Application for Qld CJ to recuse himself for apprehended bias in Daniel Morecombe murder appeal … Close association with Braveheart’s campaigner … “Administrative error” by CJ results in court of appeal being misled … Carmody intercedes on behalf of a former client
THE contentious figure of Qld CJ Timbo Carmody faces questions about his independence as a judge.
An application is likely to be filed this week by Peter Davis QC that Carmody disqualify himself from further involvement in the Brett Cowan appeals.
Last year Cowan was convicted of the murder of a young boy, Daniel Morcombe. In March 2014 Justice Roslyn Atkinson sentenced him to a minimum term of imprisonment of 20 years, saying:
“Whenever anyone is considering the prospect of granting you parole many years in the future they should mark my words that you are a conniving liar … and prepared to advance your own interests.”
The Boy Attorney General, Jarrod Bleijie, appealed the sentence on the ground that it was manifestly inadequate and Cowan appealed his conviction. Those appeals were heard in November 2014 by Tim (Bluto) Carmody CJ, President of the Court of Appeal Margaret McMurdo and appeal judge Hugh Fraser.
Everyone is still waiting for the judgment.
On the day that Cowan was sentenced, the founder of Bravehearts and an active campaigner for child protection, Hetty Johnston, was reported as saying that in her view the prisoner should have got “50 years, 100 years … never let him out”.
Hetty has been as active a supporter of Tim Carmody as she’s been a vocal campaigner against Cowan. She attended the government’s press conference in July last year, which was described as the “launch” of the new chief justice.
She has also been in touch with Carmody and met him in his chambers to discuss a Braveheart’s project called HubCare.
She also address emails to the CJ in friendly terms, such as “Hi from Hetty” and “Hi Tim”.
Johnston was also an adviser to Carmody when he conducted an inquiry into child abuse.
So, Carmody sat on the court hearing an appeal by the man against whom Johnston had made critical comments and then met with her privately to discuss the promotion of activities by Bravehearts, an outfit that lobbies for tougher sentences for child sex offenders.
Margaret McMurdo wrote to Carmody, concerned that he met Johnston and another representative from Bravehearts on April 15. The prez of QldAppeals said he should disclose the meeting to the parties.
He did so, also enclosing a copy of the emails Johnston had sent to him.
Peter Davis has asked Carmody for fuller disclosure of his contacts with Johnston and what was discussed at their meetings.
He also wants to know why Carmody chose to hear the appeal when his association with Johnston predated Cowan’s arrest.
He also wrote to McMurdo asking how she came to list the CJ as one of the appeal judges.
Carmody wrote to Davis on April 22, saying that …
“nothing raised by the parties or President McMurdo would give rise to a serious possibility that a fair minded person might reasonably apprehend that I am biased or prejudiced on the basis of the meeting held on Wednesday 15 April 2015.”
In the absence of either of the parties raising the matter in court he said it is not appropriate to provide “the content of ostensibly confidential meetings between community leaders and the head of jurisdiction …”
It is likely that the recusal application will be made to the court of appeal this week. It is unclear whether the CJ alone or all the judges who heard the appeals should make the initial determination about the recusal application.
It is believed that McMurdo and Fraser have completed their judgments and that everyone has been waiting for Timbo to do the same.
If Timbo does step aside, there is the prospect that the appeal will have to be reheard.
THE Qld chief justice sent a misleading memo to the court of appeal while it was considering an application by his former client for leave to appeal a sentencing decision.
QldCA has published its reasons for rejecting Anthony Moxon’s application for leave to appeal his sentence and in the process revealed the details of Carmody’s intervention.
Moxon and others pleaded guilty to various counts of forgery. The appellant got two years in pokey with release after eight months on the condition of good behaviour for two years.
Quite soon into her reasons president of the CA, Margaret McMurdo, said that after the judgment was reserved she received a memo from Timbo, headed “Letter forwarded by President of the Qld Law Society”. The memo said:
“Please find a letter forwarded to me by the President of the Queensland Law Society for your information and appropriate action.”
The letter was from Angela Moxon, the wife of the appellant, to Michael Fitzgerald, the prez of the law society.
She said that, “solely by reason of [her husband’s] pending appeal he has been assessed as a ‘high risk’ prisoner, necessitating his continued incarceration in the maximum security Brisbane Correctional Centre [and] … can therefore only be moved to what would otherwise be an appropriate facility once the court resolves the application”.
Mrs Moxon asked Fitzgerald to convey her husband’s concerns to the CJ so the court of appeal could make its orders as soon as possible.
After the leave application was refused Fitzgerald emailed McMurdo saying that he had not corresponded with the chief justice about this matter.
He told Mrs Moxon that as there had been no excessive delay in the delivery of the judgment he did not propose to be in contact with the CJ under the protocol governing late judgments.
Fitz suggested she write directly to the CJ about her concerns. Later the LawSoc prez contacted Timbo’s chambers and was …
“advised that the chief justice’s memorandum incorrectly stating that Mrs Moxon’s letter was forwarded to him by the President of the Queensland Law Society was an administrative error.”
Somehow or other, the CJ misled the Court of Appeal into thinking that Mrs Moxon’s letter had the imprimatur of the prez of the law society.
Carmody acted for Moxon at his committal.
How long can this fiasco go on?