Importing judges to avoid conflict of interest

Andrew L. Urban.

February 4, 2020: Further to our February 3 report on the former judge who has called for the Sue Neill-Fraser new appeal in Tasmania’s Supreme Court to be heard by mainland judges, we report on other such judge importations.

ABC News reported just yesterday: The search for an interstate judge to conduct the rape trial of former NT assistant police commissioner Peter Bravos has begun, the NT Supreme Court has been told.

Mr Bravos’s lawyer, John Lawrence SC, last week applied for Justice Judith Kelly to step aside from the trial on the basis that her connection to a witness could influence proceedings.

Justice Kelly has rejected the application of apprehended bias, but despite this found it would be better if an interstate judge conducted the trial “as a matter of convenience”.

She said this would avoid the raising of “irrelevant issues” during the hearing.
“As well as to ensure the defendant himself believes he has the benefit of an impartial trial.” (emphasis added)

On 14 January 2019 Tom Richardson in InDaily reported: Three Supreme Court judges have been seconded from Victoria to help resolve a legal stoush over advice from SA’s now-Chief Justice, Chris Kourakis, that was used to keep Henry
Keogh in jail for a further eight years. The temporary appointments have been made, the Government told InDaily, “at the request of the Chief Justice to avoid the perception of bias”. (emphasis added)

In 2003, then-Solicitor-General Kourakis conducted a three-year review of the evidence in the Keogh case, after his lawyers questioned the evidence of forensic pathologist Colin Manock. At the time, Keogh had served the first decade of his 25-year sentence, after his 1995 conviction for the drowning murder of his fiancée Anna-Jane Cheney.

Kourakis’ report, which remains confidential, was used by the former Labor Government to justify its rejection for Keogh’s clemency bid, with acting-Attorney-General Kevin Foley telling a 2006 media conference: “The overwhelming body of evidence shows very clearly that Mr Henry Keogh is guilty of a terrible, terrible crime.”

Keogh’s conviction was finally overturned in 2014 by the Court of Criminal Appeal, which found there had been a miscarriage of justice due to flawed forensic evidence.

ED: The judges found in favour of Keogh and the report was made public on April 12, 2019.

On December 14, 2019, Victorian Attorney-General Jill Hennessy announced the appointment of the Honourable Margaret McMurdo AC as the royal commission chair, along with former South Australian police commissioner Malcolm Hyde AO APM as a commissioner, in the Police Informants Royal Commission, triggered by the Lawyer X scandal.

Both are from other states. Honourable Margaret McMurdo AC is the former president of the Queensland Court of Appeal. Malcolm Hyde AO is the former South Australian police commissioner.

Katherine Towers in the Financial Review reported: Victoria is leading the country in protecting its judiciary from the perception of bias by importing interstate judges to investigate judicial officers accused of misbehaviour or incapacity.

Victorian Attorney-General Rob Hulls will introduce legislation to establish a judicial complaints system comprised entirely of interstate judges. Seven judges from the Federal, Family and state and territory courts will form a panel, and three will be selected to investigate complaints against sitting judicial officers. (emphasis added)

The interstate review model is an Australian first and comes after the state government rejected a move towards an independent judicial commission such as the one that operates in NSW.


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16 Responses to Importing judges to avoid conflict of interest

  1. K Roger says:

    Can the SNF appeal go ahead in these difficult times? Can all interstate participants be deemed FIFO’s or essential workers and enter Tasmania? Can it all be done by video?
    Will the use of local judges, essentially standing in judgement of their boss, risk humiliating him?
    Could this be the basis of an appeal if the decision goes against Sue?
    So many questions.

  2. Keith says:

    Let’s hope this Coronvirus isn’t used by the Tasmanian Government and legal fraternity to further delay Sue’ s appeal hearing. Given there is no jury involved there would be no reason to do so but, it is Tasmania!

    • Health advocate says:

      Suppose that Sue’s lawyer catches the virus. Would you then blame the defence lawyer? What if the chief witness (Meaghan) catches the virus. Would you then blame her?

      No matter who of the 4 parties (the prosecution, the chief witness, the Appeal judges, or the defence lawyers) catches the virus it is important that the appeal be delayed.

      • Keith says:

        Of course it is obvious that if any of the participants got the virus the trial would be postponed. The point I was making was that in my view, given past behaviour, it would not surprise if the Tasmanian establishment and police used the current situation to delay things further notwithstanding any infections.

        • Health Advocate says:

          At a time of a serious health crisis around the world, including Australia, you are concerned that the Tasmanian Government might introduce measures to control the spread of virus, the net effect of which might be to cause a delay in one appeal case in Tasmania. Are you up with what is going on around the world at this point in time?

        • says:

          Hi Keith, I Am with you. They will do anything to keep Sue locked up. The past has proven that. Too many liars out their that don’t want the truth to be known! I have had sleepless nights over this, and I DON’T understand how any Premier can sit by and not do something.
          Sue has been robbed of everything, I sit here shaking my head in disbelief.
          This could happen to anyone of us!!!

      • Keith says:

        Again you miss the point completely. I apologise for posting.

    • Jilly says:

      I am still shocked that anyone can be convicted of murder with NO EVIDENCE AT ALL!! No body, blood, weapon or motive!
      Having read a fair bit about corruption in Tasmania, I SMELL A DIRTY BIG RAT!!!
      Due to the inadequate Police and the need for a witch hunt, Susan was it. The weight of a dead body would be impossible to dispose of as the stupid Judge put it. He obviously has no idea how heavy a dead body is.
      This is shameful and makes a mockery of the SO called justice system here.
      I doubt they want anyone to Sue them as Lindy Chamberlain did, so, Susan, sadly, I think you will be stuck in prison.
      Our system is no better than Bali, with what happened to Schapelle Corby.
      Quite frankly, I am embarrassed and ashamed that good people’s life can and are being destroyed so easily and quickly.
      The Police, Judge and Jury should be thoroughly ashamed of themselves, have they no conscience.

  3. Peter Gill says:

    Keith, I’ve had the same experience with all my friends who live in Hobart. Highly intelligent people they are too. It’s the media coverage. Guilt sells newspapers. Innocence and lack of gory details does not sell. Intelligent people actually believe what they read. They read that Sue is a liar. They read about Phillip Triffett without knowing the background to his “evidence”.

    Other Australian cases where the media coverage has disrupted justice include Lindy Chamberlain, Keli Lane, Kathleen Folbigg, Gordon Wood, Robert Xie, Simon Gittany, Glenn McNeill, Lloyd Rayney, Jeff Gilham and case 06 on this website (“Paul”). In my opinion, the last year or two has seen a reduction in sensationalism in media coverage of major Australian court cases, resulting in improved justice. The lack of coverage of the current trial of the accused Family Court bomber is one example of this recent reduced media coverage.

  4. Keith says:

    I have just come back from Hobart and was astounded at the views of locals about this case. All I spoke to were adamant Sue is guilty and no discussion could be entered in to! I offered Robin’s and McLaren’s books to someone to read – offer rejected. I was in Darwin during the Chamberlain saga and it was the same there then. Can’t wait for the exoneration but from what I saw, sadly even that will not convince these naysayers!

  5. Keith says:

    There is a trial in the NT at the moment involving a high ranking policeman. Due to his high profile and past involvement with the judicial system, two judges have recused themselves from the case. It is now likely it will be heard by an interstate judge.
    How appropriate.

    • andrew says:

      As we report above: ‘The search for an interstate judge to conduct the rape trial of former NT assistant police commissioner Peter Bravos has begun, the NT Supreme Court has been told.’

  6. Peter Gill says:

    Other examples include:

    Justice Brian Ross Martin from SA was called in to adjudicate the curious prosecution of Lloyd Rayney in WA in 2012.

    Former NSW Justice John Dunsford was called in to head WA’s investigation by the WA Crime and Corruption Commission into the wrongful conviction of Andrew Mallard.

    Former NSW Justice John Clarke was called in to head the inquiry into the Qld case of Dr Mohamed Haneef’s counter-terrorism charges.

    Justice Brian Martin was called in from Interstate to adjudicate the David Eastman mess in ACT in 2014.

    And on and on it goes. It’s normal. Unless you want a hometown result, that is.

  7. Robin Bowles says:

    NT also appointed a new Chief Justice from SA to hear the Murdoch/Falconio trial in an effort to avoid local bias. Didn’t actually work, the judge was the most biased against the defendant and his legal team I’ve ever seen on the bench. But they did go through the motions!
    Conversely, the magistrate/coroner in the Phoebe Handsjuk inquest WAS a local bloke, so local that he was friends with the family of Phoebe’s boyfriend, who was specifically cleared by him of any involvement in her death. The boyfriend’s latest squeeze has also
    been found dead in suspicious circumstances recently! Not implying the boyfriend had anything to do with either death of course! But emphasises the importance of justice being SEEN be done! Another book coming up soon!

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