R v Bowley & Bowley

In the case of R v Bowley & Bowley, the applicants sought the disqualification of a judge due to a perceived conflict of interest stemming from their daughter’s employment as a solicitor in the Adelaide office of the Commonwealth Director of Public Prosecutions. The applicants argued that the judge’s impartiality was compromised because his daughter, although not directly involved in the prosecution, had performed photocopying of the prosecution file in the past. The argument was based on the apprehension that the judge might not bring an impartial mind to the resolution of the case. The court had to determine whether the judge should be disqualified based on the principles of bias and the appearance of bias.

The central legal issue was whether the judge’s daughter's employment with the Commonwealth DPP, and her minimal involvement with the prosecution file, gave rise to a reasonable apprehension of bias in the mind of a fair-minded observer. This involved applying the test established in Johnson v Johnson, which focuses on the objective perception of impartiality by a reasonable observer and the need for public confidence in the administration of justice. The court needed to consider whether the hypothetical reasonable observer might suspect that the judge might not be impartial, despite the judge’s professional obligation to remain unbiased.

The court held that the judge's daughter's employment and her limited contact with the prosecution file did not create a reasonable apprehension of bias. The court emphasised that the test is objective and requires considering the context of ordinary judicial practice. The judge's daughter’s minimal involvement and lack of influence over the prosecution file meant there was no basis for the apprehension of bias. The court concluded that a fair-minded observer would not reasonably suspect the judge of partiality under the circumstances presented.

The court rejected the applications for the judge’s disqualification, reaffirming the established principles of impartiality and the objective nature of the test for bias. No disqualification order was made against the judge.