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Chapter 20 - Relations with the judiciary
The rights of the accused judge
The first Senate committee was not
restrained from summoning Mr Justice Murphy, but did not do
so. Instead it invited him to give evidence and received a written statement in
response. The second Senate
committee was explicitly denied the power to compel the judge to give evidence,
but was required to invite him to do so after all other evidence had been
heard. This invitation was issued and declined, and a statement of reasons for
his not giving evidence was offered. The Parliamentary
Commission of Inquiry was empowered to require the judge to give evidence, but
only where it formed the opinion that it had before it evidence of misbehaviour
within the meaning of section 72 sufficient to require an answer. Presumably
all of these bodies could have summoned other judges if that had been
necessary.
Mr Justice Murphy, in submissions made on his behalf to the first Senate
committee, claimed that in any inquiry and hearing of evidence under section 72
the judge in question should be given all the rights of an accused person in a
criminal trial, particularly the right not to be compelled to give evidence.
This claim was virtually acceded to by the Senate in establishing the second
select committee. Before that committee the judge was treated as an accused in
a criminal trial, with one significant exception, namely, that if he chose to
give evidence he could be cross‑examined by counsel representing other
witnesses in relation to matters affecting the interests of those witnesses as
well as by counsel assisting the committee, who performed the task imposed upon
a prosecutor in a trial. Mr Justice Murphy objected to this feature of the committee, but it was
deliberately provided by the Senate for the protection of witnesses before the
committee. Apart from this, the proceedings of the committee closely followed
those of a court in a criminal trial.
It may be argued that a judge accused of misbehaviour should not
enjoy all the rights of an accused in a criminal matter. The rights to have
specific charges or allegations formulated, to be present at the hearing of
evidence and to cross‑examine witnesses may not be disputed, and were
granted in respect of the second Senate committee and the Parliamentary
Commission of Inquiry. The right not to be compelled to give evidence and to
make an unsworn non‑examinable statement, which Mr Justice Murphy, in
effect, exercised before the second Senate committee, is more controversial and
has been questioned even in relation to persons accused of offences. It may
well be contended that, as a holder of high office in whom the public must have
confidence, a judge should be obliged to answer any case reasonably made
against him. This view seems to have been taken by the government in drafting
the Parliamentary Commission of Inquiry Act and inserting the provision
concerning the giving of evidence by the judge, to which reference has already
been made.
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