Solicitor-General v Miss Alice HC Wellington CIV 2005-485-1026
[2007] NZHC 48
•14 February 2007
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2005-485-1026
BETWEEN THE SOLICITOR-GENERAL Applicant
ANDMISS ALICE Respondent
Hearing: 30-31 January 2007
Court:John Hansen J Baragwanath J Potter J
Counsel: C R Gwyn (Deputy Solicitor-General) and M F Laracy for Applicant
Respondent in person with Mr A Waugh (McKenzie friend) Judgment: 14 February 2007 at 10 am
JUDGMENT OF THE COURT
This judgment was delivered by the Court on 14 February 2007 at 10 am pursuant to Rule 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:………………………
AThe respondent is found to have committed a contempt of court by infringing:
a)a written undertaking not to use discovered documents for purposes other than those stipulated in a consent memorandum dated 2 February 2004 which he accepted by letter dated
14 September 2004; and
THE SOLICITOR-GENERAL V MISS ALICE HC WN CIV-2005-485-1026 14 February 2007
b) the undertaking imputed by law to a party obtaining discovery to use discovered documents only for the purpose of the litigation and not for a collateral or ulterior purpose.
BThe respondent is suspended from practice of law for a period of three months to take effect upon delivery of this judgment.
C The respondent is ordered to pay to the Crown a fine of $5,000.
DThe respondent is ordered to pay costs on a 2B basis with disbursements as fixed by the Registrar. We certify for one counsel only.
REASONS
Table of Contents
Para No.
The application [1]
Background facts [3] The Butcher Report [16] The Army Court of Inquiry report [17] The Army submissions [18] The Coroner’s report [20] The respondent’s reaction [21]
Contempt of court [29] The affirmative defence and plea in mitigation [36] The obligations of counsel [39]
The coronial function [41]
The obligations of the Crown [42] The concept of whistle-blowing [53] Application of the principles [65] Penalty [83] Decision [91]
The application
[1]
pract
The itioner b
a)
Solicitor-General applies for an order that the respondent legal e held to have committed a contempt of court by infringing:
a written undertaking not to use discovered documents for purposes
other than those stipulated in a consent memorandum dated
2 February 2004 which he accepted by letter dated 14 September
2004; and b)
the undertaking imputed by law to a party obtaining discovery to use
discovered documents only for the purpose of the litigation and not
for a collateral or ulterior purpose.
The application seeks an order that he be fined, suspended from legal practice and ordered to pay costs.
[2] The respondent admits the conduct of which the Solicitor-General complains but advances the affirmative defence that it was performed in discharge of the professional obligation fearlessly to uphold the interests of his clients, without regard for his own personal interests or concerns.
Background facts
[3] This case is the aftermath of the tragic death on 22 March 1994 of a beekeeper, Mr Richards, who was driving a vehicle across a bridge over the Retaruke River at Te Rata when the bridge collapsed.
[4] The bridge comprised a pair of steel towers on each side of the river linked by steel cables. From the cables were hung at regular intervals wire ropes which held transoms (or lateral beams). These supported longitudinal stringers which in turn supported the decking. Two of the transoms failed, having lost significant
strength as a result of weathering and decay. As a result Mr Richards dropped some
30 metres to his death in the river below.
[5] The bridge had been designed and built by the Army in March 1986 at the request of Mr and Mrs Berryman, the owners of the farm served by the bridge, as a training project to replace a previous bridge which had collapsed. A junior officer,
2nd Lieutenant Armstrong, was tasked to design and oversee the construction of the
bridge with the assistance of Staff Sergeant Vincent. Neither had professional civil engineering qualifications. The materials, including the second-hand timber used for the transoms, were purchased by Mr and Mrs Berryman. Following the construction Mr and Mrs Berryman executed an agreement absolving the Army from any responsibility and undertaking responsibility for all future maintenance of the bridge.
[6] A coronial inquest found that the collapse was due to the failure by Mr and Mrs Berryman to maintain it properly. It found both Mr Richards and the Army to be free from any responsibility.
[7] Solicitors previously representing Mr and Mrs Berryman had issued proceedings seeking judicial review of the Coroner’s decision and the exercise by the Solicitor-General of his powers under the Coroners Act 1988 either to order the holding of a new inquest or to apply to this Court for a further inquest on the grounds (s 38(2)) that new facts had been discovered making it desirable to hold another inquest or (s 40(3)) that by reason of fraud, irregularity of proceedings, discovery of new facts or for other sufficient reason another inquest should be held.
[8] The application for review pleaded that on 10 June 2002 on the direction of an Ombudsman there had been disclosed a report into the accident dated
29 September 1994 of a New Zealand Army Court of Inquiry. The report contained facts about the design and construction of the bridge that were not available to be considered at the time of the first inquest. The report concluded that untreated second-hand imported Oregon timber should not have been used for the main structural members of the deck’s structure when it was obviously intended to be semi-permanent or permanent in nature.
[9] By interlocutory application of 8 October 2003 Mr and Mrs Berryman sought non-party disclosure against the New Zealand Defence Force of exhibits produced before the Court of Inquiry and the evidence of witnesses including a former Colonel Commandant (Engineering) Mr G W Butcher. The Army opposed the application on the grounds that rule 158 of the Armed Forces Discipline Rules of Procedure provides that the record of proceedings and any evidence in respect of the proceedings shall not be admissible in evidence against any person in any other proceedings, judicial or otherwise. Rule 159 provides that the record of proceedings shall not be disclosed to persons not subject to the Armed Forces Discipline Act
1971 without authority from a superior commander of the service concerned.
[10] On 2 February 2004 former counsel for Mr and Mrs Berryman, counsel for the Solicitor-General and counsel for the New Zealand Defence Force executed the consent memorandum. It provided that the Army should produce for inspection by Mr and Mrs Berryman’s solicitors Buddle Findlay certain exhibits produced to the Court of Inquiry, the evidence of Army witnesses (now) Major Armstrong and Mr Vincent and, importantly, the evidence of Mr Butcher. The consent memorandum continued:
4. The plaintiffs’ solicitors shall be a[t] liberty to orally summarise the content of the above documents to the plaintiffs, and orally discuss that summary with the plaintiffs, for the purpose of taking instructions.
5.The plaintiffs themselves shall not be provided with copies of those documents not permitted to inspect those documents.
6.Without either the prior written approval of counsel for the NZDF or Court order, the plaintiffs and their solicitors shall not disclose the contents of the above documents to, or discuss the content of those documents with, any other party not a party to this proceeding.
7.The above documents shall not be admitted as evidence in any proceeding, judicial or otherwise (r 158 of the Armed Forces Discipline Rules of Procedure 1983). For the avoidance of doubt, this prohibition applies to these judicial review proceedings.
8.Should there be any breach of these orders then the NZDF shall be at liberty to proceed against the plaintiffs in any manner it thinks fit, including for contempt of court.
…
10.It is acknowledged by the plaintiffs and the NZDF that if any relaxation of the prohibitions upon disclosure contained in these orders is required and cannot be agreed upon between the parties that the non-party discovery application and any amendments to it can be revived for the purposes of having those issues resolved by the Court.
[11] On 27 August 2004 Mr and Mrs Berryman consulted the respondent, then Dr Robert Moodie, who has since changed his name by deed poll. There followed discussions and correspondence in which the respondent sought discovery of the documents referred to in the memorandum but initially resisted accepting its terms.
[12] On 9 September 2004 the respondent wrote to counsel for the
Solicitor-General:
I am not the slightest bit interested in having documents discovered to me on terms detailed in the Consent Memorandum of the defendants’ Counsel dated 2nd February 2004.
He concluded:
Unless these documents are released on an open evidence basis I intend withdrawing from the proceedings and will publicly state my reasons for doing so.
[13] Counsel for the Solicitor-General replied on 10 September:
I am simply endeavouring to facilitate a transfer of the documents which Buddle Findlay has, from them to you so that you can advise the Berrymans further in relation to the judicial review proceeding.
…my understanding is that the consent memorandum was designed simply to facilitate production of non-party documents but at the same time safeguard the integrity of the military inquiry procedures generally ie unrelated to the Berryman case.
If notwithstanding your letter you do in fact wish to see the documents then I can now advise that the Crown Law Office has ascertained that NZDF agree to Buddle Findlay passing the documents over to you on the basis that you first provide written confirmation that you will deal with the documents as if you were the “plaintiffs’ solicitors” as referred to in the consent memorandum.
I point out that you are not the least bit compromised by providing such written confirmation in view of paragraph 10 of the consent memorandum. However if you wish to withdraw from the proceedings then obviously that is a matter between you and the Berrymans and not my concern.
[14] On 14 September 2004 the respondent wrote to counsel for the
Solicitor-General stating:
Further to our discussions yesterday I write to confirm that I accept discovery of the documents referred to in the Consent Memorandum dated
2nd February 2004 on the conditions set out in the memorandum. I would be
grateful if you could have this material forwarded to me at the earliest possible time.
As indicated to you in discussion, whilst I am happy to receive the material initially on a confidential basis, I will, necessarily, immediately move the Court for further and open discovery if any of the documentation discloses that at the time of Defence Force personnel making submissions and/or giving evidence before the Coroner, there was engineering and other information in the possession of the New Zealand Army showing that the collapse of the bridge was due to design, construction and/or material selection factors.
The above course of action will become necessary because the issue will no longer be confined to one of mere discovery alone. It would amount to a serious abuse of a judicial process, indeed a corruption of a judicial process, if Army personnel made submissions or presented evidence before the Coroner in 1995 with the intention of persuading him to the conclusion that the collapse of the bridge was due entirely to inspection and maintenance failure, if other information within their knowledge established contributing engineering flaws.
…
[15] On the basis of that letter and the consent memorandum the documents referred to were supplied to the respondent.
The Butcher Report
[16] The Butcher Report stated:
The decision to use untreated timber in the original bridge cannot be supported. The Oct/Nov 1985 design was based upon the use of Macrocarpa (Cypresses macrocarpa) which untreated has a reasonable durability when not in ground contact. The alternative suggested was tanalith treated Pinus radiata. In the construction of the bridge, I am informed that second hand Oregon (Pseudotsuga menziesii or Douglas fir coast region) from a building in Wanganui was utilised for the transoms and stringers. Totara, which is very durable, was used for the decking. The use of these timber species is confirmed by the Armstrong design calculations.
Imported Oregon has been widely used in New Zealand in the past as a structural material but in my experience always under cover. It is durable
when continuously immersed in water, but has a very short life when exposed to the weather or when subject to alternate wetting and drying.
…
In my opinion, Oregon timber should not have been used for the main structural members of the deck structure of the bridge when it was obviously intended to be semi-permanent or permanent in nature.
The Army Court of Inquiry report
[17] The Army Court of Inquiry report stated:
Question 16
17. Were the construction materials/methods adequate for the bridge’s intended purpose/design?
Answer The basic concept of the structure and the construction materials were adequate for the design of the bridge and its intended use. The proof of this is in the decision to repair the bridge, replace the deck structure in timber apart from the transoms which are now structural steel, and the reuse of all the other components on the bridge.
The decision to use untreated timber being second hand imported oregon was unwise. Oregon is durable when continuously immersed in water, but has a very short life when exposed to the weather or when subject to alternative wetting and drying. Expert opinion is that oregon timber should not have been used for the main structural members of the deck structure of the bridge when it was obviously intended to be semi-permanent or permanent in nature.
The Army submissions
[18] Yet in the final submission to the Coroner’s Court by counsel for the Army it was said:
18. The bridge was built in a proper manner. Accordingly, in a causative sense, there was nothing in the entire construction of this bridge that contributed to this accident.
…
25… There are matters not investigated at the time that may have turned out now to be of assistance to the Coroner…
(e) the fact that there appears to have been general acceptance that the transoms had lost weight due to weathering, i.e. were partly rotten… a portion of the transom was produced as an exhibit.
[Counsel] understands however that this portion was recovered some four months after the accident in the course of the demolition of the remainder of the bridge and that it was not one of the transoms that had failed during the accident. With the benefit of hindsight it may have been helpful if the transom timbers that had failed had been tested for strength soon after the accident – in order to ascertain just what load the timbers could carry
…
In the light of the foregoing, that is to say:
(a)the fact that the Army or Army personnel did not cause or contribute to this tragic accident; and
(b) the fact that an objective assessment of the evidence fails to justify comment or recommendation in respect of the army or army personnel;
(c)the fact that some matters relating to the accident cannot now be determined,
it would be contrary to the evidence, unfair and unjustified to make adverse comment in respect of the role of the New Zealand Army or any member thereof.
[19] The Coroner was never told of the fact of the Army Court of Inquiry or of existence of the Butcher Report. Nor was he made aware by Mr and Mrs Berryman of the fact that they had obtained reports from Works Consultancy.
The Coroner’s report
[20] The Coroner stated in his report:
Ultimately the failure of the bridge does not in any way impinge upon the New Zealand Army… I emphasise that there is no suggestion here that the construction of the bridge was in any way lacking… The problem arose after the completion of the bridge and its hand-over by the New Zealand Army… The problem then arose as to the continuing maintenance of the bridge from time to time… The lesson to be learned here… is that in respect of any dangerous or potentially dangerous structures a regular and planned programme of inspection and maintenance should be implemented in order to determine whether maintenance is required in the hope that early maintenance will prevent this sort of tragedy. That is the recommendation that I would like to go out from the Court today and really the main significant factor of the inquest.
The respondent’s reaction
[21] Having read the material, on 15 October 2004 the respondent wrote to counsel for the Army recounting the contents of the Butcher Report and asserting that the Army evidence and submissions before the coronial inquiry constituted an abuse of process that had corrupted the hearing and findings of the Coroner and deflected responsibility for Mr Richards’ death from the Crown. He requested that the commanding officer of the New Zealand Army authorise release of the proceedings including the evidence of the defence inquiry for the purposes of the judicial review.
[22] The respondent also wrote to counsel for the Solicitor-General on 18 October referring to the respondent’s letter of 9 September 2004 to counsel for the Solicitor-General and the latter’s reply of 10 September 2004. The letter continued:
In fact, the New Zealand Army has known since 1994 why the transoms in the Te Rapa bridge collapsed after only 8 years. And that knowledge was derived from the evidence and/or report of the Civil Engineer, Mr Butcher, to the Army’s own formal Inquiry. Be advised that I repudiate the agreement reached with you in regard to the conditions of my receiving and reading the Butcher report/evidence.
You act for the Solicitor General in this matter. Please ensure that your client fully understands the background circumstances to my accepting and reading the Butcher report/evidence (our correspondence), and this written repudiation of the agreement by which I was induced to do so. Please also ensure that he fully understands that I have no intention whatsoever of maintaining confidential the contents of the Butcher report/evidence. I did not become a lawyer to harbour secrets about the corruption of due process.
Out of respect for history and heritage of the New Zealand Army I have provided an opportunity for an honourable, albeit belated, disclosure of the knowledge it possesses about the collapse of the Te Rapa bridge by the Defence Force.
[23] On 3 November 2004 the respondent argued before Associate Judge Gendall the application for non-party discovery of the documents by the Army. The Associate Judge made the order sought but the Solicitor-General and the New Zealand Defence Force sought review of that judgment. On 18 February 2005
Wild J gave judgment setting aside the orders for discovery.
[24] Wild J held that since the relevant documents had already been discovered, albeit on the terms of the consent memorandum, an order for discovery was unnecessary. Wild J further held that the Associate Judge’s order was inconsistent with s 159 and usurped the role of the Supreme Commander. Referring to an affidavit sworn by the Chief of General Staff and the decision of the Courts Martial Appeal Court in Neave v R (1995) 9 PRNZ 40 Wild J held that the Associate Judge had failed to balance the public interest in maintaining the effectiveness of armed forces courts of inquiry against the undoubted public interest in Coroners’ inquests.
[25] Wild J further disagreed with the Associate Judge’s decision that evidence from the Court of Inquiry discovered to the plaintiffs would not in terms of r 158 be used “against any person”. He referred to s 15(2) of the Coroners Act which recognises the prospect of adverse comment by a Coroner and to Re Hendrie HC CHCH CP445/87 12 January 1998 where Hardie Boys J stated that an implicit attribution of blame may be unavoidable if a Coroner is to ascertain or explain how the death occurred “in the wider sense of the events that were the real case”.
[26] The respondent deposed that after Wild J’s judgment was released Mr and Mrs Berryman decided not to pursue an appeal and discontinued their proceeding. He stated that they had no resources to meet the filing fee and security for costs. He described his clients as frail, elderly and impoverished; and asserted that the stresses and risks of a litigated appeal were beyond them and that he did not want to risk the effect on his clients of a legal aid charge on their land. He told us that it did not occur to him to make a personal application to the Court for release from his undertaking; any such application would in his view have been rejected as an attempt to relitigate the issues before Wild J. He said that he was left with a moral and ethical dilemma that he intended to resolve by making the Butcher Report public. He told us that, considering that an interlocutory appeal was unlikely to succeed, he preferred to release the documents immediately without risking an adverse appellate decision.
[27] By letter of 24 March 2005 the respondent acknowledged to counsel for the
Army that he had released the report to the Sunday programme of Television
New Zealand and to various other New Zealand media and had made arrangements to release it on the internet. He stated:
I have from the outset made my position plain to you. And I have also made my position plain on the floor of the High Court. If (when discovered) the Butcher Report showed that the New Zealand Defence Force was aware of faults in the design and/or construction of the Te Rata Bridge when it gave sworn evidence and made submissions to the Coroner that the bridge was safe and was designed and constructed according to code, such would constitute… a corruption of judicial process and resulting miscarriage of justice of such proportions, that I could not keep the contents of the report secret under any circumstances.
Be under no illusion about my resolve in this matter. I am not wired to keep secrets about dishonesty of this magnitude. And I cannot, will not, keep secrets about corrupted justice whatever the consequences.
The opportunity still exists for the New Zealand Defence Force itself to acknowledge (as the Butcher Report clearly shows) that the collapse of the Te Rata Bridge was due to design and construction defects caused by the inexperience, and inadequate supervision, of the Army personnel who built the structure.
[28] On 24 March 2005 the respondent was served with an order of this Court requiring him to return the discovered documents and the respondent complied with the order. On 11 April 2005 he received from a representative of a political party a copy of the Butcher Report which had been sent anonymously to the office of a member of Parliament. The respondent deposed:
I regarded the New Zealand document as a windfall copy of the Butcher Report and took immediate steps to publish it as widely as possible. I immediately prepared an email for release I scanned the Butcher document for posting on a website by midnight I had the document widely published in New Zealand I also arranged to appear on the Holmes show to announce what had happened and, hopefully, to provide people with the website address.
Contempt of court
[29] Civil contempt consists in disobedience to judgments and orders of the Court and breaches of undertakings by legal practitioners whether explicit or imputed by law. It is treated as a wrong done to the person entitled to the benefit of a judgment, order or undertaking. It is a contempt for a solicitor to fail to carry out an undertaking given in the capacity of solicitor. This is the case whether or not the
undertaking is given to the Court, or in the presence of the Court, to a party in litigation or to a client: Arlidge Edy & Smith on Contempt (3 ed, 2005) 12-248. Criminal contempt is conduct which interferes with the administration of justice. A person who disobeys a court order directed at him or her is guilty of a civil contempt. A person who aids or abets the breaching of a court order is guilty of a criminal contempt. The authorities as to the distinction are conveniently listed by Courtney J in Ash Road Investments Ltd v McLan Tower Ltd HC AK CIV-2006-404-
3985 30 November 2006 at [2]. We add the recent statement by Lord Rodger in Beggs v Scottish Ministers [2007] UKHL 3 7 February 2007 at 3, noting that in that case:
…the present proceedings actually concerned a breach of an undertaking given by the Ministers, rather than a breach of [injunction]…the Ministers did not dispute that…a breach of an undertaking could constitute contempt of court…
[30] Because of the nature of the orders that can be made, which may include imprisonment (which is not sought in this case) and fine, as well as professional consequences, the law requires proof beyond reasonable doubt of both the conduct and the state of mind required to establish breach: Duff v Communicado Ltd [1996]
2 NZLR 89, 98. Accordingly the respondent is entitled to the benefit of any reasonable doubt as to the gravity of any breach.
[31] We have no doubt the publications constituted presumptive contempt of court. The respondent argued that since there had been no court order prohibiting him from publishing the document there could be no contempt. That submission fails in relation to both civil and criminal contempt.
[32] As to civil contempt, the receipt by a legal practitioner of documents in the course of discovery imposes an obligation not to use those documents for purposes other than the conduct of the litigation. In Riddick v Thames Board Mills Ltd [1977] QB 881 Lord Denning MR stated at 896:
The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not
allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.
So in Home Office v Harman [1983] 1 AC 280 a solicitor, who was legal officer of the National Council for Civil Liberties and acted for a plaintiff in a proceeding against the Home Office arising out of his treatment in prison in an experimental “Control unit”, was held in contempt of court for handing to a journalist confidential documents which she had received in the course of discovery. New Zealand law is to similar effect: Wilson v White [2005] 3 NZLR 619 (CA).
[33] Here there was, in addition to an implied undertaking, the express undertaking contained in the consent undertaking accepted by the respondent in his letter of 14 September 2004. It was the prospect of an order for discovery, for which application had been made, that gave rise to the consent memorandum. It was the respondent’s status as a legal practitioner and the undertaking in his letter that gave him access to the documents. While the respondent contended that there had been some oral representation on behalf of the Solicitor-General as the basis for his letter of 14 September 2004, there is no evidence in support of that proposition and we reject it.
[34] Subject to the affirmative defence to which we will return there can be no answer to the Solicitor-General’s submission that there was civil contempt.
[35] Moreover, in his judgment of 18 February 2005 Wild J had specifically refused discovery on any terms other than those contained in the consent memorandum. The order of Wild J undergirds both the fact of the civil contempt and its potential gravity. We find it unnecessary to determine whether the respondent’s conduct is to be categorised as aiding or abetting the breaching of a court order which would constitute criminal contempt.
The affirmative defence and plea in mitigation
[36] The respondent advances the affirmative defence and, alternatively, in mitigation that such material constituted vital evidence which the Army had wrongly suppressed from the Coroner who was thereby misled into finding that it played no
part in the causation of the disaster and wrongly placing the whole blame on his clients.
[37] The respondent contends that his decision to disclose the discovered material publicly was justifiable as in effect a legitimate form of “whistle-blowing”, bringing to public attention information disclosing an iniquity in relation both to the Army conduct in creating a dangerous structure which led to Mr Richards’ death and in covering up its conduct by presenting to the Coroner an account which was inaccurate and incomplete. He contends that his conduct was the only feasible method of discharging the professional duty owed to his clients.
[38] To consider this submission it is necessary to examine the legal context.
The obligations of counsel
[39] The obligations of a legal practitioner are stated in the New Zealand
Law Society’s:
RULES OF PROFESSIONAL CONDUCT FOR BARRISTERS AND SOLICITORS
7th EDITION
Chapter 8 Court Proceedings and Practice
8.01 Rule
In the interests of the administration of justice, the overriding duty of a practitioner acting in litigation is to the court or the tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.
Commentary
(1) A practitioner must never deceive or mislead the court or the tribunal.
(2) The practitioner must at all times be courteous to the court or the tribunal.
(3) The practitioner, whilst acting in accordance with these duties, must fearlessly uphold the client’s interests, without regard for personal interests or concerns.
...
(7) A practitioner should not make any statement to the news media relating to proceedings, which have not been concluded, which may have the effect or may be seen to have the effect of interfering with a fair trial.
(8) In this area generally practitioners should be aware of the law relating to contempt of court, and the severe sanctions that can be imposed. The following points should be specifically noted:
(i) A publication will amount to contempt if it is likely to prejudice the trial or conduct of the action.
(ii) A publication may constitute a contempt if it is likely to interfere with the proper adducing of evidence, either by discouraging witnesses from coming forward or by influencing them in the evidence that they are prepared to give. An example would be a publication attacking or criticising a witness or disparaging a party in proceedings.
(iii) Contempt of court in a civil action extends also to conduct that is calculated to inhibit suitors from availing themselves of their right to have their legal rights determined by the courts. An example would be a publication which is likely to bring pressure to bear on one or other of the parties to an action so as to prevent that party from prosecuting or defending the action.
[40] The obligation of fearless conduct is subject to the overriding obligation to the Court and avoidance of contempt.
The coronial function
[41] The law’s response to sudden death is to provide a coronial hearing to determine the causes and to secure some benefit from disaster by learning lessons that may save others. Section 15 of the Coroners Act therefore provides that a Coroner holds an inquest for the purposes of establishing as far as possible the causes of death and making any recommendations on the avoidance of circumstances similar to those in which the death occurred that may, if drawn to public attention, reduce the occurrence of other deaths in such circumstances. But for the inquest to succeed it is necessary for the facts to be disclosed.
The obligations of the Crown
[42] It is the constitutional role of the State, represented by the Crown, to safeguard and promote the interests of its citizens. It has no other justification.
Of high importance among the responsibilities of the Crown is the defence of the realm. Military authority, like its judicial counterpart, is conferred in the interests of the citizenry. The plain language of rules 158 and 159 is not to be read down. But the protection by those rules of the evidence and report of the Inquiry, recounted by Wild J, can afford no justification for the Army to present to a Coroner evidence and submissions that were, for whatever reason, simply misleading.
[43] The commentators are unanimous in characterising the duty of the Law Officers, the Attorney-General and the Solicitor-General, as being to act in the public interest in the administration of justice. In Constitutional and Administrative Law in New Zealand (2 ed, 2001) at 25.8.2 Professor Joseph notes that “The Attorney-General is obliged to act always in the public interest”. Paul East QC says “[t]he Attorney-General represents the public interest in the administration of justice and can, where appropriate take legal action to see that the law is observed and justice done”: “The Role of Attorney-General” in Joseph (ed) Essays on the Constitution at 186.
[44] That obligation must equally lie upon other elements of the Crown involved in the administration of justice. In Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 Griffith CJ stated:
I am sometimes inclined to think that in some parts… of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.
That dictum was cited by the full Federal Court of Australia in SCI Operations Pty Ltd v Commonwealth of Australia (1996) 139 ALR 595, 613 to support the proposition that:
…it is well established that the Crown must act, and be seen to act, as a model litigant.
[45] Likewise, in England in Sebel Products Ltd v Commissioners of Customs and
Excise [1949] 1 Ch 409, 413 Vaisey J stated:
The defendants being an emanation of the Crown, which is the source and fountain of justice, are in my opinion bound to maintain the highest
standards of probity and fair dealing, comparable to those which the courts which derive their authority from the same source and fountain, impose on the officers under their control…
[46] Similarly in Canada Estey J in giving the decision of the majority of the Supreme Court in Skogman v R [1984] 2 SCR 93 at 109 cited with approval the dictum of Schroeder JA in City of Toronto v Polai (1970) 8 DLR (3d) 689, 697:
The Attorney-General is in a different position from the ordinary litigant, for he represents the public interest in the community at large...
[47] In Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, in the analogous sphere of disclosure in judicial review, Lord Bingham has recently stated:
31… [There is an] obligation resting on a public authority to make candid disclosure to the court of its decision making process, laying before it the relevant facts and the reason behind the decision challenged…
[48] The theme overall is that the Crown as Executive must be an exemplar of high standards of conduct in litigation before the courts. That includes the Coroner’s Court.
[49] There is no justification for any lower standard of Crown conduct in New Zealand. On the contrary, it is the responsibility of the Crown as Executive, here the Army, as of the Crown as judiciary, to give effect to the right to the observance of the principles of natural justice conferred on the citizen by s 27 of the New Zealand Bill of Rights Act 1990.
[50] Here it was the Crown as Coroner which was responsible for the conduct of the inquest and the Crown as Executive, in the form of the Army, which had information relevant to the inquiry. While rules 158 and 159 limit the production of the actual record of proceedings and evidence before a Court of Inquiry they do not of themselves prohibit the provision of factual information to a Coroner.
[51] Certainly, as Wild J observed, there will be occasions when the Army cannot divulge information. Chandler v Director of Public Prosecutions [1964] AC 763 and Operation Dismantle v The Queen [1985] 1 SCR 441, cited in Curtis v Minister of
Defence [2002] 2 NZLR 744, illustrate the need in appropriate cases for not only the record, including the evidence given, but also for information to be withheld on the grounds of national security. Section 6(a) of the Official Information Act 1982 evidences Parliament’s expression of that important policy. But these considerations do not justify the Army in leading evidence or making submissions before a Coroner that are inaccurate and are or should be known to be inaccurate. As Pill LJ observed in In the Matter of Captain Christopher John Kelly [1996] EWHC Admin 15 at [6]-[7], an attitude on the part of those representing the Ministry of Defence at an inquest that:
…no professional criticism can attach to those who took the decision which resulted in [material] evidence being unavailable at the inquest
is difficult to follow. If for good reason information must be withheld, care must be taken to ensure that the Coroner is not misled.
[52] We emphasise that we make no suggestion that counsel who represented the Army (or indeed any other party) before the Coroner had personal knowledge of what had occurred before the Court of Inquiry.
The concept of whistle-blowing
[53] Ms Gwyn properly recognised that the respondent’s state of mind is germane to the submission in mitigation of penalty. So too must be the extent to which there was basis for such opinion. She also accepted in this regard that in the absence of proof beyond reasonable doubt to the contrary the facts must be viewed on the basis most favourable to the respondent.
[54] There is an important question whether and if so within what limits a perceived breach of legal or moral duty by one party can justify another to breach his own obligations.
[55] In the tragic thalidomide case it was said that “[t]here can be no such thing as a justifiable contempt of court”: Attorney-General v Times Newspapers Ltd [1974] AC 273, 302 (HL) per Lord Morris. He did not accept that:
…if some conduct ought to be stigmatised as being a contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress that was of a matter of public sympathy and concern.
The statement is inconsistent with the suggestion by Lord Denning MR in the Court of Appeal, arguing that because there had been no public inquiry as to how the disaster had come about and such inquiry as there had been had been done in confidence in the course of private litigation between the parties, that:
…the public interest in having [the case] discussed outweighs the prejudice which might thereby be occasioned to a party to the dispute
([1973] QB 710, 740)
[56] Equity has however long accepted the statement of Page Wood V-C in
Gartside v Outram (1856) 26 LJ Ch 113, 114:
You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part: such a confidence cannot exist.
[57] The Court of Appeal of New Zealand has stated:
What has been called ever since Gartside v Outram… the defence of iniquity
is an instance, and probably the prime instance, of the principle that the law
will not protect confidential information if the publication complained of is shown to be in the overriding public interest: European Pacific Banking
Corp v Television New Zealand [1994] 3 NZLR 43 at 46.
[58]
That and other recent decisions in various jurisdictions are cited
by
Sir Roger Toulson and C M Phipps in Confidentiality (2ed 2006) Chapter 6. Having considered Article 10 of the European Convention, equivalent to s 14 of the New Zealand Bill of Rights Act 1990 as to freedom of expression, the authors provide at pp 163-164 the following valuable synthesis:
(1) Respect for confidentiality is itself a matter of public interest.
(2) To justify disclosure of otherwise confidential information on the grounds of public interest, it is not enough that it is interesting to the public.
(3) In broad summary, the disclosure must either relate to serious misconduct (actual or contemplated) or it must otherwise be important for safeguarding the public welfare in matters of health and safety, or of
comparable public importance, that the information should be known by those to whom it is disclosed or proposed to be disclosed.
(4) (i) Even if the information meets that test, it does not necessarily follow that it would be proper for the defendant to disclose it.
(ii) The Court must consider the relationship between the parties and the risks of harm which may be caused (or avoided) by permitting or prohibiting disclosure, both in the particular case and more generally…
(5) Ultimately the court has to decide what is conscionable or unconscionable, which will depend on its view of what would be acceptable to the community as a fair and proper standard of behaviour. This requires the court to make an evaluative judgment, but it does not have an unfettered discretion.
(6) In cases where the party claiming confidentiality is a branch of Government, or a body performing a governmental function, a separate principle applies. In such cases detriment to the public interest is an essential ingredient of the cause of action.
[59] We would add that equity, like the criminal law (see R v Bridger [2003]
1 NZLR 636, 648 (CA)) has an essentially moral base. But the criminal law is slow to permit parties to take the law into their own hands under defences of compulsion and duress, because of the consequences of removing the constraints of law: see New Zealand Law Commission Report 73 (2001) Some Criminal Defences with Particular Reference to Battered Defendants at [195]:
The defence of compulsion is capable of being a complete excuse for a wide range of conduct. Therefore, we think that it is appropriate to require that the defence be confined to very limited, tightly defined circumstances.
[60] For similar reasons equity maintains careful control over the extent to which and the persons to whom any disclosure of confidential information may be made. Where grounds for disclosure exist “it by no means follows that the disclosure may be to the public at large”: Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 222E per Bingham LJ. Rather, the disclosure must be to “one who has a proper interest to receive the information”: Initial Services Ltd v Putterill [1968] 1 QB 396, 405-6 per Lord Denning MR.
[61] The courts in further developing the common law and applying the principles of equity are guided by Parliament’s statements of policy in analogous spheres. “Whistle-blowing” has been recognised by the New Zealand Parliament, like
legislatures in other jurisdictions, as justifiable in certain circumstances: see the Protected Disclosures Act 2000. Whistle-blowing can be an ultimate response to systemic oppression and injustice. The Act applies only to “an employee of an organisation” (s 6(1)) and is considerably constrained, not only as to methods but also as to those to whom it can provide protection. Like the common law, Parliament has taken care to constrain the methods by which whistle-blowing may be performed: of particular relevance here, the procedures by which and the persons to whom complaint can be made. They do not include recourse to the media.
[62] We say nothing of a case where legal remedies do not exist or have been exhausted. The respondent cited the troubling decision of Hunter v Chief Constable of the West Midland Police [1982] AC 529 in which the House of Lords denounced a challenge by indirect means to convictions where appeals had been dismissed, yet some years later it was found that the accused, the “Gang of Six”, had been wrongly convicted: R v Connor [2004] 1 All ER 925, 931 para [4]. In Arthur JS Hall & Co. (a Firm) v Simons [2002] 1 AC 615 at 679 Lord Steyn said:
…I have no doubt that the principle underlying the Hunter case must be maintained as a matter of high public policy. In the Hunter case the House did not, however, “lay down an inflexible rule to be applied willy-nilly to all cases which might be said to be within it”: Smith v Linskills [1996] 1 WLR
763, 769 per Sir Thomas Bingham MR.
Cases like Hunter have taught that in law it can be wise never to say never.
[63] But where there are available legal remedies to be pursued there can as a rule be no room for either whistle-blowing or indeed any other remedy of self help. That principle is a simple application of the rule of law: that disputes are to be resolved within the law by the courts and tribunals established to do justice.
[64] While the courts have some role in the development of the common law as in the application of principles of equity, they may not dispense with the need to have recourse to the court where that remedy is reasonably available. That is because self help is the very antithesis of the rule of law.
Application of the principles
[65] We emphasise that it is not our role to make definitive findings as to the facts. That will be the function of the Court by way of fresh pending proceedings, one by way of judicial review challenging the decision of the Solicitor-General not to direct a new inquest and the other against the Crown seeking damages for misfeasance, breach of contract and negligence.
[66] Our function is simply to consider what has been proved or excluded by the Solicitor-General beyond reasonable doubt. If doubt exists at this stage, the respondent is entitled to the benefit of it even if later inquiry should establish a different picture.
[67] In his costs judgment Wild J found that submissions made to the Coroner by counsel for the Army were clearly not correct although he was of the view that fact did not bear on costs. He said:
[54]… I agree with Mr Moodie that the Army’s submission to the Coroner that it had built the bridge in a proper manner, and that nothing in the entire construction of the bridge had contributed to the accident, was wrong, and that the Army either knew, or ought to have known, that it was wrong.
His costs decision was upheld by the Court of Appeal and the Supreme Court declined leave to appeal further.
[68] In a report dated 27 May 2005 rejecting a request by Mr and Mrs Berryman for a second inquest the Solicitor-General agreed with Wild J’s conclusion. He said:
…the Army’s submissions… were not consistent with the findings of the Army Court of Inquiry and they should not have been made. Rule 158 imposed restrictions on what material from the Court of Inquiry was admissible at the inquest. But that does not justify the advancing of a submission which the Army, as an organisation, should have known was inaccurate or misleading…
[69] In a judgment of 17 May 2006 declining to strike out the Berrymans’
application for review of the Solicitor-General’s decision MacKenzie J has stated:
[15]… There is here… a clear finding both from a Judge of this Court and from the Solicitor-General that a party to the inquest made submissions
which it knew, or ought to have known, were wrong. The public interest may require that the implications of that be properly considered by this Court, whether or not the interests of Mr and Mrs Berryman require that course.
[16]… The steps which are appropriate when it becomes apparent that a party has made submissions which it knew, or ought to have known, were wrong are not to be determined solely by considering whether, if the matter were re-opened, a different outcome would be likely. The maintenance of public confidence in the operation of the courts and their processes is involved. That confidence may be weakened by a significant deficiency in the process, even if, in the end, the outcome is appropriate.
[70] On the evidence before him, Wild J (costs judgment [48]) did not accept the respondent’s submission that the use of untreated Oregon timber had been approved by Lieutenant Armstrong before being purchased for the project by the Berrymans. In an affidavit dated 4 August 2006 however Mrs Berryman asserted that she had been told by the lieutenant that the Oregon timber was suitable for the transoms ([19]). We have noted that the Army did not disclose to the Coroner either the fact of the Inquiry or the Butcher Report; nor did Mr and Mrs Berryman disclose the existence of the Works Consultancy report.
[71] It may in other proceedings be material that from about April 1994 Mr and
Mrs Berryman were in possession of that report which drew attention to the fact that:
Two transoms supporting the timber decking and associated traffic load have failed in bending…The member has failed as a result of loss of strength caused by weathering over a period of time.
(Emphasis in original)
On 26 October 2004 Mr Butcher deposed that on 24 September 1994 Mr Berryman had told him of being well aware at the time of the bridge collapse that the transoms were in poor condition and that because of his concern about the conditions of the bridge he had advised Mr Richards not to bring his vehicle loaded with honey across the bridge but to use a farm track which would have involved an hour’s additional travel time.
[72] Also in October 2004 Mr Berryman asserted that in discussions with Lieutenant Armstrong on 24 January 1986 it was agreed than an eight-inch damp course “rain coat” would be placed over the transom lamination or joint to keep the
weather out. Mr Berryman exhibited an invoice for the damp course that was supplied and said that it was provided to Lieutenant Armstrong for use in the bridge construction as had been discussed. He said that when the bridge was dismantled after its collapse in 1994 he noticed that damp course had not been placed on the transoms as he had expected although he placed no significance on that at the time. An expert civil engineer subsequently retained by Mr and Mrs Berryman, Mr James Smith, has deposed that, while the use of the untreated timber of the kind used is unacceptable design practice because it is not sufficiently durable for use in bridge transoms, it can be effectively treated by soaking in a creosote bath constructed out of old drums or a wooden trough lined with heavy duty polythene. He advised that had that been done and the transoms been fitted with malthoid or other flashings to exclude water, the accelerated delay that occurred could have been avoided at quite modest cost.
[73] As it was, the bridge which had cost some $50,000 to $60,000 to establish failed after only eight years.
[74] We make no comment on the issues pending before this Court in the judicial review and damages proceedings. Nor do we make any comment on the extent to which new information might have influenced the Coroner to re-express his findings. Such information could have included the extent of Mr and Mrs Berryman’s knowledge of the condition of the bridge, what they could or should have been able to see or infer as to the condition of the transoms, whether they should have taken expert advice: all these are matters that were not explored before us and on which it is unnecessary for us to form any opinion.
[75] For present purposes it is sufficient to say that, as Wild J, the Solicitor- General and MacKenzie J have all recognised, the Army’s submissions were inconsistent with both the evidence of Mr Butcher and the report of the inquiry. The Crown has not excluded as a reasonable possibility that the Army caused or contributed to the selection of the Oregon timber and to its use in the transoms for the bridge without treatment that would lengthen its unusually short life-span when exposed to weather; that these were facts that ought to have been disclosed to the Coroner and were not; and that Army counsel was instructed to make submissions
inconsistent with the facts known to the Army as a result of Mr Butcher’s report and the report of the inquiry. On the evidence before us, which may be quite different from the evidence at the forthcoming trials, the Crown has not excluded beyond reasonable doubt that the Army’s role in the causation of the disaster was very different from what the Coroner was led to believe. The Crown has therefore failed to establish against the respondent lack of honest belief and factual basis for such belief that there was injustice caused to the respondent’s clients as a result of improper conduct on the part of the Army.
[76] It follows that we must decide this case on the basis that the respondent had reason to believe that Mr and Mrs Berryman were deprived of their right to a fair trial. Equally, it was a proper function of counsel to seek to bring such matters to attention by proper means.
[77] There can however be no excuse in this case for the respondent’s failure to employ conventional channels to seek release from his obligation of confidence. The reason for such constraints is expressed in the simple formula “you can’t take the law into your own hands”. The principle was clearly stated by McLachlin J in
Canada (Human Rights Commission) v Taylor (1990) 75 DLR (4th) 577, 635:
The order of the Tribunal… continues to stand unaffected by the [Canadian] Charter violation until set aside. This result is as it should be. If people are free to ignore court orders because they believe their foundation is unconstitutional, anarchy cannot be far behind. The citizens’ safeguard is in seeking to have illegal orders set aside through the legal process, not disobeying them.
[78] A similar policy underlies the statement of the Court of Appeal in Wilson v
White:
[63]… if [the appellant] considered that the public interest warranted the actions [of publishing discovered documents] she was taking, she should not have acted unilaterally but rather should have sought the leave of the Court. We are aware of no authority which supports the view that a party who is subject to an implied undertaking as to limited use is entitled to decide unilaterally that the public interest warrants disclosure. On the other hand there is much authority which indicates that the proper course is to put the issue to the Court in the context of an application for release from the undertaking; see for instance Watkins v A J Wright (Electrical) Ltd [1996]
3 All ER 31….
[64]… It is commonplace for parties to litigation to allege misconduct against others and to seek discovery in support of such allegations. To allow discovered documents which reveal (or are thought to reveal) such misconduct to be disclosed for other purposes on the basis of a public interest exception would be very destructive of the underlying principle. Accordingly, permission to permit collateral use could only be properly granted in situations far more compelling than the [instant case] which confronted Dr Wilson...
[79] As Wild J observed in his costs judgment:
[24] If the [Berrymans] considered their arguments, relevant to the issues I had to decide, had not been properly considered, and were sound, then their obvious remedy was to appeal to the Court of Appeal. I doubt that the Court of Appeal would have denied them a hearing: Association of Dispensing Opticians of New Zealand Inc. v Opticians Board [2000] 1 NZLR 158 (CA)
[25] Instead of appealing, the plaintiffs, by notice dated 10 March 2005, discontinued this proceeding.
[80] The respondent received the documents in his capacity as counsel. He was bound both by an express undertaking and by an obligation imputed by law not to release them without leave of the Court. He did so in the face of a judgment of this Court, without seeking either leave to appeal or dispensation from his obligations. We have noted his deliberate decision to release the documents immediately rather than risking an adverse appellate decision.
[81] We are wholly satisfied that in electing to publish the material of which Wild J had declined to order discovery the respondent breached at least the civil limb of the law against contempt of court. There was no sufficient justification for failing to seek leave to be discharged from his solemn undertaking, which had been the premise on which he had received access to the material. No-one, least of all experienced counsel, can simply defy an obligation owed to the Court. The respondent’s conduct was high-handed and wrong. The rule of law requires that disagreement with a judicial decision be expressed by the exercise of the right to seek leave to appeal, not by defiance of the decision.
[82] We accordingly find that the respondent was in contempt of court as alleged by the Solicitor-General.
Penalty
[83] Turning to penalty, we are not satisfied that the respondent acted otherwise than in what he considered to be the best interests of his clients in seeking to correct an arguable injustice in the proceedings. That fact goes to mitigation.
[84] We have noted that the respondent’s view that there are substantial grounds for concern that there was serious breach of duty by the Army at the hearing before the Coroner receives some support from the opinion of Wild J and the report of the Solicitor-General, and has been found by MacKenzie J to be arguable. As we have done in considering whether contempt is established, in assessing penalty, we do so in terms of the onus of proof and on the basis that there is substance in the respondent’s view.
[85] The respondent’s arrogant and high-handed disregard of due process is therefore mitigated to a degree by the fact that he was responding to the suppression of material which he had reason to believe his clients’ interests required to be communicated to the Coroner. We take into account the respondent’s submission that an application for leave to appeal might have exposed Mr and Mrs Berryman to the risk of an adverse costs order, against which he sought to protect them.
[86] But had the respondent wished to disclose what we are assuming on the evidence before us to have been the wrongful suppression of information and misleading submissions by the Army, he should have sought to be released from his undertaking and implied obligations, if not by way of appeal by Mr and Mrs Berryman then by personal application to this Court by the respondent. To assert or assume that such process would not have achieved justice is to challenge the very rule of law which the respondent claims to have defended.
[87] It is necessary for reasons of precedent and deterrence for this Court to make perfectly plain that breach of legal and professional obligations by practitioners will not be countenanced. Were it not for the mitigating factors we have recounted we would have been of the view that the respondent should have been struck off the
rolls. In the event, they must result in very substantial mitigation of the penalty to be imposed.
[88] We proceed by analogy with the law of criminal sentencing, which requires the Court to determine the precise criminality of the offender: R v Meroiti CA392/99
26 October 1999 applying R v Duffy (1974) 15 Cr App R (S) 677. On the evidence in this Court, the Solicitor-General has not excluded as a reasonable possibility that the facts as to the causation of the collapse of the bridge publicly disclosed by the respondent, as distinct from the particular documents (which are protected by the rules), ought to have been revealed by the Army to the Coroner. We have accepted for sentencing purposes that the respondent had an honest belief to that effect which he reasonably held.
[89] But the documents released by the respondent were themselves subject to the protection of :
1. rules 158 and 159 of the Armed Forces Discipline Rules of
Procedure;
2. the respondent’s implied undertaking as a law practitioner as to the confidentiality discovered documents;
3. his express undertaking by his letter of 14 September
2004.
Each of these was confirmed by the judgment of this Court delivered by Wild J.
[90] Defiance of the obligation to maintain confidence, unless and until released by order of the Court, itself constitutes serious contempt of Court that requires a deterrent penalty.
Decision
[91] We find that the respondent has committed contempt of court as alleged by the Solicitor-General.
[92] Adopting the analogy of s 8(g) of the Sentencing Act 2002 and fixing the penalty at the minimum appropriate, we consider that minimum penalty appropriate to be one of suspension of three months, to take effect upon delivery of this judgment, and a fine of $5,000. That is the order of this Court.
[93] The respondent is ordered to pay costs on a 2B basis with disbursements as fixed by the Registrar. We certify for one counsel only.
Solicitors:
Crown Law Office, Wellington
Moodie & Co, Fielding
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