A lawyer has promised the Queensland chief justice, Tim Carmody, that he would to come “armed to the teeth” with material when arguing for his removal from an appeal by convicted child killer Brett Cowan because of perceived bias.
Carmody, who pressed barrister Peter Davis on whether he would be ready to make the case for the chief justice’s disqualification later this month, replied: “You’ll need to be.”
Their terse exchanges in the court of appeal on Friday were followed by the revelation that it was both of Carmody’s fellow judges on the Cowan appeal who raised concerns about his meeting with the child protection advocate Hetty Johnston, the executive director of Bravehearts. before their decision has been handed down.
The appeal court president, Margaret McMurdo, said, contrary to Carmody’s earlier letter to Davis, she and justice Hugh Fraser had decided to urge the chief justice to flag his meeting with Johnston, who has publicly called for Cowan never to be released.
Carmody’s letter detailing the 15 April meeting prompted the application by Cowan’s lawyers to have Carmody disqualified because of “apprehended bias” and the appeal heard by a new trio of judges.
The hearing on Friday was called at the direction of the attorney general, Yvette D’Ath, who the solicitor general, Peter Dunning, said wanted the matter resolved as soon as possible.
McMurdo said she wanted to “correct the record” in correspondence from Carmody to Davis where “it was implied it was me and me alone who referred this matter to the chief justice”.
She said that “in truth I wrote and discussed the matter with justice Fraser”, who was on holiday in Japan, before raising it with Carmody.
“I wrote saying it was our respectful view that the chief justice should disclose the fact of the meeting with Ms Johnston, and what was discussed at it, to both parties,” McMurdo said.
Davis and Carmody also sparred over the question of whether he alone or all three judges should decide whether he could continue with the appeal.
Davis said his legal team’s position was that it should be “the whole court” whereas “the attorney general wants it to be heard by the chief justice alone”.
“That’s the orthodox position,” Carmody said.
“No, your honour, not in our position, not where there’s a full court,” Davis replied.
Davis said Cowan’s legal team needed two weeks to gather material for their argument about Carmody’s relationship with Johnston, which would include media statements made by her against Cowan.
Carmody told Davis that “to raise apprehended bias against a judge you’d have to be on pretty firm ground, wouldn’t you?
“You wouldn’t do that unless you thought you had everything to support it. But you’re still looking for further material.”
Davis replied: “We know what’s there, we’re finding it.”
Guardian Australia has revealed that Cowan’s lawyers would argue apprehended bias in part by referring to a British case involving the Chilean dictator Augusto Pinochet, in which a judge was disqualified because of links to Amnesty International.
Carmody has insisted there is “no serious possibility” he could be seen as biased and that the Cowan matter was not discussed in his meeting with Johnston.
Carmody ordered the Cowan matter will return to the court of appeal on 7 May, when the judges will hear argument about whether it should be he alone or the three judges who decide if he should be disqualified.
The actual argument about whether Carmody’s relationship with Johnston, who advised him on an earlier child protection inquiry he ran for the Queensland government, was set down for 26 May.
Cowan’s solicitor, Tim Meehan, told reporters outside court the legal dispute was highly unusual.
“It doesn’t happen every day that you’re asking a court to rule as to whether or not one of its judges can hear a matter because of apprehended bias,” he said.
Carmody, McMurdo and Fraser heard Cowan’s appeal five months ago but are yet to hand down their decisions.
Cowan was sentenced to life in prison with 20 years no parole after his conviction last year for the murder and abduction of 13-year-old Daniel Morcombe in 2003.
