Rushing to judgment

Cutting to the chase in trials can look unfair. Where legal submissions are necessary, judges may be tempted to deal with them peremptorily, risking the appearance of bias. The bounds of proper judicial conduct were crossed at the trial that was the subject of the appeals jointly heard in Antoun v R [2006] HCA 2 (8 February 2006).

The judges of the High Court of Australia all agreed that the trial had been handled in a way that created the appearance that the judge was biased against the defence. This "apprehended bias", is

"the appearance of a possibility of an absence of an impartial mind on the part of the judge"

(per Callinan J at para 83, with whom the other members of the Court agreed). As Kirby J noted, para 28:

"…The manifest observance of fair procedures is necessary to satisfy the requirements not only of fairness to the accused but also of justice before the public so that they may be satisfied, by attendance or from the record, that the process has followed lines observing basic rules of fairness. Excessively telescoping the procedures in such cases can lead to a sense of disquiet on the part of the accused, and of objective observers whose attitudes, where relevant, must be represented, and given effect, by appellate courts."

In this case the judge, on being told at the close of the prosecution case, that the defence counsel for each accused would make submissions that there was no case to answer, immediately said that such submissions would be rejected. This was said before an opportunity to make those submissions was given. It was a trial by judge alone, but that is not material because even in a jury trial such submissions would be heard in the absence of the jury.

Callinan J held that the judge’s conduct gave an appearance of pre-judgment, and therefore, para 86:

"It follows that the apparent strength of the respondent's case, and the weaknesses of the appellants' defence cannot be used as justification or excuse for the trial judge's expressions of a determination to reject submissions foreshadowed, but not yet made and developed."

Gleeson CJ put it this way, para 23:

"…The judge regarded this as a strong case of extortion. He formed the view, with good reason, that the no case to answer submission was likely to be implausible. Yet he should not have decided to reject it without giving counsel an opportunity to put the argument. In the circumstances, that would not have required much time. The way in which the judge dealt with the no case argument, and later with the question of bail, gave rise to an appearance of lack of impartiality. Strong as the case against the appellants appeared to be, they were entitled to a fair hearing."

This case did not include submissions on whether the proviso could be relied upon to dismiss the appeal. However, Kirby J noted, para 49, that the denial of the opportunity to make submissions before decision would probably be a sufficient miscarriage of justice to make the proviso inapplicable, and that, had the case been argued on the proviso, it would have required consideration of Weiss v The Queen [2005] HCA 81 at [45] (see these blogs, 16 January 2006).
We might, by now, anticipate that a case of apprehended bias would be a substantial miscarriage of justice, given the fundamental importance of the appearance of justice, but one must acknowledge that there is, at least, an argument that whereas actual bias would be a substantial miscarriage of justice, apprehended bias falls short of that in cases where there was no loss of a real chance of acquittal.

Consideration of Antoun raises a number of fundamental questions. Is there a difference between so-called "apprehended" bias and "actual" bias? If there is such a thing as apprehended bias, does it fall within the scope of the accused’s right to a fair hearing, or is it an associated right? Current jurisprudence suggests that if it is the former, it is absolute, but if it is only an associated right then it is subject to balancing against competing values. Doesn’t the actual decision in Antoun (that apprehended bias requires a retrial even where the judge’s ruling was correct) mean that the real issue in the case was not whether the hearing had involved bias (whether actual or apprehended), but rather whether there had been a "hearing" on the relevant issue? On analysis, the real reason a retrial was necessary in Antoun is that the accused had been denied the right to a hearing on the issue of whether there had been a case to answer.