A magistrate in country NSW has been prohibited from presiding over a domestic violence case involving an Aboriginal man, after he publicly accused the Aboriginal Legal Service of encouraging clients to plead not guilty to deliberately clog up the courts.
The NSW Supreme Court on Thursday disqualified magistrate Roger Clisdell from hearing a matter involving a Forbes man on the grounds of ''apprehended bias''. In January the magistrate made a series of highly critical comments about the Aboriginal Legal Service in a News Ltd publication in response to the organisation's claim that magistrates in regional areas were to blame for the disproportionately high rate of incarceration among Aboriginal driving offenders.
Mr Clisdell said the ALS had ''declared war'' on magistrates. He countered that ALS had an ''inability to enter an early plea of guilty to charges where there clearly should have been a plea entered'' and suggested this was a deliberate ploy.
''When you've got a rate of not guilties as high as it was in Brewarrina, you have to wonder whether there is some campaign to … take on the police absolutely every time and clog the court lists,'' he said. '' Inevitably what happened was that the victim wouldn't turn up and the matter would be dismissed.''
The magistrate also made several comments about the widespread nature of domestic violence in Aboriginal communities.
''[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,'' he said.
Soon after his comments were published, ALS solicitors requested Mr Clisdell recuse himself from several matters involving Aboriginal people, including the Forbes man, on the grounds of apprehended bias.
When the magistrate refused, the organisation took him to the Supreme Court, arguing his comments could give rise to a perception he was biased on matters involving pleas of not guilty, domestic violence and matters where clients were represented by the ALS.
Lawyers for the Attorney-General, acting as a contradictor in the case, argued any apprehension of bias would not be connected in the mind of ''the bystander'' to the domestic violence case involving the Forbes man.
But Justice Peter Johnson disagreed. ''Had the magistrate's comments been confined to general comments about domestic violence, the bystander would not likely conclude in favour of the plaintiff,'' he said.
Correction: The original version of this story said the Attorney-General was acting on behalf of Mr Clisdell instead of as a contradictor in the case.