R v Brisbane TV Ltd

[1995] QSC 74

IN THE SUPREME COURT

OF QUEENSLAND
  Motion No. 187 of 1995

Before Mr Justice Dowsett

[R v Brisbane TV Ltd]

T H E     Q U E E N

v.

BRISBANE TV LIMITED

AND:

CHRISTOPHER ADAM

AND:  

PETER MAHON

Ex parte:

CRIMINAL JUSTICE COMMISSION

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 03/05/1995

CATCHWORDS:     Criminal Justice Act 1989 - Proper contents of a certification of a contempt of the Criminal Justice Commission under s.107 - inherent power of the Court to strike out parts of the certificate which have the capacity to embarrass the conduct of the proceedings by raising false issues.

Counsel:  Mr Chesterman QC with Miss O'Reilly for Applicants

Mr Mulholland QC with Mr Applegarth for   Respondents

Solicitors:        R A Marxson, Official Solicitor Criminal Justice   Commission for Applicants

Freehill, Hollingdale & Page for Respondents

Hearing Date:   7 March 1995

IN THE SUPREME COURT

OF QUEENSLAND
  Motion No. 187 of 1995

Before Mr Justice Dowsett

[Re: R. v. Brisbane T.V. Limited]

T H E     Q U E E N

v.

BRISBANE TV LIMITED

AND:

CHRISTOPHER ADAM

AND:  

PETER MAHON

Ex parte:

CRIMINAL JUSTICE COMMISSION

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 03/05/1995
           On 15 and 16 November, 1994 the first respondent, Brisbane T.V. Limited, telecast programmes on Channel 7, Brisbane in which trenchant criticism was made of the applicant, the Criminal Justice Commission.  The criticism related to the Commission's handling of a number of matters including, in particular, allegations concerning paedophilia.  The applicant alleges that the telecasts constituted contempt of the Commission and asks the Court to deal with Brisbane T.V. Limited and two persons involved in the telecasts, Adam and Mahon, for such contempt.  Although the Commission considers that various aspects of the programmes were contemptuous, it asks only that the Court deal with the respondents in connection with their treatment of the paedophilia issue, being content to leave the others matters for resolution in the public domain.
Section 106 of the Criminal Justice Act 1989 defines contempt of the Commission.  Sub-paragraph(e) relevantly provides:

"(A person who) by writing or speech, uses words that are false and defamatory of the Commission, any commissioner, a person constituting a Misconduct Tribunal or any person conducting proceedings of the Commission (is guilty of a contempt of the Commission)."

Section 107 provides for punishment of contempt as follows:

"(1)A contempt of the Commission may be punished in accordance with this section.

(2)The chairperson may certify the contempt in writing to the Supreme Court.

(3)Where the chairperson certifies the contempt of a person to the Supreme Court -

(a)the Supreme Court shall inquire into the alleged contempt; and

(b)after hearing any witnesses who may be produced against or on behalf of the person charged with the contempt and after hearing any statement that may be offered in defence, the Supreme Court (if satisfied that the person is guilty of the contempt) may punish or take steps for the punishment of the person in like manner and to the like extent as if the person had committed the contempt in or in relation to proceedings in the Supreme Court; and

(c)the rules of court in force for the time being shall, with any necessary adaptations, apply and extend accordingly.

(4)       The chairperson's certificate of contempt is evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained in the certificate.

(5)       Neither liability to punishment nor punishment under this section for contempt of the Commission excuses the offender from attending before the Commission in obedience to any summons, and the offender's attendance may be enforced by warrant in accordance with this Act."

Statutory provisions for so certifying contempt of a subordinate tribunal are by no means uncommon.  It is also quite common for Parliament to confer evidentiary value upon averments by prosecuting authorities in documents which initiate prosecutions. It is not quite so common for such averments to be given conclusive effect, nor is it common to confer probative value upon a certificate of contempt.
           The respondents presently seek a declaration that the chairperson's certificate ought assert only matters of primary fact and not matters of law or mixed fact and law.  They also ask that the existing certificate be struck out on the ground that it does not comply with that prescription.  The form of the certificate is therefore fundamental to the present application, and I shall annex it to these reasons as part thereof, but without the exhibits, which are self-explanatory.
           The certificate asserts that certain imputations said to be made in the programmes are false and defamatory of the applicant. The respondents submit that if the certificate has evidentiary effect, then such assertions, if validly made, are already proven.  They submit that they have therefore been convicted of contempt by the certificate, subject only to a right of appeal to the Court.  They urge that such a result cannot have been intended by Parliament because it would mean that the chairperson is both complainant and judge in the proceedings, such a position being inconsistent with the statutory obligation upon the Commission to act impartially.  Therefore, it is submitted, the Act should be construed as not permitting the inclusion in the certificate of assertions of mixed fact and law or ultimate conclusions such as that the respondents have committed contempt.  It is asserted that paras.9, 10 and 11, in particular, contain matter which, "it was not proper to certify".
           The applicant takes a different view of the effect of the certificate, distinguishing  between the process of certification and the evidentiary effect of the certificate.  It submits that the certifying process is designed to remove the matter into the Supreme Court, so that the Court may determine the charge of contempt.  This is consistent with the view taken of a similar provision in R. v. Clough [1963] 1 QB 773 at p. 785 and subs. 107(3) of the present Act, which clearly requires the Court to reach its own conclusion in the matter. Whatever may be certified, it is for the Court to determine whether there has been a contempt.  The certifying process is clearly not intended to pre-empt the Court's judgment, and nothing included in a certificate can have that effect.  The respondents' primary submission is therefore without merit.  However the respondents are also anxious to know with certainty the extent to which the case against them may be proven by the certificate.  Clearly, only matters properly included in the certificate will be entitled to statutory evidentiary effect.  Such propriety must be determined by reference to the Act.  
           As the certificate is an originating process, one would expect it to contain the facts alleged as constituting the contempt.  The cases support this view.  In Adelaide Steamship Co Ltd v. The King (1912) 15 CLR 65 at p.102, the High Court said of an averment, the content of which was to be deemed proven in the absence of evidence to the contrary:

"... we think that the term 'averment' must be confined to pure allegations of fact, and does not include an allegation of a conclusion of mixed law and fact. It is settled law that the question whether an agreement in restraint of trade is unenforceable on the ground of being unreasonable is a question of law.  The question whether a price is unreasonable for the purpose of the inquiry in which we are engaged would seem to be a mixed question of law and fact. In such a connection the mere allegation that a price is unreasonable is no more conclusive than a mere allegation that an act is fraudulent, to which, as is often said, no Court will pay any attention."

In The King v. Hush; Ex parte Devanny (1933) 48 CLR 487, Gavan Duffy CJ and Starke J said, at pp. 500-501, in connection with a statutory provision (s.30R) conferring prima facie effect on an averment:

"But these provisions do not amend or alter what may be called the rules of pleading or the rules regulating the statement of the offence charged.  Every offence consists of acts done or omitted under certain circumstances.  Unless some statutory provision exists to the contrary, the facts and circumstances constituting the offence should be stated, and in cases in which the provisions of s.30R are relied upon they should be stated fully and with precision.  But it is not right to set out evidence supporting the allegation of the offence.  Still less is it right to state irrelevant facts merely giving colour to the prosecution.  And in our opinion it is not sufficient, under the provisions of s.30R to state evidence from which the result or fact necessary to sustain the offence charged may be inferred, without any allegation of the fact or result itself.  The averments should be so stated that they are sufficient in law to constitute the offence charged.  Again, in the present case it should be observed that the generality of the statement of the offence in the opening paragraph of the information must be limited and understood in the sense particularly stated in the relevant averments or particulars which follow it."

At pp. 507-8 Dixon J said:

"Section 30R(1) of the Crimes Act provides that in a prosecution of the present description the averments of the prosecutor contained in the information shall be prima facie evidence of the matter averred.  It is to be noticed that this provision, which occurs in a carefully drawn section, does not place upon the accused the onus of disproving the facts upon which his guilt depends but, while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus.  The averment that the contributions were solicited for the association called the Communist Party must be considered with the text and context of the solicitation itself and with the other material in the case."

At p. 515 Evatt J. said:

"It is not necessary to labour the point further.  In my opinion it was within the competence of the magistrate to strike out from the information everything except the short statement of the offence.  Further, I think that it was his duty to cause to be stated to the defendant, not the whole information, which we are told, took no less than three hours to read, but only the substance of the charge. ... In my opinion, such information ... is an abuse of the process of the Court ..."

At p. 519 McTiernan J. said:

"The probative value of the averment that contributions of money were solicited for the Communist Party does not, in my opinion, rise higher than the evidence which the prosecutor gave of the complete terms of the entire solicitation and which is the only evidence relating to it in the case.  I am not satisfied beyond reasonable doubt that the terms of that solicitation, upon which the prosecutor relied, prove that the appellant solicited contributions of money for the Communist Party of Australia."

Some of the comments about onus of proof may be less persuasive in the context of cases such as the Adelaide Steamship case or the present one, where the averments have conclusive effect in the absence of evidence to the contrary, but it is not necessary to consider that matter for present purposes.  The King v. Hush, in my view, demonstrates the proper content of an averment in a complaint.  I see no basis for distinguishing between a complaint of that kind and the certificate presently in issue.
           The cases also raise the question of whether the prosecutor may rely upon an averment where it chooses to lead evidence.  This matter has been discussed in a number of cases, commencing with Adelaide Steamship (supra) and including Gabriel v. Ah Mook (1924)34 CLR 591 at p. 595 and Cato v. Costello; Ex parte Costello [1939] St. R. Qd. 318 at pp. 322-3. See also Macarone v. McKone [1986] 1 Qd R 284. It is not necessary for me to consider this matter further. It will be a matter for the Judge determining the matter, having regard to the way in which the applicant conducts proceedings at the hearing.
           It is desirable that the respondent be able to prepare for the hearing with knowledge of the precise effect of the certificate.  It is therefore necessary that I determine which parts of it are properly included.   Paragraphs 1 to 8 are, in all respects, factual and no significant criticism is made of them.  They concern matters which are almost certainly within the knowledge of the respondents and/or are unlikely to be controversial.  They assert essential factual elements of the alleged contempt. 
           Paragraphs 9 and 10 are more difficult to support.  Paragraph 9 records a letter sent to the respondents, inviting them to show cause why the chairperson should not certify their contempt.  Paragraph 9.1 specifies other items of correspondence which followed that letter.  I am unable to see any relevance in these matters.  The applicant submits that para 9 is relevant as, "showing that the respondents were afforded an opportunity to show cause why the chairperson should not issue a certificate."  However, no question of procedural fairness has been raised.  Some reference was made by the applicant to ss 108 and 143.  Section 108 provides for the Commission to summon alleged contemnors to show cause why they should not be dealt with for contempt.  It is clear that the letter referred to in para.9 was not such a summons.  It is not suggested that the applicant proceeded in accordance with s.108, and the parties agree that it was not necessary that it do so. There is therefore no issue arising under that section.  Section 143 is also an evidentiary provision providing for the proof by certificate of matters relevant to an investigation by the Commission and other similar matters.  It has no apparent present relevance.  The content of para 9 is not relevant to establish any matter likely to be in issue in these proceedings.
           Paragraph 10 recites that the respondents have not shown cause in response to the invitation and that they have not offered to withdraw the imputations or to apologise.  These matters are also not relevant to the proceedings, although they may be relevant on the issue of punishment.  It is not the practice to plead matters which go to punishment, save where a circumstance of aggravation is prescribed in the relevant legislation.  Paragraph 10 has no relevance in these proceedings.             Paragraph 11 asserts that the respondents,

"... are guilty of contempt in that they falsely imputed that the Commission:-

(a)corruptly suppressed evidence of paedophilia;

(b)gave into pressure by powerful people to suppress such evidence;

(c)forced an officer (Mahon) to resign when he refused to cover up such evidence on the pretext of an allegation that he had disclosed confidential information ..."

The allegation that the material was false is clearly a question of fact.  As to the implicit allegation that it defamed the applicant, it is well-established in defamation proceedings that whether a publication is capable of bearing a defamatory meaning is a question of law, whilst the question of whether the publication was defamatory is a question of fact.  See s.367 of the Criminal Code; Gatley on Libel and Slander (8th ed) para.119.  There is no reason why the rule should be otherwise in these proceedings.  It is theoretically possible to argue that although the chairperson cannot pre-empt the Court's decision on the issue of law, if the words are found to be capable of having a defamatory meaning, then the factual questions as to whether they were defamatory and false may be proven by the certificate.  I consider, however, that the better view is that the words in s.107(3)(b), "if satisfied that the person is guilty of the contempt", confer jurisdiction on the Court to determine the ultimate issue of whether there was a contempt, involving determination of both falsity and defamatory effect.  The reservation to the Court of the question of contempt implicitly excludes the possibility that such matters may be proven by certificate. 
           Although para 11 may not have a probative effect, Adelaide Steamship (supra) and The King v. Hush (supra) make it clear that a mere assertion of the consequences said to flow from the particulars contained in an averment should not be taken as being any more than that.  It is common in criminal proceeding to assert the offence of which it is said the accused is guilty.  It is appropriate that the same course be followed here in order that the respondents be put on notice of the charge against them.  Paragraph 11 is defensible upon this basis.
           In the circumstances, I consider that para.9 (including par.9.1) was inappropriately included in the certificate.  Evatt J observed in The King v. Hush (supra)that the Court may act to prevent an abuse of process in such a case.  Although I would not suggest that para 9 is an abuse of process, its presence has the capacity to embarrass the conduct of the proceedings by raising false issues.  It is within the inherent power of the Court to strike out such a paragraph, and I would do so.  Paragraph 10 should be similarly excluded.  Paragraph 11 should stand, but upon the limited basis to which I have referred.