Bias is in everyone’s skin – except judges, who are supposed to be blemish-free. If it does bubble to the surface there are quaint procedures whereby judges are supposed to hear submissions and contemplate their own “apprehended bias” and, if need be, disqualify themselves from sitting.

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Last week, from the vexed supreme court of Queensland, emerged a display of behind-the-scenes angst as senior judges grappled with dark shadows that fell over an important and much anticipated criminal appeal.

This was the case of R v Cowan, concerning the conviction and sentence of Brett Peter Cowan who was found guilty of the murder of 13-year old Daniel Morecombe, following his abduction on the Sunshine Coast in December 2003.

Cowan, who had two prior convictions for child sex offences, was sentenced in March last year to life, with the possibility of parole after 20 years. The attorney general appealed the sentence and the prisoner appealed the conviction.

That was heard in November last year by the chief justice, Tim Carmody, the president of the court of appeal, Margaret McMurdo, and justice of appeal Hugh Fraser. McMurdo and Fraser completed their draft judgments in February and sent then to the chief justice.

While the drafts of the other two appeal judges were languishing somewhere in the CJ’s chambers and, presumably while he was contemplating whether he might concur with or dissent from the others, he had a meeting on April 15 with Hetty Johnston from the child protection organisation Bravehearts.

Johnston is a vociferous campaigner. On the day Cowan was sentenced she was reported as saying he should have got “50 years, 100 years, no parole, just never let him out”. She blamed “the system” for the fact that Daniel had been killed.

She had been associated with Carmody as a result of his work heading a commission into child protection in 2013.

When wind of the CJ’s meeting with Johnston swirled around the supreme court, McMurdo asked Carmody to disclose it to the DPP and defence lawyers for Cowan, as well as any associated correspondence.

What emerged were chummy emails from Johnston addressed to the chief justice - “Hi Tim” and “Hi from Hetty” which, in response to McMurdo’s request, were disclosed to the parties.

On 22 April Carmody, clearly miffed that his integrity had been questioned, sent a memo to McMurdo. He found it “disturbing” that his meeting with Johnston had caused “deep concern” regarding his “independence of impartiality”, he wrote. The subject of the meeting, apparently, was a discussion about new child protection programs.

“Any suggestion that this would be sufficient 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,” Carmody wrote.

He also criticised McMurdo for permitting her associate to investigate comments made by Johnston about Cowan, saying that he thought that this was an “exceptional interference with the ordinary judicial process”.

McMurdo replied, saying she rejected all of Carmody’s “ill-considered allegations of impropriety”. Further, she asked a court official to ensure that in future she is no longer listed to sit with the chief justice on any appeal.

The chief justice was also insisting that he should sit alone to determine the anticipated application for his recusal on the ground of apprehended bias arising from his association with a person who was campaigning for Cowan’s permanent incarceration. McMurdo and Fraser urged Carmody to release to the parties the memos and emails between the judges.

Without hearing any argument from either side in the appeal, it appears from his correspondence that Carmody had already decided that a submission relating to apprehended bias was “unsupported by precedent and utterly preposterous”.

Further, he had unilaterally arrived at the conclusion that the other members of the court of appeal should not sit with him in hearing any application that he recuse himself from further involvement with the Cowan appeal.

Carmody sat on 7 May and announced he was acceding to the request to publish all the communications between the appeal judges. Even though he said he was not biased, he would take no further part of the appeal – ie he would not finish his unwritten judgment.

He said that “robust, and sometimes strongly expressed, communications are essential to the efficient administration of the court”.

It’s a startling revelation to the rest of the community that “robust” missives resulting in the senior appeal judge refusing to sit with the chief justice are “essential to the efficient administration of the court”.

The future of the Cowan appeal now is up in the air. There’s a sitting later in May before McMurdo and Fraser to hear submissions as to the best course of events. This is a deeply sorry affair, more so for the Morecombe family, who are understandably distressed that at this moment the justice system ran off the rails.

If Carmody had finished his draft judgment in a timely fashion in February, within the three month period prescribed by the court’s judgment delivery protocol, then none of this would have been an issue.

As it happens his judicial work has attracted plenty of prior criticism. Appeal judge John Muir let it be known publicly that in his view Carmody was not up to the heavy judicial lifting required of a chief justice.

Another retiring appeal judge, Alan Wilson, launched a stinging attack against the chief justice in his valedictory speech from the Banco court in March:



Sadly the current experiment, involving a chief justice who frankly admits he lacks [legal] ability, and has signally failed to manifest those skills, is not working - and there is no reason to think that it ever will ... traditionally, what judges do is sit in courts and hear and decide cases ... The notion that there is scope for some kind of full-time public relations role for a head of jurisdiction, and little more, is surprising.

More recently, retired judge George Fryberg said the CJ 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.”

His period as a judge on the family court saw some overuse of the scissors and paste approach to judgment construction, and judicial errors that were accompanied by trenchant criticisms on appeal (see here and here).

From day one Carmody, as the Newman government’s appointee to the state’s top judicial job, was on the back foot. He went from chief magistrate to chief justice in one swoop, after making supportive noises about the government’s anti-bikie laws.

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He was seen as the government’s law and order enforcer. The destabilisation on the bench and the divisions at the bar have progressively worsened since Carmody’s appointment in July 2014. Community respect is an important ingredient in the implicit accord between the community and the judiciary. Once fractured, the judicial function is made much harder, quite apart from which the morale of the court plummets.

Premier Anastacia Palaszczuk thinks the court should sort out the problem, but seems to have left the door open for an inquiry into what’s going on with Tim Carmody. He did say in March: “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.”

Since he made that statement, the damage has got worse.