SUMMARY: Submission to the Australian Governor-General to remove Justice Susan Crennan from the High Court under S72(ii) of the Australian Constitution due to her failure to excuse herself from the hearing of Magill v Magill, a family law case on paternity and deception.

This request is made in regard to a clear conflict of interest given that Justice Crennan had a similar past to the respondent in Magill v Magill, whereby she had also given birth to two children by a man with whom she was not living with, whilst allowing her then de facto to believe that he was the father of the children.

Without Prejudice

The Governor General of Australia
Her Excellency Ms Quentin Bryce AC
Dunrossil Drive
Yarralumla ACT 2600

19^th Feb 2009

Re: Justice Susan Crennan (aka Susan Walsh)

Your Excellency,

I refer to my letter of 8 December 2008, to the Honourable Justice Susan Crennan, a copy of which was forwarded to you.

That letter relates specifically to (Magill v Magill 2006 [HCA] 51; (2006) 231 ALR 277; (2006) 81 ALJR 254 (9 November 2006)

This matter was heard by the High Court compromising Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ)

I wish to make a number of submissions outlining crucial reasons as to why Justice Crennan ought to have excused herself from sitting as a member of the court hearing (Magill v Magill 2006 [HCA] 51; (2006) 231 ALR 277; (2006) 81 ALJR 254 (9 November 2006) on the grounds of:

a)        Duty to disclose that she was in a similar position to that of Meredith Magill in that Justice Crennan (nee Walsh) gave birth to two children fathered by Michael Crennan whilst living in a de-facto relationship with another man, who believed the two children were his.

b)        Conflict of interest in that there were remarkable similarities in the case before the High Court (Magill v Magill 2006 [HCA] 51; (2006) 231 ALR 277; (2006) 81 ALJR 254 (9 November 2006) and that of Justice Crennan (nee Walsh) as she then was.

This scenario is aptly described by Callinan J (retired) when he accused fellow judges of carrying “personal baggage” where he stated in the Courier Mail on 23 November, 2007, “…when I was at the bar, I sometimes thought, and not just in constitutional cases, that judges were not always candid about their real reasons for deciding in a case as they might have been”.

I submit that both Meredith Magill and Justice Susan Crennan have closely parallel historical pasts in that Justice Crennan (nee Walsh) had similar if not identical pasts in that that she had given birth to two children by a man with whom she was not domiciled whilst allowing her then de facto to believe that he was the father of the children.

I submit that the power rests with you to remove a Justice of the High Court and I respectfully request that you sanction the removal of Justice Susan Crennan under S72(ii) of the Australian Constitution and that the matter be placed before both the Upper and Lower Houses of Parliament.

Under the Separation of Powers, you as the Governor General have the power under S72 of the Australian Constitution which states:

“The Justices of the High Court and of the other courts created by the Parliament:

ii.        Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

To qualify (a and (b above I shall refer exclusively to the Guide to Judicial Conduct 2^nd Edition March 2007, Published for; The Council of Chief Justices of Australia by, The Australasian Institute of Judicial Administration Incorporated

Thomas (Judicial Ethics in Australia, 2nd ed (1997) at 9):

No one doubts that judges are expected to behave according to certain standards both in and out of court. Are these mere expectations of voluntary decency to be exercised on a personal level, or are they expectations that a certain standard of conduct needs to be observed by a particular professional group in the interests of itself and the community?

In this case, Justice Crennan has failed to maintain “a certain standard of conduct” expected by both her professional peers and the community in general by failing to disclose a possible conflict of interest.

The Guidelines further state that, “We (the Judiciary) form a particular group in the community. We comprise a select part of an honourable profession. We are entrusted, day after day, with the exercise of considerable power. Its exercise has dramatic effects upon the lives and fortunes of those who come before us. Citizens cannot be sure that they or their fortunes will not some day depend upon our judgment. They will not wish such power to be reposed in anyone whose honesty, ability or personal standards are questionable. It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations”.

In this instance the professional and “personal standards” of Justice Crennan “are questionable” through her failure to recluse herself from  Magill v Magill 2006 [HCA] 51; (2006) 231 ALR 277; (2006) 81 ALJR 254 (9 November 2006. Therefore as these standards (have) not effectively (been) maintained, public confidence in the independence and trustworthiness of judges will (be) erode(d) and the administration of justice will be undermined. (Emphasis added) Guide to Judicial Conduct 2^nd Edition March 2007, Published for; The Council of Chief Justices of Australia by, The Australasian Institute of Judicial Administration Incorporated (page 13)

This then raises the issue of impartiality as the Judicial Guidelines state: “…there is probably no judicial attribute on which the community puts more weight than impartiality. It is the central theme of the judicial oath of office”.

The question which arises is how could Justice Crennan be impartial when she had conducted herself in a similarly questionable manner as Meredith Magill. That is that Justice Crennan (nee Walsh) gave birth to two children, who it appears, were fathered by a man other than the one in which she was living with; the de facto partner of Justice Crennan ( neeWalsh), believing he was the father of the said children. That the said de facto partner cared for and lived with the said Justice Crennan and the children until such time as Justice Crennan left the said de facto partner, taking the children with her. As in Magill v Magill, Meredith Magill with Mr. Derek Rowe and Justice Susan Crennan (aka Susan Walsh) with Mr. Michael Crennan)

Therefore, “the more difficult and often controversial area concerns the judge’s extra-judicial activities, which may give rise to a challenge to impartiality by reason of apprehended:”

The three basic areas of concern and evident are:

a)        Bias: I have already established the issue for bias in the argument of giving birth to another’s child whilst on a relationship with another party;

b)        Conflict of interest has been established in the similarity of the cases and the personal issues involved; and

c)        Prejudgment of the issue is possible to the above. Ibid pages 14 - 15

The Guide to Judicial Conduct further states under the heading of Guiding Principles that the principles applicable to judicial conduct have three main objectives:

To:

a)        “Uphold public confidence in the administration of justice”

 In this instance the general public’s confidence in the administration of justice has been seriously undermined.

This is evident from comments made by the various forms of media both nationally and internationally.

b)        To enhance public respect for the institution of the judiciary;

If public perception of both the Judicial and Parliamentary systems are found wanting, then it is submitted, there needs to be a re-assessment of the merit and value which Justice Susan Crennan brings to her role as a member of the judiciary.

In the words of an anonymous critic “One of irony's greatest accomplishments is that one cannot punish the wrongdoing of another without committing a wrongdoing himself”. I submit that Justice Crennan (nee Walsh) conducted herself in a manner closely resembling that of Meredith Magill.  

c)        “To protect the reputation of individual judicial officers and of the judiciary”

 I would submit that in sitting in the Magill v Magill 2006 [HCA] 51; (2006) 231 ALR 277; (2006) 81 ALJR 254 (9 November 2006)  Justice Crennan’s reputation was diminished in the eyes of her peers and professional colleagues. It is further submitted, that there are a number of persons within the general public and the media who are aware of the many facts referred to herein.

I would like to quote William Shakespeare from “ Measure for Measure when he writes,  “Thieves for their robbery have authority when judges steal themselves”.

I would submit that Liam Magill’s dignity and a right to justice have been stolen as a result of Justice Crennan’s failure to excuse herself from the Magill hearing.

I respectfully submit, that one inference which should be drawn from Justice Crennan’s failure to excuse herself from the hearing, is, that a more favourable judgment would have resulted.

The Guide to Judicial Conduct 2006 further states that “any course of conduct that has the potential to put these objectives at risk must therefore be very carefully considered and, as far as possible, avoided. There are three basic principles against which judicial conduct should be tested to ensure compliance with the stated objectives.

These are:

a)        Impartiality;

Could Justice Crennan have been impartial in considering the evidence presented to the court in Magill v Magill? In the words of Abraham Lincoln a “hypocrite (is) the man (women), who murdered both his (her) parents... pleaded for mercy on the grounds that he(she) was an orphan” come to mind.  

b)        Judicial independence;

It is submitted, that it is a matter for conjecture as to whether Justice Crennan’s ability to have brought judicial independence to bear in Magill v Magill would have been creditably possible, given Justice Crennan’s history and the history as presented to the court in Magill v Magill .

c)        Integrity and personal behaviour.

It is submitted, that Justice Crennan’s integrity must be seen to be questioned in that she failed to excuse herself from the proceedings.

Your Excellency the guidelines for self disqualification from a matter are stated in Guide to Judicial Conduct 2^nd Edition March 2007, and Justice Crennan should have availed herself to this document. These guidelines are:

(a)        If a judge considers that disqualification is required, the judge should so decide. Prior consultation with judicial colleagues is permissible and may be helpful in reaching such a decision. The decision should be made at the earliest opportunity.

In the instance of Magill v Magill and Justice Crennan’s prior activities, the question must be asked as to whether the other Justices’ and in particular the Chief Justice were made alert to this conflict of interest.

(b) In cases of uncertainty where the judge is aware of circumstances that may warrant disqualification, the judge should raise the matter at the earliest opportunity with:

The head of the jurisdiction;

The person in charge of listing;

The parties or their legal advisers;

not necessarily personally, but using the court's usual methods of communication.

The question must now be asked if Justice Crennan has followed the guidelines as stated in:

              (b) above.

(c) Disqualification is for the judge to decide in the light of any objection, but trivial objections are to be discouraged.

Neither bias nor conflict of interest in Magill v Magill would have been considered trivial by Liam Magill in this instance and due process should have been followed as a matter of protocol.

(d) It will generally be appropriate in cases of uncertainty for the judge to hear submissions on behalf of the parties and that should be done in open court.

In this instance Justice Crennan had an obligation to the Court and the Magill legal team to discuss potential bias and conflict of interest. One must now ask why this did not occur.

(e) The judge should be mindful of circumstances that might not be known to the parties but might require the judge not to sit, and of the possibility of the parties raising relevant matters of which the judge may not be aware. It is not appropriate for a judge to be questioned by parties or their advisers.

The Magill legal team was not aware of this information prior to the High Court hearing and Justice Crennan obviously took it open herself not to divulge that there was the strong possibility of bias or conflict of interest.

(f) If the judge decides to sit, the reasons for that decision should be recorded in open court. So should the disclosure of all relevant circumstances.

Again Court records indicate that there has been no disclosure of possible bias and conflict of interest by Justice Crennan.

This then raises the vexing issue of Reserved Judgement. Guide to Judicial Conduct which states:

A judge should aim to prepare and deliver a reserved judgment as soon as possible, but it sometimes happens that circumstances lead to an unacceptable accumulation of reserved judgments. In that event, a judge should speak to the head of the jurisdiction about the situation before the delay has become a problem

In the instance of Magill v Magill there was a time lag of seven (7) months between hearing and judgement. This was neither a desirable nor an appropriate time frame.

In many High Court Decisions, Justices work together in the decision making process. In other words, it is critical that the process be, to a degree a collaborative one. It is however conceded, that the final judgment handed down by each individual may vary.

As there were distinct similarities between Justice Crennan’s past and the evidence presented in Magill v Magill, there may have been conscious or unconscious bias which manifested during discussions by Justice Crennan with other members of the Court during the collaborative process.

Your Excellency I respectfully and formally request as per the Constitution, that Justice Crennan be removed from the Bench of the High Court and I would also respectfully and formally request that Your Excellency recommend to the Government of the day, that the Judgment in Magill v Magill be rescinded and the matter be set down for a new hearing at the Government’s expense.

Yours truly,

Cheryl King

P.O.Box 685 Deepdene

Victoria 3103 Ph 0416 031 145

cc:

Prime Minister of Australia, The Hon Kevin Rudd MP

Leader of the Opposition, The Hon Malcolm Turnbull MP

Federal Attorney-General, The Hon Robert McClelland MP

Shadow Attorney-General, Senator, The Hon George Brandis SC

All Justices of the High Court of Australia: Chief Justice French, Justice Gummow, Justice Bell, Justice Hayne, Justice Heydon, Justice Crennan, Justice Keifel

1 Found at www.acu.edu/au/graduate_association/in-honourable-company/justice-susan-cr . Sourced 5 December 2008

2 Found at www.abc.net.au/pm/content/205/s1464695.htm Sourced 5 December 2008

3 Found at www.hreoc.gov.au/about/media/speeches/speeches_president/2008/2008026_F . Sourced 5 December 2008

4 Found at www.abc.net.au/pm/content/205/s1464695.htm Sourced 5 December 2008

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