-v-
ATTORNEY-GENERAL
(NO. 1)
n>
High
Court of Solomon Islands
(Daly CJ)
Civil Case No. 87 of 1983
Order
made 15th September 1983
Reasons given 21st September 1983
Practice
� disclosure of documents � public interest privilege � claims by
minister � court�s duty on claim made � s.26(1)
Crown Proceedings Act
(Cap 7).
Facts:
The
Applicant was subject to deportation proceedings. On 13th, 17th,
20th and 24th August 1983 proceedings were held before
a magistrate for the Applicant to show cause, as required by a notice served
under
section 5(1) of the Deportation Act 1978, why a deportation order
should not be made against him. The magistrate, as required
by statute, made
a report to the Minister of Police and Justice. The Minister on 12th
September 1983 made a deportation order. The Applicant brought proceedings
for certiorari to quash the order and sought
disclosure of the report of the
Magistrate. The Minister opposed disclosure claiming �crown privilege�.
Held:
1. A
claim of public interest privilege required the court to hold the balance
between the public interest, as expressed
by a minister, in withholding
certain documents and the public interest in the proper administration of
justice. (Conway v Rimmer (1969) 1 All ER 874 followed).
2.
In order to assess the matter the court may look at the documents privately.
3.
Having considered the document and the reasons given for opposing disclosure
the Court would order disclosure of the
report.
Other
cases considered:
Science
Research Council �v- Nasse [1979] UKHL 9; (1979) 3 WLR 762
For
Applicant: A Nori
For Respondent: J Apaniai
Daly
CJ: These are
proceedings for an order for certiorari in which, at this stage, an order of
disclosure is sought by the Applicant
(Gregory Lopez) against the Crown.
The
background to the present application can be shortly stated. The Applicant
was and is subject to deportation proceedings.
On 13th, 17th,
20th and 24th August 1983 proceedings were held before
a magistrate as a result of a notice served on the Applicant to show cause
why
a deportation order should not be made against him. This notice was
served under section 5(1) of the Deportation Act 1978 (�the
Act�). As
required by section 5(6) of the Act the magistrate, after considering the
evidence adduced before him, made a
report (�the report�) to the
Minister of Police and Justice �setting out his findings of fact and his
conclusion on any
questions of law involved�.
Subsequently
a deportation order was in fact made against the Applicant on the 12th
September, 1983. The Applicant seeks to challenge that order by way of
proceedings for an order of certiorari in this Court.
The Applicant also
applies for an order for discovery of the report to him. This is opposed by
the Respondent who makes
a claim of what used to be called �Crown
privilege� in relation to state documents but is perhaps better described
as �public
interest privilege� in relation to the report. On the 15th
September 1983 I ruled, having read the documents, that it must be
discovered and I now give my reasons in full.
That
discovery can be ordered against the Crown is indisputable. Section 26(1) of
the Crown Proceedings Act (Cap 7) provides:-
�26.
(1) Subject to and in accordance with rules of court-
(a)
in any civil proceedings in the High Court or a Magistrate�s Court to
which the Crown is a party, the Crown may be required
by the court to make
discovery of documents and produce documents for inspection; and
(b)
in any such proceedings as aforesaid, the Crown may be required by the court
to answer interrogatories:
Provided
that this section shall be without prejudice to any rule of law which
authorizes or requires the withholding of
any document or the refusal to
answer any question on the ground that the disclosure of the document or the
answering of
the question would be injurious to the public interest.�
It
is, then, on the basis of the proviso to this subsection that the objection
to disclosure of the report is made, that
is, it is said that such
disclosure would be �injurious to the public interest�. An affidavit has
been filed in which the
Honourable Minister for Police and Justice claims
�crown privilege� for the report.
The
rule of law which enables such an objection to be made is of some antiquity
and has had a chequered history. I am grateful
to counsel for referring me
to that history. But, as there is no dispute whatsoever as to the nature of
the rule as it
now stands and the procedure to be adopted in relation to it,
I do not propose to trace that history in this judgment. It can
be found in
Odger�s Principles of Pleading and Practice in Civil Actions in the High
Court of Justice 2nd Edition at p. 226 et seq. and in De
Smith�s Judicial Review of Administrative Action 4th Edition at
page 35 et seq.
The
leading case on the modern law is Conway v. Rimmer (1969) 1 All ER
874; a case in the House of Lords. I need refer only to two passages in the
speech of Lord Reid. First he sets out the general principles
which apply
when he says (at page 888c):-
�I
would therefore propose that the House ought now to decide that courts have
and are entitled to exercise a power and
duty to hold a balance between the
public interest, as expressed by a Minister, to withhold certain documents
or other
evidence, and the public interest in ensuring the proper
administration of justice. That does not mean that a court would reject
a
Minister�s view: full weight must be given to it in every case, and if the
Minister�s reasons are of a character which
judicial experience is not
competent to weigh then the Minister�s view must prevail; but experience
has shown that reasons
given for withholding whole classes of documents are
often not of that character. For example a court is perfectly well able
to
assess the likelihood that, if the writer of a certain class of document
knew that there was a chance that his report
might be produced in legal
proceedings, he would make a less full and candid report than he would
otherwise have done.�
Then
he deals with the procedure to be employed (at page 888):-
�It
appears to me that, if the Minister�s reasons are such that a judge can
properly weigh them, he must on the other hand
consider what is the probable
importance in the case before him of the documents or other evidence sought
to be withheld.
If he decides that on balance the documents probably ought
to be produced, I think that it would generally be best that he should
see
them before ordering production and, if he thinks that the Minister�s
reasons are not clearly expressed, he will have
to see the documents before
ordering production. I can see nothing wrong in the judge seeing documents
without their being
shown to the parties.�
It
is agreed by counsel in this case and the text book writers that these words
lay the foundation of the modern law and
embody the principles and procedure
to be applied in a case such as this. As the learned editors of Odgers (ab
cit) say
at page 227:-
�When
undertaking such a review, the court has to balance the competing interests
of preventing harm to the state or the
public service by disclosure and
preventing frustration of the administration of justice by withholding
disclosure, and
it may inspect the documents concerned privately in order to
determine where the balance of public interest lies.�
The
bases of the claim that discovery of the report would be injurious to the
public interest are set out in the paragraph
6 of the Affidavit of the
Minister. This paragraph reads:-
�6.
My reasons for claiming Crown privilege are that-
(a)
the said report was made by the Chief Magistrate in his official capacity as
a Magistrate and upon its submission to
me as Minister, it was intended to
be a confidential document which is not to be revealed to the Public;
(b)
the report relates to proceedings which have been held in camera and it
would be contto public policy to allow slow
such report to be subjected to
inspection;
(c)
I believe that, if the report were to be subjected to inspection, its
confidential nature would be destroyed.�
I
must give full weight to those reasons but having read them I decided that
my proper course was to read the report.
This
was made available to me and I considered it. Before considering those
reasons in the context of the report itself
I must also consider the
importance of the report in respect of the case before me.
No
one would dispute that it is crucial to one of the grounds for seeking
relief which is contained in Statement accompanying
the Application for
Leave. This ground seeks to establish that the Minister has acted ultra
vires his powers by:-
�(1)
Wrongfully exercising his discretion under section 5(7) of the Deportation
Act No. 9 of 1978 by not properly basing
his decision on the findings of
facts and conclusions of law reached by the Chief Magistrate.�
I
turn now to the reasons advanced by the Honourable Minister. Reason (b)
states that the proceedings were held �in camera�
and the impression
which counsel for the Attorney General gave in argument was that this fact
was the real core of most
of his submissions. For example, if the
proceedings had been held in public it might well have been difficult for
counsel
to submit that the report arising from those proceedings were
confidential.
But
it seems to this court that whether or not the proceedings were held in
camera is only relevant if it can be shown that
the reason for so doing was
to protect from dissemination information which should not be made public. I
asked counsel
what the reason was. He was unable to tell me or to point to
any ground for holding the proceeding in camera. Indeed, from an
affidavit
by the solicitor for the Applicant, it is apparent that the decision was
made by the magistrate himself at the
outset of the proceedings without
application by either party when the magistrate was not aware of what was to
be said.
Whether he had power to do so is challenged by the Applicant who
relies upon section 5(4) of the Act which reads:-
�5.(4)
The Attorney General may certify to the magistrate hearing the proceedings
under this section or the person charged
may request such magistrate that it
is desirable that the proceedings be held in camera, and the magistrate
shall thereupon
direct that the public shall not have access to, or be or
remain in, any room, building or place in which such proceedings are
taking
place during the hearing thereof.�
It
is unnecessary for me to decide this point but in all the circumstances, and
having read the report, it does not seem
to me, with respect, that in the
event there was justification for the proceedings being held in camera. As
the Act at
least implies, on this aspect of procedure the magistrate would
be well advised to leave it to the parties to certify or request
that the
proceedings be held in camera. They alone are aware of what is likely to be
discussed during the proceedings.
Having
come to the conclusion that there was no justification for the proceedings
to be held in camera, subparagraph (b)
does not carry great weight. Even
were I to reach a different conclusion on this aspect I would still have a
duty to weigh
the question of the injury to the public interest which would
be suffered by revealing those parts of the report which dealt
with, as it
were, �in camera matters� against the interests of the administration of
justice in ordering disclosure. It
may be, in an appropriate case, as Lord
Wilberforce suggested in Science Research Council v Nasse [1979] UKHL 9; (1979) 3
WLR 762 at page 770, that the Court might �cover up� parts of the
documents which dealt with matters properly dealt with in camera.
This does
not arise, however, in the present case as the only time security matters
were touched upon they were not divulged
or pressed.
Both
reason (a) and reason (c) of the Honourable Minister lay emphasis on the
confidentiality of the report as a report
addressed by the Magistrate to the
Minister. I accept that any document which passes from one public official
to another
and particularly when the recipient is a Minister is prima facie
of a confidential nature. This confidential nature is strengthened
where, as
in this case, the report involves the case of an individual. This
confidentiality must be given weight in the
court�s consideration of the
application for discovery. I adopt, however, the words of Lord Wilberforce
in relation to
the English law when he said in Science Research Council v
Nasse [1979] UKHL 9; (1979) 3 WLR 762 at page 769:-
�2.
There is no principle in English law by which documents are protected from
discovery by reason of confidentiality alone.
But there is no reason why, in
the exercise of its discretion to order discovery, the tribunal should not
have regard to
the fact that documents are confidential, and that to order
disclosure would involve a breach of confidence.�
and
later-
�4.
The ultimate test in discrimination (as in other) proceedings is whether
discovery is necessary for disposing fairly
of the proceedings. If it is,
then discovery must be ordered notwithstanding confidentiality.�
In
deportation matters there are, no doubt, occasions when highly confidential
information is passed to the authorities
and it may be that such information
is revealed in proceedings such as those before the Magistrate and referred
to in his
report. A court might well be loath, in such a sensitive area, to
discourage those in possession of such information from passing
it to the
proper authorities by making the information and its source discoverable at
a later stage. Each case must depend
upon its own facts and generalisations,
other than the somewhat platitudinous generalisation I have just delivered,
do
not seem particularly helpful.
I
have already indicated in dealing with the �in camera� reason that
having read the report there does not seem to me any
matters contained in it
which are of such a confidential nature such as to add force to Minister�s
reasons that relate
to confidentiality. It is a report produced after
proceedings before a judicial officer in which the parties may be, and were,
legally represented. By implication those proceedings may have been held in
public. The report embodies the magistrate�s
findings of fact and
conclusions on any question of law involved.
As
far as the �conclusions on any question of law involved� are concerned I
have no hesitation in holding that they must
be discoverable. Quite clearly
revelation of a magistrate�s conclusion on law cannot injuriously affect
the public interest;
quite the contrary, there is a public interest in
granting to the person to whom those conclusions relate a full opportunity
of considering them and, if so advised challenging them in appropriate
proceedings. There is no confidentiality about conclusions
of law. It was
suggested by Counsel that discovery of the report might have the effect of
making magistrates less forthright
in reports in these circumstances in
future. Certainly as to conclusions of law, I cannot imagine that a
magistrate, with
his independent judicial status would be the slightest bit
intimidated by the thought that those conclusions might be revealed.
We all,
I think, welcome further consideration of the difficult conclusions of law
that it falls to our lot to produce
on occasion.
As
to findings of fact, where these are based on, or discuss, confidential
information then the Court will approach the
question of discovery with care
bearing in mind the principles to which I have earlier referred to in this
judgment and
the possibility of partial discovery. I have so approached the
report in this case. Again I do not consider that a magistrate
would be
deterred from being full and frank in his findings of fact by the thought of
future disclosure. My firm conclusion
is, after weighing the harm to the
public interest which might result from disclosure and the interests of
justice, that
this is a case in which the report must be disclosed to the
Applicant and accordingly I made such an order on 15th September.
------------------------------------------------
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1983/5.html
