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Tuesday, 2 October 1984
Page: 1032


Senator GARETH EVANS (Attorney-General)(4.10) —I say at the outset that the procedural difficulties that the Senate Select Committee on Allegations Concerning a Judge is now confronting and which it now places for resolution in the lap of the Senate are a classic demonstration of the unwisdom involved in the Senate trying to resolve a matter of this kind and this gravity before all the processes of the criminal law, which are far more appropriate, have been exhausted. That is a point that the Government and I have been making with a great deal of vigour over a long period and I simply make it again on this occasion without further elaboration. I believe everything we have seen today and everything in the way in which the Committee has been wrestling with these matters demonstrate the wisdom of the original course that was proposed.

Two of the four resolutions that are before us are contentious and I will concentrate my remarks upon those first two, which concern respectively the question of the rights of other witnesses to cross-examine Mr Justice Murphy if and when he chooses to give evidence and the question as to whether certain documentary evidence of Mr Justice Murphy ought to be made available to other witnesses in advance of their giving their evidence to the Committee. The first matter with regard to cross-examination has arisen due to differences of view which have been expressed by counsel in submissions to the Committee about the proper meaning and application of paragraph 12 of the existing terms of reference. I do not believe that the Senate, any more than the Committee, should endeavour to resolve this difference of view by elaborate questions as to interpretation of terms of reference, but should go straight to the basic questions of principle involved; namely, whether the Committee should be able to permit counsel for witnesses to cross-examine other witnesses and Mr Justice Lionel Murphy, in particular, should he give evidence. Certainly the Government' s view on this question is that counsel for witnesses should not be permitted to cross-examine the judge. The case, I believe, is very strong in relation to the judge and perhaps a little less strong so far as other witnesses are concerned. But certainly so far as the judge is concerned we believe that it is almost self -evidently strong.

There are a number of reasons for saying that. The first is that to allow such cross-examination obviously has the potential for unnecessarily prolonging the inquiry. This point was relied upon by the then Attorney-General, Senator Greenwood, QC, and the then Solicitor-General, Mr Ellicott, QC, in the paper on 'Parliamentary Committees Powers Over and Protection Afforded to Witnesses', which was tabled in 1972. Page 85 of that paper states:

We share the view often expressed that it is undesirable for witnesses to have the right to cross-examine other witnesses, either themselves or through their counsel. As a general rule we think this would unnecessarily prolong investigations and would tend to formalise them. On some occasions the witness is in a position where he is in a sense on trial, for example, a charge of contempt. On these and perhaps other occasions there may be good reason for the Committee allowing counsel for a witness to cross-examine other witnesses.

The terms of reference of the present Committee make it amply clear that the only person who is in a real sense on trial is Mr Justice Lionel Murphy. Certainly no other person in these proceedings can claim that role. The guidance provided by the Greenwood-Ellicott paper is therefore that other witnesses should not be given the right to cross-examine unless this is one of those ' other occasions' where there is good reason for allowing this to happen. The Government is certainly very firmly of the view that the present case is not one of those 'other occasions'-one of those exceptional situations in which cross- examination would be permissible. I point out that already under the terms of reference the judge and witnesses called by him may be cross-examined by counsel assisting, as set out in paragraph 12, and also by the two commissioners assisting, as set out in paragraph 10. They may, of course, be questioned as well by any member of the Committee. This should certainly provide ample opportunity for testing the evidence of the judge if he takes the witness box and of any witness as called by him. There is therefore no necessity on that ground of conferring any further right of cross-examination on counsel appearing for other witnesses.

There should not be any misunderstanding about the Government's position. We believe that Mr Justice Murphy should be subject to cross-examination if he gives evidence. Any witnesses he calls, equally, should be subject to cross- examination. However, that cross-examination should not extend to counsel for other witnesses. Apart from those sorts of considerations there are other more fundamental reasons why the Government has taken this position. One of the more fundamental reasons is that the character of this inquiry is vastly different from the normal kind of inquiry undertaken by parliamentary committees or even, for that matter, by royal commissions. This emerges clearly enough from the terms of reference of the Committee which indicate that the Committee's proceedings are to partake of a judicial character. This is further confirmed by the procedures and rules for the examination of witnesses which have already been adopted by the Committee, paragraph 2 of which states:

The Committee's inquiry should, in general, be conducted as a judicial proceeding . . .

That is in marked contradistinction to the obligations, for example, of a royal commission, not to mention the courts themselves. The second fundamental reason on which the Government relies is, of course, also the question of why a judicial approach that I have mentioned was readily approved by the Senate in the case of the present Committee. The reason is, of course, that the allegation made against Mr Justice Murphy as disclosed to us to date by the report of the earlier committee is an allegation of serious misconduct; so serious, in fact, as to amount to the offence, if sustained by the evidence, of attempting to pervert the course of justice, an offence under section 43 of the Commonwealth Crimes Act. We take it as an absolutely fundamental principle that proceedings of that character should be governed by the same principles that would apply in relation to criminal proceedings. We believe it would be a travesty of due process to follow any other course. It would be unthinkable to contemplate in criminal proceedings that any witness for the prosecution, however important his evidence might be and however much his own credit or reputation might be involved, would be allowed rights of cross-examination conducted by his own counsel.

As it is pointed out on pages 19 and 20 of the Greenwood-Ellicott paper, in civil and criminal proceedings in a court a witness as such has no rights of cross-examination in respect of witnesses who give evidence adverse to his. Certainly, a witness would have no rights in relation to cross-examination of a defendant in a criminal proceeding. There is an excellent reason for this. The procedures that we have in the courts have evolved over centuries and are crucial and necessary to ensure that persons who are at risk by the determination of the bodies in question are not unfairly prejudiced, overborne, oppressed or harassed in the conduct of their own defence. It is unfair for a defendant to be cross-examined by multiple witnesses in the circumstances that are here proposed. It does not happen, contrary to what Senator Durack said, in a criminal trial. A witness may be cross-examined by multiple defendants in a situation of a multiple defendant trial. I suppose there are circumstances in which a defendant may be cross-examined by counsel for co-defendants, where there are, again, multiple defendants in some sort of criminal conspiracy. In this case there is only one defendant in the box and all the principles and procedures of the criminal law shriek out against the legitimacy of allowing cross-examination under those circumstances.

The point that has been made most strongly in favour of allowing witnesses in this case to have a right to cross-examination is that somehow it is unfair to the witnesses themselves because their reputation and veracity, it is said, are on the line and the principles of natural justice, according to the way in which Senator Durack put it, ought to be equally applicable to the witnesses themselves. The argument does seem to be put on these terms rather than on the basis that otherwise the defendant will not be sufficiently cross-examined because, as I have already said, that is hardly a basis, that can withstand scrutiny given the number of people who already will have rights of cross- examination under the procedures that are presently set out. But in meeting the argument about the need to protect the interests of the other witnesses, I think it is important to bear very closely in mind the sorts of protections that are available to those other witnesses by virtue of the procedures presently embodied and adopted by the Committee in its procedures that it has made subject to resolution. It certainly does not follow that these other witnesses-Mr Briese and the others-are without any protection. As the Greenwood-Ellicott paper points out:

The protections afforded to witnesses in courts of law arise partly from the procedures adopted for the examination of witnesses and partly from the application of rules as to the form and content of questions and the admissibility of evidence.

It seems to me that these rules are already encompassed by paragraph 2 of the procedures and rules for the examination of witnesses which have been adopted by the Committee. In particular, paragraph 2 (a) provides:

The rules of evidence shall be applicable to the Committee's hearings;

Against that background we should look now at the sorts of protections that are available to witnesses. I think this point justifies some development, given the way in which it is so obviously central to the Opposition's position. The Greenwood-Ellicott paper points out that that protections is in certain circumstances given to witnesses from questions put in cross-examination which might injure their character. In applying this protection the courts have regard to the following considerations which are set out on page 20 of the Greenwood- Ellicott paper. They are as follows:

Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies.

Such questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree only the opinion of the court as to the credibility of the witness on the matter to which he testifies.

Such questions--

that is, questions made to a witness-

are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.

So in the very questions that can be put to a witness in the first place there are very solid, well entrenched and certainly applicable here ground rules as to what can and cannot be asked of the witness in question. Moreover, the courts also have power in certain circumstances to forbid questions or inquiries which they regard as indecent or scandalous, which are intended to insult or annoy or which are needlessly offensive in form. The paper goes on to point out that it will be seen therefore that the basic protections afforded to witnesses as distinct from parties in courts of law springs from the adoption in courts of procedures and rules designed to ensure that the issues will be tried without any unnecessary injury to the witness's reputation and without undue intrusion into the witness's privacy. The present Committee can properly be expected to adopt the same approach. In effect its terms of reference already direct it to do so.

I finally point out as far as this issue of protection for witnesses is concerned that under the procedures and rules that have been adopted by the Committee counsel for any witness, in addition to being able to ask supplementary non-leading questions of that witness after counsel assisting the Committee has sat down, may also re-examine that witness before counsel assisting the Committee does so. I also point out that at the conclusion of all the evidence counsel for a witness can make a closing address with the leave of the Committee. They are references to paragraphs 11, 14 (a) and 15 (a) of the procedures and rules that have been adopted.

Here the point is simply this: There are protections available for witnesses. They can be expected to be applied in this particular case. It cannot be a justification for abandoning the basic, traditional principles of criminal trials and procedures as are applicable to this particular matter that here we have witnesses of stature, witnesses of reputation, witnesses whose veracity and judgment will be in issue. It is often the case in criminal trials that witnesses of this kind are involved in the proceedings. It cannot be seriously suggested that in those circumstances the rules of evidence ought to be changed to allow them to be represented by counsel or for them to have rights of cross- examination under those circumstances. I repeat: The basic theme underlying our approach to this is that the proceedings we have here are indistinguishable in principle, and ought to be so regarded, from those of a criminal trial because the consequences are so grave.

The remaining matter which is contentious is the question of witnesses having access to certain documentary material, being first of all a written statement made by Mr Justice Murphy to the previous Committee, the Select Committee on the Conduct of a Judge, and, secondly, the transcript of oral submissions made before that Committee by counsel for Mr Justice Murphy and concerning the evidence of Mr Briese. It has been foreshadowed by the Opposition that the exclusion of the latter category of material will not now be pursued but it still wants witnesses to be able to see Mr Justice Murphy's written statement before those witnesses in fact give their evidence. As to the distinction which has been thus adopted by the Opposition, and I believe also the Australian Democrats, I must say that for the life of me I cannot see any relevant difference between the two classes of material, and I do not think Senator Durack was putting that point with any great vigour either. If there is a case for letting both classes of material in, that is one thing; if, there is, as I believe, a strong case for excluding both classes of material from being made available to witnesses before they give their evidence now, both classes of material should come out. It seems to me quite implausible to try to find some ground of distinction between the written statement and the submissions of counsel on Mr Justice Murphy's behalf.

I turn to the merits of this particular proposition. It may be that the inclusion of a provision such as paragraph 20 in the terms of reference, which does seem at the moment in the way it is drafted to require the production of all this material to all the witnesses concerned, was understandable enough at the time it went in. I think there was generally some expectation that it would expedite the present inquiry which would be in the public interest and also arguably very much in the interests of the judge himself. However I believe that insufficient attention was given at the time by everyone concerned, including myself, to the implications of this particular paragraph in these terms. There is a real question of principle that now has to be weighed against the competing question of expedition.

Essentially we are back to the same question of principle that was involved in dealing with the issue of cross-examination. Mr Justice Murphy and only Mr Justice Murphy is in the position of being in a real sense on trial in this particular Committee proceeding. No other witness and no other potential witness is in that position. On that basis we believe that the ground rules that ought to be applicable to him are as follows: Neither of the two particular documents referred to should be made available to Mr Briese or his counsel or to any other witness. It would be unthinkable, in my understanding, in judicial proceedings for such materials to be provided to a witness, as distinct from the prosecution of course which often has a proof of such evidence, before that witness has given his evidence.

As to other relevant documents, Mr Justice Murphy stands in a special position for reasons that are evident. Obviously he should be informed of any allegations made against him and the substance of the evidence in support of those allegations. This means that he should be given access to all relevant documents from the previous Committee. I do not understand there to be any great disagreement with that proposition. Equally there could be no objection, on the ground of the principles to which I have referred, to Mr Briese and his counsel having access to the transcript of Mr Briese's evidence before the previous Committee. Certainly the Government would advance no objection to that course and I do not understand anyone else would either. However when it comes to the witnesses being given advance notice of the submissions and the written evidence that has been put in by Mr Justice Murphy before they give their own evidence, with all that that implies about the capacity accordingly to adjust the terms of the witnesses' evidence to meet what is understood to be the line of reply, we believe it is quite unconscionable for the matter to proceed in the way that is proposed apparently by the Opposition and possibly-I hope not-by the Democrats. I conclude on this note: The Government believes that it is of the greatest importance to ensure that the safeguards of our ordinary judicial processes are applied to the proceedings of the Senate Committee. Only in this way can we provide a sound and satisfactory basis for that Committee to complete its very difficult task.

It has taken Anglo-Saxon law and in particular criminal law some seven centuries to resolve the kinds of procedural difficulties that this Committee, no doubt with the best will in the world, is trying to resolve in seven days or so. It is true that the present proceedings are not a criminal trial properly so called, but in terms of the stakes for those involved in these proceedings it is the closest thing to a criminal trial that this Parliament is ever likely to see . I believe that if the Opposition, and possibly the Australian Democrats, persist with their opposition or pursue an opposition to the first two motions that are now before the Senate, they will be making a mistake and the Senate will be making a mistake of a quite fundamental kind. We will be treating and prejudicing the rights of individual defendants or individuals who are in the same practical position as criminal defendants in a way that would be unthinkable in the criminal process. I believe that if that is the course which is followed by the Senate on this occasion the Senate will establish a precedent that it will as an institution live to regret quite profoundly.