Cowan appeal … Carmody CJ certifies he is incapable of delivering appeal judgment … CJ on sick leave for a month … Stark difference in written submissions from the parties … Carmody wanted secret hearing
FRIDAY (May 15) saw further extraordinary goings on in the Qld Supremes in relation to the Cowan appeal.
The situation is that the Carmody CJ has recused himself from participating further in the appeal, without hearing submissions as to his apprehended bias.
Cowan is appealing his conviction for the murder of 13-year-old Daniel Morecombe and the crown is appealing the sentence. The appeal was heard in November by the CJ; Margaret McMurdo, president of the court of appeal; and appeal judge Hugh Fraser.
McMurdo and Fraser distributed their draft judgments in February, yet there was nothing from Carmody. While the reasons were still reserved Carmody had a meeting with Hetty Johnston from the Bravehearts child protection organisation.
She is a supporter of Carmody and had publicly expressed the view that Cowan should stay locked up forever. Later she claimed that Cowan’s lawyers were acting “unprofessionally”.
When the Carmody-Johnston meeting became known to the other judges further details were requested from the CJ, who this month released a batch of emails and memoranda.
The material showed there was a strong case of apprehended bias against Carmody, but before that could be heard and before a determination on whether the CJ could decide the application on his own, he withdrew, on May 7, from delivering judgment in the Cowan appeal, insisting nonetheless there was no legitimate reason for his recusal.
The background is here along with the prejudicial correspondence.
Solicitor General Peter (Dunners) Dunning, wanted the case mentioned before the CJ on Friday (May 15) in order to get Carmody to sign a certificate of incapacity, which is required under the Supreme Court of Queensland Act.
The parties were told half an hour before the hearing that the CJ did not want this heard in open court, but would hear it in chambers.
Peter Davis, counsel for Brett Peter Cowan, wouldn’t have a bar of the private hearing. Dunners, who was the Newman government’s appointment as SG, thought it was perfectly fine, because it was only an administrative matter.
Once he knew about Davis’ insistence on a proper hearing in court, the CJ called the whole show off and said he would consider written submissions, and that if he needs anything oral he’ll let everyone know.
Just before he went on sick leave he issued a certificate of incapacity under the Supreme Court Act. The judgment in the Cowan appeal can now be delivered by McMurdo and Fraser.
The difference in the submissions from Cowan and the crown are stark. Lawyers for the prisoner say it is clear from the correspondence between the appeal judges that Carmody had prejudged both the issue of who should hear the apprehended bias application and the substantive application itself.
He had described the suggestion of apprehended bias as “utterly preposterous”, declared that he would hear the application sitting alone, said the application was “absurd and extraordinary … unmeritorious [and a] “bizarre sideshow”.
All of this at a time when no written submissions had been filed.
Cowan’s view is that by withdrawing from the appeal without deciding the question and not hearing submissions, Carmody was at pains to ensure that McMurdo and Fraser would not sit in judgment on his apprehended bias.
The statement by the CJ is, “by any standards extraordinary”.
The submission for Cowan added:
“The decision to withdraw from the appeal in the way that his honour did is (with respect) remarkable. The consistent theme of his honour’s correspondence, and indeed in the mention remarks, is that there was no valid claim for disqualification on the basis of apprehended bias. On that basis, there is no proper foundation for the decision to withdraw from the appeal.”
The Supreme Court of Queensland Act governs the situation where an appeal judge dies, or resigns or is “certified as incapable” before proceedings have been determined. See s.31.
The prisoner’s submission argued that the CJ was then “incapable of sitting” and determining the appeal. Either the CJ or the president should issue a certificate of incapacity and McMurdo and Fraser get on with delivering judgment.
Dunners submission also says the CJ should issue a certificate of incapacity under s.31(2).
However, he glosses over the CJ’s prejudice and says that it’s quite all right for Carmody to recuse himself, because he’s done so for the good of the team and is thereby relevantly incapable.
In fact, Carmody gets a pat on the back for being a decent chap:
“The chief justice’s reasons of May 7 make clear that his honour recused himself from these appeals not on the basis of apprehended bias, but to allow an expedient and expeditious finalisation of the appeals, as well as being in the general interests of the justice of the case.”
Dunners goes on to say that incapacity encompasses recusal and “also includes features or circumstances which are unique to a particular case”, yet does not affect a judge’s capacity to sit on other matters:
“As the true basis for his honour’s recusal related to the expeditious finalisation of the appeals in this case, the basis is specific to these appeals, and does not relate to his honour’s general capacity to sit.”
The crown insists it’s absolutely nothing to do with bias, apprehended or otherwise. The CJ issued the certificate on Dunning’s terms.
Meanwhile, Banana Benders are standing by for the release of an expletive laden tape of a conversation in which a fuming Carmody seeks to remove Justice David Boddice from hearing an electoral case in the Court of Disputed Returns.
Apart from falling short in the Cowan appeals, the CJ is overdue with three other judgments, with the law society writing to point out that he’s past the protocol’s due date for judgment delivery.
It’s further evidence, if any were needed, that the chief justice of Queensland doesn’t like doing judicial work.
All of which leaves Timbo’s unfortunate cheer squad at the Bowen Hills Bugle looking decidedly lame.