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Judges
10 December, 2009  
The Great Wall

Apprehended bias application after judge runs off at the mouth in public … Qld’s former chief barman sent to the stipes after trying to protect dignity of District Court judge Clive Wall


It can be a roller coaster ride in Air Commodore Clive Wall’s court in Southport.

imageDan O’Gorman SC, instructed by his brother Terry, was appearing on November 20 for Koblan Mana Almotared on a charge of rape.

He asked Judge Wall (pic) to remove himself from the case on the ground of apprehended bias.

The accused is a Saudi national who was studying pharmacy at Griffith University.

His studies were being funded by the Saudi government.

O’Gorman’s point was that on April 23 last year Judge Wall was quoted in The Australian as saying:

“They [the Saudis] are using the university as an agent to promote their bigoted brand of Islam. I’m concerned that a country which doesn’t itself tolerate freedom of religion is promoting its own quite bigoted version here with the acquiescence of our learning institutions.”

Wall was also reported as saying that it would be clear what brand of Islam the university would be teaching through its Saudi-funded Islamic Research Unit:

“It would have to be Wahabism, similar to many of the madrassas in Pakistan who receive funding from Saudi Arabia.”

The article went on to claim that three of the suicide bombers responsible for the 2005 London bombings – which killed 56 people – attended Pakistani madrassas, which were considered indoctrination centres for Islamic extremism.

The judge’s comments were reported widely in other media.

Dan O’Gorman said:

“The basis of the application is that … the applicant and/or the public would entertain a reasonable apprehension that your Honour might not bring an unprejudiced and impartial mind to a determination of the issues involved in the trial.”

Wall DCJ humphed, saying that he had not criticised the Saudi government for paying students to undertake pharmacy courses:

“Does it follow that if I criticise the Australian government I could never deal with a matter involving the Australian government or its funding of an individual before me?”

The judge insisted that all he was criticising was the funding by the Saudi government of the Islamic Research Unit at the university.

On and on the argument went for 26-pages of transcript, then Wall said he was concerned that the matter was first raised with him by a private communication “via his associate”.

imageThis email communication came from Tony Glynn SC, with whom instructing solicitor Terry O’Gorman had been conferring. Between 2001 and 2003 Glynn (pic) was Queensland’s chief barman.

The missive had not been sent to the Crown, but Glynn made it clear that would be done if the judge thought that was appropriate.

The judge’s associate advised by email that the matter has to be the subject of an open court appearance.

Wall was terribly distressed about the whole thing, declaring it to be “a grossly improper communication from one party”.

He cited rule 57 of the bar n’ grill rules, which says one side is not meant to communicate with the court without telling the other side.

The judge thought there had possibly been a breach of that rule and that he had been asked to rearrange the list in secret. He said:

“I think the matter should be referred to the Legal Services Commissioner.”

Terry O’Gorman tried to assist:

“Your Honour, before this is taken any further perhaps Mr Glynn should be given an opportunity to be heard on this matter. He was not aware that this issue … ”

HH: Well he’ll be given an opportunity to be heard on the matter by – well the Legal – the Legal Practise – sorry, the Legal Services Commissioner, who will not doubt refer the matter to the Bar Association and an investigation will be conducted by the professional conduct committee of the bar association.

I mean the fact of the matter is that this letter was written about a matter of substance in connection with current proceedings and it is apparently in breach of rule 57.

T. O’Gorman: Your Honour, the position is clearly this. Mr Glynn had a discussion with me on Sunday of last week … He and I had a detailed discussion as to the proper way of doing this. He informed me that he, in one recent instance with a Supreme Court judge, and another sought in another instance with a Supreme Court judge felt if imageappropriate to write a letter of this sort to give the judge an opportunity to consider the matter and avoid the embarrassment of an application in open court. This was done to protect your Honour’s dignity.

HH: I – I am –

T. O’Gorman: I haven’t finished my submission.

HH: Look I –

T. O’Gorman: No, I haven’t finished my submission. Let me finish.

HH: Well – well, I would like to say something.

T. O’Gorman: Well you – you can have your say and I have mine –

HH: All right.

T. O’Gorman: – - on behalf of Mr Glynn. I’m not going to see Mr Glynn’s reputation traduced here. The position is simple –

HH: Well that will be – -

T. O’Gorman: No, you will let me finish.

HH: No, no I won’t. That will be a matter – -

T. O’Gorman: I – I will finish.

HH: That will be a matter for – - –

T. O’Gorman: Mr Glynn and I had a discussion on Sunday over a lengthy period of time. We looked at the imageappropriate way of doing this. Mr Glynn took the view that he wanted toi avoid embarrassment to your Honour by bringing this matter in open court. I said to Mr Glynn: ‘That appears to me to be appropriate.’ He went on to say that he himself with a Supreme – a senior Supreme Court judge had taken that step in the past in an effort to avoid embarrassment and that judge had withdrawn from the matter without any further communication…

(Pic: Terry O’Gorman)

HH: Look, I propose to refer the matter to the – to the Legal Services Commissioner and having decided to do that it is probably not appropriate that I preside at the trial. Therefore without finding it necessary to accede to your application that I disqualify myself on the basis that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question – questions I have to decide at the trial.

I think it would be fairer to the accused in view of the reference of his counsel to the Legal Services Commissioner that I not preside at the trial of his client.

* * *

In September, The Great Wall was in the news over a squabble with Chief Judge Patsy Wolfe (pic) about his expenses.

He claimed $450 a night for a five night stay at the Stamford Plaza in Brisbane when the going entitlement for accommodation while on circuit was $210 a night.

Having paid the bill for the “junior suite” Wall sought reimbursement, only to be knocked back by Patsy at head office.

See the chief judge’s letter to Wall

imageWall complained that to reject his claim was unfair because he had already paid the tab.

Wolfe (pic) pointed out that reasonable expenses had been discussed at two previous Dizzo judges’ conferences.

According to a report in The Curious Snail an investigation by the Justice Department found that deluxe rooms at the Stamford Hotel for $255 a night were available to Judge Wall.

But the junior suite had a separate dressing room and deluxe bathroom, which “provides comfort and atmosphere of refined luxury”.

“Also included in the junior suite are complimentary plunger coffee, gourmet cookies and Aveda bath products.”

Wolfe said he could be reimbursed $250 a night.

* * *

Clive Wall is known as one of the toughest judges in Queensland, but we’ve discovered one occasion when he was all heart.

Here’s a bit of transcript from proceedings before him in Southport in July last year.

Ms Wilson (prosecutor): Your Honour, there’s an indictment before the court charging Gizelle Krisztina Vig and Carl Lloyd Mills with one count of doing an indecent act. I ask that they be arraigned on this indictment.

HH: And what’s the indecent act?

Wilson: Sexual intercourse in a public place, your Honour.

HH: Is that an indecent act?

Wilson: Yes, your Honour.

HH: Why? Just because it’s in a public place? I mean I would’ve thought that the offence requires that – the act to be indecent per se, and it then is found to be committed in a public place. I wouldn’t have thought intercourse per se is an indecent act.

Christopher Rosser (for the accused): If I can assist? It was seen by police, your Honour.

HH: I mean if anyone shouldn’t be offended by it, you’d think it’d be the police. I mean – but anyway, just explain to me how you create an act of consensual intercourse into an indecent act, just because it’s in a public place, or in a place to which the public was permitted to have access. I mean, where did this take place?

[snip]

Wilson: They were on the school oval, your Honour, and one of the teachers saw that students had gone – there were some people on the school oval. They – the teacher said something to the police. They went out and had a look and found – -

HH: So there were two on the school oval, in darkness?

Wilson: Yes, your Honour, I assume –

HH: Having intercourse.

Wilson: Yes, your Honour.

HH: And the police go and look at – -

Wilson: The police found them, saw what they were doing, and approached them and then they stopped, and imagethey were arrested.

HH: Well, I mean, there but for the grace of God go a lot of people.

Wilson: Sorry, your Honour?

HH: There but for the grace of God go a lot of people.

Wilson: Yes, your Honour.

HH: I mean this is childish, isn’t it, the prosecution? I mean the only people who are offended are the police, and they wouldn’t really be offended. Well, I’m not sure that intercourse is an indecent act, anyway, otherwise everybody would be committing an indecent act. Every married couple would be committing an indecent act. I mean, haven’t you got something else?

Wilson: No, your Honour.

[snip]

HH: Well, I don’t think having intercourse in the middle of the oval in the middle of the night is offensive or unbecoming to common propriety, or whatever it is. I mean surely you’ve got – I mean don’t you have something of being in an oval without permission? I mean this is going to have consequences for people … I mean criminal history for knocking each other off in the middle of the night in an oval. I mean – -

See full transcript of proceedings

 
 

Reader Comments

Posted by: Malcolm Weatherup
Date: January 11, 2010, 12:57 am

The Great Wall was indeed `great' for this court roundsman during his time on the bench in Townsville. A few years back, there was a sentencing of a young bloke for attempting to have sex with a dog. The dog lover was spotted by neighbours sitting on their back steps. During the sentencing, the prosecutor said the lad was seen lifting the animal's tail, which prompted Judge Wall to interject with surprise `The dog was a female wasn't it?' And when the Crown said they had been unable to find any comparatives to assist the judge in sentencing, HH flashed his well-known naughty schoolboy grin and asked `What, not even some from New Zealand?' C.F Wall himself always claimed he was working at the coalface, while the appeals courts just tinkered. He was much admired in these parts, and much missed by those questing for a quoteable quote outside the usual hidebound language of the judicary (how often do you hear `knocked off' in the old-fashioned sexual sense?) If they don't want you down there, Clive, we'll take you back any day.