Lawyers to cite ruling in attempt to stop Tim Carmody deciding appeal by Daniel’s killer, because of link to child protection advocate Hetty Johnston

This article is more than 5 years old

This article is more than 5 years old

A legal precedent involving the late Chilean dictator Augusto Pinochet is the unlikely twist in an imbroglio enmeshing the Queensland chief justice, Tim Carmody, and child killer Brett Peter Cowan.

A House of Lords ruling allowing the extradition of Pinochet to face torture charges was overturned in 1998 because of a judge’s links to Amnesty International.

Lawyers for Cowan will cite the case in a bid to have Carmody disqualified from an appeal by their client against his life sentence for the 2003 murder of Daniel Morcombe, Guardian Australia understands.

They will allege apprehended bias on the part of Carmody because of his relationship with Hetty Johnston, a child protection advocate and his one-time adviser who has publicly called for Cowan never to be released.



The legal furore, which could lead to Cowan’s appeal going before a new trio of judges, comes after concerns raised by the appeal court president, Margaret McMurdo, about Carmody’s private meeting with Johnston in his chambers on 15 April.

Carmody, who wrote to Cowan’s barrister, Peter Davis, about the meeting at McMurdo’s urging, said her concerns stemmed from “public statements reportedly made by Johnston critical of the appellant in this matter”.

McMurdo and Carmody together heard Cowan’s appeal alongside justice Hugh Fraser five months ago but are yet to hand down their written decisions.

Johnston, chief executive of the child protection group Bravehearts, said on Tuesday she felt “embarrassed” to have been embroiled in the legal dispute, which had caused the Morcombe family distress.

But she defended her relationship with Carmody in an interview with radio host Ray Hadley, saying “I have known the man for 20 years.”

“I think he’s amazing, he’s an absolute legend,” Johnston said.

In the Pinochet case, the House of Lords found that a judge’s alignment with a cause or social justice interest related to a case before them could erode their perceived impartiality.

The Lords overturned an earlier ruling on an attempt to extradite Pinochet to Spain to face torture charges from his time governing Chile because one judge, Lord Hoffmann, was linked to Amnesty International.



Hoffmann’s role as a director and chairman of an Amnesty charity and his wife’s job with the human rights group – coupled with the fact Amnesty had joined the case to argue in favour of Pinochet’s extradition – led to the finding of apprehended bias.

In a court hearing before Carmody last Friday, Davis argued that Bravehearts was a “lobby group” that had “directly targeted” Cowan “and yet it seems that the chief justice is associating with the lobby group seemingly to assist it”.

Johnston was “an ardent public supporter” of the chief justice at a time when his appointment caused unrivalled controversy, dismissing his critics as “petulant” on the Bravehearts website.

Their relationship included Johnston acting as Carmody’s adviser when he ran an inquiry into Queensland’s child protection system, Davis said.

He said it was “obviously Johnston’s view that your appointment will change the focus of the criminal justice system from accuseds to victims”.



“After you have sat on a court considering an appeal by the very man against Ms Johnston has made direct adverse comments, you then meet with her in a private meeting, apparently to discuss the promotion of Bravehearts, an organisation which is a lobby group and who, frankly, has lobbied directly against Mr Cowan,” Davis said.



Carmody rejected Davis’s argument, saying the Cowan matter had not been discussed and there was “no serious possibility that a fair-minded person might reasonably apprehend bias”.

He earlier refused Davis’s written request “to inform me of the nature and length of your relationship with Ms Johnston” and to detail their meetings since Cowan’s arrest in 2011 and what had been discussed.



“A question arises as to whether disclosure of the relationship ought to have been made before the hearing of the appeal,” Davis wrote.

Carmody had replied that it was “inappropriate to respond, by private correspondence or in open court, to your questions regarding the content of ostensibly confidential meetings between community leaders and the head of jurisdiction without the matter being formally and properly raised by the parties”.

On Twitter, Daniel’s mother, Denise Morcombe, decried the legal wrangling as a “sick joke” that had her son “turning in his grave”.



“If the Appeal decision had been handed down in a timely matter, this situation would not have happened. 5 months what a disgrace!” she said.

Davis in court pointed to Johnston using the title “Hi from Hetty”, the salutation “Hi Tim” and a “smiley face” in an email before their meeting as evidence of the pair’s “familiarity”.



Carmody replied: “That’s my name ... It doesn’t matter if I’m the chief justice or the chief street sweeper, it’s still my name.”

In the email, Johnston requests a meeting to discuss a Bravehearts project called “HubCare ... a new machine learning / analytics response to child protection that can save the gov [sic] 80% in staff admin costs alone let alone the benefits to kids”.



“You need to hear about this because it fits perfectly with the recommendations at the Carmody Inquiry (I am sure you know the one <smiley face>),” she wrote.

“Perhaps Judge Orazio [Ray] Rinaudo [Queensland’s chief magistrate] might also be interested,” she adds in a later email.

Cowan, 45, convicted last year of the 2003 abduction and murder of Morcombe, 13, was sentenced to life imprisonment with 20 years no parole.

