Clifton v Duong

The appeal concerned allegations of apprehended bias against the primary judge. The dispute arose from an email communication sent by the primary judge directly to the prosecutors, without initially copying the appellant's counsel, regarding difficulties in viewing CCTV evidence. Although the appellant's counsel was subsequently included in the email chain, the appellant argued that this communication gave rise to an apprehension of bias. The appeal was heard by Murrell CJ, Burns and Wigney JJ.

The central legal issue before the appellate court was whether the primary judge's ex parte communication with the prosecutors, concerning the viewing of CCTV evidence, created a reasonable apprehension of bias. A further issue was whether the appellant's failure to object to this communication at the time constituted a waiver of the right to raise the issue on appeal. The court also considered the nature of the appeal, specifically whether it was open to the primary judge to find that the magistrate's guilty verdict was open to be returned, and whether the appeal constituted a fresh attack on the original decision.

The court reasoned that for apprehended bias to be established, it must be shown that a fair-minded lay observer, having considered the facts, would have apprehended that the judge might not have brought an impartial mind to the issues the judge was to decide. The court found that the email communication, while not ideal, did not give rise to an apprehension of bias. The subject matter of the emails concerned a practical difficulty in viewing evidence, and the judge ultimately ensured all parties were aware of the communication. Furthermore, the court held that the appellant had waived any objection to the communication by not raising it at the earliest opportunity. The court concluded that it was open to the primary judge to find that the magistrate's verdict was open to be returned.

The appeal was dismissed.