Chief jus­tice’s act ‘in­ap­pro­pri­ate’

The Weekend Australian - - THE NATION - NI­COLA BERKOVIC

For­mer Vic­to­rian chief jus­tice Mar­i­lyn War­ren’s “back-cor­ri­dor com­mu­ni­ca­tion” to the state’s top pros­e­cu­tor about a High Court ap­peal against a “man­i­festly in­ad­e­quate sen­tence” was “in­ap­pro­pri­ate” and gave the ap­pear­ance of an at­tempt to in­ter­fere with an ap­peal, prom­i­nent le­gal fig­ures say.

Re­tired Mel­bourne crim­i­nal law silk Peter Faris QC said Ms War­ren’s de­mand that Di­rec­tor of Pub­lic Pros­e­cu­tions John Cham­pion SC try to sus­pend a High Court ap­peal while is­sues between them were re­solved was “gen­uinely shock­ing”.

Univer­sity of Mel­bourne pro­fes­sor of crim­i­nal law Jeremy Gans said it was “prob­lem­atic”.

The High Court on Wed­nes­day ruled that a 3½-year jail sen­tence handed to a man who sex­u­ally abused his step­daugh­ter, re­sult­ing in her be­com­ing preg­nant at 13, was “anoma­lously low’’.

The de­ci­sion, which found the Vic­to­rian Court of Ap­peal had put too much em­pha­sis on en­sur­ing con­sis­tency in sen­tences rather than on set­ting a just pun­ish­ment, is ex­pected to have im­pli­ca­tions for sen­tenc­ing for a wide range of of­fences in Vic­to­ria, in­clud­ing ter­ror­ism and drug traf­fick­ing.

The Aus­tralian this week re­vealed that as chief jus­tice, Ms War­ren wrote three let­ters to the DPP ac­cus­ing chief crown pros­e­cu­tor Gavin Sil­bert SC of mis­lead­ing the High Court and de­manded the DPP send fur­ther in­for­ma­tion to the High Court af­ter ar­gu­ments had closed.

She al­leged this was be­cause the DPP had not pre­vi­ously raised le­gal ques­tions about the Court of Ap­peal’s ap­proach to sen­tenc­ing — although it was bound in the court be­low by the doc­trine of prece­dent — and be­cause Mr Sil­bert had “falsely” sug­gested the court pre­judged the sen­tenc­ing ap­peal.

The Vic­to­rian Bar’s ethics com­mit­tee ruled the DPP would not com­mit an eth­i­cal of­fence if it did not com­ply with then chief jus­tice War­ren’s de­mands.

Mr Faris said he thought it in­ap­pro­pri­ate for Ms War­ren to send the let­ters to the DPP while the High Court was con­sid­er­ing the ap­peal. “It’s truly shock­ing that we’ve got this back-cor­ri­dor com­mu­ni­ca­tion between the arm of the ju­di­ciary and the arm of the ex­ec­u­tive in a crim­i­nal law mat­ter,” he said.

“I think it un­doubt­edly raises ques­tions about her con­duct.”

Pro­fes­sor Gans said he be­lieved the chief jus­tice’s let­ters were “prob­lem­atic”, and on his blog la­belled them “ap­palling”. He said courts needed to “stay out” of ap­peals from their judg­ments.

He said he did not be­lieve the for­mer chief jus­tice’s let­ters were in con­tempt of the High Court.

How­ever, he said it was prob­lem­atic that she had urged the DPP to ap­proach the High Court and seemed to make an im­plicit threat that if they didn’t “toe the line” she would po­ten­tially use some sort of process against them.

Mr Faris said if the chief jus­tice had con­cerns that Mr Sil­bert had mis­led the High Court, the ap­pro­pri­ate course would have been to brief coun­sel to ap­pear in open court to raise those con­cerns.

Pro­fes­sor Gans said Ms War­ren could have re­ferred the DPP or the chief crown pros­e­cu­tor to the Bar’s ethics com­mit­tee.

Re­tired NSW Court of Ap­peal judge An­thony Whealy QC yes­ter­day said the for­mer chief jus­tice had been “ill ad­vised” to send the let­ters to the DPP rais­ing con­cerns about the way the case had been ar­gued. “You would have to say it’s very un­usual; it’s not a good prac­tice,” he said.

How­ever, he said he did not think Ms War­ren had breached any le­gal eth­i­cal obli­ga­tion by writ­ing to the DPP, who has an in­de­pen­dent statu­tory role to con­duct pub­lic pros­e­cu­tions, while a case was still un­der con­sid­er­a­tion.

War­ren

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