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Crisis at Queensland bench as top judges brawl

[Publisher’s Note: This article from The Australian (8 May 2015) confirms the failure of Tim Carmody in the role of Chief Justice. That he would meet Hetty Johnson in his chambers was stupid, judges are paid to be impartial, not to entertain opportunists in their office. Arrogant politicial oncers, Campbell-Newman and Jarrod Bleijie, promoted Carmody over the heads of half the legal profession in Queensland. And what of his main critique, Judge McMurdo? Is she any better? What of the poor workers inside the justice department who work under their management and those outside who crave justice? They don’t need Tim Carmody to tell them that the courts are like Dickens’ Bleak House.]

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The dysfunction in Queensland’s judiciary has become a ­crisis, with Court of Appeal president Margaret McMurdo refusing to share the bench with Chief Justice Tim Carmody, who ­accused her of a “gross violation of judicial ethics’’ in the Daniel Morcombe murder case.

After Chief Justice Carmody yesterday disqualified himself from delivering judgment on the ­appeal of the schoolboy’s killer — drawing outrage from the Morcombe family — emails emerged exposing the poisonous relationship between the state’s two top judges.

Chief Justice Carmody, who was controversially elevated from chief magistrate to lead the ­judiciary last year by then premier Campbell Newman, took the unprecedented decision to withdraw from the case over a meeting he had with child protection advocate Hetty Johnston.

Lawyers for murderer Brett Peter Cowan had accused the Chief Justice of “apprehended bias’’ because of the meeting, which was declared on his public calendar, after Justice McMurdo insisted he disclose the contact to all parties in the appeal.

The Court of Appeal’s full bench of Chief Justice Carmody, Justice McMurdo and Judge Hugh Fraser heard Cowan’s ­appeal five months ago but have not delivered their decisions. Only Chief Justice Carmody has not circulated his draft judgment.

The private emails were tendered to the Court of Appeal after Chief Justice Carmody quit the case, insisting he had not done anything wrong and slamming the stoush as a “bizarre sideshow”.

“The only persons to benefit (if the application continues) will be the legal practitioners involved,” he told the court. “The parents of the victim of this dreadful crime will have justice delayed … and the appellant will be placed in a position of continued uncertainty.

“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.”

Bruce and Denise Morcombe, whose 13-year-old son was abducted and murdered by Cowan in 2003, privately expressed their dismay at the delay in the delivery of the appeal judgment.

Mrs Morcombe later tweeted: “Shame in the legal process, this has become personnel (sic), this is NOT JUSTICE FOR DANIEL, shame on you all. I am disgusted”.

Ms Johnston, who founded the Bravehearts child protection group and once called for Cowan to never be released from jail, met Chief Justice Carmody in his chambers on April 15.
Both have stated the Cowan matter was not canvassed, directly or indirectly.

The explosive emails were tendered at the insistence of Chief Justice Carmody and confirm his worsening relationship with many judicial colleagues, who last year boycotted his swearing-in ceremony.

In an April 22 email, Chief Justice Carmody told Justice McMurdo he found it disturbing she had expressed her “deep concern” to him regarding his independence or impartiality and had requested he disclose the meeting. He said it was even more “alarming’’ that Justice McMurdo instructed her associate to investigate any comments Ms Johnston had made about 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,’’ he wrote. “Judicial independence requires a judge to be independent of not only the legislature or executive, but other judicial officers’’.

Chief Justice Carmody added that Justice McMurdo’s memo went “beyond a mere notification of potential ethical concerns surrounding my meeting’’.

He also took exception to Justice McMurdo responding to a letter from Cowan’s barrister, Peter Davis QC, disclosing how the judges were selected to sit on the appeal. “This constitutes a gross violation of judicial ethics,” Chief Justice Carmody wrote.

In a sharp one-line rebuke the following day, Justice McMurdo replied: “I reject all your ill-conceived allegations of impropriety.”

On the same day, she emailed an officer in the court registry, asking never to sit again with Chief Justice Carmody. “I regret to inform you that following an extraordinary memorandum yesterday from the Chief Justice in relation to R v Cowan, I cannot sit with him again on any court,” Justice McMurdo wrote. “Please ensure in future that I am not listed to sit with the Chief Justice.”

Last month, Chief Justice Carmody publicly aired internal concerns about the meeting with Ms Johnston by calling a snap hearing that he presided over without his fellow judges.

The emails reveal he ignored their objections, and wanted to eventually decide the “apprehended bias” application by himself.

These internal exchanges follow the explosive valedictory speech this year of retiring Supreme Court judge Alan Wilson, who revealed that Chief Justice Carmody was the cause of such low judicial morale that some of his colleagues were considering quitting. He also accused the Chief Justice of shirking his responsibilities as a judge, and calling his fellow judges “snakes” and “scum”.

Cowan, 45, was last year sentenced to life behind bars with a 20-year non-parole period for killing Daniel.

Later this month, the Court of Appeal will sit to hear submissions on whether a new appeal will have to be heard or if it will be determined by the two remaining judges. The case has been relisted for May 26.

Earlier, Mr and Mrs Morcombe questioned the defence’s application against Chief Justice Carmody and delays in the appeals.

“Is it about fair justice for Mr Cowan? Or is it about the profile of certain legal eagles? Or is it in fact an angry spat between a couple of judges and professionals in that industry that should know better?” Mr Morcombe asked.

Ms Johnston, who was sitting with Mr and Mrs Morcombe, described the decision as a result of a “vendetta” against the Chief Justice. “This is about these other judges, these lawyers getting square with the Chief Justice,” she said.

Michael Mckenna and Sarah Elks
THE AUSTRALIAN

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