Recusal request

In an appeal to the High Court (HCA), Kiefel CJ and Gageler J summarised the issues as follows:

1. 1. This appeal from a decision of the Full Court of the Federal Court of Australia turns not on the merits of that decision but on whether the Full Court as constituted had jurisdiction to make it in circumstances where a prior conviction of the appellant formed part of the factual matrix which gave rise to the matter before the Full Court and in circumstances where one of the three judges who constituted the Full Court, when Director of Public Prosecutions of the Commonwealth, had appeared in opposition to an appeal by the appellant against that conviction.
   2. Two issues arise. One is whether those circumstances were sufficient to have given rise to apprehended bias on the part of the individual judge. There being no dispute between the parties that an apprehension of bias on the part of one judge must have deprived the Full Court constituted by three judges of jurisdiction to make the decision, the determination of that issue is dispositive.
   3. The other issue is whether, objection having been taken during the hearing of the appeal to the jurisdiction of the Full Court as then constituted on the ground of apprehended bias on the part of the individual judge, the objection ought to have been considered and determined by the Full Court or by that judge alone. That issue, although not dispositive, is one of principle, is of general practical importance, has been squarely raised and fully argued, and for those reasons is appropriate now to be determined by this Court.

1. 10. The appeal [to the Full Court of the Federal Court] was scheduled to be heard on the morning of 17 August 2021 before a Full Court constituted by McKerracher, Griffiths and Bromwich JJ. It is a matter of public record that, from 2012 until his appointment to the Federal Court in 2016, Bromwich J held the office of Director of Public Prosecutions under the Director of Public Prosecutions Act 1983 (Cth).
   11. Minutes before the commencement of the hearing on that day, the associate to Bromwich J sent an email to the legal representatives of the parties. The email stated that his Honour had asked the associate to advise the parties that he had appeared for "the Crown" in the appellant's unsuccessful conviction appeal in the Victorian Court of Appeal in 2014. The fact that his Honour had appeared as senior counsel for the respondent in that appeal was apparent from the record of the decision of the Victorian Court of Appeal, which was included in the appeal book for the Full Court proceedings. The email said that his Honour did not consider that circumstance to give rise to an apprehension of bias as the appeal "related to a pure legal question" but nonetheless wished to draw it to the attention of the parties "in order that any application for his Honour to recuse himself" could be made.
   12. At the commencement of the hearing of the appeal before the Full Court, counsel for the appellant announced that he had instructions to apply for Bromwich J "to recuse himself". Counsel for the appellant proceeded to make that application orally, relying solely on the circumstances disclosed in the email. At the conclusion of the oral submissions of counsel for the appellant there was a short adjournment, following which the Full Court reconvened.
   13. Upon the Full Court reconvening, McKerracher J invited Bromwich J to "deal with the application". Bromwich J explained that he declined to recuse himself from sitting on the appeal for reasons he proceeded to elaborate. McKerracher J then invited counsel for the appellant to continue and the hearing resumed. At the conclusion of the hearing, the Full Court reserved its decision.
   14. The decision of the Full Court was delivered on 15 September 2021^[8]. By that decision, the Full Court granted the appellant leave to rely on the ground that the decision of the AAT was legally unreasonable, refused the appellant leave to rely on the proposed ground that findings of the AAT were not supported by probative evidence, and dismissed the appeal.
   15. Joint reasons for judgment then published by McKerracher and Griffiths JJ comprehensively addressed the merits of the application for leave to amend the notice of appeal and the appeal^[9]. Those reasons said nothing about the application which had been made orally at the hearing.
   16. In separate reasons for judgment, Bromwich J agreed with McKerracher and Griffiths JJ as to the merits^[10]and went on to recapitulate the reasons he had given during the hearing for considering that the circumstances outlined in the email from his associate did not give rise to an apprehension of bias^[11]. Those reasons, in essence, were that: as Director of Public Prosecutions his practice was to appear only in appeals which raised issues of principle; the appellant's appeal against conviction to the Victorian Court of Appeal was an appeal of that character, turning wholly on a legal question as to the admissibility of evidence; by virtue of his appearance in that appeal, he had acquired no knowledge of the criminal history of the appellant beyond that which was apparent to all members of the Full Court from the record of the decision of the Victorian Court of Appeal contained in the appeal book for the Full Court proceedings; the fact of the conviction was not in issue in the appeal before the Full Court, it being common ground that the appellant failed the "character test"; and the contents of the decision of the Victorian Court of Appeal did not feature in the appeal before the Full Court in any way, the record of that decision having been included in the appeal book only because it had been part of the material which had been before the AAT.
   17. His Honour also made clear what was in any event to be inferred from the timing of his associate's email: that he had only noticed that he had appeared in the conviction appeal during the course of his final preparation on the morning of the hearing before the Full Court on 17 August 2021^[12]. His Honour acted prudently in accordance with standard judicial practice by promptly notifying the parties of circumstances properly recognised by him to have the potential to be seen to give rise to an apprehension of bias^[13].

Question 1: Even though the application made to the Full Court by counsel for the appellant at the commencement of the hearing was framed as an application that Bromwich J "recuse himself", was it in substance an objection to the Full Court as then constituted hearing and determining the appeal?

Question 2: Does responsibility for ensuring an absence of bias, whether actual or apprehended, ultimately lie with a court as an institution and not merely with a member of that court whose impartiality might be called into question?

Question 3: Is the state of mind of the judge whose application for recusal is directed to a question of fact?

Question 4: Is the criterion for the determination of an apprehension of bias on the part of a judge whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide"?

Question 5: If the answer to Question 4 is 'yes', is it to emphasise that the criterion is concerned with "possibility (real and not remote), not probability?

Question 6: Does that criterion entail: "(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer?"

Question 7: Does the fact that Bromwich J held the statutory office of Director of Public Prosecutions at the time of the appellant's conviction appeal, and by inference at the time of his indictment, trial and conviction, logically lead to an apprehension that his Honour might not resolve the questions in the appeal to the Full Court on their legal and factual merits?

Question 8: Does the fact that Bromwich J had appeared as counsel against the appellant in his conviction appeal amount to an apprehension of bias, as "a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person"?

Question 9: If the Full Court lacked jurisdiction by reason of apprehended bias in relation to a single judge, was the lack of jurisdiction cured by the decision of the Full Court being unanimous?

Question 10: Is the jurisdiction of a Full Court where there is an apprehension of bias in relation to a single judge dependent on the number of members constituting the Full Court?

Question 11: Is the jurisdiction of a Full Court where there is an apprehension of bias in relation to a single judge dependent on "whether the outcome of the exercise of jurisdiction by the court as so constituted would or could have been different if the judge was not biased or if the biased judge did not participate"?

Question 12: Does the test of apprehended bias "require a conclusion about the judge's actual state of mind or an assertion of actual bias"?

Question 13: Is a finding of apprehended bias "not to be reached lightly"?

Question 14: Should the HCA "now recognise "incompatibility" between the judicial role and another role previously performed by a judge as a category of "interest" in respect of which an apprehension of bias will be presumed"?

Question 15: Might the apprehension of bias "be more readily made by the fair-minded lay observer where the decision relates to a person's right to be at liberty in Australia"?

Question 16: Can the hypothetical observer "be taken to appreciate that a party – especially an individual, and especially a non-citizen facing deportation on the basis of his conviction – might understandably experience a justifiable sense of disquiet in seeing his former prosecutor turn up as one of his judges"?

Question 17: If the answer to Question 2 is 'yes', can it nevertheless be said that the "preferable, if not the proper, course is for the judge in question to be given the opportunity initially to decide for themselves whether they will recuse"?

Question 18: If the answer to Question 17 is 'yes', can it be said that, "only if the judge does not recuse themselves, and an objection is maintained or there are matters that the other judges consider may give rise to a potential for apprehended bias, does the Full Court as a whole need to determine the issue"?

Question 19: Does a judge have "a professional obligation to sit on any case allocated to them unless there are grounds for recusal"?

Question 20: If the answer to Question 17 is 'yes', would that answer gainsay the possibility of any appeal or application for judicial review?

Question 21: If the answer to Question 17 is 'yes', can it be said, "after a judge on a multi-member court has assessed issues of bias, if the judge has decided not to recuse themself or if the judge continues to sit then an application based on apprehended bias can be renewed to the court"?

Question 22: If the duty to sit and the duty to ensure continuing public confidence in the administration of justice are irreconcilable, which duty must prevail?

Question 23: Does the decision of whether a judge in a multi-member court is biased rest exclusively with that judge?

Question 24: If the judge the subject of an application for recusal were to commit their assessment of their state of mind to some form of "record", would that record be 'evidence'?

Question 25: Is that 'record' required to be taken at face value?

Question 26: Is the judge who discloses that 'record' exposed to cross‑examination?

The HCA answered those questions as follows: