Book Review: Disqualification for Bias

Have you ever been involved in a matter where you were instructed to seek to have the judicial officer disqualify himself or herself on the ground of bias? Have you made an application to have a jury discharged? If so, you will understand that this is one of the most difficult situations to face, but face it we must, if those circumstances arise.

I have been involved in such a matter on several occasions. I wish that, at the time, I had been able to find such a detailed text book as the subject of this review.

The concept of bias means far more than the suggestion of actual bias, but rather, disqualification because of an interest in the subject, disqualification by conduct or association and disqualification by extraneous information or lack of independence (Webb v R (1994) 181 CLR 41).

The law on this subject is not easy to comprehend and more difficult to apply to a particular set of facts. I know of one matter in which a judge disqualified himself as he was a customer of a particular bank, which was a party to litigation. It was the judge himself who raised the issue.

In another matter, in a civil trial, the plaintiff sought to call as a witness a person whom the trial judge had imprisoned for perjury in an unrelated matter.But the Judge refused to disqualify himself. I suspect that the solicitors for the plaintiff were aware that this had occurred but chose to take their chances with a judge who they thought was pro plaintiff.

This is truly a text book. The author has set out to analyse and consider the law as it applies in Australia but, in doing so, he has “draw(n) on cases and principles from other Commonwealth jurisdictions, primarily the United Kingdom and New Zealand, and to a lesser extent Canada, Ireland and South Africa.”

He has not considered the law in the United States.

Issues of bias can arise in the most unusual of circumstances. For instance, in a case in which I was involved, which bears a remarkable similarity to one discussed in this book, a magistrate (in another jurisdiction), on the luncheon adjournment, entered the body of the Court and commiserated with the wife over her alleged treatment by her husband. The wife, at the time, was still under cross examination. The husband had not yet given evidence. Clearly, the magistrate could no longer continue to hear that matter. Despite this, it took a great deal of persuading before he agreed to disqualify himself.

In a case considered by the author, a juror gave a bunch of flowers to the mother of the deceased, just before the judge was to commence his summing up. [1] One would have to think that the juror was unlikely to take much notice of what the Judge said. She had shown where her sympathies lay.

In discussing the concept of police officers or crown law officers, sitting as jurors, the author makes what to me is an interesting observation, that only in this State and in Victoria is there a lifelong ban on former police officers serving on a jury. The author cautions that this is under review here.

For my part, I would be concerned at a former police officer being asked to listen objectively to evidence from former colleagues, versus a “drug —addicted defendant” (author page 245). I have first-handknowledge of former police officers well remembering some of the suspects they had come across many years before. Pity help such people if they looked at the jury box to find their former interrogator judging their guilt or innocence.

We all know the concept of the fair minded observer. We all know the safeguards embodied in our Rules of Practice which dictate when we should decline a brief. However, it is unlikely that any of us has considered, in the depth that the subject has been given by Mr. Tarrant, the issues encompassed in the term, “disqualification for bias” as it applies to us and the situations that may arise in our professional dealings in the Courts.

If an issue arises on which you need to gain a deep understanding of this topic, I thoroughly recommend this very easy to follow and interesting text book.

Footnotes

1. Webb v R (1994) 181 CLR 41