Webb & Hay v R [1994] HCA 30;

Webb & Hay v R [1994] HCA 30; - HCA 1994 case summary — Zoe

[9]

3. When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case ((3) Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 261-262, 264, 267; Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at 158; 18 ALR 93 at 97-98; Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 14, 16; 32 ALR 47 at 50-51, 54; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294, 300; Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342 at 349, 351, 359, 368 and 371; Vakauta v. Kelly [1989] HCA 44; (1989) 167 CLR 568 at 575, 584; Grassby v. The Queen [1989] HCA 45; (1989) 168 CLR 1 at 20.). The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission ((4) Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd. [1993] HCA 41; (1994) 68 ALJR 179 at 182; [1994] HCA 66; 119 ALR 206 at 210.) and to a member of the Australian Broadcasting Tribunal ((5) Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 87, 92, 102.). The Court has specifically rejected the real likelihood of bias test ((6) Watson (1976) 136 CLR at 261-262.). The principle behind the reasonable apprehension or suspicion test is that it is of "fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" ((7) R. v. Sussex Justices; Ex parte McCarthy (1924) 1 KB 256 at 259 per Lord Hewart CJ; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR at 351-352.). Although the role of the juror is not the same as that of the judge, a commissioner or a member of a quasi-judicial tribunal, we do not think that the difference between the role of the juror and the role of those persons warrants any different test for alleged bias.

[26]

11. Moreover, nothing in the two speeches in the House of Lords in Gough contains any new insight that makes us think that we should re-examine a principle and a line of cases to which this Court has consistently adhered for the last eighteen years. On the contrary, there is a strong reason why we should continue to prefer the reasoning in our own cases to that of the House of Lords. In Gough, the House of Lords rejected the need to take account of the public perception of an incident which raises an issue of bias except in the case of a pecuniary interest. Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge. But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the "lay observer" ((35) Vakauta (1989) 167 CLR at 573, 574.), the "fair-minded observer" ((36) Livesey (1983) 151 CLR at 300; Laws (1990) 170 CLR at 87.), the "fair-minded, informed lay observer" ((37) Laws (1990) 170 CLR at 92.), "fair-minded people" ((38) Watson (1976) 136 CLR at 263.), the "reasonable or fair-minded observer" ((39) Vakauta (1989) 167 CLR at 585.), the "parties or the public" ((40) Ex parte Hoyts Corporation Pty. Ltd. (1994) 68 ALJR at 182; 119 ALR at 210.), and the "reasonable person" ((41) Vakauta (1989) 167 CLR at 576.) abound in the decisions of this Court and other courts in this country. They indicate that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in Vakauta ((42) ibid. at 585.) in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case. That does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge's findings.

[87]

2. In a series of recent cases ((71) See, in particular, Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258-263; Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at 158; 18 ALR 93 at 97-98; Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 14, 16; 32 ALR 47 at 50-51, 54; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294, 300; Re J.R.L.; Ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342 at 349-350, 351-352, 359, 368, 371; Vakauta v. Kelly [1989] HCA 44; (1989) 167 CLR 568 at 572, 575; Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 81, 87, 96, 99-100.), the Court has formulated the test to be applied in this country in determining whether a judicial officer ("a judge") is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that (the judge) might not bring an impartial and unprejudiced mind to the resolution of the question" in issue. The quoted words in that statement of the test are taken from the judgment of the Court in Livesey v. New South Wales Bar Association ((72) (1983) 151 CLR at 293-294.). In that case, and in a number of the other cases, the test was stated in terms of an apprehension on the part of "the parties or the public" ((73) See, e.g., Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR at 262; Re Judge Leckie; Ex parte Felman (1977) 52 ALJR at 158; 18 ALR at 98; Re Shaw; Ex parte Shaw (1980) 55 ALJR at 14, 16; 32 ALR at 50, 54; Livesey v. New South Wales Bar Association (1983) 151 CLR at 293-294; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR at 351; Grassby v. The Queen [1989] HCA 45; (1989) 168 CLR 1 at 20.). So stated, the test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice ((74) See, e.g., Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR at 263; Reg. v. Gough [1993] UKHL 1; (1993) AC 646 at 659.). However, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer ((75) See, e.g., Stollery v. Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509 at 517, 519; Livesey v. New South Wales Bar Association (1983) 151 CLR at 299, 300; Builders' Reg. Board of Qld v. Rauber (1983) 57 ALJR 376 at 380, 389-390; 47 ALR 55 at 62, 80; Laws v. Australian Broadcasting Tribunal (1990) 170 CLR at 87- 88, 95-96, 98-100; Vakauta v. Kelly (1989) 167 CLR at 572, 573, 576, 585. And cf. Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100 at 116 ("reasonable persons"); Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR at 263 ("fair-minded people").). That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law. I have used the word "apprehension" in preference to the word "suspicion" for the reason that the latter word is capable of conveying shades of meaning which are inappropriate in this context. As a practical matter, however, there is little, if any, difference between the content of the two words when prefaced by "reasonable" and I have, in referring to authority in this judgment, on occasion treated them as interchangeable ((76) In particular in fn.(73) (above) and fn.(79) (below).).

[99]

11. There is support in some learned writings ((94) See, e.g., Evans, De Smith's Judicial Review of Administrative Action, 4th ed., (1980) at 264.) and judgments ((95) See, e.g., Reg. v. Altrincham Justices; Ex parte Pennington (1975) QB 549 at 553-554.) for the view that the reasonable apprehension or suspicion test and the real likelihood of danger test should both be retained and applied, either alternatively or cumulatively, depending upon the appropriateness of one or both to the circumstances of the particular case. I do not accept that view. If the test of a reasonable apprehension on the part of a fair-minded observer with knowledge of the material objective facts fell to be applied by reference only to those facts which were apparent at the time, there would be much to be said for the view that the real likelihood or real danger test should be retained to be applied in cases where some of the damaging material facts - whether prior, contemporaneous or subsequent -as ascertained by the appellate court were not known at the time of the proceedings. In my view, however, the material objective facts are not so confined for the purposes of the test. The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court ((96) See Laws v. Australian Broadcasting Tribunal (1990) 170 CLR at 87 per Mason CJ and Brennan J: "we must attribute to him or her knowledge of the actual circumstances of the case"; S. and M. Motor Repairs v. Caltex Oil (1988) 12 NSWLR 358 at 368-369, 381; Morris (1991) 93 Cr App R 102 at 106 per Farquharson LJ: "a reasonable and fair minded person sitting in the court and knowing all the relevant facts".), as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court ((97) See Livesey v. New South Wales Bar Association (1983) 151 CLR at 299; Vakauta v. Kelly (1989) 167 CLR at 573, 585; Laws v. Australian Broadcasting Tribunal (1990) 170 CLR at 87-88, 98.). The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned. If, in the particular case, the proper conclusion is that a fair-minded lay observer with a broad knowledge of those facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias. Strictly speaking, it is unnecessary for the purposes of the present case, where no allegation of actual bias has been made, to decide whether an appellate court should entertain such an allegation. I would, however, indicate that I consider that the reasonable apprehension test is of such broad and general application that it is unnecessary and inappropriate for an allegation of actual bias to be raised before or determined by an appellate court ((98) See, e.g., R. (De Vesci) v. Justices of Queen's County (1908) 2 IR 285 at 294; Reg. v. Barnsley Licensing Justices (1960) 2 QB 167 at 187; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR at 356- 357.).

[101]

13. Within the first category of case, i.e. disqualification by interest, the general rationale underlying the doctrine is reinforced by the principle expressed in the maxim that nobody may be judge in his own cause ((101) See, e.g., Co.Litt. 141.a; Dickason v. Edwards [1910] HCA 7; (1910) 10 CLR 243 at 259; Australian Workers' Union v. Bowen (No.2) [1948] HCA 35; (1948) 77 CLR 601 at 631.). Indeed, there is one special class of case within that first category in which, subject to the possible operation of the rule of necessity ((102) See Builders' Reg. Board of Qld v. Rauber (1983) 57 ALJR at 385- 386, 392; 47 ALR 72-73, 84; Laws v. Australian Broadcasting Tribunal (1990) 170 CLR at 88-89, 96-98, 102.), the effect of that principle is that disqualification is automatic without there being any "question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case" ((103) Reg. v. Gough (1993) AC at 661 per Lord Goff.). That special class consists of cases in which the judge, juror or statutory officer has a direct pecuniary interest ((104) In the sense of an interest sounding in money or money's worth. See ibid. at 673: "pecuniary or proprietary interest".) in the outcome of the proceedings. In such cases, public confidence in the administration of justice requires that there be disqualification regardless of the particular circumstances ((105) See ibid. at 661.). It is unnecessary, for present purposes, to consider whether that special class of case should be expanded or whether there are other special classes of case in which disqualification by reason of an apprehension of bias is automatic since it is clear that the present case does not fall within any such special class. It would, however, seem appropriate to indicate that I see great force in the view expressed by Lord Goff and Lord Woolf in Reg. v. Gough ((106) ibid. at 664, 673.) to the effect that automatic disqualification should be confined to cases of direct pecuniary interest. That is not, of course, to deny that there will be cases where such a direct pecuniary interest does not exist but where the nature of the relevant interest and/or relationship is such that it is obvious that the person concerned is disqualified by reason of a reasonable apprehension of bias ((107) See, e.g., fn.(99) (above).).

[110]

20. The law has long recognized the need to ensure an absence of contact between members of an empanelled jury and those interested in, or concerned about, the outcome of the particular trial ((109) See, e.g., Co.Litt at 227.b; R. v. Taylor (1950) NILR 56 at 67-73; Reg. v. Chaouk (1986) VR at 710; Barry, "On the Segregation of Jurors" (1953) 6 Res Judicatae 139.). Notwithstanding the abandonment of past methods designed to ensure that the members of a criminal jury were isolated, the position remains that any extraneous contact between a juror and a person with a special interest in, or concern about, the outcome of the trial is a serious irregularity in the administration of justice. It is common ground that, in the present case, the jurors had, as part of an assembled jury panel in waiting, received clear instructions from the trial judge to the effect that it was incumbent upon them to avoid contact with counsel, witnesses or members of the public in and about the courtroom. The conduct of the juror in asking Mrs Griffiths, the mother of Mr Patrick's fiance, to convey the gift of daffodils to Mrs Patrick was a flagrant and presumably knowing breach of both the letter and the spirit of that direction ((110) Presumably, the juror's conduct was so seen by other members of the jury since, after the incident had been drawn to the trial judge's attention on the following day, the juror informed his Honour that "(t)he jury have just said, why did I not tell them yesterday and they would have told you yesterday."). The fact that the conduct constituted such a breach would be seen by a fair-minded lay observer as demonstrating that the juror's sympathy for, and possible identification with, the mother of the deceased was such as to override the juror's observance of clear instructions about her duty as a juror. It would, in the context of what has been said above, be but a small step for the fair-minded lay observer to conclude that such a degree of sympathy for, and possible identification with, the mother of the deceased would be reflected by a corresponding degree of abhorrence of, and possible antagonism towards, the appellants. In the particular circumstances of this case and notwithstanding the directions of the learned trial judge about the need for objectivity and impartiality, it appears to me that the conclusion is unavoidable that a fair-minded lay observer with knowledge of the material objective facts would be most likely to entertain a reasonable apprehension that the juror concerned would not approach the task of the determination of guilt or innocence either objectively or with an impartial and unprejudiced mind.

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Decision date

Before

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Judgment (186 paragraphs)

Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41; (1994) 122 ALR 41; (1994) 68 ALJR 582 (30 June 1994)

Parties

Cases Cited (37)