Australia’s legal system
In court, there will always be a winner and a loser. This is because in Australia, and other common law countries, we have an adversarial system.
What is the adversarial system?
The adversarial system, also commonly referred to as the adversary, is the legal system that is used in Australia, and its common law counterparts, such as England. In this system, there are two or more opposing advocates that are representing their client’s case or position before an impartial person (in Australia’s case, a judge) or a group of your peers (the jury). It is then the judge or jury’s job to determine which party is telling the truth, and then to pass judgment accordingly.
What is judicial bias?
Individuals that have lost a court case, or received what they believe to be a less than favourable outcome, will sometimes look for people the reason that they lost or people to point their finger at. One such example is claiming that the judge did not deal with the matter impartially. This is judicial bias.
In to day’s society, judges and magistrates are more and more willing to recuse themselves from hearing a case when faced with circumstances that may give rise to allegations of bias. It is also important that a judge discloses any matters that could indicate bias ahead of the hearing so the judge can be removed from the case if required. This information early on is important so justice can be served in a fair manner to all parties.
In this article, we look into and examine what judicial bias is and what it looks like in the legal system.
Actual judicial bias
Actual bias rarely arises but is when the judge is a party to the litigation or has a financial or other interest in its outcome. In this instance, the evidence and arguments presented in court will not alter the outcome of the case – the judge has already made up his/her mind on the decision.
Apprehended (or apparent) bias
Apprehended or apparent bias may be alleged where the judge’s conduct or behaviour, interests or allegiances give rise to a suspicion that he is not impartial. This type of bias is less explicit than actual bias.
The following behaviours do not substantiate apprehended bias:
- Mere lack of nicety or bad temper
- A short and emotional exchange with a party
- Previous rulings made by the judge
Past legal-related relationships
The legal industry isn’t as big as one might think. Often, people have worked with other lawyers on cases before, or a judge has previously been a partner in a firm, or has acted when in practice for one of the parties or their solicitors. Many judges, barristers, solicitors and magistrates know of and have worked with one another previously. In most circumstances, these connections are part and parcel and do not give rise to apparent bias, regardless of what a litigant might understandably think or accuse.
However, in saying that, there have been some past applications that have been successful in showing a connection between the judge and a party or witness.
Allegations of judicial bias are time-consuming and costly – they also should not be it is brought about lightly. It is illegal for a judge to sit on a case where he or she is biased – they know that, and their peers know that. From a reputational perspective, it is not something they want to get caught out on.
Individuals should apply the usual test for apprehended bias to determine whether such a judge should be disqualified from a case. It is also best to talk to the judge directly about your concerns before making allegations against them.
If you require legal advice or representation in any legal matter, please reach out to our team of skilled solicitors.