Scott v Northern Territory of Australia - [2003] FCA 658

FEDERAL COURT OF AUSTRALIA
Scott v Northern Territory of Australia & Anor [2003] FCA 658
PRACTICE AND PROCEDURE – multiple proceedings – abuse of process – action commenced in Northern Territory Supreme Court apt to comprehend causes of action and fresh particulars sued on in Federal Court – Commonwealth sued colourably to attract Federal jurisdiction for action against Northern Territory – embarrassing pleadings – whether any cause of action apparent
TERRITORIES – Northern Territory not mere agent or delegate of Commonwealth – Commonwealth not vicariously liable for alleged acts of Northern Territory prison officers
ADMINISTRATIVE LAW – police decisions to investigate – whether amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether reviewable by prerogative writs or otherwise
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Compensation (Fatal Injuries) Act 1979 (NT), ss 7, 8
Coroners Act 1993 (NT)
Judiciary Act 1903 (Cth), s 44
Limitation Act 1981 (NT), s 12
Racial Discrimination Act 1975 (Cth)
Royal Commission Act 1902 (Cth)
The Constitution (Cth), s 75
Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248, referred
Commonwealth v Connell (1986) 5 NSWLR 218, referred
Deatons Pty Ltd v Flow (1949) 79 CLR 370, referred
Fittock v The Queen [2003] HCA 19, applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied
Henry v Henry (1995-1996) 185 CLR 571, applied
Hinchcliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308, applied
Jago v District Court (1989) 168 CLR 23, referred
Sea Culture International Pty Ltd v Scales (1991) 32 FCR 275, referred
LETTY MARIE SCOTT & ANOR v NORTHERN TERRITORY OF AUSTRALIA & ANOR
N518 of 2002
LETTY MARIE SCOTT v COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE & ORS
N519 of 2002
LETTY MARIE SCOTT & ORS v DAVID R MOORE, AUSTRALIAN FEDERAL POLICE & ORS
N916 of 2002
MADGWICK J
1 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N518 OF 2002

BETWEEN:

LETTY MARIE SCOTT
FIRST APPLICANT

NATHAN WILLIAM SCOTT
SECOND APPLICANT

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

N519 OF 2002

BETWEEN:

LETTY MARIE SCOTT
FIRST APPLICANT

AND:

COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENT

COMMISSIONER FOR THE NORTHERN TERRITORY POLICE
SECOND RESPONDENT

N916 OF 2002

BETWEEN:

LETTY MARIE SCOTT
FIRST APPLICANT

NATHAN WILLIAM SCOTT
SECOND APPLICANT

ROBERT J S DOW
SECOND APPLICANT

DANIEL R TAYLOR
FOURTH APPLICANT

AND:

DAVID R MOORE, AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENT

AARON APPO, AUSTRALIAN FEDERAL POLICE
SECOND RESPONDENT

PAUL JEVTOVIC, AUSTRALIAN FEDERAL POLICE
THIRD RESPONDENT

AUSTRALIAN FEDERAL POLICE
TENTH RESPONDENT

DAVID R MOORE
ELEVENTH RESPONDENT

AARON APPO
TWELVTH RESPONDENT

PAUL JEVTOVIC
THIRTEENTH RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

1 JULY 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.In each matter, the principal proceeding is dismissed.
2.The respective applicants in the respective cases are to pay the respondents’ costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N518 OF 2002

BETWEEN:

LETTY MARIE SCOTT
FIRST APPLICANT

NATHAN WILLIAM SCOTT
SECOND APPLICANT

AND:

NORTHERN TERRITORY OF AUSTRALIA
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

N519 OF 2002

BETWEEN:

LETTY MARIE SCOTT
FIRST APPLICANT

AND:

COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENT

COMMISSIONER FOR THE NORTHERN TERRITORY POLICE
SECOND RESPONDENT

N916 OF 2002

BETWEEN:

LETTY MARIE SCOTT
FIRST APPLICANT

NATHAN WILLIAM SCOTT
SECOND APPLICANT

ROBERT J S DOW
SECOND APPLICANT

DANIEL R TAYLOR
FOURTH APPLICANT

AND:

DAVID R MOORE, AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENT

AARON APPO, AUSTRALIAN FEDERAL POLICE
SECOND RESPONDENT

PAUL JEVTOVIC, AUSTRALIAN FEDERAL POLICE
THIRD RESPONDENT

AUSTRALIAN FEDERAL POLICE
TENTH RESPONDENT

DAVID R MOORE
ELEVENTH RESPONDENT

AARON APPO
TWELVTH RESPONDENT

PAUL JEVTOVIC
THIRTEENTH RESPONDENT

JUDGE:

MADGWICK J

DATE:

1 JULY 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT
His Honour:

These proceedings arise out of the death in custody of the late Douglas Bruce Scott (“the deceased”), an Aborigine, in Darwin Prison on 5 July 1985 and out of suspicions held by his widow, Mrs Letty Marie Scott, which have hardened into a conviction that the deceased was murdered. The various proceedings, one way or another, are really aimed at attempting to prove that the deceased was murdered and to bring his alleged murderers to justice. The respondents seek to have all the proceedings summarily dismissed as an abuse of process on various bases, including that each case is legally hopeless.
In order fully to understand the matter it is necessary to recount, selectively, some of the history of the death and its aftermath.
An Aboriginal death in custody
It is accepted on all hands that the deceased died in his cell in the early hours of 5 July 1985. He had been in custody since 29 May 1985 after being charged with relatively minor offences. Dr Lee, a forensic pathologist, as well as police and prison officers, examined the deceased’s body in the cell on the morning of 5 July 1985 after the body was allegedly discovered. Dr Lee and the other witnesses gave evidence to a coronial inquest and to a Royal Commission that there was no evidence of head or facial trauma or any other fresh external injuries. There were, however, injuries to the neck, consistent with strangulation by hanging; these were described in a post-mortem report of 14 February 1986.
A coroner of the Northern Territory, Mr McGregor, a magistrate, found, among other things, that the cause of death was strangulation by hanging, self-inflicted by the deceased with the intent to take his own life.
The Royal Commission
For some years in Australia before 1985 there had been concern at the apparently high rate at which Aboriginal persons died in custody, compared with white persons. Based on anecdotal evidence, it was thought that institutionalised racism might be responsible for discriminatory deliberate harm to and/or lack of due care of aboriginal prisoners. The Commonwealth government, in association with the States and Territories (including the Northern Territory) established a Royal Commission into Aboriginal Deaths in Custody. Events transpired such that Mr Elliot Johnston QC, a retired Judge of the Supreme Court of South Australia and, among other things, a long time campaigner for justice for Aboriginal people, became the Royal Commissioner and inquired into the deceased’s death. The Royal Commissioner reported on 17 September 1990 that:
·Mr Scott had hanged himself, intending to take his own life;
·there was no foul play on the part of any other person, officer or inmate, nor any harassment of or discrimination against the deceased contributing to his decision to take his own life;
·nevertheless, he had been a prisoner “at risk” of causing himself harm and steps which reasonably could and should have been taken to obviate that risk were not taken.
Although the Commissioner’s report on Mr Scott’s death is lengthy, it is in my view necessary, for various reasons, to reproduce it virtually in full. It is included here as Appendix “A”. Among other things it is to be noted that:
·the matter was marked by “… great thoroughness of preparation on the part of Counsel Assisting [the Commission] and those instructing and supporting counsel and equal thoroughness on the part of … the families of deceased persons …”

·Mrs Scott was viewed very favourably by the Commissioner as a truthful witness and a woman of great determination and loyalty, notwithstanding the deceased’s maltreatment of her.
·Apparently powerful reasons were given for the finding of no foul play. These included that counsel for the family so submitted, the lack of any sign on the body suggesting it; an “examination” and a “demonstration” showed that self-inflicted hanging would have been physically “quite possible” for the deceased; almost all the prisoners in the relevant cell block gave evidence or made statements which were put in evidence before the Commissioner, but none suggested any suspicious circumstance; “One should be slow to reach a conclusion that a cell hanging is self-inflicted and should not do so without attempting to find a reasonable explanation or motive … [the deceased] was suffering from a psychiatric illness, his life was in a state of severe and chronic disorder and he was exceedingly disturbed … there is no difficulty in coming to a conclusion that he might do damage to himself”.
·There was an absence of pattern or motive to suggest maltreatment of the deceased by any prison officer. His behaviour in custody “… throughout the whole period was highly unusual. He might have been thought to be cheeky, disruptive or having the system on. But it is absolutely clear that neither officers nor fellow prisoners entertained any such thought; without exception they thought that he was odd or ‘mental’, that something was wrong with him and that he was to be regarded not in anger but with concern by some and with indifference by others. He was never regarded as … ‘a smart alec’ or disruptive”.
·By February 1985 the deceased’s life, before his final arrest, was “completely out of control and he realised it”.
·The deceased had a history of attempted suicide by cutting his wrist, he apparently regarded his marriage as having broken down, and he was “wracked with feelings of remorse and shame” to do with matters that plainly profoundly concerned him.
·The deceased sustained an eye injury on 31 May 1985 in the prison. He explained this by saying he fell from his desk, having climbed on it to look at the air duct (from which he was on the day of his death found hanging). A statement by the deceased to some prisoners that he had suffered the injury while trying to commit suicide was not regarded as reliable. It was nevertheless a matter apt to raise suspicion of self-harm.
·Dr Lee’s findings were re-assessed at the request of Royal Commission staff by two distinguished and independent pathologists from different parts of Australia. One agreed that the cause of death was hanging and agreed with Dr Lee’s comment that it was self-inflicted. The other said that there was “… nothing … to suggest that the death was not due to hanging or that the hanging was not self-inflicted”.
·The Commissioner was impressed by the evidence and attitude of the prison officer who said that he first saw the deceased’s dead body.
·The Commissioner felt impelled to make a finding, for reasons given, that the deceased had intended to take his own life though all counsel had submitted that it was inappropriate for him so to find.
·There were various misunderstandings by persons in authority in relation to Mrs Scott, all likely to increase her distress at the deceased’s death.
One of the prisoners from whom a statement was tendered was Mr Geoffrey Bindai. He occupied a cell directly opposite that of the deceased. Interviewed on 14 March 1989 through an interpreter by Mr Barbaro, a Royal Commission solicitor, Mr Bindai indicated that he had noticed nothing unusual during the night before Mr Scott’s body was found; that he had no reason to believe the death was not a suicide; and that:
“I seen the body hanging after the Prison Officer opened the cell.
I seen him standing on the chair and tying the sheet to the ceiling. This was in the morning, I then went back to sleep.
Then the Prison Officers opened the cells we went then down for breakfast.”
In a statement signed by Mr Bindai, witnessed by Mr Barbaro and dated 4 April 1989, the allegation that Mr Bindai had seen the deceased on a chair, tying the sheet to the ceiling, was omitted; otherwise the information was repeated. Mr Bindai much later told a different story – see below.
Mrs Scott sues for compensation in the Northern Territory Supreme Court
In 1992, in proceedings in the Northern Territory Supreme Court (SC No 118/1992), Mrs Scott made a claim for damages against the Northern Territory government for nervous shock suffered as a result of the deceased taking his own life. It was alleged that that event was caused by the negligence of the Northern Territory and/or its employees or agents. Subsequently on 24 April 1995, in proceedings SC 75/1995, Mrs Scott sued on behalf of herself, her infant son Nathan and her other (adult) children in a claim, based on the Northern Territory compensation to relatives legislation (ss 7 and 8 of the Compensation (Fatal Injuries) Act 1979 (NT)), asserting death by hanging, negligently caused. The particulars suggested that self-inflicted hanging and failure to prevent it were to be relied upon.
On 19 July 1995 the statement of claim in the 1992 action was amended – the allegation that the deceased had taken his own life was omitted. (This fairly soon followed Mr Bindai’s new allegations.)
The defence filed in the 1992 action, among other matters, raised a defence based on s 12 of the Limitation Act 1981 (NT) (“the Limitation Act”) which provides:
‘(1)Subject to subsection (2), the following actions are not maintainable after the expiration of a limitation period of 3 years from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims:
(a)an action founded on contract (including quasi-contract) not being a cause of action which is evidenced by a deed;
(b)an action founded on tort including a cause of action founded on a breach of statutory duty;
(c)an action to enforce a recognizance; and
(d)an action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
(2) Subsection (1) does not apply to a cause of action:
(a)to which section 17 applies; or
(b)for contribution to which section 24 applies.
(3)For the purposes of subsection (1)(d), “enactment” includes a statute of the legislature of the Commonwealth or a State or another Territory of the Commonwealth, or any country or part of a country.’
Likewise the defence in the 1995 action pleaded s 17 of that Act, which provides:
‘An action arising under section 7 or 13 of the Compensation (Fatal Injuries) Act is not maintainable after the expiration of a limitation period of 3 years from the date of the death.’
It appears that Mrs Scott later applied further to amend the statements of claim in the two actions to plead, among other things, that the death was the result of a deliberate act by one or more persons in authority in the prison. Leave was refused in both matters by Master Coulehan in a judgment delivered on 22 October 1998 because of embarrassing and inappropriate pleading and, in relation to the 1992 proceedings, also on the ground that no basis was shown for extending the limitation period pursuant to s 44 of the Limitation Act, again because of a lack of proper pleading. The Master noted that time was not yet running against the child Nathan Scott in the 1995 proceeding.
On 22 September 1999 Martin CJ heard applications by Mrs Scott, representing herself, in each case for an extension of time to appeal against the Master’s decision and, if granted, to rehear the applications. The respondent Northern Territory also applied for summary judgment in relation to the 1992 action, based on the Limitation Act. His Honour refused to extend the time to appeal and gave summary judgment for the defendant in the 1992 action. In relation to the 1995 action, having regard to Mrs Scott’s conduct, his Honour stayed the proceedings with liberty to the plaintiff to apply upon reasonable notice, such application to be made only by a legal practitioner properly instructed to act.
In the course of the hearing before me, the applicants indicated that they had sent a letter to the Northern Territory Supreme Court seeking to discontinue the proceedings. Question arise as to whether Mrs Scott could do this in respect of Nathan Scott, without the assent of the Supreme Court, and as to whether in procedurally valid terms the proceedings had been discontinued. In the end, it was not satisfactorily proven that any of the Northern Territory proceedings had been terminated. It was noted that the proceedings also included Nathan Scott (an applicant in two of the current proceedings), an infant at the time, and to that extent the limitation period had not commenced.
Fresh evidence: Mr Bindai and related material
A friend of Mrs Scott and an applicant in one of the cases before me, Mr Dow, a former Northern Territory police officer, interviewed Mr Bindai on 12 April 1995. Mr Bindai said that he saw prison officers enter Mr Scott’s cell the night before he died; one of them was carrying a big black stick. He heard Mr Scott being beaten with the stick and calling for help. This continued for about two hours. Mr Bindai said that he had given this account to the Royal Commission officers who interviewed him. However he was threatened by one of them, Mr Mick Dodson, who said words like “if you don’t shut up mate, you’ll be next”. Mr Dodson was junior counsel assisting the Royal Commission and was and is a well-known and outspoken Aboriginal activist and leader.
In a statutory declaration of 27 September 1996 prepared by Mr Rodney Lewis, a Sydney solicitor acting for Mrs Scott, after he spoke to Mr Bindai, Mr Bindai confirmed the story of the beating but said that one of the prison officers had come over to his cell and said “If you don’t be quiet you will be next”. That man had an eagle tattooed on his arm. He said that he had been visited at Turkey Creek (a remote location) by people from the Royal Commission and that he had told them the same story. Apparently he did not repeat to Mr Lewis the allegation about Mr Dodson.
In 1996 Mr Lewis spoke to Mr Laurie Percy and his brother Geoffrey Moreen. Mr Percy said that he and his brother Geoffrey had to clean up the cell after the deceased was hanged. He said he saw blood on his sheet and pillow and on the floor. There was “little bit – big mobs” on the sheet, a “little bit” on the pillow and “little bit – big mob” on the floor. There was also a ball of toilet paper with blood on it.
Mr Moreen said he heard the deceased calling out loudly in the night “somebody help me”, but he thought he was dreaming and didn’t do anything. In the morning he saw his brother (I assume from the record) and Geoffrey Bindai carrying the mattress out. There were “spots of blood”, a “big mob” of it, on the mattress.
Mr Barbaro’s recollections of events in the Royal Commission
On 13 March 1995 Mr Lewis interviewed Mr Barbaro, by then attached to the Mental Health Legal Service in Melbourne.
Mr Barbaro’s attitude and the possibly significant matters appear sufficiently from the quotations extracted from a purported transcript of a tape recording of the interview and which appear at Appendix “B” hereto.
To say the least of it, and as I explain further below, nothing in this material supports any suggestion of civil or criminal wrongdoing by Mr Barbaro or Mr Dodson directed against Mrs Scott’s interests in having her suggestion of foul play fully investigated by the Royal Commission.
The alleged threat by Mr Dodson
As indicated Mr Bindai has suggested that, during the Royal Commission investigation, Mr Dodson told him to be quiet or “you’ll be next” in the context of Mr Bindai telling Mr Dodson his story of the deceased’s beating the night before his death, such that this was a clear threat to Mr Bindai. It is suggested that there is some corroboration of this story from Mr Bindai’s mother and sister. The circumstances of the making of this suggestion are unimpressive. It is, on its face, so extremely unlikely as to compel disbelief except on the plainest proof.
Concerns put to the Prime Minister in 1996

On 3 April 1996 Mrs Scott’s then solicitor Mr Lewis wrote, unsuccessfully in the event, to the Prime Minister seeking a “re-opened” Royal Commission into Mr Scott’s death. The letter enclosed a detailed submission headed:
‘Issues for Consideration
The Death in Custody of
an Aboriginal person who died
on 5 July 1995 at Berrimah Prison, Darwin’
It is, I think, important to include this document here. (Appendix “C”). It summarises Mrs Scott’s concerns and refers to all the important ways, up to then, in which obviously conscientious lawyers, on instructions, could see to criticise the Royal Commission’s report and to suggest that there was new material. The matters which were reasonably capable of being seen as of some serious concern appear to me to be:

·The potential evidence of Mr Bindai, possibly corroborated by that of Mr Percy and Mr Moreen;
·A photograph which shows the deceased’s body hanging but with his feet in a horizontal position rather than in the downward-pointing position which, one imagines they would assume if the deceased was incapable of flexing his ankles, and suggestive that when the photograph was taken, the deceased’s feet were on the ground. That would indeed be an unlikely means of hanging oneself to cause death.
·Allied with the previous matter, the possibility that there were two sets of photographs, taken at separate times. If confirmed, that circumstance would, however, of itself indicate only that the full truth may not have been told. It is consistent with the death occurring as found by the Commissioner or by foul play. Nevertheless an inference that the purpose of any “re-hanging” was to alter or cover up evidence might be available.
US pathologists report their concerns
In 1999 Mrs Scott interested the representatives of an American Indian tribal nation in the matter. In the result, Mrs Scott met a distinguished US forensic pathologist and that doctor and some other distinguished forensic pathologists and lawyers subsequently reviewed materials made available to them. These formed what they called in a resultant report (“the US report”) “a forensic investigative committee … comprised of forensic and legal experts who agreed to review the available documentation regarding the death of Douglas Scott”.
The US report raises a number of concerns, particularly the “… significant possibility that the death scene integrity might be compromised” and the committee’s conclusion that certain bruises and the fracture of the thyroid cartilage “… are generally more consistent with manual neck compression than with hanging mechanisms”. A copy is attached as Appendix “D”.
References in the US report suggest that the Royal Commission’s report was either not made available to, or not absorbed by, those concerned, see, for example, para 6 of the

US report: the Royal Commissioner indicated that the cell was inspected and he made relevant findings.
On 21 May 2001 Dr Baden, one of those who reported and a former Chief Medical Examiner for the City of New York, separately reported to Queensland solicitors then acting for Mrs Scott.
‘I have reviewed the circumstances and medical records concerning the death of Mr Douglas Scott. It is … my opinion, and the opinion of the other members of the Forensic Investigative Committee, that exhumation and examination of the remains of Mr Scott at this time, 16 years after his death, could reveal valuable forensic and medical evidence that would assist in resolving questions that have arisen as to the cause and manner of his death. We have exhumed and examined many bodies interred for more than 16 years that have yielded important and valuable evidence that has permitted a final resolution to questions concerning the deaths.’
Exhumation refused by Queensland Attorney-General
After the receipt of the US report (and, in time, Dr Baden’s letter), Mrs Scott sought to have the Queensland Attorney-General order the exhumation of the deceased’s body, which had been buried in that State. The Attorney-General had the US materials, the Royal Commission report, an opinion of a London barrister urging exhumation, the materials previously referred to in the possession of Mrs Scott’s former solicitor, and all of the records of Mr Bindai’s allegations, among sundry other documents, but refused the request. The Attorney-General, indicated on 30 August 2001 that he had had regard, among other things, to a senior Queensland pathologist’s view that:
‘it is highly unlikely that autopsying an exhumed body would at this stage, 15 years after a man’s death, yield any worthwhile or new autopsy findings. The critical abnormalities, if present, would appear to be subtle bruises and tiny fractures in the larynx or hyoid bone, none of which withstand decomposition at all well.’
Other matters of an allegedly suspicious character
There were other, indeed, many other matters that cause the applicants suspicion. For example, Mr Taylor in June 2002 telephoned Mr Bowden, the prison officer, who gave a version of events as to the release of the deceased’s body from its hanging position different from his testimony many years ago. It is not feasible to deal with the relevance or weight of all these suggestions. Many, like the Bowden matter, are only suspicious to persons of a fixed, not to say fevered, pre-judgment that he is a guilty man. None is of any real significance.
Proceedings commenced in the High Court
Mrs Scott (the first applicant) commenced proceedings in the High Court on 21 February 2002. The applications then filed were a summons against the Northern Territory and Commonwealth seeking damages for the wrongful death of Mr Scott (now proceedings N518/02) and an application seeking the issue of a writ of mandamus against the Commissioners of Police for the Australian Federal Police and the Northern Territory (now proceedings N519/02). On 7 May 2002, Gummow J remitted both matters to the Federal Court, transferring N518/02 pursuant to s 44 of the Judiciary Act 1903 (Cth) and N519/02 under s 75(v) of the Constitution. Leave was given to the applicant to file and serve amended pleadings in both applications.
Upon remittal to this court, the matters were listed for directions. The Commonwealth in N518/02 and the Commissioner of the Australian Federal Police in N519/02 each made an application in the respective proceedings that the matters be summarily dismissed.
The attitude of the Australian Federal Police as to further investigation
By letter of 27 August 2002 Mr Jevtovic the “Director Operations – Northern”, one of the respondents in Case No N916/2002, wrote to Mrs Scott confirming the AFP’s refusal to conduct a murder investigation and to advise the outcome of “a preliminary inquiry” to determine whether there was evidence of the commission of any offences against the Royal Commission Act 1902 (Cth). The outcome was that, for reasons given, “it has been decided that your allegations of offences having been committed by officers of the Royal Commission are not supported by any credible evidence and do not warrant further investigation by the AFP”. A copy of the AFP response is included at Appendix “E”.
The attitude of the Northern Territory Police
The Northern Territory police also reconsidered in 2002 alleged inconsistency of material given to them by or on behalf of Mrs Scott. Their response was conveyed by a letter of 8 November 2002 from Mr Dauby, the “Assistant Commissioner Crime and Support Command”. For reasons given, the response was: “it is concluded that the material which you have provided does not warrant any further investigation by the Northern Territory Police”. A copy of the Northern Territory police response is included at Appendix “F”.
The proceedings in this Court
Case No N518 of 2002
On the final version of the Statement of Claim, this is an action by Mrs Scott and by her son Nathan Scott, by herself as a guardian, as applicants against the Northern Territory and the Commonwealth. The Northern Territory is sued upon a claim of direct liability, and of vicarious liability in connection with its servants and agents. It is alleged that:
·the deceased while in custody at Darwin Prison between 26 May 1985 and 31 May 1985 was seriously assaulted but not provided with any or any adequate medical attention;
·in the same period he was unlawfully prisoned;
·on or about 5 July 1985 he was assaulted and beaten with batons by “agents and servants” of the Northern Territory; and
·the deceased was then “asphyxiated by agents or servants of the [Northern Territory] manually compressing his neck … in circumstances that constitute murder”.
Particulars of those circumstances are given as follows:
·On or about 5 July 1995 the deceased’s death was caused by agents and servants of the Northern Territory in circumstances that constitute murder.
(a)the agents and servants intended to cause the death of “the deceased” or inflict some grievous bodily harm; or

(b)the agents and servants caused the death by means of an act done in the prosecution of an unlawful purpose and in unlawful association with others, such as to be likely to endanger human life; or
(c)the agents and servants caused the death by wilfully stopping the breath of “the deceased”.
·The agents and servants interfered with material evidence of the commission of crime with intent to mislead a tribunal or judicial proceeding.
·The agents and servants knowingly fabricated evidence, counseling or procuring the commission of perjury.
·The agents and servants conspired to obstruct, prevent, pervert, or defeat, the course of justice.
(a)On 5 July 1985 agents and servants of the Northern Territory entered the cell where the deceased was in custody at the Darwin Prison:
·carrying batons;
·jointly engaged in a protracted assault;
·jointly engaged in causing asphyxiation to him;
·jointly caused his death;
·jointly interfered with material evidence with the common intent to hide their activities and prevent detection and prosecution of their crimes;
·jointly interfered with material evidence with the common intent to inhibit detection of the true circumstances of his death;

(b)On or about 5 July 1985 agents and servants of the Northern Territory fabricated evidence with the common intent of preventing detection and prosecution of the crimes.
Further, servants and agents of the Northern Territory corruptly conspired to influence the outcome of the Royal Commission to avoid individual officers being “at risk for having acted improperly or criminally”, threatened Royal Commission witnesses, withheld material testimony of witnesses from the Royal Commission and sought to “corrupt and pervert” the Royal Commission’s finding in relation to the death of the deceased.
Further, in the foregoing ways, the Northern Territory and its servants or agents breached a “common law duty of care” and alleged statutory duties owed to the deceased.
The Commonwealth or its servants or agents were said likewise to have sought to pervert and corrupt the Royal Commission’s findings.
Damages, ordinary, aggravated and exemplary, “as necessary and rightful beneficiaries to the rights and claims of” the deceased were sought against both the Northern Territory and the Commonwealth.
Further causes of action, long on florid rhetoric but short on legal basis, including that various “public law” duties had been breached, including that the respondents breached responsibilities under a number of international treaties, among them the Charter of the United Nations; the International Covenant on Civil and Political Rights; the Refugees Convention; the Universal Declaration of Human Rights and also under the Constitution and the Racial Discrimination Act 1975 (Cth) were also included. There is no basis for arguing that any one or more of such instruments give rise to duties actionable domestically in the way asserted here.
The Statement of Claim continued by asserting that the Commonwealth was liable for the wrongdoing of its “agents” the Northern Territory.
Case No N519 of 2002
In its finally amended state, this application, brought by Mrs Scott alone, seeks orders directing the respondents, respectively the Police Commissioner for the Australian Federal Police and the Northern Territory Police, to show cause why a writ of mandamus should not issue commanding them “to assist the applicant, and such other persons as have good ground for requesting assistance, and fully investigate all material evidence and perform their duties according to the law in relation [to] the circumstances surrounding the imprisonment and death of [the deceased] on 5 July 1985, the Northern Territory Police investigation, the Coronial and Royal Commission inquiries which followed”.
A paragraph headed “Details of order sought” indicated that what was desired of the respondents was:
·the production to the Court, and provision for Mrs Scott “and such other persons as have good ground” to inspect, certain items of physical evidence relating to the investigation of the death of the deceased;
·assistance to the applicant to investigate, including by examination of the deceased’s body, his alleged unlawful imprisonment, torture and murder;
·similar assistance to bring to justice those who conspired to conceal the alleged murder in the Northern Territory police investigation, coronial inquest and Royal Commission inquiry; and
·refraining from relying on the findings of the inquest or Royal Commission.
Case No N916 of 2002
The respondents are the three officers of the Australian Federal Police who agreed to look into Mrs Scott’s “new evidence”.
In the penultimate form of the application, Mrs Scott, her son Nathan Scott, Mr Dow and Mr Taylor (another friend) sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) of decisions in connection with the investigation of complaints made by them of crimes against the deceased and in connection with the Royal Commission. The application also claimed:
·“A declaration … that the court quashes the findings of the Coronial inquest … and the Royal Commission …”
·“A declaration … that the court finds that Douglas Scott was unlawfully imprisoned, murdered by four Northern Territory Prison officers, and that the crime of conspiring to pervert the course of justice … by concealment of the murder of Douglas Scott from the Royal Commissioner … was committed …”
·“An order that the Australian Federal Police arrest and prosecute the perpetrators of the crimes … including the crime of perjury committed during the Royal Commission by prison officers to conceal the murder of Douglas Scott …”
Upon various difficulties, including the requirement that there be a “decision under an enactment” (s 3) for the ADJR Act to apply, being raised, the application was amended to seek, instead, orders said to be in the nature of mandamus.
The orders ultimately sought were that:
·permission be granted for the US Investigating Committee to conduct an exhumation and “reautopsy” of the remains of the deceased for the purposes of investigating various alleged offences;
·the respondents “conduct a bona fide investigation … into the offences complained of by the applicants in respect of the Royal Commission … to identify any Commonwealth offences and establish a basis for further investigation”;
·the respondents “conduct an investigation into the death … and that the case be reopened … for the purposes [of] investigation of offences against [s] 42 and [s] 43 of the [Crimes Act 1914 (Cth) (“the Crimes Act”)] (these sections respectively concern conspiring to, and attempting to pervert the course of justice in relation to the judicial power of the Commonwealth);
·conduct “an investigation into the complaint on evidence provided [by the applicants] … that [named] Northern Territory Prison Officers … murdered [Mr Scott]” and subsequently covered this crime by giving false evidence and conspiracy to conceal the murder; and
·conduct an investigation into the [applicant’s allegation and alleged evidence] that [named] Northern Territory Police Officers … gave false evidence to the Royal Commission to conceal [the alleged murder and various items of alleged evidence of it]. Sections 42 and 43 of the Crimes Act were referred to and also s 6H and s 6K of the Royal Commission Act 1902 (Cth). The latter respectively refer to knowingly giving false or misleading evidence before a Commission and concealment of documents or things that may be required before a Commission.
Orders were also sought that the respondents investigate a number of other allegations, including that Dr Lee gave false evidence to the Royal Commission; that Messrs Barbaro and Dodson concealed “the two original Polaroid photographs” from the Commission; that Mr Barbaro prepared a false statement for Mr Bindai to sign which was different from the evidence Mr Bindai gave to him; that Mr Dodson threatened Mr Bindai to prevent him from “giving his evidence of the murder” to the Commission (s 6L – prevention of a summoned witness from attending before a Commission – was referred to); and that all counsel appearing in the Royal Commission “had a secret meeting and entered into an unlawful agreement … to prevent Mr Bindai from giving oral testimony … with intent to prevent [him] from giving his evidence of the murder”.
That list does not exhaust the orders sought. In substance the complete re-investigation of all the applicant’s allegations of murder, cover-up and wrongdoing in relation to the Royal Commission was sought.
Consideration of N518/02
(i) The issues
In N518/02, the second respondent (the Commonwealth) filed a notice of motion on 8 July 2002 seeking orders that the amended statement of claim filed on 24 June 2002 (since further amended), as against it, be stayed or dismissed pursuant to O 20 r 2(1) of the Federal Court Rules on the grounds that “it does not disclose a reasonable cause of action; and/or is frivolous or vexatious; and/or is embarrassing; and/or is an abuse of process.” The first respondent (the Northern Territory) filed a notice of motion seeking that, as against it, the proceedings be stayed or dismissed on the basis that “no reasonable cause of action is disclosed; the proceedings are frivolous or vexatious; and the proceedings are an abuse of process”.
Counsel for the Commonwealth submitted that the application was an abuse of process: the claims against the Commonwealth were said to be merely colourable, being designed to maintain an application in the High Court or this Court against the Northern Territory, when the proceedings in the Supreme Court pleading a similar claim for damages had been dismissed or stayed; it is an abuse of process to bring hopeless claims against one respondent (the Commonwealth) for the purpose of attracting jurisdiction to a court which would otherwise not have jurisdiction to hear proceedings against another respondent (the Northern Territory).
Counsel point out that the pleadings suggest that the Commonwealth is liable in three respects:
(i)conspiracy by unnamed servants and agents of the Commonwealth who:
·agreed to influence the outcome of the Royal Commission so that individual prison officers would not be exposed to criminal charges;
·threatened witnesses and withheld testimony from witnesses; and
·sought to corrupt and pervert the Commissioner’s findings in relation to Mr Scott’s death.
(ii)breach of a common law duty which arose from a “common law duty to all prisoners in their care”. However, the applicant relies on the particulars provided in relation to the claim of conspiracy, which are claims of conspiracy relating to alleged misconduct in respect of the Royal Commission proceedings.
(iii)breach of a statutory duty said to arise from the Royal Commissions Act 1902 (Cth).

The Northern Territory supports the Commonwealth’s argument as to abuse of process by forum-shopping. Further, it is said that, even if the allegations made by the applicant that prison officers had murdered Mr Scott were true, the Northern Territory could not be held vicariously liable for such actions. A defendant can only be held vicariously liable for the actions of its servants and/or agents which arise out of or in the course of their employment. The commission of such gross criminal acts as murder could not be regarded as within the scope of the employment.
Where a case is said to be quite misconceived and a respondent seeks that the court summarily terminate it, the court should only employ its jurisdiction to do so sparingly. The lack of a real cause of action must be clearly demonstrated, even though argument of an extensive kind may be necessary to demonstrate that the applicant’s case is “so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-30.
As I indicated to the parties at the conclusion of the hearing of the notice of motion, it appeared that there was no viable claim that could be maintained in an application for damages against the Commonwealth for actions that occurred in a Northern Territory prison. Nor is there any civil action that can sustain the applicant’s claim for damages against the Commonwealth arising out of alleged conspiracy at the Royal Commission. If the acts claimed could amount to a criminal act, the Commonwealth cannot be held vicariously liable for any alleged crime of the kind suggested as the commission of such a crime would not be within the scope of an employee’s terms of employment or agency: the crime would be against the Commonwealth as much as against any other person, not a means of, or part of any project directed at, accomplishing the Commonwealth’s ends. The Commonwealth, by its government, wanted to know the truth. See also [63] below.
(ii) Commonwealth legal liability and officers’ responsibility for alleged defaults by Northern Territory officers
Counsel for the Northern Territory prepared extensive written submissions on the question of whether the Commonwealth has jurisdiction to investigate alleged offences in the Darwin Prison. They appear to me to be correct. They appear at Appendix “G” hereto. The High Court in Fittock v The Queen [2003] HCA 19 has recently reaffirmed that a “law of the Commonwealth” for the purposes of the Constitution does not include a Northern Territory law. The Northern Territory parliament is not a mere agent or delegate of the Commonwealth c.f. Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 281-3.
So far as crimes or civil breaches of statutory duty under Northern Territory legislation are alleged, they are not offences against any “law of the Commonwealth” so as to oblige or even to empower any Commonwealth officer to act in their investigation, unless there is specific, enabling Commonwealth legislation imposing such an obligation or conferring such a power on a Commonwealth officer. The applicants have not been able to point to any such legislation and I believe that there is none such.
Likewise, any civil breach of statutory duty imposed by a Northern Territory law is not a breach of any Commonwealth statutory duty.
Nor are prison, police or judicial officers appointed under Northern Territory legislation “officers of the Commonwealth” so as to bring them within the original jurisdiction of the High Court which, in matters remitted by the High Court to this Court, is available to this Court. Nor are they within the Court’s own broad statutory jurisdiction in relation to matters arising under Commonwealth laws: s 39B(1A)(c) Judiciary Act 1903 (Cth).
Insofar as the proceedings depend on the contrary of any of these propositions they are, in my opinion, unarguably foredoomed to failure.
(iii) The Northern Territory’s position
The claim in N518/02 is misconceived as against the Commonwealth, as explained. In relation to the Northern Territory, the respondents’ point that an employer is not liable for a murder committed by its employee, in which the employer is not actually complicit, appears to me to be correct. Ex hypothesi such would appear to be unarguably outside the scope of the employment. Murder, or an unprovoked severe beating, of a harmless prisoner could not be regarded as “so connected with unauthorised conduct as to be an improper mode of performing it c.f. Commonwealth v Connell (1986) 5 NSWLR 218 at 221 per Glass JA; see also Deatons Pty Ltd v Flow (1949) 79 CLR 370 at 381-2 per Dixon J.
(iv) Abuse of process and the Northern Territory
However, the Northern Territory itself might, in my view, arguably be regarded as having a non-delegable duty of care to prisoners such that if all reasonable steps were not taken to prevent harm, including by murder, coming to prisoners from prison officers (as well as from prisoners), the prisoner, or in case of the prisoner’s death his dependants, might recover damages. Nevertheless, in the proceedings in the Supreme Court, before they were stayed, steps had been taken to make open, on the pleadings, the proposition that death by murder had occurred. Those steps were taken after Mrs Scott learned of Mr Bindai’s allegations. She thus had proceedings on foot in that Court which were suitable to raise murder allegations if she wished to do so. That the proceedings were subsequently stayed is not to the point. Clearly, all that was necessary for the stay to be lifted was for an application to be made for such lifting by a lawyer properly instructed and, inferentially, that the Supreme Court be reasonably assured that the matter could thenceforth be presented in a more orderly fashion: there was no requirement that Mrs Scott be legally represented in the entire suit. Questions of relaxation or applicability of the statutory time bar could have been determined in that Court.
The truth, in my opinion, is that Mrs Scott found the forum of the Supreme Court not to her liking and sued the Commonwealth as a mere device to sue the Northern Territory in another forum. If that were not so, she could have sought to join the Commonwealth as another defendant in the Supreme Court. It is an abuse of process as against both the Commonwealth and the Northern Territory so to do. The Commonwealth has not been sued on any legally viable cause of action, but merely colourably. The Northern Territory has been brought to the expense of defending the relevant proceeding in a court in which, manifestly, it could not otherwise have been sued, when there was already on foot in a court of competent jurisdiction proceedings in which the allegations in question might have been raised. The categories of abuse of process are not closed: see, for example, Sea Culture International Pty Ltd v Scales (1991) 32 FCR 275 at 279-80. Multiple proceedings in Australian courts between the same parties (the applicant and the Northern Territory here) ought not be permitted: Henry v Henry (1995-1996) 185 CLR 571 at 590. It is entirely consistent with the prevention of “inconvenience and embarrassment” which underlies such an approach and with the values that support the doctrine of Anshun estoppel to conclude that, in the present circumstances, there is an abuse of process. It is also of no assistance to Mrs Scott that she has lately purported to discontinue the Northern Territory proceedings. Assuming, contrary to my view, that her intentions were legally effectuated, the Northern Territory would still have been, without reasonable warrant, twice vexed, that is to say the object of an abuse of process, and Mrs Scott would simply, by her own act, have thrown away her own, and possibly made more difficult her son’s, chance of obtaining redress there. The federal courts do not exist for people to invoke their processes by a merely colourable stratagem or one of self-inflicted harm when, rightly or wrongly, they perceive that they might fail in a state or territory court on the same or virtually the same cause of action or an extant cause of action in which all relevant allegations could be raised.
Consideration of N519/02 and N916/02
As indicated, these proceedings concern applications, seeking the issue of a writ of mandamus against (in N519/02) the Commissioner of the Australian Federal Police and the Commissioner of the Northern Territory Police, and (in N916/02) against three named Australian Federal Police officers. The applicant sought by the issue of such a writ effectively to compel a re-investigation of all of the material evidence relating to Mr Scott’s death and that the respondents should perform their alleged duties according to law in relation to the circumstances surrounding the imprisonment and death of Mr Scott.
The respondents sought to strike out the application on the basis that there was no reasonable cause of action shown against them. (In N916/02 the Commonwealth had filed an objection to competency when the proceedings had been founded on the ADJR Act).
(i) The role of police forces
In the Australian context, the principal function of police forces in relation to suspicious deaths is the investigation of them with a view to establishing whether any person has committed a criminal offence and, if so, to attempt to identify such person and to assemble the evidence to enable prosecution of the alleged miscreant. In addition, in most if not all jurisdictions there are systems of coronial inquiries involving investigations by coroners, usually magistrates, into deaths that, in varieties of ways, are out of the ordinary. In general, the focus is on looking into deaths in unusual circumstances, including, but not only, where foul play might reasonably be suspected. Usually, police are specifically assigned to assist the coroner’s inquiries, even where no crime is suspected, and a police officer investigating a particular crime will put his/her material to the coroner through such other police.
Offences against laws criminal in nature are of course multifarious and of varying degrees of importance. Few offences are more serious than the murder or serious assault of a person in, or understood to be in, lawful custody by his gaolers. Nevertheless, except in the context of a coronial inquiry, one must allow that, if there appears to be no serious prospect of obtaining a conviction, it may be a quite reasonable decision, even in a very serious case, by the relevant police officer(s) not to expend resources or further resources on an investigation. Among other matters militating against the prospect of obtaining a conviction will often be the lapse of time since the alleged offence.
It is true that the courts should respect the importance, subtleties, and intricacies of the processes of investigating and prosecuting crimes and should not be quick to intervene. Nevertheless, police officers, like other public officers, are not above the law. They are, in my opinion, expected and legally required to act “according to law and not humour”. While they have a large discretion about the extent, if any, to which they investigate or re-investigate alleged crimes, they must certainly exercise this discretion honestly, in good faith and without caprice. There may well be other limitations on their discretion. I see no reason why, in a proper case, a court ought not intervene to see that police duties, including of investigation, are carried out lawfully. Appropriate exercise of the court’s discretion can well prevent any undue disruption of the orderly and proper work of police officers or of the process of vindication of the criminal law.
In Hinchcliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308 ([2001] FCA 1747) Kenny J considered the duties of Australian Federal Police officers. Having surveyed the Australian Federal Police Act 1979 (Cth) and English and Australian authority, her Honour concluded at [35]-[38]:
‘The authorities do not support the proposition that the respondents owed a duty of the kind pleaded by Mr and Mrs Hinchcliffe in their amended statement of claim (that is, a duty to investigate their complaint and to consider whether any person should be prosecuted in consequence of such investigation). As the respondents’ counsel noted, there can be no duty to consider prosecution if there is no duty to undertake an investigation.
At the hearing of the respondents’ motion, counsel for Mr and Mrs Hinchcliffe did not really attempt to support the existence of a duty of the kind formulated in the amended statement of claim. Rather, he submitted:
“a refusal by police to receive a bona fide complaint, or the refusal to consider it, is a failure to perform their duty which is capable of attracting intervention of the Court.”
I accept that, where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law if:
(i)he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and
(ii)he or she acts appropriately upon the view which he or she has formed.
A range of matters may be pertinent to the member’s consideration of the complaint, depending on the circumstances.
Substantially accepting this formulation of the law, counsel for the Hinchcliffes submitted that there was sufficient material before the Court to withstand the strike-out motion and to support the proposition that there had been no real performance of the respondents’ legal duty. Whilst this was not as pleaded in the amended statement of claim, I consider the case on this reformulated basis.’
I respectfully agree with her Honour’s formulation, so far as it goes. Her Honour, it will be noted, embarked on a consideration of whether there was a “real performance of the [police officers’] legal duty”. Partly the applicants may suggest that there was no real consideration of “the question … in what way an initial inquiry into the complaint should be made”. As to that, my view is that there is no evidence to suggest that no real consideration was given to the matter.
Partly, however, the applicants suggest that there was remediable legal error in the decision not to further investigate. I have difficulty seeing why, if a court will go as far as Kenny J (as it seems to me rightly) did, the court should not, in a proper case, go further. It ought not be seen as only “policy decisions” that, while preserving real respect for the proper authorities’ capacity to manage a police force, the courts might investigate. Australian experience of the last 20 or 30 years does not support the proposition that all is necessarily well in every police force in the country. Citizens in my view are entitled to look to the courts for assistance in having police do their duty in considering whether to make further inquiries. Different considerations may apply once prosecutions have been launched in a court, but obviously different questions and a different and now well-known framework of

legal analysis, founded on preventing court processes being used as a means of injustice, are then involved: see Jago v District Court (1989) 168 CLR 23 and many subsequent cases.
I apply that view here, bearing in mind the cautions expressed in the cases and by me as to proceeding, nevertheless, with some care and with due respect for legitimate police processes. However, my opinion is that there is no evidence which could ground a conclusion that, in the case of either police force, there was a breach of such further duty.
There is, however, as it seems to me, nothing unlawful in a police officer bona fide determining, where there is some proper material to support the view, that one or more crucial witnesses are unlikely to be believed by a jury, and on that account to cease an inquiry. It must happen frequently in police work. In the case of a very serious crime, such as the various applicants allege here, one would usually expect that such a determination would not be made without interviewing the witness(es) concerned. Nevertheless, unusual circumstances may exist such that a police officer might reasonably come to the view that the matter is not worth investigating further or taking to court.
(ii) The approaches of the police forces in this case
The applicant’s own evidence, taken at its highest, suggests that this is so here. Nothing has been produced to suggest dishonesty on the part of the Australian Federal Police as an institution nor on the part of any investigating officer. The same is true of the Northern Territory police.
Neither police force nor its officers have been, so far as the present proceedings are concerned, acting at the behest of a coroner. It is difficult to see how, in the ordinary course, the Australian Federal Police would be so acting.
At the heart of Mrs Scott’s concerns and suspicions are the allegations of Mr Bindai, the US materials and the photographic materials.
As to Mr Bindai, his assertions are inconsistent with the sworn observations of the investigating police and, above all, Dr Lee as well as the relevant prison officers. It seems to me to be inconceivable that the deceased could have sustained a beating such as Mr Bindai suggests without there being any sign of it the next morning that would be detected by police looking for signs of foul play or an experienced forensic pathologist investigating the death in a prison. At least a police officer might reasonably so conclude.
Mr Bindai’s entirely inconsistent and contemporaneous statements cannot simply be brushed aside, and it is no more than fanciful to account for them on the basis that Mr Bindai was threatened by one of the counsel assisting the Royal Commission. It may, possibly more persuasively, be said that Mr Bindai might, having been in custody himself, have feared reprisals from the prison officers if he had spoken up. In any case, the inconsistent statements do not help the cause of his credibility and a police officer might well judge that they would further damage it.
It is also true that the zealotry of Mr Dow’s conviction, and the piteous sincerity of Mrs Scott’s conviction, would soon be apparent, or could readily be demonstrated, in a courtroom. There is no doubt that, on the only reliable records (Mr Dow’s unaided recollections could readily be regarded as not in that category) of what Mr Bindai has alleged, he made his allegations in circumstances where Mrs Scott was present and Mr Dow, her friend, was confidently asserting that Mr Scott had been murdered. The police officers viewed a videotape of Mr Bindai’s interview with Mr Dow.
It is enough to say that, in all the circumstances, the evidence of the applicant or applicants (as appropriate to the particular case) is not capable of suggesting that an honest police officer acting reasonably could not properly come to the view that Mr Bindai would not be accepted as a reliable and truthful witness.
(iii) Significance of the US authorities’ opinions
The US materials fall short of providing, on their own, positive evidence of murder. Further, only in a general sense would they corroborate Mr Bindai’s version – he does not specifically allege any event or sound positively suggestive of Mr Scott’s having been killed by one or more prison officers pressing a baton against his neck, which is the hypothesis the applicants want investigated. Mr Bindai’s allegations are of course, in any case, extremely serious, but the applicants will not countenance any alternative to the murder hypothesis. Nor do the US experts’ observations suggest a wholesale beating with a baton such as Mr Bindai has alleged. Absent a request to the Queensland government by some relevant Northern Territory authority, there appears no prospect of an exhumation of the deceased’s remains. In any case, the police were well entitled to take the view that there is only a possibility rather than a probability that further useful medical observations could be made, if exhumation did occur.
(iv) The photographic materials

The photographs (and Mrs Scott’s recollection of her very brief look at the last photographs) at best raise only a possible inference that, as the US experts thought, the integrity of the death scene might have been disturbed. Such a disturbance might obviously be accounted for by stupidity at least as well as by malignity. Why would murderers be likely to re-hang a body any more than innocent persons who might have realised that they or someone else had prematurely lowered the body of a man found dead by hanging? So, in my opinion, might reasonable police officers consider the matter.
(v) The weight to be given to the Royal Commission’s approach and judgments by its officers
Among the reasons for reproducing here so much of the Royal Commission’s report is to indicate the evident thoroughness and care that attended the investigation and the Commissioner’s consideration of the evidence. It is true that no evidentiary suggestion of murder was made to the Commissioner, and notably not by counsel for Mrs Scott. Of course, counsel are bound ethically not to advance positive suggestions of serious wrongdoing by someone unless they believe there is a proper basis for such a suggestion. Nevertheless, it is clear, if only from recorded interjections by Mrs Scott, that at least she strongly suspected murder and that her attitude must have been communicated to the Commissioner. It is inconceivable that a retired judge of such long and broad experience, necessarily alive to the established realities and allegations of the then recent violence by some prison officers in various parts of Australia, as well as to the realities of violence between prisoners, would not have been keeping a capable and keen eye out for any sign of foul play towards any Aboriginal prisoner who died in custody. For that and other reasons, the police authorities of the Commonwealth and the Northern Territory would be and were well entitled to credit the Royal Commission’s findings with great respect.
Having regard to experience in these matters, it is equally inconceivable that the Commissioner’s evident attitude of thorough investigation, letting the cards fall where they may, would not have communicated itself to and have activated those assisting the Royal Commission, if, which all the circumstances would make one doubt, they needed any such activation. Working relationships in such an inquiry are very close.
In these circumstances, if, contrary to the contemporaneous record, Mr Barbaro recalled Mr Bindai making some allegation such as he has since made, the view would readily be open that, when he expressed it, Mr Barbaro’s recollection was likely to be mistaken. If it were thought that his recollection might be correct, the view would be well open that there was, during the currency of the Royal Commission, good reason to disbelieve Mr Bindai. There is nothing to indicate that police officers would not be perfectly justified in considering that there is no credible evidence to suggest any criminal wrongdoing by any Commission lawyer. The allegation that Mr Dodson seriously threatened a potential Royal Commission witness with death or a beating, on its face, invites disbelief. The police were, in my opinion, unarguably entitled so to conclude.
(vi) Overall
Nor, weighing the matters of concern together, does the picture materially differ. Some people, in my opinion, might reasonably think that the new materials, despite all that has gone before, are sufficiently disquieting, having regard to the seriousness of the matter, as to warrant a complete re-investigation. Others might reasonably think differently. The applicants’ evidence allows, in my view, no inference to the contrary.
To take the second of those views is not to imply any necessary disrespect for Mrs Scott’s and her son’s plainly heartfelt grief and sense of outrage, nor for Mr Dow’s or Mr Taylor’s plainly sincere if over-zealous concerns. One might think that there is no practical point in re-opening the matter so late in the piece while nevertheless acknowledging that intuition may be right although satisfactory proof is lacking, that a degree of doubt or suspicion might ever remain, or that, on occasions, appalling things such as Mrs Scott is alleging have occurred and have long after, and against the odds, been established.
(vii) Loss of original photographs
A matter that agitated Mrs Scott is the apparent loss of the original Polaroid photographs taken by prison officers on the morning of the discovery of the deceased’s body. There is nothing to suggest any suspicious explanation of this loss. So far as the materials before me show, the fact is that those photographs are not able now to be examined by anyone.
General
There are, very obviously to a lawyer, other, including more technical, grounds for considering that various aspects of the three proceedings are quite unmaintainable. I have sought to deal with the aspects that either might have any whiff of legal credibility or which, as far as I have been able to discern, go to the core of the applicant’s concerns.
It has been difficult to try to keep these proceedings on anything like an orderly footing. As before Martin CJ, Mrs Scott has been a difficult litigant. In her case that is understandable. In different ways, Mr Dow and Mr Taylor have also been difficult to deal with. Why that should have been so is less understandable. I have perhaps erred in according too much latitude to the applicants. In that regard, it is to be observed that Mrs Scott was able to obtain legal representation in the coronial inquest; before the Royal Commission; in the Northern Territory Supreme Court; to investigate the new Bindai and Barbaro material and to make representations to the Prime Minister representing the Commonwealth; to seek from the Queensland authorities exhumation of the deceased’s body; and (by two separate lawyers) at times before me. The fact is that in every Australian city it is reasonably possible to obtain competent legal assistance for Aboriginal people with a viable case. In a matter such as this, there is no shortage of capable lawyers prepared to act for nothing if they see that there appears to be a just and viable cause. Among other things, with the consent of the respondent I approached one of the Bar Associations to arrange pro bono help from senior counsel for Mrs Scott’s then junior counsel. Assistance was willingly offered, but was not utilised because Mrs Scott dismissed the junior concerned (over an ethical position he apparently held as to the assertion of murder as distinct from a beating causing the deceased to suicide). The time is over-ripe to end the latitude given to the applicants in framing their cases, simply because they are self-represented and sincere in their concerns.
No further opportunity for further amendment of any of the pleadings of any of the applicants should be granted. The applicants have been given more than ample opportunity to get their cases in order.
Nothing I have said as to the lack of a case for showing legally wrong conduct by the police officers should be understood as indicating a view as to whether, if I were deciding the matter for myself, I would make the same decision as the police. It may well be that, on application to a judge of the Northern Territory Supreme Court under s 44 of the Coroners Act 1993 (NT) to reopen the inquest or hold a new one, or, on approach to a coroner to exercise the powers, it seems, of every Northern Territory coroner to reopen an inquest, a judge or a coroner might quite reasonably come to a different view from that arrived at by the police officers. That would be entirely a matter for the judge or magistrate concerned if the matter should be so agitated. If any such application has already been unsuccessfully made there appears to be nothing to prevent another such application, in the event that there is new material.
Disposition
In each matter, the principal proceeding is dismissed. The respective applicants in the respective cases are to pay the respondents’ costs.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
Associate:
Dated:            1 July 2003

The applicants appeared in person.

Counsel for the Commonwealth Respondents: Mr P Roberts SC and Mr G Johnson

Solicitor for the Commonwealth Respondents:
Australian Government Solicitor

Counsel for the Northern Territory Respondents Mr M Grant

Solicitor for the Northern Territory Respondents: Solicitor for the Northern Territory

Date of Hearing: 11 November 2002

Date of Judgment: 1 July 2003

APPENDIX “A”
ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY
Secretary: John Gavin  45 Flinders Street
Assistant Secretary: Jill Sheppard  ADELAIDE SA 5000
GPO Box 1005
ADELAIDE SA 5001

Reference:Telephone: (08) 223 6222
Fax: (08) 223 7825

17 September 1990
The Honourable James Henry Muirhead, QC
Administrator of the Northern Territory
Government House
DARWIN NT 0800
Your Honour
In accordance with the Commission of Inquiry (Deaths in Custody) Act 1987 as amended on 15 June 1988 and 15 June 1989, I have the honour to present to you the report of my inquiry into the death of the Aboriginal man who died in the Darwin Prison on 5 July 1985. An order suppressing the publication of the names of the young man was made by me at the hearing into the death. In recognition of Aboriginal custom and at the request of the young man’s family I do not name the young man in my report.
I am also presenting the same report to His Excellency the Governor-General in accordance with Letters Patent issued by him.
Yours sincerely
Elliott Johnston
COMMISSIONER
INQUIRY INTO THE DEATH OF THE ABORIGINAL MAN WHO
DIED IN THE DARWIN PRISON ON 5 JULY 1985
INTRODUCTION
This is the first report submitted by me following inquiry into a death occurring in the Northern Territory. It is, therefore, appropriate that I should say something about the style of reporting that I will adopt.
The number of inquiries, the volume of material to be considered in relation to each, the need to give time and thought to the study of issues underlying the deaths both individually and collectively imposes certain limitations upon the nature of reporting. But it is important that reasons be clearly stated for conclusions reached.
In this connection I should say that the inquiries which I have conducted have been marked by great thoroughness of preparation on the part of Counsel Assisting and those instructing and supporting counsel and equal thoroughness on the part of counsel for government, the families of deceased persons and other interests such as police and prison officers. That has been of great assistance to me and I express my appreciation. As a result of such thoroughness of preparation and critical examination from various perspectives, it has become apparent in this and other inquiries that some matters of fact are not in dispute being established with certainty. Where this is the case I state the facts and give general reasons for my finding but without going into detail. However, where there is some dispute as to an issue, or where the issue is central to the inquiry I will indicate in detail my reasons for arriving at a conclusion but without (usually) quoting or referring in detail to the evidence which supports those reasons. To do so would make this and other reports intolerably long.
I mention that in respect of each custodial death into which I inquire I am required by my Letters Patent to inquire not only into the death but also into ‘... any subsequent action taken in respect of each of those deaths including ... the conduct of coronial, police and other inquiries and any other things that were not done but which ought to have been done’. My Letters Patent also require me to investigate not only the immediate cause of death and the events and processes leading directly to it but also to examine the underlying causes which contributed to the death; in short to try to ascertain, as far as is possible, not only how the deceased died but why the death occurred.
My task is essentially to find facts and report them. In making my findings as to the facts I will apply the standard of proof referred to as ‘on the balance of probability’, being the standard of proof applied in the civil courts. That onus requires that I feel an actual persuasion that something was said, done or occurred before I make a finding to that effect. The seriousness of a fact in issue, the gravity of the consequences flowing from a finding as to a fact will affect one’s readiness to arrive at the stage of an actual persuasion as to the existence of the fact.
…
SUBJECT MATTER
A man, whose name has been suppressed from publication, died in the morning of 5 July 1985 whilst a prisoner in Cell 8 in the remand area (C Block) of the Darwin Prison at Berrimah. He was an Aboriginal [and his death clearly fell within the terms of my Letters Patent, both Commonwealth and Northern Territory]. I conducted an inquiry into the death. [The actual dates of hearing, counsel and the parties for which they appeared, the witnesses called and the exhibits tendered are set out in Appendices to this report. The report divides into four parts: Part One - A synopsis of my findings; Part Two - a closer examination of those findings and the setting out of my reasons; Part Three - an examination of the investigation, including the coronial inquest which followed the death; and Part Four - an indication of the important underlying issues which appear to be associated with the death. As this is my first report of a death in the Northern Territory I include an introduction which I will not repeat in subsequent reports of inquiries into deaths occurring in the Territory.]
PART ONE
A SYNOPSIS OF MY FINDINGS AS TO THE DECEASED AND HIS DEATH
1.1 A Short Survey of the Background of the Deceased
The deceased was born in Townsville on 16 June 1959. His father was an Aboriginal man from Barambah (Cherbourg) Queensland. His mother, an Aboriginal woman, was from Cloncurry. The deceased was the youngest of five children. He, like some of the other children, took the maiden name of his mother. The parents were formally married in the European sense in 1985. His youngest brother, Walter, resided in the Mosman Hall Psychiatric Hospital in Charters Towers for a number of years and died there in 1986. He had one other brother and two sisters.
His father was an unskilled labourer who moved around a good deal in search of work. There is material from which one could draw the conclusion that the deceased’s early life was difficult. He himself is reported as having said of his parents that both drank heavily and that there was a good deal of domestic violence. He was educated at State primary schools and left school at the age of 14 having completed Grade 7. He spent some time at least in an opportunity class.
By the time he left school he had been treated for a number of medical conditions. When aged 4, he attended at Townsville General Hospital casualty section with tonsillitis. He was recorded as suffering from viral meningitis at the age of 6. At age 9 he was treated for an electric shock injury in which he was said to have been thrown several yards. He appears to have suffered a succession of respiratory disorders as well as physical traumas including bullet wounds and a motor vehicle accident which resulted in his spending three weeks in hospital after a period of 24 hours unconsciousness. It is recorded in the medical history records of the deceased in the Community Health Centre files that he began to suffer from ‘nerves’ at the age of 13.
According to a 1977 pre-sentence report (to which I later refer) he left school at age 14 and gained employment at a meatworks. He is said to have had a total of 17 months employment in three separate periods between 1973 and 1975 (aged 14 to 16). By 1977 he had convictions for minor matters and two charges of breaking and entering (1977). He was fined in respect of these offences other than one case of break and enter for which he was placed on a two year bond. He was subsequently charged with breach of that bond and the 1977 pre-sentence report was prepared in connection with that breach. He was examined by a psychiatrist and separately by a psychologist in connection with the preparation of that report. He was thought by the psychiatrist to be ‘a rather inadequate, apathetic person, who is passive, shows little initiative, he drinks to excess at times’ and he referred to these various problems probably being aggravated by his colour, by which I understand the psychiatrist to mean that the effects of what were perceived to be personality defects and the difficulty of finding a solution to the problems they posed were exacerbated by his patent Aboriginality.
The psychiatrist thought that the deceased was ‘not the type of active offender who would plan and then put his project into execution. He commits offences by lack of control, irresponsibility, incapacity to appreciate the consequences of his behaviour. Even so, a quality from such weakness means that by being immature, dependent, non-critical and easily influenced, he could still gain from long term re-educative measures. As he is already 18, the limited facilities for re-education in Queensland do not suggest long term beneficial measures with which he could be provided’. In any event, the order made on the breach of bond proceedings was 6 months imprisonment.
In the years following, the deceased continued to be affected by ill-health, excessive drinking of alcohol and further offending. He continued to suffer respiratory complaints and was prescribed Valium, Mogadon and Tryptonol.
The records of the Aboriginal-Islander Health Service note several attendances in 1980 for alcohol withdrawal ‘shakes’, palpitations, anxiety, depression. In 1981 he attended with chest pain and, on two occasions, anxiety. The Townsville General Hospital clinical file relating to the deceased indicates a number of attendances between 1979 and 1981 for ‘nerves’ and five attendances for alcohol withdrawal and related complaints (he was then aged 23-25).
He was involved in a number of incidents involving traumatic injury: in 1976 he was treated for bullet wounds to the left knee and arm; in 1977 he was taken to hospital by police after being knocked out in a fight; in 1981 he was admitted for observation after apparently being knocked out with a brick; in 1983 he was stunned in a diving accident.
In 1982 he met his future wife, Lettie. She was working as a clerical assistant at the time at a nearby army base and visiting a sister in Townsville. Lettie had two daughters from a previous marriage. When interviewed in 1977, the deceased stated that he had a Jehovah’s Witness family background but at that time said that he was no longer attending the church because he ‘felt too bad to be a Christian’. It is apparent, however, that he continued his association with the church or at least had renewed it by 1982 because he and Lettie attended the Jehovah’s Witness church in Townsville. From there they began to mix socially and were married not long afterwards. Lettie was an important witness in the Inquiry, not only for what she could say about her husband but for other reasons as will appear. It is desirable to leave for a moment the account of the husband to say something of the wife.
1.2 The Background of Lettie
Lettie is an Aboriginal woman bom at Glen Helen Station west of Alice Springs, her mother being an Aboriginal woman from that country and her father being a white man from NSW who, according to Lettie’s evidence, was manager of the Glen Helen Station. (From evidence received in another matter I think it may be more accurate to say he was manager of certain aspects of the work at Glen Helen Station which was owned at the time by Mr Brian Bowman who now lives in Alice Springs and who has written about the pastoral industry in the Centre.)

Northern Territory Police also agree with and adopt the observations made by the Australian Federal Police in relation to the Bindai allegations.
Further account by Laurie Percy
Northern Territory Police have considered the notes of interview with Laurie Percy dated 1 March 1996. The notes of interview have no explanatory content or introduction, nor do they make specific reference to any particular time or event. They did not identify either interviewer or the interviewee, and are not signed by either person. It is presumed that they relate to events on the morning of 5 July 1985.
The conversation recorded in the notes is in the main disjointed and cryptic, and does not provide the reader any real chronology of alleged events. The conversation as recorded again discloses leading questions.
It is not possible to give this document any weight if it is suggested that the notes of conversation contain allegations that the deceased was hanged by some other person or persons. The reference to the hanging is too vague, and such a suggestion would be entirely inconsistent with the questionnaire completed by Percy on 6 March 1989 in the course of the Royal Commission. In that questionnaire Percy indicated that he believed the deceased had committed suicide.
Percy’s allegation that he cleaned blood from the deceased’s cell is also unsustainable. Investigating police and the forensic pathologist conducted an examination of the cell for blood, vomit or any other signs of interest. None were found. Dr Lee also advises that the autopsy disclosed no source of blood in the nature of an external injury, and no sign of internal bleeding. It is apparent from the questionnaire completed and signed by Percy that any cleaning activities that he may have conducted in the cell took place after the attendance by police and the forensic pathologist.
Account by Geoffrey Moreen
Northern Territory Police have also assessed the notes of interview with Geoffrey Moreen dated 1 March 1996. Again, it is not possible to attach any weight to the document for the reasons detailed above in relation to the Percy account.
-5-
It is also the case that the Northern Territory Police have been unable as yet to confirm that Geoffrey Moreen was in custody in C block on the day in question. The assessment has been conducted on the assumption that he was.
Conclusion
Following this assessment and consideration, it is concluded that the material which you have provided does not warrant any the further investigation by the Northern Territory Police.
Yours faithfully
John R Daulby
Assistant Commissioner Crime and Support Command
8 November 2002

APPENDIX “G”
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NO N518 OF 2002

BETWEEN:
LETTY MARIE SCOTT AND ANOTHER
Applicants

AND:
NORTHERN TERRITORY OF AUSTRALIA AND ANOTHER
  Respondents
NO N519 OF 2002
On remittal from the High Court of Australia
IN THE MATTER OF APPLICATION FOR WRITS OF MANDAMUS AGAINST THE COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE AND THE COMMISSIONER FOR THE NORTHERN TERRITORY POLICE
  Respondents
EX PARTE: LETTY SCOTT
  Applicant/Prosecutor

OUTLINE OF SUBMISSIONS BY THE NORTHERN TERRITORY OF AUSTRALIA AND THE COMMISSIONER FOR THE NORTHERN TERRITORY POLICE IN RELATION TO JURISDICTION OVER AND RESPONSIBILITY FOR
THE INVESTIGATION OF OFFENCES WITHIN THE DARWIN PRISON
1.The plaintiffs contend that the provisions of the Crimes Act 1914 (Cth) (“the Crimes Act”) have application to matters arising in the Darwin Prison on or about 5 July 1985 involving or relating to the death of the deceased and the subsequent investigation of that death. Further, or in the alternative, the plaintiffs contend that the Australian Federal Police have an obligation or responsibility to investigate those matters.

2.In light of those contentions, the Court has called for further written submissions in relation to: --

(1)whether the Northern Territory of Australia exists as a polity distinct from the Crown in right of the Commonwealth of Australia;
(2)whether in the Northern Territory at the material time, the substantive criminal offences of assault and murder were governed by the laws of the Northern Territory or the laws of the Commonwealth; and
(3)whether the Crimes Act has or can have application to the matters or occurrences alleged to have taken place in the Darwin Prison.

The constitutional position of the Northern Territory of Australia
3.The Northern Territory was administered by the Commonwealth between 1911 and 30 June 1978. At all times during that period it remained a part of the Crown in right of the Commonwealth with no separate juridical personality. From 1 July 1978 there was established a separate body politic under the Crown by the name of the Northern Territory of Australia.[1] So much has been held by the courts in a raft of cases since self-government.[2]
[1] See Northern Territory (Self-Government) Act 1978 (Cth), s5.
[2] See Capital Duplicators v ACT (1992) 177 CLR 248 at 281-3, 284; Traut v Rogers (1984) 27 NTR 29 at 31, 35; R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Jennings Constructions v Burgundy Royale Investments (1987) 162 CLR 153; Northern Territory v Skywest Airlines (1987) 48 NTR 20; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345; Waters v Acting Administrator for the Northern Territory (1993) 46 FCR 462; Svikart v Stewart (1994) 181 CLR 548; Wake and Gondarra v Northern Territory (1996) 109 NTR 1.

4.With the passage of the Northern Territory (Self-Government) Act 1978 (Cth) (“the Self-Government Act”), all land within the borders of the Northern Territory vested in the new body politic by dint of section 69 of that Act, subject only to a power in the Commonwealth to acquire land within the Northern Territory pursuant to section 70 of that Act.

5.The Northern Territory Legislative Assembly has a plenary power to legislate on all subject matters, subject to certain qualifications which are not relevant for these purposes.[3] The executive power of the Northern Territory is conferred by section 35 of the Self-Government Act by reference to enumerated heads of power prescribed by regulation 4 of the Northern Territory (Self-Government) Regulations. Those heads of executive power include relevantly: --
[3] See Self-Government Act, s6.

(1)       “The Public Service of the Territory”
(2)       “Maintenance of law and order and the administration of justice”
(3)       “Correctional services”
(4)       “Police”

6.Upon self-government, existing Territory ordinances were continued in effect as if passed by the newly established Legislative Assembly.[4] The criminal laws of the Northern Territory, such as they were at the time, became laws of the Territory rather than laws of the Commonwealth. The Criminal Code of the Northern Territory of Australia, which takes the form of a Schedule to the Criminal Code Act (NT), was passed by the Legislative Assembly of the Northern Territory in 1983.
[4] See Self-Government Act, s73.

The interaction between Commonwealth criminal laws and Northern Territory criminal laws
7.Since the advent of self-government, the interaction between Northern Territory criminal laws and Commonwealth criminal laws is, in effect, the same as the interaction between State criminal laws and Commonwealth criminal laws. Whilst section 109 of the Constitution, which provides that Commonwealth law will prevail over State law to the extent of any inconsistency, has no application to the Northern Territory, Commonwealth law will prevail over Northern Territory law in the same manner by reason of the Northern Territory’s status as a subordinate body politic created pursuant to section 122 of the Constitution.[5]
[5] The Queen v Kearney; Ex Parte Japanangka (1984) 158 CLR 395.

8.Accordingly, the criminal law of the Northern Territory will apply to offences committed within its borders unless it is inconsistent with a Commonwealth criminal law, or unless there is a Commonwealth criminal law which intends to deal exhaustively with the subject matter: see R v Loewenthal; ex parte Blacklock (1974) 131 CLR 338; R v MacPherson [1996] 1 Qd R 656.[6]
[6] It is also the case that where the Commonwealth acquires land within a State, the laws of that State cease to operate in that place except as expressly provided: see Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89; R v Phillips (1970) 125 CLR 93. There can be no suggestion in this case that the laws of the Northern Territory did not operate in the Darwin Prison by operation of the principle. First, land within a Territory created pursuant to section 122 of the Constitution cannot be characterised as a Commonwealth place for the purposes of section 52(i) of the Constitution: see Svikart v Stewart (1994) 181 CLR 548. Secondly, upon self-government all land within the borders of the Northern Territory vested in the new body politic by dint of section 69 of the Self-Government Act, and there has been no relevant acquisition pursuant to section 70 of that Act.

9.Conversely, the Commonwealth has a largely plenary legislative power in relation to Territories created pursuant to section 122. That being so, the criminal laws of the Commonwealth, including the Crimes Act, will apply to matters and occurrences in the Northern Territory insofar as their terms provide.

The employment of prison officers
10.Prior to self-government, public sector employees in the Territory were employed in three distinct capacities. First, the Public Sector Ordinance 1928 established a Public Service of the Territory consisting of the Department of the Administrator and comprised by the various branches set out in section 8 thereof. Secondly, the Australian Public Service had a number of Departmental branches in the Northern Territory staffed by APS personnel. Thirdly, there were various authorities such as the Housing Commission, the Port Authority and the Territory Parks and Wildlife Commission which were constituted by dedicated ordinances. All public sector employees were employees of the Commonwealth.

11.The Public Service Ordinance 1976 repealed the Public Sector Ordinance 1928 as it had been amended from time to time. Certain of its provisions commenced on 22 December 1976, with the remainder coming into effect on 1 January 1977. The repealing Ordinance created a Public Service of the Northern Territory. By operation of section 38 of the repealing Ordinance, prison officers employed in the prisons and other correctional facilities of the Northern Territory were deemed appointed as employees of the Public Service of the Northern Territory with effect from 1 January 1977.

12.With effect from 1 July 1978, the Public Service of the Northern Territory became part of the Crown in right of the Territory and from that time prison officers employed in Northern Territory correctional facilities were employees of the Crown in right of the Territory rather than employees of the Commonwealth.

The powers, obligations and responsibilities of the Australian Federal Police
13.The Commonwealth has established its own police force, presently pursuant to the Australian Federal Police Act 1979 (Cth). The Northern Territory has, pursuant to the grant of legislative power made upon self-government, established its own police force with the passage of the Police Administration Act 1978 (NT), and operates that police force pursuant to the executive authority vested expressly by the Self-Government Act.[7]
[7] It is also clear that Northern Territory Police are officers of the Crown in right of the Territory, rather than the Crown in right of the Commonwealth. The Commissioner of Police is appointed by the Administrator for the Northern Territory. The Commissioner of Police determines the number of members and ranks of the Police Force, and makes appointment to those ranks. The Crown in right of the Territory is liable in respect of torts committed by members of the Northern Territory Police in the performance of the duties: see Police Administration Act 1978 (NT), s163.

14.The functions of the Australian Federal Police, leaving aside those special functions arising under the Witness Protection Act 1994 (Cth), are limited to:

(1)the provision of police services in relation to the Australian Capital Territory, Jervis Bay and, by arrangement, external Territories;
(2)the provision of police services in relation to the laws of the Commonwealth, property of the Commonwealth (including Commonwealth places), and the safeguarding of Commonwealth interests; and

(3)the doing of anything incidental or conducive to the performance of the foregoing functions.[8]
[8] Australian Federal Police Act 1979 (Cth), s8.

15.The term “laws of the Commonwealth” as it appears in the Australian Federal Police Act 1979 (Cth) does not include within its ambit laws passed by the Legislative Assembly of the Northern Territory (such as the Criminal Code Act 1983 (NT)). So much is apparent from the distinction that is drawn between the Commonwealth, the States and the Territories in the text of the Crimes Act.[9] Nor is it open to argue that any law made by the Legislative Assembly of the Northern Territory is a “law of the Commonwealth” on the basis that the statute is passed by a legislature created by a law of the Commonwealth (in this case the Self-Government Act).[10]
[9] See paragraphs 15 to 18 below.
[10] It has long been held that laws made under section 122 of the Constitution are not laws made by the Commonwealth Parliament for the purposes of section 76(ii) of the Constitution: see Northern Territory v GPAO (1999) 196 CLR 553 at 597; Kruger v The Commonwealth (1997) 190 CLR 1 at 169-170; Spratt v Hermes (1965) 114 CLR 226 at 249-250. For these purposes, whilst a law made by the Commonwealth Parliament in exercise of the power conferred by section 122 of the Constitution is a law of the Commonwealth, a law passed by the Legislative Assembly of the Northern Territory is not.

16.This limitation of responsibility to Commonwealth matters is reflected in those provisions of the Crimes Act dealing with warrants, arrest and investigation.

17.Part 1AA of the Crimes Act deals with search warrants and powers of arrest. A reference to an “offence” wherever appearing in that Part is defined to mean an offence against a law of the Commonwealth, or an offence against a law of a Territory other than the Australian Capital Territory. (It is to be noted here that the definition of “Territory” which appears in section 3 of the Crimes Act provides that the term “Territory” does not include the Northern Territory. The term “State” is defined in that same section to include the Northern Territory.)

18.Thus, the power to make application for, issue and execute search warrants is largely limited to the investigation of offences against a law of the Commonwealth, and does not extend to the investigation of offences against a law of the Northern Territory.

Similarly, the power of arrest without warrant is limited to circumstances where there is a reasonable belief that a person has committed or is committing an offence against the laws of the Commonwealth.

19.Part 1C of the Crimes Act is titled “Investigation of Commonwealth Offences”. As the title connotes, it is limited in its operation to Commonwealth offences. That term is defined for the purposes of the Part to mean an offence against a law of the Commonwealth.

20.It follows from the foregoing that the powers, obligations and responsibilities of the Australian Federal Police in relation to any matter or occurrence in the Northern Territory are enlivened only if that matter or occurrence involves a breach of the laws of the Commonwealth or an offence against Commonwealth property. The investigation of offences against the criminal laws of the Northern Territory is within the executive authority of the Northern Territory Police. It falls, then, to consider whether the matters or occurrences alleged by the plaintiffs (assuming for the purposes of the argument that those allegations are well-founded), may be characterised as offences against a law of the Commonwealth, and in particular the Crimes Act.

The operation of the Crimes Act
21.The Crimes Act creates various offences including offences against the Federal Government, offences relating to the protection of the Constitution and public service, offences relating to the administration of justice, offences by and against public officers of the Commonwealth, espionage and official secrets.

22.The general thrust of the Crimes Act, insofar as it creates substantive offences, is to make provision for matters of a purely Federal character or matters falling properly within the Commonwealth purview by reason of their international flavour, viz offences against the Sovereign and Commonwealth government such as treason and sedition (see Part 2 and Part 2A), offences in relation to child sex tourism (see Part 3A), piracy (Part 4), unlawful access to Commonwealth computers (see Part 6A), espionage (see Part 7), and offences relating to the postal and telecommunications services of the Commonwealth (see Part 7A and Part 7B). There are no Commonwealth offences of assault, murder or unlawful homicide. In relation to matters taking place within the Northern Territory, those offences are created by the Criminal Code of the Northern Territory. The only category of offences which might conceivably attract the application of the Crimes Act to the death of the deceased at Darwin Prison on 5 July 1985 are those offences relating to the administration of justice appearing in Part 3 of the Act.

23.As the plaintiffs’ argument is presently understood, it is contended that the deceased was murdered by prison officers and that the fact and evidence of the murder was concealed and/or destroyed by those prison officers responsible, and subsequently by members of the Northern Territory Police Force charged with the investigation of the death. The contention follows that the effect of that concealment and/or destruction was to pervert, defeat or obstruct the administration of justice in some sense contemplated by Part 3 of the Crimes Act. The argument calls for an examination of each of the offences created by Part 3.

24.Sections 32, 33, 48B and 50 have been repealed and, in any event, are irrelevant to the plaintiffs’ contentions. Sections 34, 41, 44, 45 and 49 are irrelevant to the plaintiffs’ contentions. Sections 46 through to 48A deal with the escape of prisoners and related matters, and have no bearing on the present circumstances.

25.Section 35 creates the offence of knowingly giving false testimony “in any judicial proceeding”. That offence has no application to any matter or occurrence taking place within the Darwin Prison at the material times. At most, the argument would follow that those prison officers and police who gave evidence during the course of the coronial inquest and the Royal Commission into Aboriginal Deaths in Custody knowingly gave false testimony in breach of section 35.

26.The argument fails on a number of bases. First, the term “judicial proceeding” is defined for the purposes of Part 3 to mean:

“…. a proceeding in or before a federal court, court exercising federal jurisdiction or court of a Territory, and includes a proceeding before a body or person acting under the law of the Commonwealth, or of a Territory, in which evidence may be taken on oath.”

27.As has already been seen, the term “Territory” as defined for the purposes of the Crimes Act does not include the Northern Territory, and laws passed by the Legislative Assembly of the Northern Territory are not laws of the Commonwealth. Accordingly, section 35 can have no application to the coronial proceedings or to the Royal Commission insofar as it was making inquiry pursuant to the Commission of Inquiry (Deaths in Custody) Act 1987 (NT).

28.Secondly, section 35 has no application to the Royal Commission insofar as it was making inquiry pursuant to Letters Patent issued by the Governor-General. The operation of the section is limited to judicial proceedings. Royal Commissions do not exercise judicial power and their proceedings are not judicial proceedings. Their function is to inquire, report and recommend. They do not decide issues as between parties.[11] This is so even where the Commission in question is inquiring into whether an individual has committed an offence.[12]
[11] See Lockwood v Commonwealth (1954) 90 CLR 177; R v Collins; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 473; Ross v Costigan (1982) 59 FLR 184 at 119-200.
[12] Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation (1982) 152 CLR 25.

29.
Even if one were to accept that the provision was not limited in its operation to judicial proceedings, the statutory definition is rendered exhaustive in its scope by use of the term “means”. The term “judicial proceeding” is thereby limited in its meaning to proceedings in or before a federal court, a court exercising federal jurisdiction or a court of a Territory. The subsequent inclusion of “a proceeding before a body or person acting under the law of the Commonwealth, or of a Territory, in which evidence may be taken on oath” does not operate to extend the meaning of the term beyond the initial limitation.[13] Thus, for example, a body acting under the law of the Commonwealth in which evidence may be taken on oath may only be characterised as a “judicial proceeding” for the purposes of Part 3 if it otherwise falls within one or
[13] See Pearce & Geddes, Statutory Interpretation in Australia (5th Edition), paragraph [6.60]; Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156 at 170.

other of the limiting designations, viz a federal court, a court exercising federal jurisdiction, or a court of a Territory. The Royal Commission was not such a body.[14]
[14] This construction draws support from the fact that section 6H of the Royal Commissions Act 1902 (Cth) contains its own code for the punishment of witnesses who knowingly give false or misleading evidence before a Royal Commission. Nor does this specific provision vest the Australian Federal Police with responsibility for the investigation of any alleged assault or murder taking place at the Darwin Prison. The responsibilities of the Australian Federal Police extend only to matters transpiring during the course of the Royal Commission.

30.Section 36 of the Crimes Act creates the offence of fabricating evidence or knowingly making use of fabricated evidence with intent to mislead any tribunal in any judicial proceeding. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding.

31.Section 37 of the Crimes Act creates the offence of corrupting a witness by the giving, conferring, procuring or promise of some property or benefit in exchange for giving false testimony in any judicial proceeding. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding. In any event, there is no suggestion in the plaintiffs’ contentions of any activity of the nature proscribed by section 37 taking place in the Darwin Prison during the course of the alleged murder or the subsequent investigation.

32.Section 38 of the Crimes Act creates the offence of deceiving a person called or to be called as a witness in any judicial proceeding by the making or exhibiting of a false statement or representation. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding.

33.Section 39 of the Crimes Act creates the offence of destroying any book, document or other thing that is or may be required in evidence in any judicial proceeding. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding.

34.Section 40 of the Crimes Act creates the offence of preventing a witness from attending court in any judicial proceeding. For the reasons detailed above in the context of section 35, there was no relevant judicial proceeding. In any event, there can be no suggestion of any activity of the nature proscribed by section 40 taking place in the Darwin Prison during the course of the alleged murder or the subsequent investigation. The plaintiffs’ allegations that certain witnesses were precluded from giving evidence by Counsel assisting the Commission operate solely in relation to matters taking place during the course of the proceedings of the Commission, and not to any matter which transpired either in the Prison or during the course of the investigation by Northern Territory Police.

35.Sections 42 and 43 of the Crimes Act create respectively the offences of conspiring and attempting to obstruct, prevent, pervert or defeat the course of justice in relation to the judicial power of the Commonwealth. Those offences have no application to the present circumstances. First, the conduct of the coronial inquest was not an exercise of judicial power, much less that of the Commonwealth. Secondly, as has already been discussed, Royal Commissions do not exercise judicial power. Thirdly, there can be no argument that the Supreme Court of the Northern Territory has jurisdiction to try the offences of assault and murder under the criminal laws of the Northern Territory (as alleged by the plaintiffs), that in so doing it exercises the judicial power of the Commonwealth, and that as a consequence the alleged concealment of the murder at the Darwin Prison, and during the course of the subsequent investigation, constituted an attempt or conspiracy to pervert the course of justice in relation to the judicial power of the Commonwealth. In the criminal context, the judicial power of the Commonwealth is invoked for the purpose of the punishment of offences committed against Commonwealth criminal laws.[15] Northern Territory Courts are not federal courts[16], they do not exercise federal jurisdiction[17], and in hearing offences against Northern Territory criminal laws they do not exercise the judicial power of the Commonwealth. In this context, matters heard in a Territory (or State) Court are only properly characterised as being “in relation to the judicial power of the Commonwealth” where the court is exercising jurisdiction in relation to an alleged offence against the criminal law of the Commonwealth.[18]
[15] R v Kidman (1915) 20 CLR 425.
[16] Spratt v Hermes (supra) at 251.
[17] Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 599.
[18] R v Murphy (1985) 158 CLR 596 at 611-612.

Arrangements in relation to prisons and the administration and enforcement of Commonwealth criminal laws
36.The Crimes Act creates substantive offences in accordance with its own terms.[19] It should be noted, however, that jurisdiction for the hearing of Commonwealth criminal proceedings is vested in State and Territory courts. Thus, the Judiciary Act 1903 (Cth) makes provision in sections 68 and 79 vesting State and Territory courts with jurisdiction in relation to Commonwealth offences. This has been said to disclose a policy “to place the administration of the criminal law of the Commonwealth in each State [and Territory] upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice”: see Williams v The King [No 2] (1934) 50 CLR 551 at 560; Leeth v Commonwealth (1992) 174 CLR 455 at 467. The administration and enforcement of Commonwealth criminal law is conducted on that basis, except where the Commonwealth Parliament has provided for a particular matter. The Commonwealth Parliament has made express provision for matters such as the investigation and prosecution of Commonwealth offences, and the sentencing of Commonwealth offenders.[20]
[19] There is also other Commonwealth legislation which creates substantive offences such as the Taxation Administration Act1953, the Income Tax Assessment Act 1936, the Social Security Act 1991, the Australian Securities Commission Act 1989, the Trade Practices Act 1974. The allegations made by the plaintiffs could not conceivably give rise to any offence under that legislation and those provisions are not relevant for present purposes.
[20] Crimes Act 1914 (Cth) Parts 1B and 1C; Director of Public Prosecutions Act 1983 (Cth).

37.These provisions only operate to put in place machinery for the administration and enforcement of Commonwealth criminal laws by Territory courts. It does not follow that Commonwealth criminal laws have any application to the Northern Territory beyond their terms, or that the Australian Federal Police have any authority or responsibility in the Northern Territory beyond the investigation and prosecution of Commonwealth offences.

38.Similarly, there is provision in section 3B of the Crimes Act for the Commonwealth to make arrangements with the various States and Territories, including the Northern Territory, for officers of the Territory to exercise powers and perform functions, and to make available facilities and procedures, in relation to the carrying out or enforcement of orders under the Crimes Act. Arrangements have been made between the Commonwealth and the Territory and published in Gazette S345 of 17 July 1986, Gazette S221 of 3 August 1990 and Gazette S293 of 12 November 1990. Those arrangements are limited to matters of machinery and provide in essence that the facilities of the Northern Territory will be made available for the carrying out of sentences and orders passed or made under the Crimes Act, the provision of a probation facility in respect of the carrying out of sentences passed and orders made under the Crimes Act, and the provision of facilities for the confinement of persons charged with Commonwealth offences who prove either unfit to be tried or otherwise suffer from mental illness or intellectual disability.

39.These arrangements are simply reflective of the fact that whilst the Commonwealth has the legislative power to create a system of corrections and prisons for offences against laws of the Commonwealth, it has not chosen to do so and relies instead on arrangements with the States and Territories. Again, those arrangements do not operate such that the Australian Federal Police have any authority or responsibility in the Northern Territory beyond the investigation and prosecution of Commonwealth offences.

Conclusion
40.It is submitted, by way of summary and conclusion, as follows: --

(1)The Northern Territory of Australia is a body politic separate from the Crown in right of the Commonwealth.
(2)The Northern Territory has a plenary legislative power, which includes power to make laws in relation to the creation of criminal offences, the establishment of a prison system, and the creation of a police force quite separate and distinct from the Australian Federal Police. The Northern Territory has executive authority in relation to “Maintenance of law and order and the administration of justice”, “Correctional services” and “Police”.

(3)The Northern Territory Police have responsibility for the investigation of offences against Northern Territory criminal laws. Those laws include the offences of assault and unlawful homicide. Since self-government, those laws are properly characterised as laws of the Northern Territory rather than laws of the Commonwealth. The Australian Federal Police, insofar as the Northern Territory is concerned, only have responsibility for the investigation of offences against the criminal laws of the Commonwealth. The criminal laws of the Commonwealth do not create offences in the nature of assault or unlawful homicide.
(4)The Crimes Act has application in the Northern Territory as a law of the Commonwealth. Accordingly, the Australian Federal Police cannot have responsibility for the investigation of the matters or occurrences alleged by the plaintiffs to have taken place in the Darwin Prison unless those matters may be characterised as giving rise to offences against a law of the Commonwealth, and in particular the Crimes Act.
(5)The plaintiffs contend that the deceased was murdered by prison officers at the Darwin Prison and that the fact and evidence of the murder was concealed and/or destroyed by those prison officers responsible, and subsequently by members of the Northern Territory Police Force charged with the investigation of the death. The matters or occurrences alleged by the plaintiffs (assuming for the purposes of the argument that those allegations are well-founded), do not give rise to any offence against the Crimes Act such that the Australian Federal Police or the Commonwealth generally might have any authority or responsibility for the investigation of those matters and occurrences.

………………………………………………
MICHAEL GRANT
Counsel for the Northern Territory of Australia
Counsel for the Commissioner of Police for the Northern Territory
William Forster Chambers
1 August 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N518 OF 2002

BETWEEN:	LETTY MARIE SCOTT FIRST APPLICANT NATHAN WILLIAM SCOTT SECOND APPLICANT ROBERT J S DOW SECOND APPLICANT DANIEL R TAYLOR FOURTH APPLICANT
AND:	DAVID R MOORE, AUSTRALIAN FEDERAL POLICE FIRST RESPONDENT AARON APPO, AUSTRALIAN FEDERAL POLICE SECOND RESPONDENT PAUL JEVTOVIC, AUSTRALIAN FEDERAL POLICE THIRD RESPONDENT AUSTRALIAN FEDERAL POLICE TENTH RESPONDENT DAVID R MOORE ELEVENTH RESPONDENT AARON APPO TWELVTH RESPONDENT PAUL JEVTOVIC THIRTEENTH RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	1 JULY 2003
WHERE MADE:	SYDNEY

The applicants appeared in person.
Counsel for the Commonwealth Respondents:	Mr P Roberts SC and Mr G Johnson
Solicitor for the Commonwealth Respondents:	Australian Government Solicitor
Counsel for the Northern Territory Respondents	Mr M Grant
Solicitor for the Northern Territory Respondents:	Solicitor for the Northern Territory
Date of Hearing:	11 November 2002
Date of Judgment:	1 July 2003