Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: CUR24 v DPP [2012] NSWCA 65
• Hearing dates: 25 November 2011
• Decision date: 05 April 2012
• Before: Basten JA at [1]; Whealy JA at [27]; Meagher JA at [28]

Decision

(1) Amended Summons dismissed.

(2) No order as to costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: COURTS AND JUDGES - bias - apprehended bias - disqualification of a judge - solicitor for accused alleged judge made out of court statements indicating preconceived views - judge disputed statements in terms alleged - whether necessary to make findings as to disputed facts before applying reasonable apprehension of bias test - whether reasonable apprehension of bias
• Legislation Cited: District Court Act 1973; Evidence Act 1995; Supreme Court Act 1970
• Cases Cited: Barker v The Queen (No. 2) (1996) 70 FCR 1; Barton v Walker [1979] 2 NSWLR 740; Bradford v McLeod [1986] SLT 244; British American Tobacco Australia Services Ltd v Laurie & Ors [2011] HCA 2; (2011) 242 CLR 283; DPP v Burns & Anor [2010] NSWCA 265; (2010) 207 A Crim R 362; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Gates v Takiveikata & Anor (2008) FJSC 16; Herijanto v Refugee Review Tribunal & Ors [2000] HCA 21; (2000) 74 ALJR 703; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 18 ALD 230; Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Lee v Cha [2008] NSWCA 13; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Mann v Northern Territory News (1988) 88 FLR 194; Michael Wilson & Partners Ltd v Robert Nicholls [2011] HCA 48; (2011) 282 ALR 685; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100; R v ABS [2005] NSWCCA 255; R v Balic (No. 2) (1994) 75 A Crim R 515; R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1; R v Kearns [2003] NSWCCA 367; R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Spanos v Lazaris [2008] NSWCA 74; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Wentworth v Rogers [2000] NSWCA 368; Zanatta v McCleary [1976] 1 NSWLR 230
• Category: Principal judgment
• Parties: CUR24 (Applicant); Director of Public Prosecutions (First Respondent); District Court of New South Wales (Second Respondent); Attorney General for New South Wales (Intervener)
• Representation: Counsel: J C Sheller (Applicant); Submitting appearance (First Respondent); Submitting appearance (Second Respondent); P Menzies QC, D T Kell (Intervener); Solicitors: Macedone Legal, Miranda (Applicant); S C Kavanagh, Solicitor for Public Prosecutions (First Respondent); I V Knight, Crown Solicitor (Second Respondent); I V Knight, Crown Solicitor (Intervener)
• File Number(s): CA 2008/55729-49

Decision under appeal

• Citation: Regina v CUR24 [2011] NSWDC 177
• Date of Decision: 2011-09-16 00:00:00
• Before: Finnane DCJ
• File Number(s): 2008/55729-49

Judgment

1 BASTEN JA: The question raised by this application is whether indiscreet comments by a judge at a social function, not directed to any particular case or litigant, but to a class of criminal behaviour, gave rise to a reasonable apprehension of bias, in the sense of prejudgment. The case raises two specific issues, namely:

(1) How would a fair-minded lay observer assess remarks made by a judge at a social function, and

(2) How should the Court resolve a dispute as to what was in fact said?

2 I agree with Meagher JA that the application should be dismissed: subject to what follows, I also agree with his reasons.

(1) Remarks by judge at social function

3 Claims that comments or conduct of a judge create a reasonable apprehension of bias generally involve behaviour in the course of proceedings being conducted by the judge, or other forms of public communication. As a practical matter that is understandable: comments made otherwise than in a public forum are not likely to become publicly known. However, that raises a question as to whether there can be a reasonable apprehension of bias in circumstances where a question as to public confidence in the administration of justice only arises from the publication of the remarks by an interested party. That is not to say that a claim of actual bias could not be raised, but that was not the complaint in the present case.

4 The few reported cases involving comments made by judges in social settings may be a reflection of the discretion or reticence of the recipients of the communication, resulting in the views not being made public. Alternatively, it may suggest that judges are usually discreet in their remarks, especially when there are lawyers present who are or may be involved in litigation before them. A third possibility is that the absence of case law suggests an understanding that remarks made in a social setting do not readily create a reasonable apprehension of bias.

5 Mann v The Northern Territory News (1988) 88 FLR 194 involved an application that Nader J disqualify himself from sitting on an appeal from proceedings for defamation against the NT News. Many of the comments by the judge upon which the applicant relied were made publicly, in the course of trials. However, one category involved private remarks, the judge noting at 208-209:

"I have expressed the opinion privately from time to time that the NT News is a newspaper of poor standard by comparison with the leading metropolitan dailies in other parts of Australia. I have occasionally expressed that opinion [in] private conversation with members of the legal profession. The opinion has generally been enthusiastically reciprocated. I have made more than one disparaging reference in those private conversations to an anonymous gossip column ....

There are other, more general, reasons why I have regarded the NT News as lacking any real quality as a newspaper. However, as far as I can remember, I have not expressed those reasons to anyone who would have breached my confidence. I cannot help adding that I am personally disappointed if it is true that members of the legal profession have reported my private conservations to the NT News or its solicitors."

6 Despite these remarks, it appears that the primary grounds relied upon by Nader J in acceding to the application were the several classes of public statements.

7 Zanatta v McCleary [1976] 1 NSWLR 230 is, as Meagher JA notes below, not directly in point, because it concerned statements allegedly made by a trial judge after judgment was delivered in a country town, suggesting that he had made private inquiries as to the medical condition of the plaintiff from a local doctor, and had taken into account matters not raised in evidence and upon which the parties had had no opportunity to address: at 232. The evidence upon which the appellant relied, in seeking to overturn the inadequate judgment in her favour, were affidavits of her barrister and solicitor at trial, who had been party to the conversation with the judge at a local club after the hearing: at 232B. The case was not, in terms, one involving any allegation of pre-judgment or bias. The evidence was rejected on the basis that it was not admissible to show the process of reasoning adopted by the trial judge, or the factors he had taken into account in coming to his decision: at 234D (Street CJ), 239F (Samuels JA). On one view, however, the remarks of Samuels JA may be understood more widely; he stated at 239-240:

"It is unnecessary, in this case, to express any final view as to whether there are circumstances in which a court will receive evidence of extra-curial statements made by a judge concerning a proceeding in which he has given judgment. But I am firmly of the opinion that such evidence is not admissible, if its purpose is to show the process of reasoning or the factors taken into account in coming to the decision.

The affidavits assert that, in the conversation which they purport to recount, the learned judge not only offered a private exposition of the grounds upon which he determined the factual issues before him, but dilated upon his own experience in support of his opinion. It is, however, unnecessary to decide whether this encounter took place in the terms alleged; and I do not do so. But it would be destructive of the mutual confidence which must exist between the bench and the profession, if social occasions were to be used as a means of recording a judge's private conversation, however imprudent, for the purpose of showing that he has expressed personal views of a particular kind."

8 Similar views were expressed by Street CJ (at 232D) and, subject to a reservation, by Mahoney JA at 241D-E. The reservation was expressed in the following terms:

"I would not desire to qualify the right of a party, or the right of his professional advisers, fearlessly to press every matter which, within the law, may properly be pressed in support of a claim. However, justice requires that a proper sense of responsibility be exercised in this regard and if evidence, the tender of which is apt to cause damage to others, will not be admissible, then justice will normally require that that evidence be not tendered."

9 Different principles undoubtedly apply in respect of evidence which is capable of establishing a reasonable apprehension of bias. There was an objection taken in this Court to the admissibility of the affidavit of the solicitor for the applicant, recounting his recollection of the conversation with the judge. That objection, and the question whether the evidence should be accepted as accurate, will be addressed below.

10 A Scottish case, Bradford v McLeod [1986] SLT 244, involved comments made by a sheriff at a social function, during a miners' strike. Following a discussion of scenes shown on television involving violent conduct of both police and miners, the sheriff was said to have stated, in a conversation during which a solicitor who regularly appeared for members of the National Union of Mineworkers was present, that "if any legal aid applications for cases involving miners came before him he would refuse them." (To obtain legal aid, a defendant had to persuade the sheriff in advance of the hearing that he or she had a "serious defence".) Various matters involving miners charged with a breach of the peace at a picket line came before the sheriff sitting in court. The sheriff was invited to disqualify himself on the basis of his comments made at the social function, but declined to do so. He proceeded to deal with the miners, each of whom he convicted and sentenced.

11 The High Court set aside the convictions and sentences on the basis that the sheriff had not considered, in refusing the recusal application, whether his remarks might have given rise to a reasonable apprehension of bias; the High Court was satisfied that they did. The principal judgment, given by the Lord Justice-Clerk, Lord Ross, noted that once the solicitor "had made public what the sheriff had said..., the inevitable consequence was that the sheriff was disabled from dealing with any case involving a miner": at 248. He further noted that the acquittal of three miners charged with similar offences "would certainly go some way towards negativing the suggestion that the sheriff was in fact biased against miners", but that actual bias was not the sole issue raised.

12 The view that no apprehension of bias can arise as the result of remarks made in a truly private setting was adopted by Handley JA in Wentworth v Rogers [2000] NSWCA 368, identifying the test of apprehended bias as applying "to the conduct of the Judge in court or otherwise in public": at [9]. That case involved comments made in a judge's chambers, which, absent a social event involving persons other than judges and their staff, should be understood as private. However, a social event, such as a morning tea following the swearing in of a new judge, is less clearly private, even though not public in the sense that conduct in court would be so described. Further, Handley JA did not need to consider the effect of publicising what might otherwise have been private conduct by way of evidence given or read in open court.

13 In this case, the Attorney General, intervening, objected to the reading of Mr Walsh's affidavit on the basis that in Wentworth v Rogers Handley JA had rejected such an affidavit on policy grounds. However, in circumstances where it was not argued that comments made in an essentially private conversation, albeit at a social function, could not, as a matter of law, give rise to a reasonable apprehension of bias, it should be accepted that they can. It follows that evidence as to the statements made must be relevant and should be admitted for that purpose.

(2) Resolving the dispute as to what was said

14 Applications for recusal can give rise to a variety of factual issues. Because there have been few cases dealing with comments by judges in social settings, there is little discussion in the cases as to how a court exercising supervisory jurisdiction (or indeed the judge to whom the recusal application is made) should deal with disputed allegations in respect of the critical facts. The institutional setting and culture may well be critical in that regard. For example, in Bradford v McLeod the Court remitted to the sheriff principal the function of inquiring and reporting on the factual allegations. The sheriff principal interviewed witnesses, including the sheriff himself, and made findings as to the comments made by the sheriff, who it was stated, "simply cannot remember any detail of the various social conversations he had at the function": at 246. In particular, the sheriff principal reported that he was satisfied as to the remark about legal aid and that two of the three persons in the group who heard the remark "understood the observation about legal aid to be seriously made".

15 In the present case, on 16 September 2011 the judge rejected the application, giving reasons for his decision. In doing so he ordered that there be no mention of the identity of the applicant but that the media could have access to Mr Walsh's affidavit, ordering that there be no publication of the names of any judge mentioned in the affidavit other than his own: at [66].

16 The judge's reasons set out in some detail both the stages reached in the proceedings involving the applicant, the judge's relationship with Mr Walsh over many years and his recollection of the events at the morning tea on 15 March 2011. The judge denied making statements as recounted by Mr Walsh, but suggested that he might have, in the course of a longer conversation than was recorded, referred to a view he believed he had heard expressed by a psychologist at a Royal Commission, though not in the extreme terms ascribed to him by Mr Walsh. There is, thus, a live dispute as to what was said at the social function.

17 In the course of the hearing in this Court, the Attorney sought to cross-examine Mr Walsh. He also sought to read an affidavit which sought to identify some support in the transcript of the Royal Commission for the account given by the judge as to what he might have said to Mr Walsh. Both the application to lead evidence and to cross-examine Mr Walsh were rejected. That course was taken on the basis that it was not for this Court to resolve the dispute. It should be accepted, as the judge had suggested in his reasons for rejecting the recusal application, that there was quite likely a misunderstanding as to what was said in the course of a noisy social function.

18 It is neither desirable, nor perhaps possible, to lay down guidelines as to how a court exercising appellate or supervisory jurisdiction should deal with disputed evidence in circumstances of the kind which arise in this case. If the court were able to say that, even taking the applicant's evidence at its highest, it would not grant the relief sought, it would not be necessary to resolve the evidential dispute. However, usually, as in this case, the Court will not be in a position to reach such a conclusion at the time when the factual dispute is to be addressed.

19 There will also be cases where there is reason to believe that the basis of the complaint is insubstantial, perhaps because the witness or the facts asserted lack self-evident credibility, in which case it may be desirable that any evidential dispute be resolved.

20 A third situation, which includes this case, is that neither the witness nor the comments themselves are evidently lacking in credibility, with the result that the hypothetical lay observer might be treated as sharing any misunderstanding, if that be the most likely explanation, as to what was said. In considering whether or not to allow cross-examination and contradicting or supporting evidence to be called by the parties, the underlying purpose of the proceeding must be borne in mind. Whilst public confidence in the administration of justice may not be enhanced by orders requiring the disqualification of judges and setting aside judgments without a sound factual basis, public confidence may also not be enhanced by the Court not being satisfied, on the balance of probabilities, that the statements averred by a responsible legal practitioner were not in fact made. The fact that a statement was probably not made does not mean that a lower possibility should be entirely disregarded.

21 That is not to say that in all cases the court must decide an application for recusal on the basis of facts as likely to have been perceived by the hypothetical lay observer. However, in some cases, it may be appropriate to approach the matter on that basis. This is such a case.

22 The foregoing comments concern the approach to be adopted by a court exercising appellate or supervisory jurisdiction. Different principles must apply in respect of a judge determining a recusal application at first instance (which may, of course, involve a judge sitting on an appeal or exercising supervisory jurisdiction). In Wentworth v Rogers, at [4], Handley JA accepted that the denial of the judge alleged to have made the statement "cannot settle the question which depends upon the view of a 'fair-minded observer'". Had the evidence been relevant (disregarding questions of admissibility, which may or may not arise in such proceedings) it is not clear what course his Honour would have taken. He had earlier stated that he would disqualify himself immediately if the allegations were either true or "if I thought that I might have said such things in the past": at [3]. Thus, it would seem that the judge asked to disqualify himself or herself may need to apply the fair-minded observer test in respect of the evidence. In other words, unless the hypothetical observer would reject the evidence as entirely implausible, the judge should consider whether, if accepted, it had the relevant quality to raise a reasonable apprehension of bias.

(3) Application of principles

23 The background circumstances at the time of the disqualification application were that the applicant had been convicted of offences in relation to persons under the age of 16 and awaited sentence. He was also charged with other similar offences, which had not proceeded to trial, due to an interlocutory appeal then pending in the Court of Criminal Appeal. It was, however, anticipated that the judge, who had conducted preliminary steps in the trial proceedings, would preside over jury trials once the interlocutory appellate proceedings were completed and assuming that the applicant maintained his not guilty pleas.

24 The comments of the other judge, namely that all persons charged with sexual assault were believed by the judge to be guilty, were undoubtedly intended to be flippant and would have been so understood by the fair-minded lay observer. The circumstances which justify that inference are not merely the words used, but the setting in which the conversation took place. If the comment had been intended seriously, it would have been made in a different context and setting. It follows that the judge's response, in agreement, would also be treated as entirely flippant. The suggestion that the judge either did not understand or was not willing to apply the basic principles of the criminal law would not have been taken seriously.

25 With respect to the suggestion that all paedophiles should be "put on an island and starved to death", assuming the remark was made by the judge, it could not have been intended literally. No such penalty is known to the law of this State, as would have been well known to the judge, the solicitor and the fair-minded lay observer. It was no doubt an expression of view as to the seriousness of that kind of criminal conduct, accompanied by a high degree of hyperbole.

26 For these, and the further reasons given by Meagher JA, the summons should be dismissed with costs.

27 WHEALY JA: I agree with Meagher JA.

28 MEAGHER JA: This is an application for orders prohibiting Finnane DCJ (the Judge) from sentencing the applicant for convictions for indecent assault, and from hearing proceedings involving further indecent assault charges against the applicant. The Judge declined to disqualify himself from hearing those proceedings. The application is made under s 69 of the Supreme Court Act 1970 on the ground that there exists a reasonable apprehension that the Judge might not bring an unbiased mind to those proceedings. If that ground is made out, the Judge's refusal to recuse himself would involve a failure to afford procedural fairness and attract the supervisory jurisdiction of this Court: R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 262-263, 267; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [26]-[42]; Lee v Cha [2008] NSWCA 13 at [4], [28]. That is so notwithstanding s 176 of the District Court Act 1973: s 69(5) of the Supreme Court Act; Spanos v Lazaris [2008] NSWCA 74 at [14]-[16]; Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240 at [134]; DPP v Burns & Anor [2010] NSWCA 265; (2010) 207 A Crim R 362 at [74].

29 The basis for the disqualification application was an alleged out of court statement made on 15 March 2011 at a social function by the Judge to the solicitor then acting for the applicant. The Judge disputes making a statement in the terms alleged. This raises a question as to whether it is necessary, on an application such as this, to resolve that dispute by making findings as to what was said before applying the test for reasonable apprehension of bias or whether that test should be applied taking into account the circumstance that there is such a dispute.

The circumstances said to give rise to a reasonable apprehension of bias

30 On 29 and 30 November 2010, in a trial conducted by the Judge, the applicant was found guilty by a jury on 9 counts of indecent assault of females under the age of 16. On 7 February 2011, the applicant was arraigned before the Judge on an indictment alleging a further 12 counts of indecent assault of 7 male complainants under the age of 16.

31 As at March 2011, Mr Gregory Walsh was the solicitor acting for the applicant in relation to the defence of these charges. He had known the Judge for more than 30 years and had briefed the Judge when he was practising as a barrister. Over the years, both before and after the Judge's appointment, they had met on a social basis and, from time to time, discussed the general subject of Mr Walsh's practice, including his criminal law work.

32 In an affidavit sworn on 6 September 2011, Mr Walsh deposed to the following conversation with the Judge at a morning tea reception which took place on 15 March 2011 following the swearing-in of Jeffreys DCJ as a judge of the District Court. Mr Walsh was assisted in his recollection of the conversation by a handwritten file note made on the day of the conversation:

"9 As I walked from the court towards the reception area where I ran into [a judge] who was not robed and I said hello and shook hands with him. As I walked into the reception room I greeted [another judge].

10 I was approached by Judge Michael Finnane QC who had a cup of tea in his hand. He said to me words to the following effect:

'G'day Greg, representing another paedophile are you?'

11 I replied 'I'm just representing a former teacher of the Knox School and I am talking to [the other judge] about another person ...'

12 At that stage [the other judge] turned to talk or say hello to someone else and Judge Finnane said to me words to the following effect:

'Well you know what should be done with all these paedophiles? They should be put on an island and starved to death.'

13 I said 'Is that right Michael?'.

14 Judge Finnane said 'Yes, that's the best thing for them ...'

15 At this stage [the other judge] who was still close by, must have heard something as she said words to the following effect:

'Michael you believe they're all guilty, but just because a person is charged with sexual assault does not mean they are guilty or there is sufficient evidence to prove the allegations beyond reasonable doubt.'

16 Judge Finnane said 'they're all guilty. They're guilty.'"

33 Mr Walsh reported his recollection of the conversation to the Applicant's wife a few days after 15 March 2011. At a mention of the sentencing proceedings on 29 July, the Judge listed the sentencing of the applicant for hearing before him on 9 September. On 6 September the applicant filed a motion that the Judge disqualify himself. The making of the application was not foreshadowed to the Judge in any way before the motion was filed. Mr Walsh's affidavit was read on that application.

34 On 16 September 2011, the Judge delivered reasons for declining to disqualify himself. In those reasons he referred to his personal relationship with Mr Walsh and the discussions they had from time to time about his criminal law work. The Judge said he had never discussed the applicant's case with Mr Walsh and that he was "absolutely certain I did not tell him that I had a view that all paedophiles should be put on an island and starved to death". The Judge had made a similar denial during the course of the oral argument on 9 September.

Test for reasonable apprehension of bias

35 The test as to apprehension of bias is not in issue. The question is whether "a fair-minded lay observer" might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33]; Michael Wilson & Partners Ltd v Robert Nicholls [2011] HCA 48; (2011) 282 ALR 685 at [31]. In applying this test, it is necessary first to identify what it is that might lead to that officer not bringing an impartial mind to the relevant question and then to assess the reasonableness of the asserted connection between that matter and the possibility of departure from impartial decision-making: Ebner v Official Trustee in Bankruptcy at [8]; Michael Wilson & Partners Ltd v Robert Nicholls at [63].

36 In this case the apprehended bias is said to arise from prejudgment. When prejudgment of an issue is relied upon "what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented": Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352, 360, 371; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72]. That reasonable fear must be "firmly established" because it is to be expected that judicial officers may have formed views or "inclinations of mind" with respect to particular subjects in the course of their professional careers: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 553-554; R v Watson; Ex parte Armstrong at 261, 262. One example of such a subject is the expertise or reliability of particular expert witnesses: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 570-571.

37 It is also to be expected that judicial officers can and should readily alter or disregard such views in the light of evidence or argument. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 the plurality said:

"[12] The hypothetical reasonable observer of the judge's conduct is postulated in order 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 require [the judge] to discard the irrelevant, the immaterial and the prejudicial'.

[13] Whilst the fictional observer, by reference to whom the test is formulated, 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 any suggested apprehension of bias is to be considered in the context of ordinary judicial practice."

The importance of these observations has been emphasised more recently in British American Tobacco Australia Services Ltd v Laurie & Ors [2011] HCA 2; (2011) 242 CLR 283 at [46], [80], [81], [132] and in Michael Wilson & Partners Ltd v Robert Nicholls at [32].

Should this Court make findings as to disputed matters before applying the test?

38 The apprehended bias principle is concerned with the impression which would be created in the minds of the public if the judicial officer continued to participate in the determination of the relevant matter. For that reason a court applying the test is required to address how that officer's continuing participation would appear to others, not being judges or lawyers, by reference to the standard of the fair-minded bystander. That court may be exercising appellate or supervisory jurisdiction (such as in this case) or may be addressing the question by reference to its own conduct, as was the position faced by the Judge.

39 In order to apply that test, it is necessary to attribute to that fair-minded bystander knowledge of all of the circumstances of the case: R v Watson; Ex parte Armstrong at 262, 264, 267; Re JRL; Ex parte CJL at 349, 355, 359, 368, 371-372; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; Laws v Australian Broadcasting Tribunal at 87-88, 95. When doing so, there is no inflexible rule that later statements or conduct of a judge, including reasons given for not recusing himself or herself, cannot be taken into account as material relevant to the hypothetical bystander's assessment: Johnson v Johnson at [14]; British American Tobacco Australia Services Ltd v Laurie & Ors at [52], [70], [138]. In the present case the description in the Judge's reasons of his personal and professional relationship with Mr Walsh and of the nature of the reception which followed the swearing-in ceremony, provide the context for the disputed conversation: see [14], [15], [16], [18], [19] and [20] of the Judge's reasons delivered on 16 September 2011. The hypothetical observer would have regard to that context and for that reason it should form part of the circumstances by reference to which the assessment should take place.

40 An affidavit of Mr Walsh was filed in support of the application to this Court. The Attorney General, who was given leave to intervene, objected to the reading of that affidavit and sought to cross-examine Mr Walsh as to what the Judge was alleged to have said. He also sought to file and serve an affidavit of a Ms Bates on the basis that it corroborated an aspect of the Judge's version of the relevant conversation. That version is to be found in his reasons for declining to recuse himself and in the transcript of 9 September 2011, both of which were in evidence before this Court.

41 The Court admitted Mr Walsh's affidavit and did not permit the Attorney to cross-examine him. It also refused to admit into evidence the further affidavit sought to be relied on. I joined in those rulings. It was not argued by the Attorney that statements made by the Judge at a social function were not capable, as a matter of law, of giving rise to an apprehension of bias. For that reason Mr Walsh's affidavits were relevant and admitted into evidence. Those statements were not made in private conversations between judges of the kind considered by Handley JA in Wentworth v Rogers at [9]-[10]. The position in relation to the other evidence sought to be tendered is different. Where there is a dispute as to the terms of an out of court statement made by the judicial officer and plausible evidence as to the making of that statement, in my view the relevant principles do not require that the court first resolve that dispute by making findings of fact before applying the fair-minded bystander test. In a case such as the present, the objective assessment called for by that test should take account of the circumstance that there is a dispute concerning the conduct or statements relied upon. For that reason, evidence directed to enabling the Court by a process of fact-finding to resolve that dispute was not relevant in this case.

42 The principal reason why in the present case the circumstances to which the reasonable bystander test is applied should include the fact of any dispute as to what was said, is that the relevant principles are concerned with appearance, rather than reality, and from the perspective of a fictional observer chosen to secure the outcome that the public have confidence in the administration of justice: R v Watson; Ex parte Armstrong esp at 259, 262-263; Ebner v Official Trustee in Bankruptcy esp at [6], [7].

43 Circumstances giving rise to an appearance of lack of independence or impartiality may include that plausible allegations have been made of statements or conduct on the part of the judicial officer. That may be so even if the officer denies or disputes those allegations in some respect. In Ebner v Official Trustee in Bankruptcy the plurality said at [7]:

"So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. 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. 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."

A finding on the balance of probabilities that something was not said would not exclude in the eye of the fictional observer (or the court) the real and not remote possibility that it was said. Depending upon what is alleged to have been said, that possibility may carry with it the further and real possibility that the judicial officer might not bring an impartial mind to the question in issue.

44 Furthermore, disputes concerning the circumstances alleged to give rise to the apprehension of bias may not be limited to whether something was or was not said or did or did not occur. For example, there may be a question as to whether something which was said by the judicial officer was merely an "incautious remark" which did not reflect any formed or held view: British American Tobacco Australia Services Ltd v Laurie & Ors at [140]. The relevant test does not require that a finding first be made as to whether something said reflected a view formed or whether such a view was in fact likely to influence the outcome of a particular matter. The circumstances to which the fair-minded observer must be taken to have regard include those possibilities or likelihoods which will reflect the plausibility of the material relied upon to establish the relevant circumstances. If, as in this case, there is sworn direct evidence of an out of court statement or other conduct of the judicial officer, which is disputed by the officer, the fair-minded observer would approach the matter by considering whether, if what was deposed to had in fact occurred, the decision-maker might not be open to persuasion. If that is the position and in the circumstances there remains a real possibility that the statement was made or other conduct occurred, the result would be that the fair-minded observer might reasonably apprehend that the decision-maker might not be open to persuasion.

45 Applications to disqualify will usually be made to a judicial officer before or during a hearing: Vakauta v Kelly at 572; Barker v The Queen (No. 2) (1996) 70 FCR 1 at 7-8. In relation to those applications, the judicial officer is not likely to be in a position to resolve any contest as to his or her conduct when addressing the application. The reason was adverted to by Samuels JA in Barton v Walker [1979] 2 NSWLR 740 at 749:

"The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?"

The correctness of these observations is not called into question by the observations of the plurality in Michael Wilson & Partners Ltd v Robert Nicholls at [76]-[85]. There could also be difficulties in resolving any such contest before a court exercising appellate or supervisory jurisdiction, particularly if the judicial officer is the only person who can give direct evidence of his or her version of the disputed matter. A judge would be competent to give evidence in such a proceeding but not compellable without leave: Evidence Act 1995, s 16(2). Another reason which suggests that contests as to conduct should not be resolved in this way is that the fact of an officer being cross-examined in a proceeding may itself result in a reasonable apprehension of bias or give rise to circumstances that do so.

46 The Court was not referred to, and I have not found, any authority which deals with how a court exercising appellate or supervisory jurisdiction should approach this question. Cases such as Zanatta v McCleary at 234, 238-239 and Herijanto v Refugee Review Tribunal & Ors [2000] HCA 21; (2000) 74 ALJR 703 at [10], [11] are not directly in point. They were concerned with the admissibility and relevance of evidence as to the considerations which had led a judicial officer to a particular decision. That evidence was ruled inadmissible either as irrelevant or as hearsay. They were not concerned with the apprehended bias principle.

47 In Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 18 ALD 230 it was argued that there was an appearance of bias by reason of statements said to have been made by the husband of the chairman of the Australian Broadcasting Tribunal. That argument arose on an application for judicial review of decisions made by the Tribunal. The primary judge (Morling J) heard evidence and made findings concerning the statements relied upon. On appeal (Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310)), the Full Court of the Federal Court (Lockhart, Pincus and Gummow JJ) said (at 320-321):

"Although we have found no authority directly bearing on the point, it appears to us that statements made outside and without the authority of a court or a tribunal by persons who are not its members cannot, in general, disqualify it from proceeding. Persons of considerable public credibility may on occasions make gratuitous statements as to a court's or tribunal's established attitudes, perhaps even as a stratagem to create embarrassment. We think that there are dangers in accepting the doctrine that statements of that kind can prejudice the right or affect the duty of a judge or tribunal member to sit."

These observations, which might reflect views to be attributed to the fair-minded bystander in respect of statements by third parties, do not address whether, in the face of plausible evidence of such a statement by a judicial officer, the circumstance that there is a dispute also should be left to the fair-minded bystander test.

48 In R v Balic (No. 2) (1994) 75 A Crim R 515 this Court quashed a decision of Court DCJ to revoke bail on the ground that there was a reasonable apprehension of bias. Although the report describes the proceeding as an appeal, the reasons suggest, without saying so expressly, that the proceeding was brought by way of summons for relief under s 69 of the Supreme Court Act. A conversation involving Court DCJ was overheard by the solicitor for the accused while he was examining exhibits in an unrelated matter in the chambers of another judge. The accused applied to Court DCJ to disqualify himself. He declined to do so. The solicitor and the accused gave evidence on that application. Court DCJ did not accept that the solicitor's affidavit accurately recorded the overheard conversation. The evidence included that the accused had been informed of what the solicitor had overheard. Having referred to these circumstances, Cole JA noted (at 519):

"In my view it is clear that Mr Balic had a fear of pre-judgment such as may disadvantage him at his trial. There is no reason to question the honesty of Mr Ford. The evidence therefore establishes that, prior to the bail determination on 4 November 1994, Mr Balic had a reasonable belief that the question of bail would arise on that day and that the decision in relation to it had already been made."

49 In setting aside the decision to revoke bail, Cole JA (Handley JA and Sheller JA agreeing) addressed the apprehended bias issue by reference to the position of the accused who had been told of the remarks overheard by the solicitor. In doing so, he accepted the evidence of the solicitor. The reasons do not indicate whether it was sought to cross-examine the solicitor or lead other evidence on that issue in the Court of Appeal. Cole JA concluded (at 520):

"Nonetheless the person seeking bail had been told in advance that his Honour had made the remarks quoted by Mr Ford. Those remarks were capable of being interpreted as a prejudgment. Mr Balic, and the public, could reasonably entertain an apprehension of prejudgment on the bail application. Once such a decision is so tainted, it must be set aside. A consequential effect is that Mr Balic, or fair-minded members of the public, could reasonably hold the view that any subsequent trial presided over by Judge Court may not have that appearance of impartiality which is necessary."

In the present case, Mr Walsh's version of events was also reported to the applicant's wife and, presumably, by her to the applicant. Notwithstanding that circumstance, the fair-minded observer would inquire whether there was any dispute as to what was reported to have been said or done by the Judge because that is a matter relevant to a fair judgment on the issue of apparent bias: British American Tobacco Australia Services Ltd v Laurie & Ors at [46]-[47]. At that point, the question as to how any such dispute should be dealt with would arise.

50 In Wentworth v Rogers, Handley JA (at [4]) also noted that, although he denied having said the things attributed to him, "as [Miss Wentworth] correctly submitted, my denial cannot settle the question which depends upon the view of a 'fair-minded observer'". This statement is consistent with an approach which requires that the alleged conduct and any denial be assessed by reference to the fair-minded observer test.

51 Finally, the Supreme Court of Fiji (Mason, Handley and Sackville JJ) in Gates v Takiveikata & Anor [2008] FJSC 16 dismissed applications for leave to appeal from a decision of the Court of Appeal which had allowed an appeal following a criminal trial before Gates J on the ground of apprehended bias based on an out of court conversation. Gates J disputed that the conversation had occurred and before the Court of Appeal evidence was led as to the disputed conversation, including from Gates J who was cross-examined. Before the Supreme Court, there was no consideration of the question whether that was an appropriate course for the Court of Appeal to adopt when addressing the argument as to apprehended bias.

52 For the reasons given earlier, and in the absence of authority holding otherwise, it is my view that where there is plausible evidence as to an out of court statement or other conduct of a judicial officer, the relevant principle does not require a court exercising supervisory jurisdiction to resolve, by making findings of fact, any dispute as to what was said or done before applying the fair-minded bystander test. That test would take account of the fact of the dispute and whether that evidence, if accepted, was sufficient to give rise to a reasonable apprehension of bias.

Has apprehended bias been established?

53 The statements of the Judge said to give rise to the apprehension of bias were made out of court and on a social occasion to a solicitor with whom the Judge had been acquainted for a number of years. They were not statements directed to or made about the applicant or the proceedings before the Judge involving the applicant.

54 Those statements address two matters. The first is what "should be done" to paedophiles. The second is whether all persons charged with sexual assault are to be regarded as guilty. The statement relating to the second matter may be disposed of shortly. It is not relied upon by the applicant as providing a basis for a conclusion as to prejudgment on the question of the guilt or innocence of persons accused of paedophilia. Nor could it be. The statement about that subject, made by another judge as to what the Judge believed, was not likely to have been intended to be taken seriously. It does not follow any comment of the Judge which would justify the attribution of such a belief to him. Nor could such a belief be attributed to him upon the basis of his response to that statement. That response - "They're all guilty. They're guilty" - does not squarely or sufficiently engage or respond to the statement of the other judge to constitute an acknowledgement by the Judge of its accuracy as a statement of his belief. It is also consistent with the first comment having been mischievous and light-hearted.

55 The statement as to the first matter is in general terms and about paedophiles rather than persons accused of paedophilia. It is exaggerated and not be taken literally. Nevertheless, it is consistent with a view that paedophilia is a very serious offence for which those committing it should be severely punished. Such a view, however, would not be regarded as so extreme that it could not reasonably be held.

56 Such a view would be consistent with attitudes within the community to such offences as perceived by lawmakers and the courts. For example, in the Second Reading Speech for the Crimes Amendment (Sexual Offences) Bill 2003 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 May 2003 at 376), the Attorney General, Mr Debus, said:

"The sexual exploitation of our children is criminal conduct of the most heinous and abhorrent kind and must be deplored by the Legislature through the imposition of heavy deterrent penalties. The bill therefore increases penalties for sexual offences upon children under the age of 16 years."

Statements to a similar effect have been made by the courts when addressing issues concerning sentencing for such offences: see, for example, R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1 at [20]; R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 at [57]; and R v ABS [2005] NSWCCA 255 at [26].

57 The fair-minded bystander would be taken to appreciate that in presiding over a trial, a judge would have to address questions as to the admissibility of evidence, formulate a summing-up and determine an appropriate sentence: R v Balic (No. 2) at 520; R v Kearns [2003] NSWCCA 367 at [34]-[36]. That observer would also appreciate that the Judge is someone whose "training, tradition and oath or affirmation require [that he] discard the irrelevant, the immaterial and the prejudicial": Johnson v Johnson at [12]; British American Tobacco Australia Services Ltd v Laurie at [46], [47], [80]-[81], [132].

58 The applicant identifies the Judge's remark that convicted paedophiles are only worthy of the most severe of punishment as indicating a formed view on a subject which would have to be addressed in relation to the applicant when dealing with the discretion to sentence. He submits that the existence of such a view makes it likely that the Judge might not be open to persuasion when sentencing him, particularly with respect to the consideration of matters such as the applicant's prospects of rehabilitation and contrition.

59 The difficulty which the applicant's argument confronts is that the authorities make plain that it is to be expected that judicial officers may have formed views with respect to subjects that they are likely to have had to address in the course of their professional careers, either as a barrister or a judge. It does not follow that because such a view or opinion is held, the officer is to be regarded as so prejudiced that he or she will not put that view aside and be capable of being influenced by evidence or argument presented in a trial or on a sentencing hearing. The fair-minded observer is taken to appreciate these matters.

60 The present case is not one in which the judicial officer has formed and expressed a view as to the credit of a person who is an essential witness in any proceedings involving the applicant: cf R v Watson; Ex parte Armstrong at 264; Livesey v New South Wales Bar Association at 300. Nor is it one in which the judicial officer has made a finding in an earlier proceeding on the same issue as arises in the proceedings involving the applicant: cf Livesey v New South Wales Bar Association at 300; Laws v Australian Broadcasting Tribunal at 81.

61 By way of summary, the fair-minded bystander would consider that there was evidence that the Judge had made a statement, probably incautiously, on an informal occasion which indicated a very firm view about the seriousness of paedophilia. That view was not expressed in relation to the applicant or any particular aspect of the applicant's offences or alleged offences. That bystander would understand that the Judge should, consistent with his training and function, put that view aside when addressing issues which arise in proceedings involving the applicant. In these circumstances, the bystander would not consider it likely that the Judge could not and would not put that view aside and be open to persuasion by the evidence or arguments presented on behalf of the applicant.

62 For these reasons, the fact of the alleged conversation with Mr Walsh on 15 March 2011 was not such as might give rise to an apprehension of bias on the part of the Judge arising from prejudgment. This conclusion makes it unnecessary to address the Attorney's further argument that the applicant's delay in making the disqualification application to the Judge was a reason that weighed in favour of this Court declining to grant the relief sought in the exercise of its discretion.

63 The Attorney does not seek an order as to costs in the event that the Amended Summons is dismissed.

Orders proposed

64 The orders of the Court should be:

(1) Amended Summons dismissed.

(2) No order as to costs.

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Decision last updated: 11 April 2012