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    « Law morsels | Main | Show and tell »
    Thursday
    Jun262014

    The story of Timbo and the Paste Pot

    Calamity Carmody ... Confidence in his cogency found wanting ... Error ridden judgments ... Heavy on the glue ... Wrong citations ... Cockeyed reasoning ... This is the government's idea of a "fine legal mind" ... Headmaster's report card 

    Timbo Carmody: essays need to improve

    NOW that it seems Timbo (Errors) Carmody is slowly moving towards the top judicial job in Queensland, with knuckles dragging on the ground, it's timely to put on record his actual lack of skill when it comes to the job of writing judgments. 

    It's not just the clumsy way he splashes about with the glue brush, there are also an impressive collection of blunders, errors of law, mathematical miscalculations, failure to make relevant findings, and lapses in reasoning. 

    Lets start with his work as a judge of the Family Court. 

    in 2009, the Family Court tore apart his work in Brodie

    Full court judgment here 

    Primary judgment here  

    Going to the full court's reasons we can identify the following muck-ups: 

    • Paras 38, 39 and 42: A 10 percent error in Carmody's sums, i.e. $450,000. 

    • Para 72: A failure to understand the doctrine of precedent , requiring the trial judge to apply appellate court decisions. As the FC put it: 

    "His Honour's treatment of the decisions of the Full Court in paragraph 193 demonstrates a misunderstanding of the well established principles of precedent in our legal system." 

    • Paras 88 and 89: He failed to make findings that had to be made: 

    "We are satisfied that his Honour failed to consider and make findings, except in the most general way, about the husband's contributions, nor did he properly evaluate and weigh those contributions against the wife's contributions." 

    • Para 117: Timbo failed to disclose any consideration of the wife's entitlements and consideration of her reasonable needs. There was no reasoning demonstrated as to how he quantified an amount of $40,000 by reference to the relief sought by the wife in her further amended application. 

    • Para 121: He failed to make findings he should have made in relation to five separate matters. 

    • Para 122: Go back and start again. 

    • Para 123: Costs probably paid by the public. Court invited application for certificates pursuant to the Federal Proceedings (Costs) Act

    Report Card: Needs to try harder. Nine significant errors in the one judgment is well above the class average. 

    *   *   *

    NOT to be outcome, he was in more trouble with the full court a year later in Horleck

    See full court judgment here  

    See primary judgment here 

    Let's start with the glue pot component. Here's what the full court said at para 45: 

    "The first sentence of paragraph 61 does not seem to relate to the facts of this case, in which there was no question of 'sponsorship monies'. In a case which his Honour decided in September 2007, paragraph 69 of his Honour’s reasons is identical to the paragraph quoted in his judgment in this matter. 

    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 in hand, confidence in the cogency of the fact-finding process may be diminished." 

    • Paras 18 and 33: He dealt with an application that the appellant wife had not made: 

    "However, it is clear from the orders that he made and the description in his reasons of the applications before him, that his Honour thought that he was dealing with a s.79A application, when he was not." 

    And ... 

    "That paragraph is also relevant to the wife's alternative enforcement of unpaid rents, etc, but it was not raised by the wife and has not been the subject of evidence or argument in these proceedings. It would be procedurally unfair, therefore, to use it against a respondent for the wife's benefit without notice." 

    • Paras 40 and 41: Timbo acted on the basis of an imagined assumption of fact that had no basis: 

    "We are concerned with [Carmody's] proposition that: 'A reasonable starting point is the supposition that husbands do not normally cheat former wives out of their fair share of family property'.

    We do not know from where this supposition comes. We do not know if it might relate to all husbands or just those who are party to Family Court property settlements. It seems that this assumption played a particular part in his Honour's reasoning because of the immediately following sentence which reads: 'That assumption prevails unless and until the contrary is clearly and adequately established'." 

    • Para 62: He did not know what it was he was deciding:  

    "Secondly, we consider that his Honour's application of s.106B was at the least tainted by his Honour's misapprehension that the section was invoked in an application seeking orders pursuant to s.79A, and consequently that his Honour failed to appreciate that the wife's application was essentially for enforcement of the property settlement orders and that the powers conveyed by s.106B were invoked in support of that application."

    • Para 81: He failed to assist an unrepresented litigant: 

    "We are uncertain how Carmody J 'classified' the applications of the parties 'to reopen and re-litigate issues about a gemstone collection' and therefore uncertain of what principles his Honour would or should have applied when dealing with them.

    In Re: F Litigant in Person [2001] FamCA 348; (2001) FLC 93-072 one of the things that the court said was, in effect, that the court should assist unrepresented litigants in identifying the particulars of and proper basis for their claims. There is no indication that Carmody J took that course. In our view, having regard to the content of the husband's response the evidence that was before the trial judge and the submissions, his Honour's dealing with the issue was inadequate and amounts to appellable error." 

    • Para 91: New trial. Start over. 

    Report Card: Slight improvement. Only six major errors. 

    *   *   *

    ON June 17, Justinian reported that Carmody had been chastised by the FCA Full Court in CCD & AGMD (December 2006). 

    In a case concerning division of property, Errors embarked on an "extensive discussion of societal and moral values and principles relating to the alteration of property interests between spouses on marriage breakdown" - all of which went beyond established principles relating to property settlements.  

    HH also imported part of another of his judgments, delivered a year earlier, into his reasons that were the subject of the appeal. 

    The imported finding of fact related to the evidence in a completely different case and not to the evidence in the case at hand. 

    See: Carmody update  

    *   *   *

    SO much for Carmody's work as a Family Court judge (2003-2008). 

    How's he being going as Chief Beak? 

    Let's turn to two judgments to get an assessment, particularly on his favourite subject - no bail for bikies. 

    In Spence v Queensland Police Service, Carmody said this at para 41: 

    "Strictly speaking, the section 16(3A) conclusion is that pre-trial custody is unjustified. It is not a determination that bail has to be granted. However, in a practical sense, they probably amount to the same thing - compare DPP v Asmar (2005) VSC 487 and DPP v Harika (2007) VSC 435." 

    No sense can be made of this statement by reference to any context or with the surrounding paragraphs. 

    Also, the citation for Harika's case is wrong. The correct citation is [2001] VSC 237. The incorrect citation takes you to Benbrika, which concerned hearsay - nothing to do with bail. 

    People reading the judgment would be unable to follow the reasoning or properly see the source of the reasoning. 

    Less than a month after Spence, Carmody gave reasons for refusing bail in Van Tongeren v ODPP (Qld).  

    He a scissored and pasted the same paragraph, including the dud citation, from Spence into Van Tongeren, save for replacing two words. Here we are at para 112: 

    "Technically, the section 16(3A) conclusion is that pre-trial custody is unjustified. It is not a determination that bail has to be granted. However, in a practical sense, they probably amount to the same thing - compare DPP v Asmar (2005) VSC 487 and DPP v Harika (2007) VSC 435." 

    In both judgments he also refer to the explanatory memorandum for the Bail Act, in an attempt to figure out what the attorney general wants him to do. 

    This is part of the close working relationship he says a CJ should have with the government. 

    Here's the repeated slab:  

    "According to the Explanatory Memorandum, accompanying the amendments, section 16(3A) was introduced as part of a broader legislative reform package to deliver on the government’s commitment to crack down on criminal gangs and create a more hostile zero tolerance environment for them, within the state, by among other things, imposing stricter bail laws aimed at making it harder for the courts to release participants in a criminal organisation on bail, pending trial, regardless of the type of offence charged. 

    The amendments of which s 16(3A) is an integral part, strike '… illegal conduct of the criminal gang participant, communicate the wrongful and cowardly nature of their offending and promotes community safety and protection from these offenders' ... 

    ... section 16(3A) is intended to operate prospectively; that is to capture offenders who commit offences after it and the other amendments commenced on 17 October 2013. Although section 16(3A) admittedly impacts adversely on individual liberty its justification is said to be rooted in the need to deter concerning behaviour and to ensure the maintenance of civil authority and any encroachments on traditional civil rights is justified by the overall greater good and the fact that it is targeted only at individuals who offend, while enjoying the support and encouragement of the criminal group."  

    Report Card: Essay writing is poor. Should go to remedial class to get up to CJ speed. 

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