Bercove, Abraham v Hermes, C.L
[1983] FCA 170
•29 JULY 1983
And: C.L. HERMES CHAIRMAN, A.C.C. MENZIES and J.T. HOWARD MEMBERS CONSTITUTING
THE DISCIPLINARY APPEAL BOARD
And: PUBLIC SERVICE BOARD
And: THE COMMONWEALTH OF AUSTRALIA (1983) 67 FLR 186
No. W.A.G. 12 of 1983
Administrative Law - Evidence - Statutes
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)
Administrative Law - judicial review - public servant - improper conduct - evidence given in camera before Royal Commission - evidence self-incriminating - use of evidence in subsequent disciplinary proceedings before Disciplinary Appeal Board - whether denial of natural justice - whether error of law to admit evidence - whether Board a court for purposes of Royal Commissions Act
Administrative Decisions (Judicial Review Act) 1977 ss. 3(3), 5(1)
Public Service Act 1922, ss. 55, 61, 62(6) (b)
Royal Commissions Act 1902, ss. 6, 6DD
Administrative Law - Disciplinary Appeal Board - Charge of improper conduct - Evidence given in camera to Royal Commission admitted in evidence by Board - Evidence self-incriminating - Whether Board erred in admitting that evidence - Whether Board breached rules of natural justice - Evidence wrongfully obtained - Whether evidence wrongfully obtained admissible - Improper conduct - Admissibility of opinion evidence - Public Service Act 1922 (Cth), ss 47, 55, 56, 61, 62, 63D, 63E(12) - Public Service Amendment Act 1978 (Cth), ss 20, 49 - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(3), 5(1) - Police Act 1892 (W.A.), s. 76(1) - Royal Commissions Act 1902 (Cth), ss 6, 6DD - Acts Interpretation Act 1901 (Cth), s. 15AA.
Evidence - Administrative law - Disciplinary Appeal Board - Charge of improper conduct - Admissibility of evidence - Board admits self-incriminating evidence given in camera to Royal Commission - Evidence wrongfully obtained - Opinion evidence - Whether Board erred in admitting such evidence - Public Service Act 1922 (Cth), ss 47, 55, 56, 61, 62, 63D, 63E(12) - Public Service Amendment Act 1978 - (Cth), ss 20, 49 - Police Act 1892 (W.A.), s. 76(1) - Royal Commissions Act 1902 (Cth), ss 6, 6DD - Acts Interpretation Act 1901 (Cth), s. 15AA.
Statutes - Interpretation - "Improper conduct" - Public Service Act 1922 (Cth), ss 47, 55(e).
The appellant was a senior legal officer in the office of the Commonwealth Deputy Crown Solicitor. In July 1982 the applicant was summonsed to give evidence to the Royal Commission set up by the Commonwealth to inquire into the activities of the Federated Ship Painters and Dockers Union. Before giving his evidence, the applicant was informed by the Royal Commissioner that "these proceedings are confidential" and the applicant's evidence was taken in camera. The applicant was questioned by counsel assisting the Commissioner about his involvement in the escort agency business known as "Kim's Introductions" which business allegedly provided women for prostitution. The applicant expressed his unwillingness to answer questions but was directed to do so by the Commissioner. The applicant failed to make a claim then for privilege against self-incrimination.
In August 1982, the applicant was charged that". . . between 1969 and 14 March 1981 he was guilty of improper conduct . . ." under s. 61 of the Public Service Act 1922 (Cth) (the Act). After an inquiry into the charge it was recommended that the applicant be dismissed from the Australian Public Service. The recommendation having been confirmed on appeal to the Disciplinary Appeal Board (the Board) the applicant made this application for an order of review of the Board's decision to the Federal Court of Australia. The main ground for the application was that the Board had admitted in evidence the transcript of part of the appellant's evidence given to the Royal Commission which evidence was allegedly inadmissible in proceedings before the Board.
Held: (1) The Board is not a court nor should it be regarded as a court for the purposes of s. 6DD of the Royal Commission Act 1902 (Cth).
Sorby v. Commonwealth of Australia (1983) 57 ALJR 248; Hammond v. The Commonwealth (1982) 56 ALJR 767; R. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, referred to.
(2) The evidence given by the applicant to the Royal Commissioner was admissible in proceedings before the Board since the fact that the evidence was wrongfully obtained did not render it inadmissible.
The Queen v. Ireland (1970) 126 CLR 321, applied.
Bunning v. Cross (1978) 141 CLR 54, referred to.
(3) Admission by the Board of evidence given to the Royal Commissioner in camera was not a breach of the rules of natural justice because the applicant had no right to require that he give his evidence in camera and it was a matter for the Commissioner to determine whether he would maintain confidentiality for the transcript.
Rogers v. Home Secretary (1973) AC 388; Crompton Amusement Machines v. Customs and Excise Commissioners (1974) AC 405; D. v. National Society for the Prevention of Cruelty to Children (1978) AC 171, referred to.
London and County Securities Ltd & Ors v. Nicholson & Ors (1980) 3 All ER 861, considered.
(4) There was abundant evidence before the Board for it to find that the applicant was guilty of improper conduct within the meaning of s. 55(e) of the Public Service Act 1922 as it stood prior to 15 March 1981.
(5) The Board did not err in admitting the opinion evidence of the president of the Law Society of Western Australia since the Board was not bound by the rules of evidence (see s. 63E(12) of the Public Service Act 1922).
(6) The Board was entitled to find that the applicant was guilty of improper conduct even if it was not shown that his conduct had brought the Public Service into disrepute prior to the publication of the report of the Royal Commissioner.
1983, March 29, June 21; July 29. #DATE 29:7:1983
APPLICATION.
Application for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a decision of the Disciplinary Appeal Board.
C.L. Zelestis, for the applicant.
R.S. French Q.C., for the third respondent.
Cur. adv. vult.
Solicitors for the appellant: McCusker & Harmer.
Solicitor for the third respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.
E.F.F.
The application be dismissed with costs. Application dismissed with costs.
The applicant Mr Abraham Bercove is an officer included in the Third Division of the Australian Public Service. He is a Senior Legal Officer in the office of the Deputy Crown Solicitor at Perth. On 27 August 1982 the applicant was charged under s.61 of the Public Service Act 1922 ("the Act") with 'having failed to fulfil his duty as an officer in that, between 1969 and 14 March 1981 he was guilty of improper conduct within the meaning of s.55 of the Public Service Act 1922 as it stood prior to 15 March 1981'.Particulars of the charge were furnished to the applicant, those relevant for present purposes being as follows:
'(a) That between 1969 and 15 March 1981, Mr Bercove has involved himself in, and directly or indirectly derived profit from an escort agency business known as 'Kim's Introductions';
(d) That Mr Bercove actively supported his wife in a decision to perform secretarial services for a number of companies for reward including the receiving of mail addressed to those companies and other companies when he had reason to believe that the services to be rendered by his wife were sought as an aid to unlawful or improper conduct on the part of the said companies and of those associated with them.'
Pursuant to s.62 of the Act an inquiry was held into the charge by the Chief Officer appointed under the Act. He recommended to the Public Service Board, pursuant to s.62(6)(b) of the Act, that action be taken to dismiss Mr Bercove from the Australian Public Service. Mr Bercove thereupon exercised the right of appeal to a Disciplinary Appeal Board ("the Board") given to him by s.63(D)(2) of the Act. The Board, after a hearing at which the applicant was represented by counsel, confirmed the Chief Officer's recommendation.
Mr Bercove then made this application pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order of review in respect of the Board's decision. The respondents to the application are the members of the Board, the Public Service Board and the Commonwealth of Australia. The respondents other than the Commonwealth entered submitting appearances.
Counsel for the Commonwealth conceded that the Board's decision was a report or recommendation of the kind referred to in s.3(3) of the Judicial Review Act and that the applicant was aggrieved by it. These concessions were properly made.
Before adverting to the course that the proceedings took before the Board and to the grounds upon which the applicant seeks relief, it is convenient to refer to the legislative background against which the allegations made against the applicant fell to be determined. The Public Service Act, in the form it took until 15 March 1981, provided, in part, as follows:
'55(1) An officer (other than an officer in the First or Second Division) who _
...
(e) is guilty of any disgraceful or improper conduct, either in his official capacity or otherwise;
shall be guilty of an offence, and shall be liable to such punishment as is determined upon under the provisions of this section.'
Sections 55 to 62 inclusive of the Act were repealed by s.20 of the Public Service Amendment Act 1978 ("the Amendment Act") which substituted extensive new provisions dealing with the discipline of, inter alios, officers included in the Third Division of the Public Service. But s.20 did not come into operation until a date fixed by Proclamation (vide s.2(2) of the Amendment Act). The date fixed by proclamation was 15 March 1981. Subdivision C of Division 6 of Part III of the Act as amended by the Amendment Act contains provisions dealing with disciplinary action in respect of officers included in, inter alia, the Third Division. To meet the case of an officer who is alleged to have committed an offence under s.55 of the Act before 15 March 1981 s.49 of the Amendment Act provides that Subdivision C of Division 6 of Part III of the Act applies to and in relation to such an offence as if the commission of the offence by the officer were a failure by him to fulfil his duty as an officer within the meaning of that subdivision. Section 56 of the Act, as amended, provides, inter alia, that for the purposes of Subdivision C an officer shall be taken to have failed to fulfil his duty as an officer if, amongst other things, he engages in improper conduct otherwise than as an officer, being conduct that affects adversely the performance of his duties or brings the Service into disrepute. The effect of these rather complicated provisions appears to be to make the procedural provisions introduced by the Amendment Act applicable to an offence alleged to have been committed before the Amendment Act took effect. The proceedings before the Board were conducted upon that basis and no challenge was made, either before the Board or in this court, that the Board erred in this respect.
At the hearing before the Board counsel for the Public Service Board tendered the transcript of part of the evidence given before Mr Costigan Q.C., who has been appointed by the Commonwealth as Royal Commissioner to enquire into the activities of the Federated Ship Painters and Dockers Union. Mr Costigan has also received a Commission from the Governor of the State of Victoria to enquire into the Union's activities. On 15 July 1982 the applicant was summonsed to give evidence to the Royal Commission. Before giving his evidence the applicant was informed by the Commissioner that 'these proceedings are confidential'. His evidence was then taken in camera. However the Commissioner subsequently authorised the release of the transcript of the applicant's evidence for the purpose of the proceedings taken against him under the Public Service Act.
The applicant, who is a solicitor of many years standing, appeared for himself when he gave evidence to the Royal Commissioner. He was questioned upon a number of matters by counsel assisting the Commissioner. One of those matters was his involvement in an escort agency business known as 'Kim's Introductions'. Another was his knowledge of and involvement in his wife's activities as secretary of a number of companies. He was asked questions designed to show that Kim's Introductions was a facade for a business of providing women for prostitution. The applicant, did not, in terms, claim that his answers to the questions asked of him would or might tend to incriminate him. Rather, he objected to answering questions because, so he asserted, they were irrelevant to any matter within the Commissioner's terms of reference. On more than one occasion he expressed unwillingness to answer questions, but was directed to do so by the Commissioner.
It is unnecessary to refer in any detail to the nature of the Kim's Introductions business, or to the applicant's involvement in that business. It is plain that some of the questions that the applicant was required to answer were designed to establish that he took an active part in the business and must have known that the women provided as escorts by the business for its patrons would offer sexual favours upon request. It was also elicited from him that some part of the fees collected by women escorts from male patrons was remitted to his wife. In these circumstances there was a real possibility that his evidence may have exposed him to the risk of prosecution for the offence of knowingly living in part on the earnings of prostitution. This offence is created by s.76G(1) of the Police Act 1892 (W.A.) which provides as follows:
'76G. (1) Every person who _
(a) knowingly lives wholly or in part on the earnings of prostitution; or
(b) in any public place persistently solicits or importunes for immoral purposes, shall be deemed to have committed an offence against section sixty-six of this Act, and may be dealt with accordingly.'
Having regard to the evidence of the active part taken by the applicant in the escort agency business it would have been but a short step to show that he received some financial benefit from the moneys paid to his wife by the women acting as escorts.
In the form which it took at the time the applicant gave evidence to Mr Costigan s.6 of the Royal Commissions Act 1902 provided as follows:
'If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him by any of the Commissioners he shall be guilty of an offence.
Penalty: One thousand dollars.'
At that time Sorby v The Commonwealth of Australia (1983) 57 A.L.J.R. 248 had not been decided. Although it was not necessary to decide the point in that case, Gibbs C.J. and Murphy J. made it plain that, in their opinion, the privilege against self-incrimination was available to a witness called before a Royal Commission held under the Royal Commissions Act 1902 before the amendments made to that Act by the Royal Commissions Amendment Act 1982 came into force. On this view of the law the applicant was entitled, notwithstanding the terms of s.6 of the Act in its then form, to refuse to answer the incriminating questions put to him by counsel assisting the Royal Commissioner.
No doubt the applicant failed to make a claim for privilege against self-incrimination because of the belief that he then held that s.6 of the Royal Commissions Act deprived him of any right to make such a claim. There was a widely held view at that time that s.6 had that effect. Indeed, in Hammond v. The Commonwealth (1982) 56 A.L.R.J. 767 Gibbs C.J. referred to a submission made by counsel for all the parties in that case 'that both under the Commonwealth Act and under the State Act a witness before a Commission who refuses to answer a question relevant to the inquiry is guilty of an offence, and that such a witness is not entitled to refuse to answer a question on the ground that the answer may incriminate him ...'. (56 A.L.J. 767 at 770). The observations of Gibbs C.J. and Murphy J. in Sorby's Case are quite inconsistent with that submission.
It seems to have been assumed in the proceedings before the Board that the applicant had no privilege against self-incrimination when he gave his evidence to Mr Costigan. No doubt this assumption was made because Sorby's Case was not decided until after the proceedings before the Board had been concluded and the Board had given its decision.
I turn now to consider the grounds upon which the applicant seeks a review of the Board's decision.
First, it is asserted that the evidence given by the applicant to the Royal Commissioner was inadmissible in the proceedings before the Board and that its reception into evidence involved an error of law within the meaning of s.5(1)(f) of the Judicial Review Act. Section 6DD of the Royal Commissions Act provides as follows:
'6DD. A statement or disclosure made by any witness in the course of giving evidence before a Commission is not (except in proceedings for an offence against this Act) admissible in evidence against that witness in any civil or criminal proceedings in any court of the Commonwealth, or of a State or of a Territory.'
Mr Zelestis, who appeared for the applicant, argued that the disciplinary proceedings taken against the applicant were in the nature of civil proceedings and that whilst the Board was not a court in the strict sense, the words 'any Court of ... the Commonwealth' should be given a wide construction so as to include the Board. He contended that the Royal Commissions Act demonstrates a clear policy against self-incriminating answers given unwillingly by a witness being used against him, except in proceedings under the Royal Commissions Act itself.
I confess to having some sympathy for the submission, but I do not think it can be accepted. There is no basis upon which the Board can be said to be a court. Indeed, I did not understand Mr Zelestis to contend that it was a court for any purpose. Such a contention would have been untenable. Nor does the Act evince any intention on the part of the legislature of setting up the Board as part of the judicature, giving it judicial powers and, as well, ancillary non-judicial powers. Cf. The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254 at 271.
Mr Zelestis was unable to point to any provision of the Act which gives the Board any semblance of the appearance of a court. In this respect it should be noted that the Board did not have power to order that the applicant be dismissed from the Public Service. Its power was limited to making a recommendation to the Public Service Board. Its decision was administrative, not judicial. In my opinion the language of s.6DD is so clear as not to leave any room for the application of s.15AA of the Acts Interpretation Act. The legislature cannot be taken to have intended that a body having none of the attributes of a court should nevertheless be regarded as a court for the purposes of s.6DD of the Royal Commissions Act.
If the Board's decision had been of a judicial or curial character, this court's jurisdiction under the Judicial Review Act would not have been be attracted. That Act applies, of course, only to administrative decisions.
Nevertheless there are good grounds for thinking that a person in the position of the applicant ought to have the same protection as a person against whom civil proceedings are brought in a court. From the applicant's point of view the proceedings before the Board were of great importance. The Board's decision was likely to affect his future career as a public servant. The proceedings were no less important to him because they were not civil proceedings in a court. The ambit of s.6DD seems to require further attention by the legislature, notwithstanding that its present form is of recent origin. The section was enacted in its present form by the Statute Law (Miscellaneous Amendments) (No. 1) Act, 1982.
It was next submitted that a breach of the rules of natural justice occurred in connection with the making of the Board's decision. It was said that a breach of the rules occurred because the Board admitted and relied upon the evidence given by the applicant to Mr Costigan when it had no power to compel him to answer questions that might incriminate him. Further, it was said that as the applicant had been advised before giving his evidence to Mr Costigan that the proceedings were confidential, it was contrary to the rules of natural justice to admit the evidence against him.
As to the first part of this submission it may be accepted that the Board had no power to deprive him of his privilege against self-incrimination. The contrary was not asserted by counsel for the respondent. But the real question is whether the evidence given by the applicant to Mr Costigan was properly taken into account by the Board. Putting to one side the question whether the applicant made a claim of privilege when giving evidence to the Royal Commissioner and assuming evidence was wrongfully obtained from him in the sense that he was denied the right to claim privilege against self-incrimination, it does not follow that his evidence was not admissible in the subsequent proceedings before the Board. If his evidence was relevant (and it plainly was) the fact that it was wrongfully obtained did not render it inadmissible. See The Queen v Ireland (1970) 126 C.L.R. 32l. In that case Barwick C.J. said at p.334:
'Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other.'
See also Bunning v Cross (1978) 141 C.L.R. 54; Kuruma v The Queen (1955) A.C. 197 (a decision which has not escaped criticism _ see Essays on the Law of Evidence, Cowen and Carter, p.103-105).
Plainly the Board had a discretion to admit the evidence. Its failure to exercise the discretion in favour of the applicant did not infringe the rules of natural justice. It is true that at the time the Board decided to admit the evidence it did not have the benefit of the High Court's reasons in Sorby's Case. But it by no means follows that the Board would have rejected the evidence had Sorby's Case been decided when the evidence was tendered to the Board. Certainly nothing was said in Sorby's Case which would have required the Board to reject the evidence. Nor was anything said in that case which affords a basis for an argument that the admission of the evidence by the Board was a breach of the rules of natural justice.
As to the argument that it was a breach of the rules of natural justice to admit evidence given to the Royal Commissioner in camera, no authority was cited in support of the proposition. At first blush there does appear to be an element of unfairness in the use made of the evidence. But upon reflection I do not think that any rule of natural justice was infringed. It was not suggested that the applicant's evidence would have been different if the proceedings had been held in public. Nor did the applicant have any right to require that he give his evidence in camera. That was a matter for the Commissioner to determine. It was also a matter for the Commissioner to determine whether he would maintain confidentiality for the transcript of the applicant's evidence, or relax in whole or in part his direction that it be kept confidential. In these circumstances, I do not think there was any infringement of any relevant rule of natural justice. All that happened was that the applicant's expectation that his evidence would be kept confidential was not realized.
It is necessary to consider whether the admission of the evidence although not amounting to a breach of the rules of natural justice, was nevertheless such an error of law as to attract the jurisdiction of the court under the Judicial Review Act. Attempts to establish some broad general principle of privilege based on the confidentiality of the relationship in which the communication arises have failed. See Rogers v Secretary of State for the Home Department (1973) A.C. 388 at 408 per Lord Simon, and at p.411-2 per Lord Salmon; Crompton (Alfred) Amusement Machines v Customs and Excise Commissioners (1974) A.C. 405 at p. 429 et seq per Lord Cross; and D. v National Society for the Prevention of Cruelty to Children (1978) A.C. 171. But there are, of course, situations in which the court will treat some communications as privileged and inadmissible. It will uphold a claim for privilege when it is in the public interest to do so. It does not clearly appear from the transcript of the proceedings before the Board that objection was taken to the tender of the applicant's evidence on the ground that, in the public interest, it should be afforded privilege. But even if such an objection had been taken the Board could properly have admitted the evidence. See London and County Securities Limited & Ors. v Nicholson & Ors. (1980) 3 All E.R. 861. In that case the question arose whether evidence given in confidence by the auditors of a company to inspectors appointed under the Companies Act 1948 (U.K.) was admissible against them in proceedings subsequently brought by the liquidator of the company. Browne-Wilkinson J. held that it was. His Lordship pointed out that in the case of evidence given to inspectors the confidentiality of the evidence is not complete. This is because the witness knows that, on any footing, his evidence and identity may be disclosed in a number of ways. For example, the evidence may be put to other witnesses or be incorporated in the inspector's report which is or may be distributed to the company, to members and creditors of the company and to persons who applied for the investigation into the company's affairs. He contrasted the public interest in maintaining confidentiality in such a case with the public interest which protects the confidentiality of police and other informers. His Lordship said:
'The decision in the House of Lords in D v. National Society for the Prevention of Cruelty to Children establishes that there is a presumption that the public interest in all relevant evidence being available to the court ought to prevail: see for example, per Lord Hailsham and per Lord Edmund-Davies ((1977) 1 All E.R. 589 at 599, 600, 615, (1978) A.C. 171 at 223, 225, 242); see also Rogers v Secretary of State for the Home Department (1972) 2 All E.R. 1057 at 1060, (1973) A.C. 388 at 400. If such evidence is to be excluded it must be shown that there is another countervailing public interest which necessitates the exclusion of the evidence and that such countervailing public interest outweighs the public interest in admitting it. For this reason I do not accept that the court should first assume that Parliament intended to assure as much confidentiality as possible and that such confidentiality should only be impaired to the extent that Parliament has expressly so provided.
'In my judgment, D v National Society for the Prevention of Cruelty to Children requires me to balance the two public interests against each other; but unless the public interest in excluding the evidence clearly outweighs the public interest in admitting it, the latter is to prevail. ...
'If I have rightly identified the public interests to be balanced I have little doubt that the impairment of the public interest involved in disclosing the evidence to the liquidator and allowing it to be used by him in proceedings does not outweigh the other public interest. There is no evidence from any minister or public servant that the public interest would be harmed; indeed the fact that the department released the evidence to the liquidator without protest on terms which permitted its use by the liquidator in legal proceedings indicates that no injury to the public interest was then foreseen.'
((1980) 3 All E.R. 86l at 868)
Much of what Browne-Wilkinson J. said in that case would have been relevant if a claim for privilege based on the public interest had been made to the Board. As I have already pointed out the applicant was in no position to claim confidentiality for his evidence. It was always a possibility that his evidence would be put to other witnesses and would be referred to in the Royal Commissioner's report. He was not in the position of a police or other informer who might decline to furnish information to an investigator save in return for a promise of confidentiality. Thus in my opinion a claim for privilege based upon considerations of the public interest would have been properly rejected.
I turn now to consider the applicant's third submission which was that the evidence disclosed no evidence of improper conduct by him in his official capacity within the meaning of s.55 of the Public Service Act. The thrust of this submission was that although there was abundant evidence that the applicant took an active part in the conduct of his wife's escort agency business, there was no evidence that the business was, to the knowledge of the applicant or at all, associated with prostitution. It was said that there was nothing illegal in conducting a legitimate escort agency business and that it could not be improper conduct to be involved in such a business. Mr Zelestis contended that the phrase 'improper conduct' in s.55(e) should, having regard to the subsequent amendments and to s.47, be treated as meaning 'conduct bringing the Public Service into disrepute'. Involvement in a legitimate escort agency did not, so he submitted, bring the Service into disrepute.
I do not find it necessary to refer in any detail to the evidence before the Board. The escort agency business was commenced by the applicant's wife about 1970. Initially patrons of the business called at the applicant's home to make preliminary contact with women who were to be their escorts. After a time the whole of the business was conducted by telephone, prospective patrons calling on a special telephone number connected to the applicant's home. It was common ground that the applicant placed advertisements for the agency in newspapers and other publications and that he paid for most of these advertisements by cheques drawn on his own account. The applicant's association with the business became notorious and he had visits both at his home and at the office of the Deputy Crown Solicitor from police officers investigating alleged prostitution and vice rackets. On at least one occasion the applicant received a telephone call at his office from the press on the subject of the escort agency. The Board found that the applicant had directly involved himself in his wife's business, and no challenge was made to that finding. The Board also found that there was an irresistible inference from the evidence before it that the applicant, both directly and indirectly, derived considerable profit from the escort agency. Again, no challenge was made to this finding.
The Board made no finding as to the legality or propriety of the business. But it found that the public perception of escort agencies as a whole 'is such that involvement of an officer of the Public Service in the conduct of an escort agency and the deriving of profit from such a business is likely to bring his branch of the Public Service into disrepute'. It referred to a passage in the applicant's evidence to the Royal Commission where he said:
'... The whole escort business has got that unsavoury name and anyone who runs that business in assumed to be a madam.'
The charge did not limit the allegation of improper conduct to conduct in an official capacity. Section 55(e) referred to improper conduct either in an official capacity or otherwise. For an officer, who is a solicitor, to directly involve himself in and share the profits of a business which is perceived by members of the public to be a business of providing women for prostitution must amount to improper conduct, even if it is not established that the women provided by the business do prostitute themselves.
Mr French, who appeared for the Commonwealth, submitted that the standard of conduct expected of an officer who is also a solicitor is no less than that which is expected of a solicitor in private practice. I agree with this submission. There are many businesses which may properly be undertaken by a solicitor consistent with the practise of his profession, but a business perceived by the general public as being associated with prostitution is not one of them. In my opinion there was abundant evidence before the Board upon which it was open to it to find that the applicant was guilty of improper conduct within the meaning of s.55(e) of the Public Service Act as it stood prior to 15 March 1981. And even if, as Mr Zelistis submitted, improper conduct should be equated to conduct bringing the Service into disrepute, the same result would obtain.
It was next submitted that the Board erred in admitting the evidence of Mr Ian Temby Q.C. Mr Temby is the President of the Law Society of Western Australia and is in active practise at the Bar of Western Australia. His evidence included the following:
'I am aware of the publicity which followed the publication last year of the interim report number 4 of the Royal Commission on the activities of the Federated Ship Painters and Dockers Union. In particular I recollect the publicity that suggested an association between Mr Abraham Bercove, an officer of the Deputy Crown Solicitor's office in Perth, and an escort agency conducted by his wife. I believe as a matter of general impression, and particularly because of what a number of lawyers said to me, that the revelation of the fact, if it be a fact, that Bercove was involved in an escort agency did damage both to his reputation and to that of the Deputy Crown Solicitor's office among members of the legal profession in Perth. Among members of the legal profession and, I believe, among members of the general public it is assumed that frequently escort agency businesses are fronts for prostitution or like activities. Right thinking lawyers do not object to members of the profession carrying on other businesses which are reputable but the public attitude to escort agencies is such that a member of the legal profession in good standing would not be involved in the conduct of its affairs.'
It was submitted that it was an error of law for the Board to admit this evidence, as it constituted the expression of an opinion upon the very matter which it was the Board's duty to decide. If the Board had been bound by the rules of evidence, I think the evidence would probably have been inadmissible. But the Board was not bound by the rules of evidence _ see s.63E(12) of the Act. There is therefore no substance in this submission.
It was next submitted that the Board erred in law in finding the applicant guilty of improper conduct because there was no evidence that, prior to the publication of the report of the Royal Commission, the conduct alleged against him had brought the Public Service into disrepute. There are at least two answers to this submission. First, there was evidence that long before the applicant gave evidence to the Royal Commission his association with his wife's escort agency had attracted the attention of police officers and of a journalist employed by a newspaper. Notoriety of this kind was of itself sufficient to bring the Public Service into disrepute. Secondly, it is not correct to say that conduct does not amount to improper conduct if it has not achieved notoriety. The Board was entitled to find the charge established even if it was not shown that the applicant's conduct had brought the Public Service into disrepute prior to the publication of Mr Costigan's report. Impropriety may be established without notoriety.
It was next submitted that the Board wrongly construed particular (d) of the charge against the applicant as extending to conduct beyond the initial decision to perform the secretarial services referred to in the particular. It was contended that the 'decision to perform secretarial services' referred to in particular (d) was a reference only to Mrs Bercove's initial decision to perform secretarial services, and not to her continuing activities in performing such services. This submission lacks any substance. Particular (d) was but one of a number of particulars of the charge of improper conduct. It was not a charge in itself. The evidence before the Board established that the applicant actively and continuously supported his wife in her performance of secretarial services for the relevant companies. There was no suggestion that this evidence was inadmissible or that it took the applicant by surprise. In any event, this submission, even if accepted, does not make out any ground for granting relief in s.5(1) of the Judicial Review Act.
The final submission was that the Board erred in law in finding that particular (d) of the charge was made out because the evidence did not support a finding that the applicant had reason to believe that the services to be rendered by his wife were sought as an aid to unlawful or improper conduct on the part of the relevant companies. It was for the Board to evaluate the evidence before it. There were suspicious circumstances surrounding the request made to Mrs Bercove to perform the secretarial services. There was evidence before the Board from which it was entitled to draw the inference that the applicant had reason to believe that the services to be rendered by his wife were sought as an aid to improper conduct on the part of the companies.
With reference to particular (d) generally, it needs to be borne in mind that it was but one of two particulars found by the Board to have been established. It is clear from the Board's reasons that it would have reached the same decision had it been satisfied only of the matters referred to in particular (a). It said:
'The Board has considered the range of penalties open to it. It has concluded that the only appropriate finding in relation to the breach of duty represented by particulars (sic) (a) is a recommendation for the dismissal of the appellant from the Service.
'If there was any doubt in this regard, that doubt would be removed by the breach represented by particulars (sic) (d).'
Thus, even if there had been substance in the submissions as to particular (d) there would not have been any basis for setting aside the Board's decision.
In the result, the application must be dismissed with costs.
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