Apprehension of judicial bias

10 July 2023

By Andrew Davies

Current at May 2023

On 7 October 2021 the High Court of Australia handed down an important decision on the issue of apprehension of judicial bias.                   

Charisteas v Charisteas involved a review of the contact, outside of court time, between a barrister appearing on behalf of one party and the trial judge hearing the same case in the Family Court of WA.

The High Court said:

[18] … 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 .

[21] … the hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system. The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self-appreciation of this kind.”

Appearance is everything.

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