Voller v Northern Territory of Australia
[2017] NTSC 78
•20 October 2017
CITATION:Voller v Northern Territory of Australia [2017] NTSC 78
PARTIES:VOLLER, Dylan
v
NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:16 of 2016 (21615113)
DELIVERED ON: 20 October 2017
DELIVERED AT: Darwin
HEARING DATES: 12 and 18 October 2017
JUDGMENT OF: BARR J
CATCHWORDS:
COURTS AND JUDGES – BIAS – Reasonable apprehension of – Pre-judgment – Application by plaintiff for judge to disqualify himself – Civil proceedings alleging thirteen incidents of assault and battery – One incident previously the subject of a police prosecution against a Juvenile Justice Officer for assault – Magistrate had found officer not guilty – Judge then dismissed a prosecution appeal against not guilty verdict – Judge made factual findings based on assessment of CCTV film of incident – No credit findings made in relation to plaintiff – Judge’s findings as to level of force used by officer contrary to allegation in plaintiff’s statement of claim – Plaintiff relying at trial on evidence of expert’s assessment of CCTV film of incident – Such expert evidence not adduced in earlier prosecution –Possibility that expert evidence might result in different factual findings to those made in previous appeal – Different evidentiary context – Held no proper basis to infer that that fair-minded lay observer might reasonably apprehend that judge would not approach consideration of the incident otherwise than with an impartial and unprejudiced mind – Application dismissed.
Livesey v NSW Bar Association (1983) 151 CLR 288; Johnson v Johnson 201 CLR 488; Re JRL, ex parte CJL (1986) 161 CLR 342; Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302; R v Burrell (2007) 175 A Crim R 21, followed
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; Kirby v Centro Properties Limited and others (No 2) (2011) 202 FCR 439, distinguished
Edwards v Tasker [2014] NTSC 56, referred to
REPRESENTATION:
Counsel:
Plaintiff:P Blacket SC, C Goodhand
Defendant:D McLure SC
Solicitors:
Plaintiff:O’Brien Solicitors
Defendant:Solicitor for the Northern Territory
Judgment category classification: B
Judgment ID Number: Bar1712
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINVoller v Northern Territory of Australia [2017] NTSC 78
No. 16 of 2016 (21615113)
BETWEEN:
DYLAN VOLLER
Plaintiff
AND:
NORTHERN TERRITORY OF AUSTRALIA
Defendant
CORAM: BARR J
REASONS FOR DECISION
(Delivered 20 October 2017)
Introduction
The plaintiff has made an application that I disqualify myself from hearing his case, on the grounds of apprehended bias. He is claiming general damages, aggravated damages and exemplary damages as well as interest and costs arising out of a number of alleged incidents which occurred at Aranda House, a juvenile detention centre in Alice Springs; at another detention centre in Alice Springs; at the Don Dale Juvenile Detention Centre at Berrimah, and the (adult) Darwin Correctional Centre.
Thirteen incidents of assault and battery are pleaded in the Further Amended Statement of Claim filed 16 December 2016. The proposed Second Further Amended Statement of Claim pleads the same 13 incidents and, in addition, a number of periods of false imprisonment.[1] The alleged incidents took place in the period 20 October 2010 to 3 April 2016.
One incident of alleged assault and battery is pleaded in both the Further Amended Statement of Claim and the proposed Second Further Amended Statement of Claim (together referred to as “the Statements of Claim”) as the “the third assault and battery”. The incident occurred relatively early in the period, on or about 9 December 2010, at Aranda House, Alice Springs.
Paragraph 14 of each of the Statements of Claim alleges that four unidentified Youth Justice Officers at Aranda House assaulted and battered the plaintiff by unnecessarily engaging the “at risk” procedure against the plaintiff, stripping the plaintiff naked with force, onto a mattress on the floor of a cell, causing the plaintiff bodily harm, pain, distress, discomfort and imminent fear for his safety.
Paragraph 15 of each of the Statements of Claim alleges that the force used by the unidentified Youth Justice Officers towards the plaintiff was not justified in the circumstances and was excessive use of force in the circumstances.
Paragraph 16 of the Statements of Claim alleges that, as a result of the matters set out in paragraphs 14 and 15, the plaintiff was unlawfully assaulted and battered by the unidentified Youth Justice Officers.
Although the pleading refers to the Youth Justice Officers as “four unidentified YJOs”, it is common ground that paragraphs 14, 15 and 16 of the Statements of Claim refer to an incident which was the subject of a police prosecution against Derek Tasker, one of the Youth Justice Officers, for aggravated assault. It is unclear why Mr Tasker is described in the pleading as “unidentified”, but nothing turns on that.
The prosecution case against Mr Tasker for aggravated assault was heard by a magistrate in the Alice Springs Court of Summary Jurisdiction on 5 and 6 December 2013. The magistrate reserved his decision, but on 5 February 2014, he found Mr Tasker ‘not guilty’. The magistrate published his reasons.[2]
In the proceedings before the magistrate, there was no contest that Dylan Voller had been properly placed “at risk” prior to the alleged assault. The magistrate said in his Reasons that he felt obliged to assess the evidence on the assumption that Dylan Voller had been properly declared to be “at risk” before Mr Tasker entered his cell and the alleged assault (and battery) took place. Otherwise, his Honour said, it would have been unfair to Mr Tasker.[3]
In my subsequent appeal decision, I explained that the magistrate had proceeded on the basis that Dylan Voller had been properly placed “at risk” prior to the alleged assault because that was the prosecution case or was an assumed (and uncontested) fact in the prosecution case.[4] I did not make any finding as to whether or not Dylan Voller had been properly placed “at risk” prior to the alleged assault and battery.
I turn to consider the facts of the alleged assault, as previously in evidence in the Court of Summary Jurisdiction, and in the appeal to the Supreme Court.
Dylan Voller was considered “at risk” of self-harm because he had threatened self-harm. This triggered the requirement that all his clothing be removed and that he wear a non-rip gown. He refused to undress and put on the non-rip gown offered to him. Shortly after, Mr Tasker and two other persons entered Dylan Voller’s room to remove his clothing. Mr Tasker took Dylan Voller to ground and another person removed his clothing. The officers left the room, leaving Dylan Voller with a non-rip gown.
A significant issue in the hearing before the magistrate was the nature and extent of force used by Mr Tasker to ground stabilise Dylan Voller. The prosecution alleged that the force used by Mr Tasker was excessive, and therefore not authorised by law and therefore an unlawful assault. The prosecution argued in addition that the force engaged in was not “reasonably necessary force” since it constituted “physical violence”, and “physical violence” was expressly prohibited by s 153(3) Youth Justice Act.
The magistrate found that it was reasonable for Mr Tasker to ground stabilise Dylan Voller. The magistrate did not consider that the degree of force used to take Dylan Voller to ground was unreasonable. His Honour was not satisfied that the prosecution had proved beyond reasonable doubt that the respondent had applied unreasonable and/or unnecessary force.
The magistrate’s finding of not guilty was the subject of a prosecution appeal which was heard by me in June 2014. On 1 December 2014, I dismissed the appeal and published reasons.[5]
In determining the appeal, I viewed, several times, a disc containing CCTV footage of the incident involving Mr Tasker and Dylan Voller. I considered the magistrate’s description and assessment of that evidence, and substantially agreed with the magistrate. I added some further observations of my own. In particular, I described Mr Tasker approaching Dylan Voller front-on and cupping the palm and fingers of his right hand around the left side and to the back of Dylan Voller’s head, at about ear level, while at the same time using his thumb to put pressure on Dylan Voller’s left jaw to push Dylan Voller’s face to his right (Mr Tasker’s left). I expressed agreement with the magistrate’s observation that the actions of Mr Tasker at that point were consistent with preventing Dylan Voller from spitting at him. I further observed, in relation to the series of actions by which Mr Tasker took hold of Dylan Voller and took him to ground, that the manoeuvre was “reasonably skilful, and swiftly executed”. I expressed my view that the force did not appear to be excessive and said that Mr Tasker’s evidence that he “guided” Dylan Voller down onto a mattress was consistent with the CCTV. I also agreed with the magistrate’s observation that the actions of Mr Tasker and the other persons with him in Dylan Voller’s room were done at pace, giving the impression that they wanted to be in and out of the room as quickly as possible.
Although I concluded that the series of actions in which Mr Tasker took hold of Dylan Voller, took him to ground and then restrained him, constituted “physical violence”, I assessed the degree of physical violence as low-level.[6]
In addition to the findings of fact summarized in [16] and [17], I made a finding of fact, or mixed fact and law, that Mr Tasker’s actions were not done for the purpose of maintaining discipline. This led to my conclusion that the statutory prohibition against physical violence for maintaining discipline in s 153(3) Youth Justice Act did not apply.[7]
I ultimately held that the appellant (prosecution) had not established error in the magistrate’s conclusion that the prosecution had failed to establish that the force used by Mr Tasker in each of the component actions taken by him against Dylan Voller was unreasonable or excessive, and hence not authorised.[8]
The parties to the appeal in Edwards v Tasker were the police informant (represented by counsel from the Office of the Director of Public Prosecutions), and Mr Tasker (represented by private counsel). It is probably correct, as senior counsel for the plaintiff contends, that I made findings (or agreed with the magistrate’s findings) which were “supportive of Mr Tasker’s position”, but that is not to the point. I heard no evidence and made no credit findings in relation to either Mr Tasker or Dylan Voller. My consideration of the facts and circumstances in the appeal was for the purpose of determining whether the magistrate had erred in finding Mr Tasker not guilty of the aggravated assault charge, in circumstances where the prosecution had the onus of proving the guilt of Mr Tasker beyond reasonable doubt.
My assessment of the use of force or level of force applied by Mr Tasker to Dylan Voller is at odds with the allegation in paragraph 15 of the Statements of Claim,[9] certainly insofar as the pleading alleges that the use of force was excessive in the circumstances.
Paragraph 15 of each of the Statements of Claim raises some difficulties. However, when read with paragraph 14, which pleads that the four Youth Justice Officers unnecessarily engaged the “at risk” procedure against the plaintiff, the allegation in paragraph 15, that the force used by those persons was “not justified in the circumstances”, appears to be based on the premise that no force at all was justified in the circumstances because it was not an appropriate situation for application of the “at risk” procedures. The second part of paragraph 15, which alleges that the force was excessive force, would appear to be an alternative pleading, on the basis that the “at risk” procedures had been appropriately applied, justifying or requiring some force, but that the force used was excessive.
Affidavits of the plaintiff’s evidence in chief have been filed, so that I am able to assess that evidence in considering whether I should recuse myself.
In his affidavit sworn 12 May 2017, the plaintiff deposed as follows (par 11 and par 12):
On or about 9 December 2010, YJOs Barry Clee, Jason Bryers and Derek Tasker … put me “at risk”, stripped me naked with force and forced me to the mattress on the floor. When Derek Tasker entered my cell, he grabbed me by the neck.
At the time, I was at Aranda House and believe I was put “at risk” as a form of punishment.
I note that the statement by the plaintiff of his belief that he was put at risk “as a form of punishment” would probably not be admissible at trial, unless it could be established that the plaintiff’s state of mind were relevant.
Apart from the extract in [24], I have not been referred to any other evidence of the plaintiff which directly bears upon the allegations in paragraphs 14 and 15 of the Statements of Claim.
However, I have been referred to the report of Martin Unger, an expert witness to be called in the plaintiff’s case. Mr Unger is an expert in the use of force in the management of difficult behaviour in institutions and workplaces. In his report, he provides a factual description and analysis of the CCTV footage of the incident involving Dylan Voller and Mr Tasker, and expresses an opinion that the actions of the Youth Justice Officers were “grossly excessive”. Mr Unger expresses the further opinion that PART Training restraint principles were applicable to the incident but that none of the 13 applicable PART Training principles was complied with. [I note that the PART Training restraint principles include: restraining as a last resort; using “crisis communication and evasion”; using restraint methods which are “the most dignified and least restrictive”; protecting the restrained person’s breathing and circulation; and avoiding painful methods of restraint.]
Depending on the extent to which it is accepted, the evidence of Mr Unger could be significant in the assessment of the conduct of Mr Tasker (as depicted in the CCTV footage), and particularly in the assessment of the degree of force Mr Tasker used against Dylan Voller.
Reasonable apprehension of bias
The principle in broad terms, as explained by the High Court in Livesey v NSW Bar Association, is “… that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”[10]
In Johnson v Johnson, five members of the High Court in joint reasons stated the test to be applied as follows:
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 … 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.[11]
However, relevant to the present application is the observation of Mason J in Re JRL, ex parte CJL (1986) 161 CLR 342 at 352:
It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be “firmly established”. [citations omitted]
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.
In the second paragraph above cited, I rely on the reference to the importance of judicial officers not acceding too readily to suggestions of appearance of bias. I acknowledge that there is no suggestion in the present application that the plaintiff may be seeking to have his case heard by someone thought to be more likely to decide the case in his favour. That simply does not arise. Moreover, the plaintiff’s concern is not with any of my conclusions of law in Edwards v Tasker, but rather the fact finding on which my conclusions of law (or mixed fact and law) were based. Generally as to a judicial officer’s previous conclusions of law, I note the observations of Hayne J in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation:[12]
The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding. …
In R v Burrell, McClellan CJ at CL (with whom Sully and James JJ agreed) observed as follows:[13]
… There are many occasions upon which a judge, either at trial or on an appeal, may be asked to reconsider a ruling which he or she has made, a factual determination or a decision upon a matter of law. Matters are routinely returned from an appellate court to the trial judge to be determined according to law. The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge. Such a person, properly informed, would not in my opinion reasonably apprehend that the judge or judges would bring other than an impartial mind to the determination of the matter … [citations omitted].
The position may be different where a judge has expressed a view about the credit of a witness … In Antoun v The Queen (2006) 159 A Crim R 513, the High Court found that a trial judge should have disqualified himself from hearing the matter when, before submissions were made, the judge stated emphatically that he would not accept them. It was determined that the judge had presented an unmistakable appearance of pre-judgment and had failed to display appropriate standards of fairness and detachment.
… When, as has happened, the Court is made aware that it has determined the matter upon a misunderstanding of the relevant facts, no reasonable person properly informed would assume that, being made aware of the correct facts, a judge would do other than impartially determine the matter having regard to those facts.
Further consideration
As mentioned in [20] above, I made no credit findings in relation to Dylan Voller. I would add, with reference to the heads of damage in respect of which damages are claimed by him, that I made no findings as to the effects on Dylan Voller of the incident. In this context, I note that the magistrate accepted that Dylan Voller felt that he had been wrongly treated by Mr Tasker in the incident, sufficient to cause him pain and to want to make a complaint.[14] Given the paucity of evidence from the plaintiff on the very issue in respect of which the recusal application arises, and given that I have not previously made any adverse credit findings against the plaintiff in any event, I fail to see how recusal might be warranted on that basis.
The evidence of Mr Unger[15] requires separate consideration in relation to the application for recusal. Obviously, I did not have the benefit of his expert opinion at the time I assessed the CCTV footage in deciding hearing the Edwards v Tasker appeal. Mr Unger’s evidence is ‘fresh evidence’ to me. It would require me to assess the CCTV evidence afresh, and possibly make different factual findings to those made in the Edwards v Tasker appeal. Much would depend on the extent to which I were to accept and act on the evidence of Mr Unger, in combination with all the other relevant evidence, including that of the plaintiff (limited though it may be). My consideration of the incident involving the plaintiff and Mr Tasker would be ‘reconsideration’ in a different evidentiary context. The position is comparable to a remittal to a trial judge after admission of fresh evidence on appeal.
Because the evidentiary context will be different, a fair minded lay observer would naturally expect that I would hear the evidence – all of the evidence including the ‘fresh evidence’ – with an impartial and unprejudiced mind, and that I would decide the issue on the merits.
There is no proper basis to infer that a fair-minded lay observer might reasonably apprehend that I might not approach the particular issue, the subject of the present application, otherwise than with an impartial and unprejudiced mind. I consider that the observations of the Court of Appeal in R v Burrell extracted in [32] above, in particular par [11] of that judgment, are relevant and apply here.
I therefore consider that it is my duty to sit as the trial judge and not accede to the present application. The application should be dismissed.
I add some further brief observations in deference to the arguments of both counsel. The concept of fidelity to precedent, referred to by the defendant,[16] has not been particularly relevant in deciding this application for recusal because the application is based on previous express or implied findings of fact, and not decisions on matters of law or any statement of legal principle.
Further, in reference to the plaintiff’s reliance on British American Tobacco Australia Services Ltd v Laurie and others, I agree with the defendant’s submission that the telling feature in that case was the trial judge’s earlier findings of very serious misconduct (fraud), findings which the judge had expressed “without qualification or doubt”, and notwithstanding the defendant’s denials.[17] The judge’s findings were thus qualitatively very different to my findings in Edwards v Tasker.
Finally, in reference to the plaintiff’s reliance on the single judge decision in Kirby v Centro Properties Limited and others,[18] I agree with the defendant’s submission that the earlier findings of Middleton J were quantitatively very different to my limited findings in Edwards v Tasker. As Middleton J acknowledged, his earlier factual findings were of critical significance in the further proceedings and would be disputed. His Honour said that, if there were only one or two earlier findings of fact which a party wished to dispute, the position may have been different. However, the judge considered that there were “so many factual findings” which were in contention that the reasonable lay observer might have an apprehension that the judge would find it difficult to “start afresh”.[19] The position may be contrasted with the present case, where the recusal issue relates to only one of 13 incidents relied on by the plaintiff, and where my finding or findings now in contention were relatively limited.
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[1]Pleaded under the heading “The second false imprisonment”.
[2] Police v Tasker [2014] NTMC 02.
[3]Police v Tasker [2014] NTMC 02 at [42] - [44].
[4]Edwards v Tasker [2014] NTSC 56 at [14].
[5]Edwards v Tasker [2014] NTSC 56.
[6]Edwards v Tasker [2014] NTSC 56 at [23].
[7]Edwards v Tasker [2014] NTSC 56 at [27].
[8]Edwards v Tasker [2014] NTSC 56 at [47].
[9]See [5] above.
[10]Livesey v NSW Bar Association (1983) 151 CLR 288 at 293.9.
[11]Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [11], referring to Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; and Webb v The Queen (1994) 181 CLR 41. The same test for reasonable apprehension of bias was more recently stated in British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 at [104] per Heydon, Kiefel and Bell JJ. and Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31] per Gummow A-CJ, Hayne, Crennan and Bell JJ.
[12]Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; 166 ALR 302 at 307 [12].
[13]R v Burrell [2007] NSWCCA 79; (2007) 175 A Crim R 21, at [11] – [13]. The orders made by the Court of Criminal Appeal were set aside by the High Court and the appeals sent back for rehearing. The only basis for allowing the appeals was that the Court of Criminal Appeal did not have power to re-open the appeals after judgment had been formally recorded – see Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [29]. There was no criticism or comment made by the High Court about the views expressed by the Court of Criminal Appeal in relation to apprehended bias. The issue of apprehended bias was not raised on the rehearing, but that may be because the Court of Criminal Appeal was differently constituted – see Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199.
[14]Police v Tasker [2104] NTMC 02 [54], annexure “B” to the affidavit of the plaintiff’s solicitor sworn 11 October 2017 in support of the present application.
[15]See the summary in [27] above.
[16]Referred to in the defendant’s submissions, 13 October 2017, par 13.
[17]British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 at [145] per Heydon, Kiefel and Bell JJ.
[18]Kirby v Centro Properties Limited and others (No 2) [2011] FCA 1144; 202 FCR 439.
[19] Kirby v Centro Properties Limited and others (No 2) [2011] FCA 1144; 202 FCR 439 at [64].
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