Gaudie v Local Court of New South Wales and Anor

Judgment 1JOHNSON J: By Amended Summons filed 9 August 2013, the Plaintiff, Ryan Gaudie, seeks relief in this Court, the aim of which is to prevent Magistrate Roger Clisdell ("the Magistrate") from hearing a criminal charge against the Plaintiff, presently listed for hearing at the Forbes Local Court on 24 October 2013. The Plaintiff contends that there is a reasonable apprehension of bias on the part of the Magistrate so that this Court should intervene and grant the relief sought. 2The charge against the Plaintiff listed for hearing on 24 October 2013 is that, on 10 November 2012 at Forbes, he did knowingly contravene a restriction specified in an apprehended domestic violence order contrary to s.14(1) Crimes (Domestic and Personal Violence) Act 2007.

The Parties to the Proceedings 3In accordance with usual practice, the First Defendant, Local Court of New South Wales, submits to the orders of the Court, save as to costs. 4Likewise, the Second Defendant, Probationary Constable Bree Furze, submits to the orders of the Court, save as to costs. 5In the absence of a contradictor, the Attorney General of New South Wales ("Attorney General") was granted leave to intervene in the proceedings. 6The Attorney General may take the role of substantial contradictor to ensure compliance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36. As will be seen, the present proceedings raise issues concerning the reasonable apprehension of bias in the context of public statements made to the media by a judicial officer. There is a clear public interest in the Court having all available assistance in determining issues of fact and law in a context such as this. The Attorney General has an important role in relation to the administration of justice. He is the appropriate public officer to represent the public interest in the administration of justice: Attorney General v Times Newspapers Limited [1974] AC 273 at 311 (per Lord Diplock). 7I note that the Attorney General was granted leave to intervene to fulfil a similar function in CUR24 v Director of Public Prosecutions [2012] NSWCA 65.

The Hearing in this Court 8At the hearing of the Amended Summons, Mr Hamill SC appeared for the Plaintiff. The Crown Advocate, Ms Adams SC, and Ms Baker appeared for the Attorney General. 9The evidence was entirely documentary. The Court was assisted by written and oral submissions of counsel. 10As will be seen, there is no factual dispute. The Magistrate made written and oral statements to a journalist, some of which came to be published in a national newspaper. The issues which fall for determination involve application of legal principles concerning reasonable apprehension of bias to the circumstances of the case, for the purpose of determining whether the Plaintiff has established an entitlement to relief. 11The Plaintiff seeks, in the alternative: (a) prerogative and declaratory relief under ss.69 and 75 Supreme Court Act 1970 so as to prohibit the Magistrate from hearing the criminal charge against him; (b) leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001 against what is said to be the interlocutory order of the Magistrate on 9 May 2013 refusing to disqualify himself from hearing the charge against the Plaintiff. 12In the event that the Plaintiff has otherwise demonstrated an entitlement to relief, it will be appropriate for the Court to consider the form of relief to be granted.

Judicial Officers Speaking to the Media 13As mentioned earlier, these proceedings flow from statements made by the Magistrate to a journalist. 14It has been said that the traditional reluctance on the part of the judiciary to engage in public discussion of its work, as reflected in the so-called Kilmuir Rules of 1955, has given way to a more flexible approach better suited to contemporary times: Lee and Campbell, "The Australian Judiciary", Cambridge University Press, 2nd edn, 2013, pages 286-292; Thomas, "Judicial Ethics in Australia", LexisNexis Butterworths, 3rd edn, 2009, paragraphs 7.1-7.4, 7.33-7.35. 15However, the making of extra-curial public statements by a judicial officer has its dangers. In Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at 133 [12] ("Epeabaka"), Gleeson CJ, McHugh, Gummow and Hayne JJ observed (in the context of a member of the Refugee Review Tribunal who published material on the Internet to tell the public about how he approached his position): "For people who hold judicial, or quasi-judicial, office to set out to give the public 'some idea of where [they are] coming from' might be regarded by some as reflecting a commendable spirit of openness; but it has dangers. It may compromise the appearance of impartiality which is vital to public confidence in the administration of justice. It is the recognition of such a danger that has traditionally caused judges to exercise caution in their public conduct and statements." 16In 2002, the "Guide to Judicial Conduct" was published for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration ("the Guide"). Now in its second edition (published in 2007), the Guide is intended to offer some guidance on the "restraints that come with the acceptance of judicial office" (paragraph 1.1; page 1). The Guide does not purport to be a code or to set down rules: Guide, paragraph 1.2, page 2; Lee and Campbell, "The Australian Judiciary", page 178. It is advisory in nature, but has been described as having "persuasive authority": Thomas, "Judicial Ethics in Australia", paragraph 1.3. 17An advisory guide of this type has been adopted, as well, for the Judiciary of England and Wales: "Guide to Judicial Conduct" (March 2013). 18The position in Australia is different to that in the United States, where the Code of Conduct for United States Judges has a binding and prescriptive operation, which has been applied in the context of a claim of reasonable apprehension of bias where a trial Judge made statements to media representatives concerning a high profile case being heard by the Judge: United States of America v Microsoft Corporation (2001) 253F 3d 34; Hammond, "Judicial Recusal - Principles, Process and Problems", Hart Publishing, 2009, pages 134-137. 19The parts of the Guide relating to participation in public debate appear later in this judgment (at [109]. It will form part of the material which is available for the purpose of applying the apprehended bias test. 20The Guide strongly recommends (at paragraph 1.1; pages 1-2) consultation in cases of difficulty or uncertainty: "Once again, however, it is important to emphasise that what follows is not intended to be prescriptive, unless it is so stated. This publication recognises that in cases of difficulty or uncertainty, the primary responsibility of deciding whether or not a particular activity or course of conduct is or is not appropriate rests with the individual judge, but it strongly recommends consultation with colleagues in such cases and preferably with the head of the jurisdiction." 21It appears that the Magistrate, in this case, did not seek advice before speaking to the media, in the expectation that, if he did, he would be advised not to do so (see [54] below). 22The researches of counsel, and my own research, have not revealed a case with close similarities to the present one. There have, however, been decisions which have picked up related themes. In Epeabaka, it was held that apprehended bias had not been established in the circumstances of the case. 23In NTD8 v Australian Crime Commission [2008] FCA 984; 249 ALR 559, Reeves J refused an application to disqualify himself made upon the basis of public comments made by him in August-September 2007 (before his appointment as a Judge) when a member of the Taskforce established as part of the Commonwealth Government's Northern Territory Emergency Response. 24There have been cases where a disqualification application was made upon the basis of reasonable apprehension of bias said to arise from legal articles written by the judicial officer. In Timmins v Gormley (reported sub nom Locabail (UK) Pty Limited v Bayfield Properties Limited [2001] 1 QB 451 at 491-497), the Court of Appeal (Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C) allowed an appeal from the decision of a Recorder upon the ground that apprehended bias had been established. The Court of Appeal asked itself, "taking a broad common sense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leaned in favour of the claimant and against the defendant in resolving the factual issues between them". The Court of Appeal concluded at 496: "We do not think a lay observer with knowledge of the facts could have excluded that possibility and nor can we." 25In Newcastle City Council v Lindsay [2004] NSWCA 198, the Court of Appeal held that the primary Judge was correct not to disqualify herself upon the basis of suggested apprehended bias arising from extra-judicial publications. The Court (Tobias JA, Giles JA and McClellan AJA agreeing) referred to Timmins v Gormley and continued at [35]-[38]: "[35] The question in the present case is whether her Honour's article contains preconceived views that crossed the ill-defined line to which their Lordships referred in Timmins such as to threaten the appearance of impartial justice. [36] In my opinion, the subject article falls well short of that line. Although her Honour expresses in the article some mild criticism of this Court's decisions in the cases to which she refers and suggests that they are inconsistent with other decisions of the High Court, nonetheless one could hardly suggest that her criticism, such as it is, of those Court's decisions was vehemently or trenchantly expressed. Quite the contrary. The language she employed was circumspect and the tone in which she expressed herself was mild. [37] Furthermore, what her Honour had written under the heading 'What must the Plaintiff prove?' does no more than list various factors which previous authorities have said are relevant to the issue of liability and which she does no more than suggest a ' plaintiff should consider'. Certainly, it cannot be said that the article is so pro-pedestrian and anti-council as to give rise to the possibility that in deciding the current case, she was likely to lean in favour of the respondent and against the appellant. [38] In my opinion, her Honour's article does not come close to demonstrating to the requisite degree any appearance of pre-judgment. Accordingly, the primary judge was correct not to disqualify herself and, for that reason, the challenge to her decision should be rejected." 26In CUR24 v Director of Public Prosecutions, the Court of Appeal (Basten, Whealy and Meagher JJA) rejected a claim of apprehended bias said to arise from out-of-court statements alleged to have been made on a social occasion by the primary Judge to the solicitor for the accused person. 27A decision of the Court of Criminal Appeal in this State has emphasised the difficulties which may arise where a Crown Prosecutor (who exercises important public functions in the criminal justice system) chose to make repeated public comments concerning a particular case in breach of relevant prosecution and ethical guidelines: R v MG [2007] NSWCCA 57; 69 NSWLR 20. The apprehended bias test was made out and the Crown Prosecutor was effectively restrained from appearing at the retrial of a particular accused person (at 47 [95]). 28In the present case, the Magistrate made general comments which did not refer to the Plaintiff's case. However, it is contended for the Plaintiff that the cumulative effect of the Magistrate's statements was such that the apprehended bias test is made out in this case, so that the Magistrate ought be prohibited from hearing the charge against him. 29It is to the resolution of factual and legal issues touching upon that question to which I now turn.

Factual Matters The Charge Against the Plaintiff 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.

Applicable Principles on Application for Disqualification on the Ground of Apprehended Bias 78The governing principle is that, subject to qualifications relating to waiver, necessity or possibly special circumstances (none of which arise in this case), a judicial officer is disqualified if a fair-minded lay observer or bystander (hereinafter "the bystander") might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question or questions that the Judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344 [6]: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 at 331 [139], 333-335 [146]-[152]. The question is one of "possibility (real and not remote), not probability": Ebner v Official Trustee in Bankruptcy at 345 [7]. 79In practice, the application of this test involves the following steps: (a) the party seeking disqualification must identify what it is that might lead the judicial officer to decide the case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at 345 [8]; (b) the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at 345 [8]. 80Once the matter suggesting bias has been identified and the logical connection between that matter and the feared deviation has been articulated, the party seeking disqualification must establish that there is an ensuing apprehension of bias and that that apprehension is reasonable: Ebner v Official Trustee in Bankruptcy at 345 [8]. 81A judicial officer should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 504 [45]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a Judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352. However, the principle that a judicial officer should not disqualify him or herself too readily is not "a blanket that smothers the effect of disqualification where it has already arisen": Antoun v The Queen [2006] HCA 2; 224 ALR 51 at 60 [35] (Kirby J). 82Where (as here, at least in part), prejudgment is relied upon, what must be firmly established is a reasonable fear on the part of the bystander that the decision-maker's mind is prejudiced in favour of a conclusion already framed, so that he or she will not alter that conclusion irrespective of the evidence or arguments presented. That reasonable fear must be firmly established because it is to be expected that judicial officers may have formed views or inclinations of mind with respect to particular subjects in the course of their professional careers, which will be put to one side in the determination of proceedings on the evidence and on the merits: CUR24 v Director of Public Prosecutions at [36]. 83It is necessary to keep firmly in mind the distinction between apprehended bias and actual bias. This is important given statements made by the Magistrate in his judgment of 9 May 2013 (emphasised at [75] above) and submissions made with respect to those statements. 84As the test is objective, it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at 437 [33]. 85In a case of actual bias, the actual state of mind of the judicial officer is in issue. In a case of apprehended bias, the focus is on the apprehension of the bystander. The latter test is usually easier to satisfy: Spencer v Bamber [2012] NSWCA 274 at [16]. 86The actual thought processes of the judicial officer need only be enquired into in deciding whether the judicial officer has been actuated by actual bias: Ebner v Official Trustee in Bankruptcy at 345 [7]; Spencer v Bamber at [107]. Application of the apprehended bias test requires no prediction about how the judicial officer will in fact approach the matter: Ebner v Official Trustee in Bankruptcy at 345 [7]. This serves to explain why the existence of a judicial oath is not an answer to a claim of apprehended bias, although (as will be seen) it is a matter which the bystander may take into account. 87As the rule is concerned with appearance of bias, and not the actuality, it is the perception of the bystander that provides the yardstick - it is the public's perception of neutrality with which the rule is concerned: British American Tobacco Australia Services Limited v Laurie at 331 [139]. 88The bystander may have regard to the cumulative effect of factors: AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236 at 254-255 [67]-[68]. Later statements may serve to reinforce an impression created earlier: Antoun v The Queen at 52 [2]. 89Similarly, it has been recognised that any statement by a judicial officer which qualifies, corrects, dispels or clarifies what has been said on a prior occasion, may be taken into account by the bystander, and may operate against a finding of apprehended bias: Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572, 587; Johnson v Johnson at 494 [14], 495 [18]. It has been said as well, however, that circumstances may exist where the appearance of bias is ineradicable: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 372.

The Plaintiff's Grounds of Appeal 90The Amended Summons identified the following grounds of appeal: "1 His Honour Magistrate Clisdell is disqualified from hearing the case on the grounds of apprehended bias as a result of comments made by him to The Australian newspaper. 2 His Honour Magistrate Clisdell erred in failing to disqualify himself on the basis that the evidence might cause a fair-minded lay observer to apprehend that his Honour Magistrate Clisdell might not bring an impartial and unprejudiced mind to the hearing of the Plaintiffs case. 3 His Honour Magistrate Clisdell applied the wrong legal test by asking himself whether the evidence could cause 'a fair-minded lay observer to conclude that I am incapable of bringing an open mind to a hearing and dealing with the matter on the evidence and applicable law'. 4 His Honour Magistrate Clisdell erred by taking into account the fact that he had taken an oath of office and his expressed belief in that oath. 5 His Honour Magistrate Clisdell erred by effectively treating the application as one which required proof of actual bias." 91The Amended Summons complies with Rule 59.4 Uniform Civil Procedure Rules 2005 in that it specifies grounds relating to the claim for prerogative and declaratory relief, as well as the application for leave to appeal. 92In effect, the first and second grounds contend that the Magistrate should have disqualified himself and that he erred in not doing so. Grounds 3, 4 and 5 contend that the Magistrate applied the wrong test on 9 May 2013 in the course of his reasons for refusing to disqualify himself. 93I will return to these grounds later in the judgment.

Material Available to the Bystander 94The reference to the bystander is no more than the personification of an objective test: Lee v Cha [2008] NSWCA 13 at [43]. 95The bystander is taken to be reasonable and is not entitled to make "snap judgments": Johnson v Johnson at 493-494 [12]-[14]. 96The test is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some Judges of the capacity or performance of their colleagues: Johnson v Johnson at 493 [12]. 97The bystander is taken to have knowledge of all the material and objective facts: Webb v The Queen [1994] HCA 30; 181 CLR 41 at 67, 73-74. The bystander is assumed to have sufficient knowledge to put the remarks of the Judge in their proper context: Lee v Cha at [45]. 98The bystander will have regard to the fact that the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the Judge] to discard the irrelevant, the immaterial and the prejudicial": Johnson v Johnson at 493 [12]. 99In State of Victoria v Psaila [1999] VSCA 193 at [47], Ormiston JA described the bystander in the following way: "From time to time there has been reference to members of the public as constituting those fair-minded and informed observers but care should be taken lest that group should be confused with and confined to those whose knowledge of the world and of affairs generally is gained from the perusal of as many pages of a tabloid newspaper as can be read on a suburban train journey or from one minute 'sound bites' on television newscasts. The test, when expressed fully, requires the observer to be informed, not with the knowledge of Queen's Counsel, but at least with sufficient knowledge as to make an informed appreciation of questions such as impartiality and want of prejudice." 100The bystander is not limited to considering material which is in the public domain. Accordingly, in the present case, the bystander will be taken to have knowledge of the Magistrate's letter to the editor dated 6 January 2013, the full interview between Ms Robinson and the Magistrate on 7 January 2013, the matters published in "The Australian" in the various articles to which reference has been made and what was said in Court on the occasions mentioned, being 5 February 2013 and 4 April 2013, and in the reasons for refusing the recusal application on 9 May 2013: Barakat v Goritsas (No. 2) [2012] NSWCA 36 at [58]-[63]. 101In addition, the bystander will be aware of a number of laws, practices and procedures to which reference will shortly be made: cf British American Tobacco Australia Services Limited v Laurie at 329 [132]; CUR24 v Director of Public Prosecutions at [57]; Duncan v Ipp [2013] NSWCA 189 at [154]-[156]; Groves, "The Imaginary Observer of the Bias Rule" [2012] 19 AJ Admin L 188 at 190ff. There was no real dispute at the hearing before me that the bystander should be taken to have knowledge of the range of matters referred to in this judgment. 102In addition to the factual matters, the bystander will have regard to further matters as set out below. Judicial Oath 103It may be taken that the Magistrate swore a judicial oath in accordance with s.9 Oaths Act 1900, in the form of the judicial oath contained in Schedule 4 to that Act. In the course of his judgment on 9 May 2013, the Magistrate referred to the judicial oath. 104The fact that the Magistrate has taken a judicial oath is a matter which the bystander will take into account, in the manner identified in Johnson v Johnson at 493 [12] - the bystander will keep in mind that the person being observed (in this case) is a professional Magistrate, "whose training, tradition and oath require him to discard the irrelevant, the immaterial and the prejudicial". 105Of course, the taking of a judicial oath does not operate to prevent a finding of reasonable apprehension of bias. As Mr Hamill SC submitted, such an approach would mean that apprehended bias could never be demonstrated against a judicial officer. 106In Helow v Secretary of State for the Home Department and Anor (Scotland) [2008] UKHL 62; [2008] 1 WLR 2416, Lord Mance said at [57]: "It remains to mention two considerations to which attention was paid during submissions. The first is the oath that Lady Cosgrove will as a judge have taken, in familiar terms: 'I ... do swear that I will well and truly serve our Sovereign ... in the office of Judge of the Court of Session, and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or illwill. So help me God.' In S v R [1997] 3 SCR 484, L'Heureux-Dubé and McLachlin JJ identified the taking of the judicial oath as often the most significant occasion in the career of a judge (para 116), and said (para 117) that 'Courts have rightly recognised that there is a presumption that judges will carry out their oath of office ... This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with 'cogent evidence' that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias ...'. At para 119, they went on to say that 'The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial 'does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind' ...' So viewed, the judicial oath appears to me more a symbol than of itself a guarantee of the impartiality that any professional judge is by training and experience expected to practise and display. But on no view can it or a judge's professional status and experience be more than one factor which a fair-minded observer would have in mind when forming his or her objective judgment as to the risk of bias." 107In R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No. 2) [2000] 1 AC 119 at 140-141, Lord Hope of Craighead observed, in the context of a claim of bias by way of interest, that it was "no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath". 108These statements, which I respectfully adopt, serve to place in context the role of the judicial oath in the test of apprehended bias. Guide to Judicial Conduct 109The existence of important advisory material in the Guide would also be in the mind of the bystander. Paragraphs 5.6.1 and 5.6.2 of the Guide state (my emphasis): "5.6.1 Participation in public debate Many aspects of the administration of justice and of the functioning of the judiciary are the subject of public consideration and debate in the media, at public meetings and at meetings of a wide range of interest groups. Appropriate judicial contribution to this consideration and debate is desirable. It may contribute to the public's understanding of the administration of justice and to public confidence in the judiciary. At the least, it may help to dispose of misunderstandings, and to correct false impressions. Considerable care should be exercised to avoid using the authority and status of the judicial office for purposes for which they were not conferred. Points to bear in mind when considering whether it is appropriate to contribute to public debate on any matter include the following: * A judge must avoid involvement in political controversy, unless the controversy itself directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice; * The place at which, or the occasion on which, a judge speaks may cause the public to associate the judge with a particular organisation, group or cause; * There is a risk that the judge may express views, or be led in the course of discussion to express views, that will give rise to issues of bias or prejudgment in cases that later come before the judge even in areas apparently unconnected with the original debate; A distinction might be drawn between opinions and comments on matters of law or legal principle, and the expression of opinions or attitudes about issues or persons or causes that might come before the judge; * Expressions of views on private occasions must also be considered carefully as they may lead to the perception of bias; * Other judges may hold conflicting views, and may wish to respond accordingly, possibly giving rise to a public conflict between judges which may bring the judiciary into disrepute or could diminish the authority of a court; * A judge, subject to the restraints that come with judicial office, has the same rights as other citizens to participate in public debate; * A judge who joins in community debate cannot expect the respect that the judge would receive in court, and cannot expect to join and to leave the debate on the judge's terms. If the matter is one that calls for a response on behalf of the judiciary of the State, Territory or court collectively, that should come from the relevant Chief Justice or head of the jurisdiction, or with that person's approval. Subject to that, and bearing in mind the points made above, care is called for before contributing to community debate using the judicial title, or when it will be known that the contribution is from a judge. 5.6.2 Public debate about judicial decisions It is well established that a judge does not comment publicly once reasons for judgment have been published, even to clarify ambiguity. On occasions decisions of a court may attract unfair, inaccurate or ill-informed comment. Many judges consider that, according to the circumstances, the court should respond to unjust criticism or inaccurate statements, particularly when they might unfairly reflect upon the competence, integrity or independence of the judiciary. Any such response should be dealt with by the Chief Justice or other head of the jurisdiction." 110The bystander would keep in mind that the Magistrate interpreted the content of the articles published before 6 January 2013 as being highly critical of the magistracy, including himself, and based upon a selective account which did not fairly portray events in the Courts under consideration. 111The bystander would also take into account the fact that the Magistrate had turned his mind to obtaining advice before speaking to the media, but had decided against it, expecting that any advice would be to decline to make any comment. In this way, the Magistrate had determined not to follow the course which was strongly advised in the Guide in difficult or uncertain cases (see [20] and [54] above). Domestic Violence 112The bystander would be entitled to take into account what has been said by sentencing courts with respect to domestic violence offences generally and the impact of those offences upon victims and the community: R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 191-196 [65]-[88]. 113The bystander would also have in mind the objects of the Crimes (Domestic and Personal Violence) Act 2007 (under which the Plaintiff had been charged) in relation to domestic violence, as contained in s.9 of that Act: "9 Objects of Act in relation to domestic violence (1) The objects of this Act in relation to domestic violence are: (a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and (b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons, and (c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women, and (d) to enact provisions that are consistent with the United Nations Convention on the Rights of the Child. (2) This Act aims to achieve those objects by: (a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice. (3) In enacting this Act, Parliament recognises: (a) that domestic violence, in all its forms, is unacceptable behaviour, and (b) that domestic violence is predominantly perpetrated by men against women and children, and (c) that domestic violence occurs in all sectors of the community, and (d) that domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years, and (e) that domestic violence occurs in traditional and non-traditional settings, and (f) the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future physical, psychological and emotional well-being, and (g) that domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence and, in certain cases, may be the subject of appropriate intervention by the court. (4) A court that, or person who, exercises any power conferred by or under this Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in this section." 114In his judgment of 9 May 2013 (see [75] above), the Magistrate adverted to judicial statements concerning domestic violence in Aboriginal communities, in the context of remarks on sentence in New South Wales and Victoria. The bystander would be aware of these statements, conscious that they were made in a sentencing context. 115These statements include the comments of King J in R v Hudson [2013] VSC 184 at [31]: "There are so many appalling stories within the indigenous community in 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." 116The Magistrate referred, as well, to the decision of his Honour Judge Nicholson SC in a Brewarrina case, R v Coffey [2012] NSWDC 282 where his Honour observed at [78], in the context of discussing the utility of general deterrence: "Domestic violence is rampant within the Aboriginal communities." 117The Attorney General also submitted (correctly) that the bystander would also be aware of earlier comments of his Honour Judge Nicholson SC in a Wilcannia case, R v Sullivan [2010] NSWDC 333 at [1]-[3]: "1. Domestic Violence is not unknown at any level in Australian society. As with other forms of violence it has long been associated with alcohol and drug abuse. Within the various communities and community structures there are pockets where the occurrence of domestic violence is of greater intensity, areas of socio-economic stress constitute one such example, or where alcohol and drug abuse are rife, violence also reigns. 2. Aboriginal communities, particularly Aboriginal communities where there are serious socio-economic factors at play, are hot houses of domestic violence. Common to the past history of Aboriginal and white cultures is an attitude of male dominance over females. But in the twenty-first century women from both cultures have made it known that past mores are no more and in particular the chastisement of or violence towards women is no longer to be tolerated in Australian society regardless of any past cultural affinity for the caveman approach to women. 3. In modern times women, I focus here particularly on Aboriginal women, have made it clear they will no longer tolerate violence. Women who report domestic abuse must be seen as the courageous heroines they are. In the past they did not seek treatment, today more and more are doing so. In the past, they did not seek police assistance. Today, more and more are doing so. In the past, they would not come to court. Today, more and more are doing so. Each of these steps requires great courage because it exposes the dysfunction in their own life. Each of these steps is an important step forward in stamping out domestic violence. Each is a step toward the detection of domestic violence. Each is a step towards making the men accountable for their conduct towards their women." 118The bystander would also be aware of the following information contained in the "Equality Before the Law Bench Book", Judicial Commission of NSW, page 2105 (Exhibit 1): (a) indigenous people are approximately six times more likely to be victims of domestic assault than non-indigenous people; (b) Aboriginal women are four times more likely than the average New South Wales woman to be a victim of domestic and family violence, and to suffer more serious injury; (c) indigenous people are about eight times more likely to be domestic assault offenders, than non-Indigenous people. The Fernando Principles 119The bystander would also be aware of the well-known statement of Wood J in R v Fernando (1992) 76 A Crim R 58 at 62-63, concerning the sentencing of Aboriginal offenders: "In the course of his careful and helpful submissions on sentence, Mr Nicholson QC made reference to a number of authorities and reports or papers, concerning the sentencing of Aborigines including extracts from a paper 'The Sentencing of Aboriginal Offenders' by Justice Toohey; the recent report of J H Wooten QC concerning the Royal Commission into Aboriginal deaths in custody; Neal (1982) 149 CLR 305; Davey (1980) 2 A Crim R 254; Friday (1984) 14 A Crim R 471; Yougie (1987) 33 A Crim R 301; Rogers and Murray (1989) 44 A Crim R 301 and Juli (1990) 50 A Crim R 31. As I read those papers and decisions they support the following propositions: (A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group. (B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender. (C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. (F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. (G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality. (H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part." 120In R v Morgan [2003] NSWCCA 230; 57 NSWLR 533, Wood CJ at CL (Simpson and Adams JJ agreeing) returned to the Fernando principles, stating at 538-539 [20]-[21]: "[20] As has been made clear by subsequent decisions, these remarks were not intended as an exhaustive statement of sentencing practice, or as justifying any special leniency in relation to offenders of the class to whom they applied: R v Hickey NSWCCA 27 September 1994, R v Ceissman [2001] NSWCCA 73 and R v Pitt [2001] 156. [21] Rather they were intended to reflect an understanding of some of the factors which can lead a person of this racial background into offending behaviour, and which, in appropriate cases, may have a particular relevance for the way in which a sentencing order may suitably be framed. They can have also a particular relevance for persons appearing before the courts who come from remote parts of the country, and who have particularly disadvantaged backgrounds, or when the offence is alcohol-related." 121The bystander would also be aware of judicial statements that recognition of an offender's problems, in accordance with the Fernando principles, ought not have the unintended consequence of apparently devaluing the effect of offences on victims, including victims from the same community, who are themselves subject to the same pattern of disadvantage: R v Powell [2000] NSWCCA 108 at [24] (Simpson J); R v Pitt [2001] NSWCCA 156 at [20] (Wood CJ at CL). 122I observe that the issues addressed in sentencing decisions such as R v Fernando are the subject of reserved decisions of the High Court of Australia in Bugmy v The Queen [2013] HCATrans 167; Munda v The Queen [2013] HCATrans 168 (heard together on 6 August 2013). 123The bystander would be aware that the Fernando principles have application at the sentencing stage only and have no bearing on the issue of guilt. Ethical Obligations of Legal Practitioners Representing Persons Charged with Criminal Offences 124The bystander should be taken to be aware of the ethical obligations of legal representatives acting for persons charged with criminal offences. 125As the present context usually involves solicitor advocates employed by the ALS, it is appropriate to refer to the Revised Professional Conduct and Practice Rules promulgated by the Law Society of New South Wales. Rule A.17B provides as follows: "A practitioner must (unless circumstances warrant otherwise in the practitioner's considered opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty) if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings." 126In this respect, the bystander should be taken to have general knowledge of the discounts available to persons who plead guilty to criminal charges, in accordance with the principles in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 and R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10-11 [32]. 127Rule A.15A is also pertinent: "A practitioner must seek to ensure that work which the practitioner is retained to do in relation to a case is done so as to: (a) confine the case to identified issues which are genuinely in dispute: (b) have the case ready to be heard as soon as practicable; (c) present the identified issues in dispute clearly and succinctly; (d) limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client's interests which are at stake in the case; and (e) occupy as short a time in court as is reasonably necessary to advance and protect the client's interests which are at stake in the case." 128Rule 20 of the Revised Professional Conduct and Practice Rules is also relevant: "Admission of guilt 20.1 If a practitioner's client, who is the accused or defendant in criminal proceedings, admits to the practitioner before the commencement of, or during, the proceedings, that the client is guilty of the offence charged, the practitioner must not, whether acting as instructing practitioner or advocate - 20.1.1 put a defence case which is inconsistent with the client's confession; 20.1.2 falsely claim or suggest that another person committed the offence; or 20.1.3 continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client's innocence. 20.2 A practitioner may continue to act for a client who elects to plead 'not guilty' after admitting guilt to the practitioner, and in that event, the practitioner must ensure that the prosecution is put to proof of its case, and the practitioner may argue that the evidence is insufficient to justify a conviction or that the prosecution has otherwise failed to establish the commission of the offence by the client." 129Rules 40, 57 and 79 of the New South Wales' Barristers' Rules are in similar terms to (respectively) Rules A.15A, A.17B and 20 of the Revised Professional Conduct and Practice Rules.

Submissions of the Plaintiff and the Attorney General 130The parties agree that the relevant test to be applied is that the Magistrate is disqualified if the bystander might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the questions to be considered at the hearing of the criminal charge against the Plaintiff. 131The principal point of departure between the submissions for the Plaintiff and the Attorney General concerns application of the second step (at [79] above) in the circumstances of this case. Put shortly, it was submitted for the Attorney General that the Plaintiff had not articulated the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the Plaintiff's case on its merits. 132With this explanation of the central controversy, it is appropriate to turn to the principal submissions advanced for and against the claim for relief. Submissions for the Plaintiff 133Mr Hamill SC submitted that the evidence demonstrated apprehended bias by way of prejudgment, accompanied by what the bystander would regard as a measure of animosity on the Magistrate's part which served to fortify a conclusion of apprehended bias. 134It was submitted for the Plaintiff that there were three areas where the Magistrate's comments may give rise to an apprehension that the case might be decided other than on its legal and factual merits: (a) matters involving pleas of not guilty; (b) matters involving domestic violence; (c) matters where clients are represented by the ALS. 135With respect to (a), reliance was placed upon the Magistrate's criticisms of the ALS and the plea of not guilty rate, including the "Bourke defence" and the suggestion that the ALS may have employed this tactic to "clog the court lists". It was submitted that these comments had the capacity to undermine public confidence in the Magistrate's capacity to properly apply the presumption of innocence and that they indicated prejudgment and prejudice, and an apparent belief in the guilt of defendants who plead not guilty. 136With respect to (b), reference was made to the Magistrate's strong public comments regarding the nature and severity of domestic violence in Aboriginal communities. 137With respect to (c), it was submitted that the Magistrate's comments regarding the ALS and its lawyers might create in the bystander an apprehension that his Honour might not bring an impartial mind to the resolution of domestic violence matters where clients are represented by the ALS. It was submitted that the Magistrate had employed strident language - the language of war - when he said that the ALS was conducting a "campaign" and had "declared war" on the magistracy. It was submitted that the introduction by the Magistrate of this language might give rise to concerns in the bystander that his Honour saw himself as a protagonist in a conflict with the ALS. 138It was submitted that a defendant appearing in front of the Magistrate, represented by the ALS, might reasonably apprehend that they will be disadvantaged by their representation, as his Honour will be unable to resolve the matter without engaging his preconceived and publicly stated views about the quality of legal services provided by the ALS. 139Mr Hamill SC submitted that the relevant logical connection would arise by reference to factors, including the following: "To put the logical connection in simple, summary terms, the reasonable observer might conclude or reason: * The Magistrate is of the view that: * Children and most women in Aboriginal families are subject to brutal domestic violence. * This violence is constant. * This violence is perpetrated by male members of the families of those women and children. * The Magistrate holds the view that: * Pleas of guilty should be entered in such cases. * There is a 'constant inability' to enter pleas in cases where it is clear that there should be a plea of guilty. * Solicitors working for the ALS are responsible for this 'constant inability' to enter appropriate pleas and ALS solicitors do their clients a disservice. * The Magistrate is involved in a significant dispute with the ALS, and some of its lawyers, and that the dispute so affects the Magistrate's judgment that he is prepared to engage in debate through the media in spite of his understanding that he would be counselled against that course should he seek guidance." 140It was submitted that the Magistrate's comments were not "mischievous and lighthearted" or incautious remarks stated in the context of a social occasion: CUR24 v Director of Public Prosecutions at [24], [39], [54]. Rather, it was submitted that the Magistrate's remarks were deliberate and apparently considered comments made to a journalist, in full knowledge that they would be published in a national newspaper. At times, the Magistrate used strong language. 141It was submitted further that the comments did not fall into the category of objective and constructive academic debate, nor were the comments circumspect or mild: Newcastle City Council v Lindsay at [36]. It was submitted that the Magistrate's comments appeared to reflect strongly held views regarding indigenous clients represented by the ALS in defended domestic violence matters, and that there was a real risk of, at the least, the perception that his Honour's mind was prejudiced in favour of conclusions already formed, and that he may be unwilling or unable to alter them, irrespective of the evidence presented: CUR24 v Director of Public Prosecutions at [36]. 142Reliance was placed upon the Magistrate's peremptory rejection of a disqualification application on 5 February 2013 in Police v Priscilla Hines, accompanied by a comment that applications of that type were "the ALS' next little enterprise". It was submitted that the Magistrate had determined the outcome of that disqualification application before hearing any evidence or submission on the issue. It was submitted that the bystander would construe the Magistrate's comment as one directed to prospective disqualification applications as well. 143It was submitted that statements made by the Magistrate in refusing the disqualification application in the Plaintiff's case on 9 May 2013, with respect to domestic violence, echoed comments made in the interview with Ms Robinson on 7 January 2013. It was submitted that these observations constituted carefully written and considered opinions and that the bystander might, at the least, conclude that the Magistrate held the highly contentious and incorrect view that all Aboriginal children, and most Aboriginal women, were subject to constant and brutal violence perpetrated by members of their own family and that Aboriginal people, in very large numbers, are involved in the commission of domestic violence. 144It was submitted that the Magistrate had not qualified or resiled from any of these statements in the course of determining the disqualification application. 145Mr Hamill SC submitted that the bystander might apprehend that the holding of these views might affect the capacity of the Magistrate to apply properly the presumption of innocence in the Plaintiff's case, and that such a risk was not obviated by assertions of objectivity. 146It was submitted that a reasonable analogy would be where a decision maker was to hear and determine charges of dishonesty, having previously asserted that all members of the accused person's social group were involved in dishonesty, and that there was a constant failure by them to admit their guilt. 147With respect to Grounds 3, 4 and 5 which assert specific error in the Magistrate's decision of 9 May 2013, Mr Hamill SC submitted that his Honour treated the case incorrectly as one of actual bias, and not apprehended bias, in a number of statements made. Although acknowledging that the Magistrate had referred to authorities where the test of apprehended bias is laid down, it was submitted that statements by the Magistrate to the effect that he was said to be "incapable of bringing an independent mind to the hearing" and that he was "unable to comply with [his] judicial oath" reflected a comprehension that the challenge was one of actual bias. 148With respect to the Magistrate's statement in his reasons of 9 May 2013 that the Guide was a guideline only and not binding on any judicial officer, Mr Hamill SC submitted that the Magistrate accepted impliedly that he had not acted in accordance with the Guide, and that he had chosen not to seek advice before speaking to Ms Robinson because he expected that the advice would be that he should not do so. It was submitted that the Magistrate's comments are precisely the type of comments that give rise to the risk of bias or prejudgment, and that they went beyond "opinions and comments on matters of law" and strayed into "opinions and attitudes about issues or persons or causes that might come before [the Magistrate]". Submissions of the Attorney General 149The Crown Advocate emphasised that the bystander would read the Magistrate's statements in context, and, would have regard to the totality of what was said. 150It was submitted that this was not a case about whether the Magistrate should or should not have given the interview, and no attempt was made in submissions to justify the giving of the interview. 151It was submitted that it was important to observe that the Plaintiff did not argue that the Magistrate had, in the past, convicted or sentenced any indigenous person otherwise than in accordance with law. Nor was there any evidence before the Court that would support such an inference. It was submitted that the articles in "The Australian" contained broad allegations against rural Magistrates, but that no specific cases were said to have been determined by the Magistrate. In these circumstances, it was submitted that the newspaper articles constituted relevant background only to the Magistrate's letter and interview. 152It was submitted that the vast bulk of the interview and the letter to the editor related to the Magistrate's views concerning the sentencing of Aboriginal youth, particularly for driving offences. In this respect, it was submitted that the Magistrate had demonstrated a sensitivity concerning many of the issues that impacted adversely on indigenous persons in rural areas. It was observed that the Plaintiff did not point to any of these comments as being indicative of bias. 153Submissions were made with respect to the three categories identified as (a), (b) and (c) (at [134] above). It was submitted for the Attorney General that an examination of the comments indicated that no logical connection existed between what the Magistrate had said, and any feared deviation from the course of deciding the Plaintiff's criminal case on its merits. It was emphasised that it was necessary to consider the Magistrate's comments in context, having been made in an interview about the sentencing of juvenile Aboriginal offenders and the adverse social circumstances of those who appeared before the Magistrate. 154With respect to the comments concerning domestic violence and the ALS and persons who plead not guilty, it was submitted that none of the comments, taken individually or together, firmly established a reasonable fear that the Magistrate's mind was so prejudiced in favour of a conclusion already formed that he will not alter that conclusion irrespective of the evidence or arguments presented at the hearing of the Plaintiff's case. Emphasis was placed upon the fact that the bystander would have regard to the Magistrate being a professional person whose training, tradition and oath required him to discard the irrelevant, the immaterial and the prejudicial: Johnson v Johnson at 493 [12]. 155It was submitted that it was significant that the Magistrate did not make the impugned comments in Court proceedings, and that the comments did not relate to the Plaintiff personally or to any particular aspect of the prosecution against him. 156With respect to the Magistrate's comments concerning domestic violence, it was submitted that these comments were consistent with information provided to judicial officers in New South Wales in the Equality Before the Law Bench Book, and that other judicial officers had made similar statements in sentencing remarks. It was submitted that these cases illustrate that application of the Fernando principles had resulted, from time to time, in the use of some relatively strong language by sentencing Judges. It could not be said in these cases that there would be an apprehension of bias on the part of the judicial officer, by virtue of the fact that reference was made to the high rates of domestic violence in Aboriginal communities. On the contrary, it was submitted that the comments show awareness on the part of these judicial officers of difficulties facing Aboriginal defendants in the justice system. 157It was submitted that the Plaintiff had not articulated clearly any logical connection between the matter and the feared deviation from the course of deciding the Plaintiff's criminal case on its merits. The charge against the Plaintiff did not involve an allegation of actual domestic violence, but rather breach of conditions. It was submitted that this made it more difficult for the Plaintiff to establish the relevant logical connection. 158The Crown Advocate acknowledged that it would be inappropriate for the Magistrate to have regard to the prevalence of domestic violence in Aboriginal communities when considering whether the prosecution had proved, beyond reasonable doubt, that the Plaintiff committed the subject offence. 159It was submitted, however, that there was no suggestion in the Magistrate's comments that he considered his views, as to the incidence of domestic violence in Aboriginal communities, to be relevant to the determination of guilt. Nor was there any suggestion that the Magistrate, like any other judicial officer, would not be able to disregard these matters when determining whether the guilt of the Plaintiff had been established. 160It was submitted that an inference may be drawn, from the Magistrate's decision to speak to the media, that he felt keenly that "The Australian" articles had not accurately reported sentencing decisions of Magistrates concerning Aboriginal youth and that, given the small number of Magistrates who preside in regional areas, these potentially "racist" Magistrates would be easily identifiable. The bystander would note the Magistrate's expression that he felt seriously affronted by having his integrity challenged, and would conclude that it was this that drove the Magistrate to speak out publicly as he did. 161Senior counsel noted that the Magistrate had spoken of matters concerning the incidence of domestic violence in Aboriginal communities that are well known to judicial officers, particularly those presiding over Courts in rural New South Wales. 162With respect to the Magistrate's comments concerning the conduct of the ALS in defending criminal defendants, it was emphasised again that it is necessary to identify the logical connection between the Magistrate's comments and the feared deviation from the course of deciding the Plaintiff's case on its merits. It was noted that the Plaintiff's submissions in this Court did not appear to make a specific allegation that there was an apprehension that the Magistrate was biased against Mr Lawrence per se. This was understandable, it was submitted, given that Mr Lawrence is not the solicitor with carriage of the Plaintiff's defence. 163It was submitted that a logical connection between the Magistrate's comments about the ALS, and any feared deviation from determining the case on its merits, would be difficult to establish, given the respective roles of the advocate to present the case and of the Magistrate to consider the evidence. It was emphasised that Judges will often know, to a greater or lesser extent, the legal practitioners who appear before them and that the Courts have tended to be somewhat robust in their approach to such prior associations: Aussie Airlines Pty Limited v Australian Airlines Pty Limited (1996) 135 ALR 753 at 760. 164With respect to the Magistrate's comments concerning the rate of pleas of not guilty where the ALS appears, it was submitted that a careful examination of these comments in context indicates that the Magistrate was speculating about possible reasons for the very high rate of not guilty pleas amongst ALS represented clients. The Magistrate acknowledged that it may well be that this occurs because of instructions received and acted upon, with the Magistrate expressing concern that late pleas of guilty, in circumstances where there was always going to be a conviction, deprived offenders of the benefits of an early plea. 165It was submitted that the Magistrate's expressed concern that late pleas of guilty deprived an offender of a discount could have no connection with his ability to determine guilt in the Plaintiff's matter. It was submitted that, if the Plaintiff's partner did not appear to give evidence pursuant to subpoena, the prosecution would be dismissed. Even if the Plaintiff was to change his plea of guilty on the day of the hearing, it was submitted that it was difficult to see any connection between the Magistrate's comments and any sentencing result. 166It was emphasised that the Magistrate, during the interview, demonstrated an awareness of the need to ensure that his feelings in respect of the legal practitioner did not impact upon his determination in any Court proceeding - he stated that he "would never allow a practitioner's behaviour to impact on a decision before the court". 167Even if it was accepted that the Magistrate may have dismissed the disqualification application on 5 February 2013 in Police v Priscilla Hines a little too quickly, in circumstances where the application was not pressed and where no appeal was made against the decision, it was submitted that the Magistrate's comments on that day were of little relevance to the present application. 168With respect to the specific errors complained of in Grounds 3, 4 and 5 in the judgment of 9 May 2013, it was submitted for the Attorney General that the Magistrate recited the test for apprehended bias, and relevant authorities, and that was the ruling which he made. To the extent that criticism was made of parts of the reasons where the language of actual bias was used, it was submitted that allowance should be made for what were ex tempore remarks made in a busy Magistrate's Court: Acuthan v Coates (1986) 6 NSWLR 472 at 479, 485. Submissions of Plaintiff in Reply 169The Plaintiff submitted that it was of no significance that the Magistrate's comments did not relate specifically to the Plaintiff. It was submitted that the Magistrate publicly made general comments about subjects on which he had to adjudicate. 170Mr Hamill SC disputed the submission on behalf of the Attorney General that the Magistrate was merely speculating on the reason for not guilty pleas by ALS clients. Although acknowledging that the Magistrate, from time to time, used terms such as "Look I don't know", it was submitted for the Plaintiff that the critical evidence on this aspect was the Magistrate's reply "Well that is my view ..." in response to a question from Ms Robinson as to whether he was suggesting that the ALS gave advice in too many cases to clients to plead guilty (see [63] above). This statement was accompanied by the Magistrate's explanation of the "Bourke defence". 171In response to the submission that the Magistrate's statement that the practitioner's behaviour would not affect decision making, the Plaintiff submitted that, amongst other things, the Magistrate had noted that Mr Lawrence "won't do himself any favours doing that" (at [61] above), which the bystander may take as a form of veiled threat. 172In response to the submission that the Magistrate felt aggrieved by a type of allegation of racism, it was submitted that the articles did not give rise to allegations of racism against the Magistrate and that, as a matter of law, speculation upon the motives and feelings of the judicial officer is not relevant to a correct application for the test for apprehended bias. 173It was submitted that the bystander might understand that the comments about ethics of ALS lawyers, the content of privileged communications, domestic violence in Aboriginal families and the inappropriateness of guilty pleas were made because the Magistrate believed them, and that he was angry about comments made in relation to other subjects. 174With respect to submissions of the Attorney General concerning statements made in other judgments concerning domestic violence, and material in the Equality Before the Law Bench Book, it was submitted that these statements were made in the context of sentencing decisions of Courts, or in a form which did not bear upon issues relevant to a disqualification application on the ground of apprehended bias.

Applying the Test for Apprehended Bias to the Circumstances of the Present Case 175The bystander would have regard to everything that the Magistrate said to the media, in writing and orally, together with the published articles and what was said in Court on the occasions identified in the evidence. In addition, the bystander will have in mind the other aspects to which reference has been made at ([103]-[129] above). 176The bystander will have regard to the context in which all statements were made, against the background of the media articles which preceded the Magistrate's letter to the editor of 6 January 2013. 177The bystander would keep in mind that the letter of 6 January 2013 and the interview of 7 January 2013 were considered statements by the Magistrate. They were not off-the-cuff comments delivered without an opportunity for reflection. 178The issue for determination does not require a conclusion that what the Magistrate did was ill advised. That said, the bystander would note the contents of the Guide, and the rationale for it, and would note as well that the Magistrate proceeded to make comments to the media in the expectation that any advice which he sought would have been that he should not speak to the media at all. Comments made in such a climate may well be thought by the bystander to lack the calmness, detachment and objectivity which the Guide encourages, if an occasion arises for public statements to be made by a judicial officer. 179The bystander will have regard to the cumulative effect of the statements made by the Magistrate. Although there are discrete areas which have been touched upon in submissions - domestic violence, the rate of pleas of not guilty and ALS representation - these topics become interrelated in the way in which events proceeded on and after 6 January 2013. 180The bystander would consider that some of the language used by the Magistrate in the letter and (more particularly) in the interview, was vehemently and trenchantly expressed, and was not mild or circumspect: Newcastle City Council v Lindsay at [35]-[36] (see [25] above). Some examples include: (a) "the crusading Mr Lawrence" in the letter (at [43] above); (b) the "real problem ... is the issue that is seemingly off limits for discussion in Australia ... Aboriginal children and most women are subjected to constant and brutal domestic violence largely as a result of alcohol and drug abuse " in the letter (at [43] above); (c) the "cycle of violence ensures that children are quickly displaced from home ... and fall into the all too familiar pattern of their drunken, drugged and violent parents. Thus the next crime wave is born" in the letter (at [43] above); (d) "the implication that we don't care and are trying to do social engineering which is Stephen Lawrence's latest little challenge to us" (at [51] above); (e) "the reason you're speaking to me is I haven't told anyone I'm going to speak to you, because I have no doubt that if I had indicated I was going to, they would have told me not to" (at [54] above); (f) "I felt personally affronted by the mention of Bourke and Brewarrina and that attacked my integrity as a Magistrate and as a human being" (at [54] above); (g) Ms Robinson said "you've obviously expressed anger yesterday that the ALS appears to be on a campaign about this" and the Magistrate replied "Absolutely" (at [56] above); (h) "when my integrity is challenged I feel seriously affronted" (at [60] above); (i) "there certainly appears to be [a campaign being run by the ALS concerning the magistracy]" (at [60] above); (j) Mr Lawrence's "comments are a direct attack on the Magistracy" (at [60] above); (k) "I think it's very unwise for practitioners to enter into a public debate where there's constant criticism of a particular group of Magistrates as Mr Lawrence has done. He won't do himself any favours doing that" (at [61] above); (l) in response to Ms Robinson saying "And you said yesterday that it doesn't do clients any favours either", the Magistrate replied "Well yeah that's why I didn't really want to talk to you last night because I was a bit hot and bothered and ... I was in a hotel room, motel room, and it was 40 odd degrees" (at [62] above); (m) in answer to a question whether the ALS gives advice in too many cases to clients "to plead not guilty when they're clearly guilty", the Magistrate replied "Well that is my view ..." (at [63] above); (n) "when you've got a rate of not guilties as high as it was in Bourke and Brewarrina, you have to wonder whether there is some campaign to ... take on the police absolutely every time and clog the court lists" (at [63] above); (o) volunteering and explaining the term "the Bourke defence" (at [63] above. 181The bystander would note the article in "The Australian" on 18 January 2013 which reported the Magistrate as saying that the "ALS had 'declared war' on the magistracy in the northwest". The headline for that article (over which it may be taken the Magistrate had no control) declared "Magistrate attacks ALS over rash of not guilty pleas" (see [67]-[70] above). 182The bystander would likely form the view that the Magistrate moved from a more guarded approach as the interview commenced to a less guarded one as the interview continued, involving the expression of strong views concerning the ALS. 183Had the Magistrate's comments been confined to general comments about domestic violence, the bystander would not likely conclude in favour of the Plaintiff. Judicial statements in sentencing remarks concerning domestic violence in Aboriginal communities bear similarities to the comments made by the Magistrate, and the material contained in the Equality Before the Law Bench Book would also be pertinent to this issue. The fact that the Magistrate made his comments in a letter and an interview, and not in a court judgment, would not be an especially significant factor in the mind of the bystander. 184However, the Magistrate proceeded to give a commentary concerning the ALS, and the approach of the ALS to defended matters, which the bystander would find troubling. That commentary, which was volunteered towards the end of the interview, did not seem to arise from the articles published before 6 January 2013. The bystander would likely form the view that these comments were gratuitous. 185The bystander would be aware of the ethical obligations of defence solicitors under the Revised Professional Conduct and Practice Rules (see [125]-[128] above). The bystander would form the view that the Magistrate appeared to be expressing a view (with some qualification) concerning this matter, based upon his own observations, that conclusion being adverse to the ALS. 186The bystander would be troubled by the peremptory rejection of the apprehended bias application on 5 February 2013, accompanied as it was by a barbed comment concerning the ALS. Although the application that day did not involve the Plaintiff, it was an application made in the context of a domestic-violence related charge, and was capable of shedding light upon the approach which might be brought to bear in future disqualification applications made to the Magistrate by the ALS on the same grounds. 187The refusal to entertain submissions in support of a disqualification application may be taken as an unwillingness to entertain arguments advanced by the ALS: AJH Lawyers Pty Limited v Careri at 254-255 [68]. To indicate a view, in a peremptory way, when informed of an application may reinforce an impression which had been created earlier: Antoun v The Queen at 52 [2]. If a judicial officer refuses to listen to argument in support of an application to recuse, then there is likely to be an error which may justify the intervention of the Supreme Court because of a reasonable apprehension that the judicial officer may not bring an impartial mind to the matter: Gurung v R [2012] NSWCCA 201 at [47]. 188The fact that the Magistrate proceeded to hear and determine the disqualification applications made on 2 April 2013 and 9 May 2013 disclosed an approach other than peremptory refusal. However, the context of those decisions, and in particular that on 9 May 2013 concerning the Plaintiff, did not indicate any real stepping back from the unduly robust approach demonstrated on 5 February 2013. 189The bystander would have regard to the matters stated by the Magistrate in his reasons for refusing to disqualify himself on 9 May 2013, and the fact that there was no qualification or modification of the statements made by the Magistrate, nor of the impressions which may flow from those statements. 190The Magistrate in this case said nothing to dispel or qualify what he had said before. In circumstances where detailed written submissions were placed before the Magistrate on the disqualification application, together with an affidavit attaching all relevant documentary material, the bystander would conclude that there was ample opportunity for the Magistrate to qualify or explain, in the manner referred to in the authorities, his statements made on 6 and 7 January 2013 and his comments in Court on 5 February 2013. The absence of any words of qualification, clarification or explanation would be a most significant factor in the mind of the bystander in this case. 191The bystander would have regard to the fact that the Magistrate had taken a judicial oath. The relevance of that on an apprehended bias application, however, is as mentioned earlier (at [103]-[108]). It does not and cannot constitute a complete answer to a claim of apprehended bias. 192The Magistrate's statements did not relate directly to the Plaintiff or any witness who was likely to be called at the hearing of his matter. However, a number of the Magistrate's critical comments did relate directly to the ALS, the Plaintiff's legal representative. Although the allegations against the Plaintiff do not assert the actual use of physical force by him, the charge alleges breaches of conditions of an apprehended domestic violence order. The term "domestic violence offence" in ss.4 and 11 Crimes (Domestic and Personal Violence) Act 2007 includes an offence under s.14 of contravening an apprehended domestic violence order. The bystander would identify a sufficient link between the general topic of domestic violence in Aboriginal communities and the circumstances of the charge against the Plaintiff. 193The bystander would have regard to the Magistrate's judicial oath, judicial statements concerning domestic violence in Aboriginal communities, the Fernando principles and the ethical obligations upon defence lawyers, together with all that had been said by the Magistrate to the media and in Court. The bystander would also note the absence of any qualification or explanation by the Magistrate in the judgment of 9 May 2013. The cumulative effect of these matters would be noted. 194The Plaintiff has identified what it is that might lead the Magistrate, in the bystander's mind, to decide the Plaintiff's case other than on its legal and factual merits. The first step in Ebner v Official Trustee in Bankruptcy has been established (see [79] above). 195The Plaintiff has articulated a logical connection between the statements of the Magistrate referred to in evidence and the feared deviation from the course of the Magistrate deciding the Plaintiff's case on the merits. The feared deviation arises as the Plaintiff is an Aboriginal man, charged with a domestic violence offence to which he has pleaded not guilty and, in relation to which, he is represented by the ALS. 196The two steps referred to at [79] above having been satisfied, it is necessary for the Plaintiff to establish that there is an ensuing apprehension of bias and that the apprehension is reasonable. 197Given the unusual accumulated statements and events relied upon in this case, and the strength of the language used by the Magistrate, the conclusion should be reached that the bystander might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the questions that his Honour would be required to decide in the criminal prosecution against the Plaintiff. This conclusion is reached as a matter of real and not remote possibility, and not probability (see [78] above). 198I am satisfied that the first and second grounds contained in the Amended Summons have been established. 199The third, fourth and fifth grounds focus upon the Magistrate's reasons delivered on 9 May 2013. Although it is appropriate to make some allowance for the fact that the Magistrate delivered an oral judgment on that day, it should also be kept in mind that the judgment was based largely upon that delivered on 4 April 2013 in the proceedings Police v Jai Stephens. The Magistrate did include additional statements in the judgment concerning the Plaintiff's application. However, the judgment was not in the nature of a complete ex tempore judgment, delivered on the day of the hearing after oral submissions had been made. The Magistrate had, in advance, the Plaintiff's written submissions and affidavit, as well as material which had been utilised in the judgment of 4 April 2013. 200It remains necessary to fairly read the judgment of the Magistrate of 9 May 2013 in its entirety. There is significant internal tension which suggests an application based upon actual bias and not apprehended bias, accompanied by statements from authorities relevant to apprehended bias (see the emphasised parts at [75] above). 201Significant operative parts of the Magistrate's reasons reveal language suited to a claim of actual bias. Those statements were irrelevant where the claim was one of apprehended bias. 202Grounds 3 and 5 should be upheld. 203However, Ground 4 has not been made out. Although the judicial oath is not an answer to a claim of apprehended bias, the fact that the Magistrate had taken a judicial oath remained relevant as a factor known to the bystander in determining whether apprehended bias has been demonstrated.

Appropriate Relief 204The Plaintiff has established error of law which, in the circumstances of the case, constitutes jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 573-574 [71]-[73], 578 [87]-[89]. 205The Magistrate's refusal to disqualify himself on 9 May 2013 does not appear to constitute an interlocutory "order" so as to come within the terms of s.53(3) Crimes (Appeal and Review) Act 2001. It has been held that a Judge's refusal to disqualify him or herself does not constitute an interlocutory judgment or order for the purpose of s.5F Criminal Appeal Act 1912: R v Rogerson (1990) 45 A Crim R 253 at 255; R v Reid [2004] NSWCCA 301; 148 A Crim R 425 at 428-429 [12]-[15]; Gurung v R at [41]-[44]. See also Barakat v Goritsas [2012] NSWCA 8 at [10]-[16]. 206Although the Court will ordinarily decline to exercise its jurisdiction to grant relief under s.69 where a statutory appeal is available (Meagher v Stephenson (1993) 30 NSWLR 736 at 738-739; Hill v King (1993) 31 NSWLR 654 at 656, 658-659), it remains open to the Court to grant relief under s.69 in an appropriate case: Director of Public Prosecutions v O'Conner [2006] NSWSC 458; 181 A Crim R 294 at 310 [45]. 207In the circumstances of the case, where I am not satisfied that the statutory appellate avenue is available, the appropriate course is to grant prerogative relief, in the form of relief in the nature of prohibition under s.69 Supreme Court Act 1970. This is a form of relief which is available where a successful claim of apprehended bias is made with respect to a judicial officer in an inferior court: Lee v Cha at [28]ff. 208Declaratory relief is not necessary given the effectiveness of prerogative relief as the appropriate remedy.

Some Closing Observations 209Before moving to make final orders, some further observations are appropriate. 210Firstly, at a human level, the Magistrate's upset at the publication of articles in "The Australian" prior to 6 January 2013 is understandable. It is not for this Court to attempt to determine the correctness or otherwise of the public statements made in those articles. However, the making of public statements by persons associated with the ALS was likely to give rise to controversy involving the administration of justice. Nothing said in this judgment should be taken as approval or acceptance of the statements made by the ALS, as reported in "The Australian" in October 2012 and January 2013. 211That said, the course taken by the Magistrate in becoming a strong public advocate in the media, commenting on a wide range of topics extending beyond the published articles, illustrates the difficulties which may occur where the approach advised in the Guide is not adopted. The restraints that come with the acceptance of judicial office pointed strongly here in the direction of compliance with the Guide. The dangers referred to by the High Court of Australia in Epeabaka (at [15] above) have come to pass in this case. 212Secondly, this Court is not in a position to express any view with respect to the plea of not guilty rate for ALS represented defendants in north-west New South Wales. 213The ethical obligations of legal representatives appearing for all defendants in the criminal courts are well known (see [124]-[129] above). The obligation of a legal practitioner in these circumstances is to take early instructions concerning the charge in question and, in that context, to comply with the requirements under the Revised Professional Conduct and Practice Rules to explain to the client the consequences of an early plea of guilty. Rule A.17B is intended to ensure that the client makes an informed decision as to plea. If the matter is to proceed as a defended hearing, the defendant's legal representatives must also comply with the obligations under Rules A.15A and 20. 214These Rules serve to ensure the proper use of Local Court time to determine the real issues in dispute in the proceedings: Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; 222 A Crim R 106 at 121-122 [50]. 215This obligation is emphasised with respect to summary hearings in the Local Court for domestic violence offences. The Chief Magistrate has issued Local Court Practice Note Crim 1, which provides for case management of criminal proceedings in the Local Court: ss.26(2)(a) and 27 Local Court Act 2007. Clause 10 of the Practice Note relates expressly to domestic violence proceedings. The objects of paragraph 10 include ensuring "that, where appropriate, pleas of guilty are entered at the first available opportunity and if a plea of not guilty is entered that a hearing occurs with expedition" (clause 10.2(a)). A time standard is nominated, proposing a hearing within three months of a charge being laid (clause 10.2(b)). Provision is made for streamlining any hearing, with certain specific steps to be taken where a defendant is legally represented (clause 10.3). 216These provisions give effect, as well, to a statutory object of the Crimes (Domestic and Personal Violence) Act 2007 - to ensure that "access to courts is as safe, speedy, inexpensive and simple as is consistent with justice" (s.9(2)(b) at [113] above). 217Given that all persons for whom the ALS appears have the advantage of legal representation, the statutory and procedural requirements for domestic violence hearings ought be met, with legal practitioners complying fully with applicable ethical requirements.

Costs and Orders 218The Plaintiff has succeeded in his claim for relief. The First and Second Defendants have submitted to the orders of the Court, except as to costs. In accordance with usual practice, no order for costs would be made against either of those Defendants. 219In the event that the Amended Summons was to be dismissed, it was noted that the Attorney General did not seek an order for costs. It was submitted for the Attorney General that, if the Court determined to grant relief to the Plaintiff, no costs order should be made against the Attorney General, in circumstances where the Attorney has intervened to assist the Court by ensuring that there was a proper contradictor. 220My prima facie view is to adopt this approach, and to make no order as to costs of the Amended Summons. However, I will hear submissions should the Plaintiff wish to seek a different order. 221I make the following orders: (a) pursuant to s.69 Supreme Court Act 1970, I make an order in the nature of prohibition precluding Magistrate Roger Clisdell from hearing the proceedings Police v Ryan Gaudie; (b) I will hear submissions with respect to the costs of these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2013