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.

  1. 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.

  2. 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.

  3. 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.

  4. The committee was required to appoint counsel to assist it.

  5. Witnesses before the committee were to be examined by counsel assisting the committee, counsel for Mr Justice Murphy and counsel for other witnesses.

  6. Hearings of the committee were to be held in public unless the committee by absolute majority determined otherwise.

  7. The committee was to determine rules and procedures for the examination of witnesses before it, having regard to those followed by the courts.

  8. 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.

  9. 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 —

  1. 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

  2. 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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