Judges often use to determine whether adverse impact has occurred.

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1. It is critically important that justice is done and is seen to be done (R v Sussex Justices ex parte McCarthy (1924) 1 KB 256; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39).
2. A judge must not sit on a case where he or she is biased ("actual bias") or might reasonably be thought to be biased ("apprehended bias") (R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48).
3. While a judge in a criminal trial has no responsibility for fact-finding, the principles of actual bias and apprehended bias still apply. A judge in a criminal trial may be required to make discretionary decisions, may subtly influence the jury and must determine the sentence if the accused is found guilty (R v Goussis [2007] VSC 171; R v Branko Balic (No 2) (1994) 75 A Crim R 52; Rozenes v Kelly [1996] 1 VR 320).
4. The tests for actual and apprehended bias discussed in the following sections are well settled, though judges often vary in their application of the tests to particular factual situations. As a counsel of prudence, judges should readily disclose any matters that may give rise to an appearance of bias. This allows the parties to make an informed decision whether to apply for the judge to remove him or herself.
5. Cautionary disclosure is not necessary if the judge believes that he or she should not sit on a particular case. A judge may indicate that, for personal reasons, it is not appropriate for him or her to hear the case.
6. A party that intends to raise issues of actual or apprehended bias should do so as soon as possible in proceedings. It is not appropriate to raise submissions on other matters of law with an application for recusal held ‘in reserve’ pending the decision on those other matters (Gild v R [2017] VSCA 367 at [33]).

   Actual Bias

7. A judge must not sit on a case where he or she is biased against one of the parties (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).
8. An allegation of actual bias should not be made lightly. A party asserting actual bias carries a heavy onus. The allegation must be distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16).
9. A judge will only be disqualified for actual bias when a party establishes that the judge is so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).

   Apprehended Bias

10. The test for apprehended bias is 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 (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63).

11. This test depends on whether there is a real rather than a remote possibility of bias. A party does not need to establish that it is likely or probable that the judge would not bring an impartial mind to resolution of the case (Young v Judge Nixon [2008] VSCA 5; Gascor v Ellicott [1997] 1 VR 332; Hodgson v County Court of Victoria [2004] VSC 501; Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; AJH Layers v Careri (2011) 34 VR 236, [20]).
12. The accused and the Crown both have the right to apply for a judge to disqualify him/herself on the grounds of apprehended bias (Rozenes v Kelly [1996] 1 VR 320).
13. A party applying for a judge to discharge himself or herself must identify the cause of an appearance of bias and then show the logical connection between that cause and the appearance of partiality. The bare assertion that a judge has an interest in the outcome of the case is not sufficient (Young v Judge Nixon [2008] VSCA 5; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; AJH Layers v Careri (2011) 34 VR 236, [22]).
14. Where there is a dispute regarding whether a judicial officer made a comment which may give rise to an apprehension of bias, it will not always be necessary to resolve the question of fact of whether the disputed statement was made. An apprehension can arise from the fact that plausible allegations have been made about the judicial officer (CUR24 v DPP (2012) 83 NSWLR 385; [2012] NSWCCA 65).
15. However, where there is no plausible evidence that the disputed statement was made, the court may dismiss the complaint of apprehended bias as insubstantial (Fattal & Ors v R [2013] VSCA 276).
16. An applicant may not question the judge in order to determine if there is a cause for an appearance of bias. Judges should disclose relevant matters and it is not appropriate for applicants to pry into the judge’s background by further questions (Eastman v Somes (No 2) (1992) 107 FLR 86; Limbo v Little (1989) 65 NTR 19).
17. The apprehension of bias must be reasonable. The test considers the perspective of a hypothetical fair-minded lay observer and is not concerned with fanciful or unreasonable apprehensions of bias (Gascor v Ellicott [1997] 1 VR 332).
18. The assessment of apprehended bias must be undertaken in the context of a judicial system where judges are bound by rules of precedent and where decisions may have wide-ranging effects in the community. The hypothetical fair-minded lay observer understands that judges must make decisions in accordance with law and are usually capable of ignoring the consequential effects of decisions (Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; Ronan v ANZ Banking Group (2000) 2 VR 531; [2000] VSCA 77).
19. While the hypothetical lay observer does not have a detailed knowledge of the law, he or she understands the judicial process and the issues to be determined. He or she knows that judges are under strong professional pressures to act with integrity and impartiality (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31; Johnson v Johnson (2000) 201 CLR 448).[1]
20. The hypothetical lay observer does not know the personality or character of the judge. He or she only knows that the person is a judge and, by his or her training, is expected to discard irrelevant, prejudicial or immaterial matters (Honda Australia Motorcycle v Johnstone [2005] VSC 387; Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530).
21. The hypothetical lay observer has a broad knowledge of the material facts of the case and the circumstances that led to the commencement of proceedings. He or she does not rely on inaccurate or incomplete information, or rely solely on the facts known to one of the parties (Honda Australia Motorcycle v Johnstone [2005] VSC 387; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31; Victoria v Psaila [1999] VSCA 193).
22. The material facts are only the objective facts. The subjective views of a party are not relevant (R v Nicholas (2000) 1 VR 356; [2000] VSCA 49; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Frugtniet v DPP, Unreported, VSC, 15 April 1996).
23. Mere lack of nicety or bad temper does not establish apprehended bias (R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546).
24. A short and emotional exchange will not necessarily demonstrate that a judge is incapable of behaving impartially. Prolonged or intense animosity towards a party may create an appearance of bias, even if the animosity is not always apparent (Galea v Galea (1990) 19 NSWLR 263; Victoria v Psaila [1999] VSCA 193).

    Obligation to Hear Cases

25. The obligation on a judge to disqualify him or herself for apprehended bias is matched by an obligation to hear all cases where he or she is not disqualified. A judge must not disqualify him or herself too readily or allow a party to dictate whether the judge may sit on the case (Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; [1991] HCA 31; Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39; AJH Layers v Careri (2011) 34 VR 236, [19]).
26. A party must positively satisfy the judge that the test for apprehended bias is established. A judge should not disqualify him or herself without good cause and must not reach that conclusion lightly (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Honda Australia Motorcycle v Johnstone [2005] VSC 387; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39).
27. In cases of doubt, however, the judge should err in favour of disqualification. This is necessary to give effect to the principle that justice must be seen to be done (Clenae v ANZ Banking Group [1999] 2 VR 573; [1999] VSCA 35).

    Preliminary Views

28. A judge may express a tentative view about an issue without creating an apprehension of bias. The High Court explained that:

    Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17; R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31).

29. While it was once thought that a judge should remain silent throughout proceedings, it is now recognised that this is not ideal judicial conduct:

    Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. In the course of an eloquent passage in his judgment in R v Watson; Ex parte Armstrong Jacobs J expressed the view that judicial "silence" is a "counsel of perfection". We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44).

30. Counsel often benefit from the judge expressing his or her tentative views. This allows the parties to respond to those issues and seek to persuade the judge in light of those responses (Anderson v National Australia Bank [2007] VSCA 172; Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; AJH Layers v Careri (2011) 34 VR 236, [23]). See also Judicial Intervention (below)
31. The judge should express him or herself in tentative terms. Interlocutory findings on the same issues as the substantive hearing must not be in absolute terms and must be qualified as being based on the lower standard of proof and the limited evidence available (Kwan v Kang [2003] NSWCA 336; Montedeen v Bamco Villa [1999] VSCA 59; Rozenes v Kelly [1996] 1 VR 320).
32. Statements by the judge on his or her preliminary views should be courteous and not sarcastic (Anderson v National Australia Bank [2007] VSCA 172).
33. A judge should not express firm views on a matter calling for a ruling prior to hearing argument from counsel. Statements of opinion in strong terms prior to hearing counsel may indicate that the judge is unwilling to consider any arguments for a contrary opinion. The statements may also effectively deny a party the right to be heard (Antoun v R [2006] HCA 2).
34.  Previous judicial decisions are not evidence of pre-judgment, even where those decisions are directly relevant to the legal issues in the case. The principle of apprehended bias is constrained by the doctrine of precedent and a judge is not relevantly biased where he or she acts in accordance with previous judicial authority (Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; Rogers v Wentworth Unreported, NSW CA, 9 October 1998).
35. Views about the punishment warranted for particular classes of crime do not necessarily give rise to an apprehension of bias, even if those views depart from current practices. It is the expectation of the law that judicial officers put such personal views aside when exercising their function of imposing sentence (CUR24 v DPP (2012) 83 NSWLR 385; [2012] NSWCA 65).

    Previous Hearings

36. Ordinarily, reasonable apprehension of bias is not established merely by showing that the judge has previously made a ruling in relation to one of the parties on different facts and on a different issue (Young v Judge Nixon [2008] VSCA 5; Rozenes v Kelly [1996] 1 VR 320).
37. If an accused is re-tried for an offence in an indictment or a related offence, the judge who sat on the earlier trial, or earlier pre-trial hearing, may sit on the subsequent trial, even if he or she previously decided an issue of law or procedure that is likely to be contentious in the later trial (CPA 2009 s251).
38. Mason J of the High Court explained that:

    It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way (ReJRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39).

39. A judge is generally competent to sit on cases involving the same accused in multiple trials. In these circumstances the judge must not make assumptions about the course of the evidence or the credibility of lay witnesses based on previous trials (Rozenes v Kelly [1996] 1 VR 320; Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44).
40. All proceedings concerned with alleged co-offenders should, as far as practical, be heard by the same judge. This promotes uniformity in evidentiary and other rulings, and consistency in sentencing. The fact that the judge may make findings on sentencing for earlier alleged co-offenders does not, without more, create an apprehension of bias where those earlier alleged co-offenders will give evidence in the trials of later alleged co-offenders. Judges are expected to decide cases on the evidence, and are known to revise views expressed in one hearing in light of the evidence given in another hearing (North v The Queen [2020] VSCA 1, [55]; Alfarsi v The Queen [2020] VSCA 119, [13]).
41. However, a judge should not hear a case concerned with the same questions of fact as one of his or her previous decisions. His or her previous findings of fact may create a perception that the judge would strive to be consistent with his or her earlier decision (Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17).
42. Similarly, the judge should not decide a case where the credibility of a witness is a critical issue where the judge has previously made adverse findings against the witness on the same issue. A judge must not decide a case on the basis of credibility findings made on a previous occasion (Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Jambajimba v Dredge (1985) 33 NTR 19).
43. Decisions by a trial judge as part of pre-trial proceedings or on a voir dire that indicates he or she is likely to form an adverse view of part of a party’s case will not usually establish bias. An accused cannot insist that a judge be removed from a case due solely to an adverse decision on the credit of the accused in the course of the trial (R v Masters (1992) 26 NSWLR 450; Fitzgerald v DPP (1991) 24 NSWLR 45; ReJRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39; R v Nicholas (2000) 1 VR 356; [2000] VSCA 49; c.f. Australian National Industries v Spedley Securities (1992) 26 NSWLR 411).
44. Previous administrative rulings against an applicant cannot establish judicial bias without some additional feature. These preliminary hearings do not involve determinations of issues in the case or the credit of a party (Young v Judge Nixon [2008] VSCA 5).
45. However, a judge’s conduct in pre-trial hearings, including bail hearings, might give rise to an apprehension of bias where the judge’s comments or actions indicate that he or she has lost impartiality or objectivity (GP v R (2010) 27 VR 632; [2010] VSCA 142).
46. A judge may carry perceptions of expert witnesses with him or herself between trials. The principle of apprehended bias is applied in the real world of criminal trials where experts commonly appear in multiple cases and it is inevitable that judges will form opinions on the expertise or reliability of those experts (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44).
47. There is no clear test for when adverse views of a party’s expert witnesses will give rise to an apprehension of bias. A judge should be careful not to dismiss the evidence of an expert based solely on these preconceived perceptions or seek to vindicate these perceptions in his or her judgment. A judge must not infer that a party’s case is tainted or weaker due to the use of particular experts. Such conduct is likely to give rise to an apprehension of bias (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44).
48. It is common practice in Victoria that one judge will hear all matters arising out of a single criminal enterprise, in order to achieve consistency of rulings and sentencing. This practice means that the judge in one trial may need to determine the position of co-offenders who are still awaiting trial. These findings of fact generally do not give rise to an apprehension of bias that prevents the judge hearing proceedings against the co-offenders, as the findings do not imply any pre-determination of the issues in the later trials. Judges are able to put aside events in previous trials for the purpose of subsequent trials (R v Goussis [2007] VSC 171; R v Sonnet (2010) 30 VR 519; [2010] VSCA 315).
49. A judge who has previously issued a warrant enabling the police to gather information against the accused in the case must carefully consider whether he or she should disqualify him or herself. An apprehension of bias may arise where the judge receives information related to the case that is not disclosed to other parties (R v Eastman (1994) 76 A Crim R 9; R v George (1987) 9 NSWLR 527; R v Frugtniet, Unreported, NSW CCA 25 June 1998; Kirkland v Tippett [2000] TASSC 94).

    Judicial Intervention

50. Judges may intervene in proceedings by questioning a witness in order to clarify a matter in doubt or clear up matters that are equivocal or uncertain (Buchwald v R (2011) 38 VR 199; [2011] VSCA 445; R v Esposito (1998) 45 NSWLR 442; PRW v R [2011] VSCA 381).
51. The judge must not use this power to deprive a party of the opportunity to cross examine a witness effectively. The judge should not suggest answers to the witness or provide the witness with the chance to correct omissions in the witness’ evidence-in-chief (Hoare Bros v Magistrates’ Court of Victoria [2003] VSC 257; Buchwald v R (2011) 38 VR 199; [2011] VSCA 445). Nor should the judge assume responsibility for cross-examining the witness (see Nwagbo v The Queen [2021] VSCA 93, [95]-[96]).
52. It is not appropriate for a judge to ask questions to fill gaps in the prosecution case or raise issues which the prosecution or accused have left alone (R v Brdarovski [2006] VSCA 231; Nwagbo v The Queen [2021] VSCA 93, [33]). This does not stop a judge from questioning a witness so that the witness clarifies ambiguous answers (PRW v R [2011] VSCA 381; R v Esposito (1998) 45 NSWLR 442).
53. The power to ask questions to clarify ambiguous answers should not be used, in relation to an expert witness, to provide the expert with an opportunity to elaborate on the reasons for an opinion which the prosecution failed to adduce. Such a process may supplement the prosecution’s case and carry extra weight as coming from the judge. Instead, any such elaboration is a matter for the prosecution, such as in re-examination (Nwagbo v The Queen [2021] VSCA 93, [70]-[73]).
54. The judge must ensure that he or she does not intervene excessively, as this may give rise to a miscarriage of justice by:
    • Preventing the defence from fully presenting its case to the jury;
    • Preventing witnesses giving a full account of their evidence;
    • Giving rise to an apprehension of bias;
    • Creating a belief in the mind of the jury that the judge holds a certain view of the correct outcome
    • Creating a belief in the mind of the jury that the judge holds certain views about the competence of counsel (R v Mawson [1967] VR 205; Jones v National Coal Board [1957] 2 QB 55; R v Tang (2007) 16 VR 454; [2007] VSCA 134; Buchwald v R (2011) 38 VR 199; [2011] VSCA 445; Percival v R (2015) 49 VR 238; [2015] VSCA 200).
55. While the assessment of whether intervention is ‘excessive’ cannot be conducted numerically, a comparison between the number of questions asked by the judge and the number of questions asked by the parties can indicate the extent of participation by the judge (see R v Mawson [1967] VR 205, 207-208; Nwagbo v The Queen [2021] VSCA 93, [98]-[99]).
56. The judge should be careful not to break the flow of cross-examination of a witness. This may destroy the sequence of counsel’s arguments or reduce the chance of the witness making relevant admissions (R v Clewer (1953) 37 Cr App R 37; Jones v National Coal Board [1957] 2 QB 55; Nwagbo v The Queen [2021] VSCA 93, [32]).
57. To avoid the risk of interrupting the flow of cross-examination, judges should save any questions they have until after both parties have examined a witness, assuming the judge's question remains unanswered. The judge should also give both parties an opportunity to further examine the witness after the judge’s questions (Nwagbo v The Queen [2021] VSCA 93, [102]. See also Buchwald v R (2011) 38 VR 199; [2011] VSCA 445).
58. Despite these principles of restraint, it is necessary to consider the practical reality of trials. As the Court explained in McPadden v The Queen:

    In many circumstances, it is simply neither practical nor proper to deal with unduly repetitive cross-examination, or cross-examination which is improper for other reasons (for example, because it invites hearsay), by sending the jury to their room, and engaging with counsel in the jury’s absence. Most judicial intervention to prevent ill-advised cross-examination needs to be swift and decisive (subject, of course, to the need to avoid unnecessary denigration of counsel or his or her client’s case). Indeed, experience suggests that juries react adversely to being repeatedly and often sent to their jury room, because of challenges made to cross-examination. In some circumstances, a jury’s perception that they are being made to troop into and out of the jury room by reason of counsel’s unnecessary and undisciplined questioning is calculated to cause more prejudice to counsel (and his or her client’s cause) than swift and decisive judicial intervention accomplished in their presence (McPadden v The Queen [2018] VSCA 57, [38]. See also Nwagbo v The Queen [2021] VSCA 93, [31]).

59. Excessive intervention may also weaken the effectiveness of cross-examination by giving the witness added time to determine his or her answers and may distract counsel from pursuing his or her line of questions (Jones v National Coal Board [1957] 2 QB 55).
60. Impermissible judicial intervention can also occur when:
    • The judge requires a party to call particular evidence;
    • The judge seeks to influence a party’s decision to call a witness;
    • The judge expands the prosecution’s case by directing on a line of argument in his or her charge that the prosecution did not raise;
    • The judge persuades the prosecution to expand the parameters of its case against the accused;
    • The judge harasses and belittles counsel during his or her conduct of the case; or
    • The judge reprimands counsel in the presence of the jury for misconduct in a way that reflects on the defence case (see Waters v R [2011] VSCA 415 and cases cited therein; Percival v R (2015) 49 VR 238; [2015] VSCA 200; Piccolotto v R [2015] VSCA 182).
61. While the judge must not seek to impermissibly influence the content of the prosecution’s case, the judge may point out that a prosecutor has left a formal gap in their evidence (Waters v R [2011] VSCA 415).
62. In assessing the effect of judicial intervention, the appellate court will recognise that judges have ‘the full range of human strengths and weaknesses’, and ‘it is unrealistic to expect unfailing wisdom seasoned with serene composure’. The question of whether the cumulative impact of a judge’s intervention constitutes a substantial miscarriage of justice is one of fact and degree (Nwagbo v The Queen [2021] VSCA 93, [36]).
63. A judge may take steps to ensure that a witness is not frightened or overawed by the experience of giving evidence without creating an appearance of bias. Witnesses do not have a legal practitioner to protect their interests. A judge may take steps to make a witness feel at ease, such as inviting young witnesses to nominate the times suitable for giving evidence and engaging in preliminary questioning so that a witness can "find his or her voice" and become used to the process of answering questions (LAL v R [2011] VSCA 111).
64. The judge has an overriding responsibility to maintain the smooth function of the trial. A judge may order that certain questions are impermissible, even in the absence of objection from the other party. However, intervention in the absence of objection requires caution, because it risks creating the perception that the judge has an interest in the outcome of proceedings and may interrupt the flow of evidence to the detriment of a party (Nwagbo v The Queen [2021] VSCA 93, [102]).
65. Exceptional cases where intervention in the absence of an objection may be appropriate include where:
    • Counsel seeks to elicit evidence in breach of a previous evidentiary ruling of the judge;
    • The question is phrased in a manner that is ambiguous or may elicit an answer that may confuse the jury;
    • The question is plainly offensive (R v Lars & Ors, Unreported, NSWCCA, 30 June 1994; R v Tang (2007) 16 VR 454; [2007] VSCA 134).
66. In addition, the judge must intervene to disallow an improper question (Evidence Act 2008 s41). Further information on the operation of s41 is available in the Uniform Evidence Manual.
67. However, judges must exercise restraint when interjecting in response to improper, impermissible or ambiguous questions, maintain the dignity of the court and treat counsel with respect, using neutral language (see Percival v R (2015) 49 VR 238; [2015] VSCA 200, [76]-[77]; Piccolotto v R [2015] VSCA 182).
68. Disputes between the judge and counsel on the appropriateness of any judicial intervention should generally take place in the absence of the jury. Otherwise, there is a risk that the jury may form the view that defence counsel is being criticised and form a prejudice against the defence case as a result. The judge should avoid this by instructing the jury that such disputes are a normal part of the trial and do not reflect adversely on counsel or his or her submissions (R v Tang (2007) 16 VR 454; [2007] VSCA 134; R v Weiss (2004) 8 VR 388; [2004] VSCA 73; Percival v R (2015) 49 VR 238; [2015] VSCA 200).

    Case management

69. Judicial officers are not expected to devote unlimited time to each case. Provided a party is given a fair opportunity to be heard, which includes an opportunity to articulate their arguments, judicial officers are entitled to manage the hearing and require a party to move on to their other points (AJH Layers v Careri (2011) 34 VR 236, [25]).
70. Where a party is making a seemingly unmeritorious argument, it is important that the party have the opportunity to make their submissions, and that the judicial officer does not give the impression that they are not listening, or are only listening under sufferance (AJH Layers v Careri (2011) 34 VR 236, [25]).

    Pecuniary and Other Interests

71. A judge is not automatically disqualified in Australia where he or she has a pecuniary interest in a company appearing in litigation. A judge is disqualified only if he or she meets the test of apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; c.f. Dimes v Proprietors of the Grand Junction Canal (1852) 10 ER 301).
72. In most cases, a judge who owns shares in a company will only be disqualified if there is a realistic possibility that the outcome of the litigation may affect the value of those shares (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Ronan v ANZ Banking Group (2000) 2 VR 531; [2000] VSCA 77; Clenae v ANZ Banking Group [1999] 2 VR 573; [1999] VSCA 35).
73. The usual practice of judges is to disclose the size and nature of any shareholding at the start of the hearing and invite submissions from the parties (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63).
74. The principle that a judge is disqualified from sitting on cases in which he or she has an interest is not limited to financial interests. A judge may be disqualified due to a political interest where that association gives rise to a reasonable apprehension of bias in the context of the case (R v Bow Street Magistrate; Ex parte Pinochet Ugarte (No 2) [2000] AC 119; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63).

    Association with a Party

75. An existing or previous association between the judge and a party to the proceedings may give rise to an apprehension of bias (Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; [1991] HCA 31).
76. If the judge believes that a relationship might give rise to an apprehension of bias, he or she should disclose that relationship in open court and invite the parties to make submissions on whether the judge is disqualified due to that relationship (S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358).
77. It is not necessary for the judge to disclose a personal relationship if he or she is satisfied, without any need for submissions from the parties, that it is inappropriate for him or her to sit on the case. It is only necessary to disclose the relationship if the judge is not prepared to excuse him or herself from the case on his or her own motion.
78. A judge should normally disqualify him or herself from sitting on cases where a near relative or a close friend is a party. In cases involving more remote relationships, the judge should consider the nature of the relationship, its intensity and duration (Chessells v Burg Unreported, VSC, 19 June 1997; S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358).
79. The relationship of judge and former client does not automatically give rise to an apprehension of bias. The judge must consider the nature of the retainer, the information acquired from the client and the time between the relationship and the current case to determine whether he or she should continue to sit on the case (R v Nicholas (2000) 1 VR 356; [2000] VSCA 49; Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; [1991] HCA 31).
80. The principle that a judge should not sit in judgment over his or her own case means that a judge should not hear any matter that is concerned with the quality, accuracy or effect of advice he or she gave while practicing as a lawyer (Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; [1991] HCA 31).

    Association with Counsel

81. It is commonly understood and accepted that judges are often appointed from practicing lawyers and will therefore be familiar with the barristers and solicitors appearing before them. This is not sufficient to create apprehension of bias by itself. A judge must consider whether he or she has a relationship with the lawyers appearing in the case that gives rise to an appearance of bias (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; [1991] HCA 31; Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530).

    Ex-parte Communications

82. A judge must not receive private communications from a party or the representatives of a party without the knowledge and consent of the other party (R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122; Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39).
83. A judge must also maintain the appearance of impartiality and must not be in a situation where he or she could be suspected of having sought or received private communications from a party or a witness (R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122; Haldane and Transexecutive Airlines Pty Ltd v Chegwidden (1986) 41 SASR 546).
84. For these reasons, a judge should not accept transport to or from a view in the presence of only one party. Counsel for both parties should accompany the judge, or he or she should travel solely with court staff (R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122).

    Necessity

85. The doctrine of necessity is a qualification on the rule of exclusion based on apprehended bias. A judge may continue to sit on a matter in circumstances of necessity, despite an appearance of bias, such as:
    • Where all other available members of the court are affected by an appearance of bias (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31; c.f. Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17); or
    • Where the basis for an apprehension of bias arises after a key witness dies (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Clenae v ANZ Banking Group [1999] 2 VR 573; [1999] VSCA 35).

    Waiver

86. A party may waive the chance to object to conduct that gives rise to an apprehension of bias if he or she fails to make a timely objection (Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44; R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122).

    Personal experience of crime

87. The mere fact that a judge is, or is related to, a victim of crime does not disqualify the judge from presiding at trials for similar crimes (LAL v R [2011] VSCA 111. See also R v Goodall (2007) 15 VR 673; [2007] VSCA 63).
88. Where the judge is related to a victim of crime, the following factors may be relevant in whether a judge should recuse himself or herself from hearing such a case:
    • Whether the judge discloses his or her relationship with a victim of crime;
    • The nature of the relationship between the judge and the victim of crime;
    • Any similarities between the complainant and the judge’s relative, including similarities in the alleged offences (e.g. age or exploitation of vulnerability);
    • Any personal trauma the judge suffered from the crime against a relative (LAL v R [2011] VSCA 111).
89. The ultimate question when determining whether a judge must refuse to hear a case due to his or her personal experience of crime is the general test for apprehended bias. That is, whether a fair minded person might reasonably apprehend that the judge might not bring an impartial mind to the case (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63).

Footnotes:

[1] - For example, the fair-minded lay observer is aware that discussions between the judge and prosecutor on the contents of the judge’s charge to the jury are a routine part of the trial process where counsel assists the judge to avoid appealable error (R v Tapatu [2005] VSCA 256).