Judicial Bias

One of the most fundamental foundations of our justice system is determination of matters by impartial judicial officers.

One of the most fundamental foundations of our justice system is determination of matters by impartial judicial officers.

Such is the sensitivity of the justice system to this issue that the mere apprehension of bias (as judged by the “reasonably informed fair-minded bystander”) that view alone is considered sufficient to require the judicial officer in question to recuse his or herself from hearing the matter.

The test as set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 requires the following two stage process:

“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 various principles applicable were comprehensively and helpfully set out in Muldoon v R; Carter v R [2008] NSWCCA 315 at [26].

Ebner

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

“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”