Kalache v Local Court of New South Wales

Supreme Court of NSW|2017-11-21|Before: McCallum J, Hamill J, Basten JA

Judgment

HER HONOUR: Ali Kalache stands charged with a number of domestic violence offences allegedly committed against his ex-wife in April and May 2016. The hearing of the charges has commenced in the Local Court and is due to resume this Friday, 24 November 2017. Part of the evidence sought to be relied upon by the prosecutor is a recording secretly made by Mrs Kalache of a private conversation between her and Mr Kalache in the presence of their children. On the second day of the hearing, the magistrate gave an evidentiary ruling against Mr Kalache relating to the admissibility of that covert recording, giving a short ex tempore judgment. The terms of the judgment prompted Mr Kalache to request the magistrate to disqualify himself on the grounds of apprehended bias. His Honour declined to do so.
Mr Kalache now seeks an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) prohibiting the magistrate from hearing the proceedings. The magistrate's decision refusing to disqualify himself was given on 25 August 2017, but the summons was not filed in this Court until 6 November 2017, less than three weeks before the scheduled resumption of the hearing in the Local Court. The proceedings in the Local Court have already suffered considerable delay, due largely to objections and applications made on behalf of the plaintiff. Having left the present application until the last minute, the plaintiff also sought a stay of the proceedings in the Local Court pending its determination. That application was refused by Hamill J who instead made arrangements for the summons to be heard on an urgent basis.
In the absence of a contradictor to the application, Hamill J also requested the Attorney General to consider making arrangements for a legal representative to appear as amicus curiae. Ms Edwards of counsel was granted leave to appear on that basis. She provided careful written and oral submissions which were of considerable assistance in the urgent determination of the proceedings.
On 22 November 2017, I dismissed the summons, reserving my reasons. These are my reasons for dismissing Mr Kalache's application.

Power

A decision of a judicial officer to decline to disqualify himself or herself from the further hearing of proceedings is not an order that may properly be the subject of an appeal. However, it is well established that this Court has power to restrain a judicial officer from continuing with the proceedings, by making an order in the nature of prohibition pursuant to s 69 of the Supreme Court Act, if a proper basis for the exercise of that power is made out. Bias or a reasonable apprehension of bias would be a basis for exercising the discretion to make such an order: see Lee v Cha [2008] NSWCA 13 at [23], [28] per Basten JA; Hodgson and Bell JJA agreeing at [2] and [97].
A judicial officer may be disqualified for apprehended bias "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. A first step in the application of that test is to identify what it is said might lead the judge to decide the case other than on its legal and factual merits: Ebner at [8].
Mr Kalache submits that step is established in the present case by the fact that the magistrate's ruling in respect of the covert recording in fact decided the case other than on its legal and factual merits in that his Honour had regard to material which was irrelevant and not properly before the Court.

The evidentiary ruling

The charge sheets are not before this Court. By reference to the transcript of the proceedings below, the charges and allegations against Mr Kalache may be summarised as follows: 1. a charge of common assault contrary to s 61 of the Crimes Act 1900 (NSW). That charge is based on an allegation that, on 9 April 2016, Mr Kalache pushed Mrs Kalache backwards while she was vacuuming, causing her to fall to the ground landing on her bottom, and that he later dragged her by the hair down the driveway and kicked her to the upper thigh; 2. a charge of intentionally or recklessly destroying or damaging property contrary to s 195(1)(a) of the Crimes Act. That charge is based on an allegation that, on 24 April 2016, Mr Kalache threw Mrs Kalache's laptop against a wall; 3. a charge of stalking or intimidating intending to cause fear of physical harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). That charge is based on the evidence considered below.
Mrs Kalache gave evidence that, on 9 May 2016, when she returned from university after an exam, Mr Kalache looked at her Facebook account and then "called the children down for a meeting of sorts". She said that he was asking the children whether she was teaching them to lie. The question appears to have arisen from the fact that Mrs Kalache had taken the children to see her parents and had evidently sought to keep information about that visit from Mr Kalache. Mr Kalache had previously had a falling out with Mrs Kalache's brother-in-law, Basil, and had told her she was not to go to her parents' house with the children anymore. During the "meeting" on 9 May 2016, he questioned the children as to whether their mother was teaching them to lie, asking "did your mother tell you to say you didn't see Basil?" Her son responded that she had. Mrs Kalache said that the children became distressed during the meeting and that Mr Kalache was "yelling and screaming in normal fashion".
The recording made by Mrs Kalache is evidently relied upon by the prosecutor primarily to support that charge (there is a suggestion that it may also contain an admission in respect of the assault charge). The recording was played in the Local Court but is not before this Court. The impression one obtains from the transcript of Mrs Kalache's evidence is that the recording captured Mr Kalache raising his voice and the sound of one of the children crying.
The conversation Mrs Kalache recorded was partly in English and partly in Arabic. The prosecutor sought to tender a transcript that included an interpretation of the Arabic parts, but Mr Kalache objected to the tender of that transcript. On the first day of the hearing (7 April 2017), the objection foreshadowed was that the interpretation had not been undertaken by a NAATI qualified interpreter. Thirteen days before the resumed hearing, the same interpretation was served again as having been certified by a qualified Arabic interpreter. The day before the hearing, Mr Kalache notified the prosecutor of an objection to that certificate, by which time it was too late for the prosecutor to arrange for the interpreter to attend court to give evidence. It appears the objection to the transcript of the recording on that basis is yet to be determined.
The magistrate's evidentiary ruling given on 25 August 2017 relates to a separate objection to the recording based on the contention that it was illegally obtained. Section 7(1) of the Surveillance Devices Act 2007 (NSW) prohibits the use of a listening device to record a private conversation. It was common ground that the conversation between the complainant and Mr Kalache was a private conversation within the meaning of that section.
The prosecutor argued that the prohibition did not apply because the recording falls within s 7(3), which creates an exception where a principal party to the conversation consents to the use of the listening device and the recording of the conversation "is reasonably necessary for the protection of the lawful interests of that principal party" (s 7(3)(b)(i)).
The complainant gave evidence on the voir dire directed to that issue. Asked why she made the recording, she said "because he told me on my way home from uni that he would be sitting the children down and I knew what that meant, that we would be having one of his dictator style arguments". Asked what she meant by that, she said "he yells and screams and we have to listen". Asked why she thought she needed to record the conversation as opposed to just listening to it, she said "when the initial assault happened I said to him the next day I wanted a divorce. His response was to laugh at me and to tell me to pack my stuff up and go to my parents. I then started to put things in place so that when I did leave, he wouldn't separate me from my children, which was another thing that he had mentioned".
In response to a question in cross-examination on the voir dire, she said she recorded because she was scared for herself and her children. She said she was going to keep the recording to protect herself and her children. Asked how it was going to protect her and her children, she said "I think it's a demonstration of the type of behaviour that was inflicted upon myself and my children throughout my marriage".
Mr Lange, who appears for Mr Kalache, submitted that the recording was neither made for the protection of a lawful interest nor reasonably necessary for that purpose. The magistrate rejected both contentions. It is appropriate to set out his Honour's reasons in full [emphasis added]: HIS HONOUR: This is the tender of a phone recording of a conversation that happened inside the family home between a husband and wife with children present. It is agreed that that is a private conversation within the meaning of the Surveillance Devices Act. The question that arises is whether the recording of the conversation was reasonably necessary for the protection of the lawful interests of the victim or the witness in this case. That is because otherwise it is a breach of s 7(1). She gave evidence of the occurrence of an assault on 9 April and of a destroy or damage property on 24 April and whilst I am not in a position to determine those matters beyond reasonable doubt now, I can take into account her evidence to the effect that those matters occurred on those dates. She then gave me evidence that she had been told to come to a form of family meeting and that she had an expectation that there would be argument and verbal abuse of some kind at least at that time. She said that after the assault she had said she wanted a divorce and she was told that she could leave but that she would have to leave the children behind. She decided then that she needed to take steps to protect herself and her children and to protect herself from being separated from her children. I do not think she had a clear idea of all the things that she would or might need to do in the future to protect herself but she thought it included speaking to a lawyer, which she did, and she decided in this case that it should include taping this conversation for later possible use. I do not think she needed to have thought through in any detail how the recording might be used to protect her interests beyond knowing that it is something that might be able to be used at some point. I think she had an interest in protecting herself and her children from further violence or from violence. She had an interest in obtaining evidence for possible use in a criminal proceedings or for use in the family law process. It is well known that domestic violence can proceed in tandem with family law proceedings and indeed, in this case there is domestic violence orders in place and there in fact has been a plea of guilty for a contravene an AVO. I think that in all of those circumstances she had a lawful interest in protecting herself without needing to know the precise detail of how that might work. The question is whether it was reasonably necessary to protect herself to make a recording of this conversation which otherwise would have been private. The case law, including Corby v Corby is to the effect that reasonable necessity does not mean that it is the only way of protecting yourself. It should be read as reasonably appropriate rather than essential. It seems to me that when one knows there is a conversation which could be violent or which could be relevant to a court at a later time, it is a reasonably appropriate way of protecting yourself to make a recording of that conversation. It might not be the only way, it might not be the essential way, but it is a reasonably appropriate way. For those reasons I do not think this conversation was illegally recorded under the Surveillance Act and I will not reject it on that ground. [Emphasis added].

The recusal application

Mr Lange responded to the evidentiary ruling by immediately foreshadowing a request that the magistrate disqualify himself. He asked the magistrate to stand the matter down until after the lunch adjournment for that purpose, which his Honour agreed to do.
After lunch, Mr Lange informed the magistrate that he did not make the application lightly, adding that he had "sought advice from silk as well". Those remarks were irrelevant to the magistrate's task and, for preference, ought not to have been made.
Mr Lange identified three aspects of the evidentiary ruling said to establish a basis for apprehending bias. In my respectful opinion, the submissions were based on a series of mistakes and misconceptions and the recusal application was without merit.
The delineation between the three points argued below was not entirely clear and may have entailed a degree of overlap. The first related to the magistrate's finding as to the complainant's "lawful interests". Mr Lange submitted that the magistrate took into account "irrelevant material or considerations" on that issue, namely, that the complainant had a lawful interest in protecting herself "against the commission of further assaults" and that the recording was to be used in "further criminal proceedings". As I read the argument, those were intended to be points one and two raised by Mr Lange.
It should be acknowledged that, of necessity, Mr Lange had to address that issue without the benefit of a transcript of the magistrate's ruling. At a later point in the argument, the sound recording of the ruling was played back, as neither the magistrate nor Mr Lange had complete notes. The play-back revealed that the magistrate's precise words on the issue of "lawful interests" were as follows: I think she had an interest in protecting herself and her children from further violence or from violence. She had an interest in obtaining evidence for possible use in criminal proceedings or for use in the family law process. [Emphasis added].
After hearing the recording played back, the magistrate indicated that he thought he had said the words "or from violence" to correct himself (having first said "from further violence") since it was not established whether there had been violence.
The third point, said to be of greater significance, was the magistrate's reference to "the conviction". The magistrate said: It is well known that domestic violence can proceed in tandem with family law proceedings and indeed, in this case there is domestic violence orders in place and there in fact has been a plea of guilty for a contravene an AVO. [Emphasis added].
Mr Lange submitted that that was also an irrelevant consideration but, more significantly, that it entailed two further vices. First, it indicated that his Honour had regard to "bad character". Secondly, it indicated that his Honour had "transgressed the ordinary role of a judicial officer" by obtaining access to other documents.
As to bad character, Mr Lange read at length from the headnote of an English decision to the effect that evidence of bad character should not be taken into account in determining whether a person is guilty of a criminal offence. So much may be accepted. That is plainly not what the magistrate did in this case. The issue with which his Honour was concerned in the evidentiary ruling was the complainant's lawful interests and whether the recording was reasonably necessary for their protection. The ruling was anterior to any conclusion as to Mr Kalache's guilt, as his Honour was at pains to point out.
The magistrate inferred, from Mrs Kalache's evidence, that her lawful interests included protecting herself and her children from violence and obtaining evidence for possible use in criminal proceedings or for use in the family law process. His Honour's reference to the plea of guilty in that context was plainly parenthetical, as his Honour later sought to explain. It is clear that his Honour was adverting to the AVO matter, not because it established any prior admitted offence but because it instanced the existence of AVO proceedings, the complainant's interest in which was the very lawful interest his honour inferred might be protected by the gathering of evidence (as it clearly would).
The inferences his Honour drew on those matters, far from being irrelevant considerations, were plainly open on the evidence and relevant to the issue his Honour had to determine.
The Magistrate accepted without equivocation that the plea to the charge of contravening an AVO was irrelevant and that he should not have taken it into account. Mr Lange nonetheless maintained that the fact that his Honour had had regard to something outside the evidence revealed that he had "gone beyond the bounds of what a judicial officer ought to do". Mr Lange went so far as to suggest that the magistrate had become an "investigator". While he expressly disclaimed any suggestion that the magistrate "went around ferreting for this information", the clear insinuation was just that.
The submission was unfair and should not have been made. The fact that a plea had been entered to a charge of breaching an AVO was known to the magistrate because Mr Lange had told him so himself, back in April, and had specifically asked that the plea matter "travel with" the hearing matter. It is perfectly clear from a consideration of the whole of the transcript that the magistrate had been reminded of that exchange because, unlike Mr Lange, the magistrate had prepared for the second day of hearing (25 August 2017) by reading the transcript of the first day of the hearing (7 April 2017). Mr Lange had not done that, evidently not having been briefed with that earlier transcript.
I am not persuaded that a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the determination of the criminal charges. On the contrary, it is my impression that such an observer would perceive the magistrate's conduct of the proceedings to have been eminently fair.
For those reasons, I ordered yesterday that the summons be dismissed. I have prepared these reasons with some urgency so as to make them available for the parties before the hearing resumes tomorrow.

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: 24 November 2017

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