YA v R (disqualification)

1. [1]

   N ADAMS CJ AT CL: The reasons of Rigg J reflect why I joined the order of the Court on 16 February 2026 that the application that Rigg J recuse herself be dismissed.

2. [2]

   RIGG J: At the commencement of the hearing of YA’s application for leave to appeal against the severity of his sentence, his Senior Counsel made an application that I disqualify myself from hearing the matter. After hearing submissions the Court unanimously refused the application. These are my reasons for joining in that order.

Overview of the sentencing exercise below and appeal

1. [3]

   On 24 December 2024 Hamill J sentenced the applicant to an aggregate sentence of 6 years and 9 months imprisonment with a non-parole period of 4 years and 3 months for the manslaughter of Darcy Moore (a pseudonym), the wounding of EO with intent to cause grievous bodily harm, and the wounding of EC with intent to inflict grievous bodily harm, all committed on 1 September 2021 at Blacktown. YA pleaded guilty to these offences on 1 November 2024. His sentencing proceedings were conducted in part at the same time as those of four co-offenders who stood trial by a jury presided over by his Honour in connection with the events of 1 September 2021, being found guilty of the same offences that the applicant pleaded guilty to in connection with Darcy Moore and EC, and the offence of wounding with intent to murder in relation to the injury caused to EO. His Honour sentenced all five offenders at the same time, with one sentencing judgment pertaining to all: R v Diallo & Ors (No 17) (Sentence) [2024] NSWSC 1650. References hereafter to paragraph numbers are to that judgment, unless otherwise indicated.

2. [4]

   The applicant played no role in the trial of the four co-offenders. Hamill J had ordered, prior to the commencement of that trial, that YA be tried separately. His guilty pleas were entered in the lead up to his scheduled separate trial date. He was still participating and was legally represented (by Mr Terracini SC who also appeared for him in this Court) during the course of a pre-trial hearing on 8 July 2024, in circumstances to which I will return.

3. [5]

   For the purposes of sentencing the applicant, there were no agreed facts. Rather, the transcript of the trial of the co-offenders, and some pertinent exhibits, were tendered by the Crown against YA. His Honour made detailed factual findings regarding the circumstances of the offending of the applicant, and his co-offenders, none of which are challenged on appeal.

4. [6]

   The grounds on which the applicant seeks leave to appeal, as pressed, are as follows:

   1. (1)

      That the applicant has a justifiable sense of grievance in respect of the disparity between the sentence imposed on him, and the sentence imposed upon AG, his co-offender, given the principles of parity.

   2. (2)

      No longer pressed.

   3. (3)

      The sentencing judge erred in his approach to pre-sentence custody by:

   4. (4)

      A miscarriage of justice arose as a consequence of the sentencing judge’s inaccurate assessment of the onerousness of the applicant's time in custody.

   5. (5)

      The sentence imposed on the applicant was manifestly excessive.

5. [7]

   The basis on which the disqualification application was made was that prior to my appointment to the Supreme Court in July 2024, when I was the NSW Senior Public Defender, I acted for a juvenile, KL, who was charged with the unrelated murder of Uati Faletolu at the Sydney Royal Easter Show on 11 April 2022. KL has a connection with the events giving rise to the offences committed by the applicant which will be explained further below.

Relevant aspects of Hamill J’s sentencing judgment

1. [8]

   Hamill J’s remarks on sentence commence as follows:

2. [9]

   KL was present at Blacktown on the evening of the commission of the applicant’s offences, and was associated with Darcy Moore’s group. He was not a victim of any of the three offences, did not give evidence at the co-offenders’ trial, and there were no out of Court representations made by him relied upon by the Crown (or any party). He is not mentioned in Hamill J’s 71-page sentencing judgment. He was not mentioned in the written submissions filed for the applicant. He was mentioned in the written submissions filed for the respondent only to note the statutory prohibition against publication of his name, he being someone mentioned in the material before the Court who was a juvenile at the time of the commission of the offences and so protected by a statutory non-publication order.

3. [10]

   The applicant and his co-offenders were sentenced on the basis of their participation in a joint criminal enterprise to commit an unlawful and dangerous act, namely “to intimidate and humiliate and assault, while armed with knives, the occupants of that home”, being Darcy Moore’s residence. AD was the person who fatally stabbed Darcy Moore. All were sentenced for the manslaughter of Darcy Moore on the basis that AD stabbed him without murderous intent, believing his conduct was required in self-defence, although it was not reasonable in the circumstances as he perceived them. His Honour found the degree to which AD’s action exceeded what was reasonable was “relatively slight” given the single stab wound he inflicted, and the nature of the weapon with which he was being assailed by Darcy Moore.

4. [11]

   The applicant was sentenced on the basis of the same joint criminal enterprise in relation to the other two offences, his liability extended by his contemplation that one of the offenders would wound someone with intent to cause really serious harm. The person who stabbed EO could not be determined, and the person who stabbed EC was Panache Karise. They were each found to have acted with a belief that the conduct was necessary in self-defence, but their subjective beliefs, respectively, exceeded “by a large margin” and “substantially” what was reasonable in the circumstances as they perceived them.

5. [12]

   His Honour referred to the evidence of a number of witnesses who were associated with Darcy Moore’s group, and referred to specific conduct of some of them that related to the offences for sentence, but none of this referred to KL in particular. In relation to the background of the offences and events of 31 August 2021, with which YA was intimately involved, there is no suggestion that KL was present or involved in any of the relevant communications.

6. [13]

   His Honour described the conduct of the applicant’s group in terms that are not challenged. Insofar as there was messaging between AG and Darcy Moore prior to Darcy Moore and his associates emerging from the home, this had no alleged connection with KL. The applicant’s group arrived wearing balaclavas or other face coverings and all or most were brandishing kitchen knives.

7. [14]

   His Honour at times, in terms that are not challenged, referred to the conduct of Darcy Moore’s group on 1 September 2021. For example at [57]-[58] his Honour held that most of those who came out of the home in Blacktown at which the offenders confronted the occupants were armed with golf clubs which were distributed to the group by Peter Moore (Darcy Moore’s father), Darcy Moore came from the house with a large “zombie” knife, and another man emerged with a large machete. Golf clubs, broken and intact, were found scattered about the scene. The “zombie” knife was located near where Darcy Moore was killed. His Honour was satisfied that the group that emerged intended to use their weapons to inflict harm on their antagonists, but that such conduct would not have occurred had the MOB group not been there and had they – and in particular AG – not goaded Darcy and his mates to come outside. At [63] his Honour described the group of young men, along with Peter Moore, emerging with the weapons and attacking the MOB group, which retreated up William Street towards Suffolk Street, with Darcy Moore’s group following them.

8. [15]

   At [68] his Honour stated of the circumstances of Darcy Moore’s stabbing:

9. [16]

   His Honour thereafter described the events after Darcy Moore received the fatal stab wound, including the two groups moving in a generally easterly direction down Norfolk Street, and around this time the applicant having become afraid and gone somewhere to hide. The applicant was thus not in the immediate presence of his co-offenders at the time of the stabbing of EO and EC. Three of the offenders in the applicant’s group were found injured on their arrest, but this did not include the applicant.

10. [17]

    His Honour accepted the submission of the offenders that there was a subjective element of self-defence (by the relevant principal) in each of the three offences, but that it was not reasonable, and confirmed that each of the five offenders were the initial aggressors. The described basis for the subjective belief included Darcy Moore running at AD while wielding the “zombie” knife. As to the attempted murder of EO (the offence of which the co-offenders were convicted at trial in relation to Mr Karise’s wounding of EO), his Honour held that Mr Karise and the others present believed, in the extremely urgent circumstances that prevailed, that both they and AD were in grave danger. Videos in evidence were found to show that the victims’ group was behaving with extreme aggression, having quickly gained the upper hand in the conflict. They were hitting the MOB members with such force that golf clubs were broken, and EO (who gave evidence) acknowledged that his broken club may have looked like a large knife. His Honour described the members of Darcy Moore’s group as, by the time of the wounding of EO, well and truly on the attack and acting without restraint.

11. [18]

    His Honour’s remarks on sentence referred in detail to the impact on Peter Moore of the death of his son, describing him as a secondary victim of homicide. His Honour referred to his presence and peripheral involvement complicating his grief. He referred to the impairment of Peter Moore’s relationship with his other son EC, who lost his older brother that night and was badly wounded himself. His Honour also held that while there was no victim impact statement read by either EO or EC, there seemed little doubt that there would be some psychological impact on them of being the victim of such serious crimes.

12. [19]

    His Honour also referred to the commission of the offences in a quiet suburban neighbourhood, and the evidence given by local residents as to what they saw from their own homes where they lived with their families. His Honour stated that “This kind of lawlessness must be met with stern punishment. People are entitled to feel safe in their homes and in their communities. Offences like these undermine that sense of security and safety”. His Honour did not thereby find the offences aggravated by reference to s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

13. [20]

    His Honour described the objective seriousness of each offence as very serious, with detail provided as to why this was so. Regarding the offences with standard non-parole periods, his Honour found the offence to which the applicant pleaded guilty in connection with the wounding of EO as less serious than that of his co-offenders, despite it carrying the same maximum penalty. The criminality of the principal was found to fall in the lower part of a mid-range of objective seriousness, with that of AG, AD and Mr Diallo less than his, and YA’s less than theirs – although he continued to participate in the enterprise while aware of the possibility that somebody may be gravely injured by one of the group acting with a specific intention to inflict grievous bodily harm. He was described as a willing and enthusiastic participant in this offence. The offence against EC was found to fall towards the lower end of the range of objective seriousness for offences of this kind, with little to distinguish the criminality of each of the offenders. None of these findings were challenged on appeal.

The potential intersection of this appeal with previous representation of KL

1. [21]

   The potential intersection of the events of 1 September 2021 (at which KL was present, although not a victim of a charged criminal offence, charged offender, nor provider of evidence) and my representation of KL is contained in a number of paragraphs of a judgment delivered by Hamill J on 8 August 2024 addressing the issue of whether KL, who had been compelled by the Crown on 8 July 2024 to give evidence in a pre-trial hearing for the applicant and his four co-offenders but was uncooperative, had waived privilege pertaining to a number of expert reports referred to in the evidence of his solicitor in opposition to being required to give evidence: R v Diallo & Ors (No 7) [2024] NSWSC 978 (“Diallo No 7”). I was no longer acting for KL, my appointment to the Supreme Court having been announced on 19 June 2024. He was represented by different counsel in his opposition to giving evidence before Hamill J on 8 July 2024. However some aspects of his Honour’s judgment relate to earlier occurrences while I was still representing KL.

2. [22]

   As explained at [6]-[16] of Hamill J’s judgment in Diallo No 7, KL was charged with Uati Faletolu’s murder on 15 July 2022. It was in connection with this criminal charge that I acted for KL prior to July 2024. On 15 September 2023 he entered a plea of guilty to that murder in the Children’s Court and was committed for sentence to the Supreme Court. The matter was listed for sentence on 4 December 2023 before Garling J. On 6 November 2023 his solicitor received a confidential psychological assessment report from an expert witness, Dr Katie Seidler. On 13 November 2023 the Supreme Court ordered that a Youth Justice report be prepared for KL’s sentence proceedings. KL’s solicitor received that report on 30 November 2023. The author of the report “referred to KL having witnessed the [Moore] murder”. Evidence from KL’s solicitor in July 2024 stated:

3. [23]

   Hamill J explained that KL’s solicitor provided a copy of the Youth Justice report to Dr Seidler who agreed to provide a supplementary report. His Honour referred to KL’s solicitor’s evidence that on 1 December 2023 I advised him to apply to vacate the sentence hearing. The application was not opposed by the prosecution and was granted by Garling J, and the case was adjourned until 1 March 2024.

4. [24]

   On 29 February 2024 KL’s solicitor received a confidential psychiatric report from Dr Andrew Ellis, forensic psychiatrist. Dr Ellis expressed the opinion that KL “meets the criteria for post-traumatic stress disorder as a result, in part, of witnessing the death of [Darcy Moore].” On 4 March 2024 Dr Seidler provided her supplementary report in which it was said that KL’s post-traumatic stress disorder was attributable “to a number of events including witnessing the death of [Darcy Moore].” The evidence of the KL’s solicitor, and the submissions of counsel appearing for KL before Hamill J in July 2024, made plain that the post-traumatic stress disorder was being relied upon in KL’s criminal proceedings in support of the proposition that KL had a partial defence of substantial impairment available to him based on this diagnosis.

5. [25]

   In Diallo No 7 Hamill J noted that on 10 May 2024 Garling J granted a further (unopposed) adjournment application and KL’s criminal proceedings were listed on 6 September 2024 for directions and on 15 November 2024 “for sentence or plea traversal”. Subsequently Garling J permitted KL to withdraw his guilty plea. Garling J thereafter acceded to an application that the murder charge should be heard by judge alone: R v KL [2025] NSWSC 1398; found him not guilty of murder but guilty of manslaughter: R v KL [2025] NSWSC 1574; and sentenced him: R v KL [2025] NSWSC 1414. Hamill J also had subsequent dealings with KL, sentencing him for contempt in relation to his refusal to give evidence at the Basha inquiry and at the trial of the applicant’s co-offenders: In the matter of KL [2024] NSWSC 1334.

6. [26]

   Additional possible matters that might lead me to decide the case other than on its legal and factual merits were referred to in the submissions of Senior Counsel for the applicant at the hearing of the application, and are referred to further below.

7. [27]

   It was not apparent from the written submissions filed in support of the application for leave to appeal against sentence that my previous representation of KL had any bearing on the factual and legal issues for determination. The applicant’s first ground of appeal, which was the focus of the written submissions, was the asserted disparity between his sentence and that of his co-offender AG. There was no challenge for the purposes of this ground to any of the sentencing judge’s findings. Rather, a detailed analysis of the objective circumstances of the offending as found, and the respective subjective cases of AG and the applicant, was submitted to give rise to a justifiable sense of grievance on the part of YA as to the sentence imposed on him. A judicial officer having a previous professional association with or knowledge of KL had no apparent logical connection with this ground of appeal.

8. [28]

   Written submissions in support of the complaint of manifest excess in the fifth ground of appeal contended that the combination of the length of the indicative terms and the manner in which they were notionally accumulated resulted in a sentence which was manifestly excessive when one had regard to the applicant’s total criminality. It was confirmed that there was no challenge to the sentencing judge’s assessment of the objective seriousness of his offending, nor findings about his subjective case. It was submitted that manifest excess was demonstrated by a combination of: the applicant’s age; the absence of prior convictions; the absence of finding by the sentencing judge of possession of a knife or infliction of injury; the applicant’s detachment from the group and hiding out of fear, thus not being in immediate proximity to the stabbings of EO and EC; his remorse and good prospects of rehabilitation; his unlikelihood of reoffending; his adjustment disorder present at the time of offending, with a conflict between personal values and the desire to maintain friendships with the co-accused; the subjective element of self-defence in the co-offenders’ actions; strict bail prior to sentence; onerous custody; and threats from co-offenders and assaults in custody (prior to sentencing). I will refer further below to a proposition outlined at the hearing of the application by the Crown as to how my previous representation of KL could arguably have a connection with this ground.

9. [29]

   YA’s third and fourth grounds of appeal had no apparent possible connection with KL.

10. [30]

    Evidence filed in advance of the hearing of the appeal to be relied upon in the event of resentence, indicated that on 21 February 2025 at Frank Baxter juvenile detention centre KL assaulted the applicant. The evidence indicated that while YA was in a session with a psychologist, KL walked past the room and appeared to look in and notice YA, then opened the door and ran at YA, throwing punches towards his head. This was recorded in the detention centre incident advice form as a totally unprovoked attack and assault. The form stated that KL continued throwing punches and kneeing the applicant even after officers intervened. KL was described afterwards as being extremely heightened and agitated.

11. [31]

    YA’s affidavit, sworn 8 January 2026, before the Court for the purposes of any resentencing in this Court, described the event. He stated that KL was much taller and larger than he. He states that he knew of KL previously as he was associated with Darcy Moore and the other group involved on the night of 1 September 2021. During the counselling session he saw KL peeping through the door with a smirk on his face, causing YA to become extremely worried. He describes being punched repeatedly. He describes the physical and psychological consequences of this assault, and a further assault committed by a different inmate.

12. [32]

    CCTV footage recording the event on 21 February 2025 was to be relied upon in the event of resentence, and is consistent with the above descriptions of what took place.

13. [33]

    In the event that the Court resentences YA he relies further upon the report of Dr Matthew Jones, Forensic and General Psychiatrist, dated 18 December 2025. Dr Jones obtained an account from the applicant of the assault by KL of him in juvenile detention, and the later unrelated assault. He told Dr Jones that “technically [KL] was present on the night of the events that led to [YA’s] conviction as part of the other group.” He gave an account consistent with those above regarding what occurred, including that the psychologist’s laptop was smashed in the process. YA found the situation different from that where someone gets attacked in the yard, as he was in a psychological counselling session.

14. [34]

    Dr Jones undertook a mental state examination and detailed YA’s report of recent symptoms and functioning. Dr Jones set out some detail of the subsequent assault, earlier assaults prior to Hamill J’s sentencing of YA, and some other aspects of his history which have caused him to “look over both shoulders”.

15. [35]

    Dr Jones diagnosed YA with Post Traumatic Stress Disorder in partial remission. The reported history was consistent with having been assaulted, which was a situation that threatened serious injury, and the subsequent development of symptoms consistent with Post Traumatic Stress Disorder which had a duration of at least one month. In Dr Jones’ view the development of Post Traumatic Stress Disorder from assaults in gaol would place YA at a higher level of anxiety and hypervigilance with respect to future assault, which could make his time in custody more onerous.

16. [36]

    On Friday 13 February 2026 the respondent notified the Court, copying in YA’s legal representatives, that my prior representation of KL had been brought to the attention of KL’s legal representatives. The Crown alerted the Court to the fact that KL was mentioned in the material to be relied upon in the event of re-sentence. The Crown foreshadowed no application for my disqualification, and the Court was not thereafter advised of any prospective application on behalf of YA until the commencement of the hearing on Monday 16 February.

Relevant legal principles

1. [37]

   The application made at the commencement of the hearing, although framed as an application that I disqualify myself, was in substance an objection to the Court as then constituted hearing and determining the appeal: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 (“QYFM”) at [18] (Kiefel CJ and Gageler J).

2. [38]

   The application made on behalf of YA was one of apprehension of bias. The relevant test in this regard is that “a judge is disqualified 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 (“Ebner”) at [6], Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11].

3. [39]

   Framing the consideration this way addresses the requirement that justice should both be done and be seen to be done, administered by an independent and impartial tribunal: Ebner at [3] and [6]-[7]. Foundational to the framework established in Ebner is that impartiality is an indispensable aspect of the exercise of judicial power, and that bias, whether actual or apprehended, connotes the absence of impartiality: Ebner at [22]. That is why “Leaving to one side exceptional circumstances of waiver or necessity, an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power”: QYFM at [26] (Kiefel CJ and Gageler J).

4. [40]

   Deciding whether a judicial officer might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge will in fact approach the matter. The “double might” test serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”: QYFM at [37], citing Ebner at [7]. It has been described as a relatively undemanding test once sufficient facts exist to raise the possibility of bias: QYFM at [175] (Edelman J).

5. [41]

   It was held in Ebner at [8] that logically two steps are required in answering the test before the reasonableness of the asserted apprehension of bias can be assessed:

6. [42]

   The fair-minded observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decisionmaking”: QYFM at [47] (Kiefel CJ and Gageler J, footnote omitted). Their Honours at [48] cited authority in support of the propositions that the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships; see also Edelman J at [170] and Steward J at [196]-[200].

7. [43]

   The High Court in QYFM considered the issue of whether an application of the kind made at the applicant’s hearing is to be determined by the individual judicial officer the subject of the application, or the Court as a whole. Kiefel CJ and Gageler J determined that the whole Court should determine the issue: see especially at [4], [26]-[28], [35] and [58]. Gordon J held that the preferable if not proper procedure is for the single judge the subject of the application to consider the application first, with the full bench to then consider the application if it has been refused and is pressed: at [66], [93]-[104]. Edelman and Steward JJ in separate judgments with additional reasons agreed with Gordon J regarding this issue. Jagot J held at [309]-[314] that the application should be limited to the subject judge. Gleeson J did not determine this issue.

The parties’ submissions

1. [44]

   For YA it was submitted that because of the nature of the trial and the long history of internecine disputes, the family of the applicant had reasonable concerns about my determining the appeal with an open mind. A significant focus of the submissions was the conduct of KL at the pre-trial hearing before Hamill J on 8 July 2024 before the applicant pleaded guilty (on the occasion of his refusal to give evidence as considered in Diallo No 7), acknowledging that I was no longer representing KL at that time.

2. [45]

   It was submitted that at the pre-trial hearing KL was brought into Court involuntarily which created a tempestuous scene, with him eventually having to be removed by a very large number of Corrective Services officers. It was submitted that there was a display of violence from him in the witness box. It was submitted that “it was a classical contemptuous performance and he was then removed.” KL was submitted to have been extremely violent and disruptive. He was said at that stage to have been on the prosecution witness list, giving rise to a great deal of apprehension by those accused in the dock who had pleaded not guilty. The security required was submitted to have been at a level very rarely seen, with security everywhere in the courtroom at Parramatta, not to control the accused in the dock, but to control KL.

3. [46]

   The submission was advanced that YA’s family had been alarmed that KL might be giving evidence against the applicant, and then alarmed to hear that a judge hearing his sentence appeal had acted for him. The applicant and his family were said to be of the view that, because of the behaviour of KL and the closeness of the barristerial relationship, I should not sit.

4. [47]

   Further, as KL had assaulted the applicant in custody, it was submitted that YA and his family wanted the appeal determined by someone with no association with KL. Although it was acknowledged, on questioning from the Chief Judge at Common Law, that the assault was relevant only to resentencing, it was thereafter submitted that the applicant and his family were concerned about a judge who had acted for a person with animus towards the applicant.

5. [48]

   The respondent made no application that I disqualify myself, and indicated a neutral position on YA’s application. Counsel appearing for the respondent assisted the Court by taking our attention to all points of the co-offenders’ trial transcript at which KL was mentioned. In light of the nature of the grounds of appeal this evidence had not been obviously relevant in advance of the hearing, and it was confirmed at the hearing that no consideration of the trial transcript was required. The evidence we were taken to included the transcript of the trial of the co-offenders on 19 August 2024 when KL refused to cooperate (this not being the Basha inquiry where the applicant was present, prior to pleading guilty, which had been the subject of submissions for the applicant).

6. [49]

   A police witness at the trial gave evidence of KL’s apprehension following the offences. He was injured, and a medical description of his injuries was provided in the trial on 27 August 2024. There was a photograph tendered of his appearance when apprehended, showing him covered in blood.

7. [50]

   AG at trial had led evidence to demonstrate a tendency on the part of KL for violence, including the Easter Show stabbing in relation to which I previously represented him, a video of which was tendered for such purpose. This video exhibit was not included in the exhibits from trial tendered before Hamill J in the applicant’s proceedings on sentence.

8. [51]

   It was submitted for the respondent that one matter the Court should consider is whether a fair-minded lay observer might reasonably apprehend that a judicial officer who had previously considered the impact of the incident on 1 September 2021 on KL’s mental state (to the extent of whether it supported a partial defence to murder of substantial impairment) might not be able to give impartial consideration to the assessment of whether the applicant’s sentence is manifestly excessive. It was submitted that this issue was the highest the application could probably be put, in articulating a logical connection between a third party and the issues the Court was required to consider.

9. [52]

   It was submitted for the Crown that on the issue of resentence the Court should consider whether a fair-minded lay observer might reasonably apprehend that my knowledge of KL’s psychological make-up might cause reflection on the reasons for his behaviour towards the applicant in that assault. It was confirmed that neither the applicant nor Dr Jones was required for cross-examination as to that occurrence or its consequences for YA.

10. [53]

    It was submitted for the Crown that the whole Court should determine the application, and there was no contrary submission advanced on behalf of YA.

Determination

1. [54]

   In circumstances where the Crown submitted that the Court as a whole should determine the application and there was no contrary submission for the applicant, the Court resolved to deal as a whole with the application. It should be noted however that this is not the course provided for by the majority of the High Court in QYFM: see above at [43]. The course preferred by Gordon, Edelman and Steward JJ in QYFM includes the prospect of the Court as a whole being required in the second instance to consider the application. In circumstances where the Court was unanimously of the view that the application should be refused, the basis of the application advanced on behalf of YA did not (as will be explained) align with the Ebner test, and the Crown in assisting the Court addressed the high point for the Court’s consideration of the Ebner test but was not itself making an application for my disqualification, and submitted that the Court should respond as a whole, I regarded this as an appropriate course to take in this particular matter.

2. [55]

   The argument as advanced for the applicant did not articulate a logical connection between my having previously acted for KL and the feared departure from deciding the case on its factual and legal merits.

3. [56]

   The submissions regarding the conduct of KL on 8 July 2024 are not reflected in Hamill J’s judgment of 8 August 2024, where his Honour refers only to KL as having been “a reluctant and uncooperative witness with a studied swagger”: Diallo No 7 at [1]. This however is not important, and for the purposes of determining the application it can be taken that KL acted in the manner that Senior Counsel appearing for YA said that he did. I was at that point no longer acting for KL, and the incident forms no part of the appeal books nor matters for consideration on appeal. The submissions were focused entirely on the subjective feelings of the applicant and his family towards KL, and by extension it would seem to me for previously assisting him in a professional capacity.

4. [57]

   Similarly, regarding the assault of YA by KL in juvenile detention after he was sentenced, the submission was focused on the subjective concerns of YA and his family regarding a judicial officer previously acting for a person with animosity towards the applicant (demonstrated at a point after the professional association ended).

5. [58]

   These submissions do not satisfy the Ebner test. I do not accept that a fair-minded lay observer might reasonably apprehend that a judicial officer might not bring an impartial mind to the issues for determination in this case because she has previously professionally represented a person who, on two occasions after she so acted for him, is submitted to have shown animosity towards YA. In this respect I acknowledge the observation of Kiefel CJ and Gageler J in QYFM at [49] that the reasonable fair-minded lay observer is not taken to be “so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias.”

6. [59]

   Close consideration was given to the two issues raised by counsel appearing for the respondent. I reiterate that KL is not referred to in Hamill J’s 71-page sentencing judgment, and there is no challenge to his Honour’s findings regarding the objective seriousness of the applicant’s offending.

7. [60]

   As to the applicant’s grounds of appeal, it is only in connection with the unlawful killing of Darcy Moore that the potential connection with ground 5 raised by the Crown could arise. The material did not indicate any traumatic reaction on KL’s part to witnessing the wounding of EO or EC, if he did witness those events. The applicant did not contend that there was latent error in the indicative manslaughter sentence in particular, which contributed to the manifest excess of the aggregate sentence.

8. [61]

   Although it can be taken that I will decide the matter without taking this proposition into account, that a person such as KL who witnessed the death of a friend in violent circumstances suffered trauma as a result is not surprising and adds nothing to the matters of significance relied upon by Hamill J in addressing the gravity of the applicant’s offending in connection with the unlawful killing of Darcy Moore, which are not challenged. As I have set out, his Honour repeated a number of times that there was a violent response on the part of those associated with Darcy Moore to the offenders, but that this would not have occurred but for the joint criminal enterprise engaged in by the offenders. This again is not challenged. I do not accept that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the question of the available range for an indicative sentence for Darcy Moore’s manslaughter (and more importantly, whether the aggregate sentence was manifestly excessive) because of an understanding (which will form no part of the reasoning on appeal, as it is not part of the material on appeal) that an adverse psychological response was caused to a person who witnessed it.

9. [62]

   On the issue of the evidence relied upon in the event the Court comes to resentence YA, there is no basis for disqualification in circumstances where the assault itself and its consequences upon YA are not contentious. The mental state of KL in assaulting YA has no logical connection with what the assault means as to the onerousness of YA’s conditions in custody.

10. [63]

    The identity of KL as the assailant was largely immaterial (accepting that YA did “technically” associate him with the circumstances of his offending) and any issue as to the mental processes of KL in assaulting YA is completely immaterial. I do not accept that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the question of the onerousness of the applicant’s post-sentence custody by being deflected from considering that issue, which is not in dispute between the parties, because of consideration of the irrelevant issue of why KL conducted himself as he did on that occasion.

11. [64]

    I concluded that otherwise there were no issues for determination which could logically give rise to any consideration that I not sit. As indicated earlier, the application for leave to appeal against sentence was very heavily focused on the comparison between the cases of YA and AG. My previously acting for KL could have no logical connection with a fair determination of that issue. Similarly, the applicant’s grounds regarding the way in which Hamill J dealt with the applicant’s conditions of bail, and the onerousness of his custody, could have no logical connection with my having previously acted for KL.

12. [65]

    For these reasons I was of the view that the application should be refused and joined in the order to that effect on 16 February 2026.

13. [66]

    COLEMAN J: I have read the judgment of Rigg J in draft. That judgment reflects my reasons for joining in the order of the Court that the application that her Honour disqualify herself from hearing the appeal be refused.