Independent Australia · Created Date 3/5/2017 11:30:53 AM

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The Alleqations

The three matters referred to above in paras 3. 1 . 2and 3. 1 . 3 were made the subject of claims that thebehaviour of Mr Justice Vasta in connection with themwere proper for inquiry by the Commission pursuant tos.4(1)(a) of the Act.

It was put forward that in relation to each of thethree matters Mr Justice Vasta gave false ormisleading evidence to the Court constituted by MasterLee QC on the hearing of the assessment of damages on10 September 1986.

As to the matter of the friendship with Sir TerenceLewis the material in the Statement of Claim is setout in para 3. 1. 6. The transcript of evidence takenat the hearing on 10 September 1986 contains thefollowing:

"rs it a fact that you are a friend of Sir Joh,Sir Edward Lyons and Sir Terence Lewj-s?--They areacquaintances in the sense that I meet them onsocial occasions and at functions like theopening of Parliament, but they are not friendsin the sense as suggested in the article.Is there any way that in the discharge of yourjudicial duties you have felt under someobligation from friendship towards theCommissioner of Po1ice?--Absolutely not. Thereis no suggestion that the discharge of my dutiesis in any way compromised by my knowledge of thethree persons mentioned in that article and, inparticular, the Commissioner of Po1ice."

It is this evidence which, it is said, does not accordwith the facts, that is to Sdy, the true nature of therelationship between the Judge and Sir Terence Lewis.

The AAT matter is referred to in para 3. 1. 4. Afterrecording a reference to the article in that issue ofMatilda, the transcript continues:

"what was your reaction to the article when youread it?--I was extremely offended and hurt atthe suggestion that I didn't know of theexj-stence of the Administrative Appeals Tribunal.

TeIl r€r was there such an incident when youcomplained about the Commonwealth's penchant forcreating new courts and tribunals and somebodymentioned AAT and you said you thought TAA hadsold it?--No, I have never mentioned anything ofthat nature to anyone.

So far as you are concerned that is af abrication?--Absolutely . "

It is this evidence which it is claimed does notaccord with the facts.

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The thir$ matter is referred 1. 7.Mr HampsQn, senior counsel for rqr Justice Vasta in thedefamati'bn proceeditrgS, in his examj-nation ofMr ,\r;itice Vasta, quoted the passage from the March1986 issue of the magazine "Mati1da" and asked: t'Youare familiar with that?" The Judge replied, "Yes."The transcript continued:

"when you read that passage what was yourreaction?--That devastated me. That made meterribly angry, offended and frustrated at thethought that those sorts of articles are beingwritten with such vitriol and venom.

It went on to say that you were forgetting as ajudge that you were not a Crown Prosecutor andoverdoing the charge to the jury. Was it thatparticularly offended you?--t{hat particularlyoffended me in that case was reference to thecase of the Queen against Carroll in which anappeal was allowed on matters completelydifferent from anything concerning the charge tothe jury.

It was a question of the ----?-- Similar factevidence.

Yes, the guestion of admissibility of evidence;nothing to do with how the jury were charged?--No, nothing at all, and it was obvious that thatarticle was written by a person who had not readthe judgment, but had maliciousness in mind."

ft is the evidence in relation to this matter which issaid not to accord with the facts.

The fmmediate Circumstances

The topic of the relationship between Mr Justice Vastaand Sir Terence Lewis, who was at all relevant timesCommissioner of PoIice in Queensland, assumedimportance before the Commission, if for no otherreason than because it was the trigger which set offthe chain of events that led to the setting up of theinquiry. It was made one of the Heads of fnquiryIpara 1. 1.13(d)]. The matter had, during 1988,received considerable attention at the FitzgeraldInquiry, and it was the subject of a great deal ofevidence in this Inquiry. ft will all be dealt withmore fuIIy later in this report.For the purposes of this section of the report it issufficient to state that at all relevant timesMr Justice Vasta and Sir Terence Lewis were friends.The evidence given by Mr Justice Vasta on 1 0 September1986 in the defamation proceedings lpara 3. 2. 3] wasthat Sir Terence, along with Sir Edward Lyons and SirJoh Bjelke-Petersen, were "acguaintances in the sensethat I meet them on social occasions and at functionsIike the opening of Parliament, but they are not

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Thank you for your very kind words. I appreciatethem very much and I will always treasure ourfriendship.I am sure I will see you with the festivitiescoming on and I look forward to that.

Kindest regards,

(Sgd) Angelo Vasta"

The Lewis diaries featured prominently in theFitzgerald Inqui,ry, and the entrj-es in turn were thesubject of very close scrutiny and questioning in thisinquiry. On the matter of the relationship between MrJustice Vasta and Sir Terence Lewis the entriesdi.sclose:

(i) Between January 1980 and March 1987 therewere twenty six phone calls and one meetingbetween them;

(ii) Between May 1982 and March 1987 there werefourteen occasions when they were present atlunch or dinner together, one occasion whenthey were together at the opening ofpremises of Cosco Holdings Pty Ltd and oneoccasion when they were both present at aparty to celebrate the dropping of chargesagainst six policemen Isee Bikie gandits];

Between April 1982 and September 1986 therewere seventeen occasions when the subject ofMr Justice Vasta was raised j-n meetings ortelephone conversations between Sir TerenceLewis and the Premier or other governmentoffice holders; Sir Terence was present atthe swearing in ceremony of Mr Justice Vastaas a Supreme Court Judge and there werethree occasions when he spoke to HisHonour's legal advisers concerning thedefamation proceedings.

(iii)

Sir Terence Lewis furnished a sworn statement to theFitzgerald Inquiry on 29 July 1988 [ex 121. In it hesaid:

"I regard Sir Joh BJELKE-PETERSEN, Sir EdwardLYONS, the Honourable Mr Justice VASTA, HisHonour Judge PRATT and the Honourable D F LANE asspecial friends with whom I could discuss anymatter in confidence.

"with my special friends I could mention anymatter which had arisen in conversation withnumerous persons in the community, or even statemy views on certain persons or events. It alsoincluded rumours that were circulating at thetime.tt

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-should not have been admitted" [ex 13].

In his judgment Mr Justice Kneipp reached theconclusion that similar fact evidence should not havebeen admitted, and that this error would warrant anorder for a new triaI. He went on to deal with theexpert evidence given in the case and concluded thaton this evidence a properly instructed jury could nothave reasonably reached a verdict of guilty. He didnot suggest that the trial judge was in any way inerror in admitting the expert evidence.

Mr Justice Shepherdson, in his judgment on the appealfirst dealt with the matter of similar fact evidence,and reached the view that it should not have beenadmitted. However, His Honour went on to hold(i) that Mr Justice Vasta's direction to the jury onthe matter of circumstantial evidence was wrong, and(ii) that the manner in which Mr Justi-ce Vasta summedup in relation to some other evidence caused amiscarriage of justice. He held that on these threegrounds the trial miscarried.

It can therefore be seen that although the threejudges on the CarroII appeal agreed that simj.lar factevidence was wrongly admitted, two of them held thatthe Judge was in error in his summing up to the juryon circumstantial evidence which would warrant thesetting aside of the verdict and a new trial beingordered, one that the judge's direction to the jury onthe onus of proof was wrong, and one that his summingup on some of the evidence caused a miscarriage ofjustice, both of which would warrant the allowing ofan appeal and the ordering of a new triaI.As can be seen, ry..I "-:IUst_rq*e_ _Ve_e!1_IgA _-egA_iF _ y,ery. .

p_o s_ it i-ve, and. wEerr9_, i q tLg* asF_qr! ign.=!ra!* !he_ -l la ppe_a 1was allowed on matters completely ditterent f,romeIrvth+Ig cohcerning the qharge to the jury". Hesoughil-ti5 emphasise the assertion by adding that "itwas obvj-ous that that article was written by a personwho had not read the judgment". The Commissi-on wishesto draw attention to (i) the haste at which Mr JusticeVasta is inclined to state things as being facts whenthe statement is simply not correct as it turns out;and (ii) the apparently brief preparation for thehearing. As to (ii) above, the Commission just findsit impossible to believe that senior counsel was awareof what had actually been decided in the CarrollAppeal and allowed the evidence of the Judge to remainunqualified.

As to (i) above, in his evidence to this Commission,His Honour corrected the incorrectness of his previousevidence in this way ltrans pp 1972-41:

"Do you regard that answer as being correct asyou see it now?-- It is not precisely accurate.It is true that it was not allowed on anythingconcerning a pro-Crown charge to the jury but itis not accurate to say that it was not allowed onmatters completely divorced from the charge to

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When you say it was the admissibility of thebruise marks, are you referring to the admissionof evidence as to bruise marks on Carroll's ownchild?-- That is correct.The next questi.on again raised the sameproposition as to whether, according to your theupholding of the appeal had anything to do withhow the jury had been charged, and you againproduced an answer which denied that theupholding of the appeal resulted from yourdirection?-- Yes, that is correct.

Again-----?-- Labouring under the same----

that is for the same reason?-- Yes,Iabouring under the same mistakes.

HON. M.M. HELSHAM: Would you like to read thatanswer, Mr Shand?

MR SHAND: Yes, f wilI.BY MR SHAND: The question was, "Yes, the questionof admissibility of evidence - nothing to do withhow the jury were charged?tt, answer, "No, nothingat all; and it was obvious that that article waswritten by a person who had not read thejudgement but had maliciousness in mind." Thatwas your fuIl answer?-- Yes.

And at the time you used those words it wasobvious that the article was written by a personwho had not read the judgement. May we take itthat you had a recollection of the judgement,imperfect though it was, which you have explainedto us today?-- Yes. Well, if anybody had read thejudgement, they would know that it wasn't becausethe Judge forgot that he was a Crown Prosecutorand completely overwhelmed the jury with a pro-Crown charge. That is what I was trying toconvey, though ineptly."

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The evidence given byand careless, but notthe circumstances theis not behaviour thats.4 of the Act.

Mr Justice Vasta was inaccurateintentionally deceptive. In allCommission has concluded that itfaIls within the provisions of

Relationship with Sir Terence Lewis

This topic was made a separate head of inquiry [para1 . 1 .1 3 Heads of Inquiry (d) I . The relationship isalso the basis of the topic referred to in paragraph(a) of the same Heads of Inquiry (ibid). Therelationship between the two men was given prominencein the Fitzgerald Inquiry, and a great deal of theCommission's time was devoted to it. As mentionedearlier what was said about it rea1Iy set in motion

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"7th February 1984: Hon Lane phoned re variousmatters including 3 Supreme Court Justiceappts. Phoned A Vasta re same."

Mr Justice Vasta was appointed to the Supreme CourtBench on 9 February 1984 with effect from 13 February.As mentioned earlier Sir Terence Lewi.s attended hisswearing-in ceremony on that lastmentioned date.

Sir Terence Lewis was questioned in the Commissionabout all these entries and the purpose of his raisingthe matter of Mr Justice Vasta in connection with theSupreme Court. His memory did not enable him to bevery helpful about any of them. Perhaps he had aslightly clearer recollection when giving evidence on18 October 1988 to the Fitzgerald Inquiry. There hesaid [ex 159 pp 18038]:

"what other matters, besides the factory openingand the appointment, or your proposal forMr Vasta's appointment to the Supreme Court, wereyou discussing with the Premier in 1 983?-- Icannot think of any other matter whatsoever."

"But you weren't putting him forward as asuitable man for the Premier to have appointed tothe Supreme Court?-- You pointed a note out backthere that I certainly may have done so."

The Commission has no doubt that Sir Terence Lewisused any opportunity that he considered suitable topress for the appointment of Mr Justice Vasta to theSupreme Court. Between March 1982 and 7 February 1984there had been 1 4 telephone conversations between themand they had been together on 7 occasions at meals orfunctions.

Finally the Commission draws attention to the letterswritten by Mr Justice Vasta to Sir Terence Lewis.Mention has already been made of the letter of 7November 1985 [ex 6]: "Thank you for your kind words.I appreciate them very much and will always treasureour friendship"" There were four other thank youletters [Exhibits 3, 4, 8 and 10] written in friendlyterms "811a and I thank you and Hazel for theprivilege of having been invited.." [ex 8]; "I hopeyou and Hazel have a pleasant trip out West and I willcatch up with you on your return" [ex 10]. There weretwo Christmas cards, 1985 and 1986, both to "Terry &Hazel" or "Terry Hazel & Family" from t'Angelo & E1laVasta & famj.ly" lExhibits 7 and 9]. There was oneletter Iex 5] dated 5 July 1983 with which wasenclosed a photograph and refers to some contactbetween the Judge and Sir Terence not mentionedelsewhere.

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the heroin allegations. Moreover, the PublicDefender's Office wrote to the Commissioner of Police,drawing his attention to the need for a fu1l inquiry.

Events Followinq the Tria1 of Thompson and Kossaris

The matter went before the Police Complaints Tribunal,which, in an undated report to the Minister for Policeprobably delivered in October or November 1982, statedits conclusion that there was a cogent body ofevidence that four police officers had taken part insupplying heroin to Thompson and Kossaris, and thatthose four officers and two others had committedperjury in their attempt to conceal their actionslex 541 .

Charges were accordingly drafted. Committalproceedings began on 11 April 1983, and ended on20 May with the committal of all six men for triallex 1 631 .

On 27 May solicitors for all the accused asked theAttorney-General to investigate the evidence with aview to discontinuing the proceedings.

Mr Justice Vastars Advice

After some de1ay, and probably about 5 August,Mr Justice Vasta, then Chief Crown Prosecutor, wasasked by the Solicitor-General to express his views onthe suggested discontinuance. He was asked to treatthe matter as urgent. He delivered a lengthy opiniondated 8 August 1983 [ex 72].

This opinion began with the proposition that no jurycould safely convict anyone on the evidence ofThompson and Kossaris. There was ample justificationfor that view, and Connolly J, at the time of thevoire dire, stated, in effect, that he did not regardeither man as a credible witness. The opinion thenturns to the scientific evidence.

Further scientific advice had been obtained betweenthe time of the voire dire and the writing of MrJustice Vasta's advice. The effect of this was torender less exact the time bracket within which theheroin, traces of which were found on 20 November1981, must have been introduced into the two men'sbodies. with the widening of the bracket, it becamepossible that it had been taken before arrest,secretly during the period of arrestr or after thecourt appearance and before the medical examination on20 November. There were difficulties in the way ofaccepting any of these possibilities.In the end, Mr Justice Vasta came to the conclusionthat, although it might be argued that a prima faciecase still existed, the evidence was so totallyunsatisfactory that it would be dangerous for a juryto convict.

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(ii) Sir Richard (p.32):

"The material available for solving thisproblem of construction suggests that 'provedmisbehaviourt means such misconduct, whethercrimj.nal or not, and whether or not displayedin the actual exercise of judicial functions,€rsr being morally wrong, demonstrates theunfitness for office of the judge inguestion. "

(iii) t'tr WeIIs said (p.45):

"Accordingly, the word 'misbehaviourt mustbe held to extend to conduct of the judge inor beyond the execution of his judicialoffice, that represents so serious adeparture from standards of proper behaviourby such a judge that it must be found to havedestroyed public confidence that he willcontinue to do his duty under and pursuantto the constitution."

The Commission therefore expresses its view that beforean opinion can be reached that behaviour of a Judge ofa Supreme Court warrants his removal from office, thebehaviour must be such that, having regard to all therelevant surrounding circumstances, no right thinkingmember of the community could regard the fact of itshaving taken place as being consistent with thecontinued proper performance by the judge of judicialduties, and hence with the holding of judicial office.Put another way, if the behaviour j-s such that, in thecircumstances, the judge would, in the eyes of rightthinking members of the community, no longer be fit tocontinue to remain a judge, then the judge has fallenbelow the standard demanded of members of thejudiciary.

The members of the Commission therefore are requiredto apply community standards in their task of formingan opinion as to whether any behaviour of Mr JusticeVasta warrants his removal from office as a Judge ofthe Supreme Court. The Commission recognises andaccepts that the community requires the standards ofbehaviour of the judiciary to be set and maintained ata very high level indeed. Judges themselves, as wellas the community, expect that the standard of behaviourof members of the judiciary should be a very hlgh one.On the other hand, to adopt too stringent a standard,or too pharisaical an approach, would imperil theindependence of the judiciary, which would be erodedif a judge might too readily be removed from office.Moreover, there may be judicial misbehaviour whichought not to be condoned, and indeed may be deservingof censure, even severe censure, but which would notwarrant the removal of a judge from office. euestionsof degree may be involved, and minds may differ inmaking what is in effect a moral and social judgmenton such a matter

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