Relevant Chronology
On 13 March 2014 Brett Peter Cowan was convicted of killing Daniel Morcombe and sentenced to imprisonment for life, with parole eligibility set after serving 20 years. His appeal against that conviction has been attendant with significant controversy.
On 13 March 2014 Brett Peter Cowan was convicted of killing Daniel Morcombe and sentenced to imprisonment for life, with parole eligibility set after serving 20 years. His appeal against that conviction has been attendant with significant controversy.
On 26 and 27 November 2014 the appeal relating to the conviction and sentence of Brett Cowan was heard before Carmody CJ, McMurdo P and Fraser JA.
In February 2015 Justices McMurdo and Fraser completed their draft judgments and sent them to the Chief Justice.
On 15 April 2015 Chief Justice Carmody had not published his judgment in the Cowan appeal and had a private meeting in his chambers with Hetty Johnston of Bravehearts, a child protection advocate organisation.
On 7 May 2015 Chief Justice Carmody withdrew from hearing the appeal on the basis of apprehended bias resulting from his meeting with Hetty Johnston before he had published his judgment in the Cowan appeal.
On 14 May 2015 Chief Justice Carmody announced that he “will be unavailable to preside in court for a month” from 18 May 2015. He was seeking treatment for back problem.
On 18 May 2015 Carmody CJ issued a certificate under s 31(2) Supreme Court of Queensland Act 1991 (Qld) stating that he is incapable of sitting on these appeals in light of his recusal on 7 May 2015. (See paragraph [4] of the Cowan judgment)
On 21 May 2015 Judgment was delivered in R v Cowan; R v Cowan; Ex parte Attorney-General (Qld) [2015] QCA 87.
Discussion
Whilst the Cowan appeal was on foot the meeting between Chief Justice Carmody and Hetty Johnston should not have taken place. Such a meeting was always going to invite a suggestion of apprehended bias on the part of the Chief Justice.
Whilst the Cowan appeal was on foot the meeting between Chief Justice Carmody and Hetty Johnston should not have taken place. Such a meeting was always going to invite a suggestion of apprehended bias on the part of the Chief Justice.
Now that he has withdrawn from any further involvement in the Cowan appeal the issue of how the appeal should proceed arises:
- Can the Court continue with just McMurdo P and Fraser JA? Or
- Does a new Court need to be constituted and the entire appeal start again?
It would seem that now Carmody CJ is on sick leave, the “incapable of sitting” requirement in s31(2) has been enlivened and McMurdo P could issue a certificate that Carmody CJ was “incapable of sitting” on the Cowan appeal. That would get over any difficulty which may arise relying only upon the withdrawal of Carmody CJ from any further involvement in the Cowan appeal.
As to whether the Court should continue with just McMurdo P and Fraser JA or a new Court needs to be constituted and the entire appeal start again, my sense is that the apprehended bias has coloured that particular Court and so the appeal will need to start again.
S31(3) empowers the newly constituted Court of Appeal to “have regard to any evidence given or received, and arguments adduced, by or before the Court of Appeal as previously constituted”. So the newly constituted Court could consider all that has previously been put before the Court and then invite submissions on any issues which may arise from that review. Both the Crown and the defence could also make submissions on any new enquiries the newly constituted Court may have.
That more conservative approach may also enable justice to be seen to be done in a case which has been attendant with significant controversy.
Judgment In Cowan
At paragraph [4] of the judgment in Cowan McMurdo P said “In accordance with s 31(1) Supreme Court of Queensland Act, the Court is now constituted only by Fraser JA and me.” At paragraph [136] Fraser JA said “In all other respects I agree with the President’s reasons concerning the conviction appeal.”
At paragraph [4] of the judgment in Cowan McMurdo P said “In accordance with s 31(1) Supreme Court of Queensland Act, the Court is now constituted only by Fraser JA and me.” At paragraph [136] Fraser JA said “In all other respects I agree with the President’s reasons concerning the conviction appeal.”
It would seem that the Court of Appeal is happy for the Chief Justice to certify that he is “incapable of sitting” on the Cowan appeal and that reconstituting the Court was not necessary.
The Legislation
Supreme Court of Queensland Act 1991
Part 3 The Court of Appeal
Supreme Court of Queensland Act 1991
Part 3 The Court of Appeal
30 Way in which court may be constituted
(1) Subject to this Act, any 3 or more judges of appeal constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal.
(2) More than 1 Court of Appeal may sit at the same time.
(3) When more than 1 Court of Appeal is sitting at the same time, each may exercise the jurisdiction and powers of the Court of Appeal.
(4) A rule of court may provide that the jurisdiction and powers of the Court of Appeal may, in particular kinds of proceedings, be exercised by fewer than 3 judges of appeal.
(1) Subject to this Act, any 3 or more judges of appeal constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal.
(2) More than 1 Court of Appeal may sit at the same time.
(3) When more than 1 Court of Appeal is sitting at the same time, each may exercise the jurisdiction and powers of the Court of Appeal.
(4) A rule of court may provide that the jurisdiction and powers of the Court of Appeal may, in particular kinds of proceedings, be exercised by fewer than 3 judges of appeal.
31 Constitution of court if 1 judge of appeal unable to continue
(1) If—
(a) after the Court of Appeal (including the court constituted under this section) has started the hearing, or further hearing, of a proceeding; and
(b) 1 of the judges constituting the court dies, resigns as a judge, or is certified as incapable of sitting before the proceeding has been determined; the hearing and determination of the proceeding may be finished by the remaining judges if at least 2 judges remain.
(2) A judge is certified as incapable of sitting if the Chief Justice or the President of the Court of Appeal has issued a certificate stating that the judge is incapable of sitting whether temporarily or otherwise.
(3) The Court of Appeal constituted under this section may have regard to any evidence given or received, and arguments adduced, by or before the Court of Appeal as previously constituted.
(4) Any question in the proceeding is to be decided in the same way, and the judgment of the Court of Appeal constituted under this section has the same force and effect, as if the court were not constituted under this section.
(1) If—
(a) after the Court of Appeal (including the court constituted under this section) has started the hearing, or further hearing, of a proceeding; and
(b) 1 of the judges constituting the court dies, resigns as a judge, or is certified as incapable of sitting before the proceeding has been determined; the hearing and determination of the proceeding may be finished by the remaining judges if at least 2 judges remain.
(2) A judge is certified as incapable of sitting if the Chief Justice or the President of the Court of Appeal has issued a certificate stating that the judge is incapable of sitting whether temporarily or otherwise.
(3) The Court of Appeal constituted under this section may have regard to any evidence given or received, and arguments adduced, by or before the Court of Appeal as previously constituted.
(4) Any question in the proceeding is to be decided in the same way, and the judgment of the Court of Appeal constituted under this section has the same force and effect, as if the court were not constituted under this section.
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