Chief justice’s act ‘inappropriate’
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.