R v Carter; Ex parte Gray [1991] TASSC 97

R v Carter; Ex parte Gray [1991] TASSC 97 | Case summary | Zoe

[110]

48 On 22 April the continuous public hearings of the Royal Commission began. After taking some additional appearances, the Commissioner commenced proceedings by delivering reasons for his decision to conduct the in camera sessions of the Commission. He pointed out that if persons other than Rouse and Aloi had been involved in the bribe attempt they would be unlikely to voluntarily assist the work of the Commission. Rouse was the only person known to the Commission to have full knowledge of the facts and circumstances leading to the attempted bribe, but in the investigation leading to his being charged, had exercised his right to silence and had provided no information to the police. In view of his plea of guilty he had also not given evidence to the court which sentenced him. The Commissioner had regarded it as vital that Rouse's version of events be obtained before the Royal Commission could properly commence its task. An approach had been made to him; he had, subject to the satisfaction of legitimate concerns, appeared willing to give a statement to the Commission, but despite procedures being devised to enable him to give such a statement without the risk of exposing himself to further criminal charges, he had declined to furnish it, ultimately on a ground which cast doubt upon the ability of the Commission and its staff to conduct its affairs efficiently and with probity. The Commissioner referred to Mr Evans' letter of 25 February, the thrust of which he said was that officers of the Commission, once in possession of Rouse's version, would improperly disclose it to others. The Commissioner had accordingly determined that the only way in which such version could be procured was by compulsion of law, but at a private session, so that if others had been involved they would not be made aware of that version and would be unable to tailor their own evidence so as to be consistent with it. He relied on the authority of Clough v Leahy (supra) as justification for the reception of evidence in camera by a Commission of Inquiry. He also adverted to the fact that he had previously indicated he intended to announce his reasons for holding sessions in camera and said that he regarded it as unfair that the Commission should be criticized for proceeding as it did without the critic knowing those reasons. In a brief reference to Mr McQuestin, he said that he appeared to the Commission to be a witness in possession of much information relevant to para(1) of the terms of reference, and that it was important that a statement be obtained from him. He, too, had refused to co-operate with the Commission staff and refused to provide it with any information. For the same reasons as had impelled the Commissioner to act in relation to Rouse, Mr McQuestin was also summoned to give evidence in camera.

[118]

"Nothing is more calculated to discredit a Royal Commission than to involve it and the Commissioner in political controversy or to create the perception that the Commission and the Commissioner may be seen to be involved politically. Despite an earnest desire on my part to avoid this and to develop a healthy working relationship with the media based on mutual respect for our respective roles and functions I was soon to learn that this was not possible. My agreement to submit to a wide ranging press conference in January in a desire to co-operate ended with a section of the media falsely reporting to the media what I had said and falsely attributing to me things which I had not said and about which I had never been asked. If by this crude, false and mischievous process it was intended to attempt to involve me in political controversy or to use me to discredit others politically, it was entirely successful. As a consequence my resolve became a two-fold one. Firstly to avoid contact with any section of the media and secondly to ensure as far as possible that the Commission in its work was not obstructed politically or otherwise. Whether the refusal of relevant witnesses to co-operate with the Commission was the result of what had occurred I cannot be certain. What I do know is that since that time it is the regrettable fact that I, those who assist me and the work of Commission staff have been subjected to a series of political actions concerted or otherwise which have hampered the Commission's preliminary work. It is unnecessary to recall the details. They are too well known. Political action of the kind which has occurred can fairly be described as political obstruction, as can the attempt to involve me in political controversy based on what I had not said in the press conference. What I said to the Premier in my letter dated 7 March was based on that experience. I was speaking in general terms because of what I considered to be an attempt to involve me politically. It was not a reference to the actions of specific individuals be they likely witnesses before the Commission or their legal advisers. Nor did I have in contemplation any of the several political personalities with whom the Commission has had contact."

[119]

52 We think that a fair reading of the Commissioner's remarks we have set out or summarized above do not indicate prejudgment of either of the Prosecutors nor that they are likely to lead to an apprehension of bias against them. It is true that his comments concerning Rouse's refusal to co-operate contained a degree of criticism of Rouse and/or his legal advisers and may be thought to suggest that the Commissioner thought that attitude an unreasonable one. Nevertheless, what was said occurred in the context of explaining why it was that he had felt impelled to adopt a course he had not originally contemplated, had wished to avoid if possible, and had been publicly criticized for doing, namely taking evidence in private. He at no stage denied Rouse's right to take the stance he did, but if that caused some irritation in the Commissioner, that was understandable, and his remarks cannot lead to any fair inference of predisposition against Rouse. In the case of Mr McQuestin, the Commissioner likewise referred to his refusal to co-operate, but there was in no sense a linking, express or implied, of McQuestin in any criticism of Rouse over such refusal. No reference was made so far as Mr McQuestin was concerned to any reasons which might be thought by the Commissioner or any one else to be lacking in cogency for his taking such course. On the contrary, the comment that the reasons for their want of co-operation might perhaps be based on other factors has no connotation of sinister motivation in either of them, as is explained in the lengthy quotation we have just set out. In that criticism of the media, the Commissioner suggested that the refusal of relevant witnesses to co-operate with the Commission might well have been the result of what the Commissioner perceived to be an inappropriate involvement of the Commission in political controversy by sections of the media. Thus he conceded such refusal by Mr McQuestin may well have been actuated by an understandable concern not to be similarly unwittingly involved.

[120]

53 The criticism of the Commissioner's comment in his letter to the Premier of 7 March must also be evaluated in the light of events occurring before that date including media reports, and of the disclaimer by the Commissioner on the first public hearing on 22 April of any intended reference to any specific individuals "be they likely witnesses before the Commission or their legal advisers", or any political personalities with whom the Commission had had contact. Prior to the date of that letter there had been, in the view of the Commissioner, an improper attempt by sections of the media to involve him in political controversy over whether or not he had been consulted about the form of the original terms of reference, that involvement being fostered by inaccurate accounts of what he had said at his press conference; he had, according to press reports, been criticized by the Police Association; he had been unable to procure a statement from Rouse whose solicitor had, in the Commissioner's view, suggested that if such a statement were given, the Commission staff would improperly disclose it to others; and other potential witnesses than Rouse and McQuestin had declined to make statements, adopting an attitude that the lines of enquiry directed to them were outside the original terms of reference. There was, in our view, some basis for an apprehension by the Commissioner when he wrote the letter of 7 March that his work might be deliberately obstructed both politically and within the Commission's hearings. That apprehension, whether correctly held or not, and even if overstated, served as a preface to his request for amendment of the terms of reference in order to minimise argument as to the relevance of some lines of enquiry and to obviate possible delay to which any disputed ruling might give rise. On its face, the passage complained of did not refer to either of the Prosecutors nor could it, in our view, be reasonably seen to be directed at them or at a class of persons which included them. The express disclaimer by the Commissioner of any reference to the likely witnesses (including the Prosecutors) is strong evidence against the contention that this passage reveals bias against either of them. To accept that it does requires the objective observer to conclude that the disclaimer was mendacious. Such a conclusion is quite unwarranted. It also overlooks the assurance given by Mr Chesterman, QC, to Mr Porter that he could not see how anything in the letter could cause any concern regarding Mr Gray's credit. The apparent curtness of the reply from Commission staff to Mr Porter's correspondence is explained by a further statement of the Commissioner at the commencement of the public hearing on 22 April that he had chosen not to respond to what had been reported as having been said in the media by legal practitioners and others of a variety of matters, nor to engage in contentious correspondence with them. He continued:

[124]

55 Both Prosecutors complain of the Commissioner's statements "it is that kind of baseless criticism which is being part of a concerted attempt to damage the reputation of this Royal Commission" and "what I do know is that since that time it is the regrettable fact that I, those who assist me and the work of Commission staff have been subjected to a series of political actions concerted or otherwise which have hampered the Commission's preliminary work. It is unnecessary to recall the details. They are too well known." The first such statement came upon the heels of the Commissioner's reference to the reported criticisms of him by Mr Evans in "The Australian". He directed his comments to the criticism of his having allowed Mrs Rouse to be cross-examined without representation. In our view, having regard to the Commissioner's account of what happened at that time, that criticism was quite rightly characterised by him as baseless. Later in his opening remarks, he defended himself against criticism for writing to the prison authorities, especially the criticism attributing to him a request that Rouse should be isolated until the conclusion of his evidence. Whether or not the request he in fact made to those authorities was appropriate in the circumstances, we need not determine, but the last part of the criticism was, in our view, likewise baseless. In addition to the sources of apprehension preceding the making of these remarks and to which we have adverted as at the time of the letter to the Premier of 7 March, the Commissioner had been subjected to the adverse publicity of reports suggesting he might be called before the Bar of the Legislative Council and to reports of a number of other criticisMs It is not for us to make findings as to whether or not there was a concerted attempt to damage the reputation of the Commission, or that he and his staff had been subjected to political actions which hampered the Commission's preliminary work, but the fair minded observer, in our view, could be expected to accept that the Commissioner might honestly and reasonably apprehend that this was the case and might do so without harbouring any preconception that either of the Prosecutors was in any way a party to the behaviour of which he complained, still less that he might not bring to an assessment of their involvement in the events he was investigating an impartial mind.

[144]

67 Against this background the Commissioner had spoken of "untruthful slurs" levelled against the Commission and its staff and "the many attacks" upon the integrity of the Commission, and had defended Mr Chesterman's modus operandi so far as the delivery of proofs of evidence was concerned. It was an unhappy incident, but could it be said to justify a finding of bias or the reasonable apprehension of bias against either of the Prosecutors? It would seem that the Commissioner regarded his Counsel Assisting as having been unfairly attacked by counsel for some of the material witnesses. We find it hard to see that any reasonable and fair minded person would have seen Mr Porter as having been included in the Commissioner's criticisms in view of the nature of his submission, although we note that he was not specifically excluded from them. If Mr Gunson was the subject of that criticism, and if that criticism was not merited by him, we cannot see, how it, even if without justification, in any way reflected a predisposition against Mr McQuestin. He was not involved and was never mentioned in the episode. We do not think that a fair minded person would reasonably see in this unhappy incident any more than an altercation between the legal personalities involved - a fleeting incident in which any partiality shown by the Commissioner was confined to a too ready defence of counsel assisting him against those counsel criticizing them. We are of the view that such a person would not see the Commissioner's response as reflecting any bias or predisposition against either Rouse or the two ProsecutOrs As the incident resulted from Mr Gray's decision to release the Rouse transcript, it might be thought that he might have been in the contemplation of the Commissioner when he made the remarks complained of. Even were this so, or perceived to be so, and even were the Commissioner's remarks unwarranted, they do not, however, demonstrate a likely lack of partiality in assessing, when the time in due course came, the evidence of Mr Gray's involvement, or absence of it, in the events under investigation. Even a display of unjustified irritation at the course adopted by him does not, in our view, amount to evidence justifying the conclusion of bias, actual or apprehended.

[189]

"Since this Royal Commission commenced to function, I and those who are working with me - not only Chesterman and Thompson, but others as well - have been subjected to a variety of criticism - both in public and in private, in the face of which we have deliberately preferred to maintain a dignified silence. So much of that criticism has been beneath contempt and not worthy of comment. The focal point for it has shifted from time to time.

Having regard to the treatment of yesterday's incident by some sections of the media and the fact that the person who provoked it, a solicitor of the Supreme Court of Tasmania, has seen fit to pursue it by speaking to the media outside of the hearing, I am not prepared to stand by any longer and allow good people to be subjected to an obviously orchestrated and plainly ruthless and co-ordinated campaign of denigration. I am not a fool or so naive as not to have expected, when I reluctantly agreed to accept this commission, that there would be a process of misinformation and baseless criticism. Therefore, it was critical for me and for the integrity of the Royal Commission to ensure that the right people were engaged to assist me. Chesterman and Thompson were deliberately selected because of their known probity and objective professionalism and because of their professional skills, but above all because of their widely recognised reputations for integrity and professional honesty.

The manner in which they approach an intensely sensitive issue in such a proper and purely professional way deserves credit rather than opprobrium. They were intent on pursuing, by only legitimate means, an attempt to discover the truth and that has to be the dominate pursuit of any Royal Commission. The type of approach made to Mr McQuestin's solicitor has happened before in other Royal Commissions and it will happen again, quite properly.

Given the known factual background to what occurred, the whole issue became a closed one before this Commission commenced its public hearing. Once the solicitor, so I am informed, indicated in general terms, a lack of response from his client, the issue was finalised. It was no longer regarded as relevant and became an irrelevancy well before this public hearing commenced. I will so regard it in the final analysis - as I said yesterday, I will make my own findings on all relevant issues by use only of appropriate criteria. Given the retraction made by Mr Gunson to Thompson yesterday outside of the hearing, there cannot have been any legitimate reason for raising it in the hearing. In the context in which it was raised and in the form in which it was raised, the true motive perhaps becomes painfully obvious.

I would prefer now to pursue the matters of evidence which have been arranged for today. Yes, continue to examine Mr Clark, please."

[190]

80 We think it is reasonable to draw the inference invited by the Prosecutors. Clearly the Commissioner was not present himself at the meeting in March and there is evidence that Mr Chesterman and Mr Thompson had the opportunity to meet with the Commissioner before he commenced the hearing some half hour after the usual starting time. The Commissioner's statement amounted to a clear rebuke of Mr Gunson and one which we find was accompanied by a number of unfair features. It seems clear that both the Commissioner and Mr Chesterman interpreted the question asked by Mr Gunson of his client as containing the implication that Counsel Assisting had invited Mr McQuestin to give false evidence or at least to change his evidence so as to implicate others, they not caring whether such changed evidence was true or false. In our view, the question asked contained no such implication. It is true it was an abbreviated version of the conversation in question which, while reflecting the substance of it, did not contain a preamble making it clear that Counsel Assisting sought a change from Mr McQuestin's private evidence because they did not believe that to be true. Nevertheless, if there was any ambiguity it was removed within minutes of the question being asked by Mr Gunson's clear statement that he was not suggesting any impropriety. It was not correct to say, the following morning, that Mr Gunson had made a retraction the previous day to Mr Thompson, for he had nothing to retract, and while he had confirmed, in response to Mr Thompson's intervention and in the presence of several media representatives, that at no time had it been suggested that Mr McQuestin should do other than give truthful evidence, his statement at the public hearing that he was not suggesting any impropriety made both that intervention by Mr Thompson and confirmation by himself unnecessary. In our view it was unfair of the Commissioner to suggest that the treatment of the incident by some sections of the media had been provoked by Mr Gunson or that he had seen fit to pursue it by speaking to the media outside of the hearing when it appears from the evidence before us that he spoke to the media at Mr Thompson's insistence and that what he said confirmed that he was not criticising Counsel Assisting the Commission.

[298]

137 In examination-in-chief Mr Chesterman asked Mr Gray what was said at the meeting between him and Mr Gray. Mr Batt's answer to the question was responsive but did not include the observation that Mr Gray was confident that he had advice that would enable him to secure another election. Mr Porter's fourth question in cross-examination was, "Do you recall any mention of the potential of a fresh election being made at the first meeting?" Mr Batt responded in accordance with the terms of his proof and added that in his view Mr Gray was so committed to the proposition he had the advice which would enable him to obtain another election that the possibility of there being a defector would have been foreign to his thinking. This was explored further by Mr Porter and Mr Batt elaborated on his view in terms favourable to Mr Gray. The complaint, as we understand it, is that Counsel Assisting the Commissioner failed to lead from Mr Batt evidence favourable to Mr Gray, a matter, which together with the other matters, would be likely to engender a reasonable suspicion of bias. There are several answers to this proposition. The first is that the Commissioner did not fail to lead the evidence at all. The witness did fail to give the evidence in response to an appropriate question in evidence-in-chief. The second is that by delivery of the proof prior to the evidence being given it would be clear to the fair minded bystander that counsel assisting the Commission did not intend to hide from the Commissioner the piece of evidence that in Mr Batt's opinion Mr Gray was confident he had the advice that would enable him to secure another election. Thirdly, there is no evidence to suggest that counsel assisting the Commission had any idea that Mr Batt would elaborate on his evidence in the manner that he did when cross-examined by Mr Porter. This complaint was first articulated by Mr Porter in a letter to the secretary to the Commission on 10 May 1991 and is answered by the secretary on 14 May 1991 in the acrimonious tone which by now, seemed to stamp much of the correspondence passing between officers of the Commission and counsel representing Mr Gray. The letter said in part:

[303]

139 Counsel for both Prosecutors argued that if the Court were not satisfied that any individual ground of bias had been established nonetheless it should have regard to the cumulative effect of such facts as we found proved and that on that basis, there was ample evidence that the fair minded observer might reasonably expect that the Commissioner might not resolve the questions before him with a fair and unprejudiced mind. We would first observe that the fair minded person referred to in The Queen v Watson; Ex parte Armstrong (supra), although not equipped with any legal or other specialist knowledge, is as well informed about the whole of the proceedings of the Royal Commission as is this Court. As to the level of sophistication of this observer see the comments of Kirby P in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at pp375-376, cited by Toohey J in Vakauta v Kelly (supra at p585). His knowledge does not come from media accounts but he is aware of those accounts, for they serve to explain some of the events that occurred in the proceedings. Understandably, the Royal Commission attracted extensive media coverage. Inherent in the business of reporting any current event for the media, is the tendency to dramatise and highlight single issues, often bestowing on them an urgency and importance they do not warrant with a view to captivating a potential audience. Hence, the vocabulary of the media is well stocked with words such as beleaguered, embattled, crisis, lash and hit. Words such as these used to report proceedings inquiring into allegations of bribery of a politician no doubt serve to inflame the minds of those whose only knowledge was derived from the media accounts. It is apparent that they did, at times, inflame the minds of counsel appearing before the Commission from time to time and consequently dictated their conduct in the Commission. It would also appear that on occasions, media reporting of the work of the Commission affected the Commissioner's actions and words. This is to be regretted for dispassionate scrutiny of the events often reveals a discrepancy between the facts and the reports. In result, the valuable role of the media in keeping a community informed became distorted on some occasions perhaps creating false impressions in the minds of fair minded but ill-informed bystanders.

At a glance

Court

Decision date

Before

Source

Judgment (305 paragraphs)

R v Carter; Ex parte Gray [1991] TASSC 97 (23 October 1991)

Parties

Legislation Cited (1)

Cases Cited (29)