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  • Writer's pictureGeoff Harrison

Apprehended Bias

Bias, Legal Bias, Bias Judge, Bias Magistrate, Criminal Barrister, Criminal Lawyer

Published by Geoff Harrison | 2 September 2023

The test for determining the appearance of bias was set out by Lonegran J in Masters v R [2022] NSWCCA 228 at [91] and [92]:

The test for determining the appearance of bias is whether fair-minded people might reasonably apprehend or suspect that the judge might not bring an open and impartial mind to the resolution of the issues (Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 per Mason CJ and McHugh J at [47]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]).

As stated by the Court (Basten JA, RA Hulme J and Hidden AJ) in Tarrant v R at [9]:

“The so-called "double might" test is by no means easy to apply: its application requires attention to four discrete elements.

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, 'the assessment by some judges of the capacity or performance of their colleagues.'

(2) 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.

(3) 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.

(4) 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.”


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