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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