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The Queen v The Honourable Johannes Bjelke-Petersen


[1978] FC 10


O.S.C. No. 54 of 1977











Reasons for Judgment by the Honourable The Chief Justice on the 22nd March, 1978, Douglas J. and Matthews J. concurring.


“Order Nisi discharged with costs”



O.S.C. No. 54 of 1977







This is the return of an Order Nisi for Certiorari to bring up to this Court and quash an order made by the Chief Stipendiary Magistrate at Brisbane dismissing a complaint laid, by the present prosecutor, on the ground that there was no prima facie case to answer, and ancillary thereto Mandamus to the Chief Stipendiary Magistrate requiring him to proceed with the hearing of the said complaint according to law.

The complaint as amended alleged against the respondent that he conspired with one Alan Maxwell Hodges and divers persons unknown to the complainant to prevent the enforcement of the Police Act 1937-1973 relating to the investigation of certain complaints that had been made to the Commissioner of Police. The allegation was of a breach of section 543 sub-section (1) of the Criminal Code and written particulars of the offence specified that the alleged conspiracy was committed on the 3rd August, 1976; that the parties thereto were the respondent and some or all of the eighteen persons who then comprised the Ministry of the Government of Queensland as members of the State Cabinet, one of them being the Alan Maxwell Hodges mentioned in the complaint; that the specific provisions of the Police Acts to be relied upon were sections 6, 14, 15 and 70; that the agreement alleged to constitute the conspiracy was in substance an agreement amongst the members of the Cabinet that the Police Commissioner be directed not to proceed any further with an inquiry into the conduct of the police, on a certain date in relation to a demonstration by university students; that the “certain complaints” were allegations that the actions of some of the police were irrational, unreasonable and provocative and that in one instance a member of the force had assaulted a female student by striking her on the head with his baton. Although no reference was made at the committal proceedings to section 132 of the Criminal Code it was also considered by the Chief Stipendiary Magistrate. It declares that any person who conspires with-another to obstruct, prevent, pervert or defeat the course of justice is guilty of a crime.

In summary the case which the prosecutor endeavoured to make out against the respondent was that he, in his office of Premier of the State and a member of the Cabinet, conspired with some fellow Ministers, including the one named, to prevent the enforcement of the Police Act in respect of the Commissioner's duty to investigate the allegations contained in the “certain complaints”.

The case for the prosecution sought to establish that the Commissioner was charged by section 6 with the superintendence of the police force of Queensland, and that the oath required of him by section 14 constituted, by section 15, a compact between him and Her Majesty under which it was his duty to prevent to the best of his power all offences against Her Majesty's peace and to discharge all the duties legally imposed upon him; that, since by section 70 nothing in the Act should be deemed to diminish the duties or restrict or affect the liability of members of the police force at common law or under any Act in force, the provision of section 6, subjecting the Commissioner's duty of superintendence to his Minister's direction, should be construed so as to exclude any such direction which would conflict with the duty of investigation imposed upon him by the common law aided by sections 14 and 15. The argument advanced the proposition that the effect of the Cabinet direction operating through the Minister for Police (then Mr. Hodges) was to prevent the Commissioner carrying out his common law duties which were preserved by section 70 and/or his duties arising under statute law, and that the decision of Cabinet to give the direction constituted an agreement among all members of the Cabinet to do so, thus making them all accomplices in the conspiracy alleged.

The Magistrate was referred by counsel for the respondent to the constitutional position of Cabinet as a meeting of Ministers to decide Government policy and governed by conventional usages including that which makes the taking of a vote very rare and that which as a matter of convenience accepts a conclusion once reached as a unanimous conclusion of Cabinet although a number of members many not have assented to it.

The evidence led by the prosecutor to establish the agreement which the charge alleged to constitute the unlawful conspiracy consisted of a video-tape and a transcript of the dialogue between the respondent and a group of journalists at a press conference held on the 3rd August 1976, the date of the alleged conspiracy, which was tendered to prove admissions said to have been made by the respondent as to events that took place at the Cabinet meeting and led to the giving of the direction to the Police Commissioner to refrain from proceeding further with his inquiry. Included in this evidence were questions and answers from which the prosecution claimed it should be inferred that the respondent was admitting that an agreement was made amongst some or all of the Cabinet members to give such a direction. The magistrate in his reasons recited most of the passages relied on, in particular the statement that there was unanimous support for the decision and that it was a final Cabinet decision; that Mr. Hodges supported the Police Commissioner in his call for an inquiry; that one interrogator asked him “Well where does this (day's decision) leave Mr. Whitrod (the Commissioner) and where does that leave Mr. Hodges?”, to which he is recorded as replying “It leaves them to comply with the Cabinet's decision”; and that Mr, Hodges supported Mr. Whitrod's decision that “there should be some ordinary inquiry into the whole situation”.

During the course of the hearing the Magistrate excluded evidence of written communications between the Commissioner and the Minister for Police and conversations between them which were sought to be adduced from Mr, Whitrod, and in so doing purported to uphold Crown privilege. This had the effect of forcing the prosecution case as to the elements of agreement and the consequential direction to the Commissioner to rely totally upon the admissions alleged to be contained in the tape recording and its transcript and the inferences properly to be drawn therefrom. No evidence was called for the respondent.

At the conclusion of the prosecution evidence counsel for the respondent addressed the magistrate, submitting that no prima facie case had been shown and that there was none for the defendant to answer. After hearing fully argument from each side the Chief Stipendiary Magistral reserved his decision for a fortnight, when he delivered reasons dismissing the complaint. In the course of doing so be made a number of findings of fact as follows:—

  1. On the 30th July, 1976 Mr. Spencer made a complaint to Mr. Whitrod then Commissioner of Police, who
  1. detailed two of his senior officers to make inquiries.
  1. that on the evidence of the transcribed tape the respondent had, in answer to the question “Why won't there by an inquiry?”, admitted “Well, Cabinet considered very carefully the report that Mr. Hodges brought today on the information that we had and decided that there wouldn't be an inquiry”, and that the Commissioner subsequently received a direction not to proceed with that inquiry.

The lastmentioned finding, as I apprehend, was made by way of inference from the transcript of the press interview. It could have no other source since the magistrate excluded any evidence of direct communication between the Minister and the Police Commissioner, whilst it is an inference fairly open on the evidence of the uncontradicted statements made by the respondent at the press conference.

Against the background of those findings the Chief Stipendiary Magistrate went on to consider the provisions of the Police Acts which, on the prosecution case, the Commissioner was prevented from enforcing, and dealt specifically with the submission of the prosecutor that when sections 6 and 70 of those Acts are read together the Minister could not lawfully subject the Commissioner to any direction which was inconsistent with his common law duty of enforcing the law and of making inquiries to that end and for that purpose. But the Chief Stipendiary Magistrate was unable to agree with that submission because in his view the parliament of Queensland had enacted specific statutory provisions which took precedence over the common law, and he construed section 70 as a saving provision preserving the common law duties of members of the police force subject to the direction of the Minister.

The magistrate then turned to the question whether it had been shown that an agreement had been reached, so as to constitute a conspiracy, by means of the unanimous decision by Cabinet that no inquiry was to be held and the consequential direction to the Commissioner. He considered the contentions that he should hold that an agreement had in fact been reached; that it was one which could not lawfully be reached by Cabinet; and that therefore he should find that the respondent had conspired with some or all members of his Cabinet, one of whom was Mr. Hodges, to commit an unlawful act i.e. to give to the Commissioner a direction not to perform his duty. After correctly setting out the elements of conspiracy he turned to the submissions as to the nature of the functions of Cabinet, and this led him to the findings that it was Cabinet which decided there would be no inquiry, not the defendant as an individual, and that he was “not satisfied that each or any particular member committed himself to an agreement in a criminal sense to that conclusion and that certainly Mr. Hodges didn't”. These findings, a mixture of fact and law, constitute a decision that the evidence adduced by the prosecution failed to make out a prima facie case, as the magistrate went on formally to declare:—

“Now, upon a consideration of the whole of the evidence placed before me in this case, I am not satisfied that it is such, if placed before a jury properly instructed, that the jury could reasonably come to a conclusion that the defendant is guilty of the offence as charged or of any indictable offence. In those circumstances, I dismiss the complaint and I discharge the defendant.”

The jurisdiction in the exercise of which the Chief Stipendiary Magistrate made the findings and the decisions to which I have referred devolved upon him from sections 104 and 108 of the Justices Acts 1886 to 1964 which empowered him to conduct an examination of witnesses in relation to an indictable offence and defined his duties thereon and limited the ambit of his jurisdiction in such an examination.

Section 104 sub-section 2 provides:—

“When, upon such on examination all the evidence to be offered on the part of the prosecution has been adduced and the evidence, in the opinion of the justices then present, is not sufficient to but the defendant upon his trial for any indictable offence, the justices shall order the defendant, if he is in custody, to be discharged as to the charge the subject of that examination; but if in the opinion of such justices (or if there be more justices than one then present, in the opinion of any one of such justices) the evidence is sufficient to put the defendant upon his trial for an indictable offence then the justices or one of them shall - ”

and the sub-section then sets out the procedure to be followed by the examining justice, which may include the colling of evidence by the defendant. This stage was not reached in this case because the magistrate formed the relevant opinion at the end of the first stage. Rut in order to fill out the picture of the jurisdiction I incorporate it.

Section 108 provides:—

“If upon a consideration of all the evidence adduced upon an examination of witnesses in relation to an indictable offence (including any answer made by the defendant to the words addressed to him pursuant to the provisions of subsection (2) of section one hundred and four of this Act) the justices are of the opinion that the evidence is not sufficient to put the defendant upon his trial for any indictable offence, the justices shall order the defendant, if he is in custody, to be discharged as to the charge the subject of the examination; but if the justices are of the opinion that the evidence is sufficient to put the defendant upon his trial for an indictable offence they shall, subject to section one hundred and thirteen of this Act, order him to be committed to be tried for the offence before a court of competent jurisdiction.”

The nature of this ancient jurisdiction has been clearly and definitely categorised for centuries. A justice (or a magistrate) exercising it is performing a ministerial and not a judicial function ... he is only an officer deputed by the law to enter into a preliminary inquiry ... notwithstanding the statutory reforms made from time to time, the nature of the inquiry has not been altered and it is still true that a magistrate in conducting such an inquiry is exercising an executive or ministerial and not a judicial function, Gibbs J., in Ammann v. Wegener & another (1971) 129 C.L.R. 415, at 435-6, refers to the long line of decisions establishing these principles. This is not to say, however, that in exercising this jurisdiction they are free not to act judicially (cf. The King v. Electricity Commissioners: Ex Parte London Electricity Joint Committee Company (1920) Limited, (1924) 1 K.B. 171, at p. 205, as applied by this Court in the circumstances of R. v. Schwarten, Ex parte Wildschut (1965) Qd.R. 276, at p. 284.

I turn now to the grounds on which the prosecutor seeks prerogative relief.

Grounds 1(a)(b) and (c) relate entirely to questions of admissibility of evidence at the inquiry, namely (a) that he was wrong in refusing to admit evidence of what was said by the Commissioner and another person present during a conference with the complainant after the incidents the subject of the inquiry whilst (b) and (c) assert that he was wrong in law in upholding the arguments as to Crown privilege.

Ground 1(d) attacks the finding that section 70 of the Police Acts preserved the common law duties of members of the force but only subject to ministerial direction and (e) attacks his consequential holding that the direction to the Commissioner was a lawful one.

Ground 1(f) asserts that he was wrong in law in holding that he was not satisfied that any member of Cabinet committed himself to an unlawful conspiratorial agreement when Cabinet concluded that the inquiry instituted by the Commissioner was not to proceed, whilst 1(g) asserts that he was wrong in law in holding that on a consideration of the whole of the evidence he was not satisfied in effect that there was any case to answer.

Ground 1(h) contends that he was wrong in law in taking judicial notice of what was said to be the conventional practice of Cabinet.

Ground 2 asserts that he incorrectly construed the provisions of the relevant sections of the Police Acts.

Ground 3 reads:—

“In failing to perform his duties and functions according to law as particularized above the said Chief Stipendiary Magistrate exceeded his jurisdiction in dismissing the said complaint and in discharging the said Johannes Bjelke-Petersen.”

Ground 4 merely puts in another way what is raised by ground 1(g).

If it be assumed that the findings and decisions challenged in those grounds are erroneous they would not entitle the prosecutor to the relief he seeks, because (1) they do not go to jurisdiction and (2) do no constitute such a non-jurisdictional error of law on the face of the record as would invalidate the proceedings. In my view there is ample authority for these propositions in R. v. Minister of Health, Ex parte Committee of Visitors of Glamorgan County Mental Hospital (1939) 1 K.B. 232 (C.A.) at p. 246; The Queen v. Tennant; Ex parte Woods (1962) Qd.R 241, at p. 258 and pp. 260-261, a decision of this court; Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C. 147 (H.L.); and Connor v. Sankey (1976) 2 N.S.W.L.R. 570 (C.A.).

None of the findings or decisions made by the Chief Stipendiary Magistrate in any way involves a misconstruction of the statute from which he derived his power and jurisdiction i.e. the Justices Act. The true position is that, being properly clothed with jurisdiction to conduct the ministerial inquiry upon which he had embarked, he made findings as to matters of fact, on the evidence, and as to matters of law-relating to the construction of the Police Acts and of the Criminal Code, and upon other incidental matters of law. A perusal of the grounds on which the Order Nisi was obtained makes it clear that they all amount to errors, if such they be, committed within the jurisdiction being exercised in the inquiry.

The case argued by the prosecutor seems to me, with respect to proceed upon a basic misconception as to the nature and limits of the prerogative writs as they apply to the circumstances of this case. That misconception fails to appreciate the difference between a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction, which leads it to misunderstand the nature of that jurisdiction and so amounts to a constructive failure to exercise it, and a mistake made as to the proper construction of some other statue or in deciding some matter of fact, or law which is incidental to the exercise of the jurisdiction. This distinction is illustrated, in the converse, by the reasoning of Barwick C.J. in Wade v. Burns (1966) 115 C.L.R. 537:—

“I come now to the final point whether mandamus should go. The situation, upon the views I have expressed, is that the warden has refused the appellant's application in purported obedience to a statutory command to which in the circumstances his authority was not subject and he has purported to exercise a discretion which in truth in the circumstances he did not have. This is not a case of an error of law or misconstruction of a statute by a tribunal or ministerial body deriving its relevant power or authority elsewhere than from the particular law or statutory provision which it misconceived or misconstrued. Nor is it a case of an error of law in the course of the exercise of an admitted jurisdiction, power or authority. The error in connexion with s. 46(3) was as to the extent of the warden's authority in connexion with the grant of the application which was before him. The same is true with respect to s. 50(2). Upon this analysis, such cases as Ex parte Nolan; Re Mayger (1947) 48 S.R. (N.S.W.) 143 are inappropriate. The case falls rather within the class of case of which Re Kearsley Shire Council: Ex parte Hebburn Ltd. (1947) 47 S.R. (N.S.W.) 416 is an example.”

The illustrations afforded by the two New South Wales decisions to which the learned Chief Justice referred are helpful and illuminating in regard to the present problem. This case in my view clearly belongs in the category to which the learned Chief Justice attributed such cases as Ex Parte Nolan; Re Mayger. The argument here that the magistrate misconstrued the provisions of the Police Acts and made mistakes in applying their provisions to the facts of the case before him shows it to be within that class, in that they are not mistakes going to the existence of jurisdiction but mistakes made in the exercise of jurisdiction which do not justify intervention by the prerogative writs. The other class of case, Re Kearsley Shire Council; Ex parte Hebburn Ltd., turned upon a situation which is quite dissimilar from that before us in that it was one in which the magistrate misunderstood the question which a statute invested him with jurisdiction to decide. This is demonstrated by the following extract from the reasoning of Davidson J. at p. 422:—

“The sole object of the writ is to command fulfilment of some duty of a public nature which remains unperformed. If the tribunal, whatever its nature in exercising its functions bona fide and not arbitrarily, has undertaken an inquiry and announced a conclusion, the result, subject to certain qualifications, is immune from interference by writ of mandamus. The correctness or otherwise of the conclusion in law or in fact, is immaterial, as is its liability to being quashed by appeal, certiorari or other processes. Put the determination must be a real and not merely an ostensible performance of the duty cast by law upon the tribunal. Failure in this respect may appear if it be shown that the tribunal decision has been actuated by extraneous considerations or that its members have not really applied their minds to the question the law has prescribed: The King v. War Pensions Entitlement Appeal Tribunal (1933) 50 C.L.R. 228 at 242, 243”

In the present case there is nothing which could possibly suggest a failure by the magistrate to apply his mind to the real questions before him nor is there anything that points to the intrusion of any extraneous consideration. Some arguments submitted to us on Ground 3 tended to invoke the principle that a tribunal which does not act according to the rules of reason and justice or acts in a vague or fanciful manner constructively refuses jurisdiction. The principle resorted to is discussed in The King v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. (1944) 69 C.L.R. 407 by Latham C.J. at pp. 430 to 432 but in my opinion the attempt to bring this case within those principles is untenable.

I would discharge the Order Nisi and order that the prosecutor pay the respondent's costs to be taxed.


Editorial Notes

  • Published Case Name:

    The Queen v The Honourable Johannes Bjelke-Petersen

  • Shortened Case Name:

    The Queen v The Honourable Johannes Bjelke-Petersen

  • MNC:

    [1978] FC 10

  • Court:


  • Judge(s):

    Douglas J., Matthews J.

  • Date:

    22 Mar 1978

Litigation History

No Litigation History

Appeal Status

No Status