Brisbane field agents keep an eye on the work of the learned Chief Justice of Queensland ... Knock About's sentencing error ... Blunders in contract land ... No complaints from lawyers, who are kept furiously busy with stay applications
Carmody at work
Elvina Fay Illin had been addicted to marijuana since she was 15. She is the mother of eight children and to aid in her addiction, her husband engaged in street-level trafficking of that noxious weed.
She helped him and was charged with aiding him as a trafficker. They gained no monetary benefit from that dealing, only access to cheaper weed for her.
After she was charged, the matter languished for three years. During that time, the crown accepted, she had rehabilitated herself and weened herself off the weed, all the while caring for the children.
The learned Chief Justice of Queensland, Tim Carmody, sentenced her to two years imprisonment to be suspended after serving two months. Her husband was sentenced to three years to serve six months. Consequently, the children were left bereft of any parent.
Elvina Illin applied for bail pending the appeal against her sentence. Obviously, if she did not get bail it was likely that she would serve most or all of her two months before the appeal was heard, rendering the appeal, in the time honoured expression, nugatory.
The chief justice heard the application for bail and - refused it.
Legal Aid dawdled for a month and then lodged an appeal. The Court of Appeal brought it on swiftly; it was heard on October 24, within days of the appeal being lodged. On that same day, the court took the extraordinary step of allowing the appeal immediately with reasons to follow later.
Ms Illin was released and went back to her children.
The Court of Appeal published its reasons three weeks later. It found that the learned Chief Justice had "inadvertently overlooked" the two most compelling factors in favour of the appellant not being imprisoned:
• That over the three years since she was charged she had "concentrated on rebuilding her life and that she and [her husband] had undertaken rehabilitation and counselling to reform themselves"; and
• That she "gave up cannabis upon her arrest and did not use it during the three years up to her sentence hearing" - matters which the crown had accepted as true at the sentence hearing before the chief justice.
The Court of Appeal said that the chief justice's "omission to take the delay and the rehabilitation of [Ms Illin] into account was an error of principle in the exercise of the sentencing discretion".
The chief justice was also "in error in holding" that Ms Illin's sentence should have parity with sentences imposed upon other dealers, who were working with the same "wholesaler", because there was no suggestion that she was a co-offender with any of those people, who she did not know.
In addition, his taking into account the sentences imposed on other offenders was in error because ...
"None of them involved an offender whose circumstances could be regarded as analogous with [Ms Illin's] circumstances that she was charged only as an aider in street level trafficking over three months, the purpose of her offending was to feed her habit or addiction, she had given up using cannabis for three years after her arrest and before her sentence, and her confinement in custody would result in significant or exceptional hardship to her eight young children."
In short, the learned chief justice got absolutely everything wrong in what he would claim is his field of expertise - criminal law.
A law student submitting his reasons would be failed outright. Ms Illin was unnecessarily in prison from September 15 until October 24 because Campbell Newman appointed a Knock About bloke to the Supreme Court.
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In the meantime, in a contract case called Kumar Hospitality Pty Ltd v Sunstate Fast Foods Pty Ltd, the applicant appealed against a decision of Chief Justice Carmody on the grounds, among others, that:
"The learned chief justice failed to give the appellant an opportunity to be heard in opposition to the respondent's application [and] the learned chief justice erred in persisting in his failure to give the appellant an opportunity to be heard despite the appellant, by its solicitor, expressly directing the chief justice's attention to that failure after his Honour had given ex tempore reasons for judgment against the appellant and before judgement had been entered."
It seems that the applicant's lawyer had raised a preliminary point at the beginning of the hearing about the competence of the application brought by her opponent. The preliminary issue was whether the matter should proceed by by of statement of claim rather than originating application.
The learned CJ gave judgment in favour of her opponent without determining that point or indicating what he was doing or, its seems, without knowing what he was doing. The transcript goes like this after the learned Chief Justice gave judgment against the appellant:
Appellant's Lawyer: Can I just say to you, your Honour, that I didn't realise we'd morphed into the application proper. I thought we were still deciding the preliminary matter when we were discussing because I certainly would've given a more stern defence than the one I gave, but, in any event, your Honour's made ...
CJ: Sorry. What ...
Appellant's Lawyer: Well, your Honour, I indicated to you at the outset that I was making a preliminary application and I didn't hear you rule on it [and] that your were prepared to hear the entire matter.
CJ: What was your preliminary application?
Appellant's Lawyer: That the matter should've proceeded by way of claim and statement of claim.
CJ: Well, it ...
Appellant's Lawyer: That 's all right. I'm just ...
CJ: It's implied that I was against you on the rule. I think it's sufficient and appropriate that the matter be dealt with on application.
Not surprisingly, given the chief justice's forgetfulness and confusion, another ground of appeal is that:
"The Learned Chief Justice failed to apprehend that he had before him an application for an order that the proceeding proceed by way of claim which he had to decide [and] the learned Chief Justice failed to give reasons for his failure to decide the said application or for his decision to permit the application to proceed as constituted."
Justice John Muir also had a few words to say about it.
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His Honour has priors for this kind of offence.
In Brodie v Brodie the Full Court of the Family Court found that Justice Carmody's (as the learned Chief Justice then was) reasons for judgment ...
"fail to disclose any consideration of the wife's entitlements under the s.79 order and consideration of her reasonable needs ... Further, there is no reasoning demonstrated by the trial judge as to how he quantified the sum of $40,000 ... We are satisfied these matters are errors of principle."
In Horleck v Horleck, another Family Court case in which Justice Carmody forgot what it was he had to decide, the Full Court said:
"Given the confusion about issues litigated before Carmody J in January 2008 and the absence of findings both about significant issues of fact and in relation to applications for orders which were before him, the only available course is to remit the applications which were before Carmody J."
The Queensland Court of Appeal now is being kept busy by people seeking a stay of orders made by the learned Chief Justice, pending appeal.
Brisbane lawyers aren't complaining - these features of the chief justice's style generate work where there was none before.