COURT OF APPEAL SUPREME COURT OF QUEENSLAND CA No 53 of 2014 CA No 77 of 2014 Applicant (Appellant): BRETT PETER COWAN AND First Respondent (Respondent): THE QUEEN AND Second Respondent (Appellant) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND SUBMISSIONS ON BEHALF OF THE APPLICANT (APPELLANT) SUMMARY OF MR COWAN’S POSITION 1, Judgment in the appeals should be delivered as soon as possible by the Court, comprising of McMurdo P and Fraser JA. 2, Either the Chief Justice or McMurdo P should issue a certificate under s 31(2) of the Supreme Court of Queensland Act 1991 (“the Act”) to the effect that the Chief Justice is “incapable of sitting” on the appeals. 3. The issue of a certificate under s 31(2) of the Act is justified because: (i) Inorder to dispose of the appeals, the Court was required to: (i) Determine whether the Chief Justice alone, or the whole Court should consider the question of apprehended bias against the Chief Justice; (ii) Sit and determine the question of apprehended bias; (ii) Deliver judgments in the appeals; Gi) The Chief Justice: SUBMISSIONS Solicitors for the Applicant/Appellant Filed on behalf of the Bosscher Lawyers Applicant/Appellant 331 George Street BRISBANE QLD 4000 ‘Telephone: 07 3229 3166(Was unable to participate in the determination of the issue of whether His Honour sitting alone or the whole Court ought to determine the question of his apprehended bias because he had prejudged that issue; (i) Could not sit and hear the question of his apprehended bias as he had prejudged that issue; ii) Could not deliver judgment in the appeals as he was affected by apprehended bias against Mr Cowan through his association with, and meeting with, Ms Hetty Johnston, the CEO of Bravehearts; (iv) Abrogated his judicial duty by withdrawing from the appeal after finding, in effect, that there was no legitimate basis to do so. Inall those circumstances, the Chief Justice is relevantly “incapable” of sitting on the appeals and a certificate to that effect should be given by either the Chief Justice or McMurdo P. The Court, comprising of McMurdo P and Fraser JA, should then deliver judgement in accordance with s42 of the Act. BACKGROUND On Thursday 7 May 2015, the Chief Justice withdrew from delivering judgment in the appeal against conviction by Mr Cowan and the appeal by the Attomey-General against sentence. No argument was entertained by the Chief Justice, who simply delivered a statement and withdrew", That statement evidenced his Honour purporting to make findings, in particular: (i) That the application that the Chief Justice be disqualified for apprehended bias was “unmeritorious”; and (ii) That “the only persons who will benefit [from the application] are the legal practitioners involved”, meaning the lawyers representing Mr Cowan’. Other comments were made adverse to others, including Mr Cowan’s legal representatives and the other members of the Court who heard the appeal. ‘Mention remarks, 7 May 2015 Mention remarks, 7 May 2015, page 6, line 8 ‘Mention remarks, 7 May 2015, page 5, lines 21-22WHAT actual 10, i. 12. 13. Those findings and adverse comments were made and published in open court without any notice to the parties and without any opportunity for the parties 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. The Court now comprising only of McMurdo P and Fraser JA is left to consider the appeals. LY HAPPENED On 26 and 27 November 2014, the Court of Appeal comprising the Chief Justice, the President and Fraser JA heard the appeals and reserved judgment on both. It seems that the President and Fraser JA prepared draft judgments which were circulated amongst the three members of the Court by late February’. There is no evidence (or even an assertion by the Chief Justice) that the Chief Justice had taken any steps over the last five months to prepare and deliver a judgment in the appeals, On this issue of delay, Mr and Mrs Morcombe have both been publicly critical of the Court’. Wit respect, rightly so. Mr Cowan also wishes to see a judgment. Success on the appeal for Mr Cowan, or success on a subsequent appeal to the High Court of Australia, will result in his release from prison, Mr Cowan complied with all directions given by the Court in the preparation of the appeal. He presented his oral argument in the time allocated by the Court. No blame for the delay in the disposition of the appeals lies with Mr Cowan. On 14 April 2015, the Chief Justice met with Ms Johnston, the CEO of Bravehearts and another person to discuss “Hubcare” an initiative being promoted by Bravehearts®. On any version, the Chief Justice was being asked by Bravehearts to support and promote that organisation. Email Fraser JA 28 April 2015, 6.22pm and 29 April 2015, 1.47pm See, for example, the article titled "Judicial stoush over appeal of Daniel Morcombe’s killer angers parents”, The Courier Mail, 8 May 2015 ‘This was disclosed to the parties in the appeal by letter from the Chief Justice dated 17 April 2015 attaching email correspondence from Ms Johnston about the meeting and its purpose14, 15, 16, 17. ‘That meeting was held, notwithstanding that Ms Johnston had expressed strong views about Mr Cowan, including that he should never be released from prison’. As recognised by the President and Fraser JA, the meeting of 14 April 2015 raised concerns in the appeal’, Particulars of the application that would have been argued for the removal of the Chief Justice on the basis of apprehended bias are as follows: @ wi Gi) The Chief Justice and Ms Johnston have a long association. ‘This includes Ms Johnston acting as advisor to the Chief Justice (then Carmody SC) in the Child Protection Royal Commission, which was conducted by his Honour in 2012; Ms Johnston has been an avid public supporter of the Chief Justice; Ms Johnston has publicly expressed views that Mr Cowan: (@) Was guilty; (b) Was correctly convicted; (©) Should not have a right to an appeal; (4) Should lose his appeal; (©) Should never be released. ‘The High Court in Ebner v The Official Trustee in Bankruptcy® explained, in relation to apprehended bias, that: “Where, in the absence of any suggestion of actual bias, a question arises as 10 the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) $5 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CHL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 74 ALIR 1380; 174 ALR 655). That principle gives effect to the requirement that justice should both be done and be seen See, for example, comments published in the following articles: “Tougher laws could lead sex offenders to kill victims: Daniel Morcombe judge”, Sydney Morning Herald, 14 March 2014; “Daniel Morcmbe's killer sentenced to life, with no parole or 20 years”, The Guardian, 14 March 2014; “Daniel would be alive today if it were not for the system”, Sunshine Coast Daily, 13 March 2014; Letter to the Chief Justice from the President dated 17 April 2015 (2000) 205 CLR 33718. 19. 20, 21 to be done (R v Sussex Justices; Ex parte MeCarthy [1924] 1 KB 256 at 259 per Lord Hewart Cl), a requirement whick reflects the fundamental importance of the principle that the tribunal be independent and impartial, It is convenient to refer to it as the apprehension of bias principle”! And later: “The apprehension of bias principle admits of the possibility of human frailty. is application is as diverse as human frailty, Its application requires two steps, Firs, it requires the identification of what itis said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated, Only then can the reasonableness of the asserted apprehension of bias be assessed. ""! Here: (i) The reason it may be thought that the Chief Justice may not have decided the appeals on their merits is his close association with Ms Johnston, including meeting with her while judgment in the appeals were reserved; (ii) The “logical connection” between the association with Ms Johnston and the “feared deviation from deciding the case on its merits” is what would be a perceived reluctance of the Chief Justice to decide the case contrary to the strong publicly expressed views of the Chief Justice’s public supporter, Ms Johnston. On 17 April 2015, a letter was sent to us by the Chief Justice disclosing the fact of the meeting. In an exchange of correspondence we sought details of the association between the Chief Justice and Ms Johnston, but further disclosure was refused by the Chief Justice. On 23 April 2015, we indicated that we expected receiving instructions to bring an application to the whole Court who sat on Mr Cowan’s appeals, seeking orders that At(6] ACS]22. 23. 24, 25. 26. the Chief Justice be disqualified and that the appeals be heard by a freshly constituted court, On 24 April 2015, the Chief Justice mentioned the matter. His Honour sat alone in the “criminal jurisdiction". His Honour expressed the view that there was no apprehended bias, His Honour described that view as a “strong preliminary view””. It was stated by us at the mention on 24 April that we had instruetions to file an application to the whole court seeking the disqualification of the Chief Justice. That prompted an extraordinary response from Ms Johnston'®, where she asserted: () The application was an act of judicial vengeance against the Chief Justice; (ii) The application cast aspersions on the Chief Justice’s “integrity”; (ii) The application cast aspersions on the integrity of Bravehearts as an organisation and Ms Johnston in particular; (iv) Ms Johnston had known the Chief Justice for about 20 years; (v) In Ms Johnston’s view, the Chief Justice is “a legend”; (vi) The lawyers for Mr Cowan (a reference to us, it seems) were acting “unprofessionally””. The statements by Ms Johnston were ones of public support and defence of the Chief Justice, being a member of a court which heard appeals in relation to Mr Cowan, who Ms Johnston has publicly attacked. Apart from significantly adding to the fear of apprehended bias of the Chief Justice against Mr Cowan, Ms Johnston’s statements were completely misconceived in that: (There was no attack upon the integrity of the Chief Justice. The Ebner test is purely objective; (ii) There was no attack upon the integrity of Bravehearts or Ms Johnston. Neither Bravehearts nor Ms Johnston are subject to any judicial oath. There is no suggestion of improper conduct by either of them. The issue is the objective effect of the Chief Justice’s meeting with Ms Johnston; Transcript 1-10, line 42 MSs Johnston spoke on 4BC on 28 April 2014 and some of her remarks were repeated in the media articles including “Hetty Johnston defends Chief Justice Tim Carmody’s relationship with Bravehearts", The Daily Telegraph, 28 April 2015(iii) The suggestion of “judicial vengeance” is misconceived and, frankly, contemptuous of the President and Fraser JA, incidentally judges with whom Ms Johnston does not apparently have a relationship (unlike her relationship with the Chief Justice). The only action of the President and Fraser JA which could have attracted this extraordinary and improper attack by Ms Johnston was the insistence by those judges that the fact of the meeting of the Chief Justice with Ms Johnston be disclosed to us. That such a disclosure was appropriate must surely be beyond question; (iv) The assertion that we have acted unprofessionally is insulting, misconceived, and demonstrates a level of ignorance by Ms Johnston of barristers” ethics similar to her ignorance of the principles governing the determination of applications for disqualification for apprehended bias. No matter what Mr Cowan is alleged to have done or found to have done, we will represent and defend him to the best of our ability within the confines of the law. Mr Cowan is entitled have the appeals determined by a court that is not infected with apprehended bias against him, 27, On 1 May 2015, the application was mentioned before the whole Court. Orders were made as follows: “THE ORDER OF THE COURT IS THAT: 1. So much of the Applicant's application filed 29 April 2015 as raises the question of the constitution of the Court to hear the balance of the application be listed before the Chief Justice, the President and Fraser JA on 7 May 2015; 2, Alll parties file and serve written submissions in respect of the hearing listed for 7 May 2015 by 4:00pm on 6 May 2015; THE ORDER OF THE CHIEF JUSTICE IS THAT: 3. The Applicant file and serve any material in support of the application, his particulars of the application and his written submissions by 4:00 pm on 18 May 2015; 4. The Respondents file and serve any material in response to the application and written submissions by 4:00 pm on 22 May 2015; 5. The balance of the application be heard by the Court constituted as determined as a result of the order made as a result of the listing referred to in order 1, on 26 May 2015."28. 29, 30, 31. 32, 33 There is no doubt that the Chief Justice had the jurisdiction to alone exercise the powers of the Court of Appeal to make those orders which his Honour made alone'*, and it was appropriate that only he make them, given that it may have been that the Court determined that he, alone, should hear the application for disqualification for apprehended bias. It can be seen from the orders of 1 May that the whole court would determine on 7 May whether the application for disqualification for apprehended bias be heard by the whole court or the Chief Justice sitting alone and then on 26 May either the Chief Justice alone or the whole court would hear the substantive application. In the meantime though, it had become obvious (we respectfully submit) that the Chief Justice had prejudged both the application to be heard on 7 May and the application to be heard on 26 May. This had been made clear in correspondence to the other members of the Court'S, It is perhaps unsurprising that the judges took the view that questions of prejudgment of these two issues arose and that the emails ought to be disclosed. On 7 May 2015, the Chief Justice entered the Banco Court with the President and Fraser JA, did not invite submissions, disclosed the communications between the judges and then made a statement during which his Honour announced that he was withdrawing, not only from the determination of the matters listed for hearing on 7 and 26 May, but also from the appeal itself, There was no explanation by the Chief Justice in the statement as to why he did not simply allow the other two judges to determine the apprehended bias application and then remain in the appeal if he was not disqualified from doing so. ‘The statement made by the Chief Justice is, by any standards, extraordinary. Firstly, the Chief Justice asserted that he had not prejudged either the application of 7 May or the application to be heard on 26 May. This is so notwithstanding: Section 44(2) of the Act In a memorandum to the President and Fraser JA dated 22 April 2015, the Chief Justice described any suggestion of the existence of apprehended bias as “utterly preposterous” and in a later memorandum to the President and Fraser JA dated 29 April 2015 he indicated that he proposed to hear and determine the application for disqualification sitting alone34, 35. (i) Inthe memorandum of 22 April 2015, the Chief Justice describes the suggestion of apprehended bias as “utterly preposterous”; (ii) The Chief Justice, in the memorandum of 29 April 2015 said, in a definite and unqualified context “I propose to hear and determine the application for disqualification sitting alone”, (iii) In the mention remarks, the Chief Justice described the application as “absurd and extraordinary", (iv) In the mention remarks, his Honour, referring to the merits of the application said “for which I see none”!”; (v) Further in the remarks, his Honour referred to the “unmeritorious application” which he described as a “bizarre sideshow”! In the remarks, the Chief Justice said, “The President of the Court of Appeal is also suggesting, at least by implication, that I may be biased in relation to the substantive merits of the determination of the application for my recusal for bias. One might be forgiven for thinking that both such propositions are as confounding as they are unprecedented”. Ttis not for us to determine whether the President is suggesting bias in the determination of the apprehended bias application. However: (i) Mr Cowan submits that the Chief Justice’s memoranda of 22 and 29 April 2015 clearly raise the issue of bias by way of prejudgment of the issues before the Court; and (ii) Such a proposition is neither “confounding” nor “unprecedented”. In fact, prejudgment of an issue is a long and clearly recognised ground of bias”. As at 24 April 2015 and 29 April 2015, the dates of correspondence in which the Chief Justice was saying some of the things we have identified, no written submissions had been filed. As at 7 May, no oral argument had been entertained, ‘Notwithstanding this, the Chief Justice still, in his remarks, referred to the applications as “wnmeritorious” and “absurd and extraordinary”, but then dismissed Mention remarks, 7 May 2015, page S, line 18 Mention remarks, 7 May 2015, page 3, line $ Mention remarks, 7 May 2015, page 6, lines 7-10 Mention remarks, 7 May 2015, page 1, lines 12-15 Livesey v SW Bar Association (1983) 151 CLR 288; R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 263; Johnson v Johnson (2000) 201 CLR 488 at 493; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 564; Antoun v R (2006) 80 ALIR 49736. 37. 10 the concems of the President and Fraser JA that his Honour may have prejudged the applications. ‘The Chief Justice referred in his mention remarks to the apprehended bias arising from his meeting with Ms Johnston. Of course, his Honour knew that the application for apprehended bias was founded on that meeting in the context of statements made by Ms Johnston contrary to Mr Cowan’s interests and the long standing association between the Chief Justice and Ms Johnston®', The material to support the application ‘was not even due (by force of the orders made by his Honour himself on 1 May 2015) until 19 May 2015, Therefore, his Honour’s comments about the strengths or otherwise of the application were made without submissions and before any material had been filed. There are various references in the mention remarks to delay in the delivery of the judgment”, This is (with respect) an extraordinary approach for the Chief Justice to take, given that the material that has been disclosed suggests that the only reason judgment was not delivered in February was because the Chief Justice had not produced a draft judgment. It is also difficult to see how his Honour’s continued presence would delay the disposal of the appeal. The question of who should hear the apprehended bias application was to be determined on 7 May. Whether the Chief Justice disqualified himself or not, the apprehended bias application would have been heard and determined on 26 May. That was the date set by the Chief Justice in directions that he made. ‘The decision to withdraw from the appeal in the way that his Honour did, is (with respect) remarkable, The consistent theme in his Honour’s correspondence, and indeed in the mention remarks, is that there was no valid claim for disqualification on the basis of apprehended bias. On that basis, there is no proper foundation for the decision to withdraw from the appeal. In Ebner this was said: “Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Mention transcript, 24 April 2015, 1-2, lines 11-20 and 1-6, lines 29-30 Mention remarks, 7 May 2015, page 5, lines 188-22 and page 6, lines 7-19 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at 34839, it Judges do not choose their cases; and litigants do not choose their judges. If one arty to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. This is not to say that itis improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. Ina case of real doubt, it will often e prudent for a judge to decide not to sit in order to avoid the inconvenience that could result ifan appellate court were to take a view rr disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable, Itis not possible to state in a categorical form the circumstances in which a judge, «although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted . . .” (our underlining) There is nothing in Ebner which justifies withdrawal from a case which has been fully heard after a judge has positively dismissed allegations of apprehended bias. (CROSS INFECTION WITH APPREHENDED BIAS 40. Al. 42. 43. 2% Where there is a multi-member decision making body and one of the members is attendant with apprehended bias, it is sometimes the case that the other members of the decision making body are infected with the apprehended bias However, disqualification of the other members is not automatic and all relevant circumstances must be considered”>. Here, Mr Cowan is satisfied that he received a full and fair hearing of his appeal in November 2014. The President and Fraser JA appear to have produced judgments in February 2015, independently of the Chief Justice”®, There is no evidence of the Chief Justice having taken any steps to prepare a judgment, or of him cooperating with the President or Fraser JA to do so. If the Court has jurisdiction to do so, then Mr Cowan requests that the two remaining members of the Court deliver judgment, To the extent that there is any suggestion of IW v City of Perth (1997) 191 CLR tat $0-51 ‘McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 555-557 Email Fraser JA, 28 April 2015, 6.22pm.12 apprehended bias attaching to the President and Fraser JA as a result of membership of a court with the Chief Justice, Mr Cowan waives any impact of apprehended bias”, ‘THE COURT'S JURISDICTION TO PROCEED WITH ONLY TWO MEMBERS 44, Sections 29 and 30 of the Supreme Court of Queensland Act 1991 provide as follows: '29 Jurisdiction and powers () Subject to this Act, the Court of Appeal has jurisdiction to hear and determine all matters that, immediately before the commencement of this section, the Full Court had jurisdiction to hear and determine. 2) The Court of Appeal has such additional jurisdiction as is conferred on it by or under this Act, another Act or a Commonwealth Act. @ The Court of Appeal may, in proceedings before it, exercise every jurisdiction or power of the court, whether at law or in equity or under any Act, Commonwealth Act or Imperial Act. 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. @ — Aniule 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.” 45, It can be seen then that in the ordinary course, the Court must consist of at least three members. The decision of the Court is then governed by s 42, which provides: “42 Decision The decision of the Court of Appeal is to be in accordance with - (a) if the judges present at the hearing are equally divided in opinion - the opinion of the judge who, at the start of the hearing, was the most senior judge; or (b) otherwise - the opinion of the majority of judges present at the hearing.” 46. Section 31 concems the situation where one member of a three member court is, unable to continue, Section 31 provides as follows: “31 Constitution of court if 1 judge of appeal unable to continue oO If- (@) after the Court of Appeal (including the court constituted under this section) has started the hearing, or further hearing, of a proceeding: and (&) of the judges constituting the court dies, resigns as a judge, or is certified as incapable of sitting before the proceeding has been determined; n Vakauta v Kelly (1989) 167 CLR 568 at $77-579, Smits v Roach (2006) 227 CLR 423 at 439, Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429 at 442-44647, 48. 13 the hearing and determination of the proceeding may be finished by the remaining judges ifat least 2 judges remain. 2) Ajudge 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.” Here, it is submitted, itis clear that the Chief Justice is presently “incapable of sitting. @ (i) ww) and determining the appeal. This is so because: If the Chief Justice had continued to sit on the appeal, it would have been necessary to determine whether he alone, or the whole Court, consider and determine the application that he be disqualified for apprehended bias. The Chief Justice could not sit on that application because he has, it is submitted, prejudged that issue and is therefore incapable of sitting; If the Chief Justice had continued to sit on the appeal, then it would have been necessary to determine the question of apprehended bias against the Chief Justice. The Chief Justice has, it is submitted, prejudged that issue and is therefore incapable of sitting; ‘The Chief Justice cannot deliver a judgment in the appeal, as his association with Ms Johnston demonstrates apprehended bias against Mr Cowan”®. He is therefore incapable of sitting on the appeal; On 7 May, the Chief Justice abrogated his obligations as a member of the Court deciding the appeals. He has therefore rendered himself incapable of sitting on the appeals. Section 31 is a facilitative section which ought not be narrowly construed. While the incapacity would no doubt include physical or mental incapacity (obviously not missing here), it ought to be construed as encompassing a broader scope of incapacity ‘A decision-maker’s associations can ground an application for disqualification for apprehended bias: Cottle v Cottle [193] 2 All ER 535; Ex parte Blume; Re Osborn (1958) 58 SR (NSW) 334; DJC v Burg [1998] VSCA 139; Murian Consulting Pty Lid v Ku-Ring-Gal Municipal Council (2009) 170 LGERA 16249, 50. 51. 14 Such a construction is supported by the history of that section. When the Act was introduced, section 31 read as follows: "31 Constitution of court if I judge of appeal unable to continue Ww Yf- (@) after the Court of Appeal (including the court constituted under this section) has started the hearing, or further hearing, of a proceeding; and (®) _ before the proceeding has been determined; 1 of the judges of appeal constituting the court dies, resigns as a judge or otherwise becomes unable to continue as a member of the court for the purposes of the proceeding, the hearing and determination of the proceeding ‘may be finished by the remaining judges of appeal if at least 2 judges of appeal remain and the parties consent. (2) 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. (3) 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.” ‘That section was amended by the Justice and Other Legislation Amendment Act 2005. The Explanatory Memorandum made clear that the amendment was intended to introduce an objective test in determining whether a judge is incapable of sitting and to remove the requirement for the affected parties to consent to the remaining judges making the determination. It provided, relevantly: “Clause 162 amends section 31 of the Act to ensure that it applies whether the Court of Appeal is constituted by judges of appeal or judges of the trial division. The provision establishes an objective means of determining when a judge otherwise becomes unable to continue in a proceeding by enabling the Chief Justice or the President of the Court of Appeal to issue a certificate stating that a judge is incapable of sitting. The provision also removes the current requirement for the parties to the affected proceedings to consent to the remaining judges finishing the hearing and determination.” Further, the Second Reading Speech included the following: “The Bill also contains various amendments designed to improve justice administration, including amendments to: - The Supreme Court of Queensland Act 1991 to clarify what happens when a judge dies, retires or becomes incapable of continuing proceeding before the Court of Appeal, with the objective of avoiding a re-hearing if that can be justly achieved.”15 52. The legislature’s clear intention was to widen the circumstances in which a matter being determined by the court of appeal could continue without a re-hearing. That intention supports a wide construction of the test of incapacity. 53. Here, the Chief Justice has rendered himself “incapable” of continuing on the appeals. Either the Chief Justice or the President ought to issue a certificate under 8 32(2) of the Act and the Court should then deliver judgment in accordance with s42 of the Act. Peter J Davis QC Angus Edwards Ruth O°Gorman Counsel for the Applicant (Appellant) 15 May 2015SUPREME COURT OF QUEENSLAND COURT OF APPEAL REGISTRY: Brisbane NUMBER: 53 of 2014 NUMBER: 77 of 2014 CA 53 of 2014 Appellant: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND AND Respondent: BRETT PETER COWAN CA 77 of 2014 Appellant: BRETT PETER COWAN AND Respondent: THE QUEEN WRITTEN SUBMISSIONS ON BEHALF OF THE CROWN AND THE ATTORNEY-GENERAL 1, The Queen and the Attomey-General submit that, in order to promote the expeditious resolution of these appeals, the Chief Justice should issue a certificate under s 31(2) of the Supreme Court of Queensland Act 1991 (Qld) certifying that his Honour is incapable of sitting in these appeals as a result of his Honour’s recusal on 7May 2015. This would engage $31 and allow her Honour the President and his Honour Justice Fraser to decide whether to exercise their cretion to deliver judgment in the appeals under s 31. 2. To properly consider the application of s31, it is important to precisely articulate the events that have given rise to its engagement. Submissions GR Cooper CROWN SOLICITOR Filed on behalf of the Appellant (CA 53 of 2014) 11" Floor, State Law Building and Respondent (CA 77 of 2014) 50 Ann Street Brisbane Qld 4000 Per Philippa Mott Telephone 07 3239 6190 CPG/ATT110/3302/MOP Facsimile 07 3239 6382 Document No: 929783Nature and effect of the Chief Justice’s recusal 3. On 29 April 2015, Mr Cowan applied to the Court for a declaration that the Chief Justice was disqualified by apprehended bias from further participation in the appeals. The parties were required to file submissions about whether that application should be heard by the whole Court as then constituted or by the Chief Justice alone, and that question was to be determined on 7 May 2015. In the event, the Court did not determine that question on 7 May 2015 because the Chief Justice, in reasons which his Honour delivered on that date,' recused himself from further involvement in the appeals. Those reasons included the following: Although judicial officers should not too readily disqualify themselves, to prevent this unmeritorious application from continuing for generations, it is in the best interests of this Court and overall public confidence in the administration of justice that I withdraw instead of prolonging this bizarre sideshow ... 5, Elsewhere in those remarks, is clear that his Honour did not accept that he was disqualified by apprehended bias from continuing to sit in the appeals. Where apprehended bias is alleged against a judge, he or she may recuse himself or herself whether that allegation is made out or not. The plurality in Ebner v Official Trustee in Bankruptcy held:? Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they hrelong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose theie judges. If one party to a case objects to particular judge sitting, oF continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the ‘This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case Of real doubt, it will often be prudent for a judge to decide not to sit in " His Honour delivered his reasons orally, however a transcript isnot yet available. His Honour did also citculate a written document entitled ‘Mention remarks’ which his oral reasons followed with only immaterial variations. For convenience, passages of that document are referenced in these submissions # (2000) 205 CLR 337, 348 (19}-[21] (Gleeson CJ, McHugh, Gummow and Hayne 53); (2000] HCA 63 (emphasis added), Document No: $929783 2order to avoid the inconvenience that could result if an appellate court ‘were to take a different view on the matter of disqualification. However, ifthe mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for individual parties could influence the composition of the bench. That would be intolerable. Ikis not possible to state in a categorical form the circumstances in which a iudge, although personally convi is not disqualified, may properly decline to sit, Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted ‘This is consistent with the proposition that, although instances of recusal typically relate to allegations of apprehended bias, there is authority that recusal may take place in other circumstances. The term recusal appears to derive from the legal term recusatio judicis, which referred to ‘an objection to a judge on suspicion of partiality, or for other good cause’.* 8. In Clenae Pty Lid v ANZ Banking Group Ltd,‘ Callaway JA held that as a general rule, it was the duty of a judicial officer to hear and determine cases allocated to hhim or her and that ‘[s]ubject to certain exceptions, a judge or magistrate should not accede to an unfounded recusal application.> Whilst Callaway JA did not expand on what those ‘certain exceptions’ were, it cannot be doubted that they include recusal where that is considered appropriate in the interests of the proper administration of justice. 9, While the Court did not decide the question whether Mr Cowan’s application should be decided by the Chief Justi authority overwhelmingly favours the former.® alone or the whole Court, the weight of SER. Hardy Ivamy, Mozley and Whiteley's Law Dictionary (10 ed, 1988) 386 (emphasis added). “ Clenae Pty Lid v ANZ Banking Group Lid (1999] 2 VR 573. Clenae was one of two cases affirmed in Eimer v Official Trustee in Bankruptcy (2000) 205 CLR 337. § Clenae Pty Lid v ANZ Banking Group Lid [1999] 2 VR 573, 603 [89(e)] (Callaway JA). © In the High Cour: Ebner v Offical Trustee in Bankruptey (2000) 205 CLR 337, 361 [74]: Livesey v ‘New South Wales Bar Association (1983) 1$1 CLR 288, 294; [1983] HCA 17; Kartinyeri v The Commonwealth (1998) 72 ALIR 1334; [1998] HCA 52; and Unions NSW v New South Wales [2013] HCATTrans 263. In the Queensland Court of Appeal: Matthews v Commissioner of Police [2011] QCA. 341, p 5 (White JA, Margaret Wilson AJA, Douglas J); Mango Boulevard Pty Lid v Spencer [2010] (QCA 207 at {621468} (Mui JA); Merrin v Commissioner of the Police Service (2002] QCA 449 (McPherson JA). In other Australian intermediate appellate cours: Simmons v New South Wales Trustee ‘and Guardian [2014] NSWCA 144 (Barrett JA); De Alvis v Western Australia [No 3] [2015] WASCA 41 (MeLure P); De Alwis v Western Australia [No 4] [2015] WASCA 43 (Mazza J), D v B [20141 WASCA 196, [9}(13] (Newnes JA); Mann v Northern Territory News (1988) 88 FLR 194 (Nader J); cument No: S920788 310. In those circumstances, it is submitted that it was clearly for the Chief Justice to decide Mr Cowan's application. As a result of the Chief Justice’s decision to recuse, the application no longer arose to be determined by order of the Court. Consequently there has been no finding of apprehended bias. But in any event, that is not to the point. The question simply is whether his Honour’s recusal amounts (o an inability to sit within the meaning of s 31 of the Supreme Court of Queensland Act 1991. ‘The Chief Justice’s reasons of 7 May 2015 make clear that his Honour recused hhimself from these appeals 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. 12. It is against that understanding of the present status of the appeals that the application of s 31 of the Supreme Court of Queensland Act 1991 should be considered, Section 31 13, Sections 30 and 31 of the Supreme Court of Queensland Act 1991 provide that: 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. (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 a i (@) after the Court of Appeal (including the court constituted under this section) has started the hearing, or further hearing, of a proceeding; and ‘Duke Group Lid (in lig) v Pilmer (No 3] 2001] SASC 215, (71] Doyle C1). The contrary approach was taken in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 (the approach is not explained inthe Court of Appeal’s reasons for judgment, but Moffit P's statement in open court is reproduced inthe High Court's reasons on appeal: Livesey v New South Wales Bar Assocation (1983) 151 CLR 288, 292), and Neil v Legal Professional Complaints Commitee (No 2) (2012) WASCA 150 at (2}{8] Pullin JA), (9] (Buss JA) and {13] (Murphy JA) Document No: 8529783(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. 14. Although certain rules of court have been made which would allow fewer than three judges of appeal to exercise the jurisdiction and powers of the Court of Appeal under s 30(4),’ these provisions do not extend to delivering judgment on an appeal and therefore do not apply in the current situation, 15, So far as final disposition of the appeals is concerned, then, the sole statutory exception to the requirement in s 30(1) that the Court of Appeal be constituted by three or more judges of appeal is in $31. In order for the appeals to be finalised by the two remaining judges, it is therefore necessary that $31 be engaged. Previous section 31 cases 16. Section 31 has been apparently applied by the Court of Appeal in two cases, both of which involved judges who had retired 17. In Alderson v Schmidt* the Court was constituted by McMurdo P and Ambrose J under s 31 (in its original form) following the retirement of Thomas JA in order to amend an earlier order in civil proceedings originally made by all three Judges. 7 For example, r 104 of the Criminal Practice Rules 1999 allows a judge to decide applications for leave to appeal, for extensions of time to appeal, for leave to be present and applications under the Criminal Code, s 671B(1)(a), (6), (2) or (e)- Rule 766(3) of the Uniform Civil Procedure Rules 1999 allows (wo or more judges of appeal to exercise the jurisdiction and powers ofthe Court of Appeal in relation to applications in eriminal proceedings for leave to appeal or for an extension of time within Which to appeal or to apply for leave to appeal * Alderson v Schmidt [2002] QCA 331 Document No: S92978318. In R vy EH,’ the Court of Appeal was constituted by McMurdo P and Holmes JA under $31 following the retirement of Mackenzie AJA for the purposes of reopening a sentence imposed by the Court constituted by all three Judges. 19. Inboth cases, reference was made to the court being constituted under s 31 without further discussion of the operation of the section. Both cases involved retirement, not disqualification." In any event, these cases do not shed any light on whether ‘incapable’ in s 31(1)(b) includes recusal or withdrawal whether for apprehended bias or otherwise. Ordinary meaning of ‘incapable’ 20. In the absence of any direct precedent, it is necessary to consider the ordinary meaning of ‘incapable’ 21. The Oxford English ictionary defines ‘incapable’, ‘incapacity’, ‘capable’ and ‘capacity’ as follows:'! incapable ... I.Not capable; the opposite of capable .. 3. Of such a nature, or in such a condition, as not to allow or admit of; not admitting or susceptible of 4,Not having the capacity, power, or fitness for a specified function, action, etc.; unable .. 5. absol. Destitute of, or deficient in, ordinary capacity or natural ability; incompetent; without natural qualification 6. Not having some external, esp. legal, qualification; not legally qualified or entitled; disqualified ... incapacity ... 1, Want of capacity; inability, powerlessness; incompetence, natural disqualification; incapability .. 2. Legal disqualification, disability: with an and pl, an instance of this, a disqualification or disability ° Rv EH [2009] QCA TL "° Teappears that neither case adverted to §23(2) (the equivalent of s 21(2)(a) which was in force atthe time) which allows for a judge to continue to hear a matter after retirement. Section 31(1)(b) expressly provides for resignation, not retirement. Tt would therefore be engaged inthe case of retirement effected by resignation, and may also be engaged by compulsory retirement on attaining 70 years of age (s 21(1). “"FA Simpson and E S C Weiner (eds), Oxford English Dictionary (Clarendon Press, 2nd ed, 1989), vol VIT, 782. ‘cument No: 929783 622. 23. 24. 25, 26. capable ... S.Having the needful capacity, power, or fitness for (some specified purpose or activity) 6. absol. Having general capacity, intelligence ot ability; qualified, gifted, able, competent ... 7. Having some external, esp. a legal, capacity or qualification; qualified, entitled; in Law, qualified to hold or possess (property, tc.) capacity 1. a. Ability to receive or contain; holding power ... 4. Mental or intellectual receiving power; ability to grasp or take in impressions, ideas, knowledge .. 5. Active power or forve of mind; mental ability, talent, 6. gen. The power, ability, or faculty for anything in particular 9. a, Position, condition, character, relation 10. Law, Legal competency or qualification. 10 be in capacity: to be legally qualified Itis submitted that in their application to judges, ‘disqualification’ and ‘recusal’ are synonymous. ‘These definitions suggest that ‘incapable’ as used in s31 includes not only incapacity for such things as physical and mental inability but also recusal The definitions do not suggest any need to look behind the circumstances of or reasons for recusal. It is therefore submitted that ‘incapable’ should be interpreted to include a situation where a judge has voluntarily recused himself or herself regardless of the grounds for recusal or withdrawal ‘Therefore, the fact that Mr Cowan’s application was not the subject of a hearing and determination, but was instead resolved by his Honour recusing himself in order to promote the expeditious finalisation of the appeals and in the general interests of justice of the case, does not prevent the engagement of s 31 ‘The question of whether s31 is in fact engaged in these appeals may be illuminated by reference to its history, context and counterparts in other States." " Alcan (NT) Alumina Pry Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46-47 (47); 2009] HCA 41. Document No: 929783 7Legislative history 21, 28, 29. 30, ‘An early reference to the composition of the Full Court and Court of Criminal Appeal was in s 5 of the Supreme Court Act 1921: Unless in any particular case the Govemor in Council on the recommendation of the Chief Justice otherwise directs by Order in Council published in the Gazette, not more than three Judges shall sit in the Full Court or in the Court of Criminal Appeal. ‘The Judges who shall from time to time constitute the Full Court and the Court of Criminal Appeal respectively shall be selected in that behalf by the Chief Justice. Section 4 of the Supreme Court Acts Amendment Act (No 2) 1958 made provision in the case of a pending appeal where a judge ‘dies or becomes incapable of continuing to sit’ for the remaining judges to proceed to judgment. It continued in force unamended until the Supreme Court of Queensland Act 1991, 111 and sch 2 ith by the new s 31 of the 1991 Act? ‘omitted ss 2 and 4 because they were dealt ‘Thus the expression ‘unable to continue’ was first introduced in Queensland in s 31 as originally enacted in 1991, perhaps based upon inter-state precedents (see below), Section 31 was amended in 2005 by s 162 of the Justice and Other Legislation Amendment Act 2005 to use the current wording of ‘incapable’, add the provision for certification of incapacity by the Chief Justice or the President, and to remove the requirement of consent of the parties.'* The extrinsic material sheds no light on why this amendment was made, other than to note that adding the requirement for certification of incapacity by the Chief Justice or the President was designed to establish ‘an objective means of determining when a judge otherwise becomes unable to continue in a proceeding by enabling the Chief Justice or the President of the Court of Appeal to issue a certificate stating that a judge is incapable of "As to equivalent provisions for trial judges, ss 3 (Savings), 5 (Hearing de novo when trial judge ‘becomes incapable) and 6 (Certificate of incapacity) of the 1958 Act were later relocated as s6 296-298 of the former Supreme Court Act 1995 (part 20—Provisions from Supreme Court Acts Amendment Act (No 2) 1958). Those provisions remained in place until the repeal of the 1995 Act by $211 ofthe Civil Proceedings Act 2011. Section 189 of the 2011 Act also inserted a new s 56A into the Supreme Court of ‘Queensland Act 1991, dealing with the situation where a judge ofthe Trial Division is incapable of continuing to hear atrial. Section S6A is now s 47 of the 1991 Act. "© minor amendment was also made in 201 to change ‘sitting’ to ‘siting whether temporarily or otherwise’, but this does not appear to have any bearing on the current question. cament No: 52978331 sitting’.'* That no difference in meaning was intended by the 2005 amendments by substituting the term ‘unable to continue’ with the term ‘incapable’ is suggested by the apparently interchangeable usage of these terms in the explanatory notes. ‘The legislative history therefore does not provide any basis for reading down s 31 or interpreting it so as not to cover a situation such as the present. Context 32. 33. 34. Section 31 is the sole statutory exception to the proposition that the Court must, at least for granting final relief, be constituted by three judges. It does so by reference to death, resignation and incapability. Death and resignation relate to characteristics (temporary ot otherwise) of the judge, not to features of the case. ‘Some aspects of incapability refer to like characteristics of a judge such as illness, disability or unforeseen absence from the jurisdiction. However, if ‘incapable’ is given the broader meaning which would include recusal, it would also include features or circumstances which are unique to a particular case. Here, the basis for the Chief Justice’s recusal does not affect his capability to sit in other matters. As the true basis for his Honour’s recusal relates to the expeditious finalisation of the appeals in this case, the basis is specific to these appeals, and does not relate to his Honour’ general capacity to sit. This does not however rule out the application of s 31 in this particular case. Other jurisdictions 35. 36, New South Wales, Westem Australian, Victorian and the Australian Capital Territory Supreme Courts legislation contains provisions corresponding to s 31 of the Supreme Court of Queensland Act 1991 which allows the Supreme Court to be constituted by two judges where the third member is ‘unable to continue’, provided that the parties consent,!® Other States’ Supreme Courts legislation contains other provisions that a judge is ‘not incapable’ of hearing a matter merely because of the judge's status as a '5 Explanatory notes to Justice and Other Legislation Amendment Bill 2005, p39. "See s ASA ofthe Supreme Court Act 1970 (NSW), s 57(4) of the Supreme Court Act 1935 (WA), 515 ofthe Supreme Court Act 1986 (Vic), and s 37L ofthe Supreme Court Act 1933 (ACT. eament No: $9297 9ratepayer or taxpayer!” These provisions appear to contemplate that ‘incapable’, as used in those sections, would ordinarily include disqualification for apprehended bias arising from his or her status as a ratepayer. 37. There does not appear to be any significant difference between ‘incapable’ and ‘unable’ in the respective provisions. The interchangeable use of those terms in the explanatory notes to the 2005 amendments to the Supreme Court of Queensland Act 1991 (referred to in paragraph 30 above) suggests that the broad meaning attributable (o ‘unable’ in provisions of other States’ legislation should also be applied to the meaning of ‘incapable’ in the Queensland legislation. 38. This suggests that an inability to sit arising from recusal makes a judge “incapable” of sitting within the sense of s 31, whether based on apprehended bias or other reasons. Conclusion: applicability of section 31 39. The ordinary meaning of ‘incapable’ as including recusal, the context of the provision and the use of ‘incapable’ in inter-State legislation in a context which appears to include incapacity due to recusal, all suggest that ‘incapable’ as used in 531 should be interpreted as including a situation where a judge recuses for apprehended bias or for other reasons. 40. It is submitted that s 31 applies in the current situation, where an application for disqualification was made on the basis of alleged apprehended bias and the Chief Justice dealt with the application not by deciding it but by recusing from taking further part in the appeals in order to allow an expedient and expeditious finalisation of the appeals, and in the general interests of justice of the case. Certificate of incapability 41. The Queen and the Attorney-General therefore request the Chief Justice to issue a certificate under s 31(2).. "See for examples 30 of the Supreme Court Act 1970 (NSW), 5 14 ofthe Supreme Court Act 1935 (SA), $12 ofthe Supreme Court Act 1935 (WA), and s 20A of the Supreme Court Act 1986 (Vie). This appears tobe a statutory confirmation ofthe position at common law, where an intrest as ratepayer Was beld not tobe sufficient to disqualify a judge: Lord v Mayor of Sydney (1870) 9 SCR 94, ocament No: 8529783 1042. 43. 44, It is submitted that it would be both appropriate and desirable for the Chief Justice to issue a certificate as to his own incapability in a case such as the present. Where an issue of apprehended bias is required to be determined, this course of action would be consistent with the weight of authority that questions of apprehended bias should be decided by the judge in question.'* However, this course of action would also be consistent with a wider category of case where the inability does not arise from any intrinsic characteristic of the judge, but rather from the nature of the case. That category includes a case like the present where the judge has recused for reasons other than apprehended bias which have nothing to do with his capability to sit in other cases. Court's discretion to continue 45. If 531 is engaged and the Chief Justice does certify his own incapability, it is submitted that the word ‘may’ in s 31(1) confers a discretion on the remaining Judges whether to proceed to judgment. 46. If the certificate is granted, this will be a matter for the remaining Judges to decide. However, it is submitted that there is a strong public interest to be served by granting the certificate in order to allow judgment to proceed in that way, if the remaining judges decide that is the appropriate course of action. If Mr Cowan ‘were to support that course, it is submitted that the case for proceeding to judgment would become overwhelming. PETER DUNNING QC AW MOYNIHAN QC Solicitor-General Director of Public Prosecutions AD KEYES GPCASH Counsel for the Attorney-General Counsel for the Queen for the State of Queensland " Sce footnote 6 above. Document No: 929783 TT