Lopez v Attorney-General (No 1) [1983] SBHC 5; [1983] SILR 232 (21 September 1983)

(1983) SILR 232

HIGH COURT OF SOLOMON ISLANDS

LOPEZ

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ATTORNEY-GENERAL (NO. 1)

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High Court of Solomon Islands
(Daly CJ)
Civil Case No. 87 of 1983

Order made 15^th September 1983
Reasons given 21^st 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 13^th, 17^th, 20^th and 24^th 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 12^th 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 13^th, 17^th, 20^th and 24^th 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 12^th 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 15^th 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 2^nd Edition at p. 226 et seq. and in De Smith’s Judicial Review of Administrative Action 4^th 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 15^th September.

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