Apprehended Bias and Private Lawyer-Judge Communications: The Full Court’s Decision in Charisteas

Abstract

When do private communications between a party’s lawyer and the judge hearing the case cause a mistrial on the ground of apprehended bias? That was the question facing the Full Court in Charisteas.1 Private communications had taken place between the wife’s counsel over a period of many months, from the time the case was in the judge’s docket until the final judgment. Neither the judge nor the wife’s counsel disclosed the communications until after the final judgment was delivered, and then only in response to an inquiry by the husband’s solicitors. The husband appealed on the ground of apprehended bias. The Full Court divided, Strickland and Ryan JJ dismissing the appeal over a strong dissent by Alstergren CJ. The majority judgment ruling, that there was no apprehended bias, raises significant issues for cases where a judge has engaged in private communications with a party’s lawyer. This case note includes respectful questioning of some elements of the majority’s judgment. It is therefore appropriate to acknowledge that mammoth cases like this one—and there are very few—impose enormous stress on every part of the legal system, including hard- pressed appeal judges, and it would be an extraordinary feat to remain free of error while working under that level of strain.