Case: Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568
Outcome: considered
In Ebner v Official Trustee [2000] HCA 63 ; (2000) 205 CLR 337 at 344-345 [6] - [8] Gleeson CJ, McHugh, Gummow and Hayne JJ said: '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 (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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 (R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association [1983] HCA 17 ; (1983) 151 CLR 288; Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488). 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 McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ), a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. 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. 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. 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. 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. 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 departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.' 37 I have no hesitation in assuming that his Honour set out in his reasons for judgment fully, honestly and accurately all of what he took into account in coming to his decision to dismiss the appellant's complaint relating to Mr Xiao. Nor is it necessary or appropriate to inquire further into this question for the issue here is relevantly whether what occurred gave rise to the appearance of a possibility of an absence of an impartial mind on the part of his Honour as Callinan J explained in Antoun v The Queen [2006] HCA 2 ; (2006) 224 ALR 51 at 76-77 [81] - [83] , Haydon J agreeing at 78 [91]; see too per Gleeson CJ at 57 [22]. But what I, as a judge, or any lawyer for that matter, knows or assumes that a judicial officer referred to or took into account in deciding a matter when regard is had to the judicial officer's fulfillment of the duty to give reasons for judgment, is one thing. It is quite another thing for a fair-minded lay observer to be precluded from forming a reasonable apprehension that, in the present factual context, the judge might not have brought an impartial mind to the resolution of the dispute. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 573: 'An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice.' 38 I do not consider that any question of waiver of his Honour's conduct can be imputed to Ms Huang. She was not to know that what his Honour did was extraordinary. Nor did counsel for the University intervene to suggest that what his Honour proposed to do was inappropriate. In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572 Brennan, Deane and Gaudron JJ held that waiver was the consequence of a legally represented party failing to object to judicial conduct reasonably capable of being regarded as conveying an apprehension of bias. Their Honours did not explore the position for an unrepresented party but in Preston v Carmody (1993) 44 FCR 1 at 14 Wilcox J referred to the principle they had identified and said: 'But the principle to which their Honours referred is not limited to cases where the relevant party is legally represented. It was applied by the New South Wales Court of Appeal in relation to a litigant in person in Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 421-422. Where a person is not legally represented or advised, it will always be necessary to consider whether he/she had the knowledge necessary to found waiver. 40 So much will depend on the facts of the particular case that further generalized discussion by me is not fruitful. In Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 571-572, Brennan, Deane and Gaudron JJ considered how far a trial judge could express preconceived views about expert medical witnesses who frequently in the past had given evidence before him. They said (167 CLR at 571-572): 'On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice. In the passage in his judgment in [ Re Watson: Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248 at 294] to which we have referred, Jacobs J pointed to the undoubted fact that "it is confidence in his own integrity which supports [a judge] not only in his judgment but in all his words and conduct". Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias. For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.' 41 Again, this case is different because the material from Ms Frank which the trial judge used confirmed what already appeared to have been established.