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    The apprehension of bias principle: Can judges and lawyers still be friends?

    Nov 26, 2021 10:56:57 AM

    “Justice should both be done and be seen to be done, reflecting a requirement fundamental to the
    common law system of adversarial trial – that it is conducted by an independent and impartial
    tribunal”. The recent High Court decision Charisteas v Charisteas [2021] HCA 29 puts a dampener on the friendships between judicial officers and legal practitioners.
    The husband and wife married in 1979 and separated in 2005. In 2006, the husband commenced
    property settlement proceedings under s79 Family Law Act. The matter was allocated to the trial
    judge in March 2016 but the trial did not commence until 3 August. On 12 February 2018, judgment
    was delivered unfavourably to the husband, and he appealed.
    In May 2018, after hearing “gossip”, the husband’s solicitor wrote to the wife’s barrister asking her to outline the circumstances of her dealings with the trial judge outside of Court during the time the trial judge was involved in the matter. The wife’s barrister disclosed that she had met with the judge for a drink or coffee on four occasions, spoken with the judge by telephone on five occasions, exchanged "numerous" and later “occasional” text messages with the judge. None of the contact occurred during the evidence stage of the trial. The barrister concluded by stating that the "communications" with the trial judge did not concern "the substance of the ... case". The husband then filed an amended notice of appeal adding grounds alleging apprehension of bias, there was no suggestion of actual bias.
    The test for apprehended bias is whether 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*.

    The High Court confirmed the ordinary judicial practice that unless exceptional circumstances arise,
    judges, practitioners, parties and witnesses involved in a matter should have no communication or
    association, otherwise than in the presence of or with the previous knowledge and consent of the
    other party.

    The Full Court found that the trial judge and the wife’s barrister were aware of their obligations as they did not communicate during the trial, but failed to appreciate that the obligation not to communicate applied at other times. The majority held that the hypothetical observer would understand that the trial judge mistakenly not sinisterly failed to disclose the communications.

    The High Court criticised the approach of the Full Court stating that the apprehension of bias principle
    is so important to perceptions of independence and impartiality “that even the appearance of
    departure from it is prohibited lest the integrity of the judicial system be undermined” (quoting from
    Ebner (2000) 205 CLR 337 at 345 [7]). They were particularly critical of the judge who had continued
    contact with the wife’s barrister, even after the additional parties to the case lodged a recusal
    application in September 2016 on the ground of apprehended bias, on the basis of remarks and
    rulings made by the judge during the trial.

    The majority of the Full Court also reasoned that the fair-minded observer would be informed that
    barristers and judges were professional people who do not identify with the client and would adhere to professional restraint in what was discussed and would not discuss the case at hand.

    Once again, the High Court disagreed, stating that the hypothetical observer is not a lawyer but a
    member of the public without professional self-appreciation of this kind. The Court stressed that
    personal connections between judges and lawyers can only be resumed at the end of litigation, once
    Orders and reasons are published.

    This case is a clear reminder to legal practitioners to have no social or professional conduct with
    judicial officers without the presence, or prior knowledge and consent of the other parties. A mistake
    can be costly and time consuming. Proceedings in Charisteas commenced in 2006 and are still
    * Ebner (2000) 205 CLR 337 at 344 [6]; Concrete (2006) 229 CLR 577 at 609 [110].

    This is not legal advice.

    Topics: Court

    Karen Barber

    Written by Karen Barber