Re Kennedy
[2002] WASC 190
RE KENNEDY; EX PARTE CROZIER & ORS [2002] WASC 190
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 190 | |
| 31/07/2002 | |||
| Case No: | CIV:2035/2002 | 24 JULY 2002 | |
| Coram: | MURRAY J | 24/07/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for order nisi dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES SAMUEL CROZIER "X" MATTHEW JOHN KEEGAN ROBERT ALLAN CORRY MARIANO CALZADA IAN THOMPSON OWEN HARTLEY WILLIAMS KEVIN CHARLES BAKER GEOFFREY ALEXANDER KENNEDY (PERSON), AS THE ROYAL COMMISSION INTO WHETHER THERE HAS BEEN ANY CORRUPTION OR CRIMINAL CONDUCT BY WESTERN AUSTRALIAN POLICE OFFICERS |
Catchwords: | Administrative law Application for order nisi for certiorari Alleged error of law on face of record Turns on own facts |
Legislation: | Royal Commissions Act 1968 (WA), s 7(1), s 19A Royal Commission (Police) Act 2002 (WA), s 12(1) |
Case References: | Australian Securities Commission v Bell (1991) 104 ALR 125 National Crime Authority v A, B and D (1988) 78 ALR 707 Re Whiting [1994] 1 Qd R 561 Stockbridge v Ogilvie (1993) 43 FCR 244 Talbot v Lane (1994) 14 WAR 120 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- "X"
MATTHEW JOHN KEEGAN
ROBERT ALLAN CORRY
MARIANO CALZADA
IAN THOMPSON
OWEN HARTLEY WILLIAMS
KEVIN CHARLES BAKER
Applicants
AND
GEOFFREY ALEXANDER KENNEDY (PERSON), AS THE ROYAL COMMISSION INTO WHETHER THERE HAS BEEN ANY CORRUPTION OR CRIMINAL CONDUCT BY WESTERN AUSTRALIAN POLICE OFFICERS
Respondent
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Catchwords:
Administrative law - Application for order nisi for certiorari - Alleged error of law on face of record - Turns on own facts
Legislation:
Royal Commissions Act 1968 (WA), s 7(1), s 19A
Royal Commission (Police) Act 2002 (WA), s 12(1)
Result:
Application for order nisi dismissed
Category: B
Representation:
Counsel:
Applicants : Mr R J Davies QC & Mr J C Hammond
Respondent : Mr G T W Tannin & Mr N Bastow
Solicitors:
Applicants : Hammond Worthington
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Australian Securities Commission v Bell (1991) 104 ALR 125
National Crime Authority v A, B and D (1988) 78 ALR 707
Re Whiting [1994] 1 Qd R 561
Stockbridge v Ogilvie (1993) 43 FCR 244
Talbot v Lane (1994) 14 WAR 120
(Page 3)
Case(s) also cited:
Nil
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1 MURRAY J: This was an application for an order nisi for a writ of certiorari to quash what is described as a decision of the respondent made on 17 July 2002. The decision is described as one refusing the first and second applicant's permission to be represented by counsel of their choice, a Mr Robbins, and by the solicitors, Hammond Worthington. It is clear, I think, that the respondent made no decision that the applicants, or any of them, should not be represented by the one firm of solicitors. His ruling was solely concerned with their capacity to be represented by one counsel at various private hearings of the Commission. It was not argued that such a ruling or decision was not one amenable to review by the grant of an order nisi for certiorari directed to having the decision quashed on the return of the order.
2 The application for certiorari was made under the Rules of the Supreme Court 1971 (WA), O 56 r 1 to have the order nisi made returnable before the Full Court or alternatively before a single Judge. At the order nisi stage my task was to consider whether the applicants could show an arguable case that upon the return of the order nisi an order absolute would be made or a writ would issue. The purpose at this stage is to eliminate those cases which have no prospect of success, on a cursory examination by the court of the matters at issue: Talbot v Lane (1994) 14 WAR 120, 152. The hurdle to be cleared by the applicants is at this stage relatively low, but upon the hearing of the application I formed the clear view that the applicants had no arguable prospect of success for their contentions and I therefore dismissed the application. These are my reasons for taking that course.
3 The application was grounded in the assertion that the respondent erred in law, the error being patent on the face of the record. For this purpose there was no contest between the parties that the record might be taken to be the relevant portion of the transcript of the hearing held privately by the Commission on 17 July 2002 and would incorporate, by reference in the transcript, the reasons subsequently published by the respondent: Craig v SA (1995) 184 CLR 163. I accept that it is important in such a case that one should bear in mind that the supervisory process involved in the grant of certiorari, "is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made": Craig at 175. In other words, argument as to the merits of the respondent's decision will not be entertained in the present context.
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4 The matter arises in this way. The applicants are all serving police officers. They presently serve in different branches of the Police Service but in 1997 all were members of the armed robbery squad and were involved in a particular investigation in respect of which there has, as I understand it, been an allegation or allegations of corrupt and, indeed, criminal conduct on the part of investigating officers.
5 The applicants have been served with summonses to attend private hearings of the Royal Commission. Those summonses do not give any indication of the subject matter of the particular investigation being made by the Commission. All that is done is to append to each summons a copy of the Commission's terms of reference and an information sheet. That sheet, interalia, tells the witness:
"You are entitled to be legally represented. You may consult with a legal representative of your own choosing prior to the hearing. The WA Government has established a fund to be administered by Legal Aid WA to provide legal assistance for serving and former police officers and public servants employed by the Police Service who are called as witnesses or served with notices or summonses by the Commission."
6 Each of the applicants consulted the solicitors Hammond Worthington who, upon their instructions, briefed Mr Robbins of counsel. Mr Robbins had earlier at a public hearing of the Commission on 28 March 2002 announced his appearance, together with other lawyers from Hammond Worthington, for a number of police officers or former police officers who, Mr Robbins deposes, have made complaints about corrupt conduct concerning police officers to the Commission.
7 On 12 July 2002 Mr Robbins appeared by leave of the respondent for one of the applicants, Mr Calzada, at a private hearing. On 17 July Mr Robbins again sought leave to appear for another of the applicants and he foreshadowed a similar application for a third. Counsel gave his undertaking to the respondent that he had not disclosed to these applicants and would not disclose to any of them, what questions had been or might be asked of them when appearing before the Commission as witnesses; nor had he or would he disclose to any such officers the answers given by others. Nonetheless, the application was opposed by counsel who was then assisting the Commission.
8 Counsel assisting submitted that the purpose of holding private hearings was to ensure that each witness with respect to a common matter
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- of investigation gave his evidence untainted by knowledge of what had been said by others, so that inconsistent accounts, if there might be any, would emerge and on the other hand, consistent evidence would have the greater probative force. I hope in that summary I have not done violence to counsel's submission. He added that in that context:
"Mr Robbins would be in the hopeless position of having a duty to convey to his client all that would be of assistance to his client and, on the other hand, a duty to this Commission not to reveal what was said, or the line of questioning in the earlier hearing."
In short, as counsel was at pains to tell the respondent, it was not sought to deprive the witnesses of legal representation, but the view taken was that Mr Robbins should not be permitted to act for more than one such witness. The respondent agreed and refused leave, whereupon Mr Robbins retired and, as it happens, the particular witness sought no adjournment but the private hearing continued without him being represented by counsel.
9 The error of law said to be inherent in that ruling is particularised in the application in effect as being that there were no grounds upon which the decision could reasonably be made. Mr Robbins had given the undertaking to which I have referred. It is argued that there was no apparent conflict of interest in fact or which might reasonably be perceived, between the various witnesses, and there was no demonstrable prejudice to the respondent's investigation. Again, in short and without, I hope, doing violence to the submissions, it is accepted that the respondent had a discretionary judgment to make but it is argued that there were no grounds upon which it was reasonably open to him to deny leave for counsel chosen by the applicants to appear for all of them.
10 This Royal Commission is established under the Royal Commission (Police) Act 2002 (WA) which, by s 4, is to be read as if it formed part of the Royal Commissions Act 1968 (WA) so that the provisions of the 2002 Act are in addition to and not generally in derogation of the provisions of the 1968 Act. A relevant provision of the 2002 Act is s 12(1), which allows the respondent to direct that there may be no publication, or no publication except as directed by the respondent, of evidence given before the Commission, the contents of statements, documents and the like produced to the Commission or seized in the course of its investigations, and information which may enable a person who has given evidence or may be about to give evidence before the Commission to be identified or located. There are obviously two elements of policy behind that section.
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- The first is that the Commission is given an ample power to quarantine particular aspects of its investigations from publication generally, or in particular circumstances, so as to preserve the integrity of its investigations and the second is to protect those who have been or might be witnesses from coming to any harm on that account.
11 Private hearings of the Commission are the subject of s 19A of the 1968 Act which is in the following terms:
"If a Commission is taking evidence in private, or conducting the inquiry in private, a person who is not expressly authorised by the Commission to be present shall not be present and, notwithstanding any other law —
(a) the Commission is not required to authorise the presence of any person except that when evidence is being taken from a witness in private a person authorised by the Commission to appear before it for the purpose of representing that witness is entitled to be present;
(b) the Commission is not required to make known to any person, during the course of the inquiry, the content or nature of any evidence taken in private."
12 It will be seen that it is not that section which gives the power to take evidence in private or conduct an inquiry in private. In my opinion, that power is derived from s 7(1) of the 1968 Act which, so far as material, provides:
"(1) Without in any way prejudicing, limiting or derogating from the power of a Commission in respect of the matter of its inquiry, a Commission may do all such things as are necessary or incidental to the exercise of its function as a Commission and to the performance of its terms of appointment, if any … ."
- Section 19A contains provisions, against that background, which are concerned with the powers of a Royal Commissioner as to the persons who may be present at a private hearing and as to the publication of evidence taken in private. The evident purpose is to preserve the integrity and effectiveness of such a hearing as a process of investigation and so, in my opinion, it is having regard to that evident purpose that a decision about who may be authorised by the respondent to appear for the purpose of representing a witness is to be made.
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13 In his published reasons the respondent discusses two authorities to which Mr Robbins referred in making his application. Those cases are National Crime Authority v A, B and D (1988) 78 ALR 707 and Australian Securities Commission v Bell (1991) 104 ALR 125. Each is a decision of the Full Federal Court on appeal from a single Judge of that court. Both cases concern the grant or refusal of leave to a lawyer chosen by a witness or examinee to represent him at a hearing. In the first-mentioned case, the hearing was in the form of a special investigation by the National Crime Authority under the National Crime Authority Act 1984 (Cth). In the second case, the hearing was in the form of examinations of persons by the Australian Securities Commission under the Australian Securities Commission Act 1989 (Cth). Both pieces of legislation provided witnesses with the right to have legal representation. As has been seen, that is not the case under the legislation applicable here, but it is the effect of the information given to witnesses on behalf of the Royal Commission when they are served.
14 In each of the two cases under discussion, the question was the ambit of the right of the investigator or authority holding the inquiry to exclude persons from the hearings or examinations in question. Each Act contained a provision to the same effect as s 19A. In the context of those statutes, it was held in each case that a lawyer could be excluded from the hearing and from representing a witness at that hearing if there were reasonable grounds to believe that to allow the representation and the presence of the lawyer would or might prejudice the investigation being undertaken.
15 It is sufficient for present purposes to quote the judgment of the court in the National Crime Authority case at 716, where their Honours said that the Authority had the power:
" … to refuse to permit a particular legal representative to appear if it concludes on reasonable grounds and in good faith that to allow the representation either will or may, prejudice the investigation which it is obliged to carry out pursuant to the terms of its statute.
…
We should add that the construction we have put upon the Authority's power does not work any injustice to a witness called before it. The witness may still be represented by any
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- legal practitioner of his or her choice save a practitioner excluded by the Authority for good reason."
16 After discussing those cases, the respondent referred briefly to two other cases, Stockbridge v Ogilvie (1993) 43 FCR 244 and Re Whiting [1994] 1 Qd R 561. He referred to the undertaking given by Mr Robbins and concluded:
"Counsel's integrity is certainly not in question; but if he were to be acting for a multiplicity of police officers his task would be likely to be rendered quite impractical. Furthermore, it may well be the case that his clients would suffer by reason of the restrictions imposed upon him. In particular, this may arise because it would appear that the roles of the various officers participating in the police operation which is to be investigated were varied, and their interests are not in common. The consequence of this would be that independent advice should be sought. Having considered the application of counsel, I concluded that, in the circumstances, the granting of it was likely to prejudice or impede the effective discharge of the investigation which I am required to carry out."
17 As I say, it is not for me to embark upon a consideration of the merits of that decision. It is sufficient I think that it appears clearly that the discretionary judgment made by the respondent was properly informed by relevant considerations concerned with the capacity to pursue the inquiry by private hearings. His decision was concerned to ensure that that process would be as effective as it could be made to be and it was a relevant consideration that the requirement that counsel perform the undertaking proposed to be given would or might render less effective the representation of the witnesses concerned.
18 There is no suggestion on the materials before me that the respondent had regard to considerations irrelevant to the exercise of the discretion and there is nothing to suggest that the decision to which he came was not one to which he might reasonably come, having regard to the nature of the power conferred by s 19A of the 1968 Act. In those circumstances, it seemed to me to be inevitable that the court must hold that there was no error of law patent on the face of the record and of a kind which would cause the court on the return of an order nisi to quash the decision in question. It was for those reasons that I dismissed the application.
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