Saturday, 7 March 2015

Apprehended bias and pornography

During my appeal to the Full Bench of the Federal Court of Australia this week an interesting question arose regarding apprehended bias which also relates to pornography.

Porn folder (Source XKCD)

In my submissions there were many legs to the apprehended bias allegations and Honourable Justice Beach questioned the nature of many strands leading to apprehended bias. It is a good question. I think the best answer to such a thought comes from Justice Potter Stewart of of the United States Supreme Court in 1964 when regarding pornography he uttered, “...I know it when I see it...

The full quote regarding “hard-core pornography”, which is not to be protected free speech, was famously quoted by Justice Potter Stewart in Jacobellis v. Ohio:
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
A similar discretionary notion might be said to apply to apprehended bias from a court's view point. There are similar difficulties in trying to define a hard test but in an instance like the one I was facing there should really be no doubt that apprehended bias existed in the totality of the combination of circumstances.

Just as it may be appropriate if you find a $1 coin on the pavement to not feel guilt in blessing your luck and putting it in your pocket; it would be inappropriate to not turn to the authorities when finding a thousand $1 coins on the street. At some point such coin collection crosses a threshold of community standard of relevance. A similar notion exists in the old many versioned morality story of a lady being willing to compromise her morality for a large sum and being offended with a small sum. It usually ends with,
"W: What kind of woman do you think I am?
M: I thought we'd already established that. Now we're just haggling over price."
In this way, apprehended bias is indeed like pornography, although the balance of probabilities should be biased differently. In both cases caution should be the consideration.  For pornography caution means the obscenity should have clarity beyond camera focus. For apprehended bias the concern is impartiality. The balance of consideration must be that impartiality is not to be risked for public confidence in the judicial process.  This implies a different focus on the grey line. Pornography should be without doubt obvious to meet the consideration of guilt. Apprehended bias should be seen to be a likely risk in the reasonable perception of the mythical fair minded layperson. There is an awkward tension here as the perception of impartiality is not be risked but a conclusion of apprehended bias should not be too easily reached.

Thus, “I know it when I see it” seems to be a good test for both apprehended bias and pornography.