Re Harvey Holland Cheatle and Beryl Sturdy v Brenton Wayne Davey and KJ Prescott SM [1989] FCA 279 (27 July 1989)

FEDERAL COURT OF AUSTRALIA

Re: HARVEY HOLLAND CHEATLE and BERYL STURDY
And: BRENTON WAYNE DAVEY and K.J. PRESCOTT S.M.
No. G97 of 1989
FED No. 543
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Administrative Law - Judicial review - magistrate making decision during committal hearing - refusal to disqualify himself for apparent bias - review of suppression order - magistrate requesting court staff to notify news media - request made under misapprehension of law as to duty of the court - whether apparent bias - whether breach of rules of natural justice - whether power to make order for review should be exercised.

Evidence Act 1929 (S.A.) s.69a

Evidence Act Amendment Act, 1989 (S.A.)

HEARING

ADELAIDE
27:7:1989

ORDER

The application be dismissed with costs.

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

DECISION

I do not propose to reserve my judgment. This is an application under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision of the second respondent Mr K.J. Prescott SM made on 18 July 1989 whereby he declined an application to disqualify himself from presiding over a preliminary hearing in the Adelaide Magistrates' Court between the first respondent who was the informant and the applicants who were the defendants. The applicants stood charged on information with an offence against s.86A of the Crimes Act 1914 (Cth). Mr Prescott had embarked upon the preliminary hearing on 28 February 1989. It had then proceeded for 3-1/2 days before being adjourned to 17 July 1989. Certain events occurred on that day which are central to the decision now under challenge which was made on the following morning, on 18 July 1989.

2. Shortly after the charges were first laid, the applicants applied under s.69a of the Evidence Act 1929 (S.A.) as it then stood, for an order suppressing from publication their names and any information which would tend to identify them. That application was heard by Mr Harris SM, and granted. At that time s.69a empowered a court in South Australia where it considered "it desirable in the interests of the administration of justice, or in order to prevent undue hardship to any person . . ." to exercise the powers contained in that section which included the power to forbid the publication of the name of any party or witness. The order was based on the ground that the publication of the applicants' names would cause them undue hardship. The legislative policy of an earlier but similar section had been considered by the Full Court of South Australia in G. v. The Queen (1984) 35 SASR 349. At p 353 the Chief Justice observed,

". . . there is a legislative policy that there be
freedom to publish the name unless one of the
grounds mentioned in (s.69a) exists and the Court
in the exercise of its powers under that section
forbids publication."

It will be noted that it was not part of the legislative policy that there be a general right to publish the name of a party involved in proceedings.

3. Before the preliminary hearing against the applicants resumed on 17 July 1989, there had been major amendment to the Evidence Act in relation to the suppression of names. Section 69a had been repealed and new provisions substituted by the Evidence Act Amendment Act, 1989 (S.A.). The amendment changed the legislative policy regarding the publication of the name of a party in proceedings before a court. In particular, sub-section 69a(1) was amended so as to remove the power to make an order where publication might cause undue hardship to a party. The relevant provisions of s.69a now read :

"(1) Where a court is satisfied that a suppression order
should be made -
(a) to prevent prejudice to the proper administration
of justice;
or
(b) to prevent undue hardship -
(i) to a victim of crime;
or
(ii) to a witness or potential witness in civil
or criminal proceedings who is not a party
to those proceedings,
the court may, subject to this section, make such an
order.
(2) Where the question of making a suppression order
(other than an interim suppression order) is under
consideration by a court -
(a) the public interest in publication of information
related to court proceedings, and the consequential
right of the news media to public such information,
must be recognized as considerations of substantial
weight;
and
(b) the court may only make the order if satisfied that
the prejudice to the proper administration of
justice, or the undue hardship, that would occur if
the order were not made should be accorded greater
weight than the considerations referred to above.
(3) . . . (not relevant)
(4) . . . (not relevant)
(5) Where an application is made to a court for a
suppression order -
(a) any of the following persons, namely:
(i) the applicant for the suppression order;
(ii) a party to the proceedings in which the
suppression order is sought;
(iii) a representative of a newspaper or a radio
or television station;
(iv) any person who has, in the opinion of the
court, a proper interest in the question of
whether a suppression order should be made,
is entitled to make submissions to the court on the
application and may, by leave of the court, call or
give evidence in support of those submissions;
(b) the court may (but is not obliged to) delay
determining the application to make possible or
facilitate non-party intervention in the
proceedings under paragraph (a) (iii) or (iv).
(6) A suppression order may be varied or revoked by the
court by which it was made, on the application of any
of the persons entitled to make submissions by virtue
of subsection (5)(a).
(7) . . . (not relevant)
(8) An appeal lies against -
(a) a suppression order or a decision by a court not to
make a suppression order;
(b) the variation or revocation of a suppression order
or a decision by a court not to vary or revoke a
suppression order.
(9) Any of the following persons is entitled to
institute, or to be heard on, an appeal:
(a) where an application for a suppression order was
made to the primary court - the applicant;
(b) a party to the proceedings in which the order or
decision subject to appeal was made;
(c) a representative of a newspaper or a radio or
television station;
(d) a person who had, in the opinion of the primary
court, a proper interest in the question of whether
a suppression order should be made;
or
(e) a person who did not appear before the primary
court but has, in the opinion of the appellate
court, a proper interest in the subject matter of
the appeal or proposed appeal,
but a person who did not appear before the primary
court may only bring an appeal, or be heard on an
appeal, by leave of the appellate court (which will be
granted if the appellate court is satisfied that that
person's failure to appear before the primary court is
not attributable to a lack of proper diligence).
(10) . . . (not relevant)
(11) . . . (not relevant)
(12) . . . (not relevant)
(13) . . . (not relevant)
(14) . . . (not relevant)"

4. The amended s.69a was considered by the Full Court of South Australia in Re : F, (Judgment 5 July 1989 as yet unreported). In the course of the principal judgment of the Court King C.J. said (at p 4):

"The power of a court to make a suppression order
conferred by section 69a of the Evidence Act is,
in my opinion, a mere procedural incident of the
legal proceedings in the course of which the order
is made. No right is conferred upon a person who
is a potential subject of a suppression order,
except a right to apply to the court and to make
submissions; see section 69a(3)(b) as it stood
prior to the 1989 amendment. The making of an
order confers no additional right upon the person
who is the subject of the order, except the right
to have the order observed while it remains in
force. A suppression order is of its nature an
order operating pro tem and may be varied or
revoked at any time by the court by which it was
made; see section 69a(4) as it stood prior to the
amendment and section 69a(6) as it presently
stands. When a suppression order comes up for
review by the court on application for its
continuation, variation or revocation, the court
is engaged upon the determination of a procedural
matter related to the proceedings in which it
arises. The law to be applied is therefore the
law in force at the date of the determination of
the application."

It follows from this passage that if on 17 July 1989 it was appropriate for Mr Prescott to review the suppression order previously made, the amended legislation was the law to be applied. Later in Re : F, at p 6, the Chief Justice observed, when speaking of the amended legislation:

". . . there is a clear statutory recognition of the
right of the public to information and the right
of the news media to publish and a person is not
to be permitted to frustrate these rights by the
mere process of lodging an appeal."

This passage reflects the major change which has been brought about by the amendment. Section 69a now expressly recognizes in para.69a(2)(a) "the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information".

5. It is common ground that Mr Prescott was aware of the amending legislation and the decision in Re : F when the proceedings resumed before him on 17 July 1989. It is also common ground that in the course of the morning's hearing he inquired whether, in light of the amendment to s.69a, either party wished to make an application to vary the previous suppression order which had been expressed to remain in force until further order.

6. Counsel for the informant, and for the defendants, each informed the learned special magistrate that he did not wish to make any application to vary the order. Mr Prescott then said words to the effect: "We will discuss it later in the day", to which neither counsel made any reply. Apparently there was no further discussion about the matter before the luncheon adjournment occurred.

7. When the hearing resumed after lunch, two people, Messrs Hull and Hunter, announced their appearance, the former representing the ABC radio, and the latter, a television station, Channel 7. Those gentlemen sought to appear pursuant to the right given to representatives of the media in sub-para.69a(5)(a)(iii). Each of them made submissions that the previous suppression order should be lifted.

8. The applicants, by their counsel, were offered the opportunity to respond, which they did. The learned special magistrate then revoked the previous order relying upon the changed policy of the amended legislation. A fresh application by the applicants to suppress their names and information tending to identify them was refused, although new orders were made suppressing certain other information. Although it is not relevant to the issues before this Court, but to complete the history, an application was then made for an order of an interim nature suppressing from publication the parties' names pending an appeal to the Supreme Court, and that application was refused. Later in the day an application was made to a judge of the Supreme Court who first granted an interim order suppressing from publication the applicants' names, and later made an order continuing the suppression pending the hearing of an appeal from the orders of Mr Prescott. That appeal was promptly heard, and was dismissed on 26 July 1989.

9. To return to the events before Mr Prescott, on the morning of 18 July 1989 the applicants made the application previously mentioned. Mr Prescott was asked to disqualify himself on the ground of apparent bias. The fact relied on which was said to give rise to the appearance of bias was that Mr Prescott had requested a member of the court staff to notify representatives of the media during the luncheon adjournment on 17 July 1989 that the question of the suppression order previously made would be reconsidered when the hearing resumed. The learned special magistrate confirmed in the presence of the parties and their counsel that he had so instructed a member of the court staff during the luncheon adjournment. It is appropriate that I set out the actual explanation which he later recorded in his reasons for his decision not to disqualify himself. He said, after referring to the judgment of the Full Court in Re : F :

". . . I raised with counsel the fact that even though
there might be no application by counsel for a
variation or alteration to the order that it
seemed to me, having regard to the remarks of the
Chief Justice that these matters might properly be
said to be reassessed or capable, as I said
yesterday, capable of being reassessed at every
time they were before the court.
Having raised those matters prior to the luncheon
adjournment I spoke to a member of the court staff
during the luncheon adjournment and suggested to
that person that representatives of the media in
fact be contacted so that they would be aware that
this issue would be raised and that they would be
then able to make an application of the type that
this legislation now gives a right to make. That
was apparently done and Mr Hull and Mr Hunter
attended yesterday afternoon. I heard their
submissions yesterday afternoon and at the
conclusion of the matters I made various orders."

The learned special magistrate then proceeded to give his ruling:

"Mr Martin now asks that in the light of my conduct
in advising a member of the court staff in making
a request that members of the media be contacted
to be enabled to make such applications as they
are entitled as a matter of law now to make that
in those circumstances that the question of bias
arises in connection with the conduct of these
proceedings. By bias, of course, Mr Martin means
apparent bias and not actual bias. Mr Martin's
grounds for this is this, that counsel was not
informed of the fact that the media was to be
advised and secondly that at the time that I
instructed the court officer to transmit the
information that there was at that time no actual
application before the court. In my view the
test to be applied to the matter raised by Mr
Martin, which is opposed by Mr Niemann, is whether
any right thinking bystander would have the view
that the issue of bias was properly raised.
The issues of suppression are separate and
distinct, of course, from the other function that
any judicial officer conducting a preliminary
hearing must deal with at the end of all of the
evidence and perhaps at times during the evidence
which will be necessary for me to determine
whether there is as a matter of law a case to
answer. In my opinion the conduct involved in
following as I have indicated today to Mr Martin,
the course suggested by Justice Prior on a
previous occasion under the old legislation to
enable members of the media to attend and to make
such submissions as they are lawfully and now
entitled to make would not cause a right thinking
bystander to come to the view that the course of
this matter was one in which the presiding officer
could be said to be bias.
It is for these reasons that I decline the
application by Mr Martin to disqualify myself."

It is that decision which the applicants now seek to have reviewed.

10. The grounds of the application for review when read together suggest that the principal ground is that the learned special magistrate erred in law by applying the wrong test to determine the question of apparent bias. It is said in particular that he failed to find that the applicants entertained a reasonable apprehension that the second respondent might not bring an impartial and unprejudiced mind to the resolution of the question being heard by him, and in holding that the test to be applied is whether any right-thinking bystander would have the view that the issue of bias was properly raised. In short, the grounds appeared to urge that the relevant test which should have been applied was a subjective one which has regard to the beliefs of the particular party or parties as to the possibility of bias on the part of the judicial officer concerned, not an objective one.

11. However, the argument presented today, which I think is open upon a charitable reading of the application, urges two different grounds. Mr Martin QC, counsel for the applicants, accepts that the relevant test for apparent bias is an objective one, but firstly he submits that the learned special magistrate nevertheless applied a wrong test in law. Secondly, he submits that even if he applied the right test in law there was inherent in what occurred on 17 July 1989 a serious breach of the rules of natural justice in that the applicants were not informed by the learned special magistrate that he intended to have the media contacted, and they were not given the opportunity to make any submissions about that being done. That serious breach of the rules of natural justice was itself sufficient, even under the right-thinking bystander test, to give rise to an apprehension of bias.

12. Mr Martin has advanced a novel proposition as to the form of the objective test which should be applied to determine apparent bias. His submissions accept the well recognized passage from the joint judgment of the majority of the High Court in the leading case of The Queen v. Watson; Ex Parte Armstrong [1976] HCA 39; (1976) 136 CLR, 248 at 262, which I read:

"The view that a judge should not sit to hear a
case if in all the circumstances the parties or
the public might reasonably suspect that he was
not unprejudiced and impartial, and that if a
judge does sit in those circumstances prohibition
will lie, is not only supported by the balance of
authority as it now stands but is correct in
principle."

Mr Martin acknowledged the emphasis which must be attached to the words "might reasonably suspect" and to the notion of reasonableness; however, he sought to draw a distinction between the parties on the one hand, and the public on the other, and to suggest that there is a distinction between the two. On the one hand, he argues, the public might apprehend no reason to suspect bias on a given set of facts, whereas on the same facts the parties, being closer to the dust of the conflict, might do so. It was said that the magistrate erred in applying the test of a right-thinking bystander because that failed to have regard to what might be the apprehension of a right-thinking litigant.

13. In my view there is no distinction of this kind to be drawn. That is illustrated by passages which follow shortly after the one just cited in the judgment of the majority of the court in The Queen v. Watson ; Ex Parte Armstrong, where at p 263, it is said:

"If fair-minded people reasonably apprehend or
suspect that the tribunal has prejudged the case,
they cannot have confidence in the decision."

and at p 264 where it is said:

"The question is not whether there was a real
likelihood that Watson J. was biased. The
question is whether it has been established that
it might reasonably be suspected by fair-minded
persons that the learned judge might not resolve
the questions before him with a fair and
unprejudiced mind".

14. There is no reference in that formulation of the test to the parties as people whose reasonable apprehensions might differ from the reasonable apprehensions of fair-minded people generally. In my view, the test applied by the learned special magistrate which referred to "any right thinking bystander" was correct. (See also R. v. Judge Russell, Ex Parte Reid (1984) 35 SASR 417 per Walters J. at 422, with whom King CJ agreed; and R. v. Maurice & Ors; Ex Parte Attorney-General (NT) & Anor (1987) 73 ALR 123 at 145). The test which must be applied in this case is whether a fair-minded person, be that person a party or merely a member of the public, would reasonably apprehend or suspect that the tribunal might be biased by reason of what had happened.

15. It is convenient now to look at the allegation of the breach of the rules of natural justice. It seems to have been the magistrate's view that the amended s.69a not only gave a right to the news media to publish information related to court proceedings, but imposed a corresponding duty on the court to ensure that the news media were aware of the proceedings so that representatives of the news media might exercise a right to apply to have any existing suppression order lifted.

16. In my view, that overstates the nature of the rights which the legislation intends to give in respect of the publication of information related to court proceedings. It will be noted that sub.s.69a(5), whilst giving various classes of people the right to make submissions, and the court the power to delay determining an application for suppression, requires that there first be an application to invoke those rights and that power. In the present case there was no application before his Honour to invoke sub.s.69a(5). Under sub.s.69a(6) an existing order may be varied or revoked by the Court by which it was made on the application of any of the persons entitled to make submissions by virtue of sub.s.5(a). That sub-section would give standing in such a case to a representative of the news media to appear and apply for variation or revocation of an existing order, but I do not think that the section required the learned special magistrate to actively bring the matter to the attention of the press. It would have been better, in my view, had he not taken that active role. In a sense it is correct to say that there has been a breach of the rules of natural justice because the section anticipates that before the court exercises the powers which the section gives there will be an application either by a party under sub.s.69a(5) or by any of the persons who may make application under sub.s.69a(6).

17. At the luncheon adjournment there was no application from anybody to vary or revoke the earlier order and I think the learned special magistrate should therefore have raised the matter of contacting the news media first with the parties and given them the opportunity to comment upon any further action he thought was appropriate. His failure to do so I would characterise as a technical failure to comply with the rules of natural justice. I refer to the failure as technical, because even if the magistrate had informed the parties what he proposed to do it is difficult to see how the events which followed would have been any different. Furthermore the news media may have appeared sooner or later during the hearing and made application under sub.s.69a(6). However, even treating the failure to forewarn the parties of the proposal to contact the news media as a breach of the rules of natural justice, it is still necessary to consider whether that breach is such that it would create in the mind of a right-thinking bystander a reasonable apprehension of prejudice.

18. A reasonable party or a reasonable member of the public would in considering the facts that have happened, take into account all information that is available. In this case, part of that information includes the explanation which the learned special magistrate gave as to the reason why he took the step which he did. He made it clear in his reasons that he considered he was following a course which had been suggested on an earlier occasion by Prior J. under the repealed s.69a, which was to bring to the attention of the members of the news media the fact that there was a matter upon which an application could be made. It is common ground between the parties that the decision of Prior J. to which the learned special magistrate was making reference was In Re Prosecutions Under The Controlled Substances Act (No. 1), an unreported judgment delivered on 27 May 1987. At p 15 of the judgment his Honour said:

"Whatever else might be said, applications for
suppression orders should not be made in the dark.
Representatives of the media are entitled to be
present and heard on any such applications."

19. I do not think that Prior J. intended by this statement that the courts were to undertake the task of advising the media of matters that were then before the court if the media were not otherwise represented so as to be heard on applications of the kind in question. The learned special magistrate also seems to have interpreted the passage earlier cited from Re : F, that "A suppression order is of its nature an order operating pro tem and may be varied or revoked at any time by the court by which it was made", as indicating that the court could proceed of its own motion. That clearly is not what is contemplated by sub.ss.69a(5) and (6). It is clear, however, from what the learned special magistrate has said that he has misconstrued the law in those respects. In an apparently conscientious effort to apply the law, as he understood it to be, he thought it proper, indeed necessary, to have representatives of the news media informed of the matter before him so that the righs given to them by the legislation could be fully exercised.

20. In my view, any right-thinking person would have no reason to have a suspicion of bias on behalf of a judicial officer who made a mistake of law of that kind once the fact of the mistake had been made clear, as it was by this magistrate in his reasons. In my view, there was no ground disclosed to the magistrate which should have led him to disqualify himself, nor do I think that the information before this court indicates any ground upon which it could now be held that a fair-minded person would reasonably apprehend or suspect that the tribunal has prejudged the case or otherwise is biased against the applicants.

21. By paragraph 5(1)(a) of the Administrative Decisions (Judicial Review) Act a person who is aggrieved by a decision may apply to the Court for an order for review of a decision of an administrative character on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision.

22. The breach of the rules of natural justice which arose here did not go directly to the decision under challenge, but as I commented earlier, the way in which the application has been argued lumps together in an inseparable way the breach of the rules of natural justice and the reason for the alleged apprehension of bias. I am prepared to assume that the jurisdictional ground under para.5(1)(a) for the exercise of power under the Administrative Decisions (Judicial Review) Act has been made out by the applicants. If that is so, the court is vested with a discretionary power under s.16 to make an order of the kind sought by the applicants to prohibit Mr Prescott from continuing to hear the matter. However, in relation to a preliminary hearing that is a power which should only be exercised sparingly and in exceptional cases. It is appropriate to read the remarks of the High Court in refusing an application for special leave to appeal in the matter of Verecker, Swansson & Ors v. O'Donovan on 18 March 1988, which are noted in (1988) 6 Legal Reporter SL p 3. The Chief Justice said:

"It would require a most exceptional case for this
Court to grant special leave to appeal from a
decision of the Federal Court reviewing a decision
of a magistrate to continue committal proceedings.
The undesirability of fragmenting the criminal
process is so powerful a consideration that it
requires no elaboration by us. Despite the
arguments advanced by Mr Hughes of Queen's
Counsel, we do not consider that the features of
the present case are such that the advantages of
intervention by this Court, at this early stage of
the proceedings, outweigh the desirability of the
matter proceeding in the ordinary way.
We would add that we are by no means convinced
that the Federal Court has the jurisdiction which
it claimed to exercise in the present case and we
would emphasize what the learned judges of the
Federal Court have already pointed out, that if
that court has the jurisdiction, it is a
jurisdiction to be exercised very sparingly and in
most exceptional cases only."

23. Sitting as a single judge, I must assume that the jurisdiction exists. I am bound by the authority of Lamb v. Moss & Anor [1983] FCA 254; (1983) 76 FLR 296. But in my view, in the present case it would be quite inappropriate to exercise the jurisdiction. The departure from strict adherence to the procedural formalities was of a technical nature. I have already expressed my view that it is not one that could reasonably give rise to an apprehension of bias by a fair-minded person. The learned special magistrate made a mistake of law in his interpretation of the rights of the news media and the duties of the court. He has indicated to the parties his line of reasoning so as to illustrate precisely why he did what he did and in turn to illustrate that in so acting he has acted under a mistaken impression of the law. I think it was a technical mistake. It was one that is understandable on the authorities that were before him. It is one that any reasonable person would understand. It was not even a mistake of law that goes to the issues that will arise for his decision in relation to committal or otherwise of the applicants.

24. In my opinion, the application for review should be dismissed with costs.