IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
Civil Appeal No: 23 of 2000
ELLIOTT FITZROY BELGRAVE
Before: The Honourable Mr. Justice Errol DaCosta Chase, Chief Justice (ag.), The Honourable Mr. Justice Frederick L.A. Waterman and The Honourable Mr. Justice Frank DeC. King (ag.), Justices of Appeal.
2000: November 21st, 22nd, 23rd and 24th
2001: February 16th
Mr. W.L. Inniss, Q.C., in association with Mr. Michael Lashley and Ms. N. Husbands for Appellants.
Mr. E. Mottley, Q.C., in association with Mr. R. Forde for Respondent.
Chase J.A., Chief Justice (ag.): This is an appeal against the judgment of Blackman J, acting High Court Judge, given on July 31, 2000 in which he refused to grant the appellants the orders sought in their application by way of originating notice of motion for judicial review of “findings” by the respondent, as Commissioner appointed to inquire into, and report on, the circumstances surrounding the escape of the prisoner Winston Leroy Hall from Glendairy Prison on September 23, 1999.
The grounds of appeal are that
(i) The Learned Judge erred in law in that he did not consider the true meaning and intent of Section 23 of the Commissions of Inquiry Act Cap. 112.
(ii) The Learned Judge erred in fact and in law in holding that the “Notices and “Summaries” were not findings within the meaning of Section 23 of the Commissions of Inquiry Act, Cap. 112.
(iii) The Learned Judge erred in fact and in law in that he did not give any or any sufficient consideration to the “Transcripts” in determining the issue of bias on the part of the Respondent.
(iv) The Learned Judge misdirected himself in law as to what constitutes bias.
(v) The Learned Judge erred in law in holding that the Respondent did not act in breach of the rules of natural justice.
(vi) The Learned Judge erred in fact and in law in holding that the Respondent did not exceed his jurisdiction.
(vii) The Learned Judge erred in fact and in law in his interpretation of the ‘Notices,’ ‘Summaries’ and ‘Transcripts of evidence.’
(viii) The Learned Judge erred in law in his failure to consider the case of the Appellants in its entirety.
(ix) The decision of the Learned Trial Judge is erroneous in point of law.
Background to Application for Judicial Review
On November 2, 1999, the respondent was appointed an investigatory commission under the Commissions of Inquiry Act, Cap. 112 by warrant issued by His Excellency, the Governor-General in these terms:
Commissions of Inquiry Act
WARRANT OF APPOINTMENT OF COMMISSION
To: THE HON. MR. JUSTICE ELLIOTT FITZROY BELGRAVE, CHB, QC.
WHEREAS by section 3(1) of the Commissions of Inquiry Act, it is provided, inter alia, that the Governor-General may, whenever he deems it expedient in the public interest, appoint one or more commissioners to be a commission of inquiry, designated as an investigatory commission, to investigate and report upon a matter which the Governor-General deems to be of special public importance:
NOW THEREFORE I, Sir Clifford Straughn Husbands, Governor-General, deeming it expedient in the public interest, do hereby, in exercise of the power and authority vested in me under the Commissions of Inquiry Act, issue this warrant appointing you Mr. Elliott Fitzroy Belgrave, as an investigatory commission and authorising you:
(i) to inquire into all of the circumstances surrounding the escape of the prisoner Winston Leroy Hall from Glendairy Prison on September 23, 1999, including any acts or omissions on the part of any person or persons inside or outside of Glendairy Prison;
(ii) to review and report on the adequacy or otherwise of the existing security arrangements at Glendairy Prison;
(iii) to determine whether any person or persons were culpable or negligent in regard to the escape of the said Winston Leroy Hall; and
(iv) to make such recommendations as the Commission may deem appropriate or necessary in all the circumstances.
And I do direct under this warrant that
(a) the inquiry shall be held at such place as you deem convenient, on such dates and at such times as you shall appoint;
(b) the inquiry shall be held in public unless you the Commissioner are of the opinion, having regard to the matters stated in section 20(2) of the said Act, that any part of the inquiry shall be held in private;
(c) you the Commissioner shall furnish me with a written report of the said inquiry containing an account of the proceedings together with your findings and recommendations on or before the 29th day of February, 2000.
Issued this 2nd day of November, 1999.
Signed C. Straughn Husbands
Clearly, the escape from Glendairy Prison of the prisoner Winston Leroy Hall in respect of which the respondent was mandated as Commissioner to investigate and report upon to His Excellency the Governor-General was at the time of his appointment a matter of public disquiet in terms of the adequacy of the existing arrangements for securing the custody of the inmates at the Institution during their period of incarceration. It would seem not unreasonable to assume that until such time as the respondent completes his mandate and reports to His Excellency, the matter continues to be one of public interest.
The respondent in pursuance of his mandate conducted public hearings during the periods November 22 to December 17, 1999, and January 3, 2000 to January 14, 2000. During these hearings evidence was recorded not only from the appellants but also from the Acting Superintendent of Prisons, Mr. George Clarke. Attorneys-at-law Mr. Leroy Inniss and Mr. Ralph Thorne appeared before the Commission on behalf of the appellants and participated fully in the hearings.
According to the respondent’s affidavit evidence that was before the learned trial Judge, the attorneys-at-law for the appellants and for the Commission made submissions to the Commissioner. Further in his affidavit of March 10, 2000, the respondent indicated as follows:
15. After review of all the evidence adduced before the Commission, the Commission realized that it was likely that the Commission could possibly make findings in its report which could amount to misconduct on the part of the ten applicants in connection with the manner in which they dealt with or failed or neglected to deal with Winston Leroy Hall while he was a prisoner.
16. As a result of the said reviews, and before making any findings, I considered that it was my duty as the Commissioner to give effect to the natural justice provisions contained in section 23 of the Commissions of Inquiry Act Cap. 112, by notifying the ten applicants of those matters of which I considered that it was likely that they could be accused of so that they could appear before the Commission if they so desired to contest same as provided by section 23 of the Act.
17. Mr. George Clarke, the Acting Superintendent of Prisons was also notified that it was likely that he could be criticized in the Commission’s report and he was also advised of his right to contest the same in accordance with the provisions of section 23 of the Act.
18. Mr. Clarke exercised his rights and appeared before the Commission on the 23rd day of February, 2000 and gave additional evidence. The Commission also heard submissions on his behalf from Mr. Hal Gollop his attorney-at-law.
Nothing appears on record to indicate that the foregoing evidence of the respondent was called in question at the hearing of the motion for judicial review. The evidence would seem therefore to reflect the respondent’s appreciation of the prohibition contained in section 23(2) against making a finding for inclusion in his report to His Excellency the Governor-General without first giving the person concerned an opportunity to contest what was being alleged against him.
The provisions of section 23 are as follows:
23(1) Where it appears to a commission that allegations of misconduct have been or are likely to be made against any person, group or organisation, the commission shall so far as practicable give to that person, group or organisation, reasonable notice of the allegations and a reasonable opportunity to contest them by calling evidence in rebuttal or by cross- examination or otherwise.
(2) No finding of misconduct on the part of any person, group or organisation shall be made by a commission unless that person, group or organisation had reasonable notice of the allegations of misconduct and reasonable opportunity to contest them in the manner prescribed by subsection (1).
The procedure adopted by the respondent to give effect to the requirements contained in the foregoing section may be extracted from the affidavits filed on behalf of the appellants in support of their application for judicial review. It is considered appropriate at this stage, however, to note the following wording of section 19 of the Act:
The conduct of and the procedure to be followed at an inquiry or investigation under this Act is, subject to this Act, under the control and direction of the commission conducting it.
In our view, the intention of the foregoing section is to give a Commission of Inquiry as much flexibility as possible in seeking to arrive at the truth of the matter under investigation, so long as the Commission adheres to the basic principles enshrined in the Act, e.g. section 23(2). Indeed, this view is supported by the following passages appearing in the Salmon Report on the Royal Commission on Tribunals of Inquiry 1966 (Cmnd. 3121):
Should There Be Statutory Rules of Procedure
68. The question arises as to whether or not there should be statutory rules which lay down the procedure to be followed by Tribunals of Inquiry. The disadvantage of having such rules would be that they would necessarily be detailed and rigid. This would enable anyone who wished to obstruct or delay the proceedings of the Tribunal to take advantage of any supposed technical breach of the rules for this purpose. Any alleged failure to comply with the rules might be brought up for review by prerogative writ to the High Court and the inquiry thereby delayed or frustrated.
69. Moreover, the procedural requirements of tribunals will differ according to the circumstances of each case and it is accordingly desirable to keep the procedure as flexible as possible so that it may be adapted by the Tribunal to meet the needs of the particular case.
70. Rather than have a rigid set of rules, we consider it is sufficient to lay down the general principles to be followed .... We believe that Tribunals of Inquiry can safely be relied upon to follow these principles in the future, and thus the interest of everyone will be safeguarded without the Tribunals being hampered in their inquiries.
In our view, it seems reasonable to assume the Salmon Report on this aspect of an inquiry informed the formulation of sections 19 and 23.
We turn now to look briefly at the affidavit evidence of the appellants. The affidavits are all drawn in similar terms and specific reference to one only is considered appropriate for present purposes.
Pearson Small’s affidavit reads as follows:
1. I am one of the Applicants herein.
2. I am a Prison Officer Grade I of Her Majesty’s Prisons at Glendairy, Station Hill in the parish of Saint Michael, Barbados.
3. I attended and gave evidence on oath during the Inquiry into the circumstances surrounding the escape of Prisoner Winston Leroy Hall from the Glendairy Prison on the 23rd day of September 1999.
4. On or about Wednesday the 2nd day of February 2000 I received from the Commission of Inquiry the following:-
(a) ‘Notice of Likely Finding of Prima Facie Case of Misconduct Against You, Pearson Small, Prison Officer I’.
(b) ‘A summary of the Evidence Capable of Supporting A Finding That A Prima Facie Case of Misconduct is Likely to be Made Against You, Pearson Small, Prison Officer I’.
(c) Transcript of testimony given by Pearson Small.
Copies of the above-mentioned documents are attached hereto and marked ‘PS 1 to 3’ respectively.
5. I contest the findings of the Commission as contained in the documents referred to at paragraph 4(a) and 4 (b) herein.
6. I also received from the Commission of Inquiry extracts of the record of evidence. I verily believe from my perusal of the said extracts of the record of evidence that there was a bias on the part of the Commissioner.
7. I have been advised by my Attorneys-at-Law and verily believe that the proceedings of the Commission have been conducted and findings arrived at in excess of its jurisdiction, contrary to law and the principles of natural justice and in the unreasonable, irregular arbitrary and/or improper exercise of its discretion.
8. I make this Affidavit in support of my Application by Originating Notice of Motion herein for relief by way of judicial review under the Administrative Justice Act, Cap. 109B.
The documents issued by the respondent to the appellants were received by each of them during the period February 1 - 3, 2000. In the case of the appellant Small his notice was received on Wednesday February 2, 2000 and is as follows:
NOTICE OF LIKELY FINDING OF PRIMA FACIE CASE OF MISCONDUCT Against you Pearson Small, Prison Officer 1.
I, Elliott Fitzroy Belgrave CHB., Q.C., Commissioner appointed by the Governor-General to conduct an Inquiry into the circumstances surrounding the escape of Prisoner Winston Leroy Hall from Glendairy Prisons on the 23rd September, 1999, pursuant to the provisions of section 23 of the Commissions of Inquiry Act, do hereby give you notice, that I am of the opinion that, on the evidence adduced before me at the said Inquiry held at the Sir Garfield Sobers Sports Complex, between Monday 22nd day of November, 1999 and Friday the 14th day of January, 2000 it is likely that I will find that you have been guilty of misconduct as a result of the lax manner in which you organised the security arrangements with respect to the safe custody of high risk prisoner Winston Leroy Hall whose history of escaping from legal custody is legendary and well known to you in that as head of the Maximum Security Area you failed to give prison officers working under you proper and/or adequate instructions on the handling of Winston Hall when going to the bath.
The said Winston Leroy Hall escaped from Glendairy Prison on 23rd September 1999 at a time when you were at a meeting in the office of the Acting Superintendent and a football match between prisoners on remand was taking place in the front yard of the prison. You must share responsibility for the said escape in that you did not take such steps as would have ensured that prisoner Hall did not escape during your absence that morning.
In accordance with the provisions of section 23 of the Act it is my duty to inform you, that you have a right to be heard before the Commission so that you may contest the evidence set out by me by cross-examination or otherwise. You are also at liberty to call evidence in rebuttal if you so desire. You should therefore take this letter promptly to the Attorney-at-law who appeared before the Commission on behalf of the Prison Officers Association, or to any other attorney-at-law of your choice, so that you may be legally advised as to how best you should proceed with this matter.
You are also entitled to a reasonable opportunity in which to contest the prima facie case which I have set out herewith against you. I expect to hear from you or your Attorney-at-law within seven (7) days from the receipt of this letter by you.
The Secretary to the Commission is Mr. Calvin Niles who can be contacted at 428-3677. You may also contact Commission Counsel, Mr. Elliott Mottley, Q.C., at 436-6725 or 432-1567 or Mr. Roger Forde at 426-0410.
Elliott F. Belgrave, Q.C.,
The Summary of Evidence relating to Appellant Small is as follows:
“In your evidence before me you stated that you resisted the transfer of Prisoner Winston Leroy Hall from the cell on Maximum Security to the A corridor without success. That after Prisoner Hall was placed in the cell on the A Corridor that an order was made on 12th November, 1998 by the Acting Superintendent that Prisoner Hall be unshackled during the day and you stated that from that date you were aware that Prisoner Hall unshackled and unheld was taken each day in the morning to the Maximum Security Area in order to bathe.
You stated that due to shortage of staff after the disbandment of the yard Patrol you were aware that only two (2) Prison Officers escorted Prisoner Hall to the bathroom as there were no bathing facilities on the A corridor for him to use.
You stated also that you were aware that with the approval and consent of the Acting Superintendent the playing of football amongst prisoners on remand and other prisoners took place on mornings in the prison yard in front the Main Building. That the playing of football in the morning began sometime after 6th September 1999. That such a match was in progress on the morning of the 23rd September 1999, the day Prisoner Hall escaped.
You said that you did not agree with the playing of football in the mornings as it constituted a high security risk. You also stated that you knew the history of Prisoner Winston Hall that he was a high risk prisoner who should always be dealt with with the utmost care.
Notwithstanding your knowledge of the foregoing you accepted an invitation to attend a meeting of senior officers on the morning of the said 23rd September, 1999 well knowing that Prisoner Hall would be taken for his bath by junior officers and you gave no instructions that the bathing of Hall should be delayed until the said meeting was over, or that the meeting should have been rescheduled for later in the day. If you could not have influenced any of the changes suggested you could at least have absented yourself from the said meeting until Prisoner Hall had had his bath and was safely locked in his cell or you should have made proper or adequate arrangements for him to be taken to the bath by a senior and 2 junior officers. You did none of these things and as Chief Security Officer at the Prison you must share responsibility for being lax in the performance of your duties and being short sighted in not making proper plans for retaining Prisoner Hall in lawful custody, in short, for being incompetent.”
The notices of likely findings and the summaries of evidence issued to each of the other appellants are basically in terms similar to the ones issued to appellant Small, but with specific reference to the evidence adduced with respect to each of them as the basis upon which the respondent formed the opinion that there was a likelihood that a finding of misconduct was open to the Commission of Inquiry on the evidence adduced.
Essentially, the appellants’ affidavit evidence supported by the documents received from the respondent raises two central issues for determination, viz:
(i) Whether the contents of the notices to the appellants constituted findings as such, within the contemplation, or true intendment of section 23(2) for purposes of the report to His Excellency the Governor General;
(ii) Whether remarks made by the respondent while evidence was being adduced before the Commission were indicative of bias on the part of the respondent against the appellants.
It is contended on behalf of the appellants that the basis of their appeal hangs on a passage appearing at p. 33 of the judgment of this Court in respect of an interlocutory matter between the parties. The passage is as follows:
The notices make it clear that the Commission has not yet found misconduct on the part of any of the officers. However, the Notice in the case of each of them states that the Commission is likely to find, and that a prima facie case exists, that there was misconduct. The question is whether subsection (2) of section 23 contemplates that, simultaneously with a prison officer being informed of allegations of misconduct being made against him and before he has an opportunity to be heard or to contest them the Commission can legitimately inform him that it is likely to find misconduct on his part or that there is a prima facie case of misconduct against him. Does the language of subsection (2) indicate anything more than that the Commission must before finding misconduct on the part of any officer, inform him of the allegation or allegations being made against him and give him an opportunity of contesting them?
The question which the Court at the time was seeking to determine was whether there was a serious question to be tried which would have formed the basis for the grant of injunctive relief to the appellants pending the determination of the substantive matter. It is therefore within that context that the Court posed the question that follows:
From the perspective of each of the ten prison officers, is it reasonable for him to be apprehensive about getting a fair hearing of the allegations of misconduct been made for the first time against him after he had already being informed that the Commission is of the opinion that, on the evidence adduced before it, it is likely that it will find him to be guilty of misconduct?
The Court then took into consideration the nature of the complaints made by the appellants against the respondent together with the risk of damage as perceived by them with respect to their reputation, livelihood and future prospects as prison officers, and the Court found that on a balance of convenience the relief sought should have been granted and that the proceedings of the Commission should have been stayed until the determination of the motion for judicial review.
Damage to Reputation , Livelihood and Future Prospects
As to the risk of damage to reputation etc, paragraph 29 of the Salmon Report is instructive:
“29. During the last 30 years some of the safeguards of our ordinary judicial processes against causing unnecessary pain and injustice to individuals have been incorporated in this inquisitorial procedure. If this procedure is to be retained, it becomes an important part of out duties to consider how these safeguards can be maintained, extended and improved. We are convinced that much can be done in this direction. In the end, however, one must accept that it is impossible to eliminate all risk of personal hurt and injustice. This risk is inherent in any procedure which is effective for arriving at the truth, but the risk can and should be minimised. Even in the normal judicial processes innocent persons are sometimes forced to attend court and give evidence and are subjected to accusations which may be hurtful to them and damaging to their reputations. And in matters which Tribunals of Injury are concerned it is vital in the public interest that the truth should be established.”
This passage highlights the reality of the inherent risk of personal hurt to persons concerned in a procedure that is instituted for arriving at the truth in a matter of public interest.
Legislative Intent of Section 23
In our view, the true intendment of section 23 is to suppress the mischief of a finding of misconduct being made by a Commissioner in his report against any person in breach of the principles of natural justice. The section accordingly enjoins the commission to inform the person concerned of any allegation of misconduct and to give him or her an opportunity to respond in the manner specifically prescribed by section 23(1). The section, however, does not prescribe the procedure for notifying the person whose conduct is being impugned, but leaves its formulation to the discretion of the Commission.
It is contended that the notices issued to the appellants are in essence “findings” made by the respondent without the appellants having had an opportunity to respond and rebut those findings.
Counsel points further to the content of the notices and accompanying documents and submits that in all the notices the respondent tells each of the appellants that a prima facie case had been made out against him.
What must, however, be borne in mind in determining this issue is that the notices were issued after a review of the evidence adduced in respect of the appellants and that submissions were made by both counsel on the evidence. At that stage of the inquiry, the respondent would undoubtedly have been left with some initial impressions of the evidence in relation to each of the appellants; and if those impressions were such as to suggest impropriety or misconduct on the part of any of the appellants, what then should have been the procedure adopted by the respondent to communicate his initial impressions formally to the appellants before the reporting stage of the inquiry? Clearly procedural fairness does not require a response to an allegation of impropriety without there being a formal notice of the allegation to the person concerned. To think otherwise would seem to be absurd to say the least. Indeed, Wiseman and another v Borneman and others  3 ALL E.R. at p. 275, seems to be in point. This was an appeal in which the taxpayers sought the determination of the Court whether:
(i) the tribunal in determining matters under section 28 of the Finance Act 1969 was bound to give the taxpayers an opportunity of dealing with the certificate and counter-statement of the Commissioner of Inland Revenue of the kind mentioned in section 28(5)(b);
(ii) the tribunal in determining such matters was bound to give the taxpayers an opportunity of addressing argument to the tribunal and of adducing evidence bearing on such questions; and
(iii) the procedure which the tribunal intended to adopt in relation to the taxpayers was in accordance with the principles of natural justice.
The second point was subsequently abandoned at the hearing before the Court of Appeal. Before the House of Lords only the substantive issue, whether the taxpayers had a right to see the counter-statement and reply to it, was argued.
It was held that in following the procedure laid down by the Act and not extending it to give the taxpayers the right to see and answer the counter-statement, the tribunal was not acting unfairly or contrary to the rules of natural justice.
In the course of his judgment Lord Reid said at p. 277:
It is, I think, not entirely irrelevant to have in mind that it is very unusual for there to be a judicial determination of the question whether there is a
prima facie case. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is prima facie case but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party.
Even where the decision is to be reached by a body acting judicially there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him. I do not think that a case has been made out that it is unfair to proceed as the statute directs. But I do not read the statute as preventing the tribunal from seeking further comment from the taxpayer if in any usual case they think that they could carry out their task more effectively in that way. If they do that they must allow the commissioners to reply if so advised because any decision against the commissioners is a final decision.
As indicated earlier, the respondent’s affidavit evidence discloses that he was mindful of the requirements of section 23(2), and that before he could make a finding of misconduct he was under a duty to inform the persons concerned of the allegations upon which such a finding was likely.
In the course of argument both Counsel referred to an extract from the Report of the Commission of Inquiry into the circumstances surrounding the shipment of arms from Israel to Antigua on April 24, 1989 en route to Columbia under the Chairmanship of Louis Blom-Cooper Q.C. It reads as follows:
Parties are granted legal representation precisely because they may have been in some way implicated or concerned in the matter under inquiry, or for some other reason may need to be protected against the possibility of criticism in the Report. If there is any likelihood of such criticism of any party, he or she is entitled to have advance notice of the nature of the potential criticism. It is because of the danger of unfairness inherent in the inquisitorial procedure that a practice has grown up of issuing what are known as Salmon letters, so called after the recommendation of the Royal Commission on Tribunals of Inquiry under the chairmanship of Lord Salmond (Cmnd. 3121). Salmon Letters which set out the particulars of any allegation or complaint, will be issued as soon as I think that there is prima facie evidence of justifiable criticism.
Ideally, a Salmon letter should issue before oral proceedings begin, but that may not always be possible. Some piece of new evidence may emerge only during the hearings, in which case fairness would indicate the issue of a Salmon letter immediately thereafter. I merely draw attention to this happening so that no legal representative can raise objection to his client receiving a Salmon letter after the hearings have begun.
In the present case, the notices were issued after both counsel had addressed the commission and the notices sought to give as much details as possible as to the allegations that were likely to be made against the appellants on the evidence adduced at the hearings and the findings of misconduct that were possible without more before a final decision was made for incorporation into the respondent’s report. Indeed, Louis Blom-Cooper in his statement on the proposed procedures for conducting his inquiry notes that “if there is any likelihood of criticism of any party, he or she is entitled to have advance notice of the nature of the potential criticism.”
His statement further indicated that as soon as he thought that there was prima facie evidence of justifiable criticism a Salmon Letter setting out the particulars of any allegation or complaint would have been issued.
It would appear therefore that the respondent was purporting to adopt the Blom-Cooper procedure as his guidelines in dealing with the situation that confronted him.
In Public Disclosure Commission v Isaacs  37 WIR 1, a complainant complained to the Public Disclosure Commission that the Prime Minister had made declarations under the Public Disclosure Act, 1976 relating to his financial affairs which were incomplete. The Commission investigated the complaint under section 7(1)(b). In the course of their investigation the Commission called upon the Prime Minister to provide clarification and explanation of certain aspects of his declarations. After the Commission had considered the explanations and answers, they ruled that the complaint had not been substantiated (without seeking any further views from the complainant). The complainant applied to the Court for an order of certiorari to quash the Commission’s decision and an order of mandamus to require the Commission to hear the complaint according to law. The orders were refused by Georges CJ, but his decision was reversed by the Court of Appeal. On further appeal, the Privy Council in allowing the appeal held that the underlying purpose of the Act as was made clear by sections 7(1) and 10 did not require the Commission (after they had formed the opinion under section 7(1)(b) that a complaint should be investigated) to give the complainant the opportunity to controvert, refute or rebut any case made to the Commission in answer to the complaint; further the audi alteram partem rule had no application to matters arising under the Act, other than where the Commission were minded to report, under section 8(3) that a complaint was groundless.
Per curiam. If the Commission were provisionally minded to find a complaint frivolous, vexatious or groundless and, in so reporting to the Attorney-General under section 8(3) to expose the complainant to the risks of prosecution for an offence under section 13, they would have to indicate to the complainant the
reasons for their provisional view and give him a fair opportunity (at an oral hearing, if he so wished) to demonstrate that their provisional view was unfounded and that he had at least good ground for making the complaint.
The provisions of the Act relevant to the Privy Council’s decision are as follows:
“6(1) The commission shall examine every declaration furnished to it and may request from a Senator or Member of Parliament any information or explanation relevant to a declaration made by him, which in its opinion, would assist it in its examination.
(2) Where upon an examination under subsection (1) the commission is satisfied that a declaration has been fully made, it shall publish a summary of that declaration in the Gazette in the form prescribed by Form B in the Second Schedule.
(3) Where the commission publishes a summary of a declaration under subsection (2) any person may make a written complaint to the commission in relation to that summary.
(b) after a summary of a declaration has been published in the Gazette under section 6(2) and any person makes a written complaint to the commission in relation to that summary and the commission, after consideration of the complaint, is of the opinion that the complaint should be investigated,
the commission may
(v) in respect of paragraph (b), in addition, summon the complainant, hear the complainant, (who may be represented by a counsel and attorney), and any witnesses of the complainant in support of the complaint.
8(3) Where the commission after conducting an inquiry in accordance with section 7(1) into any complaint made under section 6(3) is satisfied that the complaint is groundless or has not been substantiated it shall publish a statement in the Gazette to that effect, and in addition, where the complaint is groundless, the commission shall report the matter to the Attorney-General.
Section 13 of the Act also made it an offence to make “any frivolous, vexatious or groundless complaint to the commission in relation to a summary of a declaration.
The evidence before the Privy Council disclosed that the decision of the Commission was on the basis that the complaint by the respondent had not been substantiated and, as such, the Privy Council therefore concluded that the provisions of the Act did not require the commission to give the respondent the opportunity to rebut any case presented to the commission by the declarants in answer to the complaint. Other considerations, however, would have applied if the commission were minded to make a report under section 8(3) of the Act to the Attorney-General that the complaint was frivolous, vexatious and groundless. In any such case procedural fairness would have demanded that the complainant be accorded an opportunity to be heard in respect of the provisional view of the commission regarding the complaint.
It is to be noted from the foregoing that different language is used to reflect (a) the thought processes of the person conducting an inquiry and (b) the reporting stage in fulfilment of the commissioner’s mandate.
Blom-Cooper speaks in terms of:
(i) Salmon Letters... will be issued as soon as I think that there is prima facie evidence of justifiable criticism;
(ii) If there is any likelihood of such criticism ... he or she is entitled to have advance notice of the nature of the potential criticism.
In the Public Disclosure case, Lord Bridge of Harwick adopts the following language:
(i) if the commission were provisionally minded to find a complaint frivolous etc.
(ii) they would have to indicate to the complainant the reasons for their provisional view.
It would seem that the language adopted has as its central purpose the fulfilment of the principle that if a person may in some way be adversely affected by an investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. (see R v Race Relations Board, ex parte Selvarajan  1 ALL ER. 12 at p.19.
In the present case, the respondent adopts a form of words for the notices to the appellants other than that referred to earlier and no definitive view can be taken that the language which he has adopted was engendered by the combined effect of the provisions of sections 23(1) and (2) of the Act, which provide:
23(1) Where it appears to the Commission that allegations ... are likely to be made etc.
(2) No finding of misconduct ... shall be made by a commission unless ....
However, whatever may have influenced his mind in formulating the notices to the appellants in the way he did, the respondent certainly made a full disclosure to each of the appellants as to what was operating in his mind as he sought to evaluate the evidence before him for the purposes of his report.
Counsel for the respondent referred to the Canadian case of Canada (Attorney General) v Canada (Commission of the Inquiry on the Blood System) (C.A.) (1997)2 S.C.R. at p.36 and read extensively from the judgment of Decary J.A. in respect of an appeal and cross-appeals from a Trial Division decision dismissing applications for judicial review of notices delivered under section 13 of the Inquiries Act. In our view the case is indeed instructive; however, a reference to the headnote in part would substantially suffice for present purposes:
In October 1993, the Canadian Government established an Inquiry Commission to review and report on the safety of the blood system in Canada. Public hearings were held between November 22, 1993 and December 21, 1995, at which date commission counsel delivered forty-five notices naming ninety-five individuals, corporations or governments. Depending on the case, the notices contained from one to one hundred allegations of misconduct. A number of those who had received the notices brought applications for judicial review, arguing that the Commissioner did not have the power to state the conclusions of law in relation to their civil or criminal liability and that delivering the notices at the very end of the hearings violated the rules of procedural fairness. The trial Judge dismissed the applications for judicial review on the basis that the Commissioner had jurisdiction to send the notices, that the challenge was premature and that the applicants had been accorded all procedural safeguards during the hearings.
Three main issues were raised on appeal:
(i) whether the applications for judicial review were premature;
(ii) whether the Commissioner had the power to make conclusions of law in respect of the appellants’ civil or criminal liability, and
(iii) whether the requirements of procedural fairness had been met.
Dismissing the appeal and allowing the cross-appeals in part, the Court held that:
(1) the submission that the applications for judicial review were premature in that the notices were merely an administrative act setting out hypothetical findings could not be accepted. In modern case law, the so-called “administrative” nature of an act does not place that act beyond the reach of judicial review. One of the objectives of judicial review of the decisions of administrative bodies is to prevent those bodies from doing acts that they do not have the power to do.
The hypothetical finding set out in a notice is one that a commission has the power to make, as an actual finding, in his report. Here the act of the Commissioner that is being challenged is not pure speculation on his part that might have been gleaned from his conduct or his comments at the inquiry; rather, it is an opinion clearly expressed by his representatives to the effect that such conclusions are possible.
In principle, it is possible to apply to quash a notice that a commissioner decided to give under section 13. In practice, however, the courts must show extreme constraint before intervening at this stage. The notices in no way state the Commissioner’s opinion, they merely state the possibility that the Commissioner may state the opinion that there has been misconduct. The courts should intervene only when the content of the notice implies an obvious excess of jurisdiction, or discloses a flagrant breach of the rules of natural justice. However legitimate and important the objective may be, it does not justify all the means that might be used to achieve it. The search for truth does not excuse the violation of the rights of those being investigated. The considerable powers of commissioners and the ready, numerous and often tempting opportunities for abuse make it particularly necessary that the courts be vigilant.
(ii) A public inquiry into a tragedy would be quite pointless if it did not lead to identification of the causes and players for fear of harming reputations and because of the danger that certain findings of fact might be invoked in civil or criminal proceedings. It is almost inevitable that such an inquiry will tarnish reputations and raise questions in the public’s mind concerning the responsibility borne by certain individuals. Section 13 of the Act expressly permits a commissioner to make findings of “misconduct”, that is in breach of a standard of conduct. To contend that a commissioner may not find that a person has breached a duty is to strip section 13 of any meaning and to muzzle a commissioner. What the appellants objected to was not disclosure of their names, but the wording of the allegations that might be made against them. It must be taken for granted that the commissioner has no power to make finding of liability. The expression “findings of liability” is hallowed by practice and the case law …. Although the choice of certain expressions in the impugned notices and the imputation of intent based on mere knowledge of a fact, on their face, give the impression of being allegations of liability, the commissioner has not made allegations of misconduct in terms that amount to conclusions of law in respect of the appellants’ civil or criminal liability.
(iii) Essentially, the appellants challenged the commissioner’s decision to wait until the end of the hearings before giving the notices required by section 13. The Inquiries Act does not impose a code of procedure. While a commissioner has all necessary latitude, the procedure he establishes must nonetheless respect the rules of procedural fairness, including those set out in sections 12 and 13 of the Act. A public inquiry under the Inquiries Act is not a trial, the report of a commissioner is not a judgment and his recommendations may not be enforced. Section 13 requires “reasonable notice” which means that notice must be given “in the course of an investigation” and before the report is made. There is no requirement that the notice be given to a person before he testifies. The Act gives a commissioner the power to give notices, and whenever a public inquiry is conducted, any person whose conduct may be connected, whether closely or otherwise, to the investigation must be aware that an allegation of misconduct would be made against him or her.
Since the commissioner enjoys considerable latitude, nothing would prevent him from waiting until the end of the hearings, when he has all the information required, to give notices, rather than taking a day to day approach to it, with the uncertainty and inconvenience that this might involve.
It was not impossible for the appellants to respond adequately within the time allowed or within a longer time frame, which they did not really make any attempt to obtain.
Section 13 of the Inquiries Act, 1985 of Canada enacts that:
No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.
This court has already indicated that section 23(2) of our Act is in terms essentially on all fours with section 13 of the Canadian legislation. The Canadian Court of Appeal’s approach to the application of section 13 of their Act can therefore be of assistance to this court in determining the appellants’ challenge to the respondent’s notices to the appellants under section 23(2).
Décary J.A. while considering the issue raised as to the prematurity of the applications for judicial review said at page 13:
The commissioner contends that the applications for judicial review are premature, in that the notices were mainly an administrative act setting out hypothetical findings. Mr. Justice Richard accepted that argument, although I am not certain that this was the reason he dismissed the applications. What he said was:
The central argument of the applicants rests on the analysis that the commissioner cannot set out in the notices allegations which in their view amount to, are tantamount to, or are equivalent to, findings of criminal or civil liability because they could not properly be made as findings. However, no such findings have been made by the commissioner; he has only given statutory notice to different persons of the charges of misconduct alleged against them. I am not only being asked to agree with their characterization of the allegations, but also to conclude that the commissioner may make such findings and that if he did make such findings, they would be beyond his mandate.
It appears to me to be self-evident that if the commissioner does not have jurisdiction to make the findings in his final report of which his counsel were forewarning the appellants in the notices, he must also have no jurisdiction to give notice that such findings might be made. We must assume that the hypothetical finding set out in a notice is one that a commissioner has the power to make, as an actual finding, in his report. A person who is subject to the authority of an administrative body should not be threatened with an act which that body does not have power to do, nor should such a person be compelled to attempt to refute, at a continued inquiry, a finding that the administrative body in fact has no power to make. Here, the act of the commissioner that is being challenged is not pure speculation on his part that might have been gleaned from his conduct or his comments at the inquiry; rather, it is an opinion clearly expressed by representatives of the commissioner to the effect that such conclusions are possible; that very possibility is formally enunciated in a notice which is required by the Act and which gives the appellants the undeniable right to be heard if they deem it appropriate, and absent which the commissioner could not allege misconduct against the person in question.
It is appropriate at this stage to note that the Canadian Court took the view that the “hypothetical finding” set out in the notices to the persons concerned was one that a commissioner had the power to make as an actual finding in his report.
The notices which the court had to consider read as follows:
TAKE NOTICE that the Commissioner may make the following findings that may amount to misconduct within the meaning of the Inquiries Act…
AND TAKE NOTICE that you are entitled to be heard in person or through counsel to address these potential findings.
It would be useful at this point to note that the terminology used by the courts in their decisions, and used otherwise in material before us to characterize what was being notified, or to be notified to the persons concerned in the inquiry varies in its structure, viz “provisional findings”, “possible findings”, “potential findings” and “hypothetical findings” and “prima facie evidence of justifiable criticism”.
In the instant case, the respondent’s notices speak of “likely findings”. All of these phrases would seem therefore to import the concept that the adjudicator had not taken a definite position on the evidence before him. In short, he had not yet made up his mind at the time of issuing the notices.
Décary J.A., indicated in his judgment that the impugned notices were not all worded in the same manner. The notices served on four specified appellants were identical, to all intents and purposes and contained 70 allegations, which in turn contained about a hundred sub-allegations.
At page 21 he said:
Each notice starts off, in paragraph 1, with a general allegation which reads as follows:
… failed adequately to oversee, direct and provide resources for the operation of the Blood Transfusion Service (BTS) and Blood Donor Recruitment (BDR), at both the national and local level, and as a result contributed to and are responsible for the failure set out below …
There follow a series of specific allegations, a few of which are illustrated below:
5. The CRC failed to implement in a timely manner, during January 13, March 10, 1983, any national donor-screening measures to reduce the risk of transfusion – associated AIDS, this failure causing unnecessary cases of transfusion-associated HIV infection and AIDS to occur.
9. In 1984 and 1985, the CRC failed to expeditiously implement HTLV-111 screening of blood samples and this delay directly resulted in cases of transfusion-associated HIV and AIDS…
Much less detailed notices were served on the other appellant doctors who worked for the Red Cross. Those notices each contained from one to four allegations, including the following:
...despite knowing that male donors who had sexual relations with men were at high risk for AIDS, failed throughout 1984-1985 to stop the collection of blood donations at clinics in [an area] that was known to be located within the gay community …
...despite knowing that non-heat-treated factor concentrates carried a greater risk of transmitting HIV and hepatitis, and despite having a substantial local inventory of heat-treated product by June 1985, distributed as much of the Centre’s non-heat-treated product as possible prior to the general introduction of heat-treated product on July 1, 1995 as part of a planned depletion of the non-heat-treated inventory.
There are some other illustrations of notices appearing in Décary’s J.A., judgment, however, it seems only necessary to refer to the following (p.21):
“The notice sent to … the former operations manager in the blood product section of the Red Cross contains 17 allegations, the first of which reads as follows:
… participated in and was partially responsible for the failures set out below:
The notice delivered to Connaught contains 10 allegations, including the following:
7. … In 1983 knowingly and wrongly advised the CRC that the factor concentrates being made from U.S. plasma and being supplied to CRC…were not made from plasma collected in places of high AIDS prevalence.
Commenting on the language of the notices, Décary J.A. said (p.22):
I acknowledge that the choice of certain expressions (“responsible for,” for one, in the context of failure that allegedly contributed to the death of a number of people) and the imputation of intent based on mere knowledge of a fact (despite knowing, for example), on their face, give the worrisome impression of being allegations of liability, indicating potential findings of liability.
However, it seems to me to be premature to assume the dramatic consequences that the appellants see therein.
The Commissioner may have sinned by excess of zeal in forging ahead with such detailed notices and prefacing the series of allegations, in the notices to the Red Cross, Dr. Davey, Dr. Perrault, Mr. Weber and Mr. Anhorn, with an introductory paragraph which is not truly appropriate and which contains the unfortunate expression “responsible for”. Certainly when presented in that manner, one after another in a single document, the allegations appear more overwhelming than they would be if they were to be adopted, once they were spread out in the final report. Appearances may be deceiving; I do not intend to quash any notice on the basis of mere appearances.
The notices delivered to Connaught, Baxter and Bayer are less troubling. These appellants are asking that, based on the words chosen by the Commissioner and interpreting those words from a legal perspective, we impute to the Commissioner an intent to hold them responsible for the consequences of their respective failures. At this stage, I am not prepared to quash any notices on the strength of such a strained reading.
I am certain that the Commissioner will understand that he would be venturing onto dangerous ground if, in his final report, he were to persist in using some of the terms he used in the notices and in adopting turns of phrase that bear too close a resemblance to the expression of a conclusion of law. Subject to this caveat, I find that the Commissioner has not made allegations of misconduct in terms that amount to conclusions of law in respect of the appellants’ civil or criminal liability.
The attack mounted by the appellants on the basis of the actual content of the notices must be dismissed.
Like the Blood Systems case, the wording of the allegations contained in the ten notices to the appellants in the instant case is not identical to all intents and purposes and, in the interest of brevity at this stage, references to the relevant portion of the notices will be made only to the wording in the following:
I, Elliott FitzRoy Belgrave … Commissioner, pursuant to the provisions of section 23 of the Commissions of Inquiry Act, do hereby give you notice that I am of the opinion that, on the evidence adduced before me at the said inquiry… it is likely that I will find that you have been guilty of misconduct as a result of the lax manner in which you organised the security arrangements with respect to the safe custody of high risk prisoner Winston Leroy Hall whose history of escaping from legal custody is legendary and well known to you in that as head of the maximum security area you failed to give prison officers working under you proper and/or adequate instructions in the handling of Winston Hall when going to the bath.
You are also entitled to a reasonable opportunity in which to contest the prima facie case which I have set out herewith against you. I expect to hear from you or your attorney-at-law within seven (7) days from the receipt of this letter by you.
The foregoing paragraph appears in all the notices and, as indicated earlier, a summary of the evidence that the respondent considered capable of supporting a finding that a prima facie case of misconduct could be made against each of the appellants with the relevant transcripts of evidence accompanied the notices.
I … do hereby give you notice that I am of the opinion that on the evidence adduced before me … it is likely that I will find that you have been guilty of misconduct as a result of the irresponsible manner in which you have conducted yourself as Acting Assistant Superintendent of Prisons with respect to the lack of interest in and lack of concern shown by you for the proper security of prisoner Winston Hall during the time he was housed in cells on the A corridor of the Prison from 24th September 1998 to 23rd September 1999, the date of his escape.
The evidence before me could tend to show that you have not discharged your responsibility as you ought and that you must bear responsibility for the escape…
I, … do hereby give you notice that I am of the opinion that on the evidence adduced before me at the said inquiry … that it is likely that I will find that you have been guilty of misconduct as a result of the lax manner in which you conducted yourself with respect to the supervising of the handling of high risk prisoner Winston Hall … as a result of which slackness and ineptitude on your part the prisoner Winston Hall escaped… and is still unlawfully at large.
In the summary of evidence the following appears:
The above evidence is capable of supporting a finding that you deliberately absented yourself from the Maximum Security Area and thereby facilitated the escape plans of prisoner Winston Hall which constitutes a serious dereliction by you of your duty…
I, … do hereby give you notice that I am of the opinion that on the evidence adduced before me at the said Inquiry … that it is likely that I will find that you have been guilty of misconduct as a result of the highly improper manner in which you conducted yourself as a prison officer after the escape of prisoner Winston Hall… in that you well knew that it was the Acting Superintendent of Prisons … who on the 12th day of November, 1998 had instructed you to make an entry in the Information Book on the Maximum Security Area of the prison to the effect that the shackles should be removed from prisoner Winston Hall during the day and be replaced at night.
Notwithstanding this knowledge and after having certain conversations with the said … Acting Superintendent you wrote a report to him in which you falsely stated that you did not receive from him the said instructions re the removal of the shackles from prisoner Winston Hall.
You also gave a statement to the police in which you also falsely stated that you could not recall the name of the person who had given you the said instructions … By making these false reports you deliberately set out to protect Mr. George Clarke and to cast suspicion on the Senior Prison Officers with whom you worked in the Maximum Security Area of the prison…
I, … do hereby give you notice that I am of the opinion that on the evidence adduced before me at the said Inquiry … that it is likely that I will find that you have been guilty of serious misconduct as a result of the highly irresponsible manner in which you conducted yourself as a prison officer with two years, eight months’ experience, on the 23rd day of September 1999, in that although you knew that you had absolutely no training whatsoever in the use of firearms, and that you had never even discharged a firearm of any kind, you presented yourself at the office of the Orderly Officer on the same 23rd of September, 1999 and there received from Anderson Hoyte … a 12 gauge pump action shotgun and 10 rounds of ammunition in order that you could take up duties as an armed guard outside the exercise cage on the Maximum Security Area, well knowing that if an emergency had occurred which required you to use the said firearm for any lawful purpose, you would have been utterly unable to discharge the duties required of an armed prison guard.
As a result of your highly irresponsible and reckless conduct you were unable to prevent the prisoner Winston Hall from jumping over the prison wall and making good his escape from lawful custody on the said 23rd September, 1999.
The appellants are contesting what they consider to be “the findings of the Commission as contained in the documents” served upon them and they assert that the proceedings of the Commission have been conducted and findings arrived at in excess of its jurisdiction, contrary to law and the principles of natural justice.
On the basis of our examination of the cases and other materials referred to in the course of argument and on our analysis of the issues raised on this aspect of the appeal, we are of the view that the language adopted by the respondent to formulate the notices to the appellants cannot reasonably be construed as findings of misconduct within the contemplation of section 23(2) of the Act. It is our further view that section 23(2) contemplates that notice of allegations of misconduct must first be communicated to the persons concerned and that they be given an opportunity to respond before a commission may make formal findings on those allegations for inclusion in its report. Before any allegations may be formulated for notification to the person whose conduct is in question, it is manifestly clear that the evidence adduced before a commission would have to be the basis upon which the notices are constructed together with the commission’s initial assessment of that evidence.
The use by the respondent of the words: “I am likely to find”; “the evidence would tend to show” … or “is capable of supporting a finding” is not dissimilar in concept from those used by other adjudicators to indicate that no final determination had been made on the matter being inquired into. To contend, based on the language used by the respondent in the notices and other documents issued to the appellants that it is reasonable to expect that the respondent will find the appellants guilty of misconduct and, as such, any appearance before the Commission in response to the notices would be a “sham” would seem to be venturing into the area of speculation and we are therefore unable to impute to the respondent an intention to find the appellants jointly or severally culpable or negligent i.e. guilty of misconduct, in any event. Accordingly we find that the contentions of the appellants to that effect are without merit and must therefore fail.
Each of the appellants asserts in his affidavit that he received from the Commission of Inquiry extracts of the record of evidence and that he verily believes from his perusal of the evidence that there was bias on the part of the Commissioner.
Counsel for the appellants contends that the learned trial Judge did not fully come to grips with the issue of bias in that in his judgment he refers to comments made by the respondent and appearing in the transcript of the evidence of appellant Small that were innocuous – i.e “orchestrated”; “because the objective achieved”, “mission accomplished” – in support of his determination that there was no bias on the part of the respondent.
Counsel referred us to other comments of the respondent appearing in the transcripts and he contends that they illustrate findings on the part of the respondent or that he prejudged certain issues before the evidence was fully adduced and without any prior warning to the persons concerned. Some of these comments are contained in the following extracts:
COMMISSIONER: So he was not the regular sentry, on regular guard down there?
Mr. SMALL: No sir, he was not regular. Officers are changed...
COMMISSIONER: It seems to me as if this was orchestrated and he was planted there to be ineffective. Doesn’t that appear so to you? You’ve got a football match going on, you’ve got a heavy duty, heavy level meeting going on in the office. You want me to explain more to you, or you can see it? You can see, or you can’t see?
Mr. SMALL: I’m getting there sir.
COMMISSIONER: Getting there? I there a long time.
Mr. MOTTLEY: One of the most significant things, when Hall was leaving his, (sic) bringing out his bucket, should his bucket not have been searched?
Mr. SMALL: If the officers involved, after having the bucket, or the contents of cells, whatever, searched the morning, if they direct, if the officers believe that they have suspicion…
Mr. MOTTLEY: Let me interrupt you. If the officers did not go, or at least one of the officers, I believe one may have gone in the morning, but the officer did not go, if both officers did not go to the cell in the morning, should he not have been searched?
Mr. SMALL: Yes sir, they should have checked what…
Mr. MOTTLEY: Should the bucket not have been searched, coming out?
Mr. SMALL: They should have checked what is going out, they should have checked what he’s bringing out.
Mr. MOTTLEY: Because if he’s been searched, they would have found the sheets tied together. You see evidence, this is now falling…
Mr. MOTTLEY: … a pattern in now falling.
Mr. MOTTLEY: … is now beginning to fall into place.
COMMISSIONER: Yes. It’s a clear plan.
Mr. MOTTLEY: Neglect in searching the bucket. If the bucket had been searched, you would have seen sheets knotted together – you agree with that?
Mr. SMALL: That is true sir.
Mr. MOTTLEY: And that would put any, that would put even the most junior officer, or the most simple-minded, feeble-minded person, that something is amiss. Do you agree with that?
Mr. SMALL: That’s true sir.
COMMISSIONER: The public out there feel that the people in the prison let Hall out. That’s what the public out there feel. Wherever I go, that’s what they say, and I tell them it isn’t true. We’ve now what is, up here, seem to indicate that it was a plan. It seems so, you can’t avoid the conclusion. I have never seen anything like it.
What these extracts disclose is that as the appellant Small narrated the events surrounding the escape of the prisoner, there was commentary by the commission counsel, the appellant himself and the respondent on Small’s responses to questions directed to him. In some instances Small agreed with suggestions put to him by counsel which would have formed the basis of evidence on the particular issue. For example: “If the bucket had been searched, you would have seen sheets knotted together” – you agree with that? Response: That is true sir … “And that would put any, that would put even the most junior officer, or the most simple-minded, feeble-minded person, that something is amiss”. Do you agree with that? Response: That’s true sir.
Counsel for the appellants draws attention to the Commissioner’s following remarks:
(a) “It seems to me as if this was orchestrated and he was planted there to be ineffective, etc.
(b) The public out there feel that people in the prison let Hall out. That’s what the public out there feel. Wherever I go, that is what they say, and I tell them it isn’t true. We’ve now what is, up here, seem to indicate that it was a plan. It seems so; you can’t avoid the conclusion. I have never seen anything like it.”
and contends that extraneous matter may have stayed in his mind and affected his decision.
Nowhere in the transcripts there appears any objections by counsel appearing on behalf of the appellant to the remarks appearing in the foregoing extract, particularly those made by the respondent.
As regards the notices and the summary of evidence issued to appellant Small, it is to be noted that our attention has not been directed to any instances where the notices or summary of the evidence made reference to or indicated that the appellant was party to a plan to facilitate the escape of the prisoner.
Wednesday, December 8, 1999
CL – 108
Mr. COMMISSIONER: But I still want to know how many prisoners can watch a film at any one time?
Mr. ROUSE: Over 200.
Mr. COMMISSIONER: At one time? Now who could help me with the questions you cannot answer as to whether a film was shown in there depicting a prison escape. Who can help me with that? We have evidence that when Hall made his daring escape on the 23rd September a football match was going on. You know we have that? We have that from you too, right or wrong?
Mr. ROUSE: Yes Sir.
Mr. COMMISSIONER: We have evidence too that some time in the past 11 prisoners successfully escaped during a time when a basket ball match was in progress?
Mr. ROUSE: 10 Sir.
Mr. COMMISSIONER: Don’t mind. Don’t be concerned about the numbers. Now what I am saying it seems to me that somebody in there, either inmate or otherwise is aware that is one of the techniques used when you are going to effect a prison break, have a diversion.
Mr. ROUSE: I do not believe that, Sir, that because of the game.
Mr. COMMISSIONER: Explain what you mean to
CL – 109
Mr. ROUSE: … because of the shortage of staff we still have to allow inmates to recreate.
Mr. COMMISSIONER: In the afternoon. I am not complaining about their recreating themselves as you put it, exercising and enjoying themselves if they can in the circumstances in which they must exist due to their own wrong doing. I am not complaining about that. But to organise it in the morning at 10 o’clock for a limited period 16 to 17 days. It would appear that mischief was afoot. So you do not feel that the playing of the game was in any way connected with the escape of Hall? Is that what you are saying to me?
Mr. ROUSE: I guess at the same time it could be the opportune time.
Mr. COMMISSIONER: Are you feeling that the meeting in the Superintendent’s office that was an opportune time too, that was an accident or just a coincidence?
Mr. ROUSE: I would believe a coincidence, Sir.
Mr. COMMISSIONER: You believe the meeting on that morning was a coincidence? Playing the football game was a coincidence? You believe that?
Mr. ROUSE: Yes Sir.
CL – 110
Mr. COMMISSIONER: The putting of a man who cannot shoot to guard the security section, that was a coincidence too?
Mr. ROUSE: Yes Sir.
Mr. COMMISSIONER: Are you aware that some of the monitors in the control tower were not working?
Mr. ROUSE: Yes Sir.
Mr. COMMISSIONER: That is a coincidence? I do not want you laughing at me.
Mr. ROUSE: I am not laughing at you, Sir. I am just looking at the whole thing, Sir.
Mr. COMMISSIONER: It is laughable. You think the whole thing is a comedy?
Mr. MOTTLEY: It seems like a comedy?
Mr. COMMISSIONER: And you would say that is a coincidence? Bringing the man from maximum security, carrying him up on the A corridor with no bathroom that is a coincidence too, and one that you turned down, that you refused to implement. That is a coincidence too? Tell me. See if you can get out of that and say that is a coincidence? Was that a coincidence or was it by design? You did not order it. You are clean on that. You refused to transfer the man one of the wisest things you have ever done. But what you did and you should not have done you did not insist or ensure that the bathroom was completed when you took over in March to May for 9 weeks. Why didn’t you complete the bathroom for that period? That is what I am trying to find out.
The other coincidence that I think I should ask you about is about the order to have the shackles removed. Was that a coincidence too, knowing that he had to go all that long distance to the bathroom?
Mr. MOTTLEY: There is one more, Sir, not searching his bucket.
Mr. COMMISSIONER: Not searching the bucket. All of those are coincidences. Tell me if you were sitting how would you regard them?
Mr. ROUSE: As serious.
Mr. COMMISSIONER: As serious? Only serious? Well, well, well. Yes Mr. Mottley.
Mr. MOTTLEY: I do not think I have any more questions for him at this stage.
Mr. THORNE: Mr. Rouse, when Mr. Small wrote to you by letter 4th May, 1999 he asked you to keep a copy for your personal use?
Mr. ROUSE: Yes Sir.
Mr. THORNE: Do you know why he was asking you to keep a copy for your personal use?
The foregoing would seem to disclose that the respondent was seeking to obtain explanations and clarifications from this appellant on certain features of the evidence that had been adduced before the Commission. The dialogue between the respondent and the appellant during which the respondent directed the appellant’s mind to aspects of that evidence and sought his responses to the events that had occurred on the day of the escape
seems to support such a view. It is also observed that no objections by Mr. Thorne to the remarks made by the respondent appear in the extract.
We are mindful, however, that the extracts reproduced above, and the transcripts generally, are unable to reflect the atmosphere that prevailed at the time when the evidence was being adduced and the comments were made. In this regard, it is nonetheless appropriate to note the following in respect of the appellant Rouse:
Mr. COMMISSIONER: Are you aware that some of the monitors in the control tower were not working?
Mr. ROUSE: Yes Sir.
Mr. COMMISSIONER: That is a coincidence? I do not want you laughing at me.
Mr. ROUSE: I am not laughing at you, Sir, I am looking at the whole thing, Sir.
Mr. COMMISSIONER: It is laughable, you think the whole thing is a comedy?
Mr. MOTTLEY: It seems like a comedy?
This dialogue seems to suggest that at times certain features of the evidence aroused laughter or provoked comment that, taken out of context, would appear inappropriate in an otherwise serious matter of investigation.
In the course of appellant Toppin’s examination by Mr. Forde on behalf of the Commission, questions and or suggestions, in respect of the playing of the football game in the prison during the morning of the escape were put to him by the respondent to which he replied. The following extract reflects these exchanges:
COMMISSIONER: But you know what I’m saying, that the playing of a game in the prison is one of the techniques used to create a diversion.
Mr. TOPPIN: There are other means too Sir.
COMMISSIONER: What is the question? You answer my question, yes or no.
Mr. TOPPIN: I can’t say in this instance that that was the reason Sir.
COMMISSIONER: I am asking you a general question; that the playing of games can be used as a diversion, to facilitate an escape. Are you aware of that?
Mr. TOPPIN: Well that can happen too Sir.
COMMISSIONER: Well you know, you’ve read about, you’ve seen films on it. Yes or no?
Mr. TOPPIN: No, I haven’t seen any films on it.
COMMISSIONER: Well you know about it – with twenty-nine year’s experience, you know that. And I am suggesting to you, that’s why you organised it in the morning.
Mr. TOPPIN: You think so Sir?
COMMISSIONER: Yes of course so – (sic) I absolutely believe it.
Mr. TOPPIN: It is not so Sir.
COMMISSIONER: And you did it deliberately.
Mr. TOPPIN: And I am saying I did not do that Sir.
COMMISSIONER: Well I didn’t expect you to come in and admit that. You can walk back into prison as an inmate.
The transcript further discloses that questions were asked by the respondent as to the playing of games on September 24th, the day following the escape and that the appellant indicated the prison was on high alert on that day but he could not speak with certainty as to the situation that existed at the time of his being examined by the respondent. His reason being that he was on vacation, whereupon the respondent quipped: “You should be on permanent leave”.
The transcript also reveals that there were heated exchanges between the respondent and counsel for the appellant, Mr. Thorne, during which time, the respondent remarked that counsel was trying to put words in his (Toppin’s) mouth. To which counsel replied: “Not at all, he is a very articulate man”. Nowhere in the transcript, however, is there any record of a formal objection by counsel to any of the remarks made by the respondent.
We have examined the other transcripts in respect of which counsel relies to support his contentions that the respondent prejudged certain issues and made findings prejudicial to the appellants in breach of procedural fairness, but in our view reference to each of them specifically is unnecessary for present purposes.
Based on the documents referred to, counsel for the appellants urges this court to –
a) quash the entire Commission; or
b) prevent the respondent from taking any further evidence from the appellants or from making any findings against them.
One of the tests that courts apply to determine whether or not there is bias on the part of an adjudicator appears in the judgment of Lord Goff in R v Gough  2 ALL ER 724 at 737 in these terms:
... I wish to express my understanding of the law as follows:
I think it is possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunal, or with jurors, or with arbitrators.
Likewise, I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it is unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real
danger rather than likelihood, to ensure that the court is thinking in terms of the possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.
In seeking to resolve the issue of bias, it would seem that this Court has to consider whether in the circumstances and nature of this inquiry there is a real danger or possibility of bias on the part of the respondent in that he might unfairly regard with disfavour the conduct of each of the appellants in relation to the escape of the prisoner.
As to real danger of bias, Lord Bingham C.J, in Locabail Ltd v Bayfield Properties  1 ALL ER 65 at p 77 indicated as follows:
... a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR 568); or if, for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him.
The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness unreliable, would not without more found sustainable objection… We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.
It is, however, generally undesirable that hearings should be aborted unless the reality or appearance of justice requires that they should.
To support his contention that there is a real danger of bias on the part of the respondent, counsel relies on the following passage appearing in the foregoing:
... if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind; or if, for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issue before him.
It is considered appropriate at this stage to recall that the respondent’s appointment under the Commissions of Inquiry Act is that of an investigatory commission to inquire into all the circumstances surrounding the escape of the prisoner from Glendairy Prison including any acts or omissions on the part of any person inside or outside the prison; to determine whether any person was culpable or negligent in regard to the escape; to review and report on the adequacy of the existing security arrangements at the prison etc. The warrant of appointment also requires the respondent to furnish the Governor-General with a written report of the inquiry containing an account of the proceedings together with his findings and recommendations.
The nature of the issue to be reported and the manner in which it is to be reported upon are therefore clearly set out in the respondent’s Warrant. In fulfilment of his mandate, the respondent is to investigate the conduct of persons in or outside of the prison and report on any findings of misconduct by any such person in relation to the escape.
An illustration as to the nature and extent of the powers of a commission under an Inquiries Act may be gleaned from the Canadian case of Beno vs Canada (Commissioner and Chairperson, Commission of Inquiry Into the Deployment of Canadian Forces to Somalia) (C.A.) (1977) S.C.R which was an appeal from a trial division order prohibiting the chairman of the Commission of Inquiry from making any finding adverse to the respondent Beno due to a reasonable apprehension of bias. The facts are these:
As an officer in the Canadian Armed Forces, Beno was served with a notice under section 13 of the Inquiries Act, indicating that allegations of misconduct on his part might be investigated by the commission and lead to a finding adverse to him.
In the course of the officer’s testimony before the commission, the chairman had interjected that Beno would not “gain much by fiddling around”. Shortly after, during a breakfast meeting at an officers’ mess in Calgary, the chairman, according to an affidavit filed by a Brigadier-General, said that Brigadier-General Beno had not given straight answers and perhaps was trying to deceive. An application for judicial review to prohibit the chairman from continuing to act as a commissioner or, at least, from making findings adverse to Beno was granted by the trial division. The appellants invoked two main grounds of appeal. First, that the trial judge erred in deciding that commissioners exercise “trial like functions” and, consequently, their impartiality should be judged by the “closed mind” test rather than by the reasonable apprehension of bias test. Second, that whatever the applicable test, the trial judge’s conclusion was not supported by the evidence.
Held, the appeal should be allowed.
The trial judge was wrong in assimilating commissions to judges and in holding that both exercise “trial like functions”. A public inquiry is not equivalent to a civil or criminal trial. In a trial, the judge sits as an adjudicator, and it is the responsibility of the parties alone to present the evidence. At an inquiry, the Commissioners are endowed with wide-ranging investigative powers to fulfil their mandate. The rules of evidence and procedure are therefore less strict at an inquiry than in court. Judges determine rights as between parties whereas Commissioners can only “inquire” and “report”.
While a judge has power to impose monetary or penal sanctions, the only consequence of a negative finding by the Somalia Inquiry would be the loss of reputation. Whatever the applicable test, the special nature of the commissioners’ functions should be taken into account in assessing their behaviour. The reasonable apprehension of bias standard must be applied flexibly. The Commissioners of the Somalia Inquiry must perform their duties in a way which, having regard to the special nature of their functions, does not give rise to a reasonable apprehension of bias. They should be disqualified for bias only if the challenger establishes a reasonable apprehension that they would reach a conclusion on a basis other than the evidence.
The Chairman’s “fiddling” remark was inspired by his own honest, although probably mistaken, perception of Beno’s evidence. It could not reasonably be seen as indicating a tendency to decide on some basis other than the evidence. If the judge disagreed with the Chairman’s assessment of Beno’s demeanour and credibility that was not a valid reason for questioning the Chairman’s impartiality. In retrospect, it is easy to say that the Chairman ought to have remained silent when criticized at the Calgary Breakfast. But when one’s impartiality is challenged, it is normal to offer an explanation. It does not prove partiality.
These views as to the nature of an investigatory commission accord with the following passage quoted in earlier proceedings before this Court in this matter:
There are important distinctions between inquisitorial procedure and the procedure in an ordinary civil or criminal case. It is inherent in the inquisitorial procedure that there is no lis. The tribunal directs the inquiry and the witnesses are necessarily the tribunal’s witnesses. There is no plaintiff or defendant, no prosecutor or accused; there are no pleadings defining the issues to be tried, no charges, indictment or depositions. The inquiry may take a fresh turn at any moment. It is therefore difficult for persons involved to know in advance of the hearing what allegations may be made against them. (see paragraph 30, Cmnd. 3121)
As to the non-application of the rules of evidence in an inquiry, the Commissions of Inquiry Act provides as follows:
21(1) Subject to subsection (2), a commission may receive all relevant evidence, and in so doing is not required to observe the rules as to the admissibility of evidence in a court of law.
(2) A commission shall not receive evidence if in its opinion the probative value is substantially out-weighed by the danger of confusing the issues or of causing undue waste of time.
(3) A commission may decline to receive any evidence which in its opinion ought to be excluded as irrelevant, unprofitable or unduly prejudicial.
Based on the foregoing it is clear that the special nature of the respondent’s functions, as commissioner, must be taken into account in determining the issue of bias as raised by the appellants. Another factor which seems to be relevant in considering the issue, is the presumption that the respondent would act impartially in the discharge of his mandate. Indeed, section 16 of the Act provides that:
Every commissioner shall make and subscribe an oath before the Governor-General that he will fully, faithfully, impartially and to the best of his ability discharge his duties as commissioner.
The presumption of impartiality will therefore be displaced only by evidence to the contrary.
Having regard to all of the above factors, we accordingly accept and find that the test and principles relating to the issue of bias must, in view of the special nature of the functions of a commissioner of inquiry, be applied flexibly, since the functions of a trial judge cannot be assimilated into the functions of an investigatory commission.
Vakauta v Kelly (1989) C.L.R., 568 is a decision on bias from another Commonwealth jurisdiction and was cited by counsel for the respondent. The head-note reads:
Court and Judges – Bias – Prejudgment of credibility of witness – Personal Injuries trial – Statements Critical of evidence of defendant’s medical witnesses in previous cases - Waiver - Further critical statements in reserved judgment-Reasonable Apprehension of bias.
The defendant in this case had appealed to the Court of Appeal on grounds which included bias, both actual and ostensible, on the part Hunt J of the Supreme Court of New South Wales in a personal injuries case. The appeal was dismissed and the defendant appealed to the High Court of Australia.
In the course of the hearing the Judge made a number of remarks that were critical of three doctors who were commonly called as witnesses by the Government Insurance Office (G.I.O) of New South Wales in personal injuries cases. The remarks included statements that the doctors “think you can do a full week’s work without any arms or legs”, and the three doctors’ opinions were “almost inevitably slanted in favour of the G.I.O by whom they have been retained, consciously or unconsciously”. He also made remarks critical of the efficiency of the G.I.O and said that it “would have to carry the can” or that it may be “necessary to tip the can on the G.I.O.”
Counsel for the defendant did not object to the remarks and made no application about them. In a reserved judgment in favour of the plaintiff the Judge said that the evidence of one of the doctors was “as negative as it always seems to be – and based as usual upon his non-acceptance of the genuineness of any plaintiffs complaints of pain”, and he prefaced his account of a number of apparent concessions made by the doctor with the words “Even Dr. Lawson thought …”
(1) that the Judge’s remarks during the hearing did not demonstrate actual bias against the defendant;
(2) that the remarks would have excited in the minds of the parties and in members of the public a reasonable apprehension that the Judge might not bring an unprejudiced mind to the resolution of the matter before him;
(3) that by not objecting to the Judge’s remarks the defendant had waived any right to appeal against an adverse decision on the ground of what had been said at the hearing.
In the course of its judgment the court said at p 570:
The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff’s claim and less optimistic in the prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf
of particular classes of defendants (e.g. those whose liability is covered by a particular insurer) …
Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such view in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. In the course of an eloquent passage in his judgment in Reg. v Watson Ex Parte Armstrong (11), Jacobs J. expressed the view that judicial “silence” is a “counsel of perfection”.
We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her view about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.
On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice.
It is to be noted at this stage that the above comments are generally made with reference to civil litigation before a trial judge.
The Court further commented at pp 571 and 572 in these terms:
In the passage in his judgment on Watson to which we have referred, Jacobs J. pointed to the undoubted fact that “it is the confidence in his own integrity which supports [a judge] not only in his judgment but in all his words and conduct”. Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias. For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge’s approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness’ views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.
As to the failure by counsel to object to the remarks made by the judge, the Court said (p 572):
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirements of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
Having given full consideration to the submissions of counsel within the context of the functions of the respondent as an investigatory commission and on the basis of the legal authorities referred to, we are not persuaded that the remarks made by the respondent are indicative of bias against the appellants.
Although, the language adopted by the respondent to elicit the evidence of the circumstances surrounding the escape of the prisoner was in some instances undoubtedly unfortunate we, however, do not find that the way in which he sought to express himself in his quest for truth gives rise to a real danger or real possibility or real apprehension of bias against the appellants.
The allegations contained in the notices to the appellants together with the summaries of the evidence cannot, in view of the requirements of section 23(2) of the Act, be construed as a prejudgment of the issue to be determined or as an enunciation of actual findings of culpability or of negligence on the part of any of the appellants in respect of the escape of the prisoner.
By virtue of his oath of office, the respondent is duty bound to discharge his functions faithfully and impartially and to report his findings on evidence adduced before him, and by necessary implication, to the exclusion whatsoever of any extraneous considerations. In this regard, there is therefore nothing before us to indicate that the respondent would make findings in his report based otherwise than on the evidence adduced at the hearings.
In observing that the remarks made by the respondent were in some instances unfortunate, we are nonetheless of the view that the terms in which they were expressed cannot necessarily be interpreted as disclosing an inability on the part of the respondent to bring to bear an objective assessment of the weight of the evidence before him in a matter of public interest.
In the event that we have misdirected ourselves in the assessment of the effect of the remarks made by the respondent, we accept the principle of waiver and find that by not raising any objections to them at the hearings, the appellants have waived their rights to object at this stage.
For these reasons the appeal fails and is dismissed.
There will be no order as to costs.
Chief Justice (ag.)
Justice of Appeal Justice of Appeal (ag.)