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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