrew Murray (Informant) Loretta Alamani Tulikaki (Defendant) |
Representation: | Counsel S Bargwanna (Informant) J Robertson (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) JDR Law (Defendant) | |
File Number: | CC 4566, 6645 of 2022 |
SPECIAL MAGISTRATE HOPKINS:
Background
On 19 May 2022 the prosecution filed an application for me to recuse myself from sentencing the defendant, Loretta Alamani Tulikaki. This application also seeks to exclude the defendant from having her matter heard in the Galambany Court, thereby preventing her from participating in the circle sentencing process with Aboriginal Elders.
In each case the basis of the application is apprehended bias. The perception of bias is said to arise from the ‘professional relationship’ that existed as between the defendant and myself, as Special Magistrate, and as between the defendant and the Elders. No particular Elder or Elders are identified in the application.
On 2 June 2022 I heard oral submissions with respect to the application and made orders. I declined to exclude the defendant from the Galambany Court and listed the matter for circle sentencing before a magistrate other than myself. At the time of making these orders, I indicated that I would publish reasons for my decision.
The defendant has pleaded guilty to offences of attempting to pervert the course of justice, contrary to s 713(1) of the Criminal Code 2002 (ACT) and theft, contrary to s 308 of the Criminal Code. The conduct constituting the charge of perverting the course of justice was committed whilst she was employed by the Aboriginal Legal Service (NSW/ACT) as a Bail Support Officer. In that capacity she supported Aboriginal and Torres Strait Islander defendants to obtain bail and comply with bail conditions. That employment came to an end on 1 April 2022.
The defendant is an Aboriginal woman. Having pleaded guilty, she made an application for referral to the Galambany Court and was referred for an assessment of her suitability to participate in a circle sentencing process with Elders. She was found suitable by the Elders conducting the assessment and her matter was listed for sentence in the circle.
The Galambany (Circle Sentencing) Court
The Magistrates Court is known as the Galambany Court when it is sitting to provide ‘circle sentencing’: Magistrates Court Act 1930 (ACT) s 291M. Circle sentencing is defined in the Dictionary of that Act to mean ‘the step in a sentencing proceeding for an Aboriginal or Torres Strait Islander offender that includes members of the Aboriginal or Torres Strait Islander community’.
The Galambany Court provides a culturally appropriate and restorative circle sentencing process for Aboriginal and Torres Strait Islander people who have pleaded guilty to an offence.
In the language of the Ngunnawal people, Galambany means ‘we all, including you’. The capacity of the Galambany Court to achieve its objectives depends upon the dedication, commitment and wisdom of Elders, who sit and exercise First Nations authority in the Court, with the permission of Ngunnawal and Ngambri Traditional Owners of the land upon which the Court sits. I have explained the process of circle sentencing in detail in the decision of Owen Patterson v Wendy Brookman [2021] ACTMC 16 (Brookman).
The Galambany Court operates in accordance with practice directions, provided for under sections 291N and 309 Magistrates Court Act. Section 291N(2) makes clear that nothing in these practice directions limits the Magistrates Court’s discretion in sentencing an offender.
10. Magistrates Court (Galambany Court) Practice Direction 1 of 2022 commenced on 23 May 2022. Prior to that, the processes of the Galambany Court were guided by Practice Direction 1 of 2012. The aims of the Court, as well as eligibility and suitability criteria have not materially altered. For the purposes of this decision, I will refer to Practice Direction 1 of 2022 (the Practice Direction), which was in force at the time of the hearing of the application on 2 June 2022.
11. The Practice Direction sets out the aims of the Galambany Court at paragraph 5. These aims are to:
(a) involve Aboriginal and Torres Strait Islander communities in the sentencing of Aboriginal and Torres Strait Islander defendants
(b) increase the confidence of Aboriginal and Torres Strait Islander communities in the sentencing process
(c) reduce barriers between the ACT Magistrates Court and Aboriginal and Torres Strait Islander communities
(d) provide culturally appropriate, restorative and effective sentencing options for Aboriginal and Torres Strait Islander defendants
(e) provide Aboriginal and Torres Strait islander defendants with support services to assist them to overcome their offending behaviour
(f) provide support to victims of crime and enhance their rights and participation in the Galambany Circle Sentencing Court process; and
(g) reduce repeat offending by Aboriginal and Torres Strait Islander defendants.
12. To be eligible for referral to the Galambany Court to participate in circle sentencing a defendant must meet the eligibility criteria set out in paragraph 7 of the Practice Direction. These require that:
(a) the defendant identifies as an Aboriginal or Torres Strait Islander person and has ties to an Aboriginal or Torres Strait islander community, either in the ACT or elsewhere
(b) the offence can be finalised in the Magistrates Court
(c) the offence is not a sexual offence
(d) the defendant has pleaded guilty and
(e) the defendant consents to assessment as to his or her suitability for circle sentencing and agrees to participate fully in the processes of the Galambany Court.
13. Where the defendant meets these criteria, there is a presumption in favour of referral for assessment of suitability: Practice Direction [8].
14. The assessment of suitability is conducted by a panel of Elders arranged by the Galambany Court Co-ordinator, with the Practice Direction requiring that panel be constituted by at least two Elders and a maximum of four: see [15]–[16]. The assessment is not supervised by the Galambany Court Magistrate. Where possible, Elders who sit on the assessment panel for a defendant who is assessed as suitable should then sit in the sentencing circle: see Practice Direction [17]. This is to maximise the potential for there to be a relationship of trust and respect as between the defendant and the Elders.
15. Elders are notified of the identity of the defendant prior to the assessment. They may excuse themselves from involvement if they consider that their involvement would be detrimental to the aims of the Galambany Court, or for any other reason. Elders may also be asked to cease participating in the assessment by the Co-ordinator, or in the case of the sentencing circle, by the Co-ordinator or the Galambany Court Magistrate, if their involvement is detrimental to the aims of the Galambany Court: see Practice Direction [18]-[20] (emphasis added).
16. The defendant may object to an Elder being a member of the assessment or hearing panel: Practice Direction [22].
17. Suitability is assessed by the Elders on the basis of two mandatory criteria set out in paragraph 23 which align with eligibility criteria (a) and (e), namely:
(a) whether the defendant is an Aboriginal or Torres Strait Islander person with a kinship or appropriate association with an Aboriginal or Torres Strait Islander community and
(b) whether the defendant is willing to fully participate in the Galambany Court’s sentencing processes.
18. Suitability is also assessed having regard to further criteria set out in paragraph 24 of the Practice Direction, which include: whether the defendant accepts responsibility; whether they will be respectful of any victim and the Elders; whether they will listen to and understand what is communicated to them by the Elders; whether they want to make amends; the support they have in the community; the impact of their offending and the likely benefit of their participation in the circle sentencing process.
19. A finding of suitability does not prevent the Galambany Court Magistrate from deciding not to allow a defendant to participate in circle sentencing. However, if a decision is made to exclude a defendant from participating in the face of a favourable assessment, the Magistrate must provide reasons: Practice Direction [25].
20. As indicated, the defendant was referred for an assessment of suitability. She was assessed by the Elders as suitable to participate in the circle sentencing process. It is this process that the prosecution seeks to have her excluded from.
The Galambany Bail List
21. The application for recusal and exclusion of the defendant from the Galambany Court is complicated by the commencement of a pilot fortnightly listing for Aboriginal and Torres Strait Islander defendants applying for bail or variation of bail before the Magistrates Court. This list, which commenced in January 2022, has colloquially become known as the Galambany Bail List (Galambany Bail List). On all but one occasion since the list commenced, I have presided over the court for the hearing of applications.
22. The Galambany Bail List was established in recognition of the disproportionately high number of Aboriginal and Torres Strait Islander defendants being remanded in custody, both those pleading guilty and those pleading not guilty to offences with which they have been charged.
23. The list was intended to facilitate the presentation and consideration of Ngurrambai (meaning ‘perceive’ in Ngunnawal language) bail support plans prepared by Bail Support Officers from the Aboriginal Legal Service and Legal Aid ACT. These bail support plans are designed to assist Aboriginal and Torres Strait Islander defendants to obtain a grant of bail and comply with bail conditions.
24. The defendant was a Bail Support Officer employed by the Aboriginal Legal Service (NSW/ACT). It was part of her role to prepare Ngurrambai bail support plans for presentation and consideration in the fortnightly bail list (and in other courts). These plans are tendered as evidence on applications for bail or variation by lawyers representing defendants.
25. Elders do not sit in the court during the hearing of the bail list, nor do they make recommendations with respect to the granting of bail or the imposition of bail conditions.
26. A defendant’s compliance with a bail support plan may be relevant at the time of sentencing in the Galambany Court (or elsewhere) and the subject of conversation and consideration within the circle sentencing process.
Application for Recusal of Magistrate
27. In so far as this application relates to my recusal as magistrate, it rests on settled principles relating to apprehended bias. As expressed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 2005 CLR 337 (Ebner) at [6] ‘a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’: see also, Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 (Charisteas) at [11]; Eastman v The Queen [2015] ACTCA 24 at [28] (Eastman).
28. The principle gives effect to the requirement that justice should both be done and be seen to be done, and reflects the fundamental requirement that the decision maker be independent and impartial: Ebner at [6]-[7]; Charisteas at [11]. Its application requires two steps:
first, “it requires the identification of what it is said might lead a judge …to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between the matter and the feared departure from the judge deciding the case on its merits: Charisteas at [11] citing Ebner at [8].
29. The prosecution sought recusal on the basis of association, constituted by the existence of a professional relationship. This relationship was said to exist by virtue of the fact that the defendant had authored bail support plans which had been relied upon in the Galambany Bail List and to a lesser extent in the Galambany Court circle sentencing process.
30. Association through relationship or experience with a person interested or involved in proceedings is a recognised category of case in which the impartiality of a decision maker may appear to be compromised: Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74; British American Tobacco Australia Services Limited v Laurie [2011]; (2011) 242 CLR 283; Eastman [33].
31. In essence, the logic of the prosecution application for recusal is that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the sentencing of the defendant. This is said to be a consequence of my having reposed trust in her as the author of bail support plans. This is a question of possibility, that being the possibility of human frailty and subconscious influence: Islam v Director General of the Justice and Community Safety Directorate [2015] ACTSC 279 at [10].
32. I note that the prosecution stressed that the application was based upon apprehended or perceived bias. There was no suggestion of actual bias.
33. In the circumstances, out of an abundance of caution, I have determined that it is appropriate for me to recuse myself.
Application for Exclusion from the Galambany Court
34. The application to exclude the defendant from the Galambany Court circle sentencing process was argued on the exact same basis as the application for recusal. That is, it was argued that the professional working relationship that the defendant had with the Galambany Court through the preparation of bail support plans was an association that gave rise to an apprehension of bias with respect to any and all Elders that might be called upon to sit in the circle for her sentencing.
35. Leaving aside the fact that the defendant’s role related to bail proceedings in which Elders do not play a role and do not make recommendations for the consideration of the Court, the prosecution application is misconceived and must fail. It fundamentally misunderstands the role of Elders within the circle sentencing process and the authority they exercise.
36. This misconception has two aspects. Firstly, Elders are not decision makers within the comprehension of the principles relating to apprehended bias. Secondly, association, constituted by relationships of connection and respect as between the Elders and defendants, is the very foundation of the Galambany Court process.
The Role of Elders and the Exercise of the Sentencing Discretion
37. As explained by Penfold J in Smorhun v Devine [2014] ACTSC 208 (Smorhun) at [68] the circle sentencing process does not confer the sentencing discretion on Elders. That discretion is exercised by the Magistrate sitting in the Galambany Court in accordance with accepted sentencing principles and considerations.
38. This is consistent with the Practice Directions which make provision for Elders to provide sentence recommendations: Practice Direction [37]. Whilst serious consideration must be given to these recommendations, and an explanation provided to all present if the Magistrate is not satisfied that the recommended sentence is appropriate (Practice Direction [40]), there is no sense in which the Magistrate’s sentencing discretion is circumscribed. Indeed, paragraph 3 provides that ‘This Practice Direction does not remove or limit the discretion of a magistrate to impose a lawful sentence on an Aboriginal or Torres Strait Islander defendant’.
39. Paragraph 4 of the Practice Direction reinforces s 291N(2) Magistrates Court Act 1930 (ACT) which makes clear that directions are ‘not taken to limit the Magistrates Court’s discretion in sentencing offenders’.
40. The fact that Elders are not decision makers exercising a sentencing discretion in no way undermines the importance of the role played by those Elders or their authority in the Galambany Court circle sentencing process. In addition to making recommendations, Elders take primary responsibility for the sentencing conversation with the defendant, centring First Nations voices and a process of listening. This provides a foundation for understanding, enabling the sentence that is imposed to take account of the experience of First Nations persons before the court, within the broader context of the experience of their people: see Brookman [20]; [44]-[58].
41. As explained by Penfold J in Smorhun at [67]:
The circle sentencing process is intended to engage members of the Aboriginal and Torres Strait community in the sentencing of Aboriginal and Torres Strait Islander offenders. This should contribute to the engagement of that community with the justice system and, even more important perhaps for the individual offender, should ensure that the sentencing officer has a proper understanding of the offender’s background and circumstances, of the difficulties he or she has faced and perhaps of the ways in which he or she might be motivated to engage in serious rehabilitation.
42. The engagement and centring of Elders in the process engenders a respect that would not otherwise exist, enabling the achievement of the aims of the Galambany Court. As stated by one defendant participating in the circle sentencing process: ‘I can assure you, it’s a lot more daunting sitting in front of five Elders than most magistrates’ (the fifth Elder on this occasion being the Galambany Court Co-ordinator): Brookman [44].
Connection and Relationship as the Foundation of Elder Authority and the Circle Process
43. Within the circle process, Elders exercise First Nations authority that is derived from connection and relationship to Country, kin and community. Indeed, the authority they exercise in relation to the defendant is based on these connections and relationships. The defendant must regard the Elders as Elders, recognising and respecting their position and accepting their authority within the shared community of connection. Connection and relationship are therefore the foundation of the sentencing conversation, the foundation of understanding, and the foundation of the Galambany Court’s capacity to achieve its stated aims. In other words, far from being problematic, relationship – or association – is a precondition of the Elders performing their role within the circle sentencing process.
44. Paragraphs 7 and 23 of the Practice Direction relating to eligibility and suitability reinforce the relational aspect of the Galambany Court and the Elders’ role within the Court. To be eligible a defendant must have ‘ties to an Aboriginal and Torres Strait islander community, either in the ACT or elsewhere’. The assessment of suitability requires consideration of ‘whether the defendant is an Aboriginal or Torres Strait Islander person with a kinship or appropriate association with an Aboriginal or Torres Strait Islander community’ (emphasis added). Suitability is also assessed on the basis of whether the defendant will be respectful of the Elders and listen to and understand what the Elders are communicating to them.
45. That connections and relationships are the foundation of Elder authority and their role in the circle sentencing process is consistent with the operation of specialist Indigenous sentencing courts throughout Australia. In Specialist Courts for Sentencing Aboriginal Offenders (Federation Press, Sydney, 2016) at p 36, Bennett writes:
…the role of the Elders, and to a significant extent, their authority in the court, arises from their knowledge of and ties to the local Aboriginal community. This can sometimes include personal or kinship relations with the defendant, their family or the victims.
At pg 34 Bennett explains: ‘Their role in regard to the defendant, whom they may know personally (or indirectly through family), can be complex; offering empathy, advice and sometimes criticism or admonition.’
46. In “Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model” (2007) 29 Sydney Law Review 415, Marchetti and Daly, citing Harris, "A Sentencing Conversation ": Evaluation of the Koori Courts Pilot Program October 2002-0ctober 2004 (2006) at pg 79, write at pp 436-437:
One of the most important features of the courts is the involvement of the Elders or Respected Persons and the impact they can have on an offender's attitude and behaviour. This is closely related to the objectives of making the process more culturally appropriate and more participatory on the part of the Indigenous community. Ideally, a positive impact occurs when an Elder or Respected Person has an existing relationship with the offender and when the offender comes to understand that they have 'committed an offence not only against the white law but also against the values of the [Indigenous] community'. The moral dialogue with Elders or Respected Persons can be highly personalised, calling upon the offender's obligations to family and kin, and can seek to bring the offender back into the fold. The cultural shaming that is engendered by the participation of the Elders or Respected Persons can be more confronting (and also more constructive and positive) for a defendant in an Indigenous rather than a mainstream sentencing process. In this way the application of 'white law' is inflected by Indigenous knowledge and cultural respect. (footnotes omitted)
47. It is critical to acknowledge, in the context of the diverse Aboriginal and Torres Strait Islander communities within the Australian Capital Territory and surrounds, that whilst the existence of personal or kinship relationships may be ideal, the degree of connection and relationship as between the Elders in the Galambany Court and defendants who participate in the circle sentencing process is variable.
48. This is a consequence of the fact that many Aboriginal and Torres Strait Islander people, whose Country lies elsewhere on this continent, have come to live in the region and call it home. It is also a consequence of colonisation.
49. Colonisation has profoundly impacted relationships of connection to Country, kin and community. Sadly, for many First Nations defendants, these connections are frayed and in need of restoration. As I understand it, Elders in the Galambany Court see their role as supporting the strengthening of these connections. They see strength in identity and pride in shared connection as central to many defendant’s pathways to healing and rehabilitation.
50. In circumstances in which relationships of connection and respect as between the Elders and defendants lie at the foundation of the Galambany Court process, and in which Elders are not decision makers exercising the sentencing discretion, principles relating to apprehended bias of a decision maker can have no application when it comes to the selection and participation of Elders within the circle sentencing process.
Ramifications of the Application of a Principle of Apprehended Bias to Elders
51. Finally, it must be said that applying principles relating to apprehended bias to Elders in the Galambany Court would have dire consequences for the capacity of the Galambany Court to achieve each of its stated aims and for the willingness of Elders to participate in the process.
52. Relationship is at the heart of Elder authority. Expressed another way, without relationships of respect and connection between Elders and defendants, there is no Galambany Court.
Orders
53.Orders are as follows:
a) I decline to exclude the defendant from circle sentencing in the Galambany Court.
b) The defendant’s sentence is listed before a Magistrate other than Special Magistrate Hopkins to be heard as a circle sentence in the Galambany Court.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Hopkins sitting with the Elders of the Galambany Court. Associate: A. Gallagher Date: 16 June 2022 |