Showdown at the Supreme Court corral

Queensland’s judicial system looks to be in quite a bit of strife at present. The former Newman LNP government’s ill-advised appointment of an utterly unsuitable Supreme Court Chief Justice in Tim Carmody is continuing to cause serious problems.

Mercifully, at least Carmody CJ has been belatedly bludgeoned by his judicial colleagues into recusing himself from further hearing an appeal against conviction by Brett Cowan, who was convicted last year of the murder of Daniel Morcombe.  Carmody CJ  grudgingly admitted when pressed that he had held a private meeting with Hetty Johnson, outspoken founder of child sexual abuse lobby group Bravehearts, while considering the Morcombe appeal.  Simultaneously the DPP is appealing Cowan’s sentence as manifestly inadequate.  Daniel Morcombe’s parents apparently don’t agree, but Carmody’s colleagues may have actually done them a favour.  Had he not recused himself, there is a significant probability that an appeal to the High Court on grounds of reasonable apprehension of bias would have succeeded. The Morcombe family would have been faced with a least a couple more years of litigation pressure and lack of “closure”.

Holding private meetings with parties and their associates during court proceedings is one of the classic bases for disqualification on bias grounds. Bias decisions on this ground almost always cite McInerney J in R v. Magistrates’ Court at Lilydale; Ex parte Ciccone 1 VicRp 10; (1973) VR 122:

“The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

Hetty Johnson wasn’t a party or witness per se, but a court would be very likely to hold that a meeting with her by Carmody CJ, while sitting on the Morcombe appeal, was a clear breach of the bias rule.  Johnson’s organisation Bravehearts has a formal partnership arrangement with the Daniel Morcombe Foundation to develop counselling services for child sexual abuse victims on the Sunshine Coast.  Moreover, Johnson was quoted by the media in the following terms on the day of Cowan’s conviction:

BRAVEHEARTS founder Hetty Johnston says Daniel Morcombe would still be alive today if it were not for a system that put the civil liberties of convicted sex offenders first and foremost.

The child safety advocate has called for legislative changes to be introduced to keep sex offenders behind bars indefinitely. …

Ms Johnston said, outside the Brisbane Supreme Court on Thursday, the guilty verdict should be a catalyst for change to ensure Daniel Morcombe had an everlasting legacy.

“If there is any doubt that these type of people could reoffend then they should not be released,” she said.

“If that happened in this case Daniel would still be alive today.

“These offenders are released from our courts on a daily basis and it must stop.

“Little lives like Daniel’s would not have to be lost on the mantle of the civil rights of convicted sex offenders.

“Daniel did not have to die. He should be here today if the system got it right.”

In the circumstances it’s quite astonishing that Carmody CJ thought it appropriate to have a private meeting with Hetty Johnson, and even more astonishing that he scoffed dismissively at suggestions by his fellow judges that this might be just a bit problematic. Carmody CJ’s grasp of bias principles appears to be tenuous at best.  The general rule is summarised in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in the High Court’s decision in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337:

2 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), … the governing principle is (subject to qualifications not presently relevant) … if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. …

3 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

However, although Carmody CJ’s decision to recuse himself from the Morcombe appeal may have resolved that particular issue, it does nothing to address the fundamental and ongoing challenges raised by having an arguably incompetent Chief Justice. Labor Premier Annastacia Palaszczuk’s comment over the weekend that the judiciary should “sort their issues out now’ doesn’t address the question either.  The other judges have very little practical capacity to rein in a rogue chief justice, other than by making their concerns known in a restrained way to politicians and public.

However, the capacity of Premier and Parliament to resolve the Carmody dilemma decisively and satisfactorily is also seriously constrained. Under section 61 of the Constitution of Queensland 2001, Parliament can only properly remove a Supreme Court judge from office for proven misbehaviour or incapacity, and only after an adverse formal finding by a tribunal established by legislation.  Today’s Fairfax media reports Premier Palaszczuk as refusing to rule out a “Vasta-style review into Chief Justice Tim Carmody”.  However, the circumstances surrounding former Queensland Supreme Court Justice Angelo Vasta (flowing from the Fitzgerald Royal Commission) were significantly murkier than what is currently known about Carmody CJ’s shenanigans. I seriously doubt that Carmody CJ could properly be found guilty of either misbehaviour or incapacity by Parliament to the requisite degree.

I wonder, however, whether the Palaszczuk government might be able to avert most of the practical consequences of Carmody CJ’s arguable incompetence by less direct means.  Perhaps Parliament could legislate to create a Chief Executive Officer of Courts Administration with full power to allocate all judges to particular cases, after consultation with the Chief Justice.  I don’t think that would conflict with fundamental notions of separation of powers (which don’t apply in a binding constitutional sense to the states anyway).4 Nevertheless, for abundant caution it might be better to legislatively abolish the office of Chief Justice as currently constituted and replace it with a differently configured distribution of judicial functions and roles whereby a Judge Administrator allocates cases while the Chief Justice occupies a more ceremonial role.

The High Court’s decision in Attorney-General (NSW) v Quin (1990) 170 CLR 1 suggests that this would be effective, albeit that Carmody would probably have to remain as the “Chief Justice” at least in name, without administrative power but with “equivalent or higher status” because of section 63 of the Constitution of Queensland 2001. The Judge Administrator could assign him cases suitable to his abilities: appeals in traffic matters, for instance. No doubt Parliament could amend or repeal section 63 if it saw fit, given that the Queensland Constitution is technically only an ordinary piece of legislation, but whether that would be politically wise is another question.  It might be better to assign Carmody CJ the role of undead Banquo’s Ghost, haunting the the Supreme Court corridors and occasionally wandering down to Parliament to remind politicians of the folly of appointing an inept Chief Justice.

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  4. 1. Although there might be a question as to whether vesting the power to allocate cases in a non-judge could breach the so-called Kable doctrine.[]

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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I am and will always be Not Trampis
I am and will always be Not Trampis
9 years ago

yeah the appointment was staggering and quite blatant and the reaction quite strong.

Newman obviously thought he was the man for making the ‘correct’ decisions.

9 years ago

You are living in Joh’s era, which is well and truly over.
The victim in this case is Daniel Morcombe, not Cowan.
You are arguing the reverse – as a lawyer, you should be ashamed.

The law is about justice – but they probably don’t teach that at Charles Darwin.

9 years ago
Reply to  lucy

Either you profoundly misunderstand the issue, or you’re brilliantly demonstrating how Carmody has tainted his impartiality by meeting with people who say such things.