Factual Matters
The Charge Against the Plaintiff
30On 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.
31The 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.
32The 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.
33Police 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.
34Police 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.
35At 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.
36As 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.
37The 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.
38Police allege that the Plaintiff is in breach of Conditions (a) and (b) of the apprehended domestic violence order (see [32] above).
39The 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
40In 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.
41On 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).
42On 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
43On 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
44It 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.
45On 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.
46Counsel 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.
47The 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."
48The Magistrate explained that during the whole of the time that he had been a country Magistrate, he had also been a metropolitan Magistrate.
49The Magistrate stated that his circuits had included Bourke, Camden, Blacktown and Mt Druitt.
50The 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).
51The 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."
52Ms 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."
53The 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.
54Ms 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."
55Particular 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).
56The 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."
57The 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).
58As 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).
59The 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).
60The 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."
61Ms 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."
62The 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."
63Discussion 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
64On 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".
65The 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.
66The 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".
67On 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).
68The 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."
69A 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'."
70The 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
71On 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."
72Although 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.
73On 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
74On 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.
75The 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."
76On 17 May 2013, the present proceedings were commenced by the filing of a Summons in this Court.
77The hearing date of the Plaintiff's criminal charge, previously fixed for 22 May 2013, is now set for 24 October 2013.