The Queensland appeal court president, Margaret McMurdo, told the state’s chief justice, Tim Carmody, she could “never sit with him again on any court” after acrimony over his ill-fated role in the Daniel Morcombe murder appeal.
The ongoing schism in the Queensland judiciary is detailed in correspondence filed in court when Carmody voluntarily stood aside from child killer Brett Cowan’s appeal on Thursday.
Pressure on Carmody grew on Friday evening when retired supreme court judge George Fryberg said the chief justice should resign.
Facing an application by Cowan’s lawyers to have him disqualified for perceived bias over his relationship with the child victims advocate Hetty Johnston, Carmody last month privately accused McMurdo of a campaign to undermine him.
His “extraordinary” memo, in which he accused McMurdo of a “gross violation of judicial ethics” and investigating grounds for his perceived bias, came after she and justice Hugh Fraser raised concerns about Carmody’s meeting with Johnston before writing his decision on Cowan.
McMurdo’s first response was curt: “I reject all your ill-conceived allegations of impropriety.”
She then copied Carmody in to an email that instructed a court employee: “Please ensure in future that I am not listed to sit with the chief justice.”
The rift comes less than two months after outgoing the supreme court justice Alan Wilson warned of judges’ worsening morale under Carmody, who he claimed had privately referred to his colleagues collectively as “snakes” and “scum”.
Ratcheting up the pressure, Fryberg said Carmody had broken a golden rule in his conduct over the Morcombe appeal. “Tim’s a nice fellow, I like him, but he admits he doesn’t have the intellectual stature for the job.
“My own assessment of him as a person is that he’s not obsessive compulsive about work and, quite frankly, the chief justice’s job requires someone who is a bit obsessive compulsive about work.
“I don’t think he’s got the law in his blood in the way say [former chief justice] Paul de Jersey did and I fear that these sorts of things will keep on happening if he stays there.”
Carmody last week asked McMurdo how she “could seriously contemplate” sitting beside him to hear a bias application he had “proposed” to hear alone.
McMurdo replied: “The application having been made to THE COURT must first come before THE COURT.”
Carmody in his earlier memo said he found it “disturbing” his fellow judges on the appeal held “deep concern” about his contact with Johnston, which they had urged him to disclose to lawyers on both sides of the appeal. Carmody told McMurdo it was “alarming that your associate decided to investigate, on your instructions or otherwise, any comments made by Ms Johnston regarding Cowan”.
This appeared to be “a singularly exceptional interference with the ordinary judicial process”.
McMurdo’s own memo urging the chief justice to disclose the Johnston meeting went “beyond a mere notification of potential ethical concerns”, Carmody said. “It presents conclusions deriving from a sophisticated application of law to facts obtained by investigation,” he said.
This made it “tantamount” to a formal submission to have him disqualified, Carmody said. “Such statements risk interfering with judicial independence and the orderly administration of justice.”
Carmody also accused McMurdo of a “gross violation of judicial ethics” by revealing to Cowan’s barrister, Peter Davis, the circumstances of the chief justice’s assignment to the case.
McMurdo rejected this last week, telling Carmody there was “nothing confidential or secretive about the listing process in the court of appeal”.
“Contrary to your extraordinary assertions in your memorandum of 22 April, my letter to Mr Davis supported, not undermined your position,” she said.
McMurdo told Carmody she had asked him to flag the Johnston meeting in the Cowan appeal “to protect the administration of justice generally and to ensure that justice was done in this case”.
“You have never acknowledged that the request came from both justice Fraser and me, either in your correspondence with me [or to] the parties in court,” she said.
Carmody in the court of appeal on Thursday said he believed the bid to disqualify him from Cowan’s appeal had “no merit”. But he recused himself to spare the family of Cowan’s victim, Daniel Morcombe, further delays and “an exorbitant waste of public time and money”.
Cowan was convicted of the 13-year-old’s abduction and murder last year and sentenced to life in prison.
