Judgment of the Hon Justice Fryberg in R v. Brown

Last week, Supreme Court Justice Fryberg SCJ passed judgment in the matter of R v. Jarrod Kevin Anthony Brown, and in doing so expressed a number of views emphasising the importance of having an independent judiciary, and in doing criticised recent ABC media statements made by Premier Campbell Newman.

His Honour determined that further proceedings in this application to be stayed until further order, citing Premier Campbell Newman’s media conference on ABC, where the controversial Premier Campbell Newman says the courts should uphold community expectations:
“What we now need to see is those involved in the court system, the insiders in the legal system, start to realise that that’s what the community wants and they need to act accordingly to protect the Community.”

His Honour told Crown barrister Mr Fuller QC, that he was troubled by the broadcast, particularly by the remarks made by the Premier.
His Honour requested that Mr Fuller QC ascertain whether the report was substantively accurate; whether the Premier had withdrawn what was said in terms of the outcome of this case; and whether if he had not, the Court ought to proceed to hear the matter. The matter was adjourned so that those issues could be answered.

When the matter was re-heard, the Crown was unable to answer those queries satisfactorily, instead, and His Honour noted:
“This morning Mr Fuller informed the Court that the Crown would not be calling any evidence in relation to the first two issues, nor would it be making any submissions about them. He submitted that the report was ambiguous and that it would not be sound to conclude that the Premier was referring to Mr Brown’s case simply on the basis of the report. He submitted that the Crown had brought the application properly, that it should be heard and that the Premier’s comments could not have any impact on public perceptions of the case and posed no risk that an abuse of process could occur.”

His Honour discussed the importance of having an independent judiciary, and the importance of the public inferring the judiciary is independent.
“…most people know that in the absence of statutory authority, judges are not permitted to take community expectations into account in deciding cases. For a judge to do so would contravene his or her judicial oath.
There is to my mind a very real risk that members of the public would perceive a result in favour of the Crown as having been influenced by the Premier’s statements. Thereby the power of the executive arm of government would be enhanced and the independence of the judicial arm damaged. That damage would affect the institutional integrity of this Court.”

His Honour also stated:
“I am satisfied that any reasonable member of the community who became aware of the present application would conclude that the former statement referred to the decision of the subject of the present application for review (among others). In reaching this conclusion I take into account the fact that the Crown (which in this context is simply another name for the State of Queensland) has had ample time to obtain evidence of the context and timing of the Premier’s statements and has refused to do so. Those matters are matters which are peculiarly within the knowledge of the executive government and one may comfortably infer that any evidence called in relation to them would not assist the Crown case. I am further satisfied that a reasonable member of the community would infer from the terms of the Premier’s statements that he wished the courts to refuse to grant Mr Brown bail.”

He concluded that that the public interest is best served by ordering a stay until further order.
In doing so, His Honour recorded his “disappointment at the refusal of the Crown to call evidence or make submissions on the first two aspects of the matter. Lawyers are officers of the Court and owe it certain duties, and this is particularly true in the case of the Crown. It holds itself out as a model litigant. Its refusal to respond to the Court’s request for assistance was most unfortunate, particularly in circumstances where instructions were being given by the independent Director of Public Prosecutions.”

A full copy of His Honour’s decision can be accessed via this link, and in our view, the judgment provides considerable reassurance that our judiciary will protect its independence, which ultimately is the cornerstone of our democracy and system of justice.

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