The Queen v Albert - [2022] NTSC 62

CITATION:The Queen v Albert [2022] NTSC 62
PARTIES:THE QUEEN

v
ALBERT, Gary Aaron

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22123642
DELIVERED:  4 August 2022
HEARING DATE:  4 August 2022
JUDGMENT OF:  Kelly J

CATCHWORDS:
Application for judge to recuse self from hearing plea on charges of domestic violence against his domestic partner – Applicant a repeat domestic violence offender – application based on remarks by judge in newspaper article on domestic violence against Aboriginal women – Held applicant has not established a logical connection between the general remarks made about domestic violence against Aboriginal women and the asserted risk that the judge might not be seen to bring an open and unbiased mind to assessing relevant factors in sentencing the defendant – recusal application refused
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; Emitja v The Queen (2016) 39 NTLR 159; Johnson v Johnson [2000] HCA 48, applied
Amagula v White [1998] NTSC 60; Karadaghian v Big Beat (Australia) Pty Ltd [No3] [2014] NSWSC 1691; Lee v Cha [2008] NSWCA 13; Livesey v New South Wales Bar Association (1983) 151 CLR 288; R v Hillen [2019] NTSC 27; R v Nawirridj (22000274); R v Wanambi (22019925 and 22104823); R v Watson; ex parteArmstrong (1976) 136 ALR 248, referred to
REPRESENTATION:
Counsel:
Crown:T Grealy
Accused:C Dane
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Territory Criminal Lawyers
Judgment category classification:    B
Judgment ID Number:  Kel2219
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Albert [2022] NTSC 62

No. 22123642

BETWEEN:

THE QUEEN

AND:

GARY AARON ALBERT

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 11 August 2022)

This is an application by the defendant for me to recuse myself from hearing the defendant’s plea on charges of domestic violence against his domestic partner. I dismissed the application on 4 August 2022 and indicated that I would give reasons at a later date (within a week). These are those reasons.
I am told by defence counsel that the defendant is a recidivist domestic violence offender with an extensive history of violence against women. His history contains 34 prior entries for assaults, almost all of which appear to have been against women. He has a poor history of compliance with Domestic Violence Orders, and with court orders more generally. He is pleading guilty to eight further domestic violence related offences against his domestic partner committed over a period of months. Four of these offences involve the use of a weapon; two counts relate to choking the victim and the offences are said to be underpinned by an element of coercive control. Both the defendant and the complainant are indigenous.
The test for apprehended bias is that set out by the High Court in Livesey v New South Wales Bar Association,[1] namely whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question involved in the case.[2] This has been affirmed more recently in Johnson v Johnson.[3]
It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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 v Official Trustee in Bankruptcy[4] the plurality said:
Its application [ie the application of this principle] requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
The application is based on a report in The Weekend Australian of 3 June 2022 of an interview I gave to a journalist from The Australian, Amos Aikman, in which I said the following things (not necessarily in this order) in answer to questions by the journalist.
·‘Women in the bush are trapped in an epidemic of extreme violence brought about by intergenerational abuse and disadvantage and a culture that protects perpetrators before victims.’
·‘[T]he problems are so severe that in some cases women who had tried to escape had been effectively kidnapped and dragged to tiny outstations to face beatings and rape.’
·‘[Other women have] endured years of often drunken, jealous violence inflicted by “hopeless” men, only to be killed in the company of bystanders who did not try to help.’
·‘It’s a total epidemic of domestic violence.’
·‘I just want people to know what’s happening to Aboriginal women.’
·‘The mirror image of [vast numbers of Aboriginal men in prison] is the vast numbers of Aboriginal women in the morgue and the hospitals.’
·‘Women [are] confronted in their communities by culture not just of silence but of actively silencing victims and [are] usually powerless to help themselves.’
·‘These are not self-destructive women; these are women who can’t escape from a terrible situation… These are not people who are complicit in their own victimhood. These people are doing their best to protect themselves, and they can’t.’
·‘The evidence is so clear that it can’t really be denied – of a tendency in some communities to prioritise the interests of male offenders over the interests of female victims… There is not just a culture of silence; there is an active silencing or attempt to silence Aboriginal complainants, women who have been the victims of violence from men.’
·‘Traditional Aboriginal culture appear[s] to have some elements of men having the right to discipline their wives… and a cultural component of revenge.’
·‘Offenders often [do] not believe they have erred, even after sentencing.’
·‘[S]ome men [think] they [have] “ownership of a woman – that she has no right to say no, and she has no right to leave when she wants to.’
Although not mentioned in the defendant’s submissions, I was also quoted as talking about the causes of the “epidemic of violence” as including “society’s failure to fix problems such as unemployment, passive welfare dependency, substance abuse and intergenerational trauma”. (I also mentioned inadequate housing, inadequate access to education, health and mental health services and the “rivers of grog” that wreck such havoc in some Aboriginal communities, but the fair minded observer would only know what was printed in the article.)
The defendant points out, correctly, that it is uncommon for judges to give interviews.
The defendant contends that a number of matters arising out of that interview would lead a fair minded lay observer to apprehend that I might not bring an open and unbiased mind to sentencing the defendant.
First it is contended that the comments I made went beyond general comments on domestic violence and what is typically found in sentencing remarks. Some examples of sentencing remarks were given in the defendant’s written submissions. In oral submissions, defence counsel contended that the words used in the article were “strong and full of real weight and gravity” and gave “graphic moving examples in a lexicon not typically seen in sentencing remarks”.
The defendant fairly conceded that in the case of an application in relation to a judge’s comments, the reasonable lay bystander is assumed to have sufficient knowledge to put the remarks of the judge in their proper context.[5]
The Crown opposes the application. The Crown contends that judges are not at liberty to decline to hear cases without good cause and that objections to a particular judge sitting should not prevail unless based on substantial grounds.[6] The Crown also relies on the following remarks by Graham AJ in R v Hillen[7] quoting Rothman J in Karadaghian v Big Beat (Australia) Pty Ltd [No 3]:[8]
The legitimacy of the institution and the impartiality of the administration of justice also depends upon the proposition that parties ought not be able to pick and choose the judges who sit on any particular case. That is a matter for the administration of the court.
As a consequence, notwithstanding that the easier option for a judge dealing with a recusal application is to grant it and allow another judge to preside, it is necessary that such an application be dealt with on the basis of principle; that where the application of the principles do not disqualify a judge from sitting, the judge continue to preside in order to ensure that “judge shopping” does not undermine the independence, impartiality and legitimacy of the justice system.
The Crown contends that the focus of the article is on the plight of women in indigenous communities with particular emphasis on the cultural contribution to the victimisation of indigenous women. It is not commentary on the sentencing practices in relation to male offenders, “nor does it juxtapose male offenders as the sole cause of the problem”. The commentary goes no further than to highlight issues raised by all Courts at all levels in the Northern Territory on a regular basis. The Crown quotes the following examples:
(a)the coronial decision of Coroner Cavanagh in the Inquest into the deaths of Wendy Murphy and Natalie McCormack[9] (quoted in the article) in which his Honour said:
1.Domestic violence is a contagion. In the Aboriginal communities of the Northern Territory it is literally out of control. As a Local Court Judge I witness it most days. As the Coroner I see the terrible lives these women endure and their horrifying deaths.
2.To cast light on the true horror I determined to hold an inquest into two such deaths…
(b)the observations of Kearny J in Amagula v White[10] adopted by the Court of Appeal in Emitja v The Queen[11] and regularly repeated in subsequent sentencing remarks:
The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief that it is acceptable for men to bash their wives in some circumstances; this belief must be erased.
(c)remarks by Grant CJ in the case of R v Wanambi:[12]
As the Crown has said it its submissions, this court has repeatedly said that Aboriginal women, children and the weak must be protected against personal violence so far as it is within the power of the courts to do so in the legitimate use of the sentencing processes.
The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced. There is a fairly widespread belief, as far as I can see, amongst some Aboriginal men that it is acceptable for men to bash their wives in some circumstances, or to otherwise impose physical chastisement on them. That is a belief which must be erased. Those comments have been made by this court for some decades now, and still that belief persists. Such conduct must be dealt with in a manner which reflects the serious nature of offending like that, and its corrosive effect on wellbeing in Aboriginal communities such as your community of Galiwinku.
(d)remarks by Blokland J in R v Nawirridj:[13]
This is yet another case of an Aboriginal woman being killed by her partner, who in the lead-up to the offending has manifested a controlling nature. It is difficult to know why. It is difficult to see how your attitude to women and relationships will be changed. While you are not completely without prospects, much work needs to be done with you while you are in custody, and work needs to be done by you to unravel your very difficult personality in that regard. With incarceration rates of Aboriginal people being so high and previous sentences of imprisonment in this case and other like cases not appearing to reduce the rates of violence to women, it is to some extent regrettable that the only option is more time in prison. But in this case, it really is the only option. This time, you killed her. You do not deserve to walk among us for some time.
In relation to the first contention by the defendant, so far as the submission concerns the language used and the tone of the comments, I agree that the remarks are not expressed in the same tone that one would be apt to find in sentencing remarks. The defence submission that sentencing remarks require neutrality of language can be accepted only in part, given the above extracts. The defence submission that in sentencing remarks, the Court is required to “come back to principle” (ie sentencing principles) and that the remarks must relate to the specifics of the case, can be accepted in full. However, the interview was not equivalent to the imposition of a sentence and the remarks made in that process. In the interview I was making general remarks about a terrible social problem. Different registers are appropriate on different occasions and for different purposes. It has not been suggested that my own sentencing remarks have, in the past, been over-emotional or intemperate or other than appropriate for the purpose. The fair minded lay observer must be taken to be aware of the fact that a different tone may appropriately be adopted in an interview on the general topic of domestic violence from the tone appropriate in sentencing remarks. The fair minded observer must also be taken to be aware that I have been sentencing domestic violence offenders (including repeat domestic violence offenders) for over 12 years and that no criticism is made in the defendant’s submissions of the tone of my sentencing remarks during that period of time.
So far as the complaint is that the substantive remarks went beyond general comments on domestic violence, I reject that submission. The remarks which I made and which were quoted in the article, were general comments about domestic violence against Aboriginal women victims in the Northern Territory. Importantly, the remarks were general in the sense that they did not refer specifically to the defendant about whom I know nothing other than what has been communicated to me by defence counsel and who I had never heard of at the time of the interview. Further, I agree with the Crown submission that the general comments are unremarkable, similar observations being regularly made in Court decisions (including Court of Criminal Appeal decisions) and sentencing remarks.
The second contention by the defendant is that I referred to specific examples of the worst type of domestic offending in the plural, suggesting that the Court had seen numerous examples of cases of that nature including that:
•‘in some cases women who had tried to escape had been effectively kidnapped and dragged to tiny outstations to face beatings and rape’;
•‘[other women have] endured years of often drunken, jealous violence inflicted by “hopeless” men, only to be killed in the company of bystanders who did not try to help.’
To be clear, I used the plural in referring to cases of this nature because the Court has seen more than one case of each of these kinds.
The third contention by the defendant is that my use of the word “culture” might be interpreted by a fair minded lay observer to be a comment on traditional Aboriginal culture rather than a domestic violence culture that may exist in some communities, and that “the reasonable bystander might reason that the offender’s culture, however defined, might be used against him in an impermissible way in the sentencing exercise”. How, is not specified.
It is tolerably clear from the article that I was talking about a culture in some communities that tolerates domestic violence, prioritises the interests of male perpetrators over those of female victims, and actively tries to silence women victims and also that there is a traditional Aboriginal cultural component to this culture of domestic violence. Importantly, defence counsel prefaced his submissions by saying, “No criticism is made of the remarks and no challenge is made to their accuracy.” That being so, the submission amounts to a contention that the fact that I spoke accurately about a culture of toleration of domestic violence in some Aboriginal communities which had a component of traditional Aboriginal culture to it (in addition to other complex causes which I also described) might lead a fair minded lay observer to fear that I might use the defendant’s culture (however defined) against him in some unspecified unfair way.
That submission cannot be accepted. It might have had some force if I had made untrue or inaccurate remarks and addressed those remarks about all people of the defendant’s cultural background (however defined).
In Ebner v The Official Trustee in Bankruptcy,[14] the High Court emphasised that the party seeking disqualification (or recusal) must not only identify what it is that might lead the judicial officer to decide the case other than on its legal and factual merits,[15] but also articulate the logical connection between that matter suggesting bias and the feared deviation from the course of deciding the case on its merits. I agree with the Crown contention that the defendant has made no logical connection between what is agreed to have been an accurate statement about some Aboriginal communities and a possible deviation on my part from deciding this particular case – ie sentencing the defendant on agreed facts – on its merits.
I also agree with the Crown contention that in sentencing the accused, the Court will necessarily have to apply the ordinary principles of sentencing, which will give rise to an appeal if there is an error in the approach. The ordinary observer would no doubt understand the basic principles of sentencing and the possible recourse to the appellate courts.[16]
The defendant contends that “in sentencing the defendant this Court will be required to weigh the significance of all factors, including any mitigating circumstances, in considering questions such as whether any reports are ordered, the length of time the applicant will ultimately serve in prison, and whether there is to be any parole period granted to him. This will be a complex task involving the balancing of conflicting considerations.” So much may be accepted. However, this is insufficient to establish a logical connection between the general remarks I made about domestic violence against Aboriginal women and the asserted risk that I might not be seen to bring an open and unbiased mind to assessing these factors in arriving at a just sentence for the defendant.
Fourth, the defendant relies on the fact that I became emotional (teary) during the course of the interview. To my extreme embarrassment, this was reported variously as “she wept” and “she broke down”. I do not propose making any comment on the accuracy or otherwise of those descriptions: the fair minded observer would only know what was written in the article.
The defendant contends that “a fair minded bystander might reason that a judge so moved by the subject matter over which they are presiding might not bring an open and unbiased mind to bear on the questions to be determined,” or “may pre-judge the person charged with domestic violence”.

That submission also cannot be accepted. The subject matter over which I am presiding in this case is sentencing the defendant for the specific offences to which he intends pleading guilty on the facts as agreed, taking into account the objective facts, the surrounding circumstances and the subjective circumstances of the defendant.
The defendant has not identified what questions there are to be determined in this case that a reasonable bystander might apprehend I might not decide impartially because I became emotional about the fact that many Aboriginal women in the NT have been victims of (often horrific) domestic violence.
Is it suggested that a fair minded observer might apprehend that I might not act impartially in assessing the defendant’s prospects of rehabilitation, or in considering any mitigating factors personal to the defendant? I can see no logical connection between the task of assessing such matters and the fact that many other Aboriginal women in the NT have been victims of domestic violence or the fact that I became emotional when speaking of it, and hence no reason why a fair minded observer might apprehend that I might not bring an open and unbiased mind to that exercise.
This is not a case in which there is a potential range of opinions about the general subject matter under discussion such as might be the case with, say, drug related offences, in which a judge who expressed strong views about the policy issues around the existing drug laws (one way or the other) might possibly, potentially, be seen to be pinning his or her colours to the mast in some impermissible way. It is inconceivable that there might be judges who are in favour of domestic violence or who would be totally unmoved by its general seriousness and prevalence and the plight of the victims. Nor can it be ignored that some people are more easily moved to tears than others.
Finally, there is the additional consideration that around a quarter of the work done by this Court involves cases of domestic violence, the vast majority of them involving male Aboriginal offenders and female Aboriginal victims. Many of these are repeat offenders. Many, if not most, are guilty pleas. If I were to allow this application, it would be tantamount to saying that I should be disqualified from hearing pleas by repeat domestic violence offenders – at least where the victim is an Aboriginal woman and the offender an Aboriginal man. I do not think this would be justified for the reasons already given. One reason why judges should not be over-ready to disqualify themselves from hearing a matter (or a class of matters) simply because an application has been made, when a proper basis for recusal has not been made out, is that it would inevitably lead to an increased work load for other judges with an already substantial work load. As Rothman J said in Karadaghian:
Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness avoiding the relinquishment of their duties which will then necessarily fall to another judicial officer for whom the task may be no more congenial. Such relinquishment will also involve costs delay and inconvenience to parties who are otherwise entitled to have the decision of the judicial officer appointed to their case.[17]
The application is dismissed.
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[1] (1983) 151 CLR 288

[2] Ibid at p 293 approving the test laid down in the majority judgment in R v Watson; ex parteArmstrong (1976) 136 ALR 248 at p 258-263.

[3] [2000] HCA 48 at [11]

[4] [2000] HCA 63 at [8]

[5] Lee v Cha [2008] NSWCA 13 at [45]; Defendant’s submissions para [8]

[6]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [19]

[7] [2019] NTSC 27 at [42]

[8][2014] NSWSC 1691 (“Karadaghian”) at [25] and [26]

[9] [2016] NTLC 024

[10] [1998] NTSC 60, under “Conclusions (d)”

[11](2016) 39 NTLR 159

[12] (22019925 and 22104823), 2 March 2022

[13] (22000274), 16 December 2021.

[14] [2000] HCA 63

[15] Supra at [8]

[16] Crown submissions para [23]

[17][2014] NSWSC 1691 at [23](e)