R v Lusink; ex parte Shaw

Courts and judicial system - Judges - Recusal or disqualification - Prejudgment or bias

Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488

Livesey v New South Wales Bar Assn [1983] HCA 17; (1983) 151 CLR 288

The Secretary: Office of the Director of Public Prosecutions

1. The secretary of the Department of Education Children and Young People has applied for the extension of a care and protection order in respect of X to the age of 18 and a variation of that order to give guardianship to the secretary. X's mother is ET. His father is KY.
2. KY has objected to me conducting the hearing of that application on the basis that I have a conflict of interest.
3. KY is unrepresented and based on the material he has filed on the substantive application and his submissions I understand the basis of his objection is not a conflict of interest but apprehended bias because I have previously sentenced him for family violence offending.
4. When I heard submissions in respect of the application that I recuse myself it was accepted that I had sentenced KY on 10 May 2023 to imprisonment for a period of 10 months in respect of many family violence and other offences. It was not clear, at least to me, whether I had found him guilty of any offences after he had pleaded not guilty.
5. I have subsequently viewed the record of proceedings sheets for the complaints in respect of which I sentenced KY on 10 May 2023 and listened to my oral reasons for decision in respect of the charges, in respect of which KY pleaded not guilty on the same complaints.
6. Those various court records indicate that I sentenced KY on 10 May 2023 for the following matters where KY pleaded guilty:
   • 5 breaches of a family violence order;
   • 65 breaches of an interim family violence order;
   • 59 breaches of bail conditions by breach of an interim family violence order;
   • 1 count of possessing a bestiality product;
   • trespass;
   • driving whilst disqualified;
   • driving with alcohol present in his body contrary to s 6(2) of the Road Safety Alcohol and Drugs Act 1970;
   • using an unregistered motor vehicle and using a motor vehicle with no premium cover;
   • one charge of stealing.
7. In respect of the matters where KY pleaded not guilty I conducted a hearing on 21 March 2023. On 27 March 2023 I found a number of those charges not proved but I found the following charges proved:
   • charge of common assault by grabbing ET by the face;
   • breach of the family violence order by that assault;
   • charge of breaching the family violence order by saying "I will run through your house with a lot of ammunition", constituting a threat.
8. KY did not give evidence in respect of any of those charges. I was therefore not required to assess his credibility as a witness.
9. Nonetheless, in sentencing KY I received an extended pre-sentence report.
10. Of relevance to this application, that report referred to KY's exposure to family violence as a child, his record of family violence offending in the relationship with ET, and that he was a high risk of future family violence offending.
11. In sentencing KY, I characterised his conduct as manipulative and controlling. I referred to the need for specific deterrence and referred a number of times to the persistent nature of KY's offending. Of significant relevance to this application I said that the persistent nature of the offending involved blatant defiance and meant that KY's prospects of reform were somewhat remote. I also said that I thought KY's relationship with ET should be prevented for her long-term safety. I made a family violence order preventing any contact with ET for a period of five years, except for purposes relating to X.

1. The overarching principle is that I should not hear and determine this matter if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Livesey v New South Wales Bar Assn [1983] HCA 17; (1983) 151 CLR 288 at 293-294.
2. That is to be tested by considering what a fair-minded lay observer would think about that issue: Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and Kirby J at [53].
3. Questions of degree are involved: Livesey v New South Wales Bar Assn at 294 referring to R v Lusink; ex parte Shaw (1980) 55 ALJR 12 per Aickin J at 16.
4. A reasonable apprehension of bias will exist where a judge sits to hear a case after expressing clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact: Livesey v New South Wales Bar Assn above at 300.
5. One of the factual matters to be considered in this case is KY's family violence offending against ET. I sentenced KY in respect of much, but not all, of that offending. It is also true that I found him guilty of a relatively minor assault which breached a family violence order and a threat to run through ET's house with ammunition which also breached that order.
6. It can be accepted that KY as a party and an objective bystander would have a reasonable apprehension that I would have a concluded view about the extent and detail of KY's family violence offending. A reasonable apprehension of prejudgment as to the existence of that extensive history of family violence is therefore clearly established.
7. However, the mere fact of prejudgment is not sufficient to require me to recuse myself. As stated in Livesey above at 300, that prejudgment must be in respect of a live and significant issue.
8. In my view, there is a distinction to be drawn between a matter of material significance and a live and significant issue. In order to be a live and significant issue in the proceedings the matter must be one which is reasonably capable of being the subject of some dispute.
9. Giving effect to that distinction, although KY's extensive history of family violence offending is clearly a matter of material significance in this case, it cannot be said to be a live and significant issue in the proceedings because there is no basis upon which it can realistically be disputed.
10. Indeed KY's evidence in this case largely assumes the existence of that history. It is focussed on the future being principally directed at demonstrating that he has changed as a result of education he has undertaken and the desirability of a father having a relationship with his child.
11. Although the existence of prejudgment in respect of KY's history of family violence offending is established, I do not consider that is prejudgment in respect of a live and significant issue in the proceedings because no other finding in respect of that history would be open on the evidence.
12. However that is not the end of the matter.
13. The real relevance of KY's history of family violence offending in this case is how it speaks to the risk of future family violence offending by KY which could affect X's interests. To be blunt, that involves consideration of the application to this case of the proposition that past conduct is a reliable indicator of future conduct.
14. Clearly, the risk of future family violence offending by KY would be seen by an objective bystander and by KY to have been a relevant consideration in respect of a number of relevant sentencing objectives including specific deterrence and the protection of ET, when I sentenced him on 10 May 2023.
15. The material I received in sentencing KY indicated he was a high risk of future family violence offending. It could be reasonably apprehended, not inaccurately, that I had formed a pessimistic view about that risk. Indeed, I expressed that view in sentencing KY. I found that his prospects of reform were remote. That is sufficient to establish actual prejudgment on that issue.
16. The only remaining question is whether or not that prejudgment is in respect of a live and significant issue in the proceedings.
17. Clearly KY's risk of future family violence and prospects of reform are a matter of material significance in this case. They are also a matter of dispute.
18. The Secretary and if I understand her position correctly, Ms Eaton, contend that KY's history of family violence demonstrates a risk for the future that requires an order for guardianship to be made until X is 18 years of age. That essentially involves the contention that there is no real prospect of change.
19. KY seeks to establish that he has changed and will be able to sustain that change in a manner which would justify ongoing contact with X and even establishing X in his care in the future, so that a care and protection order to the age of 18 years is not appropriate.
20. In my view, it is inevitable that any magistrate seeing KY's record of prior offending would form a tentative view that it provided strong support for the position of the Secretary and X's separate representative in respect of the risk of future family violence offending by KY.
21. Nonetheless, I am not satisfied that KY's position is so unarguable that the question of his future risk of family violence and prospects of reform is not a live and significant issue in the proceedings. KY's position, albeit perhaps not a strong one, is arguable.
22. Although a robust approach to applications of this sort is justified to avoid undermining the usual listing practices and procedures of the court, the authorities, and indeed commonsense, suggest erring on the side of caution when the position is doubtful. That is the approach Ms Eaton urged upon me.
23. Such caution is even more necessary when the reasonable apprehension of prejudgment is clear, that prejudgment exists in respect of a material matter in the case and the only question is whether favourable assessment of future risk of family violence and prospects of reform is arguable.
24. I have considered whether the nature of these proceedings as an inquiry where the best interests of the child is paramount might affect the conclusion on this application. I don't think it does. X's best interests involve considering the desirability of a relationship with his father and the risk of being exposed to family violence perpetrated by his father which is the same question whether considered in light of X's best interests or any desire of KY to create and maintain a parental relationship with X.
25. Although recusal will inevitably lead to delay which is unfortunate, there is no suggestion of any specific prejudice arising from that delay. Even if there were, such prejudice would be the price paid for procedural fairness otherwise.
26. This is not a case where necessity requires me to hear the matter.
27. Although Magistrates Brown and Cure have also found the defendant guilty of family violence offending, I understand Magistrate Hughes has not done so, and in any event arrangements could be made for a magistrate from another region to conduct the hearing if that was required.
28. For all of those reasons I am satisfied it is appropriate for me to recuse myself from hearing this matter.
29. Subject to any submissions from the parties I would propose to arrange for the matter to be listed for hearing before Magistrate Hughes in Launceston.