This article was written by Deike Kemper - Senior Associate - Melbourne
Deike Kemper holds a Juris Doctor (Master of Laws degree) from Monash University, a Graduate Diploma of Legal Practice from the College of Law and a Graduate Certificate of Forensic Psychology from Curtin University. She is admitted to practice in the Supreme Court of Victoria and the High Court of Australia. Deike’s main area of practice is criminal law. She...
What is Judicial Bias?
It is inherently critical to the proper operation of our criminal justice system that a Judge sitting in a matter is not biased. Bias is the actual or apprehended prejudice for or against a party. This article deals with judicial bias.
What is actual bias?
Actual bias exists where it can be shown that the judge is biased towards one particular party (and thus a particular outcome of the matter), to such an extent that the provision of evidence or legal arguments would not alter their decision. This is a serious allegation and thus should not be made lightly. The party asserting bias has the onus of distinctly and clearly proving its existence.
What is apprehended bias?
Apprehended bias is more easily made out than actual bias as it refers to the possibility of bias. The test for apprehended bias is whether “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).
The possibility of apprehended bias must be real and not remote. However, the alleging party is not required to show that it is likely or probably the Judge would not bring an impartial mind to the matter.
Alleging judicial bias
In seeking to argue actual bias or an appearance of bias, the alleging party must raise the concern at the earliest possibility and offer a logical connection between the cause for concern and the appearance of actual bias together with the request that the judge recuse him or herself. The alleging party is not at liberty to question a Judge in order to further explore or substantiate the alleged bias, but a judge is under an obligation to disclose any relevant matters to the parties, as they come to his or her attention. Notably, also the personal circumstances of the Judge and their possible impact on the apprehended bias are not relevant to the assessment of whether a “lay observer” would apprehend a bias. Only the objective facts are material to the finding of bias, not the subjective views of parties.
The decision-maker’s obligations
A judge or magistrate is obliged to make the parties of any matter aware of any possibility or appearance of bias and give the parties the opportunity to consider making an application for the judge to remove him or herself.
A judge or magistrate may also excuse themselves directly, without disclosing details or the basis for their decision. However, a Judge’s decision to recuse themselves whether on their own motion or upon application from a party, should not be reached lightly and must be made with good cause. The Judge ought to be positively satisfied that apprehended bias is established. Nonetheless, in cases of uncertainty and keeping in line with principles that justice must be seen to be done, a judge should always err in favour of removal if in doubt.
Cases involving judicial bias
Some cases where judicial bias has arisen are:
- Financial interest in a company appearing in litigation does not in itself automatically disqualify a Judge from determining the litigation. However, the Judge should disclose the nature of their financial interest at the commencement (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; c.f.Dimes v Proprietors of the Grand Junction Canal (1852) 10 ER 301).
- Association with a party may give rise to apprehended bias and the Judge should disclose any such association as soon as it becomes apparent. However, they are under no obligation to make disclosure of their association if, without hearing submissions, they are satisfied that that bias exists and they decide to recuse themselves. Precedents indicate that Judges should disqualify themselves from cases including close friends or relatives, but more remote associations and even former client relationships depend on their specific circumstances (Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; [1991] HCA 31; S & M Motor Repairs v Caltex Oil(1988) 12 NSWLR 358).
- Association with legal representatives does not generally give rise to apprehended bias. However, a Judge is always obligated to consider whether their existence and nature of the relationship would appear as giving rise (Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; [1991] HCA 31).
- Personal experiences of crime do not automatically disqualify a Judge from hearing cases (LAL v R [2011] VSCA 111. See also R v Goodall (2007) 15 VR 673; [2007] VSCA 63).
Notably, the doctrine of necessity may require a Judge to continue to sit on a case, even though bias was established. However, this occurs in rare circumstances. It is also important to note that, in a manner of preventing the existence of bias or apprehended bias, all communication between parties and a Judge must be open and with the knowledge of all other parties involved. The Judge should not communicate with any individual party directly, without the knowledge or consent of the other party/ies of the case. This includes social and other contact while a matter is ongoing.
The Australian Law Reform Commission (ALRC) is currently undertaking a review of the laws relating to judicial bias that apply to the federal judiciary.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.