apprehended bias – whether comments and questions by sentencing judge during applicant’s trial, a co-offender’s trial, and sentencing hearings gave rise to reasonable apprehension of bias – application for recusal rejected – whether sentencing judgment should be set aside

Tarrant v R [2018] NSWCCA 21

Reasonable apprehension of bias

(a)   legal principles

9 There was no issue in this Court that, where actual bias is not alleged, the legal test, as expressed in Johnson v Johnson, requires the court to be satisfied that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”[1] The High Court has reaffirmed the salience of the test on subsequent occasions, including in Michael Wilson & Partners Ltd v Nicholls.[2] The so-called “double might” test is by no means easy to apply: its application requires attention to four discrete elements.

10 First, there is the postulate of the “fair-minded lay observer”. Use of that expression reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not, as explained in Johnson v Johnson,[3] “the assessment by some judges of the capacity or performance of their colleagues.”[4]

11 Secondly, the test has been described as “objective”, by which is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias, an assessment of the judge’s own state of mind.

12 Thirdly, there is said to be a two-stage process required; it is necessary to articulate “the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making.”[5]

13 Fourthly, use of the term “might” lowers the burden of proof below that of probabilities. Thus the court need not be satisfied that the fair-minded lay observer “would” have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities.

14 In the present case, there was an issue as to what level of understanding should be attributed to the lay observer with respect to the role of the judge in a criminal trial. The purpose of protecting confidence in the administration of justice is itself in danger of being undermined if the level of sophistication required of the lay observer is overstated. Some factors will inevitably be indeterminate and will therefore require evaluative judgment. In British American Tobacco Australia Services Ltd v Laurie[6], the applicant had submitted that “to attribute knowledge of the Tribunal’s statute to the lay observer is to endow that hypothetical construct with a degree of legal knowledge that is likely to be enjoyed only by practitioners who appear regularly before the Tribunal.”[7] In response, the joint reasons of the majority said, in somewhat general terms, referring to the earlier discussion in Johnson v Johnson:[8]

“It was accepted that the lay observer must be taken to have some understanding that modern judges, responding to the need for active case management, are likely to intervene in the conduct of the proceedings and in so doing may well express tentative opinions on matters in issue.”

15    Rouvinetis v Knoll held:[9]

“The test is objective: this Court is not required or permitted to form a view as to whether the trial judge could be relied upon to determine the case impartially and on the evidence before her. The ground of disqualification is designed to maintain public confidence in the administration of justice. The Court must thus accept that a fair-minded lay observer will not necessarily have the same confidence as do judicial officers in the ability of their colleagues to maintain objective impartiality. The fair-minded observer may have a level of scepticism as to professional pretensions, but will also be vigilant against his or her own prejudices. The standard applied cannot operate unless it assumes a degree of acceptance of that which it seeks to preserve, namely a public perception as to the ability of judges to adhere to the obligations of the judicial oath and decide proceedings without fear, favour or affection, prejudice or ill-will.”

16 There is also a level of unavoidable imprecision in the standard of what a person “might” apprehend. Clearly a fanciful or speculative possibility must be put to one side and the reasonable fear of the observer must be “firmly established”.[10]

17 Finally it is necessary to identify the material to which the Court may have regard. Where the recusal application is based on the conduct of the judge during the various hearings in open court, the court may, of course, have regard to what was said and the context in which it was said. The source of concern may be clarified by later statements, which should, therefore, not be ignored.

[1]    Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (emphasis added).
[2]    (2011) 244 CLR 427; [2011] HCA 48 at [31] (Gummow ACJ, Hayne, Crennan and Bell JJ).
[3]    Johnson at [12].
[4]    See also Michael Wilson at [32].
[5]    Michael Wilson at [63].
[6]    (2011) 242 CLR 283; [2011] HCA 2.
[7]    Laurie at [131].
[8]    Laurie at [132] (Heydon, Kiefel and Bell JJ).
[9]    Rouvinetis at [24].
[10]    See, eg, CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 at [36] (Meagher JA).

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