News from the QE11 Cauldron
Monday, July 28, 2014
Justinian in John Muir JA, Judges, Sentencing, Supreme Court of Queensland, Tim Carmody

Knock About running onto the paddock ... Muir JA sends critical missive to Nudgee Old Boys ... CJ out of his league with civil work, now fresh blunder comes to light on sentencing ... Newman and the Conveyancer General try and mend fences with judges and lawyers ... Knock About on the speech circuit 

Knock About: perfectly affable, but ...

Nudgee Old Boys lining-up for the August 14 business breakfast are in for a lot more than sausages and scrambled eggs.  

Chief Justice Knock About is on the program as one of the entertainments, along with Lord Mayor Graham Quirk. 

The event has prompted outrage over the new CJ's aptitude for the job. 

Only the other day chums from the Nudgee Class of 1962 received an email, circulated by the old boys committee, and authored by Queensland appeal judge John Muir.

Between the lines Muir is suggesting that a boycott of the breakfast would be a splendid idea: 

"Dear James and Committee Members,

I would be grateful if you would pass this on to our classmates. The organisers of the NCOBA Annual Business Breakfast seem to be operating on the principle that all publicity is good publicity. Either that or they have been ill advised. Many of you will have heard that the appointment of Carmody as Chief Justice of Queensland was controversial, to put it mildly. The misinformation in the Courier-Mail/Sunday Mail continues ... 


The appointment has caused Queensland, once again, to be subjected to ridicule in the southern states and beyond. It was a major talking point amongst interstate and New Zealand judges at the annual Supreme & Federal Court Judges Conference in Darwin earlier this month. I am told that the controversy was also widely discussed at a recent conference in Hong Kong attended by Chief Justices, Judges and academic lawyers from many jurisdictions." 

For the benefit of the Old Nudgeans, Justice Muir provided links to his speech and other articles critical of Carmody's appointment, including material from Justinian

He went onto say that, unfortunately, the consequences of this appointment will hang over the Supreme Court for a very long time, unless Carmody resigns. 

In language Nudgee old lads can readily grasp, he added: 

"A sporting analogy that occurred to me is the selection of an average player in the worst performing rugby union club team to captain the Wallabies. But the analogy is far from adequate. That person would be able to play for both halves and would have a reasonable understanding of the rules of the game." 

He added, Carmody's background in criminal and family law makes him ill-equipped to handle the most complex civil litigation, which "makes up at least half the work of the Supreme Court which he leads".

Spellbinding stuff to lob in your inbox from the old boys union. 

In a follow-up to the Class of 62, Muir JA issued a clarification:  

"The thought occurred to me that I should make it plain that my issue is not with Carmody the man. I do not doubt that he is perfectly affable socially and that he has many other good qualities. I recognise that he does have some substantial professional achievements to his name. My issue is with what I perceive to be his manifest unsuitability for the particular office he now holds." 

By this stage the Class of 62 committee had had enough: 

"This matter is now closed and no further correspondence will be entered into. Thank you." 

See: messages to Nudgee Class of 62 from Justice JDM Muir 

*   *   *

IF heavy civil work is out of Carmody's league he is, nonetheless, supposed to have some strength in crime. 

However, sleuths north of the Tweed have unearthed another embarrassing morsel, which shows that as chief magistrate in a bikie sentencing case Carmody was quite off-beam. 

Andrew Barton Clarke-Davis was at the scene of an infamous riot that occurred at the Aura Tapas & Lounge Bar, Broadbeach, featuring a significant number of bikies. 

At the time Clark-Davis was a "prospect member" of the Bandidos. After a long-winded struggle trying to "resolve the competing sentencing principles" the Chief Madge slotted the accused, who had pleaded guilty to the offence of riot. 

He received a sentence of nine months imprisonment, with non-parole fixed at four-and-a-half months. 

Judge Brad Farr SC heard the accused's appeal and found the sentence was manifestly excessive. 

Farr said that Clarke-Davis' role in the riot was that he was simply present at the scene. He had not entered the restaurant, where the flare-up commenced, and he had not engaged in verbal threats to police or others. 

There was no evidence he played any part in the altercation and no evidence he had misbehaved in any way while police tried to disperse a larger group of bikies. 

The sentences imposed in comparable cases did not support the sentence given to the appellant and offended the parity principle. 

At the time of the riot Clarke-Davis was 22, but he had a record: six prior drug related convictions, one for dishonesty, two for assault or obstruct a police officer (both on the same day) and one offence of commit a public nuisance. 

He had been sentenced to prison on four previous occasions, although required to actually serve prison time only once. 

Farr went through a list of comparable cases to show how the parity for the appellant's sentence was out of whack. 

In sentencing Clarke-Davis, Chief Madge Carmody took what is known as the "basic approach", i.e. that all parties are equally guilty of the crime regardless of the parts played by each of them. 

The trouble with that approach is that the sentencing magistrate is bound  to take into account actual conduct during the offence, and there is no discretion to do otherwise. 

Section 9(2)(d) of the Penalties and Sentences Act, says so. Section 9(2)(g) mandates that a court is to have regard to any aggravating or mitigating factor. 

The "learned magistrate" failed to take into account the appellant's actual conduct at the scene of the riot. 

On the question of parity, Farr found the sentence imposed was "manifestly disparate", compared to sentences imposed on co-offenders. 

Carmody said he would have given the accused a head sentence of 12 months full-time custody and a non-patrols period of six months, "had it not been for the sentences imposed previously on the co-offenders". 

However, he did not indicate in any way that the head sentence had been reduced on account of any mitigating circumstances. 

Given that the head sentence which was actually imposed was outside the range, it stands to reason that an even heavier sentence was further off beam. 

Farr reduced the sentence to six months with release on parole after serving 89 days. 

Law lecturers in Qld are using the Clarke-Davis case as an illustration to students about the imposition of sentences contrary to law. 

It's nice to have a District Court judge correct the sentencing methods of the current CJ of Qld. 

See: Clarke-Davis sentencing judgment 
See: Clarke-Davis sentencing appeal judgment 

*   *   * 

WHAT on earth can be made of reports last week in The Bowen Hills Bugle that Campbell Newman and his attorney general, The Boy Wonder, have had fence mending sessions with lawyers and judges? 
Field Marshall Newman said: 

"Myself and the attorney have had a very productive meeting for almost an hour with the Chief Justice and the Chief Judge of the District Court and the Chief Magistrate." 

He and the AG expressed their "respect for for courts and the great work they do". 

"I also put on the table issues that have concerned the government and I guess there are some agreements about the way we are going to work together going forward. 

In summary, there us a very clear commitment from this government and I believe the people we have spoken to today, to work together for Queenslanders." 

The premier, deputy premier and AG also had chinwags with the BAQ and the QLS. 

All this in the wake of fractures wrought on the court and the legal community by the appointment of Knock About as CJ, and attempted executive interference in the judicial process.  

Calamitous polling numbers staring the government in the face also may have something to do with it. There may be a realisation dawning among the Newmanites that the electorate is not happy with the return of ruthless Bjelkeism. 

The premier and AG are still trying to line-up a meeting with Court of Appeal president Margaret McMurdo, but she may be a bit reluctant to chat freely, given that last time her confidential conversation was leaked to the faithful hacks at Rupert's Bugle

Finally, Knock About has been cutting a swathe through the speech circuit: admission ceremonies on July 14 and a QUT law graduation on July 24.  

He seems transfixed by the scribblings of Nikki Gemmell, for on both occasions he reminded the fresh-faced graduates of the inspirational advice from the chick-lit dingbat that "failure is no bad thing" and that "change is a gift - it moves us forward – always".

To the QUT graduates Carmody gave misquoted snippets from Kipling's If and the "beautiful piece of prose from The Desidarata (sic). 

Desiderata is more correctly known as a prose poem - but no matter, Timbo put it through the mangler: 

"Do not compare yourselves with others, as you may become vain or bitter for there will always be greater and lesser lawyers than yourselves."  

A nice reworking of his landmark observation, "I may not be the smartest lawyer in the room". 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
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