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  • Writer's pictureGeoff Harrison

Bias


Published by Geoff Harrison | 13 February 2024


The test as to whether an accused has a reasonable apprehension of bias in relation to a judicial officer is referred to as the "double might" test. The test and its application was set out in Tarrant v R [2018] NSWCCA 21 at [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.” The High Court has reaffirmed the salience of the test on subsequent occasions, including in Michael Wilson & Partners Ltd v Nicholls. The so-called “double might” test is by no means easy to apply: its application requires attention to four discrete elements.


(1) 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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