I.F. Armitt v Johnston, E
[1990] FCA 178
•05 MARCH 1990
Re: I.F. ARMITT and OTHERS
And: ELLIOTT JOHNSTON
No. G82 of 1990
FED No. 178
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)
CATCHWORDS
Administrative Law - Royal Commission into aboriginal deaths in custody - inquiry into death of John Peter Pat - review of refusal to prohibit publication of evidence - risk of prejudice to associated defamation trial - whether error of law - whether improper exercise of power - whether failure to take into account relevant considerations - whether unreasonable.
Administrative Decisions (Judicial Review) Act 1977 s.5(1)(e), s.5(1)(f), s.5(2)(b), s.5(2)(g).
Royal Commissions Act 1902 (Cth), s.6D(3).
Royal Commissions Act 1968 (W.A.), s.19(3).
The State of Victoria and Anor v The Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25.
Minister for Aboriginal Affairs and Anor v Peko Wallsend Limited and Anor (1986) 162 CLR 24.
HEARING
SYDNEY
#DATE 5:3:1990
Counsel for the Applicants: Dr. Flick
Instructed By: Corrs.
Agents for:
Messrs. Kott Gunning.
Counsel for the Respondent: S. Gageley
Instructed By: Attorney-General for
the Commonwealth.
Counsel for Mrs Mavis Pat: J. Basten
Instructed By: M. Herps
Aboriginal Legal Service Ltd. Agent for Aboriginal Legal Service of W.A. (Inc)
Counsel for the National
Aboriginal and Islander
Legal Services Secretariat: P. Coe
Instructed By: M. Herps
boriginal Legal Service Ltd. Agent for Aboriginal Legal Service of W.A. (Inc)
ORDER
1. The application be dismissed.
2. The applicants pay the respondent's costs.
3. The applicants pay the costs of Mrs. Mavis Pat.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicants, by notice of motion, have sought interlocutory relief in proceedings instituted by them by way of application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Act").
The applicants are four officers of the Western Australian Police Force. The respondent is the Commissioner appointed under the Royal Commissions Act 1902 (Cth) pursuant to letters patent dated 27 April 1989, and Royal Commissioner appointed under the Royal Commissions Act 1968 (W.A.) pursuant to letters patent dated 8 August 1989. The Royal Commission is generally described as the Royal Commission into Aboriginal Deaths in Custody.
The respondent is to commence an inquiry on 6 March 1990 into the death of one John Peter Pat, who died in police custody at Roebourne in Western Australia on 28 September 1983. As the application is for orders which would affect the conduct of these proceedings I have been asked by all parties to treat the proceedings before me as seeking final and not mere interlocutory relief. I have agreed to this course.
The applicants have been represented by one counsel. The respondent is represented by counsel briefed by the Attorney-General for the Commonwealth who has argued against the granting of the relief sought. I have granted leave to Mrs Mavis Pat, the mother of the deceased, to appear by counsel and also the National Aboriginal and Islander Legal Services Secretariat. Both the latter person and the body have been granted rights of appearance before the respondent in the inquiry.
The history of events leading up to the application before me can be stated briefly. The applicants were involved in the arrest of John Peter Pat on the evening of 28 September 1983. He died whilst in the custody of the police after that arrest. A coronial inquest into his death was held and, as it appears from the evidence before me, the coroner found that the deceased had died in Roebourne Police Station lockup as a result of a closed head injury and further, that the evidence warranted the committal for trial of the applicants on charges of manslaughter.
This trial took place at Karratha, a town not far from Roebourne. The applicants were acquitted after a jury verdict of not guilty. The death, the inquest and the trial all received most extensive publicity in all branches of the media. This case amongst others led to the establishment of the Royal Commission. It is clearly to be expected that the hearings of the Royal Commission will attract great media publicity and general community interest.
On 25 September 1985 the Australian Broadcasting Corporation telecast a programme on its Four Corners series which, inter alia, dealt with the death of John Pat and the events associated with it. The present applicants considered themselves defamed by aspects of that programme. They have brought an action for defamation in the Supreme Court of Western Australia.
Although the evidence is not clear, it would appear that, if outstanding preliminary matters are dealt with promptly and an order for expedition is obtained from the Supreme Court, the actions could probably come on for trial before the end of this year. The pleadings, as they presently stand, indicate clearly enough that the same factual areas as will be explored in the inquiry before the respondent relating to the alleged involvement of the applicants in Mr Pat's death, will be explored under the Corporation's plea of truth.
Concern as to this matter prompted the applicants' legal advisers to make an application to the respondent that he should make an order pursuant to s.6D(3) of the Royal Commissions Act 1902 (Cth) and s.19(3) of the Royal Commissions Act 1968 (W.A.), that any evidence given "concerning the Commission's inquiries into matters touching upon the death of John Peter Pat be restricted from publication". The application related to evidence given in any form. It was not an application that the inquiry to take place at Roebourne be held in camera but that publication by the media of evidence given at the inquiry be totally prohibited.
The sections are in similar terms and clearly confer power upon the Commissioner to make the order sought. S.6D(3) of the Royal Commissions Act 1902 (Cth) reads as follows:
"The Commission may direct that:-
(a) any evidence given before it;
(b) the contents of any document or
description of anything produced before or
delivered to the Commissioner; or
(c) any information that might enable a person who has given evidence before the Commission to be identified,
shall not be published or shall not be published except in such a manner and to such persons as
the Commission specifies."
In fact, it appears that the respondent has already indicated that, subject to application being made to him on that behalf, he would make appropriate orders at this stage prohibiting the publication of the names of the applicants.
The respondent heard submissions as to the orders sought. He gave a lengthy and reasoned ruling (exhibit E to the affidavit of Colin Edward Chenu of 22 February 1990) in which he refused the order in the form sought. He made it clear, however, that he would entertain any applications during the hearing for the prohibition of publication of particular pieces of evidence, should the occasion arise.
These proceedings are brought under the Act in respect of the respondent's decision given in this ruling. Reliance is placed on s.5(1)(f), in that it is submitted that the decision involved an error of law; s.5(1)(e), in that it is submitted that the decision was an improper exercise of the power conferred on the respondent by s.6D(3) of the Royal Commission Act; s.5(2)(b) in that he failed to take relevant considerations into account; and s.5(2)(g) in that the exercise of the power was so unreasonable that no reasonable person would have so exercised it. It is necessary, therefore to consider the reasons of the respondent for his ruling and the specific matters in relation to those rulings which are relied upon by the applicants as grounding the relief sought.
The basic submission made to the respondent was that the publication of the evidence, having regard to the proximity of the jury trial for defamation, would inevitably constitute a contempt of court on the part of a publisher in that it could have such an impact on the minds of potential jurors as to produce a real risk that the course of justice would be interfered with. Reliance was placed on the principles expounded in The State of Victoria v The Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 ("the BLF case")
The respondent was in effect being asked to prohibit publication in order to prevent the Australian Broadcasting Corporation and others committing a contempt of the Western Australian Supreme Court. The respondent quite correctly (see the BLF case p 56 per Gibbs CJ.) held that he must approach this submission on the basis that media reporting of the proceedings before him would be fair and accurate. If it were not so, then appropriate proceedings could be taken against the persons making the report.
The respondent accepted the submission on behalf of the applicants that the appropriate test for contempt was to be found in the judgment of Gibbs CJ. in the BLF case at p 56 where His Honour said:
"There is a contempt of court of the kind
relevant to the present case only when there is an actual interference with the administration of justice, or a 'real risk as opposed to a remote possibility' that justice will be interfered
with: cf. Attorney-General v Times Newspapers
Limited (1974) AC at p 299. The essence of this kind of contempt is a 'real and definite tendency to prejudice or embarrass pending proceedings': John Fairfax and Sons Pty Ltd v McRae (1955) 93 CLR 351, at p 372."
I do not understand it to be submitted here that the respondent erred in so doing. He clearly did not. The respondent then considered, on the basis that fair and accurate reporting would occur, whether he was satisfied that there existed a real risk that justice would be interfered with in the pending defamation proceedings if he did not make the order sought. He was not so satisfied. In reaching this conclusion he gave consideration in his reasons to specific arguments placed before him on behalf of the present applicants. It is in respect of some of these that it is now put that he fell into relevant error.
In the first place it was submitted that he erred in respect of the significance he accorded to prior publicity arising from the previous inquest and trial. It appears that it was put to him, on behalf of the applicants, that the extensive prior coverage of the facts in the media should support the making of the orders sought, insofar as the necessary balancing of the public interest in obtaining information on matters of public concern against the public interest in the proper administration of justice required such a result, the reason being that the previous publicity of the same facts should reduce the necessity for providing further information to the public by the reporting of the Commission's proceedings.
The respondent's reasons, in my view, make it quite clear that he was fully seized of this argument. He deals with it by pointing to passages in the BLF case (pp 97 and 99 per Mason J.;p 60 per Gibbs CJ.) which emphasise the major importance of open inquiries into "public abuses actual or supposed". The fact that the respondent speaks of the point as not being "greatly relevant" does not assist the applicants. He has clearly considered the matter and accorded it some relevance. The weight he gives it in his deliberations is a matter for him as the decision maker (Minister for Aboriginal Affairs and Anor v Peko Wallsend Limited and Anor (1986) 162 CLR 24 per Mason J. at p 41). This point fails.
Next it was put that, although the respondent acknowledged that the fact that the inquiry would be conducted on the basis that he was not bound by the rules of evidence called for "serious consideration", he had nevertheless not considered the matter. The submission to him clearly was that reporting of matters placed before him which would be excluded in a court of law by the rules of evidence could lead to potential jurors learning of matters of which they would not be permitted to be informed at the trial.
The simple answer is that his reasons make it abundantly clear that he did give the matter consideration. He refers to the fact that the applicants representatives had "said everything that could be said in support of it". He refers to the public becoming aware of "press material presented other than in accordance with the rules of evidence" and the instructions given by "presiding Judges to decide the case on the evidence and putting other material out of mind". The matter was clearly considered; its weight was for him. This point also fails.
It was thirdly put that, although the respondent referred to the fact that the civil trial would be conducted before a jury as also something that called for "serious consideration", he either did not consider it or, in considering it, misapplied the principles of the BLF case.
It is perfectly clear , in my view, that he did consider the matter. It is also clear that he had in mind the matters relating to the particular susceptibility of jurors to extraneous influence, as opposed to the impervious quality of the judiciary (see the BLF case per Gibbs C.J. at p 57; Mason J. at pp 95,102,103). He mentions that very fact in his reasons. He discusses the factors which could militate for and against the existence of a real risk of potential jurors being influenced. I can see no failure to take the matter into account or give appropriate weight to it. This point also fails.
What I have just said is probably sufficient to dispose of the applicants' final point. The respondent's consideration of relevant matters in the context of correct application of the law militates strongly against his ultimate finding being so unreasonable as to indicate some otherwise undisclosed error. I do not find the decision to be unreasonable. The respondent has simply refused to order a blanket prohibition of the publication of evidence given in a hearing which will undoubtedly attract widespread public interest and concern at a national and, to an extent, an international level.
His ruling is not inconsistent with the making of the appropriate prohibitory orders during the course of the hearing in respect of portions of the evidence if special reasons arise for so doing. The particularly damaging effect of hearsay and opinion evidence may well provide the ground for such an order. Indeed, the respondent in his reasons for his ruling had already indicated that he will consider during the course of the hearing appropriate applications for such orders.
I am satisfied that no grounds under the Act have been shown for the intervention of this court. It would follow that the application must be dismissed. I so dismiss it and order the applicants to pay the respondent's costs.
Counsel for the intervening party, Mrs Pat, has also asked for costs. Ordinarily, I would not make such an order. However, special considerations apply in this case. I am satisfied that it was not made known to Mrs Pat's advisers until very late that the Attorney-General would be appearing to oppose the application. Mrs Pat clearly had a most vital and legitimate interest in the inquiry. It was most reasonable that she should seek to oppose this application. Her appearance through counsel has been of assistance to the court. The failure of communication between the Attorney-General's Department and her legal advisers resulting in their ignorance of the intention of the Attorney-General to appear is explicable, in my view, on the basis that these proceedings were, at the option of the applicants, brought in Sydney.
In all the circumstances, I consider it appropriate that I order the applicant to pay the costs of Mrs Pat and I so order.