Practitioners Guide: applying for a judge to recuse themselves

PRACTITIONER’S GUIDE TO MAKING AN APPLICATION FOR RECUSAL ON THE BASIS OF ACTUAL OR APPREHENDED BIAS

Making an application for a judicial officer to recuse themselves on the basis of actual or apprehended bias requires a serious consideration of the relevant legal principles as well as a thorough review of the factual circumstances of the matter.

This is because upon becoming a member of the bench, a judicial officer is required to take the Judicial Oath and is required to hear and determine all matters objectively and fairly. Therefore making an application which implies that a judicial officer has not been compliant with such an oath has grave ramifications and should only be reserved for the most compelling of cases.

How do I know if there is a basis to make an application?

Often a client will express suspicions about a judicial officer being biased against them after that judicial officer makes orders that are unfavourable to the client or after that judicial officer makes some remarks that the client believes represents a deeper conflict of interest in the judicial officer’s mind.

In order to properly advise your client as to whether or not their concerns have any legal basis or are simply suspicions and nothing more, it is important that you become familiar with the principles surrounding actual and apprehended bias as set out in this guide.

It is important to note, as a starting point, the fundamental principle that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” That is, there is an expectation that judicial officers will appear impartial in proceedings even if they are already conducting a matter impartially from the bench. In failing to do so, judicial officers run the risk of creating an appearance of bias that may give rise to applications being made for him or her to recuse themselves from hearing the matter.

What is the test for actual bias?

1. The test of actual bias requires a subjective assessment of a judicial officer’s statement of mind: Collier v CWA of NSW at [9]
2. A useful summary of principles that your application will need to address in satisfaction of the subjective assessment was set out in Reid v Commercial Club (Albury) Ltd at [68] – [73] as follows (citations omitted):

[68] A finding of actual bias is a grave matter. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required. .

[69] Where the issue is actual bias in the form of prejudgment, the appellant is to establish that the primary judicial officer was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.” [Quoting Jia Legeng at [72]].

[70] … The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.

[71] [There are] several distinct elements underlying the assertion that a decision-maker has has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

[72] … allegations of actual bias through prejudgment often fail at the third step … This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. Jia Legeng [185]-[186]

[73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judicial officer in question. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real.

“The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.” [Quoting Bilgin, at 290]

What is the test for apprehended bias?

1. The test for apprehended bias is objective and so does not require an assessment of the judicial officer’s state of mind (Collier at [9]).
2. To determine whether there is a basis for making an application for recusal, you must consider:

whether a fair-minded lay observer might reasonably apprehend that the judicial officer might bring an impartial and unprejudiced mind to the resolution of the question the judicial officer is required to decide (Johnson v Johnson at [11]).

3. To do this, you must take the following steps:
   1. Identify what facts or evidence is before the court that may lead the judicial officer to decide a case on a matter other than on its legal and factual merits.
   2. Articulate how a judicial officer may come to a conclusion based on those facts or that evidence rather than on the merits of the case.(see further Ebner v Official Trustee in Bankruptcy at [8]; Michael Wilson & Partners at [32]–[33]; British American Tobacco Australia Services Ltd v Laurie [139].)

What are the procedural steps I need to take?

An application can be made in most jurisdictions however the procedural steps that need to be taken depend on the jurisdiction that you are in. For the purposes of criminal proceedings in NSW, the following procedural steps are applicable as a general guide:

1. Prepare an application seeking orders that the judicial officer recuse himself or herself from hearing the matter on the basis of actual or apprehended bias, as the case may be.
2. Prepare an affidavit in support by the instructing solicitor setting out the evidentiary basis for the application and annexing all relevant documents.
3. Prior to the hearing, prepare a brief outline of written submissions so that you know what your application is about and you can address the judicial officer on it briefly and accurately.

I still have more questions, what do I do?

Even if your case does not seem to satisfy the requisite criteria to make a recusal application, it is still worth considering the conduct in the courtroom and whether it was inappropriate in any regard. This is because, at the very least, t“justice should … manifestly and undoubtedly be seen to be done” and is relevant to applications of actual or apprehended bias.

However for an example of perhaps when not to make an application please refer to the decision in Gaynor v Local Court of NSW & Ors.