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Chapter 20 - Relations with the judiciary
The second Senate committee
With the Opposition and the Democrats holding the majority in the
Senate, and able to make their views prevail there, it was inevitable that a
further inquiry would take place.
It was expected that the second inquiry would be conducted as a formal
hearing of the evidence relating to the matter raised by Mr Briese. The idea that
there should be some non‑partisan and independent body to conduct the
inquiry was again mooted. The government was adamant that it would not appoint
a royal commission, but proposed that the Director of Public Prosecutions
consider the evidence. Attention was directed to the possibility of the Senate
appointing some non‑political person, such as a former judge, or a panel
of former judges, to conduct the inquiry. The term “parliamentary commission”
came into use to describe such a tribunal. There was a
discussion on the question of whether the Senate had the power to appoint
someone other than a committee of its own members to conduct an inquiry on its
behalf, the crucial component of this question being the ability to confer upon
someone other than a committee the power to compel evidence (see Chapter 2,
Parliamentary Privilege, under Power to conduct inquiries). There are virtually
no precedents or authorities on this matter, and the debate largely rested on
reasoning from first principle. It was argued that there was nothing to prevent
the Senate from delegating its powers to someone other than its own members,
but if the powers of the proposed tribunal were challenged before the High
Court no‑one could be certain of the result. For this reason another idea
came to the fore, that of a non‑political tribunal operating under the
“umbrella” of a Senate committee. In other words, the Senate would delegate its
powers to a committee, but the committee would have attached to it independent
commissioners, who would make their own findings on the evidence and
communicate those findings to the Senate through the committee. This concept
originated in a paper on the question of the appointment of commissioners by
the Senate, and was the one which was eventually adopted.
The Senate therefore established on 6 September 1984 a second select
committee, again on an Opposition motion and against the wishes of the
government.
The Senate also agreed, by the Democrats voting with the Government, to
the suggestion of the Government that the evidence be referred to the Director
of Public Prosecutions. That independent statutory officer, however, declined
to consider the matter until the second committee had reported. The Senate
therefore was compelled to rescind the resolution referring the evidence to
him.
The second committee was to inquire only into the matters raised by Mr Briese. It was called the
Select Committee on Allegations Concerning a Judge, and it was designed to
conduct a formal hearing of the evidence relating to that matter. The resolution
appointing the committee was complex, amounting to some 23 substantial
paragraphs. The most interesting features of the resolution were as follows.
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The
committee was to make findings of fact upon the allegations of Mr Briese, but was also to report
on whether Mr Justice Murphy engaged in conduct which could justify his removal.
Initially it was suggested that the committee should simply pass on the
findings of the commissioners without comment, but this was thought to be
unnecessarily risky of challenge in the courts, so the committee was empowered
to make its own report.
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The
committee was to report whether there was misbehaviour in accordance with the
two different interpretations of misbehaviour, and whether the misbehaviour was
proved in accordance with the two different standards of proof.
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Two
commissioners were to be appointed by the Senate to assist the committee. Two
retired Supreme Court judges were appointed by subsequent resolution. The
commissioners had the right to participate in the committee’s deliberations, to
examine witnesses and to recommend to the committee that particular witnesses
be summoned. The commissioners were to provide the committee with their written
advices on the matters upon which the committee was to report, and the
committee was required to include the commissioners’ advices in its report to
the Senate.
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The
committee was required to appoint counsel to assist it.
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Witnesses
before the committee were to be examined by counsel assisting the committee,
counsel for Mr Justice Murphy and counsel for other witnesses.
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Hearings
of the committee were to be held in public unless the committee by absolute
majority determined otherwise.
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The
committee was to determine rules and procedures for the examination of
witnesses before it, having regard to those followed by the courts.
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Mr Justice Murphy was given the
rights of an accused person in a criminal trial, with one modification. All
evidence was to be taken in the presence of his counsel, and he was not to be
summoned to give evidence but was to be invited to do so when all the other
evidence had been heard. If he chose to give evidence, however, he was to be
subject to examination by counsel for the committee and counsel for other
witnesses. This raised the possibility of his being cross‑examined by
more than one party if he gave evidence, and his counsel objected to this. The committee,
while in the process of determining its procedures for the examination of
witnesses, asked the Senate to abandon this rule, but the Senate declined to do
so. It was clear that Mr Briese and any other witnesses would be subjected to rigorous
examination by the judge’s counsel, and it was intended that those witnesses
should have the additional protection afforded by their counsel being able to
cross‑examine the judge if he gave evidence.
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The
committee, commissioners and counsel appearing before the committee were given
access to the documents and evidence of the previous committee, and were at
liberty to refer to those documents and evidence in the public proceedings. The
committee subsequently persuaded the Senate to restrict this right of access to
counsel for the judge and counsel for Mr Briese, and submissions made by the judge’s counsel to the
first committee were excluded from the right of access, so that witnesses would
not be forewarned of the line of cross‑examination on behalf of the judge.
In determining its rules and procedures for the examination of
witnesses, the committee made the important determinations that it would
formulate a statement of the allegation against the judge, that it would follow
judicial proceedings as closely as possible, that it would observe the rules of
evidence and would hear only evidence admissible in court proceedings. These
decisions led to one significant development. Part of Mr Briese’s evidence before
the first committee was inadmissible. Mr Briese had stated his belief that Mr Justice Murphy, Mr Ryan and Mr Briese’s predecessor as
chief magistrate, Mr M. F. Farquhar, were parties to a criminal conspiracy apparently having as one of its
aims the improper influencing of cases before the Magistrates Court of New
South Wales. This allegation did not appear in Mr Briese’s evidence in chief before the second
committee, but counsel for Mr Justice Murphy, in accordance with the provision in the resolution
already mentioned, chose to make it a basis of his cross‑examination, and
it was thereby made public. The committee reserved the right to hear
inadmissible evidence, but did not in fact do so except where such evidence
emerged as a result of cross‑examination.
At one stage the committee made an order prohibiting the publication of
the names of certain persons mentioned in Mr Briese’s evidence, including Mr
Farquhar against whom criminal proceedings were then in train, but was forced
to rescind the order, largely because of speculation as to the identity of the
unnamed persons.
The proceedings of the committee departed from parliamentary norms in
many other ways. Counsel assisting the committee made recommendations to the
commissioners as to witnesses to be brought before the committee, on the basis
of preliminary statements taken from those witnesses. The commissioners then
advised the committee and their advice was invariably accepted. The members
refrained from looking at the preliminary statements by witnesses, and the
members and the commissioners refrained from exercising their right of access
to the documents and evidence of the previous committee, except as necessary in
the course of the examination of witnesses.
Witnesses were taken through their evidence in chief by counsel
assisting and were then cross‑examined by counsel for Mr Justice Murphy and counsel for
witnesses. The committee limited cross‑examination by counsel for
witnesses to matters relevant to the interests of those witnesses. Counsel also
made submissions on law and on the evidence. When questions of law or procedure
were raised in the hearings, the commissioners publicly advised the committee,
which invariably accepted the advice.
When the committee was established it was thought that the only
evidence to be heard would be that of Mr Briese. It happened, however, that
there were several witnesses able to give evidence relevant to the judge’s
intention in his conversations with Mr Briese, and ten witnesses were heard. Of
particular significance was the evidence of a judge of the District Court of
New South Wales, Judge P. Flannery, who had tried Mr Ryan. This evidence was crucial in the assessment of Mr
Justice Murphy’s intention. Under cross‑examination by counsel for Mr
Justice Murphy, Judge Flannery stated that he believed that conversations he
had had with Mr Justice Murphy represented an attempt by Mr Justice Murphy
improperly to influence the trial.
Mr Briese was subject to hostile examination from two quarters. His
statement to the first committee provided Mr Farquhar’s counsel with grounds
for extensive examination. The former chief magistrate was then heard and was
subject to cross‑examination by counsel for Mr Briese. The witnesses
heard included two other judges of New South Wales courts and Mr Ryan.
Mr Justice Murphy again declined to give evidence when invited to do
so. His counsel made a statement before the committee of his reasons for this
decision, the principal reason being that a general election was about to be
held and the Senate as then constituted could not and should not take any
further action in relation to him.
During the hearings of the committee the then Premier of New South
Wales, Mr Wran, made comments on the evidence of Mr Briese which could
have been interpreted as threats to him, as his reappointment to the
Magistrates Bench was then under consideration following a restructuring of the
court. These comments caused the Senate to pass the following resolution:
That the Senate —
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reaffirms the long‑established
principle that it is a serious contempt for any person to attempt to deter or
hinder any witness from giving evidence before the Senate or a Senate
committee, or to improperly influence a witness in respect of such evidence;
and
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warns all persons against
taking any action which might amount to attempting to improperly influence a
witness in respect of such evidence. (13/9/1984, J.1129)
This resolution was adopted by the committee for itself. The committee
also felt constrained to correct a federal minister, who was later the Attorney‑General,
and who made comments critical of the committee’s proceedings.
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