FollAppl (oll Nat Crime Justice, Police Fol Lew v Her

FollAppl (oll Nat Crime Justice, Police Fol Lew v Her - [1940] HCA 6 - HCA 1940 case summary — Zoe

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it is enough to enable him to proceed by way of appeal in an attempt to uphold the cause. The cause, I think, is not worthy of even so much martyrdom. It seems to me to be itself founded on a paradox. For it is said that newspapers will not be able to discover the truth and publish it unless when the courts of justice in their turn want the truth pressmen in whom it has been confided are privileged to withhold it. It is easy to understand that editors and other journalists would find it some help in their search for news if they were able to assure those in possession of information that they could secretly impart it without fear that courts of law would be able to discover its source. But this is probably true of a great many other trades, businesses and pursuits. Privilege from disclo- sure in courts of justice is exceptional and depends upon only the strongest considerations of public policy. The paramount principle of public policy is that the truth should be always accessible to the established courts of the country. It was found necessary to make exceptions in favour of state secrets, confidences between counsel and client, solicitor and client, doctor and patient, and priest and penitent, cases presenting the strongest possible reasons for silencing testimony. But hitherto no one has entertained a claim that courts should not be allowed to know what a journalist has discovered. It is true that in the process of interrogatories and discovery of documents before the trial of an action of libel, courts of common Jaw have exercised a statutory discretion as to what they shall allow by refusing to compel a newspaper defendant to say who wrote the libel or where the newspaper got the information on which the libel is founded. But that depends on special considerations affecting liability for defamation and the discretionary nature of discovery. It is quite a different thing to claim protection on the hearing of a suit or trial of an action for a witness able to state relevant facts because he obtained knowledge of the facts confidentially as an editor or journalist. By the statute law of Victoria a Royal Commis- sion is put in the same position as a court trying an action. In my opinion the appellant has no lawful excuse for refusing to answer the question put to him by the commissioner. As to the point that the question was not material I agree that in the circumstances it was relevant to inquire what persons had knowledge and that is

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prerogative of the Crown. The statute assumes the existence of the power to constitute and appoint a commissioner, and proceeds to arm every commissioner with additional authorities. The con- tention of the appellant is that under the prerogative the Crown cannot grant a commission, outside the regular course of the criminal law, to inquire whether criminal offences have been committed and by what persons. Courts of criminal jurisdiction are established for the purpose of determining guilt or innocence of crime; and the process of inquiry and accusation by which men are put upon trial is fixed and regulated by law. Therefore, it is said, the Crown may not, under the prerogative, set up an ad-hoc commission of inquiry to examine into the question whether and by whom a crime has been committed. "There are," wrote Sir W. Harrison Moore in 1910, " opinions of eminent lawyers which suggest that an inquiry instituted by the Crown for the purpose of ascertaining whether an offence has been committed and by whom, or whether any penalty or forfeiture has been incurred, is an invasion of the judicial power of the courts even though the inguiry is not for the purpose of awarding any legal penalty" (Commonwealth of Australia, 2nd ed., p. 309). The position put by the appellant could not be better expressed and in a note the author collects the authorities upon which the argument is founded. They include no English judicial decision; but nevertheless respectable modern support is forth- coming for such a limitation upon the power of the Crown to appoint commissions of inquiry. That lawyers should hold such an opinion needs little explanation ; for the proposition appears reasonable as a check upon an executive power, the abuse of which may be alike unjust to the individual and prejudicial to the due and orderly administration of criminal justice. At the same time it receives apparent support from the course of historical development curtailing the use of special commissions of inquisition.

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Dictionary. s.v. commission). Eyres which in the twelfth and thirteenth centuries were sent out to transact the judicial and fiscal business of the Crown in the counties of England were commissions. When at the close of the thirteenth century and in the fourteenth century the judicial circuits were established, they too were commis- sions. The jurisdiction exercised at the "assizes" depends, according to a traditional though perhaps inaccurate statement, upon five commissions, the commissions of assize, of gaol delivery, of oyer and terminer, of nisi prius, and of the peace. The long history of the restriction of monarchical power includes the limitation by charter, statute and constitutional custom of the prerogative to issue special commissions for the exercise of authority over the subject, particularly authority of a judicial nature. Coke was, there- fore, able to say "legall commissions have their due forms as well ~ as originall writs, and none can be newly framed without Act of Parliament, how necessary so ever they seem to be" (4th Inst. 478). Amid the general reliance placed in the seventeenth century upon the twenty-ninth clause of Magna Carta and the like clauses in confirmations and in such statutes as 37 Edw. III. c. 18 and 42 Edw. IIL. c. u1r - Cf. Vinogradoff, Collected Papers, pp. 312, 313 - it was natural that they should also form part of the justification put for- ward for denying to the Crown a power to set up new commissions of inquisition. Such a denial is contained in the Case of Com- missions of Inquiry, printed in the posthumously published twelfth part of Coke's Reports, (1). The printed report is unsatisfactory, but a learned and scholarly, though anonymous, contributor to the Law Review, vol. 15, pp. 285-292, has given us a better account of the case from the manuscripts, together with a full explanation. The commission there considered related to the enclosure of arable land and its conversion into pasture, with the consequences of rural decay and depopulation, which have been the subject of repeated legislation for more than a century (Holdsworth, (1) (1608) 12 Co. Rep. 31 [77 E.R. 1312).

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such powers, as Lord Lyndhurst seems to have conceded in expressing his objections to the Municipal Corporation Commission of 1835 : Cf. Law Review, vol. 15, p. 294. Before the Tribunals of Inquiry (Evidence) Act 1921 (11 Geo. V. c. 7) such powers were given in England only by special statutes, but in Australia, in every State, general legislation had long existed arming commissions of inquiry with the power of compelling testimony. For the purpose of con- sidering the validity of a commission this fact must be left out of account. At common law it may be beyond the prerogative power of the Crown to set up commissioners with the same authority as a court to compel the attendance of persons to testify and to submit to its directions when the purpose is to determine whether or not offences against the law have been committed. But a commission valid at common law cannot be invalidated because under statute powers of compulsion arise when the commission is issued. During the 19th century attacks against the legality of particular Commissions of Inquiry were made from time to time. In 1806 Lords Erskine, Grenville, Spencer and Ellenborough were named as commissioners to inquire. into the conduct of the Princess of Wales (afterwards Queen Caroline). In a memorandum said to have been drawn by Lord Eldon, Sir Thomas Plomer and Mr. Perceval, she protested against "the legality of such a commission to inquire even in the case of high treason or any other crime known to the laws of the country " (Law Magazine (1834), vol. 11, p. 70). The Royal Commissions issued in 1850 to inquire into the state, discipline, studies and revenues of the Universities and Colleges of Oxford and Cambridge were condemned "as not constitutional nor legal or such as the University and its members are bound to obey." Such was the opinion given by counsel as eminent as Sir G. J. Turner, Mr. Bethell, Mr. Keating and Mr. J. R. Kenyon, but it was met by a contrary opinion from Sir J. Dodson, Sir A. Cockburn and Sir W. Page Wood: See W. Harrison Moore, Commonwealth of Aus- tralia, 2nd ed., p. 310, note 1; Law Magazine, NS., vol. 15, pp.

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Judgment (209 paragraphs)

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