Earlier this year I reported on the tragic circumstances of a young child’s appearance before Local Court Judge Greg Borchers in the Local Court in Tennant Creek. The child was without doubt no innocent—as he appeared before the court he’d racked up at least $3,800 in fines from previous court appearances—but his personal and domestic circumstances were terrible.
As I noted at the time, the 13 year old’s:
… mother was killed following an horrendous and sustained assault. His father has been charged with his mother’s murder and that matter has yet to proceed to a trial … [in] June 2017 the child appeared before Judge Greg Borchers in the Tennant Creek Youth Court, entering a guilty plea to damaging a government car, the doorway of the local bank and damage to a restaurant committed over two days in late May 2017. The child had more that $3,800 in outstanding fines from previous offences and was under a good behaviour bond imposed in March 2017.
There is perhaps no more thankless job in the the NT judicial system than that of a judge of the Local Court. That the law generally can be a toxic profession is without doubt but the legal sausage factory that is the lowest-ranked in the NT court system is both the front-line and the front door of the judicial system in the NT. Most matters—from the most gruesome of murders to the most benign of assaults—pass through its doors.
The Mad-Monday bail and arrest sessions are perhaps the most dramatic manifestation of just how chaotic the Local Court can be on a busy day. While most of us are staggering off for a late start after a big weekend, lawyers, prosecutors and judges front up for the 9am start to process the weekend’s other tragics—the drunk drivers, the partner-bashers and robbers who’ve all ended up in custody after making some very wrong decisions.
Lawyers come and go from the Court, weighed down by stacks of files and providing the quickest of advice to their clients before ducking down to the court cells or scuttling back to their offices—some clients are contrite and shamed, others just plain confused or still angry and hungover. But through all of this chaos the one constant is the judge on the bench. Some Monday bail-and-arrest sessions last for hours and—as a quick perusal of the daily lists for the Local Court in Darwin or Alice Springs can attest—the litany of matters before the court can be bewildering and fundamentally depressing for even the most glass-half-full optimist.
As I noted in June this year, Judge Greg Borchers’s treatment of the 13 year old in the Tennant Creek Youth Justice Court was extraordinary. And I was not alone. The NT News editorialised at the time:
It is difficult to convey just how upsetting comments made by Northern Territory Judge Greg Borchers to the 13-year-old sone of a murder victim were … Judge Borchers displayed no sympathy – or basic compassion – for a young child facing a heartbreak few will ever experience … Judge Borchers’ approach appeared to centre upon retribution, not rehabilitation, or both. That is in no one’s best interests. Frustration at youth offenders is understandable. But throwing the book at vulnerable kids and leaving them to rot in prison is not the only solution.
The child’s legal advisors, the Central Australian Aboriginal Legal Aid Service (CAALAS), lodged complaints about Judge Borchers’ treatment of their client and in relation to five other matters from earlier in 2017 in both the Local Court and the Youth Justice Court with Dr John Lowndes, Chief Judge of the Local Court. Last Friday afternoon, just over 6 months after the child appeared before Judge Borchers in Tennant Creek, Chief Judge Lowndes released a Media Statement that dismissed the principal complaint, which he characterised as Judge Borchers accusing the child of taking advantage of the recent death of his mother in explaining his offending.
Dr Lowndes found the judge said no such thing, but was only making an observation that no one was exercising parental control over the young person to ensure that he was not roaming the streets at night and was attending school. Judge Borchers had said that the young person was taking advantage of that lack of parental control, Dr Lowndes found.
Dr Lowndes also dismissed other allegations that Judge Borchers had “been denunciatory and humiliating to the child,” but noted that some of his remarks appeared harsh and were misguided but that these comments fell well short of judicial misconduct, but did amount to inappropriate judicial conduct. Dr Lowndes:
… also rejected claims Judge Borchers shamed the young person, or that an exchange between the Judge and defence counsel was mocking of either the youth or his family … Several other complaints, including that Judge Borchers inappropriately interrogated the grandmother of the young person; ignored helpful information from the defence counsel; pre-emptively snapped any possible connection between the death of the young person’s mother and the offending, and was dismissive of the submissions of defence counsel, were also not found to have been the case.
Dr Lowndes may have exonerated Judge Borchers in relation to the treatment of CAALAS’s child client he was less forgiving in relation to the matters the subject of the further five complaints, finding that in several matters Judge Borchers:
… has not demonstrated the courtesy, tolerance, patience and sensitivity which, in accordance with the AIJA Guide to Judicial Conduct, should necessarily characterise the discharge of the judicial function,” Dr Lowndes said. Examples of this were comments made that were gratuitous and unnecessary and remarks that Dr Lowndes found displayed a lack of judicial temperament. “The judge has been found to have engaged in inappropriate judicial conduct, which is unacceptable,” Dr Lowndes said. “It detracts from the proper performance in the matter at hand, specifically, and it reflects poorly on the courts generally and brings the judiciary into disrepute.”
Dr Lowndes also not that he had decided not to assign Judge Borchers to duties in the Youth Justice Court in Alice Springs until is “deemed appropriate” to re-assign such duties to him. However, in a move that has left more that a few observers mystified, Dr Lowndes noted that Judge Borchers will continue to be assigned to Local and Youth Justice Court duties outside of Alice Springs—including Tennant Creek— because it would be impractical not to assign him to circuit court work as it would put an “insuperable burden” on his fellow judges of the Local Court based in Alice Springs.
Judge Borchers has been offered the option of professional counselling.
CAALAS has rejected the findings by Chief Judge Lowndes, noting that the Judge Borchers’ remarks to the Youth Justice Court in relation to their child client “speak for themselves.” In relation to Chief Justice Lowndes’ findings on the other matters, CAALAS noted the finding of “inappropriate judicial conduct” against Judge Borchers, noting that such conduct:
… has ramifications beyond those properly spelt out by Dr Lowndes. CAALAS clients, both in criminal and non-criminal court matters, have found this conduct confronting and troubling. CAALAS lawyers have found this conduct adds a great deal of stress to their already difficult jobs. This series of complaints has shone a light on the stresses under which judges, lawyers and court staff work and much needs to be done to rectify this situation generally.
CAALAS called for the establishment of an independent investigative body to hear such complaints against members of the NT judiciary, citing the establishment of a Judicial Commission as an appropriate model.