12 May 2014


'Extrajudicial Speech and the Prejudgment Rule: A reply to Bartie and Gava' by Chris Finn in (2014) 34 Adelaide Law Review 267 [PDF] responds to 'Some Problems with Extrajudicial Writing' by Susan Bartie and John Gava in (2012) 34 Sydney Law Review 637.

Finn states that
The precise limits of the rule against prejudgment remain to be determined. It has recently been argued that the rule should be extended to prohibit extrajudicial statements on matters of law, as well as those of fact or evidence at issue in a particular matter. It is argued that this suggestion should be resisted, as neither the existing case law nor underlying principle support such an extension. Moreover, there are strong policy reasons for not doing so. 
He comments that
Susan Bartie and John Gava1 challenge conventional understandings of the apprehended bias rule, and of the prejudgment doctrine in particular. They do so by arguing that this doctrine should be applied more broadly and that, for a variety of policy reasons, its scope should extend to a wide range of extrajudicial speech. Significantly, their argument forces a clearer conceptualisation of the bias rule and the legal values it protects.
Though far from new, extrajudicial commentary is a growing phenomenon. Judges of the superior courts are in increasing demand as conference speakers, often presenting keynote addresses, and a growing number of them have taken to the academic journals as well. Court websites often list lengthy catalogues of papers delivered by serving judges on a wide range of legal subjects to professional and academic audiences. Those papers range in nature from expressions of broad commentary about the legal system and the role of the courts to tightly argued expositions of a clear view as to the correct resolution of some question of specific legal doctrine.
Moreover, judges are increasingly willing to comment on, and express opinions about, ‘hot’ legal issues which are likely to be further argued in the nation’s courts, perhaps even before their judicial selves. Given this context, Bartie and Gava warn against the possibility of a perception of prejudgment. They argue that ‘ordinary human experience’ indicates that a position so clearly and publicly expressed will be difficult for a judicial officer to put to one side when the very same legal issue subsequently falls to be determined in their courtroom.
Bartie and Gava suggest that much, if not all, extrajudicial speech is therefore ‘suspect’ in terms of displaying prejudgment. They counsel a somewhat formalist remedy, a stony faced Sphinx like judicial silence in all fora other than duly delivered judgments. Judges, they seem to be saying, are best seen and not heard outside their courtrooms.
This article takes a different view. A close examination of the case law demonstrates that the prejudgment rule has never extended to extrajudicial statements made about matters of law, as distinct from suggestions that particular questions of fact at issue in litigation in prospect have been predetermined. Moreover, while Bartie and Gava’s suggestion that strong expressions of extrajudicial views on matters of law or matters of fact are equally concerning has some initial appeal, this article argues that there are strong policy reasons for resisting their suggested extension of the bias rule.