Gaudie v Local Court of New South Wales
[2013] NSWSC 1425
•26 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Gaudie v Local Court of New South Wales and Anor [2013] NSWSC 1425 Hearing dates: 29 August 2013 Decision date: 26 September 2013 Before: Johnson J Decision: 1. Pursuant to s.69 Supreme Court Act 1970, an order is made in the nature of prohibition precluding Magistrate Roger Clisdell from hearing the proceedings Police v Ryan Gaudie.
2. Submissions will be heard with respect to the costs of the proceedings.
Catchwords: COURTS AND JUDGES - apprehended bias - claim for prerogative or appellate relief following refusal by Magistrate to disqualify himself - publication in newspaper of articles reporting criticisms by Aboriginal Legal Service ("ALS") of sentencing in Local Courts in north-west New South Wales - Magistrate thereafter wrote letter to national newspaper and gave interview to journalist - Magistrate commented on range of topics including incidence of domestic violence in Aboriginal communities and the plea of not guilty rate for persons represented by ALS - newspaper published articles reporting Magistrate's comments - Plaintiff an Aboriginal person charged with and pleading not guilty to breach of apprehended domestic violence order - Plaintiff represented by ALS - application that Magistrate disqualify himself on ground of apprehended bias - application refused by Magistrate - factors relevant to disqualification application - material known to fair-minded bystander - relevance of Guide to Judicial Conduct - relevance of judicial oath - relevance of judicial statements concerning domestic violence in Aboriginal communities - relevance of comments made by Magistrate in peremptorily dismissing disqualification application in another matter - comments of Magistrate in letter and interview expressed in vehement and trenchant terms - cumulative effect of matters complained of - errors of law in decision refusing application - apprehended bias established - prohibition granted Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Domestic and Personal Violence) Act 2007
Criminal Appeal Act 1912
Local Court Act 2007
Oaths Act 1900
Supreme Court Act 1970New South Wales' Barristers' Rules
Local Court Practice Note Crim 1
Revised Professional Conduct and Practice Rules (Law Society of New South Wales)
Uniform Civil Procedure Rules 2005Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
CUR24 v Director of Public Prosecutions [2012] NSWCA 65
AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236
Antoun v The Queen [2006] HCA 2; 224 ALR 51
Attorney General v Times Newspapers Limited [1974] AC 273
Aussie Airlines Pty Limited v Australian Airlines Pty Limited (1996) 135 ALR 753
Barakat v Goritsas [2012] NSWCA 8
Barakat v Goritsas (No. 2) [2012] NSWCA 36
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283
Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; 222 A Crim R 106
Director of Public Prosecutions v O'Conner [2006] NSWSC 458; 181 A Crim R 294
Duncan v Ipp [2013] NSWCA 189
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Gurung v R [2012] NSWCCA 201
Helow v Secretary of State for the Home Department and Anor (Scotland) [2008] UKHL 62; [2008] 1 WLR 2416
Hill v King (1993) 31 NSWLR 654
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Lee v Cha [2008] NSWCA 13
Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288
Meagher v Stephenson (1993) 30 NSWLR 736
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427
Newcastle City Council v Lindsay [2004] NSWCA 198
NTD8 v Australian Crime Commission [2008] FCA 984; 249 ALR 559
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Coffey [2012] NSWDC 282
R v Fernando (1992) 76 A Crim R 58
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Hudson [2013] VSC 184
R v MG [2007] NSWCCA 57; 69 NSWLR 20
R v Morgan [2003] NSWCCA 230; 57 NSWLR 533
R v Pitt [2001] NSWCCA 156
R v Powell [2000] NSWCCA 108
R v Reid [2004] NSWCCA 301; 148 A Crim R 425
R v Rogerson (1990) 45 A Crim R 253
R v Sullivan [2010] NSWDC 333
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128
Spencer v Bamber [2012] NSWCA 274
State of Victoria v Psaila [1999] VSCA 193
Timmins v Gormley (reported sub nom Locabail (UK) Pty Limited v Bayfield Properties Limited [2001] 1 QB 451)
United States of America v Microsoft Corporation (2001) 253F 3d 34
Vakauta v Kelly [1989] HCA 44; 167 CLR 568
Webb v The Queen [1994] HCA 30; 181 CLR 41Texts Cited: Lee and Campbell, "The Australian Judiciary", Cambridge University Press, 2nd edn, 2013
Thomas, "Judicial Ethics in Australia", LexisNexis Butterworths, 3rd edn, 2009
"Guide to Judicial Conduct", Australian Institute of Judicial Administration, 2nd edn, 2007
Hammond, "Judicial Recusal - Principles, Process and Problems", Hart Publishing, 2009
"Equality Before the Law Bench Book", Judicial Commission of NSW
Groves, "The Imaginary Observer of the Bias Rule" [2012] 19 AJ Admin L 188Category: Principal judgment Parties: Ryan Gaudie (Plaintiff)
Local Court of New South Wales (First Defendant)
Probationary Constable Bree Furze (Second Defendant)
Attorney General of New South Wales (Intervener)Representation: Counsel:
Mr P Hamill SC (Plaintiff)
Ms NJ Adams SC and Ms BK Baker (solicitor advocate) (Intervener)
Submitting Appearance (First Defendant)
Submitting Appearance (Second Defendant)
Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (Plaintiff)
IV Knight, Crown Solicitor (First Defendant)
IV Knight, Crown Solicitor (Second Defendant)
IV Knight, Crown Solicitor (Intervener)
File Number(s): 2013/154115 Publication restriction: ---
Judgment
JOHNSON J: By Amended Summons filed 9 August 2013, the Plaintiff, Ryan Gaudie, seeks relief in this Court, the aim of which is to prevent Magistrate Roger Clisdell ("the Magistrate") from hearing a criminal charge against the Plaintiff, presently listed for hearing at the Forbes Local Court on 24 October 2013. The Plaintiff contends that there is a reasonable apprehension of bias on the part of the Magistrate so that this Court should intervene and grant the relief sought.
The charge against the Plaintiff listed for hearing on 24 October 2013 is that, on 10 November 2012 at Forbes, he did knowingly contravene a restriction specified in an apprehended domestic violence order contrary to s.14(1) Crimes (Domestic and Personal Violence) Act 2007.
The Parties to the Proceedings
In accordance with usual practice, the First Defendant, Local Court of New South Wales, submits to the orders of the Court, save as to costs.
Likewise, the Second Defendant, Probationary Constable Bree Furze, submits to the orders of the Court, save as to costs.
In the absence of a contradictor, the Attorney General of New South Wales ("Attorney General") was granted leave to intervene in the proceedings.
The Attorney General may take the role of substantial contradictor to ensure compliance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36. As will be seen, the present proceedings raise issues concerning the reasonable apprehension of bias in the context of public statements made to the media by a judicial officer. There is a clear public interest in the Court having all available assistance in determining issues of fact and law in a context such as this. The Attorney General has an important role in relation to the administration of justice. He is the appropriate public officer to represent the public interest in the administration of justice: Attorney General v Times Newspapers Limited [1974] AC 273 at 311 (per Lord Diplock).
I note that the Attorney General was granted leave to intervene to fulfil a similar function in CUR24 v Director of Public Prosecutions [2012] NSWCA 65.
The Hearing in this Court
At the hearing of the Amended Summons, Mr Hamill SC appeared for the Plaintiff. The Crown Advocate, Ms Adams SC, and Ms Baker appeared for the Attorney General.
The evidence was entirely documentary. The Court was assisted by written and oral submissions of counsel.
As will be seen, there is no factual dispute. The Magistrate made written and oral statements to a journalist, some of which came to be published in a national newspaper. The issues which fall for determination involve application of legal principles concerning reasonable apprehension of bias to the circumstances of the case, for the purpose of determining whether the Plaintiff has established an entitlement to relief.
The Plaintiff seeks, in the alternative:
(a) prerogative and declaratory relief under ss.69 and 75 Supreme Court Act 1970 so as to prohibit the Magistrate from hearing the criminal charge against him;
(b) leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001 against what is said to be the interlocutory order of the Magistrate on 9 May 2013 refusing to disqualify himself from hearing the charge against the Plaintiff.
In the event that the Plaintiff has otherwise demonstrated an entitlement to relief, it will be appropriate for the Court to consider the form of relief to be granted.
Judicial Officers Speaking to the Media
As mentioned earlier, these proceedings flow from statements made by the Magistrate to a journalist.
It has been said that the traditional reluctance on the part of the judiciary to engage in public discussion of its work, as reflected in the so-called Kilmuir Rules of 1955, has given way to a more flexible approach better suited to contemporary times: Lee and Campbell, "The Australian Judiciary", Cambridge University Press, 2nd edn, 2013, pages 286-292; Thomas, "Judicial Ethics in Australia", LexisNexis Butterworths, 3rd edn, 2009, paragraphs 7.1-7.4, 7.33-7.35.
However, the making of extra-curial public statements by a judicial officer has its dangers. In Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at 133 [12] ("Epeabaka"), Gleeson CJ, McHugh, Gummow and Hayne JJ observed (in the context of a member of the Refugee Review Tribunal who published material on the Internet to tell the public about how he approached his position):
"For people who hold judicial, or quasi-judicial, office to set out to give the public 'some idea of where [they are] coming from' might be regarded by some as reflecting a commendable spirit of openness; but it has dangers. It may compromise the appearance of impartiality which is vital to public confidence in the administration of justice. It is the recognition of such a danger that has traditionally caused judges to exercise caution in their public conduct and statements."
In 2002, the "Guide to Judicial Conduct" was published for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration ("the Guide"). Now in its second edition (published in 2007), the Guide is intended to offer some guidance on the "restraints that come with the acceptance of judicial office" (paragraph 1.1; page 1). The Guide does not purport to be a code or to set down rules: Guide, paragraph 1.2, page 2; Lee and Campbell, "The Australian Judiciary", page 178. It is advisory in nature, but has been described as having "persuasive authority": Thomas, "Judicial Ethics in Australia", paragraph 1.3.
An advisory guide of this type has been adopted, as well, for the Judiciary of England and Wales: "Guide to Judicial Conduct" (March 2013).
The position in Australia is different to that in the United States, where the Code of Conduct for United States Judges has a binding and prescriptive operation, which has been applied in the context of a claim of reasonable apprehension of bias where a trial Judge made statements to media representatives concerning a high profile case being heard by the Judge: United States of America v Microsoft Corporation (2001) 253F 3d 34; Hammond, "Judicial Recusal - Principles, Process and Problems", Hart Publishing, 2009, pages 134-137.
The parts of the Guide relating to participation in public debate appear later in this judgment (at [109]. It will form part of the material which is available for the purpose of applying the apprehended bias test.
The Guide strongly recommends (at paragraph 1.1; pages 1-2) consultation in cases of difficulty or uncertainty:
"Once again, however, it is important to emphasise that what follows is not intended to be prescriptive, unless it is so stated. This publication recognises that in cases of difficulty or uncertainty, the primary responsibility of deciding whether or not a particular activity or course of conduct is or is not appropriate rests with the individual judge, but it strongly recommends consultation with colleagues in such cases and preferably with the head of the jurisdiction."
It appears that the Magistrate, in this case, did not seek advice before speaking to the media, in the expectation that, if he did, he would be advised not to do so (see [54] below).
The researches of counsel, and my own research, have not revealed a case with close similarities to the present one. There have, however, been decisions which have picked up related themes. In Epeabaka, it was held that apprehended bias had not been established in the circumstances of the case.
In NTD8 v Australian Crime Commission [2008] FCA 984; 249 ALR 559, Reeves J refused an application to disqualify himself made upon the basis of public comments made by him in August-September 2007 (before his appointment as a Judge) when a member of the Taskforce established as part of the Commonwealth Government's Northern Territory Emergency Response.
There have been cases where a disqualification application was made upon the basis of reasonable apprehension of bias said to arise from legal articles written by the judicial officer. In Timmins v Gormley (reported sub nom Locabail (UK) Pty Limited v Bayfield Properties Limited [2001] 1 QB 451 at 491-497), the Court of Appeal (Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C) allowed an appeal from the decision of a Recorder upon the ground that apprehended bias had been established. The Court of Appeal asked itself, "taking a broad common sense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leaned in favour of the claimant and against the defendant in resolving the factual issues between them". The Court of Appeal concluded at 496:
"We do not think a lay observer with knowledge of the facts could have excluded that possibility and nor can we."
In Newcastle City Council v Lindsay [2004] NSWCA 198, the Court of Appeal held that the primary Judge was correct not to disqualify herself upon the basis of suggested apprehended bias arising from extra-judicial publications. The Court (Tobias JA, Giles JA and McClellan AJA agreeing) referred to Timmins v Gormley and continued at [35]-[38]:
"[35] The question in the present case is whether her Honour's article contains preconceived views that crossed the ill-defined line to which their Lordships referred in Timmins such as to threaten the appearance of impartial justice.
[36] In my opinion, the subject article falls well short of that line. Although her Honour expresses in the article some mild criticism of this Court's decisions in the cases to which she refers and suggests that they are inconsistent with other decisions of the High Court, nonetheless one could hardly suggest that her criticism, such as it is, of those Court's decisions was vehemently or trenchantly expressed. Quite the contrary. The language she employed was circumspect and the tone in which she expressed herself was mild.
[37] Furthermore, what her Honour had written under the heading 'What must the Plaintiff prove?' does no more than list various factors which previous authorities have said are relevant to the issue of liability and which she does no more than suggest a ' plaintiff should consider'. Certainly, it cannot be said that the article is so pro-pedestrian and anti-council as to give rise to the possibility that in deciding the current case, she was likely to lean in favour of the respondent and against the appellant.
[38] In my opinion, her Honour's article does not come close to demonstrating to the requisite degree any appearance of pre-judgment. Accordingly, the primary judge was correct not to disqualify herself and, for that reason, the challenge to her decision should be rejected."
In CUR24 v Director of Public Prosecutions, the Court of Appeal (Basten, Whealy and Meagher JJA) rejected a claim of apprehended bias said to arise from out-of-court statements alleged to have been made on a social occasion by the primary Judge to the solicitor for the accused person.
A decision of the Court of Criminal Appeal in this State has emphasised the difficulties which may arise where a Crown Prosecutor (who exercises important public functions in the criminal justice system) chose to make repeated public comments concerning a particular case in breach of relevant prosecution and ethical guidelines: R v MG [2007] NSWCCA 57; 69 NSWLR 20. The apprehended bias test was made out and the Crown Prosecutor was effectively restrained from appearing at the retrial of a particular accused person (at 47 [95]).
In the present case, the Magistrate made general comments which did not refer to the Plaintiff's case. However, it is contended for the Plaintiff that the cumulative effect of the Magistrate's statements was such that the apprehended bias test is made out in this case, so that the Magistrate ought be prohibited from hearing the charge against him.
It is to the resolution of factual and legal issues touching upon that question to which I now turn.
Factual Matters
The Charge Against the Plaintiff
On 10 November 2012, the Plaintiff was charged by way of a Court Attendance Notice with an offence of contravening an apprehended domestic violence order on that day.
The following account of the allegation against the Plaintiff is drawn from the statement of alleged facts which accompanies the Court Attendance Notice (Exhibit A, pages 70-74). It is appropriate to set out the nature of the allegation against the Plaintiff to assist an understanding of the charge which attracts the disqualification application, and also to assist an understanding of submissions made by counsel with reference to the particular allegations in this case.
The prosecution alleges that the Plaintiff (aged 23 years) resided in Forbes with his partner and their two young children, aged four and 14 months (as at November 2012). It is alleged that since July 2012, there had been eight reported domestic violence incidents concerning the Plaintiff and his partner. Police made application for an apprehended domestic violence order and, on 10 October 2012, such an order was made in the Forbes Local Court. The order was served on the Plaintiff on 2 November 2012. Conditions of the order were as follows:
(a) the Plaintiff must not assault, molest, harass, threaten or otherwise interfere with the protected person (his partner) or a person with whom the protected person has a domestic relationship;
(b) the Plaintiff must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship;
(c) the Plaintiff must not stalk the protected person or a person with whom the protected person has a domestic relationship.
Police allege that, on 9 November 2012, the partner asked the Plaintiff to leave the premises as the relationship was over, as a result of verbal abuse directed towards her. The Plaintiff took his possessions and left the premises.
Police alleged that, at 4.30 am on 10 November 2012, the Plaintiff, heavily intoxicated, returned to the location with a friend. The Plaintiff engaged in loud behaviour and the partner ultimately believed that the Plaintiff had left the premises.
At 8.00 am, the partner found the Plaintiff asleep on the couch. The partner proceeded to the kitchen where she noticed a large amount of vomit. She asked the Plaintiff to get up and make a bottle for their infant daughter. The Plaintiff did this and proceeded to give the bottle to the child who rejected it. It is alleged that the Plaintiff said to her "You're a whinging cunt" and that he laid back down on the couch and went to sleep. The partner again asked the Plaintiff to leave the location and he refused.
As a result of the Plaintiff's behaviour towards the partner and his verbal abuse directed to the child, it is alleged that the partner felt very intimidated and fearful and she called the police. Police attended the location and spoke with the partner. At the request of the partner, the police woke the Plaintiff and asked him to leave. It is alleged that the Plaintiff was argumentative with police before leaving.
The partner, in consultation with police, expressed a wish that the apprehended domestic violence order be varied. It is alleged that she told police that the Plaintiff had made her feel uncomfortable, and that his unpredictability whilst under the influence of alcohol during this incident had given rise to issues concerning her safety and that of the children.
Police allege that the Plaintiff is in breach of Conditions (a) and (b) of the apprehended domestic violence order (see [32] above).
The Plaintiff engaged the services of the Aboriginal Legal Service ("ALS") and, on 12 December 2012, the ALS entered a plea of not guilty on his behalf before the Forbes Local Court. The matter was fixed for a defended hearing on 22 May 2013.
Articles Published in "The Australian" on 19 October 2012 and 5 January 2013
In October 2012 and January 2013, "The Australian" newspaper published a series of articles, written by journalist Natasha Robinson, which examined sentencing practices in regional New South Wales, particularly with regard to indigenous offenders.
On 19 October 2012, an article appeared under the heading "Courts 'Harsher' on Aboriginal Driving Offences". This article described what was said to be the disproportionately high rate of incarceration for driving offences committed by indigenous offenders in regional and remote New South Wales. Mr Stephen Lawrence, Principal Legal Officer of the ALS in western New South Wales was reported to have said, amongst other things, that country Magistrates had fallen into "errant, idiosyncratic and overly harsh sentencing patterns ... The jail sentences we systematically see imposed on Aboriginal people for traffic crimes in the Dubbo region are not imposed in the city in this widespread way. The question needs to be asked why" (Exhibit A, page 129).
On 5 January 2013, articles were published in "The Australian" under the headings "Black Sentences Soar", "Juvenile prisons 'a storing house'" and "Jailed for a gram of dope, Boney struggles to stay free" (Exhibit A, pages 130-133). These articles described what was said to be disproportionately higher rates of incarceration of Aboriginal children. Mr Lawrence was reported to have accused "certain Magistrates" of "regularly imposing extraordinarily harsh sentences on Aboriginal youth that simply cannot be justified under the state sentencing law" and of "sentencing in a radically harsh way" (Exhibit A, page 131).
The Magistrate's Letter to the Editor on 6 January 2013
On 6 January 2013, the Magistrate wrote a letter to the editor of "The Australian" (by way of email) in the following terms (Exhibit A, pages 63-64):
"Natasha Robinson's article on the detention of Aboriginal youth is reflective of one side only of a very complex issue. I am one of the Magistrates that she alleges (via the crusading Mr Lawrence) of errant sentencing. The underlying tone is that Magistrates in western NSW are racists.
I was the Magistrate at Bourke/Brewarrina from January 2010 until April 2012. I sentenced a number of Aboriginal youth to control orders during my term at Bourke. It was never done lightly and always as a last resort. A Magistrate cannot sentence a juvenile offender to full time custody without a report from Juvenile Justice. All options are explored by a Court before taking the drastic step of putting a young person in custody. Mr Lawrence is well aware of the process.
It is true that a number of indigenous youth, especially boys commit offences, so that they can go to Orana where they receive 'full board and care'. I distinctly recall one sad case of a 12 year old Brewarrina boy who refused to apply for bail because he had nowhere else to go. His mother had abandoned him in Brewarrina after a family funeral, his father was in gaol and he was breaking into houses in order to sleep and eat. The Department of Community Services was reluctant to intervene but did so after I threatened to personally call the then Minister, Linda Burney. That young boy was then placed with a family in another NSW country town and has never looked back.
Disadvantage for Aboriginal youth is obvious in places like Bourke. For example how can a young person in that town qualify for a drivers licence? There are no driving schools. Most family members don't have a licence and even if they could locate a car no one is likely to be able to supervise a driver for 100+ hours. I doubt they could afford the fuel.
The real problem of course is the issue that is seemingly off limits for discussion in Australia. Aboriginal children and most women are subjected to constant and brutal domestic violence, largely as a result of alcohol and drug abuse. The cycle of violence ensures that children are quickly displaced from home, rarely complete even a basic education and fall into the all too familiar pattern of their drunken, drugged and violent parents. Thus the next crime wave is born.
What is the Court to do when juveniles as young as 10 regularly appear on initially minor charges and progress quickly to very serious crime? I remember a 16 year old Bourke boy who bashed his 14 year old pregnant girlfriend causing serious injury telling me 'she deserved it'. What does Mr Lawrence suggest I do in those circumstances, give him a bond? The Court has a duty to the community, to victims and to offenders to be firm but fair, apply the law and where necessary protect the community by imposing custodial sentences. That is the way I always operate as a Magistrate. That is the way the elders in Bourke described me at a farewell function in April 2012.
I cannot remember any non indigenous children receiving a control order during that period, but then again I cannot recall many (if any) non indigenous children appearing in Court. During my time in Bourke the overwhelming majority of people appearing in Court were indigenous offenders. I was very conscious of the lack of sentencing alternatives for both adult and juvenile offenders. For adult offenders, Circle Sentencing was a viable option that was used regularly by myself as a diversion from custody. There were a few successes but mostly failures from that program. Nevertheless the elders and I persevered and by the end of my term we were making some progress.
If you want an opinion of my time at Bourke, perhaps Ms Robinson should speak to the Circle elders at Bourke. I think they will give a different view of sentencing by myself and other Magistrates at Bourke."
Natasha Robinson Interviews the Magistrate on 7 January 2013
It does not appear that the Magistrate's letter was published in "The Australian". Rather, Ms Robinson contacted the Magistrate. It appears from comments made during the interview, that Ms Robinson and the Magistrate discussed matters on 6 January 2013, before making a recorded interview the next day.
On 7 January 2013, the Magistrate participated in a recorded interview with Ms Robinson. An audio recording of that interview (about 45 minutes long) is in evidence (Exhibit A, page 96) together with a transcript of the interview (Exhibit A, pages 42-61). At the request of counsel for the Plaintiff and the Attorney General, the audio recording was played at the hearing, given submissions that were made concerning both the tone and content of the interview.
Counsel agreed, and I accept, that the contents of the Magistrate's letter of 6 January 2013 and the interview of 7 January 2013 (and not only the published articles) are to be considered for the purpose of applying the apprehended bias test. It is appropriate to set out in this judgment substantial extracts from the interview, to allow an understanding of what was said, and the context in which it was said.
The Magistrate began by stating that he would not comment on individual cases and he explained why he had contacted the media (Exhibit A, page 42):
"MAGISTRATE ROGER CLISDELL: Well first of all I am not going to comment on individual cases, particularly ones where obviously I wasn't the Magistrate.
MS. NATASHA ROBINSON: Of course.
MAGISTRATE ROGER CLISDELL: I am not in a position to make any comment about those matters. My concern was the general nature of the article which, as I said to you yesterday, implied that judicial officers in north western NSW were placing juvenile indigenous offenders in custody and the implication that they were doing it because they were racially motivated to do so. The further article you've done today suggesting that city Magistrates don't incarcerate juveniles."
The Magistrate explained that during the whole of the time that he had been a country Magistrate, he had also been a metropolitan Magistrate.
The Magistrate stated that his circuits had included Bourke, Camden, Blacktown and Mt Druitt.
The Magistrate explained that sentencing statistics comparing sentences imposed in the country with those in the city "mean absolutely nothing" because, amongst other things, the "facilities, programs and sentencing options in the city are vastly different to the sentencing programs available to country magistrates, particularly in the northwest division". In particular, programs such as MERIT and FORUM, and alternatives to imprisonment such as intensive correction orders, community service orders and periodic detention, were readily available to a city Magistrate, but not available to a Magistrate sentencing in the North West Division. He stated that the absence of such programs and alternatives was "extremely frustrating" because incarceration is "always ... the last roll of the dice" and that "you bend over backwards to put people through whatever programs, whatever rehabilitation efforts can be made" (Exhibit A, pages 43-44). These sentiments were repeated by the Magistrates at different points of the interview (Exhibit A, pages 51-53).
The Magistrate returned to a direct response to aspects of the newspaper articles in the following way (Exhibit A, page 46):
"MAGISTRATE ROGER CLISDELL: Look, I am, I am not being critical of government because I understand that there are limited resources and we have a huge state. But it's unfair to attack the people who are at the coalface who are attempting to do the best they can with very limited resources.
MS. NATASHA ROBINSON: Mmmm, mmmm, mmmmm, yep.
MAGISTRATE ROGER CLISDELL: Exercise [sic] statistics. It's simply unfair, and the implication that we don't care and are trying to do social engineering which is Stephen Lawrence's latest little challenge to us, I reject. I'm not a social engineer, I'm a Magistrate. But I'm also a human being who is compassionate. I have a job to do. it requires me to sentence in accordance with the law. Whether I like the law is irrelevant. Whether I disagree with the law is irrelevant. I took an oath to do right to all manner of people who appear before my court according to the laws and usages of the state of New South Wales without fear or favour or affection or will I believe in that oath and that's how I operate."
Ms Robinson asked the Magistrate concerning domestic violence issues (Exhibit A, page 46):
"MS. NATASHA ROBINSON: And the issues you were raising concerning domestic violence. You said that that really is at the root of, at the heart of, all of these problems.
MAGISTRATE ROGER CLISDELL: Absolutely. Alcohol and drug abuse and lack of education and therefore no employment is the root of the problem.
MS. NATASHA ROBINSON: mmmm, mmmm.
MAGISTRATE ROGER CLISDELL: And until governments are prepared to do something about that. We... oh I used to describe my job as putting a bandaid on a broken leg."
The Magistrate continued to describe the difficulties with limited sentencing options, including the absence of work available to young persons by way of community service orders in Bourke and Brewarrina.
Ms Robinson then raised the difficulty she had experienced in seeking interviews with Magistrates (Exhibit A, pages 47-48):
"MS. NATASHA ROBINSON: It must be very frustrating for Magistrates in this situation, where, you know, normally, you know, normally, when there's not the opportunity to you know participate in a public discussion like that. So you do get bits and then certain parts of the community are freer to speak to the media than others so that as I said yesterday, I did try very hard to get interviews with Magistrates and I wasn't successful with that.
MAGISTRATE. ROGER CLISDELL: [indecipherable] I've spoken with Magistrate Eckhold. He was advised by the Media Advisor not to respond and that's why he didn't. It was nothing personal. He had advice to that effect. The reason you're speaking to me is I haven't told anyone I'm going to speak to you, because I have no doubt that if I had indicated I was going to, they would have told me not to.
MS. NATASHA ROBINSON: [indecipherable] Why did you speak to us?
MAGISTRATE ROGER CLISDELL: Because I felt personally affronted by the mention of Bourke and Brewarrina and that attacked my integrity as a Magistrate and as a human being.
MS. NATASHA ROBINSON: Sure, sure.
MAGISTRATE ROGER CLISDELL: And I believe that I do the job to the best of my ability. I'm certainly not perfect. I make mistakes, and the District Court corrects mistakes that we make. But we do act in good faith and we don't arbitrarily lock up anyone, particularly juveniles. But the fact is that there are occasions where juveniles simply won't apply for bail because they'd rather be in custody because they feel safer in custody.
MS. NATASHA ROBINSON: Mmmm.
MAGISTRATE ROGER CLISDELL: That's a dreadful indictment on their family.
MS. NATASHA ROBINSON: mmm yeah, yeah. And the, carrying on from that, from that point, about the difficulty of discussing these things and so you do get this situation where the you know, if Magistrates aren't able to provide a voice in the article, that you, and I did try, I think a lot of these points that you've raised concerning the root problems and social dysfunction and those causes of crime were discussed by the police inspector Rod Blackman.
MAGISTRATE ROGER CLISDELL: Mmm, mmm, yes."
Particular reliance was placed by senior counsel for the Plaintiff upon the Magistrate's comments in the previous paragraph. It was submitted that the Magistrate had chosen to speak to the journalist with the expectation that, if he had taken advice on the topic, he would have been advised not to do so. In this way, the Magistrate did not follow the strong advice contained in the Guide (see [20] above).
The interview turned to the Magistrate's concern about statements made by the ALS. Statements made by the Magistrate from this point in the interview, concerning the ALS and its approach to representation of clients charged with domestic violence offences, formed a cornerstone of the Plaintiff's disqualification application. Ms Robinson asked (Exhibit A, page 48):
"MS. NATASHA ROBINSON: So that was good but I guess the, you've obviously expressed anger yesterday that the ALS appears to be, appears to be, appears to you to be, on a campaign about this?
MAGISTRATE. ROGER CLISDELL: Absolutely.
MS. NATASHA ROBINSON: Mmmm.
MAGISTRATE. ROGER CLISDELL: I mean they're picking isolated cases. We deal with thousands of cases each year."
The Magistrate made a number of comments concerning sentences imposed for drive whilst unlicensed or drive whilst disqualified offences. He emphasised that imprisonment was not imposed for first offenders, but explained that, "If people kept ignoring the law we have to impose the ultimate sanction" (Exhibit A, pages 48-49). In the course of this discussion, the Magistrate spoke of the difficulties facing indigenous youth in obtaining a driver's licence in western New South Wales, observing that "If they can't get a licence how can they ever get a job"? (Exhibit A, page 50).
As the interview proceeded, the Magistrate spoke about problems in school attendance and literacy amongst indigenous children. He spoke of his earlier attempts to have juveniles write essays on matters such as why they should not throw rocks at trucks. He found that the children could not complete the essays because they could not read or write. The Magistrate expressed the view that many cases were coming to Court, such as children fighting in the schoolyard, which were previously not Court matters, and which he considered should not be Court matters. He considered that this was a problem not limited to remote areas, but rather a Statewide problem (Exhibit A, pages 51-53).
The Magistrate was asked whether there should be specialist children's courts in regional areas and responded that most regional Magistrates had enormous experience dealing with children (Exhibit A, page 54).
The interview then moved to a discussion as to whether the ALS was running a campaign against the magistracy. It was from this point that the Magistrate expressed his strongest views concerning the ALS, in the concluding parts of the interview where the Magistrate was given an opportunity to raise any other matters. Ms Robinson asked (Exhibit A, pages 55-56):
"MS, NATASHA ROBINSON: Ok. Alright excellent. Alright and are there any other points that I haven't raised that you would like to raise?
MAGISTRATE ROGER CLISDELL: [indecipherable] I think my letter summarised what my feelings were, I felt that I had to respond because the, of the fact that the courts don't set out to be [indecipherable] and I wanted to say I'm not someone who just locks up children without really good cause and that I do my job with integrity and when my integrity is challenged I feel seriously affronted.
MS. NATASHA ROBINSON: Sure, and the, I guess before we were discussing yesterday about when you were saying that you basically felt as if there was a campaign being waged and you weren't going to cop it, is that something that is widely felt about what you say is a campaign being run by the ALS across the magistracy?
MAGISTRATE ROGER CLISDELL: Well there certainly appears to be doesn't it.
MS. NATASHA ROBINSON: I think it's oh I don't you know, whether it's a campaign, I mean, from my point of view its, I do try hard, I do try hard to get the views of every party and I am in a situation where the ALS is particularly free, you know in a particularly free position to put their views forward in a very forceful manner so then when other people are not in a position to comment at all that is what ends up you know being reported. But that will not be the case tomorrow.
MAGISTRATE ROGER CLISDELL: Mr Lawrence's comments that you've reported now on the drive whilst disqualified matter, the question of incarceration of indigenous youth and the particular case from Parkes Children's Court. His comments are a direct attack on the Magistracy.
MS. NATASHA ROBINSON: And.
MAGISTRATE ROGER CLISDELL: 'Errant and Idiosyncratic sentencing, overly harsh sentencing, social engineering' - if that's not an attack on us I don't know what is. And I reject each and every one of those contentions so far as they apply to me."
Ms Robinson asked concerning the ethical position of such comments being made about the judiciary (Exhibit A, page 56):
"MS. NATASHA ROBINSON: And what are the, what are the, I'm not sure if it's the right word to say ethics, or I mean you know what, in the legal profession, I mean do you have a view on that sort of criticism, I mean is that is that, if that's a direct attack on the judiciary, if it happened in court I suppose It would be contemptuous, are there issues of you know contempt or any other issues that come up in this situation? I mean you will be in a court room no doubt quite soon with Stephen Lawrence in front of you?
MAGISTRATE ROGER CLISDELL: Yes, and I will deal with him professionally as I always would. I don't think it's unethical to take a particular view, um, and he has a particular view about Magistrates which appears from your article to include me although I don't know that I've ever met Stephen Lawrence, although I know he appeared before me once in Wellington when I was relieving there, I don't know Stephen Lawrence, personally, so, I can't say. I think it's very unwise for practitioners to enter into a public debate where there's constant criticism of a particular group of Magistrates as Mr Lawrence has done. He won't do himself any favours doing that. He may have a particular view. He's entitled to that view. But to continue with his public attacks through the press the way he has been, is that, I felt that I had been singled out, by implication, and I needed to respond."
The interview turned to discussion concerning the ALS and the not guilty plea rate at Bourke and Brewarrina (Exhibit A, pages 56-57):
"MS. NATASHA ROBINSON: Sure. And you said yesterday that it doesn't do clients any good either.
MAGISTRATE ROGER CLISDELL: Well yeah that's why I didn't really want to talk to you last night because I was a bit hot and bothered, and I'd had a, I was in a hotel room, motel room, and it was 40 odd degrees. It never, would a practitioner's behaviour ever impact on the client. I meant that in the generic sense that I don't believe that their crusading is going to do a lot of good. Because it may just get high level backlash from government ultimately. But I, I don't know, I would never allow a practitioner's behaviour to impact on a decision before the court. That would be totally contrary to the views, where the ALS do a disservice, I think it's probably what I was thinking of yesterday, to the clients, is the constant inability to enter an early plea of guilty to charges where there is clearly, where there clearly should have been a plea entered.
MS. NATASHA ROBINSON: Oh really that's the trend that you observed?
MAGISTRATE ROGER CLISDELL: Oh absolutely. The not guilty plea rate at Bourke and Brewarrina was close to 90 per cent.
NATASHA ROBINSON: Wow.
MAGISTRATE ROGER CLISDELL: Um, Um. that does the client.
MS. NATASHA ROBINSON: What is that? Is that a sort of an aggressive stance? Or a, you know, what's behind that?
MAGISTRATE ROGER CLISDELL: Look I don't know. I don't know whether it's the client is not prepared to acknowledge guilt, or whether there is an underlying idea that let's make the police prove every single point. I just don't know.
MS. NATASHA ROBINSON: Mmmm, mmmm.
MAGISTRATE ROGER CLISDELL: But it doesn't do the clients much good If they get convicted after a hearing, and then any discount that would have applied to a plea of guilty has been forfeited."
Discussion of this topic continued with the Magistrate, at one point, referring to the "Bourke defence" (Exhibit A, pages 57-59):
"MS. NATASHA ROBINSON: But you're suggesting that the ALS gives advice in perhaps too many cases, to clients to plead not guilty when they're clearly guilty.
MAGISTRATE ROGER CLISDELL: Well, that is my view, that the ALS regularly enter pleas of not guilty, and I often say from the bench that, 'has the effect of the discount been explained? Because a client who pleads guilty at the earliest available opportunity is entitled to a discount of up to 25 per cent on sentence'.
MS. NATASHA ROBINSON: Mmmm, mmm.
MAGISTRATE ROGER CLISDELL: If that's forfeited.
MS. NATASHA ROBINSON: It's also a client's right to plead not guilty of course.
MAGISTRATE ROGER CLISDELL: Absolutely. But when you've got a rate of not guilties as high as it was in Bourke and Brewarrina, you have to wonder whether there is some campaign to make the, to take on the police absolutely every time and clog the court lists. Because inevitably what happened was that the victim wouldn't turn up and the matter would be dismissed, in which case the plea of not guilty was correctly entered. The reverse often happened if the victim turned up then a plea of guilty was entered at the hearing. That was not an uncommon situation.
MS. NATASHA ROBINSON: Yeah.
MAGISTRATE ROGER CLISDELL: And of course one of the problems with domestic violence In the community, out there, is that the victims often are very quick to call the police when they're travelling down, but very slow to turn up to court when ah they've reconciled or whatever with their partner and they don't want them to go to jail. And so the vicious cycle continues.
MS. NATASHA ROBINSON: And so people who have bashed their wives for instance and you know get legal advice and that and plead not guilty are in a way relying on the fact that the victim will end up losing courage or backing down.
MAGISTRATE ROGER CLISDELL: It's called the Bourke defence.
MS. NATASHA ROBINSON: Really?
MAGISTRATE ROGER CLISDELL: Yep?
MS. NATASHA ROBINSON: And where does that term come from?
MAGISTRATE ROGER CLISDELL: Look I don't know, but it's been well known even before I was, went to Bourke. I remember the Bourke defence was common parlance when I was a solicitor.
MS. NATASHA ROBINSON: And lawyers are using it?
MAGISTRATE ROGER CLISDELL: Yep.
MS. NATASHA ROBINSON: That's very that's very concerning isn't it. I mean if you're looking at it from the point of view, you know, the sort of from a social point of view, rather than from a strict you know letter of the law point of view, then that that certainty does raise ethical issues.
MAGISTRATE ROGER CLISDELL: Look everyone is entitled to their day in court, and if the client tells their solicitor I didn't do it, then the solicitor has no choice but to enter a plea of not guilty, I just wonder though whether there's been proper advice given as to the outcome if ultimately certain facts are established.
MS. NATASHA ROBINSON: Mmmmm, mmmm.
MAGISTRATE ROGER CLISDELL: And, it was far more obvious in my two circuits, Camden and Bourke, in Camden, much more likely to have pleas of guilty at an early opportunity, in Bourke. very very unlikely.
MS. NATASHA ROBINSON: And your blaming, you know, your just saying, with those sort of statistics, 80 and 90% It just does raise the question as to whether or not this is the client's prerogative in each case?
MAGISTRATE ROGER CLISDELL: I'm just saying that where people are represented by the ALS, the entry of not guilty at the first court return is high.
MS. NATASHA ROBINSON Yeah.
MAGISTRATE ROGER CLISDELL: Why that is, if it's the client refusing to accept reality, or whether it's something else, I don't know."
Further Articles in "The Australian" on 8 and 18 January 2013
On 8 January 2013, "The Australian" published an article summarising parts of Ms Robinson's interview with the Magistrate, entitled "Kids prefer jail to abuse at home, says Magistrate". This article referred to the Magistrate's concerns about domestic violence in indigenous communities in Australia which, he was quoted as saying, was an issue "seemingly off limits for discussion in Australia". In particular, the article quoted the Magistrate as saying "Aboriginal children and most women are subjected to constant and brutal domestic violence, largely as a result of alcohol and drug abuse".
The article also referred to the Magistrate's comments concerning his frustration with the lack of facilities, programs and sentencing options in the country compared to the city. The article quoted the Magistrate as saying that "[gaoling] is never done lightly, and always as a last resort". The article also referred to the Magistrates attempts to "institute a non-custodial punishment for children charged with less serious crimes with potentially catastrophic outcomes like throwing rocks at cars", and his difficulties when discovering that the children could not complete essays because they could not read or write. The article referred to the Magistrate's comments regarding the difficulties of keeping children in school in country areas like Bourke.
The article cited the Magistrate as making comments concerning issues of domestic violence in Aboriginal communities, including "The cycle of violence ensures children are quickly displaced from home, rarely complete a basic education and fall into the all too familiar pattern of their drunken, drugged and violent parents. Thus the next crime wave is born" and "There are occasions where juveniles simply won't apply for bail because they'd rather be in custody because they feel safer in custody. That's a dreadful indictment on their family".
On 18 January 2013, a further article by Ms Robinson was published in "The Australian" under the heading "Magistrate attacks ALS over rash of not guilty pleas". The article reported a number of statements made by the Magistrate during the interview of 7 January 2013, noting that the Magistrate "took the unprecedented step of publicly criticising the Aboriginal Legal Service NSW/ACT" (Exhibit A, page 138).
The article stated:
"The unusual foray into a public policy debate by a serving magistrate came after the ALS/NSW took a strong stance on the gross overrepresentation of Aboriginal children and adults in the nation's prisons."
A little later, the article said (Exhibit A, page 138):
"In an interview with The Australian, Mr Clisdell spoke of his frustration with the high rate of not-guilty pleas entered in the Bourke and Brewarrina jurisdictions, in particular for domestic violence matters and particularly relating to ALS clients.
'Where the ALS do a disservice to their clients is the constant inability to enter an early plea of guilty to charges where there clearly should have been a plea entered. The not guilty plea rate at Bourke and Brewarrina was close to 90 per cent' he said.
Mr Clisdell suggested that defendants or their lawyers were aware victims would often fail to appear in court to testify, meaning that those who had pleaded not guilty would get off scot-free.
'It's called the Bourke defence,' Mr Clisdell said.
'I don't know whether the client is not prepared to acknowledge guilt, or whether there is an underlying idea that let's make the police prove every single point. But it doesn't do the clients much good if they get convicted after a hearing, and any discount that would have applied to a plea of guilty is forfeited'.
'When you've got a rate of not guilties that is as high as it was in Bourke and Brewarrina, you have to wonder whether there is some campaign to take on the police absolutely every time and clog the court lists. Because inevitably what happened is that the victim wouldn't turn up and the matter would be dismissed'."
The Magistrate was quoted as saying "The ALS had 'declared war' on the magistracy in the northwest". The article reported the Magistrate as stating that Mr Lawrence's comments were "a direct attack on the magistracy" with the Magistrate rejecting "allegations of idiosyncratic sentencing, overly harsh sentencing, social engineering" insofar as they applied to him.
Disqualification Applications in Other Matters in February and April 2013
On 5 February 2013, a domestic violence related matter against Priscilla Hines came before the Magistrate at the Condobolin Local Court. Ms Hines was represented by an ALS solicitor. An application that the Magistrate disqualify himself was made and refused in the following way (Exhibit A, page 66) (my emphasis):
"DAY: Your Honour given the pleas of not guilty are in a domestic violence related matter Your Honour it is with great reluctance that Your Honour I seek an application its an application for an adjournment um for an application for Your Honour to disqualify yourself, um I say this with great reluctance Your Honour, um given Your Honour's ...
HIS HONOUR: I don't propose to disqualify myself on the basis that she was in a care matter before me this morning that is not a matter for disqualification.
DAY: Your Honour it's um it's more in relation to comments in the media that have been ...
HIS HONOUR: I'm not disqualifying myself over any thing I've said in the media Mr Day. You want to get me disqualified you go to the Supreme Court have them tell me to stand down. I am not disqualifying myself.
DAY: As the court pleases Your Honour and I for the record your Honour I did indicate it was with great reluctance that I even mentioned the matter.
DAY: Your Honour Your Honour would also note that there is ..
HIS HONOUR: If it's the ALS's next little enterprise to have me removed from the circuit that will fail as well."
Although this application did not relate to the Plaintiff, emphasis was placed upon the Magistrate's immediate reaction to the application, and his comment concerning the ALS, in support of the Plaintiff's disqualification application.
On 4 April 2013, the Magistrate refused an application at Forbes Local Court that he disqualify himself from hearing charges against Jai Stephens of assault allegedly committed in a domestic context. The application was made on the basis of suggested apprehended bias arising from the Magistrate's statements to Ms Robinson, and was supported by an affidavit and written submissions. The Magistrate gave reasons for declining to disqualify himself (Exhibit A, pages 112-117).
Disqualification Application in the Plaintiff's Matter on 9 May 2013
On 9 May 2013, the Plaintiff's solicitor made application that the Magistrate disqualify himself from hearing the Plaintiff's case, together with another case involving a Luke Prior. The affidavit and written submissions relied upon in support of the application were almost identical to those relied upon in Police v Jai Stephens.
The Magistrate refused to disqualify himself, providing reasons which, in large part, repeated the judgment delivered on 4 April 2013 in the matter of Police v Jai Stephens. In light of submissions which have been made, it is appropriate to set out the Magistrate's reasons in full. Emphasised by me are parts of the reasons to which particular reference will be made later in this judgment, where the Plaintiff submits that the Magistrate is applying a test of actual, and not apprehended, bias. (Exhibit A, pages 121-126):
"HIS HONOUR: There are two applications by the Aboriginal Legal Service on behalf firstly of Ryan Gaudie and secondly on behalf of Luke Prior.
Mr Gaudie is facing the hearing of charges alleging the contravention of an apprehended domestic violence order on 10 November 2012. That matter is listed for hearing on 22 May this year. This application is made less than two weeks before the hearing.
In respect of Luke Prior he is facing a charge of a common assault. That matter is listed for hearing on 18 June at Parkes.
Both charge matters have been re-listed today at the request of the Aboriginal Legal Service. The accused persons are not in attendance.
The applications are for me to disqualify myself on the grounds of apprehended bias. A similar application was before this court in late March and I gave a determination on 4 April in respect of a matter of Jai Stephens.
Both of these matters involving Luke Prior and Ryan Gaudie involve matters of a domestic nature. The common assault involving Luke Prior is an allegation of a domestic assault. There is also an apprehended violence order attached to those proceedings. Ryan Gaudie's proceedings are in breach of an apprehended domestic violence order and there is an application to vary the final orders attached to his proceedings.
It is apparent from the applications that the ALS on behalf of their clients are alleging I am unable to comply with my judicial oath and that I would not be open to persuasion by evidence or arguments presented by any accused person who is of aboriginal descent in allegations involving domestic violence.
Again the applications, as they did previously in the matter of Jai Stephens, rely on the same affidavit made by Stephen Lawrence, the principal legal officer with the ALS at Dubbo. The affidavit attaches a number of documents including articles published in the Australian newspaper, a transcript of an interview I gave to a journalist, a transcript of recent proceedings in Condobolin Local Court and the police fact sheet alleged against each of the accused Ryan Gaudie and Luke Prior.
The written submissions prepared by Mr Dennis in the prior application have been attached to this application and they are relied upon by Miss Graham.
The respondent to the applications in each case is the officer-in-charge, in the case of Gaudie, [Probationary Constable Furze], in the case of Prior, Sergeant Collins. No submissions again have been made on behalf of the respondents by police prosecutor Sergeant Harris save as to say that he opposes the making of the orders sought.
It is the contention of each applicant in these proceedings that my comment in the media regarding the ALS in Western New South Wales and domestic violence in the Aboriginal community in Bourke and Brewarrina mean that I am incapable of bringing an independent mind to the hearing of the charges against each of the accused, Prior and Gaudie.
It is submitted further that I am in breach of the Guide to Judicial Conduct. Firstly that is a guide only, it is not mandatory and nothing in it is binding on any judicial officer.
That there have been comments regarding the level of violence in the indigenous communities by myself should come as no surprise, in fact there have been a number of judicial officers who have commented in similar fashion to the regrettable state of domestic violence and the tragedy of that violence in the indigenous communities. There was recently reported in the press, possibly in the same media paper where my comments were published of a Victorian case where King J in the Victorian Supreme Court is reported to have said these words when sentencing Veronica Hudson for the manslaughter of her partner Eddy Heron.
'There are so many appalling stories within the indigenous community of Australia and it is hard to know where to start to do something about it. What is not to be doubted is that something must be done. We cannot let this continue as a society. We must stop this appalling violence being inflicted, one upon the other, by members of the indigenous community. Whilst there have been so many attempts to alleviate these problems we have had as a community such limited success.'
More relevantly now retired Judge Nicholson SC in sentencing a man called Leo Coffey who committed offences in Brewarrina and was probably refused bail by myself prior to being committed for sentence to the District Court made this comment in his sentencing comments, 'Domestic violence is rampant within the aboriginal communities'. His Honour made that comment when discussing whether or not general deterrence was effective and useful.
When I became a magistrate I took an oath of office. I believe in that oath. A fair reading of the interview that I gave to Natasha Robinson as a whole could not lead to the conclusion that I would ever pre-judge the evidence in any proceeding or fail to apply the law as required.
In a paper delivered to the Local Court of New South Wales annual conference in 2012 his Honour Judge Elkaim SC made these observations on the issue of disqualification for bias;
'I have already referred to the relevant test. Obviously disqualification on trivial grounds creates an unnecessary burden on the court generally, one's colleagues, the parties and their lawyers. Obviously judges need to be careful to avoid giving encouragement to attempts by a party to use the disqualification procedure to judge shop or to obtain an adjournment and any application made during the course of the hearing needs to be considered very carefully because the consequences can be more significant. Much will depend upon the nature of the matter, for example, ordinarily there would be no need for disqualification if the matter is uncontested or is a relatively minor or procedural matter. Whilst an application can be made without filing a formal motion it is incumbent on the party seeking to make such an application to notify the judge as soon as possible of the application and its basis.'
It is submitted that I am biased against the ALS. I have certainly taken issue with the comments of Mr Lawrence and my views on the effect of his comments but no ALS solicitor appearing before me is treated any differently from any other practitioner. Many of the ALS solicitors who appear before me are relatively inexperienced. I am always patient with what for some is a steep learning curve. I will assist those practitioners from time to time where it is appropriate to do so. I made it clear in the interview that I would never allow the behaviour of any practitioner to affect my role to act in accordance with my oath of office.
In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001], 205 CLR 507 at paras 71 and 72, Gleeson CJ and Gummow J observed;
'71 Decision makers including judicial decision makers sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank. It is whether it is open to persuasion. The fact that, in the case of many judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.'
'The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to be incapable of alteration whatever arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.'
I say that those comments are particular apt in relation to the whole of my comments.
In Barakat v Goritsas (No. 2) [2012] NSWCCA 36 Basten JA with Young JA and Sackville AJA agreeing;
'No authority is needed for the proposition that an apprehension of bias in the sense of an apprehension of prejudgment does not mean an apprehension that the case will be determined adversely to the interests of the complaining party. It means a reasonable apprehension that the trial judge formed a fixed view to which it may be expected that he or she will adhere regardless of the evidence or the submissions made by the complaining party.'
Reference is made in the submissions before the court to the passages of Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337. I accept those passages set out the principle of apprehended bias.
In the same case under the heading of, 'The Principle to be applied' Gleeson CJ and McHugh, Gummow and Hayne JJ observed at p 348:
'Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned the cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they hear and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases and litigants do not choose their judges. If one party to a case objects to a particular judge sitting or continuing to sit then the objection should not prevail unless it is based on a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
This is not to say that it is improper for a judge to decline and sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellant court were to take a different view on the matter of disqualification, however if the mere making of an insubstantial objection was sufficient to lead a judge to decline to hear or decide a case the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary and may include such factors as the stage at which the objection is raised, the practical possibility of arranging for another judge to hear the case and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which the judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case and took pains to arrange that he or she should do so questions of actual bias may arise.
The particular principle or principles which determine the grounds upon which the judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
Bias, whether actual or apprehended connotes the absence of impartiality.'
The test to be applied is now well settled. In Johnson v Johnson (2000) CLR 488 at para 11 the majority, Gleeson CJ and McHugh, Gummow and Hayne J J stated:
'The test to be applied in Australia in determining whether a judge is disqualified by reason of the apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.'
In Ebner is was held to be a two-step process. The first step is to identify what it is said that might lead a judge to decide a case other than on its legal and factual merits. Secondly, there must be a logical connection between this matter and the apprehended manner in which the judicial officer will deviate from deciding the case on its merits.
The test is an objective one. In Johnson the majority referred to above stated at para 12:
'The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective. It is founded in the need for public confidence in the judiciary and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time two things need to be remembered. The observer is taken to be reasonable and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.'
In British Tobacco Australia Services Limited v Laurie [2011] 242 CLR 283 French CJ in a dissenting judgment made these comments in relation to the observations of Kirby J in Johnson referred to before;
'I agree with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment'.
In [CUR] 24 v DPP (2012) NSWCA 65, the court said;
By way of summary the fair-minded bystander would consider that there was evidence that the judge had made a statement, probably incautiously, on an informal occasion which indicated a very firm view about the seriousness of paedophilia. That view was not expressed in relation to the applicant or any particular aspect of the applicant's offences or alleged offences. That bystander would understand that the judge should, consistent with his training and function, put aside that view in addressing issues which arise in proceedings involving the applicant. In these circumstances the bystander would not consider it likely that the judge could not and would not put that view aside and be open to persuasion by the evidence or arguments presented on behalf of the applicant.'
It is clear from the authorities such as Johnson and [CUR] 24 that the fair-minded bystander or lay observer should take into account the fact that the judicial officer asked to disqualify him or herself is a professional person trained to exclude the irrelevant, the immaterial and the prejudicial and be open to persuasion and argument.
The comments that I made in the media were directly referrable to the areas of Bourke and Brewarrina.
At no time have I made any expression in relation to the matters that are before the court involving Luke Prior or Ryan Gaudie. I have not made any comment about any particular aspect of their alleged offences.
The submission in this application is that I have strongly held views about Aboriginal persons represented by the ALS and defended hearings charged with domestic violence offences and that my views in totality reflect that I am unwilling or unable to alter those views irrespective of the evidence presented. I reject that submission.
My comments when taken as a whole could not cause a fair-minded lay observer to conclude that I am incapable of bringing an open mind to a hearing and dealing with the matter on the evidence and applicable law in accordance with the oath that I took when I was appointed a magistrate.
THE APPLICATIONS ARE REFUSED."
On 17 May 2013, the present proceedings were commenced by the filing of a Summons in this Court.
The hearing date of the Plaintiff's criminal charge, previously fixed for 22 May 2013, is now set for 24 October 2013.
Applicable Principles on Application for Disqualification on the Ground of Apprehended Bias
The governing principle is that, subject to qualifications relating to waiver, necessity or possibly special circumstances (none of which arise in this case), a judicial officer is disqualified if a fair-minded lay observer or bystander (hereinafter "the bystander") might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question or questions that the Judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344 [6]: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 at 331 [139], 333-335 [146]-[152]. The question is one of "possibility (real and not remote), not probability": Ebner v Official Trustee in Bankruptcy at 345 [7].
In practice, the application of this test involves the following steps:
(a) the party seeking disqualification must identify what it is that might lead the judicial officer to decide the case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at 345 [8];
(b) the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at 345 [8].
Once the matter suggesting bias has been identified and the logical connection between that matter and the feared deviation has been articulated, the party seeking disqualification must establish that there is an ensuing apprehension of bias and that that apprehension is reasonable: Ebner v Official Trustee in Bankruptcy at 345 [8].
A judicial officer should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 504 [45]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352. However, the principle that a judicial officer should not disqualify him or herself too readily is not "a blanket that smothers the effect of disqualification where it has already arisen": Antoun v The Queen [2006] HCA 2; 224 ALR 51 at 60 [35] (Kirby J).
Where (as here, at least in part), prejudgment is relied upon, what must be firmly established is a reasonable fear on the part of the bystander that the decision-maker's mind is prejudiced in favour of a conclusion already framed, so that he or she will not alter that conclusion irrespective of the evidence or arguments presented. That reasonable fear must be firmly established because it is to be expected that judicial officers may have formed views or inclinations of mind with respect to particular subjects in the course of their professional careers, which will be put to one side in the determination of proceedings on the evidence and on the merits: CUR24 v Director of Public Prosecutions at [36].
It is necessary to keep firmly in mind the distinction between apprehended bias and actual bias. This is important given statements made by the Magistrate in his judgment of 9 May 2013 (emphasised at [75] above) and submissions made with respect to those statements.
As the test is objective, it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at 437 [33].
In a case of actual bias, the actual state of mind of the judicial officer is in issue. In a case of apprehended bias, the focus is on the apprehension of the bystander. The latter test is usually easier to satisfy: Spencer v Bamber [2012] NSWCA 274 at [16].
The actual thought processes of the judicial officer need only be enquired into in deciding whether the judicial officer has been actuated by actual bias: Ebner v Official Trustee in Bankruptcy at 345 [7]; Spencer v Bamber at [107]. Application of the apprehended bias test requires no prediction about how the judicial officer will in fact approach the matter: Ebner v Official Trustee in Bankruptcy at 345 [7]. This serves to explain why the existence of a judicial oath is not an answer to a claim of apprehended bias, although (as will be seen) it is a matter which the bystander may take into account.
As the rule is concerned with appearance of bias, and not the actuality, it is the perception of the bystander that provides the yardstick - it is the public's perception of neutrality with which the rule is concerned: British American Tobacco Australia Services Limited v Laurie at 331 [139].
The bystander may have regard to the cumulative effect of factors: AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236 at 254-255 [67]-[68]. Later statements may serve to reinforce an impression created earlier: Antoun v The Queen at 52 [2].
Similarly, it has been recognised that any statement by a judicial officer which qualifies, corrects, dispels or clarifies what has been said on a prior occasion, may be taken into account by the bystander, and may operate against a finding of apprehended bias: Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572, 587; Johnson v Johnson at 494 [14], 495 [18]. It has been said as well, however, that circumstances may exist where the appearance of bias is ineradicable: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 372.
The Plaintiff's Grounds of Appeal
The Amended Summons identified the following grounds of appeal:
"1 His Honour Magistrate Clisdell is disqualified from hearing the case on the grounds of apprehended bias as a result of comments made by him to The Australian newspaper.
2 His Honour Magistrate Clisdell erred in failing to disqualify himself on the basis that the evidence might cause a fair-minded lay observer to apprehend that his Honour Magistrate Clisdell might not bring an impartial and unprejudiced mind to the hearing of the Plaintiffs case.
3 His Honour Magistrate Clisdell applied the wrong legal test by asking himself whether the evidence could cause 'a fair-minded lay observer to conclude that I am incapable of bringing an open mind to a hearing and dealing with the matter on the evidence and applicable law'.
4 His Honour Magistrate Clisdell erred by taking into account the fact that he had taken an oath of office and his expressed belief in that oath.
5 His Honour Magistrate Clisdell erred by effectively treating the application as one which required proof of actual bias."
The Amended Summons complies with Rule 59.4 Uniform Civil Procedure Rules 2005 in that it specifies grounds relating to the claim for prerogative and declaratory relief, as well as the application for leave to appeal.
In effect, the first and second grounds contend that the Magistrate should have disqualified himself and that he erred in not doing so. Grounds 3, 4 and 5 contend that the Magistrate applied the wrong test on 9 May 2013 in the course of his reasons for refusing to disqualify himself.
I will return to these grounds later in the judgment.
Material Available to the Bystander
The reference to the bystander is no more than the personification of an objective test: Lee v Cha [2008] NSWCA 13 at [43].
The bystander is taken to be reasonable and is not entitled to make "snap judgments": Johnson v Johnson at 493-494 [12]-[14].
The test is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some Judges of the capacity or performance of their colleagues: Johnson v Johnson at 493 [12].
The bystander is taken to have knowledge of all the material and objective facts: Webb v The Queen [1994] HCA 30; 181 CLR 41 at 67, 73-74. The bystander is assumed to have sufficient knowledge to put the remarks of the Judge in their proper context: Lee v Cha at [45].
The bystander will have regard to the fact that the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the Judge] to discard the irrelevant, the immaterial and the prejudicial": Johnson v Johnson at 493 [12].
In State of Victoria v Psaila [1999] VSCA 193 at [47], Ormiston JA described the bystander in the following way:
"From time to time there has been reference to members of the public as constituting those fair-minded and informed observers but care should be taken lest that group should be confused with and confined to those whose knowledge of the world and of affairs generally is gained from the perusal of as many pages of a tabloid newspaper as can be read on a suburban train journey or from one minute 'sound bites' on television newscasts. The test, when expressed fully, requires the observer to be informed, not with the knowledge of Queen's Counsel, but at least with sufficient knowledge as to make an informed appreciation of questions such as impartiality and want of prejudice."
The bystander is not limited to considering material which is in the public domain. Accordingly, in the present case, the bystander will be taken to have knowledge of the Magistrate's letter to the editor dated 6 January 2013, the full interview between Ms Robinson and the Magistrate on 7 January 2013, the matters published in "The Australian" in the various articles to which reference has been made and what was said in Court on the occasions mentioned, being 5 February 2013 and 4 April 2013, and in the reasons for refusing the recusal application on 9 May 2013: Barakat v Goritsas (No. 2) [2012] NSWCA 36 at [58]-[63].
In addition, the bystander will be aware of a number of laws, practices and procedures to which reference will shortly be made: cf British American Tobacco Australia Services Limited v Laurie at 329 [132]; CUR24 v Director of Public Prosecutions at [57]; Duncan v Ipp [2013] NSWCA 189 at [154]-[156]; Groves, "The Imaginary Observer of the Bias Rule" [2012] 19 AJ Admin L 188 at 190ff. There was no real dispute at the hearing before me that the bystander should be taken to have knowledge of the range of matters referred to in this judgment.
In addition to the factual matters, the bystander will have regard to further matters as set out below.
Judicial Oath
It may be taken that the Magistrate swore a judicial oath in accordance with s.9 Oaths Act 1900, in the form of the judicial oath contained in Schedule 4 to that Act. In the course of his judgment on 9 May 2013, the Magistrate referred to the judicial oath.
It was submitted that the Magistrate's expressed concern that late pleas of guilty deprived an offender of a discount could have no connection with his ability to determine guilt in the Plaintiff's matter. It was submitted that, if the Plaintiff's partner did not appear to give evidence pursuant to subpoena, the prosecution would be dismissed. Even if the Plaintiff was to change his plea of guilty on the day of the hearing, it was submitted that it was difficult to see any connection between the Magistrate's comments and any sentencing result.
It was emphasised that the Magistrate, during the interview, demonstrated an awareness of the need to ensure that his feelings in respect of the legal practitioner did not impact upon his determination in any Court proceeding - he stated that he "would never allow a practitioner's behaviour to impact on a decision before the court".
Even if it was accepted that the Magistrate may have dismissed the disqualification application on 5 February 2013 in Police v Priscilla Hines a little too quickly, in circumstances where the application was not pressed and where no appeal was made against the decision, it was submitted that the Magistrate's comments on that day were of little relevance to the present application.
With respect to the specific errors complained of in Grounds 3, 4 and 5 in the judgment of 9 May 2013, it was submitted for the Attorney General that the Magistrate recited the test for apprehended bias, and relevant authorities, and that was the ruling which he made. To the extent that criticism was made of parts of the reasons where the language of actual bias was used, it was submitted that allowance should be made for what were ex tempore remarks made in a busy Magistrate's Court: Acuthan v Coates (1986) 6 NSWLR 472 at 479, 485.
Submissions of Plaintiff in Reply
The Plaintiff submitted that it was of no significance that the Magistrate's comments did not relate specifically to the Plaintiff. It was submitted that the Magistrate publicly made general comments about subjects on which he had to adjudicate.
Mr Hamill SC disputed the submission on behalf of the Attorney General that the Magistrate was merely speculating on the reason for not guilty pleas by ALS clients. Although acknowledging that the Magistrate, from time to time, used terms such as "Look I don't know", it was submitted for the Plaintiff that the critical evidence on this aspect was the Magistrate's reply "Well that is my view ..." in response to a question from Ms Robinson as to whether he was suggesting that the ALS gave advice in too many cases to clients to plead guilty (see [63] above). This statement was accompanied by the Magistrate's explanation of the "Bourke defence".
In response to the submission that the Magistrate's statement that the practitioner's behaviour would not affect decision making, the Plaintiff submitted that, amongst other things, the Magistrate had noted that Mr Lawrence "won't do himself any favours doing that" (at [61] above), which the bystander may take as a form of veiled threat.
In response to the submission that the Magistrate felt aggrieved by a type of allegation of racism, it was submitted that the articles did not give rise to allegations of racism against the Magistrate and that, as a matter of law, speculation upon the motives and feelings of the judicial officer is not relevant to a correct application for the test for apprehended bias.
It was submitted that the bystander might understand that the comments about ethics of ALS lawyers, the content of privileged communications, domestic violence in Aboriginal families and the inappropriateness of guilty pleas were made because the Magistrate believed them, and that he was angry about comments made in relation to other subjects.
With respect to submissions of the Attorney General concerning statements made in other judgments concerning domestic violence, and material in the Equality Before the Law Bench Book, it was submitted that these statements were made in the context of sentencing decisions of Courts, or in a form which did not bear upon issues relevant to a disqualification application on the ground of apprehended bias.
Applying the Test for Apprehended Bias to the Circumstances of the Present Case
The bystander would have regard to everything that the Magistrate said to the media, in writing and orally, together with the published articles and what was said in Court on the occasions identified in the evidence. In addition, the bystander will have in mind the other aspects to which reference has been made at ([103]-[129] above).
The bystander will have regard to the context in which all statements were made, against the background of the media articles which preceded the Magistrate's letter to the editor of 6 January 2013.
The bystander would keep in mind that the letter of 6 January 2013 and the interview of 7 January 2013 were considered statements by the Magistrate. They were not off-the-cuff comments delivered without an opportunity for reflection.
The issue for determination does not require a conclusion that what the Magistrate did was ill advised. That said, the bystander would note the contents of the Guide, and the rationale for it, and would note as well that the Magistrate proceeded to make comments to the media in the expectation that any advice which he sought would have been that he should not speak to the media at all. Comments made in such a climate may well be thought by the bystander to lack the calmness, detachment and objectivity which the Guide encourages, if an occasion arises for public statements to be made by a judicial officer.
The bystander will have regard to the cumulative effect of the statements made by the Magistrate. Although there are discrete areas which have been touched upon in submissions - domestic violence, the rate of pleas of not guilty and ALS representation - these topics become interrelated in the way in which events proceeded on and after 6 January 2013.
The bystander would consider that some of the language used by the Magistrate in the letter and (more particularly) in the interview, was vehemently and trenchantly expressed, and was not mild or circumspect: Newcastle City Council v Lindsay at [35]-[36] (see [25] above). Some examples include:
(a) "the crusading Mr Lawrence" in the letter (at [43] above);
(b) the "real problem ... is the issue that is seemingly off limits for discussion in Australia ... Aboriginal children and most women are subjected to constant and brutal domestic violence largely as a result of alcohol and drug abuse " in the letter (at [43] above);
(c) the "cycle of violence ensures that children are quickly displaced from home ... and fall into the all too familiar pattern of their drunken, drugged and violent parents. Thus the next crime wave is born" in the letter (at [43] above);
(d) "the implication that we don't care and are trying to do social engineering which is Stephen Lawrence's latest little challenge to us" (at [51] above);
(e) "the reason you're speaking to me is I haven't told anyone I'm going to speak to you, because I have no doubt that if I had indicated I was going to, they would have told me not to" (at [54] above);
(f) "I felt personally affronted by the mention of Bourke and Brewarrina and that attacked my integrity as a Magistrate and as a human being" (at [54] above);
(g) Ms Robinson said "you've obviously expressed anger yesterday that the ALS appears to be on a campaign about this" and the Magistrate replied "Absolutely" (at [56] above);
(h) "when my integrity is challenged I feel seriously affronted" (at [60] above);
(i) "there certainly appears to be [a campaign being run by the ALS concerning the magistracy]" (at [60] above);
(j) Mr Lawrence's "comments are a direct attack on the Magistracy" (at [60] above);
(k) "I think it's very unwise for practitioners to enter into a public debate where there's constant criticism of a particular group of Magistrates as Mr Lawrence has done. He won't do himself any favours doing that" (at [61] above);
(l) in response to Ms Robinson saying "And you said yesterday that it doesn't do clients any favours either", the Magistrate replied "Well yeah that's why I didn't really want to talk to you last night because I was a bit hot and bothered and ... I was in a hotel room, motel room, and it was 40 odd degrees" (at [62] above);
(m) in answer to a question whether the ALS gives advice in too many cases to clients "to plead not guilty when they're clearly guilty", the Magistrate replied "Well that is my view ..." (at [63] above);
(n) "when you've got a rate of not guilties as high as it was in Bourke and Brewarrina, you have to wonder whether there is some campaign to ... take on the police absolutely every time and clog the court lists" (at [63] above);
(o) volunteering and explaining the term "the Bourke defence" (at [63] above.
The bystander would note the article in "The Australian" on 18 January 2013 which reported the Magistrate as saying that the "ALS had 'declared war' on the magistracy in the northwest". The headline for that article (over which it may be taken the Magistrate had no control) declared "Magistrate attacks ALS over rash of not guilty pleas" (see [67]-[70] above).
The bystander would likely form the view that the Magistrate moved from a more guarded approach as the interview commenced to a less guarded one as the interview continued, involving the expression of strong views concerning the ALS.
Had the Magistrate's comments been confined to general comments about domestic violence, the bystander would not likely conclude in favour of the Plaintiff. Judicial statements in sentencing remarks concerning domestic violence in Aboriginal communities bear similarities to the comments made by the Magistrate, and the material contained in the Equality Before the Law Bench Book would also be pertinent to this issue. The fact that the Magistrate made his comments in a letter and an interview, and not in a court judgment, would not be an especially significant factor in the mind of the bystander.
However, the Magistrate proceeded to give a commentary concerning the ALS, and the approach of the ALS to defended matters, which the bystander would find troubling. That commentary, which was volunteered towards the end of the interview, did not seem to arise from the articles published before 6 January 2013. The bystander would likely form the view that these comments were gratuitous.
The bystander would be aware of the ethical obligations of defence solicitors under the Revised Professional Conduct and Practice Rules (see [125]-[128] above). The bystander would form the view that the Magistrate appeared to be expressing a view (with some qualification) concerning this matter, based upon his own observations, that conclusion being adverse to the ALS.
The bystander would be troubled by the peremptory rejection of the apprehended bias application on 5 February 2013, accompanied as it was by a barbed comment concerning the ALS. Although the application that day did not involve the Plaintiff, it was an application made in the context of a domestic-violence related charge, and was capable of shedding light upon the approach which might be brought to bear in future disqualification applications made to the Magistrate by the ALS on the same grounds.
The refusal to entertain submissions in support of a disqualification application may be taken as an unwillingness to entertain arguments advanced by the ALS: AJH Lawyers Pty Limited v Careri at 254-255 [68]. To indicate a view, in a peremptory way, when informed of an application may reinforce an impression which had been created earlier: Antoun v The Queen at 52 [2]. If a judicial officer refuses to listen to argument in support of an application to recuse, then there is likely to be an error which may justify the intervention of the Supreme Court because of a reasonable apprehension that the judicial officer may not bring an impartial mind to the matter: Gurung v R [2012] NSWCCA 201 at [47].
The fact that the Magistrate proceeded to hear and determine the disqualification applications made on 2 April 2013 and 9 May 2013 disclosed an approach other than peremptory refusal. However, the context of those decisions, and in particular that on 9 May 2013 concerning the Plaintiff, did not indicate any real stepping back from the unduly robust approach demonstrated on 5 February 2013.
The bystander would have regard to the matters stated by the Magistrate in his reasons for refusing to disqualify himself on 9 May 2013, and the fact that there was no qualification or modification of the statements made by the Magistrate, nor of the impressions which may flow from those statements.
The Magistrate in this case said nothing to dispel or qualify what he had said before. In circumstances where detailed written submissions were placed before the Magistrate on the disqualification application, together with an affidavit attaching all relevant documentary material, the bystander would conclude that there was ample opportunity for the Magistrate to qualify or explain, in the manner referred to in the authorities, his statements made on 6 and 7 January 2013 and his comments in Court on 5 February 2013. The absence of any words of qualification, clarification or explanation would be a most significant factor in the mind of the bystander in this case.
The bystander would have regard to the fact that the Magistrate had taken a judicial oath. The relevance of that on an apprehended bias application, however, is as mentioned earlier (at [103]-[108]). It does not and cannot constitute a complete answer to a claim of apprehended bias.
The Magistrate's statements did not relate directly to the Plaintiff or any witness who was likely to be called at the hearing of his matter. However, a number of the Magistrate's critical comments did relate directly to the ALS, the Plaintiff's legal representative. Although the allegations against the Plaintiff do not assert the actual use of physical force by him, the charge alleges breaches of conditions of an apprehended domestic violence order. The term "domestic violence offence" in ss.4 and 11 Crimes (Domestic and Personal Violence) Act 2007 includes an offence under s.14 of contravening an apprehended domestic violence order. The bystander would identify a sufficient link between the general topic of domestic violence in Aboriginal communities and the circumstances of the charge against the Plaintiff.
The bystander would have regard to the Magistrate's judicial oath, judicial statements concerning domestic violence in Aboriginal communities, the Fernando principles and the ethical obligations upon defence lawyers, together with all that had been said by the Magistrate to the media and in Court. The bystander would also note the absence of any qualification or explanation by the Magistrate in the judgment of 9 May 2013. The cumulative effect of these matters would be noted.
The Plaintiff has identified what it is that might lead the Magistrate, in the bystander's mind, to decide the Plaintiff's case other than on its legal and factual merits. The first step in Ebner v Official Trustee in Bankruptcy has been established (see [79] above).
The Plaintiff has articulated a logical connection between the statements of the Magistrate referred to in evidence and the feared deviation from the course of the Magistrate deciding the Plaintiff's case on the merits. The feared deviation arises as the Plaintiff is an Aboriginal man, charged with a domestic violence offence to which he has pleaded not guilty and, in relation to which, he is represented by the ALS.
The two steps referred to at [79] above having been satisfied, it is necessary for the Plaintiff to establish that there is an ensuing apprehension of bias and that the apprehension is reasonable.
Given the unusual accumulated statements and events relied upon in this case, and the strength of the language used by the Magistrate, the conclusion should be reached that the bystander might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the questions that his Honour would be required to decide in the criminal prosecution against the Plaintiff. This conclusion is reached as a matter of real and not remote possibility, and not probability (see [78] above).
I am satisfied that the first and second grounds contained in the Amended Summons have been established.
The third, fourth and fifth grounds focus upon the Magistrate's reasons delivered on 9 May 2013. Although it is appropriate to make some allowance for the fact that the Magistrate delivered an oral judgment on that day, it should also be kept in mind that the judgment was based largely upon that delivered on 4 April 2013 in the proceedings Police v Jai Stephens. The Magistrate did include additional statements in the judgment concerning the Plaintiff's application. However, the judgment was not in the nature of a complete ex tempore judgment, delivered on the day of the hearing after oral submissions had been made. The Magistrate had, in advance, the Plaintiff's written submissions and affidavit, as well as material which had been utilised in the judgment of 4 April 2013.
It remains necessary to fairly read the judgment of the Magistrate of 9 May 2013 in its entirety. There is significant internal tension which suggests an application based upon actual bias and not apprehended bias, accompanied by statements from authorities relevant to apprehended bias (see the emphasised parts at [75] above).
Significant operative parts of the Magistrate's reasons reveal language suited to a claim of actual bias. Those statements were irrelevant where the claim was one of apprehended bias.
Grounds 3 and 5 should be upheld.
However, Ground 4 has not been made out. Although the judicial oath is not an answer to a claim of apprehended bias, the fact that the Magistrate had taken a judicial oath remained relevant as a factor known to the bystander in determining whether apprehended bias has been demonstrated.
Appropriate Relief
The Plaintiff has established error of law which, in the circumstances of the case, constitutes jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 573-574 [71]-[73], 578 [87]-[89].
The Magistrate's refusal to disqualify himself on 9 May 2013 does not appear to constitute an interlocutory "order" so as to come within the terms of s.53(3) Crimes (Appeal and Review) Act 2001. It has been held that a Judge's refusal to disqualify him or herself does not constitute an interlocutory judgment or order for the purpose of s.5F Criminal Appeal Act 1912: R v Rogerson (1990) 45 A Crim R 253 at 255; R v Reid [2004] NSWCCA 301; 148 A Crim R 425 at 428-429 [12]-[15]; Gurung v R at [41]-[44]. See also Barakat v Goritsas [2012] NSWCA 8 at [10]-[16].
Although the Court will ordinarily decline to exercise its jurisdiction to grant relief under s.69 where a statutory appeal is available (Meagher v Stephenson (1993) 30 NSWLR 736 at 738-739; Hill v King (1993) 31 NSWLR 654 at 656, 658-659), it remains open to the Court to grant relief under s.69 in an appropriate case: Director of Public Prosecutions v O'Conner [2006] NSWSC 458; 181 A Crim R 294 at 310 [45].
In the circumstances of the case, where I am not satisfied that the statutory appellate avenue is available, the appropriate course is to grant prerogative relief, in the form of relief in the nature of prohibition under s.69 Supreme Court Act 1970. This is a form of relief which is available where a successful claim of apprehended bias is made with respect to a judicial officer in an inferior court: Lee v Cha at [28]ff.
Declaratory relief is not necessary given the effectiveness of prerogative relief as the appropriate remedy.
Some Closing Observations
Before moving to make final orders, some further observations are appropriate.
Firstly, at a human level, the Magistrate's upset at the publication of articles in "The Australian" prior to 6 January 2013 is understandable. It is not for this Court to attempt to determine the correctness or otherwise of the public statements made in those articles. However, the making of public statements by persons associated with the ALS was likely to give rise to controversy involving the administration of justice. Nothing said in this judgment should be taken as approval or acceptance of the statements made by the ALS, as reported in "The Australian" in October 2012 and January 2013.
That said, the course taken by the Magistrate in becoming a strong public advocate in the media, commenting on a wide range of topics extending beyond the published articles, illustrates the difficulties which may occur where the approach advised in the Guide is not adopted. The restraints that come with the acceptance of judicial office pointed strongly here in the direction of compliance with the Guide. The dangers referred to by the High Court of Australia in Epeabaka (at [15] above) have come to pass in this case.
Secondly, this Court is not in a position to express any view with respect to the plea of not guilty rate for ALS represented defendants in north-west New South Wales.
The ethical obligations of legal representatives appearing for all defendants in the criminal courts are well known (see [124]-[129] above). The obligation of a legal practitioner in these circumstances is to take early instructions concerning the charge in question and, in that context, to comply with the requirements under the Revised Professional Conduct and Practice Rules to explain to the client the consequences of an early plea of guilty. Rule A.17B is intended to ensure that the client makes an informed decision as to plea. If the matter is to proceed as a defended hearing, the defendant's legal representatives must also comply with the obligations under Rules A.15A and 20.
These Rules serve to ensure the proper use of Local Court time to determine the real issues in dispute in the proceedings: Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; 222 A Crim R 106 at 121-122 [50].
This obligation is emphasised with respect to summary hearings in the Local Court for domestic violence offences. The Chief Magistrate has issued Local Court Practice Note Crim 1, which provides for case management of criminal proceedings in the Local Court: ss.26(2)(a) and 27 Local Court Act 2007. Clause 10 of the Practice Note relates expressly to domestic violence proceedings. The objects of paragraph 10 include ensuring "that, where appropriate, pleas of guilty are entered at the first available opportunity and if a plea of not guilty is entered that a hearing occurs with expedition" (clause 10.2(a)). A time standard is nominated, proposing a hearing within three months of a charge being laid (clause 10.2(b)). Provision is made for streamlining any hearing, with certain specific steps to be taken where a defendant is legally represented (clause 10.3).
These provisions give effect, as well, to a statutory object of the Crimes(Domestic and Personal Violence) Act 2007 - to ensure that "access to courts is as safe, speedy, inexpensive and simple as is consistent with justice" (s.9(2)(b) at [113] above).
Given that all persons for whom the ALS appears have the advantage of legal representation, the statutory and procedural requirements for domestic violence hearings ought be met, with legal practitioners complying fully with applicable ethical requirements.
Costs and Orders
The Plaintiff has succeeded in his claim for relief. The First and Second Defendants have submitted to the orders of the Court, except as to costs. In accordance with usual practice, no order for costs would be made against either of those Defendants.
In the event that the Amended Summons was to be dismissed, it was noted that the Attorney General did not seek an order for costs. It was submitted for the Attorney General that, if the Court determined to grant relief to the Plaintiff, no costs order should be made against the Attorney General, in circumstances where the Attorney has intervened to assist the Court by ensuring that there was a proper contradictor.
My prima facie view is to adopt this approach, and to make no order as to costs of the Amended Summons. However, I will hear submissions should the Plaintiff wish to seek a different order.
I make the following orders:
(a) pursuant to s.69 Supreme Court Act 1970, I make an order in the nature of prohibition precluding Magistrate Roger Clisdell from hearing the proceedings Police v Ryan Gaudie;
(b) I will hear submissions with respect to the costs of these proceedings.
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Decision last updated: 26 September 2013
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