Torney, Ex parte- Re Colina
[1999] HCATrans 156
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M85 of 1998
In the matter of -
An application for Writ of Prohibition against HERMIE GENEROSO COLINA (MARSHAL) OF THE FAMILY COURT OF AUSTRALIA
and
THE HONOURABLE JUSTICE BURTON OF THE FAMILY COURT OF AUSTRALIA
Respondents
Ex parte -
PRESIDENT TREVOR DONALD TORNEY
Prosecutor
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 16 JUNE 1999, AT 10.20 AM
(Continued from 15/6/99)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Redlich.
MR REDLICH: If it please the Court. We have provided the Court with some of the debate that took place before the final format of section 80 was determined and we have referred to that in paragraph 21 of our submission in which the wording was changed from “the trial of all indictable offences” to “trial on indictment”. We submit that from that debate and the wording that was adopted, the intent was made clear that the focus was to be on the nature of the proceedings rather than the nature of the offence. In our respectful submission, the well‑settled principles enunciated by this Court have reflected that distinction.
KIRBY J: So you say that the Parliament can simply abolish “all indictable offences” and it does not matter?
MR REDLICH: If Parliament chooses to say that an offence is to be heard summarily, that is the effect of section 80.
KIRBY J: And if Parliament said that that was to be so in all offences, section 80 would be spent until Parliament might revive later ‑ ‑ ‑
MR REDLICH: Section 80 would be spent if there was to be no proceedings before a jury. What section 80 does, your Honour, is to preserve all of the rights that are traditionally associated with trial by jury where that is to take place. As Justice Dawson said in Brown’s Case, there was absolutely nothing to indicate in the history of either the legislation or the decision of the courts of this realm that in any sense the flexibility that is left as a result of the interpretation of section 80 is likely to be abused.
KIRBY J: Well, that might be so but one must always test propositions by the extension of the logic of them.
MR REDLICH: Indeed.
KIRBY J: The extension of the logic of your proposition is pretty unpersuasive to me.
MR REDLICH: If I may say so with respect, your Honour, it has been the overwhelming view of this Court for over half a century with, I think, two notable exceptions, your Honour.
KIRBY J: Three.
MR REDLICH: Three. May I just make these further passing observations. In the motion moved by Mr Barton in the debates not only was focus directed to the need to preserve the right for summary hearings, but specific reference was made to contempts as being one of the bases for which the wording should be adopted.
We have omitted from the cases that we have cited, in tracing the history of the construction of section 80, the decision of this Court in Sachter v Attorney-General for the Commonwealth (1954) 94 CLR 86, particularly at page 89, Chief Justice Dixon presided. That was a case following the decision in Lowenstein, and in the judgment it is revealed that the entire Court was of the view that the decision in Lowenstein’s Case ought not to be revisited. Then, as we ‑ ‑ ‑
KIRBY J: Was that on this point, because there were a number of points in Lowenstein?
MR REDLICH: No, on this point, your Honour. Then the view as expressed in Archdall’s Case was again confirmed in Spratt v Hermes, in Zarb v Kennedy, which we have referred to at paragraph 24 of our submission. The entire Court rejected the argument that Parliament could not make such an offence triable summarily. That view was again reiterated by this Court in Li Chia Hsing Singh v Rankin, which also is referred to at paragraph 24 of our submission, and we would invite the Court to take into account the close reasoning of his Honour the Chief Justice in Rankin’s Case at pages 189 to 190. Then in Kingswell v The Queen the position was again affirmed by the majority of the Court, and in that case, of course, Justice Deane’s well‑known dissenting judgment is to be found. There is also reference in the case of Clyne v Director of Public Prosecutions (1984) 154 CLR 640, reference to the well‑settled interpretation of section 80, and his Honour Justice Deane in that case at page 653 referred to his understanding of the principle as it had been expressed by this Court over time.
Finally, in Brown v The Queen the matter was again addressed and the settled position reaffirmed once again. We would invite the Court to look at the reasoning of his Honour Justice Dawson at pages 214 to page 217 where his Honour considered the arguments in support of the well‑recognised construction of section 80 and, indeed, his Honour’s observations that it is not correct to describe section 80s use as spent or that it is merely some sort of procedural provision.
In the course of the prosecutor’s argument yesterday it was suggested that the Family Court or such other court as might be seeking to exercise summary jurisdiction merely has a discretion as to whether or not to exercise summary jurisdiction or to require the matter to proceed by way of indictment.
If what is intended by that submission is that provisions such as section 35 and section 112AP of the Family Law Act invest some discretion in the Family Court, we would submit that submission is incorrect. If what was intended was no more than that the judge dealing with an application to have a criminal contempt dealt with summarily is required to consider whether the circumstances justified it, bearing in mind that there was clear imperative to only do so in the most exceptional circumstances, then in that sense we would take no issue with the submission that there is a discretion invested in the Court to determine whether the circumstances require that summary jurisdiction should be exercised.
As to the meaning of the term “indictment”, it appears to have only been discussed in terms of looking at the form of the document that might be described as “indictment” on three occasions: the view is expressed by Chief Justice Latham in Lowenstein as to what an indictment is or is not at page 570; Justice Deane dealt with it in Kingswell’s Case at page 308 to 309; and Justice Dawson dealt with it in Brown’s Case at page 215. We would in passing make reference to the judgment of Chief Justice Dixon in Mundayv Gill (1930) 44 CLR 38 at page 86 where his Honour in some detail compared the difference in the nature of the proceedings between a summary proceeding and a proceeding by way of trial on indictment.
KIRBY J: Was that for the purpose of section 80?
MR REDLICH: Yes, it was, your Honour.
KIRBY J: And is there a common theme in those decisions that you have just cited, as to what an indictment for section 80 is?
MR REDLICH: No, there is not; I do not think one can distil a common theme, your Honour, but the point we would make, your Honour, is that his Honour graphically identified what is well recognised as the difference in the nature of proceedings between a summary hearing and a trial on indictment.
KIRBY J: Do you say that the document on page 12, in this process, to meet one of the arguments that was put by the prosecutor, is manifestly on its face and for its purpose not an indictment?
MR REDLICH: Indeed.
MR REDLICH: Indeed, and within the construction placed on section 80 it does not contemplate proceedings of the nature that can be described as trial on indictment. Before I leave section 80, your Honour invited us to see if we could find any other authority of more current nature that deals with the issue of scandalising the court. There are three documents that we will supply the Court. The first is, there is an article in the Law Quarterly Review 1984 which we will hand to the Court for which under the heading “Scandalising in the Eighties” reviews the state of the authorities in most Commonwealth countries as at that time and also discusses the question of whether or not such a criminal content should either be reformed or abolished. We provide that to the Court for the Court’s assistance. It shows, if we may try and summarise the effect of it, that particularly in Australia and Canada there were occasions when that particular species of contempt was employed.
KIRBY J: This was my request and that again is 1984 which was 15 years ago. Again I state that my impression over the last 15 years is that this is a remedy which has been rarely granted in common law countries.
MR REDLICH: If I may say so, your Honour, that is exactly what your Honour would expect to find because that is the condition precedent to a court engaging itself in a summary jurisdiction. The court is required to only exercise summary jurisdiction in exceptional circumstances, to use it sparingly, and we ‑ ‑ ‑
KIRBY J: No, but my point went beyond this. I mean, that principle would always have meant that there were few such cases but my point is that my impression – I stand to be corrected on this – is that it has become so rare that something has occurred in the development of the common law. I mean, I just do not remember reading any recent English and New Zealand, or Canadian cases of scandalising.
McHUGH J: But there were always large gaps in it. The gap between Dunbabin and Gallagher is nearly 30 years in this Court before it came here. Was there anything between Dunbabin and Gallagher in this Court?
MR REDLICH: I am not aware of it, your Honour. Of course, decisions made that do not require review by an appellate court or this Court are therefore unlikely to be known, at least since Dunbabin and Gallagher v Durack. There has been no need for this Court to restate the principles that apply in relation to the criminal contempt of scandalising the court.
GLEESON CJ: As I recollect it, and my memory may be imperfect, the nature of the scandalising in Gallagher was an imputation that a decision had been made out of fear of reprisals.
MR REDLICH: Yes.
GLEESON CJ: I have that in mind in connection with what appears in paragraph B of page 13 of the application book.
MR REDLICH: Your Honour’s impression is correct as to the basis for the contempt in Gallagher.
KIRBY J: You said you had three documents. Is there another that is a little bit more recent than 1984?
MR REDLICH: Your Honour, we have done our best in the time available. The second document is a report I regret to say not that much more recent, 1987 report of the Australian Law Reform Commission, in which the commission dealt both with the issue of the constitutional basis for contempt when exercised by courts exercising federal jurisdiction, and then the general question of scandalising the court and its status, and also considered the issues of whether or not there needed to be some reform in relation to it. Your Honour might feel some assistance is obtained from a perusal of the issues that are raised by the Law Reform Commission.
GLEESON CJ: Are we going to get those?
MR REDLICH: Yes, your Honour, we have copies of that. Finally, if I can hand all these up to the Court together, if it please the Court. The final matter I want to mention is the question of the extent to which for the purpose of determining the issue of the construction of section 80, any regard should be had at this point in the course of deliberations to the implied freedom of speech question.
There did seem to be some suggestion in the course of argument yesterday that bearing on the question of whether or not scandalising the court is obsolete must be the question of the impact of the implied freedom of speech.
McHUGH J: It is a very important issue. The words alleged to have been said by the prosecutor are certainly very strong criticism of not only the Family Court but arguably the Chief Justice and perhaps other judges of the court. But that said, it may be that it is still consistent with the freedom of speech which the Constitution guarantees.
MR REDLICH: It is not our intent in making submissions today to suggest that that is not a question that the judge trying such an issue would need to consider. The case that we have ‑ ‑ ‑
McHUGH J: Speech can be consistent with a freedom guaranteed by the Constitution even though it is wrong, hopelessly muddled in its thinking. Maybe it is sufficient if it is honest comment.
KIRBY J: But do we not have to be careful, bearing in mind what Justice Gummow said yesterday, that the constitutional freedom in our country is a limitation on the capacity of the Parliament or Parliaments to enact laws. It is not, as I understand it, a freestanding thing like a guarantee in the First Amendment to the United States Constitution. It is an inhibition on the capacity of the Parliaments to make laws that would detract from the scheme of the Constitution for a modern democracy.
MR REDLICH: Indeed.
KIRBY J: The law here is, is it not, a common law unless the provision of section 35 of the Family Law Act somehow is to be construed as a statutory provision for the substantive law of contempt?
McHUGH J: I accept that distinction and, as I said in Levy’s Case, it is a freedom from laws, not a freedom to communicate. That is the distinction with our Constitution. But that said, we also said in Lange that the common law cannot be at odds with the Constitution and must conform with the Constitution and therefore, in so far as there is a common law doctrine of scandalising which is picked up by section 35, it must conform with the Constitution’s imperative because it is section 35 which is the relevant law which seeks to apply the common law as at a particular date. The question is: is that consistent with the freedom guaranteed by the Constitution?
HAYNE J: Do you accept, Mr Redlich, the content of scandalising, that is to say what might properly amount to a scandalising of the court, may be limited by or regulated by notions of freedom of communication?
MR REDLICH: The Attorney’s position would be that in all probability it is. Our concern at this point in this Court’s process is that, not having had the benefit of full argument on the question, having determined that the prosecutor should not proceed with ground 7 of the notice of motion, it would be most undesirable if pronouncements were made suggesting that there were some additional limitations to be imposed upon the species of criminal contempt known as scandalising the court.
We are conscious, your Honour - and if I address my remark to Justice Kirby - of some observations that Justice Kirby made in John Fairfax Publications v Doe which is cited in our written submissions at paragraph 49 in which it was said, in relation to the implied freedom of speech – and this I should emphasise pre‑dates Lange’s Case but is subsequent to Theophanous and Nationwide – that clearly the implied freedom of speech limitation on legislative power cannot operate in relation to the criminal contempt of interfering with pending litigation, the sub judice requirement that there should be no interference with the right of a citizen to obtain a fair trial, unaffected by publication which is calculated to interfere with the administration of justice.
McHUGH J: Well, to my mind, that is still an open question.
MR REDLICH: Yes.
McHUGH J: I appreciate that in Theophanous Justice Deane, who was in favour of a very wide construction of this freedom, said that it did not impinge upon contempt of court.
MR REDLICH: I think we are at cross-purposes, your Honour.
McHUGH J: Yes.
MR REDLICH: I am not seeking to advance any argument as to whether that proposition is correct. What his Honour then did was to draw a distinction between the criminal contempt of interfering with pending litigation and the criminal contempt of scandalising the court and it might have been construed from the remarks his Honour made that in relation to scandalising the court there can be different considerations as to whether or not the implied freedom of speech, in any sense, can be curtailed.
We would respectfully submit, as a matter of logic and principle, it must be very difficult to draw a distinction between curtailment of the criminal contempt concerned with interfering with pending litigation and the curtailment of criminal contempt relating to scandalising the court in those rare circumstances where it is said that the authority of the court is so challenged that it affects the administration of justice, that confidence in - the standing of the authority is lost and ultimately, the rule of law is undermined.
McHUGH J: Well, why can you not draw a distinction? One is directed usually at a jury; the other is at the court as an institution.
MR REDLICH: Well, we would respectfully submit, the matter has not been argued. I wish to do no more, your Honour, than say that, until the Court has had the benefit of full argument, that one, we would respectfully submit, needs to be cautious ‑ ‑ ‑
KIRBY J: It is not only a matter of full argument; the issue is not before us as a matter of process ‑ ‑ ‑
MR REDLICH: Yes, that is so.
KIRBY J: ‑ ‑ ‑ and it therefore would be a distortion of the exercise of judicial power for us to embark upon an exploration of the issue which is not now before us.
MR REDLICH: Yes. The case that we passed to the Court of Reg v Kopyto (1987) 39 CCC 1, is a case of scandalising the court, of criminal contempt, where the majority of the court took the view that the freedom of speech preserved in the Canadian Charter of Rights and Freedom precluded the operation of criminal contempt in that case. In the minority judgments there can be distilled the principle that there needs to be a high degree of danger as to the undermining of the administration of justice before such a criminal contempt could be acted upon.
McHUGH J: Well it may be that – I just say this for the purpose of discussion – that eventually the position will be reached in this country in relation to criminal contempts, much the same as it has in, say, Bridges v State of California in the United States.
MR REDLICH: Indeed.
KIRBY J: But that is for another day.
MR REDLICH: That is for another day and I do not wish to be taken as advancing a position on behalf of the Attorney but in the absence of full argument we would respectfully submit that the question of freedom of speech ought not in any sense be used presently for the purposes of impinging upon the way in which the grounds of the notice of motion still before the court are dealt with.
KIRBY J: Going back to my more pedestrian question, do I take it that you have not been able to find any recent English cases on scandalising? Of course, that was my impression just from keeping an eye on the law books.
MR REDLICH: The answer to your Honour’s question, if we are speaking of the last 10 to 15 years is ‑ ‑ ‑
KIRBY J: Of course, an explanation of that may be that though the offence remains, the giving of content to it and what is now taken to scandalise courts has changed in its dimension with the growing appreciation of the rights of citizens to express their views on institutions and that that is a view taken by those who prosecute this content. But it still remains as part of the common law and the prosecutor here has abandoned the suggestion it has fallen into desuetude.
MR REDLICH: That is no doubt so, your Honour. In the Law Quarterly Review article there is a reference to the recent English legislation. An Act has been passed dealing with contempts and has created an offence which replaces, in effect, the common law position.
McHUGH J: But it is not really a question, is it, of what the present law is in relation to contempt? As a result of 35 picking up 24 which fixes the law as at the commencement of the Judiciary Act, the question is what was the state of that law in 1903, is it not?
MR REDLICH: That would be our submission, your Honour.
KIRBY J: They might have been whipping them in 1903. You might have a whipping.
MR REDLICH: What is really at the heart of this issue is the extent to which it can be said that circumstances - values have changed and whether or not that, in any sense, should impact upon the construction that should now be placed on the section.
McHUGH J: It may eventually have consequences for the validity of the section, as such, because by 35 picking up 24 which picks up the powers of the English court as at 1903, it freezes the law of scandalising as at that date.
MR REDLICH: Well, it is certainly our submission that nothing has emerged over time since the introduction of that provision and the construction that has been consistently placed on it by this Court that would suggest in that sense that the section needs to be interpreted in a different way.
KIRBY J: Has the point Justice McHugh raised, that is to say that you get a freezing in time by the 35/24 English law being considered in any of the decisions of this Court on the scandalising?
MR REDLICH: Not that I am aware of.
KIRBY J: Everyone seems to have assumed that it is just the contemporary law of scandalising and that it is not a frozen time capsule of ‑ ‑ ‑
MR REDLICH: I am not sure that that is - maybe the conclusion as being it is frozen, but it has not been addressed in express terms in the judgments.
McHUGH J: But section 24 of the Act says the “power and authority as is possessed at the commencement of this Act”.
MR REDLICH: Yes.
McHUGH J: So it directs you to determine what were the powers of the English courts at the commencement of the Judiciary Act.
KIRBY J: The powers. The powers to deal with the matter, as distinct from the circumstances in which the power will be exercised?
MR REDLICH: Indeed, I think that has to be accepted, your Honour. We would submit that what Justice Dawson said in Brown’s Case as to the interpretation of the provision is applicable. His Honour said at 217 of Brown’s Case:
a constitution must be interpreted as an adaptable instrument which is capable of a flexible application. But the perception of changed circumstances cannot of itself every justify an interpretation which conflicts with the original intention, for a constitution must be a charter upon which more than temporary reliance can be placed.
KIRBY J: That sounds awfully like original intent.
MR REDLICH: Your Honour, just before leaving ‑ ‑ ‑
KIRBY J: Shackled we are to the subjective thoughts of the founders. That is a view I cannot accept. This is a Constitution we are interpreting.
MR REDLICH: That is so, your Honour.
KIRBY J: Something that is designed to last for centuries.
MR REDLICH: That is so. One thing we would respectfully submit is clear, beyond debate, and that is what was the intention of those who introduced section 80. Their intention is spelt out clearly from the wording of the section and the debate which occurred at the time.
Whether that should properly be described as in the words of Justices Dixon and Evatt in their dissenting judgment in Lowenstein as a mockery of the Constitution, is perhaps a matter for philosophical debate. But, in our respectful submission, nothing could be plainer than the intention, both by reference to the wording or the debate which took place at the time that the wording of the section was changed.
Just lastly, before I leave section 80, the Full Court of the Family Court itself dealt again with the issue of scandalising the court in the case that we have referred to in our submissions, of Fitzgibbon v Barker (1992) 111 FLR ‑ ‑ ‑
KIRBY J: Is it Federal Law Reports?
MR REDLICH: Federal Law Reports, your Honour, 111 at page 191.
If it is convenient, I will turn briefly to the ground dealing with institutional bias. The prosecutor was provided with particulars in relation to the contempt, and those particulars appear at pages 54 to 55 of the appeal book. Those particulars, in our respectful submission, show that what was alleged against the prosecutor was a fundamental attack against the institution as a court. It was not an attack directed at any individual judge; it was an attack against the institution and, in summary form, the attack was that the judges of that court were either corrupt or incompetent or both.
The attack is not an attack on the substantive law which that court has to apply. If it were, we would immediately be in the realm of legitimate public discussion. Nobody would suggest for one second that there ought not be the fullest public discussion about the merit of any law. The issue here is – and this case highlights it – is it permissible for an attack that is directed to the integrity and the competency of the court as a whole. That becomes clear when one looks at the particulars at pages 54 to 55.
As we understand the argument of our learned friends, although the notice of motion is directed to Justice Burton, in fact the argument is that no judge of the Family Court can hear these proceedings because whatever the considerations are that lead to the argument in support of the argument Mr Justice Burton should be disqualified, those arguments equally apply to any other Justice of the Family Court.
KIRBY J: That would apply to any who has been appointed since the Chief Justice made his comments.
MR REDLICH: Indeed.
KIRBY J: Some who have come on, perhaps, not with the same institutional unquestioning obedience that is attributed to the other judges.
MR REDLICH: Indeed. The perception of bias argument, as we follow the logic of it, must be an argument which applies to any judge who from time to time is a Justice of the Family Court. At paragraph 32 of our submission we deal with the argument that none of the statements of the Chief Justice refer to the prosecutor or, indeed, in any sense refer to a class of persons who, on the evidence, one could conclude, includes the prosecutor. We draw the Court’s attention to the curious wording of ground 5 of the notice of motion which speaks of the:
Extra‑curial statements…..of the Chief Justice…..concerning the applicant or concerning persons including the applicant in a class which does or may or would be perceived as including the applicant ‑
and we respectfully submit that that wording itself illustrates the difficulty that the prosecutor has in really connecting, in any sense, the Chief Justice’s observations to the prosecutor.
KIRBY J: On the question of apprehension of bias, there was a controversy in New South Wales at one stage as to whether the test for that was “reasonable person would” or “reasonable person might”, I think was the controversy.
MR REDLICH: Yes.
KIRBY J: I recall that I sat on a case and Justice Meagher dissented and it went one way. Do you know that line of authority?
MR REDLICH: I do. The test of real likelihood of bias has been rejected in favour of the test of the reasonable apprehension of bias and that was dealt with by this Court in Webb’s Case. We have referred to that at paragraph 30 of our written submission. We would respectfully submit that it is appropriate for this Court to acknowledge that there is a responsibility invested in the head of the court to defend the court in certain circumstances and I am instructed to formally put to the Court that it is appropriate for the Chief Justice of the Family Court to defend that court against unjustified or misconceived criticism that has been made in the public arena.
GLEESON CJ: It is not surprising that you would put that submission, having regard to the publicly stated attitude of your client concerning the role of the Attorneys‑General in that regard. It would seem to make that submission inevitable and it is a submission as to a state of affairs that I think has been generally acted on by Chief Justices in this country in the last ten years or so.
KIRBY J: I suppose logically it could be left to bishops to defend courts or other worthies, philosophers, radio commentators, though they would be a rather unreliable lot.
MR REDLICH: Yes. I have nothing to say in relation to that observation, your Honour, save that in terms of ‑ ‑ ‑
GUMMOW J: What it involves is a change in the traditional perception of the role of the first law officer; that is what it involves.
MR REDLICH: Yes.
GUMMOW J: That has various consequences in other areas of law perhaps.
MR REDLICH: Indeed. It must be a matter for the circumstances of a particular case as to how strident the language needs to be to deal with the matters that are raised in the public arena if those matters are unwarranted and misconceived, particularly where, as we have submitted here, the criticisms are not as to the substantive law but to the quality of justice that has been delivered by the justices sitting in that court.
GLEESON CJ: This is just a matter of background. This Court is not sitting on some kind of appeal from the Chief Justice’s speech. This Court is considering the consequences for the position of Justice Burton of that speech.
MR REDLICH: Yes, that is so. We would also say that the transcript of 10 September 1998 of the proceedings before Justice Burton contains nothing which in any way identifies the prosecutor as being one of the persons to whom the Chief Justice’s remarks applied. The Chief Justice’s remarks are not addressed to the entire class of persons comprising any of those men’s groups.
McHUGH J: Yes, I know, but Mr Perkins says that reasonable persons in the community might have a reasonable apprehension of bias by reason of the Chief Justice’s remarks – that is, a reasonable apprehension of bias on the part of Justice Burton and every other judge of the Family Court. Speaking for myself, that proposition seems far‑fetched, but what do you say about the mental attitude of the ordinary members of the public? Assuming an ordinary member of the public knew this statement being made, what would that person’s reaction then be to Justice Burton sitting on a case of contempt against a person who might fall within the class of persons that the Chief Justice’s speech seems to be aimed at?
MR REDLICH: The question has to be determined objectively and in asking the question how would the reasonable member of the community perceive these issues, that member of the community has to be invested with that knowledge and understanding which is appropriate to an understanding of how a judge conducts his or her duties. It requires at least an understanding of the judicial oath, of the requirement of making a judgment on the evidence and the issues as they are placed before them and we simply submit that if those assumptions are made that the reasonable onlooker has that level of understanding, it cannot be said objectively that there would be any reasonable apprehension of bias.
There is no reason at all why anyone should reasonably conclude that Mr Justice Burton, a judge who, on the face of it, is entirely unassociated with those remarks, would in any sense be influenced by them. A number of observations have been made by the Court during the course of argument yesterday - we would not take issue with any of them in so far as they addressed what we respectfully agree is a fanciful proposition that a judge other than the Chief Justice must be perceived as potentially influenced by such remarks.
KIRBY J: I know that we as judges and lawyers would think that way because we know the robust independence of judges and we know and have learned from constitutional history, but in these more cynical times may it not be, if the test is what the reasonable member of the public sitting in the back of the court or sitting in the media conference or wherever the statement is made, may such a person not think, “Well, they are all part of the judicial club and this is the same court and, of course, a judge lower in the hierarchy will do what his chief says”. Is that something that is open to Mr Perkins to advocate on behalf of the prosecutor, because it must be inherent in what he is saying?
MR REDLICH: Well, that would, we would submit, not be objectively reasonable. That is, if a member of the public does not have a basic understanding ‑ ‑ ‑
GUMMOW J: That is partly the product of a deficient education system in this country for many years which does not educate children in civics.
McHUGH J: This is the problem. I was thinking about it last night and as far as I am concerned the notion that one judge is going to take notice of the Chief Justice’s views about a thing like this is just fanciful in terms of determining a case. But is it possible that there is a substantial section of the community, perhaps a majority of people, who have a different view of it? I mean, we are not really in a position to know except from our own experience and what we know of the community.
This is a test that is very difficult to determine. My view is that the courts made a serious mistake when they introduced this test and it would have been much better off sticking to the actual bias test, a test that can be determined as a matter of fact. This question of reasonable apprehension by members of the public is another thing altogether.
MR REDLICH: Yes. The answer to the question cannot be found in the number or percentage of the community might think in an unreasonable fashion because of a lack of understanding as to how the judiciary operates. In the case of Metropolitan Fire and Emergency Services Board v Churchill, which is referred to at paragraph 31 of our submission, we dealt with the proposition that the test is objective and we dealt with the proposition that a layman’s knowledge of the material facts is imputed to the hypothetical fair-minded observer, and if a lay person looking at the matter in an objective fashion understands that a judge brings to the determination of issues an impartial approach to the issues that matters that have occurred outside court are not to be regarded in the way in which proceedings are conducted and determined, there would be no basis for a reasonable apprehension of bias. If it were otherwise, then it would mean every time there was public discussion about an issue by any person of sufficiently high standing that it might be argued was in a position to carry some weight with a judicial officer, there would be a reasonable apprehension of bias, because it could always be said by those that are not sufficiently objective that such discussion has the potential to influence the justice concerned.
GUMMOW J: We are not talking about public opinion here, which may be quite misguided from time to time, as history often shows.
MR REDLICH: Indeed. We would respectfully submit that a real question would arise - if the Chief Justice, himself, had determined to hear this case himself, a real question would have arisen whether applying the principles it was necessary for him to disqualify himself. We do not say that is a matter that needs to be determined as part of this Court’s determination but it is not clear, we would respectfully submit, beyond argument, that what his Honour has said would have disqualified him. Yet, the argument could no doubt be mounted for the same reasons which have just been raised, that in the minds of a lay person who is not to be imputed with an objective understanding of how a justice approaches his or her tasks, might be otherwise.
As to the issue of institutional bias, we submit that the statements attributed to the Chief Justice of the Family Court cannot be so characterised as to suggest that they compromise the integrity of the entire court as an institution.
McHUGH J: I think it is just totally misleading to even talk about institutional bias. It is an attempt to personify an institution. The question must be whether or not a particular judge is biased or could be perceived to be biased. That is the issue; talking about institutional bias, with respect to those who have used the expression, just, it seemed to me, to lead nowhere.
MR REDLICH: We would adopt that view, your Honour. In Tobiass’ Case, which our learned friends rely upon – we have referred to it at paragraph 38 of our written submissions – that court rejected as inapplicable, the concept of institutional bias. It need hardly be said that the facts of that case were quite different, distinguishable from these. That was a case where there was interference, in a somewhat remote sense, but nonetheless interference in relation to a particular case by senior officers of the court. It was interference in relation to the way in which a particular case was to be conducted and that, of course, is no part of the prosecutor’s
allegations here. At paragraph 68 of the report of Tobiass, the court said that:
there is no credible evidence to suggest, that the integrity of the Federal Court as an institution has been compromised.
My learned junior reminds me, attention was drawn yesterday to the error that appears in paragraph 14 of the prosecutor’s affidavit, and the fact that the transcript of the proceedings which appears at 204 of the appeal book shows that what has been deposed to by the prosecutor as to the Chief Justice’s comments at paragraph 14 is not correctly set out.
KIRBY J: Where is paragraph 14?
MR REDLICH: Paragraph 14 is at 128 of the appeal book, your Honour. The correct transcription of what the Chief Justice said appears at 204.
GUMMOW J: He does not rely on paragraph 14, he relies on paragraph 10. Paragraph 14 is not a ground, is it? We went through this yesterday. Page 210 paragraph 5 sets out the grounds that were ‑ ‑ ‑
MR REDLICH: Indeed.
GUMMOW J: - - - winnowed out by Justice Hayne. Why are we going back to paragraph 14? It was knocked on the head yesterday, I thought.
MR REDLICH: Just to be ensure that what the Chief Justice said is correctly set out at appeal book 204. If it please the Court.
GLEESON CJ: Thank you, Mr Redlich. Yes, Mr Solicitor. I had just better confirm, Mr Langmead, you adopt the submissions that have been made on behalf of ‑ ‑ ‑
MR LANGMEAD: Yes, that is the case.
GLEESON CJ: Yes, thank you. Yes, Mr Solicitor.
MR GRAHAM: May it please the Court. As would have been apparent from our outline of argument our intervention was attracted principally by ground 8 of the notice of motion. The status of ground 8 was still, to some extent at least, somewhat unclear. We were advised by the solicitors for the prosecutor in a letter dated 11 June that the prosecution does not intend to press the first part of ground 8 and, accordingly, abandons that ground and the letter went on to say, “Tthe prosecutor does not wish to be taken as waiving or abandoning the contention in the second sentence of ground 8 but will not press that matter before the High Court.”
Yesterday, my learned friend, at the very beginning of his submissions at pages 2 and 3 of the transcript said that the first sentence of ground 8 was “not pressed”. He was asked by your Honour the Chief Justice whether the first sentence was “withdrawn” and he responded, “It is not pressed.” He indicated that the second sentence in ground 8 was still maintained.
However, as far as we understood our learned friends, argument was not advanced in support of the second sentence of ground 8 and, for our part, all we wish to do is to refer to what appears in our outline of argument under heading C which is entitled “The Use of Summary Procedures is not obsolete” and, in particular, what we say in paragraphs 7, 8 and 9 on that topic and the cases to which we refer under that heading.
For the sake of completeness, we should add a reference in the case of the decision of this Court in James v Robinson, not only to Sir Victor Windeyer’s judgment at pages 613 to 614 of the report in 109 CLR. We should also add a reference to the joint judgment of Justices Kitto, Taylor, Menzies and Owen at pages 600 to 602. Reference was made to that passage by my learned friend, Mr Redlich, yesterday.
During the course of argument yesterday, reference was made to the decision of the English Court in R v Tibbits (1902) 1 KB 77 which has been referred to from time to time as the last reported instance of a prosecution on indictment for the offence of contempt of court. With great respect to those who have expressed that view it is not correct. The facts as set out at pages 77 to 78 indicate that there was an indictment laid against two men for misdemeanour the indictment containing 16 counts alleging –
(a) an unlawful attempt to obstruct and pervert the due course of law and justice,
(b) the unlawful doing of an act calculated and tending to the same result –
and other offences relating to the obstruction or interference with the due course of justice. They were not charges of contempt of court, at least in name. It is, perhaps, worth observing, since this issue still seems to be alive, that in the judgment of the Court of Crown Cases Reserved which was delivered by Lord Chief Justice Alverstone, his Lordship made a reference to the judgment of Mr Justice Blackburn, as he then was, in Skipworth’s Case which was decided, I think, in 1872 as part of the Tichbourne claimant series of cases which was a case of scandalising the court and his Lordship also went on to say:
that the more proper proceeding should be by proceedings for contempt of Court, we would refer to the judgment of the Court in Reg. v Gray, from which it clearly appears that in many cases it is preferable to proceed by information or indictment rather than by motion for contempt.
KIRBY J: Did the contemnor in that case suggest gently that the Tichborne litigation had gone on a little long?
MR GRAHAM: I do not detect that in the submission of learned counsel, your Honour, but I have not read it closely for that purpose. That point, your Honours, was picked up in a case decided very shortly afterwards in R v Parke (1903) 2 KB 432. I should say I am sorry that we have not given the Court the citations overnight, but this work represents what has been done since the adjournment. That was a proceeding in a summary way for contempt of court against the editor of a newspaper. In the judgment of the Court delivered by Mr Justice Wills, there is an interesting passage to which reference should be made and which his Lordship indicated at page 443 that:
no case of a criminal information –
I am sorry, I should go back. He referred to the trial on indictment in a case of R v Williams in (1823) 2 Law Journal (Old Series) KB 30, and his Lordship at page 443 said:
In England no case of a criminal information for a matter of this kind is to be found in the books since R v Williams, cited above, in 1823.
And he said:
There are, however, serious objections to the proceedings by way of criminal information.
And he went on to indicate what they were, indicating the proceedings cumbrous and liable to great delay.
The matter was touched upon by the Court of Appeal in New South Wales in a case cited yesterday, Registrar of Court of Appeal v Willesee which is in our list of authorities (1984) 2 NSWLR at page 378. Your Honour Justice McHugh may recall the litigation. The form of the proceeding ‑ ‑ ‑
McHUGH J: I did not sit on it, though, did I?
MR GRAHAM: No, your Honour appeared as counsel for the applicant in, if I may respectfully say, a bold application to have proceedings for contempt of court that had been brought against your Honour’s client stayed because the form of proceeding adopted was wrong and a charge on a trial on indictment should have been the proper form of procedure. In Acting President Hutley’s judgment his Honour said at line E of the offence of contempt of court charged by indictment:
It is for all practical purposes also obsolete in England –
citing Halsbury’s Laws of England and R v Tibbits, referring to the R v Tibbits as being “the last such instance”.
Justice Samuels at page 381 pointed out that the case of R v Tibbits was not in form a case of contempt at all, drawing attention to the nature of the charges which had been laid in that case. His Honour Justice Glass at page 380 had drawn attention to the fact, and said:
On the other hand, we were informed at the last trial upon indictment for contempt in the United Kingdom was in 1901 and that there has been none this century in New South Wales. Summary jurisdiction has been exercised by superior courts since the seventeenth century over contempts committed against any court.
And his Honour referred to John Fairfax v McRae ‑ ‑ ‑
GLEESON CJ: It is a matter of considerable practical importance because of the role of the Director of Public Prosecutions.
MR GRAHAM: Yes.
GLEESON CJ: Historically in New South Wales contempts have been prosecuted at the initiative of the prothonotary of the court. If offences had to be prosecuted on indictment, then presumably it would be for the Director of Public Prosecutions to decide whether or not they should be prosecuted, not an officer of the court.
MR GRAHAM: Yes.
HAYNE J: Or in some other States by the Attorney.
MR GRAHAM: That is so, your Honour, and I was about to go to one other State because your Honour may recall this.
HAYNE J: The legislation to which the government was going to give urgent attention, I understood, after the special leave to this Court was refused. No doubt it did, Mr Solicitor.
MR GRAHAM: Well, your Honour, it did, but I cannot accept the epithet “urgent”. The case to which your Honour and I are referring is Broken Hill Pty Co Ltd v Daji (1996) 2 VR 117, and the topic to which I am addressing myself is discussed briefly in the judgment of the President of the court, Mr Justice Winneke, at page 129, and quite extensively in the judgment of Mr Justice Brooking at pages 136 to 137. Now, it emerged in that case that there had been no recorded prosecution by way of indictment for contempt of court in the recorded history of the State or colony.
KIRBY J: That may be more relevant that the New South Wales observation because here we have to approach the question, do we not, on the time capsule theory? That is to say that, in this particular case, we are not looking for the general jurisdiction of one of the royal courts, a court established out of the royal prerogative, but we are looking at a statutory court which is given a statutory jurisdiction which is limited to what was the law in the English judicature in 1903. Now, does that not, therefore, impose on the question a slightly different discipline that we are going back and not asking, “Well, what is the practice, or has been the practice, this century in an Australian court?”, but “What was the practice in 1903 in the English Supreme Court of judicature?”
MR GRAHAM: With respect, that is correct, your Honour.
KIRBY J: May the answer to that, therefore, be different from the expiration of the Australian cases?
MR GRAHAM: Yes, your Honour, and indeed it is a remarkable coincidence that 1903 was about the time the decisions in Gray, and in Tibbits, and in Parke where it would, perhaps, have emerged that procedure by way of indictment for contempt of court was, at least, becoming obsolete and was also frowned upon as a form of procedure and that the summary procedure without a jury was in full ascendancy, certainly following what was said by the divisional court in Reg v Gray. The only ‑ ‑ ‑
KIRBY J: Do you accept the time capsule theory as an imposition on the entire law that is applicable or is it confined only to the powers of the court? It is distinct from the way in which the court will exercise those powers and try the action which is to be found, at least on one view, out of the court’s general jurisdiction, not out of the particular powers to punish for contempt.
MR GRAHAM: Well, your Honour, I would certainly have to accept the time capsule theory because of the very wording of section 24 but what section 24 means in terms of empowering the court to deal with the contempt following a particular procedure is not clear. It does not dictate whether the court should follow a procedure by way of indictment, as distinct from a summary procedure.
GLEESON CJ: I thought you were here to address argument to the remaining part of ground 8, which says:
the use of summary procedures for contempt by way of scandalising the Court is obsolete.
MR GRAHAM: Yes, your Honour, and in adopting paragraphs 7, 8 and 9 of our submissions, your Honour, I had done that and was simply expanding upon what emerged from the cases described yesterday. I certainly do not wish to take up the Court’s time on a false issue.
So far as the remaining part of the case is concerned, which was ground 7, we ‑ ‑ ‑
McHUGH J: Before you leave section 24, it may be that the question of what is a contempt of this Court’s power and authority is to be determined as at the present time, but that judgment having been made, the question then is, whether or not the Supreme Court of Judicature had that power in 1903? Theoretically, you could get a situation where there was some contempt of the Court by some statement today which would not have been perceived as a contempt back in 1903 and the Court may not have had the power in England to punish it in those days, so it would be unpunishable in this country.
MR GRAHAM: With respect, that could well be right, although the trend has been to narrow this branch of the law rather than to expand it.
McHUGH J: It is the power to punish “contempts of” its court, “of its power and authority”, that is, the Court’s power and authority, which seems to suggest you are looking at the question of contempt in contemporary terms, but powers in 1903 terms.
MR GRAHAM: Yes. I think I should respectfully agree with your Honour, without seeking to expand upon it. In relation to ground 7, we would respectfully endorse what my learned friend, Mr Redlich, said, concerning the approach that this Court should take, and we would respectfully suggest that what he said in that regard was right, that in the absence of proper process and in the absence of full argument, the Court would not embark upon a full examination of the topic. It only remains to be said that that examination would not only need to take account of what was said by this Court in Lange and the earlier implied freedom cases, but
also, where the doctrine for which the Bread Manufacturers Case stands as authority, would fit in to this branch of the law, because that doctrine may provide the requisite counterbalance to accommodate the Lange principle.
There does not seem to be an authority which decides as part of the ratio that the Bread Manufacturers principle applies to a charge of scandalising the court, but one would have expected that it does and of course it does provide that leavening effect – I am sorry about the attempt at humour – that is called for by Lange. That would need to be explored as well. Those are the matters which we wish to place before the Court.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Perkins.
MR REDLICH: Could I interrupt for one moment, your Honour. I omitted to mention the Acts Interpretation Act. Justice Gummow asked a question of us yesterday as to what were the precursors to section 4G of the Crimes Act. It is a little difficult to follow. In 1904 the provisions were introduced into the 1904 Acts Interpretation Act, section 5 providing for punishment that was not in excess of six months being an offence which could be punishable on summary conviction. Then in the Acts Interpretation Act of 1937 the 1904 Act was repealed and those provisions were then incorporated into the Acts Interpretation Act of 1901. So the history is a little difficult to follow.
GLEESON CJ: Thank you. Yes, Mr Perkins.
MR PERKINS: If the Court pleases, I seek to draw the Court’s attention to the case of Hay, copies of which have just been provided, and I would like to have those before the Court if I may. I want also to indicate that copies of that case were provided this morning to the other parties prior to the end of their respective addresses. I wish to refer in particular to what appears on page 252 of Hay and in particular specifically paragraphs 26 to 28. The prosecutor relies on those paragraphs.
McHUGH J: I am sorry, what are they again, Mr Perkins?
MR PERKINS: Paragraphs 26, 27 and 28 on page 252.
McHUGH J: Thank you.
MR PERKINS: I will not read them out but the contention of the prosecutor is that what appears there, which I believe is the last pronouncement by the Full Court of the Family Court on the topic, is, in our respectful submission, consistent with the submissions which we put yesterday. I do wish to draw attention to the two lines in the middle of paragraph 27, in particular.
GLEESON CJ: Thank you.
MR PERKINS: As to the case just mentioned of Kopyto, I would, with respect, invite the Court to take the view that the Canadian court which decided that case, took the view that contempt of court in certain circumstances, by way of scandalising, was, according to some of the judges, incompatible with, I think it was the constitutional rights and freedoms in that case.
KIRBY J: Are you not straying into the matter which you have conceded is not before this Court by reason of your failure to raise it in your process? That issue is a very, very big issue and it - - -
MR PERKINS: I accept that, with respect, and if I have, I will stray no further. I did wish to refer to the third edition of Borrie and Lowe’s book which may be taken as conveniently setting out the position as it obtains in England and in Canada and Australia. The page reference that I will do no more than give it, is to page 337 of the latest – I think that is 1998 edition.
KIRBY J: This is the position on what?
MR PERKINS: The position on the use of the offence of scandalising the court. In our submission, the fact – if it is a fact – as has been held in Hay, that there is no appeal from a finding of contempt pursuant to section 112AP and section 35 impinges on the necessity of this Court intervening, it is submitted, with respect.
There has been some mention of Gallagher’s Case. I wished to distinguish between what occurred in that case and what occurred here on the prosecution’s case. I with draw that. On the case against the prosecutor.
The case against Mr Gallagher was a case which was said in circumstances where it could not have been thought otherwise than that Mr Gallagher was making remarks about a particular case. This case is not a case in which that example of scandalising could be thought to be appropriate.
In relation to the question considered – which my learned friend, Mr Redlich, invited the Court to consider, as to the position that may have obtained had the learned Chief Judge of the Family Court been sitting – I would wish to note that the circumstances reveal that this matter initially came before his Honour Justice Mushin ‑ ‑ ‑
KIRBY J: But why are we concerned with this? You only seek relief against one judge and it was not listed before the Chief Justice, and it is a complete irrelevancy.
MR PERKINS: What I was about to point out, if I may do it in short compass, was that the learned Chief Judge was said by his Honour Justice Mushin to have told Justice Mushin not to continue to hear the case and Justice Mushin, having heard an application for his recusal and declined it, quite plainly had some input by way of direction or advice from the learned Chief Judge subsequently, and accordingly disqualified himself, not ‑ ‑ ‑
GLEESON CJ: Which ground does this go to?
MR PERKINS: It goes to the perceived apprehension of bias.
GLEESON CJ: On the part of?
MR PERKINS: On the part of the court as an organisation.
GLEESON CJ: Well which ground does this go to?
MR PERKINS: It goes to ground 5.
GLEESON CJ: Thank you.
CALLINAN J: Where do I find that, Mr Perkins?
MR PERKINS: Page 214.
CALLINAN J: Page 214, is it. No, not the ground, the evidence or the account of what you have just described.
KIRBY J: There is a reference in the particulars on page 56 line 25 paragraph (e) of part B and there is a reference to Justice Mushin in the particulars given by the respondent. Now, where is the statement to which that paragraph is referring, because that seems to be the same thing?
MR PERKINS: I wonder if I could be permitted the indulgence of letting the Court know in writing within a short time?
GLEESON CJ: Yes, certainly, within 24 hours.
MR PERKINS: Yes.
GUMMOW J: This evidentiary material has to fit in paragraph 5 of 210. It does not seem to be at the moment. It is no good finding some other scrap somewhere in the appeal book, it has to be amongst the enumerated matters at paragraph 5 of page 210 or otherwise we do not have the benefit of the corrections that we are given to try and avoid there arising just what is now rising.
MR PERKINS: Yes.
GUMMOW J: So, for myself, if you put in a piece of paper and it does not bring it within paragraph 5 on page 210, I am not going to read it.
CALLINAN J: Mr Perkins, I would have thought that the matters that you referred to would have been matters stated in court. The reference in paragraph 5 on page 210 is to extracurial statements, I think, only. Is that correct?
MR PERKINS: I am sorry, I missed what your Honour Justice Callinan said.
CALLINAN J: What you just told us happened - I think Justice Mushin’s disqualification of himself - would have been recorded and stated in court, is that right? In open court, I would have thought ‑ ‑ ‑
MR PERKINS: No, it was not and that, with respect, is ‑ ‑ ‑
CALLINAN J: Well, how do you know about it?
HAYNE J: There is reference at page 129, is there not, Mr Perkins? Page 129, paragraph 18.
GUMMOW J: Which is not one of the enumerated paragraphs.
HAYNE J: We seem to be a long, long way from the grounds on which this was referred into a Full Court, Mr Perkins.
MR PERKINS: Yes, I am grateful to your Honour Justice Hayne. Thank you, that is the reference that I had in mind.
GUMMOW J: It is not a reference, it is a permissible reference because it is not within paragraph 5 of page 210. The only paragraph of that affidavit you rely on is paragraph 10. We should not be doing this on the second day of this sort of proceeding.
GLEESON CJ: Now, what was the next point you wanted to make, Mr Perkins?
MR PERKINS: I think those are the submissions, if the Court pleases.
GLEESON CJ: Thank you very much. We will reserve our decision in this matter and we will adjourn to reconstitute. The Court will adjourn.
AT 11.45 AM THE MATTER WAS ADJOURNED
0
3
0