Chapter 20 - Relations with the judiciary
Report of the second
committee
The commissioners made separate reports to the committee, and these
were included in the committee’s report. The committee adopted the procedure of
having each of its members report findings and conclusions to it, and these
reports were also included in the committee’s report to the Senate (PP
271/1984).
Both commissioners found that the actions of Mr Justice Murphy had a
tendency to pervert the course of justice. One commissioner was satisfied
beyond reasonable doubt that the judge had the intention to do so, and that
therefore his conduct could amount to misbehaviour under both interpretations
of that term. The other commissioner confessed to some wavering on the matter
but was not satisfied beyond reasonable doubt that Mr Justice Murphy intended
to pervert the course of justice. He was of the view that there was conduct
which could amount to misbehaviour under the broad interpretation of that term.
Two members of the committee, one Labor senator and the Australian Democrat
senator, were not satisfied beyond reasonable doubt that Mr Justice Murphy intended to
pervert the course of justice, but found on the balance of probabilities that
he did so intend. One member, the Opposition senator, was satisfied beyond
reasonable doubt that the judge had attempted to pervert the course of justice.
Those three senators therefore found that there was conduct which could amount
to misbehaviour in accordance with both interpretations of the term. The other
Labor Party senator did not find on either standard of proof that the judge had
attempted to pervert the course of justice.
The committee’s
report was published while the Senate was not sitting, as authorised by a
Senate resolution, the House of Representatives having been dissolved for a
general election and the Senate having adjourned. Before the Senate met again,
in February 1985, the Director of Public Prosecutions had examined the evidence
and decided that Mr Justice Murphy should be prosecuted on two charges of
attempting to pervert the course of justice (the prosecution, of course, could
not make direct use of the committee’s evidence). When the Senate met and
received the report, senators of all parties agreed that they would refrain
from any further consideration of the matter until the criminal proceedings
against the judge were concluded.
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