The test for determining whether a judge should disqualify himself or herself

The principle of apprehending bias is based upon the need for public confidence in the administration of Justice.

On 15 March 2011, the Family Court of Australia delivered judgement allowing an Appeal in the matter of Murray & Tomas and Anor (2011) FamCAFC 81. The question before the Court was whether the trial judge erred in refusing to recuse (disqualify oneself as a judge) himself from further hearing of the proceedings between the parties.

The governing principles are well established. I will refer to two earlier decisions of the High Court, which set out those principles, Johnson v Johnson (2000) HCA 48, and Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337. Johnson v Johnson (2000) HCA 48 

The governing principles are well established.

Actual bias on the part of the Judge did not contend. The question is whether there is the apprehension of bias.In the case of Johnson, the apprehended bias was said to take the form of prejudgment.

The High Court noted that it has been established by a series of decisions of the High Court that the test to be applied in Australia, in determining whether a judge is disqualified by reason of the appearance of bias is whether 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.

The principle of apprehending bias is based upon the need for public confidence in the administration of Justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision."

The hypothetical reasonable observer of the Judge's conduct is used to emphasise that the test is objective, is founded in the need for public confidence in the Judiciary, and is not based purely upon the assessment by some Judges of the capacity or performance of their colleagues.

“At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional Judge whose training, tradition and oath or affirmation requires [the Judge] to discard the irrelevant, the immaterial and the prejudicial".

The “reasonable observer” is not to be assumed to have a detailed knowledge of the law or of the character or ability of a particular Judge. The reasonableness of the apprehension of bias is to be considered in the context of ordinary Judicial practice.

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a Judge, (or other Judicial Officer or Juror), as here, the governing principle is that”, subject to qualifications relating to waiver ... or necessity ... , “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.”

“That principle gives effect to the requirement that Justice should both be done and be seen to be done (R v Sussex Justices; Ex parte Mc Carthy [1924] 1 KB 256, 259), a requirement which reflects the fundamental importance of the principle that the tribunal is independent and impartial.”

There are some other aspects of the apprehension of bias principle, which should be recognised: 

(A) “Deciding whether a Judicial Officer (or Juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the Judge or Juror will, in fact, approach the matter. The question is one of possibility (real and not remote), not probability. 

(B) Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome.

No attempt need be made to inquire into the actual thought processes of the Judge or Juror.”

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps.

(A) First, it requires the identification of what it is said might lead a Judge (or Juror) to decide a case other than on its legal and factual merits.

(B) The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

(C) The bare assertion that a Judge (or Juror) has an "interest" in litigation or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of a departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.