No apprehension here … Queensland chief justice too biased to know he’s biased … No alternative but to withdraw from Cowan appeal … Emails and memoranda show extent of judicial fracture … CJ unable to produce important judgment … Bluto in strife, again
QUEENSLAND’S pain goes on with a fresh outburst of toxic relations among senior Supreme Court judges and the failure, after five months of dithering, of the chief justice to prepare a timely judgement in the the Cowan case, the state’s high profile and much anticipated criminal appeal.
In March last year Cowan, who had convictions for previous child sex offences, was found guilty of the murder of 13-year old Daniel Morecombe, who was abducted on the Sunshine Coast in December 2003.
He was sentenced by Justice Roslyn Atkinson to life in prison, with the possibility of parole in 20 years time.
The attorney general appealed the sentence and Cowan appealed his conviction. Timbo Carmody CJ, Margaret McMurdo P and Hugh Fraser JA heard the appeal last November.
McMurdo and Fraser completed their draft reasons and sent them to the CJ in February.
Over five months later, well outside the time allowed under the court’s judgment delivery protocol, the CJ had still not distributed his judgment and, in the meantime, a monumental row had blown-up after it emerged that Carmody had, on April 15, met child protection campaigner Hetty Johnston from the Bravehearts lobby organisation.
Johnston had been calling for harsher penalties for child sex offenders and had publicly said that Cowan should never to be released from prison.
In 2012-2013 Carmody chaired a special commission of inquiry into child protection and developed an association with Johnston during that time.
There had also been pally emails to Carmody from Johnston dated March 16, to arrange the meeting at which she could discuss new tools that might assist in child protection.
All this happened at a time while he was supposedly still contemplating his judgment in the Cowan appeal.
McMurdo wrote to the CJ on April 17, with Fraser’s support, urging the CJ to disclose this information and attaching material her associate found on the internet detailing Johnston’s “strong statements about the outcome of the Cowan trial and her views as to sentence”.
See correspondence below …
Last month Justinian reported that Peter Davis QC, for Cowan, was intending to bring an application that the CJ recuse himself from further involvement in the appeal on grounds of apprehended bias.
“Any suggestion that this would be sufficient [his meeting with Johnston] to give rise to a reasonable apprehension of bias or prejudice, even with the knowledge of Ms Johnston’s previous public statements, is unsupported by precedent and utterly preposterous.
It is even more alarming that your associate decided to investigate, on your instructions or otherwise, any comments made by Ms Johnston regarding Cowan. As an application for disqualification is the exclusive responsibility of the parties to be determined by the relevant judge, this appears a singularly exceptional interference with the ordinary judicial process.”
“I reject all your ill-conceived allegations of impropriety.”
“Dear Tracy,
I regret to inform you that following an extraordinary memorandum yesterday from the chief justice in relation with R v Cowan I cannot sit again with him on any court.
Please ensure in future that I am not listed to sit with the chief justice.
He has been copied into this email.
Best wishes,
Margaret”
Carmody was insisting on hearing the pending recusal application alone.
McMurdo sent him a memo on April 24 saying that if the matter of his involvement with Ms Johnston is to be mentioned it should be before the whole court.
“… matters concerning the disclosure of allegedly disqualifying circumstances are exclusively the domain of the relevant judge subject to the allegations. Accordingly, your attendance is unnecessary for the purpose of conducting the mention …
In any event, as you were significantly involved in motivating this disclosure, I propose to sit alone for the purpose of preserving both the fact and appearance of judicial independence.”
As the emails and memoranda show, the CJ had effectively made up his mind, in advance and without hearing any contrary argument, both as to the validity of the recusal application (it was preposterous) and that he should determine the applications alone (in the name of judicial independence).
Apart from that, he attempted to sheet home the blame for being late with his draft judgment by claiming he hadn’t been given a copy of the drafts by Fraser and McMurdo.
On April 29, Carmody sent a memo to McMurdo and Fraser saying even though their reasons had been received in his chambers on February 27, “for some reason I did not obtain a copy”. Fraser said that was “disturbing” and wanted to know how that occurred.
The disappearing draft judgments have echoes of the Moxon case, where the CJ mislead the Court of Appeal in requesting it give speedy consideration to a leave to appeal application by a prisoner, who had been a former client of Carmody’s when he was at the bar.
He falsely claimed to McMurdo that the request for the expeditious leave hearing had come form the president of the Law Society. He later attributed the mistake to an “administrative error“.
On Thursday (May 7) Timbo saw the writing on the wall and in a hand-wringing announcement told the court that he would withdraw from further involvement in the Cowan appeal.
Delving into his cupboard of literary analogies, he said:
“I will not allow this court to become a Dickensian Bleak House, where parties will be ‘tripping one another upon precedents, groping knee deep in technicalities [and making mountains of costly nonsense]’.
Otherwise, to cite Dickens, it will become a ‘scarecrow of a suit … so complicated that no man [or woman] alive knows what it means’.”
On Friday, May 8, former justice Alan Wilson told ABC radio that the previous CJ, Daphnis de Jersey, refused to meet with Hetty Johnston and her lobby group.
He said that the statements by the CJ that the recusal application ought to be thrown out and he would sit without the other appeal judges showed that he had already made up his mind. “It doesn’t take a lawyer to see the mistake there.”
Wilson added that resolution of the court’s problems is entirely within the hands of the current chief justice and, failing that, the parliament under s.61 of the Qld Constitution.
In his valedictory speech in March, Wilson’s message was that Carmody not only won’t do the judicial work, he can’t do it.
Former supreme court judge, George Fryberg was reported on Friday as saying Carmody did not possess the “exceptional intellectual” requirements to do the top job.
“The interests of the people of Queensland are best served by Tim resigning.”
The Cowan drama shows the chief justice can’t produce a concurring or dissenting judgment in twice the time allowed under the protocol.
Instead, Carmody has kept up his round of social appearances, attending the NSW bench and bar banquet in Sydney on Friday night (May 8).
The Qld CJ is on record saying:
“If I felt that the office was being damaged, the brand was being damaged because of who was at the helm, and that person was me, I would leave.”
Meanwhile, the other Qld Supremos stagger on, working in the shadow of a morale sapping head of jurisdiction.
Previous Carmody dramas
Bar president resigns
Divisions deepen
Sentencing and other errors
Timbo and the paste-pot
Errors needs more rest before he’s fit to play
Muir JA and the Nudgee Old Boys
Snakes and Scum
Alan Wilson’s allegations
Time spent on judicial work
Bar straddles barb-wire fence
Connections with Hetty Johnston and apprehended bias