The Queensland chief justice, Tim Carmody, has raised eyebrows among his colleagues by attending a rugby match then returning to court during his first days of sick leave.
Carmody took medical leave for a back problem after last Friday as controversy raged over his judicial performance and deteriorating relations with fellow judges.
He returned to work briefly on Monday to certify he was incapable of continuing on the high-profile appeal of Daniel Morcombe’s murderer Brett Cowan amid claims of perceived bias.
Carmody had sought to deal with the matter in his private chambers on Friday before taking leave and attending a Queensland Reds game hours later.
His actions while on medical leave had left other judges “puzzled and confused”, a source said.
It comes ahead of the expected release of a conversation recorded by a fellow judge – in which Carmody purportedly refers to his fellow judges collectively as “scum” – to media under Right to Information laws next week.
The chief justice has taken leave for at least a month, having left outstanding judgments on three appeal court matters – one from November and two from February – which have already prompted complaints of delays via the Queensland Law Society.
A spokesman for Carmody’s office reiterated that the medical leave was due to a back problem. “The chief justice is continuing to perform administrative and civic duties during this period where his condition allows,” the spokesman said.
“His honour’s decision to excuse himself from sitting on court matters was to ensure there was no disruption to the courts when he attends specialist medical appointments and treatment.”
Carmody, who was criticised by retiring colleague Alan Wilson for his work rate, has delivered only one main judgment out of 18 appeal court cases he has sat on since he became chief justice last July.
The appeal court president, Margaret McMurdo, has refused to sit with Carmody “in any court in the future” after their professional relationship fractured during the Cowan appeal.
In his certificate disqualifying himself from the Cowan case on Monday, Carmody listed the fact he had voluntarily withdrawn on 7 May as the only reason.
He issued the certificate from his chambers, instead of an open court hearing originally scheduled on Friday.
This followed a scathing submission by Cowan’s lawyers, who said it was Carmody and not their client who was to blame for delays in the appeal that had “rightly” prompted public criticism from Morcombe’s parents.
They also hit back at Carmody’s “inappropriate” criticism that they were “the only persons to benefit” were he to further entertain their bid to disqualify him for apprehended bias.
Cowan’s lawyers submitted the reasons for Carmody’s disqualification included apprehended bias that sprang from his “perceived reluctance … to decide the case contrary to the strong publicly expressed views of [his] public supporter”, child victim advocate Hetty Johnston.
They pointed out it was Carmody’s fellow judges on the case, McMurdo and justice Hugh Fraser, who raised concerns about the propriety of his meeting with Johnston, a vocal public advocate against Cowan, before handing down his decision on the murderer’s appeal of his conviction.
Cowan’s lawyers argued Carmody was further incapable of continuing because he had shown actual bias against Cowan’s application, declaring it “unmeritorious” and a “bizarre sideshow” before hearing it.
He also prejudged the question of whether he alone or the full appeal court bench should hear that application, they said, pointing to his remarks in emails to other judges that he released at their behest.
They said Carmody had further “abrogated his official duty by withdrawing from the appeal after finding, in effect, that there was no legitimate basis to do so”.
Daniel Morcombe’s parents had been “rightly” critical of the delay in the appeal but it was Carmody who was to blame, Cowan’s lawyers argued.
“There is no evidence (or even an assertion by the chief justice) that (he) had taken any steps in the last five months to prepare and deliver a judgment in the appeals,” they submitted.
Emails and memos with the other judges hearing the appeal, McMurdo and Fraser, show they had both finished their draft judgments in February.
Cowan’s lawyers also said Carmody made “adverse” comments about them being “the only persons who will benefit (from the application)” without giving them any chance to respond.
“The inappropriateness of such a course of action by the chief justice is exacerbated by the huge public interest in the case and the obvious knowledge of the chief justice that his unchallenged, untested assertions would be widely published,” they said.
The lawyers said either Carmody or McMurdo could issue the certificate declaring him incapable of sitting.
But the solicitor general, Peter Dunning, speaking on behalf of the attorney general, argued Carmody was entitled to withdraw without a finding of apprehended bias and should sign the certificate himself.
Dunning said Carmody had made it clear he withdrew “not on the basis of apprehended bias, but to allow an expedient and expeditious finalisation of the appeals, as well as being in the general interests of the justice of the case”.
The Cowan appeal could be decided as early as Thursday.
The conversation with Carmody due to be released next week was recorded by senior judges’ administrator John Byrne, taking place during what Wilson described in March as an attempt by the chief justice to interfere with the process of appointing a judge to the court overseeing electoral disputes.
At the time, the former Newman government was poised to challenge the result in a key Brisbane seat in a cliffhanger state election in January.
Carmody flagged “unresolved concerns” around the appointment by roster of justice David Boddice to the role but dropped his objections shortly before the former government announced it would no longer challenge the result.
