Re Whiting

[1993] QCA 121

[1993] QCA 121

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 120 of 1992

Brisbane

[Whiting v. The Criminal Justice Commission]

BETWEEN:

BRUCE WHITING

(Applicant) Appellant

- and -

THE CRIMINAL JUSTICE COMMISSION and
THE DIRECTOR OF THE OFFICIAL MISCONDUCT
DIVISION OF THE CRIMINAL JUSTICE COMMISSION

(Respondents) Respondents

The Chief Justice Mr Justice Pincus Mr Justice Moynihan

Judgment delivered 08/04/1993.

Separate reasons for judgment of the Chief Justice, Pincus J.A. and Moynihan S.J.A. All agreeing as to the order made.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	CRIMINAL JUSTICE ACT 1989 SS. 3.21 and 3.23 - Wh "person concerned" in proceedings of the Commission has an unqualified right to legal representation - Wh approval of Commission required - Wh Commission can refuse to allow particular representatives to appear where to do so would prejudice proceedings or impede Commission functions.
Counsel:	Mr S.E. Herbert for the appellant. Mr R.A. Mulholland Q.C., with him Mr S.D. Gutridge for the respondent.
Solicitors:	Gilshenan & Luton for the appellant. The Official Solicitor, Criminal Justice Commission for the respondent.

Hearing date: 8 September, 1992.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 120 of 1992

Brisbane

Before The Chief Justice Mr Justice Pincus Mr Justice Moynihan

[Whiting v. The Criminal Justice Commission]

BETWEEN:

BRUCE WHITING

(Applicant) Appellant

- and -

THE CRIMINAL JUSTICE COMMISSION and
THE DIRECTOR OF THE OFFICIAL MISCONDUCT

DIVISION OF THE CRIMINAL JUSTICE COMMISSION

(Respondents) Respondents

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 08/04/1993

I agree with Pincus J.A. that this appeal should be dismissed but I find that my reasons for that conclusion differ from those which he expresses. It is necessary then to set out the considerations which I find persuasive but in doing this there will be no need to repeat a number of the matters to which he draws attention or to set out extensively the text of relevant statutory provisions.

Essentially, the appeal as argued depends on the following simple outline. The appellant, a police officer, was said to be one of three officers who were witnesses to an incident which a complainant alleged amounted to an assault upon him by a further police officer, Kathleen Murphy. Pursuant to its statutory function, the Official Misconduct Division of the Criminal Justice Commission undertook an investigation of the episode since, if sufficiently proved, it could be considered to constitute misconduct on the part of Constable Murphy. Part of the function of the Official Misconduct Division is described in these terms in s. 2.20(2)(e):

"To investigate all cases of - (i) alleged or
suspected misconduct by members of the Police Force."

Gilshenan and Luton is a leading firm of solicitors who act for persons involved in criminal proceedings and it had a general retainer from the Queensland Police Union. Not surprisingly, since the firm is expected to provide representation for Police Union members, it was retained to represent Constable Murphy. It was also retained to represent the appellant Whiting and the other two police witnesses concerned in the episode which the complainant had brought to the attention of the Commission. More specifically in respect of the investigation under way before the Official Misconduct Division and the proposed examination of witnesses to that end, the firm of solicitors proposed to represent the witnesses, including the appellant, even though it was retained to act for Murphy in respect of the same matter.

Although the three witnesses, including the appellant, had been summoned by the Commission to attend as witnesses, Constable Murphy had not, but she had earlier been interviewed by or on behalf of the Commission. The potential existed for the investigation and the Commission's subsequent report (s. 2.24) to be followed by a prosecution or disciplinary proceedings (s. 2.24(2)).

After argument which took place before him the Chairman of the Commission made a ruling, the effect of which was that the particular counsel retained by the firm of solicitors who represented the witnesses, including the witness Whiting and also the police officer Murphy, would not be accorded a right to appear in the investigation which was to be conducted for the reason that his retainer came from that firm. Impliedly, the ruling would also appear to involve that the firm of solicitors would not be accorded a right to appear for the three witnesses since they were already acting and proposed to continue to act for Murphy. The critical words of the Chairman's ruling were:

"The same legal representatives will not be authorised to represent both the potential witnesses and the officer against whom the complaint is made."

The question for the Chairman and now for this Court was said to have two aspects: whether in view of the relevant statutory provisions the Commission had power to refuse the appearances announced by counsel chosen by the applicant; and, whether, if the answer to the first question was in the affirmative, any occasion for the exercise of a power to refuse had arisen. The applicant's principal contention was that he had the sole right in all circumstances to insist upon his choice of legal representation, that is, that the identity of those who would appear for him was for him alone to decide. Surprising as it might seem, the argument advanced on behalf of the Commission was that the provisions of the Criminal Justice Act 1989 directly gave it power to rule against attempts by particular legal representatives to appear for persons involved in its proceedings. This was said to be so because certain provisions gave the Commission a broad power to authorise legal representation and thus persons were not by the Act given an unqualified right to legal representation. These submissions should be looked at first but if they are not accepted it will not follow that the Commission does not possess other powers, perhaps implied powers, to rule that in certain circumstances particular legal representation will not be permitted.

Statutory provisions to which our attention was directed

included ss. 3.23(1), 3.23(2), 3.30(1)(c) and 3.34(f)(iii).
There is a certain difficulty in reading all of these
provisions together to derive a consistent indication in every
matter with which they appear to deal but the one which is most
directly concerned with the question of representation of
persons before the Commission is s. 3.23(1). It should
therefore be accorded a significance which corresponds with its
apparent importance.

Section 3.23(1) says that a "person concerned" in proceedings before the Commission "may appear in person or by counsel or solicitor, or by an agent approved by the Commission". An ordinary reading of this provision would lead to the conclusion that a person "concerned" was given an unqualified right of appearance by his legal representative and that it was only agents who were neither barristers nor solicitors who would require an enabling ruling of the Commission before they would be free to appear. It would then have to be said that a right to appear by counsel or solicitor carries with it, if nothing more is said, the meaning of "counsel or solicitor of his choice". This is so much the prevailing position in all jurisdictions where legal representation is allowed and so much to be expected that clear words would be needed to establish that it was intended to confer on a statutory tribunal in any ordinary circumstances a jurisdiction to involve itself in a party's choice of particular counsel or solicitor.

It should be said immediately that even though the appellant was, for all that appears, a mere witness called before an investigative proceedings conducted by a Division of the Commission and was not, himself, the subject of any complaint, it was accepted by the parties that he was a "person concerned" within the meaning of s. 3.23(1). Since the matter has at all times been argued on this basis, it is appropriate to accept it here but that is not to say that in all proceedings of the Commission a person who is a mere witness should necessarily be treated as a "person concerned" with the possible consequence now under consideration that he will have an associated right to appear legally represented.

Section 3.23(1) is the provision which directly deals with the question of entitlement to appear legally represented but the further provisions which it was suggested throw light on the matter should also be considered. It is to be noted that a change of wording occurs from the reference to "approved" in s. 3.32(1) to the different word "authorised" in ss. 3.23(2), 3.30(1)(c) and 3.34(f)(iii).

In s. 3.23(2) attention is given to the course of proceedings before the Commission. Legal practitioners and other representatives and also persons who it seems may or may not be in attendance in a representative capacity but are nevertheless authorised to appear in proceedings of the Commission are all given certain rights to examine and cross- examine witnesses subject to the direction of the person conducting the proceedings. Counsel for the respondent suggested that this subsection made it clear that the Commission's authorisation to represent a "person concerned" was required and therefore it should be accepted that the phrase "approved by the Commission" in the preceding subs. (1) should, for conformity, be taken as meant to qualify "counsel or solicitor" there referred to as well as "agent".

Alternatively, the argument appeared to run, even if the representing "counsel or solicitor" was given a right of appearance by s. 3.23(1) it was not an unqualified right which was conferred. On the contrary, it was shown by the immediately following provision that the enabling effect of the first subsection was slight since the representative counsel or solicitor still needed the authorisation of the Commission both to appear and to play a part by examining and cross-examining.

It is far from clear that the phrase "authorised by the Commission to represent a person concerned", which appears in s. 3.23(2) immediately after the word "agent", qualifies the words "counsel or solicitor". When that subsection is considered alone it might equally well be taken that the phrase quoted qualifies only "agent" and not "counsel or solicitor".

When the preceding subsection is considered with s. 3.23(2) there is reason to think that should be the intention attributed.

A more surprising feature is that a "person concerned" who is given an undoubted and unqualified right to appear in person by s. 3.23(1) is not, in the following subsection, dealt with at all or given rights of examination and cross-examination, that is, if he is not represented. The drafting seems to be inconsistent and incomplete.

Corresponding observations can be made about s. 3.30(1)(c) to which attention was next directed. Section 3.30 does not appear to deal with persons "concerned" or the legal representatives of such persons but rather with potential liability flowing from actions performed in discharge of the functions of the Commission or one of its organisational units.

The reference in s. 3.30(1)(c) to a "person authorised by the Commission to appear" seems to pick up the reference to persons in that category in s. 3.23(2), a different category from representative of a "person concerned" and in that context more clearly a person, whether a representative or not, who is granted authority to appear and take part in the Commission's proceedings. All that it seems can be taken from s. 3.30 in general and subs. (1)(c) in particular is that they attempt to deal with a special problem which it was considered might arise in practice. By themselves they are no clear indication of the intention in respect of the different question of entitlement to representation by persons concerned.

Section 3.34(f)(iii) deals both with persons who are and who are not legal representatives but in each case are authorised to appear at proceedings of the Commission. The subsection does not separately deal with the further category identified in s. 3.23(2), viz. counsel, solicitor or other agent representing a "person concerned". Since it would be expected that persons in this last category would also be considered worthy of protection against threats and insults, the respondent's argument suggested, that they should be regarded as included within a grouping described as legal practitioners and other persons authorised by the Commission to appear. Therefore, it was said that legal practitioners appearing for persons concerned were shown to require authorisation by the Commission before they could appear. The alternative view, of course, is that there is a gap in s. 3.34(f)(iii).

This analysis of the provisions said to bear upon the
question before the Court does not seem to make it necessary to
depart from the view that the dominant provision is s. 3.23(1).
It deals most directly with the right of appearance by counsel
or solicitor in the case of persons concerned. The conclusion
should be that the subsection does give a clear right that is
both far from unexpected and consistent with similar important
rights accorded to persons involved as parties in a great
variety of circumstances in courts and before statutory
tribunals. Common law rights of appearance which may carry
with them the right to be represented by agents are readily
capable of transfer to rights of appearance which are granted
by statute: cf. The King v. The Board of Appeal; Ex parte Kay
(1916) 22 C.L.R. 183.

To the extent that it might be urged that the relevant provisions of the Criminal Justice Act are not clear, it is permissible nowadays to have recourse to the speech of the member moving the Bill's second reading in the Legislative Assembly (see s. 14B(3)(f) of the Acts Interpretation Act

1954) .
The Criminal Justice Bill 1989 was first introduced into

Parliament on 5 October, 1989 (Queensland Parliamentary Debates, Vol. 33 at 1381). Clause 3.23(1) of the Bill was in this form:

"3.23 Examination before Commission (1) In any proceedings of the Commission the person concerned therein may appear in person or by counsel, solicitor or agent, as authorised by the Commission."

During the second reading of the original Bill the then Premier made a statement which included the following:

"The Bill will immediately be circulated to allow interested groups and individuals to make further submissions in writing by 4.00 p.m. next Thursday, 12 October, 1989 to the Director of the Implementation Unit.

By the time that Parliament reconvenes on 17 October, all submissions received will have been analysed and any desirable amendments will be circulated to all parties in this chamber ..."

On 18 October, 1989 the Premier withdrew the original Bill and introduced a new Bill which incorporated amendments to s. 3.23(1). These involved the use of altered wording - "by counsel or solicitor, or by an agent authorised by the Commission for the purpose": see Queensland Parliamentary Debates, Vol. 33 at 1629.

When the new Bill was read for the second time, the Premier, amongst other things, stated that:

"The situation with regard to the rights of all persons appearing before misconduct tribunals has been clarified. Parties appearing are entitled to have various forms of representation.": see the Debates at 1629-30.

This legislative history showing the change in the wording adopted and the explanation for it supports the view that s. 3.23(1) in the form in which it was passed was intended to confer on "persons concerned" in proceedings of the Commission a full right to legal representation and a qualified right to non-legal representation. This view of the intention of the subsection should be adopted.

The conclusion that s. 3.23 gives to persons concerned a right to legal representation which is not expressly qualified does not make it necessary to accept the appellant's argument that such persons have an absolute right unqualified in all circumstances to insist on their choice of representation. The subsection does not expressly deal with that distinct question.

It may be accepted that in all ordinary circumstances parties in proceedings before the courts or tribunals exercising a right or privilege of being legally represented will be free of scrutiny or interference in their choice of representation but a case may arise when their customary freedom will be subject to some limitation. In one class of case, another party to proceedings may raise an objection based upon a claim of breach of confidentiality, for example, when the representative concerned has previously acted for that other party: see, for example, Rakusen v. Ellis, Munday & Clarke (1912) 1 Ch. 831. If an objection is upheld in such a case it will be based on a private right asserted by one of the parties. It will not be attributable to the Court's desire to control some aspect of its proceedings on its own behalf.

However, in two cases to which we were referred concern by a tribunal to uphold the integrity of its own proceedings was involved: National Crime Authority v. A, B and D (1988) 18 F.C.R. 439 and Australian Securities Commission v. Bell (1991) 32 F.C.R. 517.

If there is real reason for a court or statutory tribunal to think that the integrity of its proceedings would be jeopardised by some particular circumstance, that fact alone would ordinarily be sufficient to justify interference to make the necessary correction. Often the justification for interference would be readily and almost automatically conceded by those involved in the day-to-day functioning of the courts.

Situations relevant for consideration arise in a variety of

circumstances. Mundane examples which could be offered are:
enforcing an appropriate degree of silence within the court
room; sitting on for some extra time beyond the usual hour for
adjournment to enable a line of questioning of a witness to be
completed and directing waiting witnesses to remain outside the
court room and out of earshot until called to give their own
evidence. A court has and must have such a right of control
over its own proceedings and functioning. It should be
regarded as vested in a superior court by virtue of its
inherent jurisdiction.

In the case of an inferior court or a statutory tribunal, if the topic is not expressly dealt with in the constituent enactment conferring jurisdiction (and it would be a matter of detail not to be expected), some comparable power might be implied. In the case of an inferior court, an implication of "powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred": see Grassby v. The Queen (1989) 168 C.L.R. 1 at 17 per Dawson J. The fact that there is proceeding an "administrative function is ... no bar to the existence of implied powers if such are necessary for the effective exercise of the powers which are expressly concerned" (ibid.).

The question then is what is the nature of the circumstances (if any) which can justify an administrative tribunal intervening in the case of a person entitled to legal representation to prevent that person from choosing particular representatives? What, in the absence of express statutory provision, can justify the tribunal in acting in such a fashion and to what extent will its discretion be subject to limitation when it so acts? These are questions to which the Federal Court turned its attention in the two cases cited above.

In the National Crime Authority case (supra) where persons were involved in an investigation and their right to be represented by the same counsel was under consideration it was decided that the usual right to be represented by counsel was not an absolute one. The Court by way of explanation said that such a right should be regarded as qualified. It was declared that the Authority was empowered 'to refuse to permit a particular 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': see at 448. This conclusion was arrived at after an examination of 'the essential nature of the Authority and the functions with which it (had) been entrusted': 447.

I agree that in cases like the present the question is to be determined by examining the statutory function of the tribunal and the powers which have been conferred. Such an approach when adopted here leads to the conclusion that there is an implication (no express provision excluding it) that the Commission is empowered to conduct its proceedings so as to discharge in an effective fashion the function with which it has been entrusted. That is, the Commission will have an implied power to remove obstacles encountered which impede the effective discharge of its function. This does not mean it has an arbitrary power to override established rights, but where an obstacle is encountered in some procedural aspect which can be expected to be under the Commission's control, authority to act appropriately should be conceded.

A test determining the right of a tribunal to exclude a particular representative was arrived at in the Australian Securities Commission case (supra), Lockhart J. preferring a formulation of 'will or likely to' rather than 'will or may prejudice the investigation'.

In the present case the risk of prejudice which was perceived by the Commission can be regarded as supported by the existence of reasonable grounds. In deciding whether reasonable grounds existed, any apparent loss of integrity of the Commission's proceedings in the eyes of the public would be relevant.

If, in its discretion, the Commission is seen to have acted in good faith to preserve the integrity of its processes when it has reasonable ground for so acting it should be conceded that it has the necessary implied authority.

There is no reason to doubt the good faith of the Chairman in the present case and there were reasonable grounds for him to think that the processes of inquiry would be effectively preserved and be seen to be preserved only if he refused the right of witnesses as well as the person under investigation to be represented by the same counsel. The good faith and a reasonable and substantial grounds test should be adopted to determine the extent of the Commission's right in the interests of procedural integrity to restrict the choice of legal representative in the present circumstances. I hasten to emphasise that nothing whatsoever was suggested against the personal integrity of the particular counsel who sought to appear for all of the persons interested.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 120 of 1992

Brisbane

Before The Chief Justice

Mr. Justice Pincus

Mr. Justice Moynihan

[Whiting v. CJC]

BETWEEN:

BRUCE WHITING

(Applicant) Appellant

- and -

THE CRIMINAL JUSTICE COMMISSION and THE DIRECTOR
OF THE OFFICIAL MISCONDUCT DIVISION OF THE
CRIMINAL JUSTICE COMMISSION

(Respondents) Respondents

JUDGMENT - PINCUS J.A.

Judgment delivered 08/04/1993

This is an appeal from an order of G.N. Williams J. dismissing an application relating to the Criminal Justice Act 1989 ("the Act"). The point at issue is the power of the Criminal Justice Commission to prevent particular solicitors representing persons concerned in its proceedings and, more specifically, the correctness of a ruling given by the Commission's Chairman that a firm of solicitors would not be authorised to represent certain people in the course of what was described as an investigative hearing of a complaint against a member of the police force. The question is not so much whether there is a right to legal representation, but whether the Commission can interfere with a person's choice of legal representative. The Court's jurisdiction was invoked under s.2.25 of the Act, which reads in part as follows:

"A person who claims -

(a)  that an investigation by the Official Misconduct Division is being conducted unfairly;

...

may make application to a judge of the Supreme Court for an order in the nature of a mandatory or restrictive injunction addressed to the Director of the Official Misconduct Division".

In addition, the originating summons sought declaratory relief with respect to the construction of the Act and a declaration to the effect that, in the circumstances sworn to, "no lawful grounds existed for the exercise of that discretion" - meaning the discretion the exercise of which was attacked in the s.2.25 application.

It is necessary to explain in some detail the facts and statutory provisions relevant to this appeal. At the outset, it is convenient to mention that the Court has to deal with two arguments. The first is that there was simply no power under the Act to prevent the solicitors in question, Messrs Gilshenan and Luton, from representing people in the proceedings. The second is that, if there is such a power, it was not lawfully exercised in the present case.

The Act has among its prescribed objects the investigation of complaints of official misconduct (s.1.3(a)(v)). The Act constitutes a body called the Criminal Justice Commission (s.2.1(1)), a unit of which is called the Official Misconduct Division (s.2.20). The Division's functions include the investigation of cases of alleged or suspected misconduct by members of the Police Force (s.2.20(2)(d)). It was in the course of such an investigation that the present controversy arose. The statute requires that there be a report on any investigation (s.2.24(1)) and contemplates that the report might lead to a prosecution or to other consequences adverse to the person complained about: s.2.24(2). The report would not, in itself affect that person's legal rights or liabilities.

The inception of the present dispute was the making of a complaint of assault against a policewoman, Senior Constable K.A. Murphy. The appellant, Senior Constable Bruce Whiting, was summoned to give evidence relating to the complaint before the Commission under s.3.6 of the Act, the terms of which do not need to be set out, at a hearing before the Commission's Chairman, Sir Max Bingham Q.C. On 14 May 1992, there was made the ruling challenged by the originating summons to which I have referred. From the transcript of that hearing and correspondence which preceded it, it appeared that Messrs Gilshenan and Luton, solicitors for the Queensland Police Union of Employees, were acting for the appellant, for two other members of the Police Force alleged to be witnesses to the events complained of and for Senior Constable Murphy against whom the complaint was made. Counsel Messrs Morris and Miles announced their appearance for the appellant, after he had been called and sworn. Counsel assisting the Commission Mr. Shepherd referred to correspondence which indicated that Messrs Gilshenan and Luton acted for Senior Constable Murphy and said that he understood that that firm had instructed Mr. Morris.

However, Mr. Morris insisted that the appearance he had announced related to the appellant only. Mr. Shepherd submitted, in effect, that Messrs Gilshenan and Luton should not be permitted to act for Senior Constable Murphy as well as for the other witnesses I have mentioned.

The question was in the end only whether Messrs Gilshenan and Luton should act for the three persons whose evidence was to be called as relevant to the complaint against Senior Constable Murphy, as well as for Senior Constable Murphy herself. There was no ruling made on the question of whether the Commission would permit the same counsel to appear for all those four persons.

After hearing argument, the Chairman gave the ruling which is attacked. The reasons given included the following passages:

"However, the present investigative phase also involves a duty to preserve the integrity of the inquiry as recognised in the NCA case and Bell's case, and I think that having regard to the nature of this investigation it could be seriously prejudiced if one practitioner or firm of practitioners were permitted to represent not only the person under investigation but also witnesses to be called at the hearing. This is not to apprehend any impropriety

on the part of that firm or its members or counsel, but simply to recognise that information given to the solicitors by one client could be revealed to another witness represented by the same firm and thereby affect the evidence which the second witness may choose to give. That may impair the ability of the Commission to discover the truth.

It is in this context that the reasoning of the Full Federal Court in the two cases mentioned is especially instructive. And I refer particularly to the National Crime Authority case at pages 278 and 279.

Accordingly I rule that the same legal representatives will not be authorised to represent both the potential witnesses and the officer against whom the complaint is made, and I will adjourn the hearing so that, as indicated, the matter can be tested in the Supreme Court".

It will be noticed that the Chairman relied upon the reasoning in two decisions of the Full Federal Court, to which reference is made below. A reading of the reasons given in those cases, in particular at the pages mentioned in the reasons, may give one a more specific understanding of what the Chairman relied on to justify his ruling. The reference to the National Crime Authority case is apparently to the report in the Australian Criminal Reports. It is unnecessary to quote the whole of the passages referred to; the essential part is as follows:

"In the normal course the expectation would be that the legal representative would confer with the witnesses before they gave their evidence. He would have a fairly clear idea of what the nature of the investigation was, what matters concerned the Authority and the general thrust of the questions which were likely to be asked.

He would be under a duty to each of the
respondents to represent them adequately.
On the other hand, he would be unable,
because of the secrecy provisions of the
Act, to disclose to them what he had learnt
at his previous appearances. The question
whether the legal representative, by
accepting the retainers of each of the
respondents, would place himself in a
position of conflict between his duty to
his clients and his duty to the Authority
including his obligations under the Act,
was not to the point. What the Authority
feared was that a legal practitioner
anxious to do his duty to his clients
might, quite unintentionally, perhaps
subconsciously, reveal to one or more of
the respondents matters which would
forewarn them of what they might expect to
be asked" (National Crime Authority v. A, B
& D (1988) 33 A.Crim.R. 270 at 278.

The primary judge referred in his reasons to the relevant statutory provisions and to the facts and held that the Act required a legal practitioner to obtain "authorisation, that is leave" to appear before the Commission. The judge held that leave would be granted or withheld -

"... in the light of its probable effect upon the investigation which the Tribunal was obliged to carry out pursuant to the terms of the statute and the rights of the person seeking such representation".

The judge pointed out that an order had been made, apparently under s.2.17(4) of the Act, that the hearing be "closed" and remarked that the legal representatives of a witness giving evidence at such a hearing "would be under a somewhat greater obligation with respect to confidentiality than otherwise would be the case". His Honour said that only one person was the subject of the investigation and the other witnesses, including the appellant, did not have a similarity of interest with her. The judge referred to the likelihood that the public perception would be that if the witnesses and Murphy have the same legal representation then those witnesses "were not truly independent". His Honour went on:

"The perception would be that the witnesses and the person under investigation had banded together in order to protect the latter. The results of any investigation carried out in those circumstances would hardly be received by the public as the product of an independent, impartial and fair investigation. In that way there were reasonable grounds on which a bona fide belief could be based that to allow the particular representation sought would be likely to prejudice the investigation being carried out pursuant to the requirements of the Act".

The judge held, as I have mentioned, that the Commission had not erred and dismissed the application.

To turn now to the relevant provisions of the Act dealing with the question of legal representation, it must be said at the outset that they do not mesh together perfectly well. The provision which, read by itself, supports the appellant is s.3.23(1) which reads as follows:

"In any proceedings of the Commission a person concerned therein may appear in person or by counsel or solicitor, or by an agent approved by the Commission".

It was argued by Mr. S. Herbert for the appellant that the expression "approved by the Commission" applies to "agent", so that the sub-section does not make the right of appearance of counsel or solicitor subject to the Commission's approval. But sub-section (2) of the same section seems unequivocally to contemplate that the Commission may authorise counsel or solicitor to represent a person concerned in any of its proceedings; it reads:

"A legal practitioner appointed to assist the Commission in any proceedings, any counsel, solicitor or other agent authorized by the Commission to represent a person concerned in any proceedings of the Commission and any person authorized by the Commission to appear in any proceedings of the Commission may examine and cross- examine any witness on any matter relevant (in the Commission's opinion) to the subject-matter of the Commission's proceedings, subject always to the direction of the person conducting the proceedings".

The sub-section gives the Commission two sorts of control over legal representatives: first, it deals with counsel or solicitor representing a person concerned in the proceedings and that seems to mean acting for that person in relation to the proceedings, either at a hearing or otherwise; secondly, it deals with control of representatives' activities at hearings. As argued by counsel for the respondents before us, a reading of s.3.23 which gives the Commission the power to authorise legal representation is consistent with the terms of ss.3.30(1)(c) and 3.34(f)(iii). The former gives protection from liability for acts done or omissions made (by):

"a legal practitioner or other person authorised by the Commission to appear at proceedings".

The latter makes it a contempt wilfully to threaten or insult:

"a legal practitioner appointed or engaged to assist the Commission, or authorised by the Commission to appear at proceedings of the Commission, or any other person authorised by the Commission to appear at proceedings of the Commission".

Reading the provisions I have mentioned as a whole, it seems to me difficult to escape the conclusion that the intention was that the right to represent people in relation to Commission proceedings should be subject to a power in the Commission to authorise or decline to authorise such representation. It is true that this construction involves treating sub-s.(1) of s.3.23, which on its face simply gives a right to legal representation, as being subject to sub-s.(2) of that section. In my view, it is necessary to read it in that way in order to reconcile the various parts of the section and to make sense of the references to authorisation in the two other provisions I have referred to.

The remaining question is whether the Commissioner's exercise of discretion in declining to authorise Messrs Gilshenan and Luton to represent both the potential witnesses and the officer against whom the complaint was made should have been set aside by the primary judge as unfair conduct, under s.2.25(a) of the Act. I have explained that the originating summons relied upon that section and also sought a declaration, presumably under the general law, that there were no lawful grounds for the exercise of the discretion. Before us, reliance was placed on the argument as to lack of power, disposed of above, as well as upon s.2.25, but it was not contended that there was any other ground (for example unreasonableness) on which the appellant could succeed. Mr. Herbert contended for the appellant that, in the absence of an order prohibiting publication of the proceedings, it would be quite permissible for witnesses called before the Commission to explain to others the content of the questions asked of them and the answers they gave. He suggested, in effect, that there was no point in the Chairman's ruling, absent a confidentiality order. Mr. Mulholland Q.C., senior counsel for the respondent, suggested that the Commission would make a confidentiality order and that the case should be decided on that assumption.

In my opinion, that is not so. The question is whether, on the facts as they stood and having regard to the Chairman's reasons, what he did was unfair. Mr. Herbert argued that the Chairman's reliance upon the reasons of the Full Court of the Federal Court was misplaced. He said that in the National Crime Authority case there was given a direction prohibiting publication; that is so, although the precise effect of the order is left in some doubt by the report. It is my opinion that that difference does not make the reasoning in the National Crime Authority case entirely inapplicable. Here, we have solicitors representing persons supposed to be witnesses to the conduct complained of, and representing as well the person against whom the complaint is made. The case is not the same as, but may be compared with, a firm's accepting instructions to protect the interests of witnesses called in a prosecution while also acting for the accused. In that situation, there must be, or at least appear to be, an enhanced risk that in attempting to fulfil their duties to the person the subject of the complaint the solicitors might make the investigation less effective than it would otherwise be. That appears to me to be so whether or not an order preventing publication is made.

There was some discussion in this Court of the meaning of the word "unfairly" in s.2.25(a). In my view, conscious unfairness need not be shown; the test is objective. But the intention of the Act is to give the Commission a large measure of discretion in the mode of conduct of its hearings: see s.3.21(1). Further, the Court must have regard to the fact that the Commission has been charged with the responsibility of performing investigations of this kind for some years and may be assumed to have a fund of experience on which to draw in exercising its specialist roles. The Court should not lightly hold the Commission to be acting unfairly when its Chairman forms a conclusion, not shown to be unreasonable, that a particular mode of representation is likely to prejudice its investigation.

In my opinion, the appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 120 of 1992

Brisbane

Before The Chief Justice Mr Justice Pincus Mr Justice Moynihan

[Whiting -v- The Criminal Justice Commission]

BETWEEN

BRUCE WHITING

(Applicant)

Appellant

- and -

THE CRIMINAL JUSTICE COMMISSION

AND THE DIRECTOR OF THE OFFICIAL MISCONDUCT DIVISION OF THE CRIMINAL JUSTICE COMMISSION

(Respondents)

Respondents

REASONS FOR JUDGMENT - MR JUSTICE MOYNIHAN

Judgment delivered 08/04/93

The circumstances giving rise to this appeal, the issues constituted by those circumstances and the relevant statutory provision are identified and set out in the reasons prepared by the Chief Justice and by Pincus JA which I have had the advantage of reading. It is therefore unnecessary for me to rehearse those matters in these reasons.

I agree that the appeal should be dismissed. The Chairman of the Commission was, in my view, entitled to conclude that it was inappropriate for the same firm of solicitors to represent the person under investigation and witnesses to be called at the hearing. He was entitled to conclude in the circumstances that the investigation would, or was likely to be, prejudiced in that event. No occasion has been shown for doubting his good faith in arriving at that conclusion.

The difficulty I have is in determining whether the outcome is because the appellant's entitlement to representation depended on the Commission's (in effect the chairman's) approval or authorisation or whether it depended on the power of the Commission to exclude an otherwise authorised representation.

These and the matters upon which the Chief Justice and Pincus
JA have differed.
I agree that reading the provisions of the Criminal Justice Act
1989 (the Act) and particularly S. 3.23, 3.30 and 3.34 in an
integrated way is fraught with difficulty, if not

impossibility.

It seems to me that S. 3.23(1) which provides:-

"In any proceedings of the Commission a person concerned therein may appear in person or by counsel or solicitor, or by an agent approved by the Commission"

would, taken alone, be apposite to entitle representation by counsel or solicitor and to require approval for representation by an agent. It was accepted that the appellant was a person concerned in terms of the Act.

It is interesting to note that in the bill first introduced the section was in the form of a clause which provided:

"In any proceedings of the Commission the person concerned therein may appear in person or by counsel, solicitor or agent, as authorised by the Commission."

That would seem undoubtedly to have required the Commission's authorisation for representation by counsel, solicitor or agent. After public comment a new bill with a clause in the form of what is now the section was introduced. When that bill was read a second time the Premier stated:

"The situation with regard to the rights of all persons appearing before misconduct tribunals has been clarified. Parties appearing are entitled to have various forms of

representation". Queensland Parliamentary debates Vol.
33, 629.

These circumstances would seem capable of supporting an intent that legal representation not be dependent on approval.

S 3.23(2), however, provides:

"...Any counsel, solicitor or other agent authorised by the Commission to represent a person concerned in any proceedings of the Commission and any person authorised by the Commission to appear in any proceedings of the Commission may examine etc... subject always to the direction of the person conducting the proceedings".

The provision seems to contemplate counsel's solicitor or other agent authorised by the Commission representing a person concerned on the one hand and any person authorised by the Commission to appear on the other. The sub-section departs from sub-section 1 by introducing "other" before "agent" with the apparent consequence that the subsection envisages the appearance, whether by counsel, solicitor or agent, be "authorised" (rather than "approved") by the Commission.

S.3.30(1)(c) is expressed to give protection from liability for acts done or omissions by:

"a legal practitioner or other person authorised by the

Commission to appear at proceedings".

S.3.34(f)(iii) constitutes it a contempt to wilfully threaten
or insult:

"a legal practitioner appointed or engaged to assist the Commission or authorised by the Commission to appear at proceedings of the Commission, or any other person authorised by the Commission to appear at proceedings of the Commission".

In these provisions "authorised" has become the favoured criteria and "counsel" and "solicitor" have become "legal practitioner". Sections 3.23(2), 3.30(1)(c) and 3.34(f)(iii) would appear to be more congruent with the form of S 3.23(1) in the clause of the first bill rather than with the form it actually took as a consequence of a deliberate change.

The considerations which I have canvassed seem to me to give weight to the considerations which lead the Chief Justice to regard S 3.23(1) being given effect as the predominant provision as to the entitlement to legal representation. That being so, I agree that the chairman had power to make the order which he did.