A NSW District Court judge accused of “apprehended bias” in a matter involving a pro-Palestine protester refused to withdraw himself from the case in a hearing on Tuesday.
Judge Alister Abadee was the subject of a recusal application after he conducted his own investigation and compiled a five-page supplementary information document during a District Court appeal hearing into the conviction of Kahtan Abdul-Wahab.
Abdul-Wahab was found guilty of public display of a Nazi symbol without reasonable excuse in the Local Court last year and is appealing the conviction.
He was charged after displaying an image combining the Nazi and Israeli flags alongside the phrase, “the irony of becoming what you once hated” at a Hyde Park pro-Palestine demonstration. Abdul-Wahab was not accused of equating Israel with Nazi Germany, only of displaying the symbol.
His defence had argued that the law restricted peaceful anti-war protests and had “a very chilling effect on political speech” but the court at the time rejected this argument. He was the first person to be charged with the offence in NSW.
Judge attempts to submit pro-Israel document
The document compiled by Abadee, and emailed to lawyers on 28 August following the conclusion of appeal evidence, outlines a selective background to the Israeli-Palestinian conflict, highlighting Jewish persecution and the Holocaust, the establishment of Israel and subsequent Palestinian displacement.
The document, seen by Deepcut, skewed to a pro-Israel account of events, noting attacks on Israel “since at least the conclusion of the 1967 war”, and appeared to doubt the current Gaza death toll as figures that “could not be verified”. The document omitted details of atrocities and dispossession suffered by Palestinians over the decades, including thousands of home demolitions in the West Bank and Jerusalem, mass imprisonment and torture of Palestinians in Israeli jails, and the UN Commission of Inquiry’s findings of genocide in Gaza. It did not include an International Court of Justice advisory opinion in 2024 that “Israel’s discriminatory laws and measures … are tantamount to the crime of apartheid”. It also did not include mention of Israel’s repeated invasions of Lebanon spanning almost 50 years.
Abadee attempted to admit the document under Section 144 of the Evidence Act 1995 (NSW), which allows a court to accept certain facts without requiring formal proof – provided the knowledge is not reasonably open to question and is either generally or locally well-known, or capable of verification through an authoritative document.
A hearing was subsequently convened on 16 September, where both the Crown and the defendant’s lawyers opposed the judge’s attempt to enact Section 144. It was during this hearing that Abadee disclosed his Jewish ancestry.
“My father and his sibling are Jewish,” he told the court, transcripts reveal.
“I have Jewish cousins. I am not Jewish, and nor is (sic) members of my immediate family. I also have a sibling and cousins who are not Jewish. I raise these matters to ascertain whether objection is taken to my hearing the appeal on account of them.”
Defence says judge departed ‘from judicial process’
During Tuesday’s hearing – which was presided over by Abadee himself – counsel for the defence, Peter Lange SC, submitted to the court that despite the judge accepting the parties’ objections to the proposed evidence, Abadee’s actions in undertaking the “investigation” itself were a “departure from judicial process”.
“There was an investigation into what your Honour perceived to be historical events. It is that inquiry that is different to the judicial process,” Lange said.
“Your Honour perceived the need to supplement the evidence provided by the parties … And the nature of that evidence was different in nature to the evidence that had been provided [to the court].”
Lange said that the parties could not know what Abadee had read in order to collate the material he presented, and therefore it could not be known what might be considered a subconscious view held by the judge or what might “operate on the judicial mind”.
Lange submitted that Abadee’s actions aided the Crown’s case, adding that if Abadee believed the evidence before the court did not give a complete picture of the relevant geopolitics, it was not his role to “supplement” or “fill in the holes so that this court may have a more complete picture of the evidence”.
“[That] is outside the judicial sphere to fill in those gaps, even if the judicial officer thinks [there are gaps],” he said.
“Perhaps that is a failure of the parties but not one that is to be supplemented by judges.”
Abadee rejected the submissions and refused the recusal application. He said he would provide reasons for his decision when the substantive appeal judgement is handed down at a date to be determined.
This has to be a Betoota article right? A judge really ‘did their own research’ to supplement court proceedings that they were presiding over themselves!?
Oh my…. Hope this is appealed.