Court offside by Chief Justice Tim Carmody
From chief magistrate to chief justice of Queensland in one giant swoop. What a dizzy ride for Tim Carmody – former meat packer, copper, barrister, Family Court judge and now law and order darling of Premier Campbell Newman, whose government is rapidly going down the drain in the opinion polls.
Carmody is a shaggy, hulking fellow who permanently looks as though he has had a big night out. The announcement of his appointment has produced the most enormous amount of fog-horning. The barristers, or most of them, don’t want him as their supreme commander. Nor do the judges. Eminences from the bar and bench have dispensed with the grovels of ecstasy that usually accompany appointments to senior positions on the courts.
Old corruption warhorse Tony Fitzgerald told the readers of The Australian Financial Review that Carmody is “unsuited to the office” and he will lead to a decade or more of “controversy and ill will”. Former Queensland solicitor-general Walter Sofronoff described the appointment as “a horrible mistake”.
Yet, if all goes to plan, Timothy Francis Carmody will be sworn in next week to succeed Paul de Jersey as chief justice of Queensland. The ceremony will be conducted privately in chambers, to save any embarrassment of hardly anyone turning up. Later in the month, Carmody will have the taxing official duty of swearing in de Jersey as governor of Queensland.
Carmody grabbed the top prize by leapfrogging talented serving judges – and heavens knows how many well-buffed egos at the bar – and he did it without the baggage of discernible legal talent. He confirmed this at the event described by the government as “launch of the chief justice”, where he pronounced that he didn’t propose to “compete” with his fellow judges for “intellectual rigour”.
It’s a long-standing requirement for beaks at the Magistrates’ Court, and judicial officers higher up the stare decisis food chain, to at least appear to be unbiased. In this way the flame of judicial independence can be kept brightly burning.
Appearances in the law are everything, as distinct from underlying reality, so it was regarded with dismay when, as chief magistrate, Carmody openly backed the government’s anti-bikie VLAD law, the Vicious Lawless Association Disestablishment Act of 2013. He sent a three-page email to magistrates advising them not to grant bail to bikies. Further, he issued a practice direction that moved all contested bail applications to Brisbane, closer to his watchful supervision.
He hailed the wet-behind-the-ears attorney-general, Jarrod Bleijie, aka the “Conveyancer-General”, as the “new sheriff in town with low or zero tolerance for criminals and their activities”.
After Bleijie was accused of leaking confidential discussions with Justice Margaret McMurdo, the president of the Court of Appeal, about possible new appointments, Carmody on cue leapt to the conveyancer-general’s defence.
At a swearing-in ceremony for new magistrates, at a time when lawyers and judges were critical of the VLAD law and legislation to permanently incarcerate serious sex offenders, Carmody told the judiciary to pull its head in. Judges should not use the “weight of their office to engage in the public debate or make comments about the comparative morality or fairness” of the government’s laws, he said in an irony-free speech.
In other words, he gave the unfortunate appearance of being a government lickspittle.
In an unfamiliar move, he took to the airwaves to market his credentials as the next chief justice.
“I wish I didn’t have to knock on [Supreme Court judges’] doors and say, ‘Hi, I’m your new chief justice – are we friend or foe?’ But I will, because that’s what leaders do,” he said.
His response to criticism about his perceived closeness to the Newman government and its stumbling law and order agenda was to say: “Nobody has defined that for me. How far away are you supposed to be from government? The point is in these jobs you’ve got to be close to government, and have a good working relationship with them.”
The legal establishment in chambers and at the QEII courts of law groaned and winced. Needless to say, Carmody received bouquets from the local Murdoch paper, The Courier-Mail, and the police union.
Carmody's track record
There are plenty of non-geniuses inhabiting the courts of Australia, and some of them are good judges. For Queenslanders it’s comforting to know that the Newman government has repeatedly said that Carmody has a “fine legal mind”.
So without being unduly nitpicky we should examine, for a moment, just how fine it is.
Let’s start with the case of Brodie, which was decided by Carmody as a Family Court judge in 2008 and sent back for rehearing after his reasons were dismembered by the full Family Court in 2009.
The full court found nine significant errors in Carmody’s reasons, ranging from a 10 per cent error in a mathematical calculation of the parties’ net assets (a mistake of $450,000), to ignoring precedent and failing to make findings that had to be made.
A year later he was in trouble again with the full court in the case of Horleck. This time it was the use of scissors and paste that got the primary judge into strife. He had copied out part of his reasons in a case he decided in 2007 and used the identical paragraph in his Horleck decision.
The full court put it this way: “It is not improper for a judge to repeat passages of general discussion, applicable across cases. But where as here, some of the comment is as to fact and is not applicable to the case at hand, confidence in the cogency of the fact-finding process may be diminished.”
There were other problems with Carmody’s Horleck judgement: he dealt with an application that the parties had not made, he did not know what he was deciding because he failed to understand the nature of the orders that the litigant wife was seeking, and he failed to assist an unrepresented litigant. Outcome – new trial, start again.
In 2006, the full court also revealed evidence of scissors and paste work in CCD v AGMD, where the judge had imported a finding of fact from a completely unrelated case.
Carmody left the Family Court in 2008.
Three months after he presided over a commission of inquiry into child protection he was appointed chief magistrate, in September last year.
His practice of assembling judgements with the help of the glue pot continued. In two contested bikie bail cases he copied bits of one judgement into the other, and in the process repeated a mistaken citation. People reading the judgements would be unable to make sense of some of his reasoning or properly follow the source of the reasoning.
In Carmody’s handling of the bail application in Spence v Queensland Police Service, there was added embarrassment. Spence and his co-accused, all former members of the Hells Angels, were up on drug trafficking charges.
On appeal against the refusal of bail, Justice Margaret Wilson said that Bleijie’s anti-gangs legislation clearly only applies to people who are currently members of an outlawed organisation, so bikies who have ditched their colours do not have to show cause to be released on bail.
Most of these mistakes and self-plagiarisms would not be acceptable in essays from a law student, let alone a chief justice of a superior court.
The “fine legal mind” needs a sturdy set of trainer wheels and a well-thumbed copy of Judging in a Nutshell.
Doubts over selection process
Maybe there’s not much point in having a chief justice in the traditional mould. If Carmody confined himself to court administration and opening law conferences, and kept away from hearing cases and writing judgements, then he’d probably do no real harm.
According to Michael Pelly’s book, The Smiler, Murray Gleeson was reminded by Justice Mary Gaudron, when he arrived at the High Court as chief justice, that he couldn’t make unilateral decisions for all the judges. “It’s not first among equals. We are all equal.”
There was one particular issue that did set off frightening signals for the Bar Association of Queensland. Bar president Peter Davis resigned on June 13, saying he had no faith in the integrity of the chief justice selection process.
He added that there had been text messages and conversations between bar council member Mark Plunkett and another barrister, Ryan Haddrick.
Haddrick is close to the government and to Carmody. Indeed, he had been the conveyancer-general’s chief of staff for a time. In these conversations and text messages he urged the bar to support Carmody’s appointment as chief justice. Haddrick added that the statutory power of the bar association to issue practising certificates could be removed.
This was a chilling message, because in 2009 the Fiji government sought to intimidate the legal profession by removing from the local law society the power to issue practising certificates. The task was transferred to an army major who worked as registrar of the Fijian high court. With that in mind, and the knowledge that anything is possible in Queensland, the bar association was quite spooked.
Nonetheless, the association’s handling of the Carmody crisis has been far from even.
Three days before he resigned in despair over the “process”, Davis issued a statement saying that Carmody “is entitled to the community’s respect”. A fortnight later the bar announced that Carmody did not have its support and he should do the right thing and go into the library with a revolver.
Notable Brisbane barrister Tony Morris, QC, also met himself coming around corners. He went onto ABC local radio to endorse Carmody and Bleijie. Six days earlier he sent an email to members of the bar saying he wanted to withdraw from the committee organising the annual bar conference. The new chief justice would be a keynote speaker and “I regret that I feel quite incapable of representing the bar association with the level of civility owed to the holder of that high office”.
A day later he congratulated the just-resigned bar president on his “heroic stance”. The bar had been compromised by getting a little bit into bed with the attorney-general and giving an earlier undertaking not to criticise Carmody, if he were appointed.
The political fix was in. Campbell Newman wanted his man as the senior judge of the state, regardless of his legal capacity.
The veneer of judicial independence had cracked.
The Queensland government, in its unicameral bliss, has unfettered power, and has no compunction about jamming it down the throat of its enemies, including those unhelpful nuisances on the court.
This article was first published in the print edition of The Saturday Paper on Jul 5, 2014 as "Court red-faced". Subscribe here.