18The legal test to be applied on a recusal application is the same whether a judge is to sit with a jury or as a judge sitting alone.
The General Principles
19The governing principle is that, subject to qualifications relating to waiver, necessity or possibly special circumstances (none of which arise in this case), 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 or questions that the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344 [6]: British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 at 331 [139], 333-335 [146]-[152].
20In practice, the application of this test involves three steps:
(a)the party seeking recusal must identify what it is that might lead the judge to decide the case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at 345 [8];
(b)the party seeking recusal must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at 345 [8];
(c)once the matter suggesting bias has been identified and the logical connection between that matter and the feared deviation has been articulated, the party seeking recusal must establish that there is an ensuing apprehension of bias and that that apprehension is reasonable: Ebner v Official Trustee in Bankruptcy at 345 [8].
21A judge should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 504 [45]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352.
22A judge is obliged to recuse himself or herself from hearing a matter only if, in the judge's view, there is a real possibility that the judge's participation in a case might lead to a reasonable apprehension of bias: Livesey v New South Wales Bar Association at 294.
23Where, as here, reasonable apprehension of bias is said to arise by way of prejudgment, it is necessary to consider the nature and strength of any previous findings which are relied upon in support of the application, and in particular whether the findings concern the credibility of a witness or witnesses: British American Tobacco Australia Services Limited v Laurie at 331-333 [139]-[145]; Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 86 ALJR 14 at 20-21 [31]-[33], 26-27 [67]-[73]. The hypothetical observer will have in mind the fact that judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence in the particular case: British American Tobacco Services Limited v Laurie at 331-332 [140].
24In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits (the second step in Ebner v Official Trustee in Bankruptcy), it is important to bear in mind the characteristics of modern litigation - the rules and conventions governing ordinary judicial practice are not frozen in time. They develop to take into account exigencies of modern litigation so that, at the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, inscrutable, although sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. One thing that is clear is that the expression of tentative views during the course of argument, as to matters on which the parties are permitted to make full submissions, does not manifest partiality or bias: Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2006] HCA 55; 229 CLR 577 at 609-610 [111]-[112].
25It has been said that, in a case of real doubt, where the application for recusal is based upon a substantial ground for contending that the judge is disqualified from hearing the case, a judge may decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification: Ebner v Official Trustee in Bankruptcy at 348 [20]. Matters relevant to that assessment include, amongst other things, the stage at which an objection is raised and the practical possibility of arranging for another judge to hear the case: Ebner v Official Trustee in Bankruptcy at 348 [21].
Some Further Considerations Where a Judge is to Preside at Criminal Jury Trial
26Although the test for reasonable apprehension of bias remains the same whether the judge is to sit with or without a jury, that distinction is pertinent given the different issues which a trial judge may be called upon to determine, which do not include the ultimate factual question of whether the guilt of the accused has been proved beyond reasonable doubt, this being a matter for the jury.
27The application of the relevant principles in the context of a judge-alone trial were considered by the High Court of Australia in Antoun v The Queen [2006] HCA 2; 80 ALJR 497.
28The distinction between the functions of judge and jury in a criminal trial are well illustrated by the decision of the Court of Criminal Appeal in R v Kearns [2003] NSWCCA 367. In that case, the trial judge had presided at an earlier trial of a related offender. In these circumstances, it was submitted on appeal against conviction, that the trial judge should not have presided at the trial of the appellant. In the course of rejecting this ground of appeal, Spigelman CJ (Dunford and Hidden JJ agreeing) said at [33]-[40]:
"[33] The Appellant contends that his Honour's involvement, even as a presiding judge in a jury trial, gave rise to a reasonable apprehension of bias. It was submitted that as his Honour had heard the alleged fabrications of Parkes and of those whom the Appellant contends are his co-conspirators, ie fabricated allegations against the Appellant, in a trial where those allegations against the Appellant were uncontested, that fact may have prejudiced the trial judge.
[34] The fact that the trial judge's role in a jury trial is limited is not determinative of the matters, however, it is of significance. That it is not determinative is shown by the Court of Appeal in the case of Balic (No 2) (1994) 75 A Crim R 515 at 520, where their Honours said:
Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge.
[35] The test for disqualification on the grounds of bias is now well established in Australia and has been set out in Johnson v Johnson (2000) 201 CLR 488 at 492 to 493:
... . [T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... . is whether 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 test is objective ... two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'.
[36] As I have indicated, in a jury trial the matters which a judge is required to decide include the admissibility of evidence and also the formulation of a summing up. If there is a conviction, he or she must sentence the person so convicted. These are more limited matters than those which arise in the course of a judge-alone trial. Specifically, however, they do not include the determination of issues of credit.
[37] Nevertheless, decisions to admit or reject the evidence and the other subtle and indirect influences which were referred to in Balic (No 2), may affect the course of a criminal trial. In a complex trial involving financial questions that will need to be carefully explained to a jury, it is an advantage for a trial judge to have a familiarity with the corporate group of the character that Judge Dodd had on these occasions, even though the particular offending was quite distinct in the case of the Parkes prosecution from the prosecution of the Appellant.
[38] I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge's mind, in terms of his or her conduct in the second trial.
[39] These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge.
[40] This is something of which the judges in the District Court are well aware. They will approach their decision making in a subsequent trial without any impact on their capacity for impartiality. That would be, in my opinion, understood by a fair-minded, independent lay observer."
29There is no general rule that a new trial must take place before a different judge: R v Lee [2005] QCA 122 at [5]-[7]. The fact that a judge has presided at the first trial of a person, where a retrial is ordered, is no reason of itself for that judge to decline to preside at the second trial. A retrial may occur for many reasons. To conduct a retrial is to conduct the trial which ought to have taken place in the first place: Cornwell v The Queen [2007] HCA 12; 231 CLR 260 at 294-295 [88].
30The fact that a sentencing judge has made statements, in the course of sentencing one offender, does not provide a foundation for that judge to step aside from presiding at the trial, with a jury, of a related alleged offender: R v Sonnet (No. 3) [2007] VSC 287; R v Kearns at [39]-[40]. Indeed, the ordinary rule is that co-offenders should ordinarily be sentenced by the same judge: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [33]-[46].
31The interrelationship between the judge and jury at a criminal trial was considered by the High Court of Australia in Cesan v The Queen [2008] HCA 52; 236 CLR 358. French CJ observed at 362 [4] that the duty of a judge in a jury trial "extends to the supervision and control of the conduct of the trial". At 381-382 [74], French CJ said:
"In a jury trial it is not the judge but the jury which finds the facts. It reaches a verdict by applying to the facts the law as explained to it by the judge. But the judge's function in such a trial is not exhaustively described by saying that he or she rules on questions of law including the admissibility of evidence, sums up to the jury, directs the jury on matters of law and otherwise acts as a kind of referee between prosecution and defence. These are all attributes of a more broadly expressed function of supervision and control of and participation in the trial process. That is a function which has long been understood. It requires no less a standard of attentiveness to the evidence and the conduct of the trial generally than the standard applicable to a judge sitting alone. Indeed, because of the involvement of the jury it requires more."
32In the same case, Gummow J (Heydon J agreeing), at 389-390 [102]-[103], emphasised as well the direction and superintendence of the judge presiding at a criminal jury trial.