Should this Court make findings as to disputed matters before applying the test?
38The apprehended bias principle is concerned with the impression which would be created in the minds of the public if the judicial officer continued to participate in the determination of the relevant matter. For that reason a court applying the test is required to address how that officer's continuing participation would appear to others, not being judges or lawyers, by reference to the standard of the fair-minded bystander. That court may be exercising appellate or supervisory jurisdiction (such as in this case) or may be addressing the question by reference to its own conduct, as was the position faced by the Judge.
39In order to apply that test, it is necessary to attribute to that fair-minded bystander knowledge of all of the circumstances of the case: R v Watson; Ex parte Armstrong at 262, 264, 267; Re JRL; Ex parte CJL at 349, 355, 359, 368, 371-372; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294; Laws v Australian Broadcasting Tribunal at 87-88, 95. When doing so, there is no inflexible rule that later statements or conduct of a judge, including reasons given for not recusing himself or herself, cannot be taken into account as material relevant to the hypothetical bystander's assessment: Johnson v Johnson at [14]; British American Tobacco Australia Services Ltd v Laurie & Ors at [52], [70], [138]. In the present case the description in the Judge's reasons of his personal and professional relationship with Mr Walsh and of the nature of the reception which followed the swearing-in ceremony, provide the context for the disputed conversation: see [14], [15], [16], [18], [19] and [20] of the Judge's reasons delivered on 16 September 2011. The hypothetical observer would have regard to that context and for that reason it should form part of the circumstances by reference to which the assessment should take place.
40An affidavit of Mr Walsh was filed in support of the application to this Court. The Attorney General, who was given leave to intervene, objected to the reading of that affidavit and sought to cross-examine Mr Walsh as to what the Judge was alleged to have said. He also sought to file and serve an affidavit of a Ms Bates on the basis that it corroborated an aspect of the Judge's version of the relevant conversation. That version is to be found in his reasons for declining to recuse himself and in the transcript of 9 September 2011, both of which were in evidence before this Court.
41The Court admitted Mr Walsh's affidavit and did not permit the Attorney to cross-examine him. It also refused to admit into evidence the further affidavit sought to be relied on. I joined in those rulings. It was not argued by the Attorney that statements made by the Judge at a social function were not capable, as a matter of law, of giving rise to an apprehension of bias. For that reason Mr Walsh's affidavits were relevant and admitted into evidence. Those statements were not made in private conversations between judges of the kind considered by Handley JA in Wentworth v Rogers at [9]-[10]. The position in relation to the other evidence sought to be tendered is different. Where there is a dispute as to the terms of an out of court statement made by the judicial officer and plausible evidence as to the making of that statement, in my view the relevant principles do not require that the court first resolve that dispute by making findings of fact before applying the fair-minded bystander test. In a case such as the present, the objective assessment called for by that test should take account of the circumstance that there is a dispute concerning the conduct or statements relied upon. For that reason, evidence directed to enabling the Court by a process of fact-finding to resolve that dispute was not relevant in this case.
42The principal reason why in the present case the circumstances to which the reasonable bystander test is applied should include the fact of any dispute as to what was said, is that the relevant principles are concerned with appearance, rather than reality, and from the perspective of a fictional observer chosen to secure the outcome that the public have confidence in the administration of justice: R v Watson; Ex parte Armstrong esp at 259, 262-263; Ebner v Official Trustee in Bankruptcy esp at [6], [7].
43Circumstances giving rise to an appearance of lack of independence or impartiality may include that plausible allegations have been made of statements or conduct on the part of the judicial officer. That may be so even if the officer denies or disputes those allegations in some respect. In Ebner v Official Trustee in Bankruptcy the plurality said at [7]:
"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."
A finding on the balance of probabilities that something was not said would not exclude in the eye of the fictional observer (or the court) the real and not remote possibility that it was said. Depending upon what is alleged to have been said, that possibility may carry with it the further and real possibility that the judicial officer might not bring an impartial mind to the question in issue.
44Furthermore, disputes concerning the circumstances alleged to give rise to the apprehension of bias may not be limited to whether something was or was not said or did or did not occur. For example, there may be a question as to whether something which was said by the judicial officer was merely an "incautious remark" which did not reflect any formed or held view: British American Tobacco Australia Services Ltd v Laurie & Ors at [140]. The relevant test does not require that a finding first be made as to whether something said reflected a view formed or whether such a view was in fact likely to influence the outcome of a particular matter. The circumstances to which the fair-minded observer must be taken to have regard include those possibilities or likelihoods which will reflect the plausibility of the material relied upon to establish the relevant circumstances. If, as in this case, there is sworn direct evidence of an out of court statement or other conduct of the judicial officer, which is disputed by the officer, the fair-minded observer would approach the matter by considering whether, if what was deposed to had in fact occurred, the decision-maker might not be open to persuasion. If that is the position and in the circumstances there remains a real possibility that the statement was made or other conduct occurred, the result would be that the fair-minded observer might reasonably apprehend that the decision-maker might not be open to persuasion.
45Applications to disqualify will usually be made to a judicial officer before or during a hearing: Vakauta v Kelly at 572; Barker v The Queen (No. 2) (1996) 70 FCR 1 at 7-8. In relation to those applications, the judicial officer is not likely to be in a position to resolve any contest as to his or her conduct when addressing the application. The reason was adverted to by Samuels JA in Barton v Walker [1979] 2 NSWLR 740 at 749:
"The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?"
The correctness of these observations is not called into question by the observations of the plurality in Michael Wilson & Partners Ltd v Robert Nicholls at [76]-[85]. There could also be difficulties in resolving any such contest before a court exercising appellate or supervisory jurisdiction, particularly if the judicial officer is the only person who can give direct evidence of his or her version of the disputed matter. A judge would be competent to give evidence in such a proceeding but not compellable without leave: Evidence Act 1995, s 16(2). Another reason which suggests that contests as to conduct should not be resolved in this way is that the fact of an officer being cross-examined in a proceeding may itself result in a reasonable apprehension of bias or give rise to circumstances that do so.
46The Court was not referred to, and I have not found, any authority which deals with how a court exercising appellate or supervisory jurisdiction should approach this question. Cases such as Zanatta v McCleary at 234, 238-239 and Herijanto v Refugee Review Tribunal & Ors [2000] HCA 21; (2000) 74 ALJR 703 at [10], [11] are not directly in point. They were concerned with the admissibility and relevance of evidence as to the considerations which had led a judicial officer to a particular decision. That evidence was ruled inadmissible either as irrelevant or as hearsay. They were not concerned with the apprehended bias principle.
47In Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 18 ALD 230 it was argued that there was an appearance of bias by reason of statements said to have been made by the husband of the chairman of the Australian Broadcasting Tribunal. That argument arose on an application for judicial review of decisions made by the Tribunal. The primary judge (Morling J) heard evidence and made findings concerning the statements relied upon. On appeal (Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310)), the Full Court of the Federal Court (Lockhart, Pincus and Gummow JJ) said (at 320-321):
"Although we have found no authority directly bearing on the point, it appears to us that statements made outside and without the authority of a court or a tribunal by persons who are not its members cannot, in general, disqualify it from proceeding. Persons of considerable public credibility may on occasions make gratuitous statements as to a court's or tribunal's established attitudes, perhaps even as a stratagem to create embarrassment. We think that there are dangers in accepting the doctrine that statements of that kind can prejudice the right or affect the duty of a judge or tribunal member to sit."
These observations, which might reflect views to be attributed to the fair-minded bystander in respect of statements by third parties, do not address whether, in the face of plausible evidence of such a statement by a judicial officer, the circumstance that there is a dispute also should be left to the fair-minded bystander test.
48In R v Balic (No. 2) (1994) 75 A Crim R 515 this Court quashed a decision of Court DCJ to revoke bail on the ground that there was a reasonable apprehension of bias. Although the report describes the proceeding as an appeal, the reasons suggest, without saying so expressly, that the proceeding was brought by way of summons for relief under s 69 of the Supreme Court Act. A conversation involving Court DCJ was overheard by the solicitor for the accused while he was examining exhibits in an unrelated matter in the chambers of another judge. The accused applied to Court DCJ to disqualify himself. He declined to do so. The solicitor and the accused gave evidence on that application. Court DCJ did not accept that the solicitor's affidavit accurately recorded the overheard conversation. The evidence included that the accused had been informed of what the solicitor had overheard. Having referred to these circumstances, Cole JA noted (at 519):
"In my view it is clear that Mr Balic had a fear of pre-judgment such as may disadvantage him at his trial. There is no reason to question the honesty of Mr Ford. The evidence therefore establishes that, prior to the bail determination on 4 November 1994, Mr Balic had a reasonable belief that the question of bail would arise on that day and that the decision in relation to it had already been made."
49In setting aside the decision to revoke bail, Cole JA (Handley JA and Sheller JA agreeing) addressed the apprehended bias issue by reference to the position of the accused who had been told of the remarks overheard by the solicitor. In doing so, he accepted the evidence of the solicitor. The reasons do not indicate whether it was sought to cross-examine the solicitor or lead other evidence on that issue in the Court of Appeal. Cole JA concluded (at 520):
"Nonetheless the person seeking bail had been told in advance that his Honour had made the remarks quoted by Mr Ford. Those remarks were capable of being interpreted as a prejudgment. Mr Balic, and the public, could reasonably entertain an apprehension of prejudgment on the bail application. Once such a decision is so tainted, it must be set aside. A consequential effect is that Mr Balic, or fair-minded members of the public, could reasonably hold the view that any subsequent trial presided over by Judge Court may not have that appearance of impartiality which is necessary."
In the present case, Mr Walsh's version of events was also reported to the applicant's wife and, presumably, by her to the applicant. Notwithstanding that circumstance, the fair-minded observer would inquire whether there was any dispute as to what was reported to have been said or done by the Judge because that is a matter relevant to a fair judgment on the issue of apparent bias: British American Tobacco Australia Services Ltd v Laurie & Ors at [46]-[47]. At that point, the question as to how any such dispute should be dealt with would arise.
50In Wentworth v Rogers, Handley JA (at [4]) also noted that, although he denied having said the things attributed to him, "as [Miss Wentworth] correctly submitted, my denial cannot settle the question which depends upon the view of a 'fair-minded observer'". This statement is consistent with an approach which requires that the alleged conduct and any denial be assessed by reference to the fair-minded observer test.
51Finally, the Supreme Court of Fiji (Mason, Handley and Sackville JJ) in Gates v Takiveikata & Anor [2008] FJSC 16 dismissed applications for leave to appeal from a decision of the Court of Appeal which had allowed an appeal following a criminal trial before Gates J on the ground of apprehended bias based on an out of court conversation. Gates J disputed that the conversation had occurred and before the Court of Appeal evidence was led as to the disputed conversation, including from Gates J who was cross-examined. Before the Supreme Court, there was no consideration of the question whether that was an appropriate course for the Court of Appeal to adopt when addressing the argument as to apprehended bias.
52For the reasons given earlier, and in the absence of authority holding otherwise, it is my view that where there is plausible evidence as to an out of court statement or other conduct of a judicial officer, the relevant principle does not require a court exercising supervisory jurisdiction to resolve, by making findings of fact, any dispute as to what was said or done before applying the fair-minded bystander test. That test would take account of the fact of the dispute and whether that evidence, if accepted, was sufficient to give rise to a reasonable apprehension of bias.