Freeman v Honourable Charles Christian Porter MLA Attorney-General
[2010] WASC 342
•26 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: FREEMAN -v- HONOURABLE CHARLES CHRISTIAN PORTER MLA ATTORNEY‑GENERAL; MINISTER FOR CORRECTIVE SERVICES [2010] WASC 342
CORAM: HALL J
HEARD: 9 NOVEMBER 2010
DELIVERED : 26 NOVEMBER 2010
FILE NO/S: CIV 2336 of 2010
BETWEEN: NATHANIEL GEORGE JOSEPH FREEMAN
Plaintiff
AND
HONOURABLE CHARLES CHRISTIAN PORTER MLA ATTORNEY-GENERAL; MINISTER FOR CORRECTIVE SERVICES
Defendant
Catchwords:
Declarations - Discretionary decision by Attorney-General not to bring proceedings for contempt of court - Whether reviewable - Whether any basis for claiming that discretion not properly exercised
Legislation:
Criminal Code (WA), s 635A (repealed)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 24
Interpretation Act 1984 (WA), s 37(1)
Judiciary Act 1903 (Cth), s 71
Victims of Crime Act 1994 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr G T W Tannin SC & Mr H D Leith
Solicitors:
Plaintiff: In person
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75
London County Council v The Attorney‑General [1902] AC 165
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Re Evans; Ex Parte Clyne (1984) 2 FCR 56
HALL J:
Background
In 1992 the plaintiff was sentenced to life imprisonment for wilful murder. He continues to be a serving prisoner. He was a juvenile at the time of the offending and was dealt with in the Children's Court. In the course of those proceedings a suppression order was made by the President of the Children's Court on 13 August 1992. The order prohibited the publication of the contents of three original exhibits which were produced in the proceedings and also prohibited publication of the fact of the application itself. That order has not been varied and continues to have force and effect.
It will be necessary to suppress publication of these reasons because they necessarily make reference to the existence of the application for the suppression order in 1992. Publication of these reasons would therefore necessarily involve publication of the fact that the application for the suppression order was made in 1992. Since that would defeat the order that was made at that time it will be necessary to limit the availability of these reasons to the parties directly concerned.
The suppression order made in the Children's Court on 13 August 1992 was made pursuant to s 635A of the Criminal Code (WA). That section has since been repealed but provided at the relevant time as follows:
(1)Unless expressly provided otherwise, the court‑room or place of hearing where a trial or other criminal proceeding is conducted is an open and public court to which all persons may have access so far as is practicable.
(2)If satisfied that it is necessary for the proper administration of justice to do so, a court may ‑
(a)order any or all persons or any class of persons to be excluded from the court‑room or place of hearing during the whole or any part of the trial or other criminal proceeding;
(b)make an order prohibiting the publication outside the court‑room or place of hearing of the whole or any part of the evidence or proceedings;
(c)make an order prohibiting the publication outside the court‑room or place of hearing of the whole or any part of the evidence or proceedings except in accordance with directions by the court.
(3)On an application by the prosecution or an accused person a court may order any person who may be called as a witness in the trial or other criminal proceeding to leave the court‑room or place of hearing and to remain outside and beyond the hearing of the court until called to give evidence.
(4)Counsel or a solicitor engaged in the trial or other criminal proceeding shall not be excluded from the court‑room or place of hearing under this section.
(5)A person who contravenes or fails to comply with an order made under this section commits an offence punishable‑
(a)by the Supreme Court as for contempt; or
(b)after summary conviction, by imprisonment for 12 months or a fine of $10 000.
(6)Only the Attorney General or a person on his behalf may take proceedings for a contravention of or a failure to comply with an order made under this section.
Section 635A was repealed by s 24 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) which came into force on 2 May 2005. No specific transitional or savings provisions were made. However, the order made in 1992 remained in force pursuant to s 37(1) of the Interpretation Act 1984 (WA). That section relevantly provides as follows:
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears ‑
…
(b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
…
(d)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
(e)subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
By virtue of s 37(1)(d) of the Interpretation Act any breach of the suppression order that occurred prior to the repeal could be prosecuted at any time even after the repeal as a liability in that regard was incurred prior to the repeal. Where a breach occurred after the repeal s 37(1)(d) could be relied upon insofar as an obligation to obey the lawful orders of the court was created prior to the repeal. A breach of this obligation occurring after the repeal of s 635A would be punishable under the general law of contempt. Thus, notwithstanding the repeal of s 635A breaches of the suppression order, whether occurring before or after the repeal are punishable as contempts of court.
The plaintiff alleged that the breaches of the order had occurred on 24 November 2002 and on 27 March 2010. He alleged that a number of media organisations and a private individual had committed contempts by publishing the contents of exhibits that had been the subject of the 1992 suppression order. In respect of the alleged 2002 contempts the provisions of s 635A of the Criminal Code remained operative. Any proceedings under that section could only be brought by the Attorney‑General: s 635A(6). However, s 7 of Appendix B to the Criminal Code Act Compilation Act 1913 (WA) also preserved the inherent authority of the Supreme Court to punish contempt of court which could include disobedience of a lawful order of a court. Thus, it is clear that a breach of the suppression order occurring in 2002 could be the subject of proceedings under s 635A or proceedings for common law contempt.
In respect of the alleged 2010 contempt, whilst any such contempt could not be prosecuted under s 635A, the Attorney‑General could initiate a prosecution for common law contempt by virtue of the prerogative powers attaching to the office of the Attorney‑General.
2010 proceedings in the Children's Court
On 1 April and 27 May 2010 the plaintiff purported to initiate prosecutions in the Children's Court for the alleged 2002 and 2010 contempts. There was an issue regarding his standing to bring those proceedings which was ultimately resolved against him. In any event on 12 May 2010 he wrote to the Attorney‑General setting out the basis for the proceedings that he had brought. In the letter of 12 May 2010, the plaintiff requested that the Attorney‑General assess the materials provided by him, determine whether the proceedings should be removed from the Children's Court to the Supreme Court, intervene and take a role in the proceedings or alternatively direct the Office of the Department of the Public Prosecutor or the State Solicitor's Office to take them over on behalf of the State.
The Attorney‑General declined the plaintiff's requests by letter dated 4 August 2010. The relevant parts of that letter read as follows:
The Children's Court has specific statutory power to punish as contempt certain misbehaviours, but does not have specific statutory power to punish breach of a non‑publication order, unless that non‑publication order relates to the identity or identifying details of a child involved in the proceedings. The two non‑publication orders made in 1992 which are relevant to the Applications, did not relate to the identity of a child involved in the proceedings. Consequently, the Children's Court does not have jurisdiction to punish the contempt the subject of the Applications.
I am of the view that there is no justification or authority for your initiating or maintaining private prosecution proceedings in relation to the non‑publication orders, let alone unilaterally purporting to do so on behalf of the State of Western Australia. Further, the proceedings are an abuse of process. Even if it could be argued, in these circumstances, that the newspaper articles you complain of might constitute a breach of the first non‑publication order, it would not serve the public interest to prosecute any such breach. Indeed, you recognised the adverse affects of prosecuting such matters when you requested the then Attorney General, Mr Jim McGinty MLA, on 22 January 2003 'not [to] commence actions for contempt of Court (sic) proceedings' relating to The Sunday Times publication. The concerns upon which your request was based remain valid, in my view: there is no good reason to further distress Mr Groves or his family.
Consequently, the State of Western Australia, which is inappropriately joined by you as Second Applicant will not support your Applications, and, in accord with the public interest, will not institute separate proceedings to prosecute those alleged breaches of the non‑publication orders.
Present proceedings for declarations
By notice of originating motion the plaintiff then sought declarations from this court, in the following terms:
a.A declaration that the Defendant has erred in law in deciding, a priori, that the Defendant will not take proceedings against any future claimed contemnor(s) concerning any possible future breaches of the two‑part non‑publication order pronounced by the then Learned President of the Children's Court on 13 August 1992, in relation to the contents of three exhibited diaries;
b.A declaration that the Defendant, as the first law officer of this State, has breached his Oath of Office in deciding not to take proceedings against the present claimed breaches of the two‑part non‑publication order ‑ a matter tending to defeat the proper administration of justice, and tending to lower the community's perception of the need of any person(s) or corporation(s) to comply with pronounced judicial orders;
c.A declaration that the Defendant has erred in law by enlarging the guidelines and principles prescribed by the Victims of Crime Act 1994.
The proceedings brought by the plaintiff proceed upon an assumption that a discretionary decision by the Attorney‑General not to bring proceedings for an alleged contempt is reviewable by the court. It is to be noted that neither s 635A nor any other statute imposes a duty on the Attorney‑General to prosecute or to consider prosecuting contempts of court or to take any other action. Properly understood, s 635A only serves to limit those who could bring proceedings under that provision. It did not oblige the Attorney‑General to bring proceedings nor did it set down the circumstances in which he could do so.
Is the Attorney‑General's decision reviewable?
Discretionary decisions relating to the commencement of proceedings are not generally amenable to review. In Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 the High Court considered the exercise of a statutory power by the Attorney‑General of New South Wales to present an ex officio indictment. Gibbs ACJ and Mason J said at (94):
The provision made by s 5 is very different from an ordinary administrative discretion conferred by statute. The section is a self‑contained provision the scope of which is unaffected by other provisions in the statute. It imposes no duty on the Attorney‑General to consider whether a prosecution shall be instituted. All that the relevant part of the section does is to indicate the mode in which a criminal prosecution shall be instituted, ie by information in the name of the Attorney‑General or other officer duly appointed for the purpose. The provision does not limit or restrict the Attorney‑General in any way in the consideration which he may give to a particular case. And because the language leaves the Attorney‑General at large in deciding what course he shall take, it makes his decision immune from judicial review.
Whilst the courts retain the power to prevent an abuse of process once proceedings have been commenced, that exceptional power does not encompass any general ability to review the discretionary decisions of a prosecutor. The abuse of process power is part of the inherent jurisdiction of the court which exists so that the court may protect its own processes in appropriate cases: Barton v The Queen (96) (Gibbs ACJ & Mason J, Aickin & Wilson JJ concurring), (103) (Stephen J), (107) (Murphy J).
There are important policy reasons why decisions to commence, or not to commence proceedings, should not be the subject of judicial review. In Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, Gaudron and Gummow JJ said at (534):
The integrity of the judicial process ‑ particularly, its independence and impartiality and the public perception thereof ‑ would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.
Similarly in Barton v The Queen Gibbs ACJ and Mason J said at [94] ‑ [95]:
It would be surprising if Parliament intended to make the Attorney's information subject to review. It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced ‑ see the speeches in Connolly v Director of Public Prosecutions [1964] AC 1254 and Director of Public Prosecutions v Humphrys [1977] AC 1.
In Re Evans; Ex Parte Clyne (1984) 2 FCR 56 Wilcox J considered whether the power of the Commonwealth Attorney‑General pursuant to s 71 of the Judiciary Act 1903 (Cth) to decline to proceed with the prosecution on indictment imposed a duty to consider a request for him to not proceed with a particular prosecution. At page 59 his Honour said:
There is abundant authority for the principle that, at common law, the Attorney‑General is not amenable to the courts in relation to the way he exercises or fails to exercise his prerogative powers to institute or to discontinue proceedings, whether criminal or civil: see Barton v The Queen (1980) 147 CLR 75 at 89 ‑ 92 and the cases cited therein; R v Comptroller‑General of Patents (1899) 1 QB 909 especially at page 914 where the statement is made by A L Smith LJ that the power of the Attorney‑General to enter a nolle prosequi 'is not subject to any control', London County Council v Attorney‑General [1902] AC 165 at 168 ‑ 169 and Gouriet v Union of Post Office Workers [1978] AC 435. This position remains even in relation to a prerogative power of the Attorney‑General now enshrined in statute law as in Barton's case itself.
In my view it is abundantly clear that the discretion of the Attorney‑General to bring proceedings for contempt, whether based upon the former s 635A of the Criminal Code or on the common law, is not one that is susceptible to review by this court. It was suggested by the plaintiff that the cases are limited to only specific prerogative powers, being the power to enter a nolle prosequi and the power to bring an ex officio indictment. This does not seem correct to me; in any event it is clear from the cases referred to that a power to bring, or decline to bring, criminal proceedings that is unlimited by any statutory constraints falls within those discretionary powers which are not reviewable. In such matters the Attorney‑General is accountable to Parliament, and not to the courts for the manner in which he discharges his discretionary authority: London County Council v The Attorney‑General [1902] AC 165 (Lord Halsbury), referred to in Barton v The Queen (91). In these circumstances there is no proper basis for the application for declarations in this case and it must be dismissed.
Is there any basis for challenging the decision?
However, even if I was wrong and the Attorney‑General's decision was susceptible to review, the application for declarations could not succeed. This is because the plaintiff's application proceeds upon an interpretation of the Attorney‑General's letter of 4 August 2010 that is not reasonably open. The plaintiff has interpreted that letter as stating that the Attorney‑General would not bring proceedings for contempt in respect of the suppression order at any time in the future and in particular, that he would not bring proceedings against the father of the victim because to do so would be contrary to the considerations contained in the Victims of Crime Act 1994 (WA).
It is apparent that the plaintiff has placed inappropriate emphasis on the words 'any such breach' appearing in the letter. When those words are read in context it is clear that they are a reference to a principled decision being made on the basis of the circumstances as described. They cannot reasonably be understood as indicating the future intentions of the Attorney‑General. The letter does not state that the Attorney‑General has decided never to prosecute any future or hypothetical breach of the suppression orders in question. Nor does the letter purport to create a class of persons who are immune to prosecution for contempt, that is, victims of crime or their families, as is suggested by the plaintiff.
The plaintiff also sought to argue that the Attorney‑General as a Member of Parliament had taken an oath which obliged him to prosecute any breach of a judicial order. There is simply no proper basis for that conclusion.
In these circumstances the application must be dismissed.
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