Brott v McDonald

[1989] HCATrans 65

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~ :,;-.~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M38 of 1988

B e t w e e n -

ISSAC ALEXANDER BROTT

Applicant

and

SONIA ANNE McDONALD

Respondent

Application for special

leave to appeal

MASON CJ DAWSON J McHUGH J

Brott

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1989, AT 10.41 AM

Copyright in the High Court of Australia

MlT3/l/PLC 1 17/3/89

MR M.E.J. BLACK, QC: If the Court pleases, I appear

with my learned friend, MR G.T. PAGONE, for the

applicant in-the matter. (instructed by

S.V. Winter & Co)

MR R.A. SUNBERG, QC: If the Court pleases, I appear with my

learned friend, MR S.P. WHELAN, for the respondent.

(instructed by the Director of Public Prosecutions)

MR BLACK: If the Court pleases, this application raises two

points. They each arise under the Corrrrnonwealth

ROYAL COMMISSIONS ACT and one of them involves the interrelationship between the Corrrrnonwealth Act and

a Victorian evidentiary provision governing royal

corrrrnissions.

MASON CJ:  Can I ask you this question at the outset: can

you appeal to the Full Court?

MR BLACK:	No, Your Honour.
MASON CJ:	You cannot?
MR BLACK:	Cannot.  Because it is an order to review from a

magistrate's decision, the Act specifically prevents

any further appeal. The only place to come is here.

MASON CJ: Yes. I thought there had been some legislative

amendment in recent years that had remedied this

position. You are likely to know more about it than

I do.

MR BLACK:  Your Honour, my understanding is that that is the

position. I have not heard of it being changed and

I know it certainly was the position when I looked

at it. Your Honour, we all believe, all being, if

I may say so, Victorians, that it has not changed.

DAWSON J: This Court has said that it ought to change.

MR BLACK:	Yes, we would respectfully say that too.
MASON CJ:	P~rhaps if we refuse you special leave it may

accelerate the process of change.

MR BLACK: It never does, Your Honour, it never does. Might I

hand to the Court co.pies of·the relevant provisions

of the Commonwealth Act. Those are sections 6D

and 6DD and also copies of section 30 of the Victorian

EVIDENCE ACT? The Court will be aware that this

matter arose when a witness - - -

MASON CJ: Yes, we are familiar with the circumstances in

which it arose.

MR BLACK:  Yes, Your Honour. Well, the two points were

these - - -

MlT3/2/PLC

Brott 2 17/3/89

MASON CJ: It was determined in advance, in effect, of

a plea being taken and no evidence was actually

adduced as a result of the ruling.

MR BLACK:  We make no point about the procedural matter.

MASON CJ: That has disappeared out of the case?

MR BLACK:  That has disappeared but there are two points

that remain and the first concerns the power of

a commissioner to make a non-publication order

before any evidence is given and we say he

certainly has that power contrary to the findings

of the learned primary judge, :and the second point

is that, we submit, section 30 of the Victorian

EVIDENCE ACT, which is a protected provision

except in the case of prosecution for perjury,

operates in the case of a joint Commonwealth/Victorian

royal commission to protect a person according to

its terms and in that sense this case, we say,

is the reverse of the situation considered by this

Court in GIANNARELLI V REG, 154 CLR 212, where the

Commonwealth section protected the two Giannarelli

brothers from prosecution under Victorian law for perjury and we say this is the reverse situation.

MASON CJ: Let us proceed to the first of those questions.

MR BLACK:  The factual basis upon which it arises is simply

this - and we would have to satisfy the Court that,

in fact, it was a non-publication direction, and

we say it was.	What happened was - and it appears
at page 33 of the application book;	it is page 4 of
the judgment of Mr Justice Crockett.

MASON CJ: It is page 28 of my application book.

MR BLACK:  I am sorry, the numbering was not done for which I

apologize.

MASON CJ:  I think I have two copies of Mr Justice Crockett's

judgment as well, just to impress me with His Honour's

reasoning.

MR BLACK:  Yes. Your Honour, and also, I regret to say,

to irritate Your Honour, the second copy is missing

a couple of pages.

McRUGH J:  My first copy is missing one page and the second

copy is missing a different page.

MR BLACK:  Yes. I do apologize. My learned friend says his

is upside-down, but the point is still a good point,

Your Honour.

What happened was Mr Meagher said to the

commissioner:

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I ask that these proceedings be in confidence.

The connnissioner said:

Yes, these proceedings will be.

Mr Meagher:	Mr Brott please.
The Connnissioner:	Mr Brott ... I have

directed that these proceedings be

confidential. I would like you to pay

particular attention to that because it

involves that you do not tell anybody outside this room what ... during the

course of this hearing;	do you understand
that?
. . . . Yes.

Now, we say that that is, and can only have been

a non-publication order for the reason that it could

not have been an order - it was obviously intended to

be taken seriously. It was obviously intended to be

the exercise of power. It could not have been a

privacy under section 6IX2) because that has to have

a special subject-matter and it involves everyone

going out of court. It does not, on any view, in
ou~ submission, read as a general privacy order

because nobody was ordered out of court so it was,

in substance, in our submission, a non-publication

order under section 6D(3). Otherwise, it could not
have been anything and it was obviously intended to be

something. And it was a non-publication order because

the connnissioner, having said to the world at large

in the commission that it was going to be "in confidence",

then specified what he meant by telling Mr Brott he

was not to tell anyone about it .

Now, Mr Justice Crockett said it was not any of

those things and fundamental to His Honour's reasoning

was this: His Honour said "this can only operate	retrospectively and you only prohibit publication	after the matter has come out" and that, together with
the factual matters with which we say His Honour was
wrong., caused His Honour to say that the section had
no application "in these circumstances". Now, the
point, and we say it is an important point, is this:
can the connnissioner under the Commonwealth Act direct non-publication before the evidence is given?
Policy would seem to suggest, in our submission, that
he ought to be able to otherwise, to put it bluntly,
the cat is out of the bag. The construction for which
we will put on the section involves that the hearing
can proceed in public, it does not ·have to be done in private, and also everyone knows where everyone stands.
So, the connnission proceeds; the evidence is given but it being known what it it is going to be about,
there is an order for non-publication.

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Now, His Honour's judgment, in our submission,

is incorrect where he interprets the language as having

a retrospective operation only.	The word in (3)(a),
"given11 ,	in our submission, on analysis is, in fact,
neutral.	It is a past participle but does not have

a verb so it may mean, and in our submission

sensibly would mean, "direct that any evidence

that is to be given, has been given or may be given or, indeed,

is being given but the reason it has the appearance

of the past about it is that, as a matter of

structure, it has to be anterior to the matter that

is sought to be prohibited, that is to say, the

publication and that gives it its past flavour. But

it does not follow from that that the section can only

be invoked after as it were the offending material

has actually become evidence or a document has actually

been tendered. So that, in our submission, as a matter

of construction, the argument being supported by
considerations of policy, the power may be exercised

in advance of the matter for publication arising and

the basic premise upon which His Honour Mr Justice Crockett

proceeded, in our submission, was incorrect.

I have already outlined the argument as to why

we say as a matter of fact His Honour's analysis of

what happened was incorrect. Now, if that is right -

and we say it is an important question, not just

to Mr Brott but how one administers royal coIIm1issions

in the future - the question is, "Well, even so,

would that prevent the publication of what Mr Brott

said on his prosecution for contempt based upon what

he did say?" And we would say, "Yes, either you

prohibit publication or you do not. If you wish to

have an exclusion or an exemption from the non-publication

order, the Act empowers.you to do so." And the argument

for which we contend is no haven for contemnors because
one could simply make a non-publication order with, as

it were, an escape clause that will not prevent publication of the offending material if deemed necessary by the appropriate law enforcement authorities.

MASON CJ: But it is a surprising construction of an order, is

it not, even an order that was more clearly under

section 6D(3) than this one to say of it that it was
intended to exclude prosecution for contempt or

prosecution for conduct in relation to the giving of

evidence?

MR. BLACK:  Your Honour, probably nobody ever - yes, it is surprising,

but it is - - -

MASON CJ: And it would. be right to say what you were about to

say, that nobody would have thought of it.

MR. BLACK:  I did not stop because I had second thoughts because

I did not want to interrupt Your Honour. Probably

nobody did think about it.

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11"1.ASON CJ:	Yes, I under-estimated your courtesy, Mr Black.
MR BLACK:	Your Honour, it may be nobody did think about it

but that is what was said, but that operates

according to its terms, in our submission. If that

means that Mr Brott is fortunate, it does not mean

that the point of principle does not arise, because

it does, in our submission, and that was what the

corrnnissioner said.

MASON CJ:  But there are difficulties in giving an appropriate

character to what the corrnnissioner said. For example,
subsection (3) seems to contemplate not merely a
general order that evidence shall not be published

but a more particular order.

MR BLACK:	Yes.
MASON CJ:	Maybe an order that certain persons will not publish

the evidence. And likewise, subsection (5) clearly

contemplates that the commissioner has general

powers other than the specific powers that are given

to him by section 6D(2) and (3).

MR BLACK:  Yes.

MASON CJ: It is therefore possible that what the commissioner

did was to be explained by reference to the exercise
of general powers other than powers that are set forth
in subsections (3) and (4).

MR BLACK: Well, Your Honour, yes, in relation to .powers to order ~hat proceedings be held in private because

they would be just the powers to conduct what happens

in the hearing room. But absent that, and we would

say that did not happen here, the commissioner would

need statutory power, in our submission, to prohibit

the publication of something outside his hearing

room. I am talking now of the physical confines

in which he is sitting. And therefore, we say,

whilst accepting that he has power to regulate his

own proceedings within the ambit of his letters patent

and the Act and so forth, he would not have power

to direct non-publication such as he purported to or

did, in fact, direct Mr Brott not to do. So, therefore

it must have been - and there was a plain assumption of

power. So, the source of the power, we say, must

have been 6D(3). It is wrong to say that that power

can only be exercised retrospectively. That is the

foundation of Mr Justice Crockett's rejection of the
matter as well as the factual matters. There is
error and the matter is important, that is the first

point.

The second point is of more general application

and that is that if section 30 of the Victorian Act

applies, then just as when section 6D of the Commonwealth

A~t applied in GIANNARELLI's case, then there can be no

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evidence led against Mr Brott and the prosecution

must fail.

MASON CJ:	Why does section 30 of the Victorian Act apply?
MR BLACK:	For one of two reasons, in our submission. Fundamentally,

because it is a joint commission and you cannot, as

the Court explained in GIANNARELLI, sever them. You

cannot split the character of what is going on. There

is a duality about it. Section 30 applies

either because section 79 of the JUDICIARY ACT picks

it up and, as it were, federalizes it, in which case

the question is that raised by Mr Justice Crockett:

does the Commonwealth law otherwise provide - and we
say on the authority of GIANNARELLI, "No, it does not" -

to operate side by side. Curious bedfellows but not inconsistent bedfellows as GIANNARELLI says.

Or else, section 30 simply applies because it

attaches itself to the exercise of State power. The exercise of State power in relation to the giving of

evidence cannot be practically distinguished from

the exercise of the Commonwealth power. And just as

in the GIANNARELLI case the Commonwealth protective

mechanism was held to apply according to its terms to all courts in the country, so too the Victorian protected mechanism would apply according to its

terms for any use of the evidence - certainly in

Victoria - except in a prosecution for perjury.	The
result is a collision but - the result is an
uncomfortable situation whereby there cannot be,
where there is a joint commission, a prosecution

for contempt if the joint commission is-with Victoria
but that does not amount to an inconsistency.

Might I take the Court to GIANNARELLI's case. I hand the Court copies of it. There are just two or three passages to which I would desire to refer.

MASON CJ: Yes.

MR BLACK:  On the inconsistency point, that was considered by

Mr Justice Brennan at page 229 at point 6 of the page.

In the course of His Honour's judgment he set out the

section and said:

There is no relevant inconsistency between -

the two sections.

Section 6DD binds all Australian courts to

reject evidence of a statement or disclosure

to which it applies; s. 30 binds Victorian

courts to reject statements to which it applies.

Where both provisions apply to the same

statement and that statement is inadmissible by

virtue of s. 6DD, it is immaterial whether

it is inadmissible by virtue of s. 30. The

exception contained ins. 30 simply leaves the

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evidence to which it applies unaffected by the general rule prescribed by the section;

it is immaterial that evidence which is made

inadmissible bys. 6DD falls within the

s. 30 exception.

And we say, well so too, vice versa. I shoutd, of

course, mention to. the Court that there is a passage

in the judgment of the learned Chief Justice at

page 220 at about point 3 of the page which, taken

out of context, might be urged against us but we say

it is not. His Honour says at point 3 of the page:

However, s. 6DD leaves no room for the operation of any State law regulating the admissibility of evidence given before a

Commonwealth commission.

What His Honour was saying there, in our submission,

however, was that section 6DD operates according to

its terms and the State law does not touch the

situation. Now, what we have here, in our submission,

is two sets of protective provisions.	They each
operate - they do not annul one e.nother	either under 109

if the Victorian provision operates by virtue of its own

force on a Victorian letters patent_nor do we say that

they annihilate· each other if the Victorian provision is

federalized under section 79 of the JUDICIARY ACT.

They exist - - -

MASON CJ:  But it is not a question of annihilation then, is it,

nor is it a question of inconsistency?· The question

under section 79 is whether:

except as otherwise provided by the

CONSTITUTION or the laws of the Commonwealth -

so if you get a different provision, albeit a provision

that is not inconsistent, none the less the application

of the State provision is displaced.

MR BLACK: Yes, Your Honour~ but the reason why the Commonwealth

provision does not otherwise provide is this:. the

Commonwealth provirlon creates an immunity which it

then removes in a particular instance. By removing the

immunity in that particular instance all it does -and

this is the only extent to which it provides - is to

leave the general laws of admissibility and so forth
including, we would say, statutory provisions, to

operate. So, it does not make the evidence admissible,

it simply removes the evidence from the protective

mechanism that the Commonwealth has created. But its

admissibility is then to be dealt with, according to

common law principles - it might be irrelevant or

objectionable	on other grounds - or according to
relevant statutory principles.	So that is why we say

the Commonwealth law does not otherwise provide. It

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does not to~ch the subject-matter, it just leaves it

open, in. using the terminology of section 6DD, and

that is why we say the Commonwealth law does not

otherwise provide and certainly there is no

inconsistency in a 109 sense if the true source of

the State protective mechanism is the direct

application of State law on the State letters patent.

Now, if it is said as it might be that this is

an odd result, the answer is that the legislature

did not pay heed to what this Court said in GIANNARELLI's

case about those sort of problems. Mr Justice Wilson

at page 227 at point 1 of GIANNARELLI said:

It may readily be conceded that such a

result is unfortunate and in no way consistent

with the general intention of the Parliament .....

It occurs because of a lack of correspondence

between the Commonwealth and State laws which

respectively prescribe the extent of the

immunity which is to be accorded to statements -

et cetera. Justice Deane, at page 232 expressed

himself in somewhat similar terms at the bottom of the

page, concluding at about point 9 of the page, having

referred to "Anomalous and undesirable consequences":

If that be so, it highlights the undesirability

of conferring powers of compulsory interrogation,

with the negation of ordinary common law rights

and privileges which such powers involve,

without at the least taking steps to ensure

that applicable legislative provisions are,

according to their terms, appropriate -

now, what one has here is two legislative policies

directed to different ends, lacking in correspondence

but not inconsistent and providing a protection, in our

submission, which results in Mr Brott having no

evidence that can be led against him as a result of

the policy of the State of Victoria and it is the

reverse of GIANNARELLI. The point is important. The

GIANNARELLI point was regarded as important. Of course,

the consequences in that case for the applicants had

accrued and were severe but the point was there

regarded as important by all the Judges. The application

was granted even though it was out of time. The point

had not been raised before, and we say this is a point

of general public importance - both points are.	May it
please the Court.

McHUGH J: Just before you sit down, could I ask you one - - -

MR BLACK:  Yes, Your Honour.

McHUGH J: In section 30, Mr Black, when the section says:

No statement made . .- .... before any board or

commission empowered under the provisions of

this Act -

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is section 30 saying anything about statements made

pursuant to an inquiry made under the ROYAL COMMISSIONS

ACT?

MR BLACK:  No, Your Honour, but if that is against us, the

answer to it is, in our submission, to be found in

GIANNARELLI where, in p~rticular Mr Justice Wilson

at page 226 said that you simply cannot divide the

character of what is happening. So that that

attaches to the statement in, as it were, its Victorian

aspect but the "ilictorian aspect is indivisible

from its other aspect. It is impossible to deny

whatever happened	the character of being a statement,
in this case, a:

statement made by any person in answer

to any question before any board or

corrnnission - - -

McHUGH J: Except that in GIANNARELLI the defendant was

prosecuted for an offence under Victorian legislation.

MR BLACK:  Yes, but here the irmnunity is given by applicable

Victorian law which operates, we would say,

according to its terms because of the dual character

of the corrnnission and the indivisible character of

what actually happens.

McHUGH J: Yes, I see. Can I just ask you one question about

your earlier point? First of all, does section 6D(3)

bind the Crown so as to prevent it tendering evidence

in a prosecution?

MR BLACK:  Yes, Your Honour. There is no reason - yes,

otherwise the section could be ineffective because

the Crown can publish and dis.seminate information.

It does not customarily do so - well, it does. In one sense it does not but - - -

McHUGH J: And what about section 6DD? Is that not an exception

to 6D(3)?

MR BLACK:  No, Your Honour, they would operate, in our submission,

side by side.	If you did not want them to operate
side by side then you would have to specify.	If ene

had reason to suppose that the witness was going to

be difficult and might need dealing with, one should

make it clear to the witness, and that is fair enough

anyway, if I can use the. expression, particularly

in regard to use of the coersive powers to which it
would appear it is alleged Mr Brott strenuously objected.

If the Court pleases.

MASON CJ:  Mr Sunberg, we need not trouble you about the first

of the points that Mr Black has raised but what do you

sa:y about the second point?

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MR SUNBERG:  Very little, Your Honour, but this is what it is.

If one puts to one side the pretended inconsistency argument which is elaborated in the affidavit in

support but which now seems to have gone, we would

say that this is a clear case for the application of

section 79 and if one understands the way in which

the GIANNARELLI case arose, one can see that.

Justice McHugh has mentioned it already.

GIANNARELLI was a prosecution for perjury under the Victorian CRIMES ACT. Section 6DD of the ROYAL

COMMISSIONS ACT applies in accordance with its terms.

It expressly applies to proceedings in State courts

in the criminal jurisdiction, so its words were

applicable. Here the position, in our submission,

is different. The question for the magistrate - the

only question for the magistrate and for

Mr Justice Crockett was whether the evidence that

was to be relied on was admissible. Now, the magistrate

was exercising federal jurisdiction and section 79

provides that State law as to evidence is to apply

in a court exercising that sort of jurisdiction:

except as otherwise provided by ...... the laws

of the Commonwealth.

So, in our submission, what section 79 requires one

to do is to look around to see if there is any

applicable Commonwealth law. One finds section 6DD;

A statement ..... by any::witness -

is admissible -

in proceedings for an offence against this

Act.

So, that provision, Commonwealth law provides the answer to the only question that arises and having

discovered that answer, in our submission, the magistrate or any other judicial functionary simply goes no further.

McHUGH J:  Under section 79 the laws only apply:

in all cases to which they are applicable.

That is the last word, isit not?

l1R SUNBERG:  Yes, Your Honour, but they are applicable to this

type of case.

McHUGH J:	But is section 30 applicable?
MR SUNBERG:	No, Your Honour, section 30 is not applicable.

It would be an extraordinary result, in our

submission, to take section 79, obey the first part of

it so as to attract Commonwealth section 6DD

an-d then say, "Now, having done that, I'm going to

fossick around to see if I can find some State law

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that will prqduce a different result." That, in our

submission, is the opposite of what section 79 is

there for. Section 79 is intended, in our submission, to pick up State law where there is otherwise a vacuum and there is not a-vacuum here because section 6DD

expressly applies.

So, in our submission, once one identifies what

the issue was before the magistrate and before

Mr Justice Crockett and sees that section 79

provides the answer, it is a very simple case, in

our submission.

MASON CJ:  We need not trouble you any further, Mr Sunberg.

MR SUNBERG: If the Court pleases.

MASON· ~J :. Yes, Mr Black?

MR BLACK: If the Court pleases. Really, by way of reply, what

we say is that simply because the Commonwealth

law enters the field, it does not mean that it

otherwise provides. And the circumstances here are

very special: people are being subjected to

coercive powers with two sources of power

and each source of power has indicated, as a matter

of legislative policy, that they shall have protection N~,

they do not collide and more than that, in our

submission, the Commonwealth law does not otherwise

provide in those special but by no means unique

circumstances.

MASON CJ:  But it may not come to the point of a Commonwealth

law making other provision. It may be that the

Victorian section on which you rely is not applicable

at all to begin with so that you are not driven to

look for a displacement by Commonwealth law.

MR BLACK:  Indeed, and if the Victorian section operates of

its own force, as we would now - as we did put

and we would put again as a permissible view, leading	to the same result, then the Victorian section
protection in respect of the Victorian character of
the statement in the same way as the Commonwealth section provided protection in the GIANNARELLI case.
So, it is the reverse of GIANNARELLI and we say it is
a point of importance to see if both sides of the coin produce the same result. If the Court pleases.

operates of its own force. It provides the

MASON CJ:  Thank you, Mr Black.

The Court is not persuaded that the actual

decision of Mr Justice Crockett was attended with

sufficient doubt to justify the grant of special leave

to appeal. The application is therefore refused.

MR SUNBERG:- I would ask for costs, Your Honours?

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MASON CJ:	You do not resist that, Mr Black?
:MR BLACK:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.14 AM THE MATTER WAS ADJOURNED SINE DIE

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