Beware the self-serving press release, warns Supreme Court of Victoria

By Natalie Hickey, November 26, 2017

In the over sharing era, it seems you need a press release to prove something happened. The opening of an envelope calls for a press release. So too does the outcome of a court or other hearing. The parties want to weigh in on the result and have their say, typically to shift public opinion in their favour.

A recent Supreme Court decision exposes the limits to this practice, Moodie v Racing Integrity Commissioner [2017] VSC 693, and is sure to send shivers through the communication departments of authorities across the land (or Victoria, anyway).  The decision directly affects those performing an administrative investigative function (here, the Racing Commissioner) or an adjudicative function.  It calls for a re-think about the press release practice by authorities. If a press release is to be issued, it should be done very carefully.

What happened?

In a judgment dated 21 November 2017, Justice Bell of the Supreme Court of Victoria held that a press release issued by the Racing Commissioner, Sal Perna, following an investigation into the conduct of former Racing Victoria Chairman, David Moodie, gave rise to perceptions of apprehended bias in relation to the underlying (adverse) findings.

It’s a curious decision.

The findings of apprehended bias are interesting because, as many legal practitioners will appreciate, it is difficult to succeed in an apprehended bias application. After all, one is trying to disrupt a fundamental pillar of our justice system: the independence of the decision maker.

It is also interesting that, even though the press release was issued after the Commissioner’s findings were presented to the Racing Victoria Board, its contents were held to infect the underlying investigative process.  This aspect of the decision appears novel.

The effect of the press release was that Justice Bell decided that the Commissioner breached the rules of natural justice by failing to ensure that a reasonable apprehension of bias did not arise in respect of the findings the Commissioner made.  A declaration was needed to vindicate Mr Moodie’s right to protect his personal reputation, the judge stated, which he then ordered.

I read the press releases at the time they were issued, and so was keen to see how they were dealt with in the judgment.

Background facts

The starting point was the stewards’ investigation into trainers Mark Kavanagh and Danny O’Brien about the administration of cobalt to racehorses (which culminated in a recent Court of Appeal decision I have separately discussed).  Journalist Patrick Bartley received leaked information about the investigation, which he brought to the attention of Mr Moodie.  Mr Moodie spoke with a third trainer, Peter Moody (no relation as the judge observed), who was a trainer of Mr Moodie’s racehorses, about the information.  When members of the Racing Victoria Integrity Council, which is part of Racing Victoria, were later informed of the conversation between Mr Moodie and Mr Moody, two members of the Council asked the Commissioner to investigate Mr Moodie’s actions. The Commissioner then conducted an investigation, which included interviewing 30 people and issuing Summonses for, amongst other things, the production of documents.  He then published a report on a confidential basis to the Racing Victoria Board.

Bell J summarised the findings and conclusions of the report about Mr Moodie:

“These include conclusions, based on findings, that he passed on information that ‘compromised or potentially compromised the … cobalt investigations’ (para 183), made disclosures that were ‘not full and frank’ (paras 186–7), engaged in ‘totally inappropriate’ conduct (para 191), made ‘partially or delayed disclosure[s]’ that were ‘not in the best interests of’ Racing Victoria (para 194) and made no ‘formal or “official” disclosure’ (para 195).  Many of these findings and conclusions are strongly disputed by Mr Moodie and the actual facts are in issue in the defamation proceeding.  He does not dispute the finding that he was not the original source of the leak.”

Note: The reference to the defamation proceeding is to a separate proceeding brought by Mr Moodie against the Commissioner that has not yet been determined.

The press release battle

After the report was delivered, the Racing Victoria Board issued the following press release on about 15 December 2016:

DAVID MOODIE TENDERS RESIGNATION

The Racing Victoria (RV) Board today received and considered at its December meeting the findings of an independent investigation conducted by the Racing Integrity Commissioner, Sal Perna, following a referral from the RV Integrity Council.

The investigation centred upon allegations regarding the external dissemination of information from RV in January 2015 relating to the detection of positive Cobalt swabs by licensed trainers Mark Kavanagh and Danny O’Brien.

In considering the report from Mr Perna, the RV Board heard representations from David Moodie, who stood aside from his duties as RV Chairman on 14 October 2016 pending the outcome of the investigation.

RV Acting Chairman, Mike Hirst, has issued the following statement at the conclusion of today’s Board meeting:

‘In reviewing this matter the Board considered a range of points, including the confidential investigation by Sal Perna on behalf of the Racing Victoria Integrity Council.  Mr Perna’s report found that David Moodie was not the source of the leak from Racing Victoria’, Mr Hirst said.

‘Given that finding, David today tendered his resignation from the Board of Racing Victoria with immediate effect to devote his energies to his personal operations.  He believes that the decision is in the best interests of himself and his family, who have been through a difficult time over the past two months.

‘The Board has accepted his resignation and wishes to acknowledge the significant contribution made by David to the industry.

In light of Mr Perna’s Report and our considerations, the Board will now review the circumstances around the external dissemination of the information in question’.

With the departure of Mr Moodie, Mr Hirst will continue in his capacity as Acting Chairman. The Board will discuss the role of Chairman at its February Board meeting.

The following day, on 16 December 2016, the Racing Commissioner issued a competing press release:

MEDIA RELEASE

I am issuing this media release in response to requests for me to clarify the findings of my investigation into matters concerning David Moodie.

I consider it is necessary for me to make the following information available, in the interests of preserving the independence and professionalism of my office and the integrity of my investigation.

On Friday 14 October 2016, the Racing Victoria Limited (RVL) Integrity Council requested that I investigate integrity issues concerning David Moodie, the then RVL Chairman, inappropriately disclosing information regarding RVL cobalt investigations.

My investigation was conducted to establish whether David Moodie:-

1. inappropriately disclosed information regarding the positive cobalt swabs of Mark Kavanagh and Danny O’Brien, to Peter Moody, therefore compromising, or potentially compromising, the integrity of the RVL cobalt investigations and disciplinary and/or prosecution hearings or actions arising out of those investigations; and
2. knowingly provided misleading and/or incomplete information to the RVL Integrity Council and/or the RVL Board regarding his disclosures.

The conduct of my investigation included the interviewing of over 30 persons; the issuing of summonses for the production of documents and attendance of persons to be examined under oath by me; and collecting, collating and analysing information from a wide range of sources. In addition, a large volume of documents were obtained and reviewed, including telecommunications data, RVL Board and Integrity Council meeting minutes, Racing Appeals and Disciplinary Board (RADB) and Victorian Civil and Administrative Tribunal (VCAT) transcripts and RVL Stewards’ investigation files.

My report outlined a range of findings in regards to matters investigated and concluded that, notwithstanding that David Moodie was not the original source of the “leak”, both matters a) and b) above, had been substantiated.

It also included a finding as to the probable original source of the information regarding the positive samples of Mark Kavanagh and Danny O’Brien, which was subsequently passed on to David Moodie.

My report was provided to the RVL Integrity Council on Tuesday 14 December 2016 and has since been received and considered by the RVL Board.

As my report contains confidential and sensitive information, I do not intend to release the full report publicly. My findings and conclusions are now a matter for RVL. [Emphasis added]

Why did the Racing Commissioner publish his own press release?  It was submitted on his behalf that he needed to do so because Racing Victoria had completely misrepresented the report’s conclusion.  That is, RV’s press release stated only that Mr Moodie was not the original source of the leak.  This was a complete misrepresentation, so it was said, because whatever the source of the information provided by Mr Moodie to Mr Moody, it was still a leak by a director of Racing Victoria to a trainer whose horses had been tested positive for cobalt.  The Commissioner argued he had ongoing responsibilities for integrity matters in the racing industry, including responsibility to conduct own-motion inquiries if necessary, and he had a legitimate reason for correcting or clarifying the record in the way that he did.

Accordingly, for better or (as it turned out) worse, the Racing Commissioner was provoked by Racing Victoria’s biased account into clarifying his findings, or so the argument was put.

However, there was a problem. That is, as was conceded at the end of the Commissioner’s press release, the hearing had taken place confidentially. The partial explanation supplied was justified on the grounds that confidentiality prevented publication of the whole. However, as Bell J observed:

“Very soon after the Board of Racing Victoria acted upon the report in the manner more fully discussed in this judgment, the Commissioner issued a media release seeking public vindication of the investigation and findings, which, up to then, were being treated as confidential.  This was a very serious step to take.  It was not just indiscreet, imprudent or unwise.  Unintentionally, it undermined the necessary appearance of impartiality of the investigation and findings that the Commissioner had conducted and made.”

What is apprehended bias?

Apprehended bias is not actual bias.  The concept is perception of bias, not whether it actually happened.  This makes sense, because it’s impossible to get inside a person’s head to work out what they actually thought. Apprehended bias enables an objective assessment of the relevant conduct.

Apprehended bias applies not only to judicial proceedings but also to administrative and investigative proceedings.

Here, Justice Bell was prepared to accept that the Commissioner’s actual purpose when issuing the press release, was indeed to clarify the findings of the investigation in response to Racing Victoria’s press release.  However, what the ‘fair-minded observer’ might infer was, he stated, quite another matter.

Who is this fair-minded observer?  To answer this, we have to look at the test for apprehended bias.  It is colloquially called the ‘double might’ test, because the word ‘might’ appears twice in the classic test, where apprehended bias was:

“whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide.”– Ebner v Official Trustee in Bankruptcy by Gleeson CJ, McHugh, Gummow and Hayne JJ. (emphasis added)

This means you have to stand in the shoes of the relevant reader of the press release, and ask whether the content suggests that the Commissioner might not bring an impartial mind to the investigation.

Applied to the facts, Bell J determined that the contents of the press release suggested that the Commissioner might have been personally committed to finding that the matters alleged against Mr Moodie were substantiated.

The judge was clearly unimpressed that the Commissioner would issue a press release, describing this conduct as “(at least) surprising” (NB: lawyers use ‘surprising’ when they typically have other words in mind but are being polite).

He added, “[t]he selective and partial publication put the position of the Commissioner at its highest and placed the position of Mr Moodie at its lowest.”  He determined, “[t]he apprehension is that, in discharging his statutory functions, the Commissioner had became personally committed to making adverse findings against Mr Moodie, which he was attempting to vindicate and justify in the public realm by publishing the release.”

The analysis as to what the fair minded lay observer might infer from the press release (c.f. the judge’s personal attitude to this conduct) is, it must be said, a little opaque.  For instance, the judge observed:

“On the evidence in this proceeding, a fair-minded observer could not reasonably conclude that this was the Commissioner’s actual intention, for his reasons in publishing the release were (among others) to protect the integrity of his office.   But it could reasonably be concluded that, in so conducting himself, the Commissioner was not sufficiently conscious of giving effect to his obligation to avoid creating a reasonable apprehension of bias, which was also inherent in his office.  Protecting the integrity of a statutory office cannot be at the expense of observing the rules of natural justice, and specifically observing the obligation to avoid conduct and statements that might give rise to a reasonable apprehension of bias.  Sacrificing the natural justice that is due to individuals in virtue of their fundamental and universal dignity and humanity cannot be part of the means of achieving that official end.”

The ‘double might’ test is inherently unsatisfactory because it is a hypothetical.  When assessing whether apprehended bias might exist, it is very difficult to distinguish the personal views of a judge from those of the ‘fair-minded lay observer’, which in this case would include the racing punter familiar with the industry (and sufficiently interested in industry news to bother reading press releases from Racing Victoria and the Racing Commissioner).

The salutary lesson from this is that, when contemplating whether to issue a press release, remember that the ultimate reader may be a judge and not your target audience.

As for Racing Victoria, the judge had nothing negative to say:

“There is no evidence that Racing Victoria actually rejected the findings in the report, and it did not publicly do so.  Its release suggests to the contrary.  It was a question of what should be done in response to the report and its findings.  The Commissioner’s independence and professionalism was not questioned by Racing Victoria or anyone else; nor was the integrity of his investigation.  The report spoke for itself in terms of the independence and professionalism of the Commissioner and the integrity of the investigation.”

How about the fact that the press release was issued after the findings were delivered?

The test for apprehended bias suggests that the relevant conduct has occurred before the decision has been handed down.  Does it follow that a press release delivered after a report has been delivered can provide grounds for apprehended bias?

An example relied on by the judge is more typical of how these issues can arise, that is, before the decision is made.  In the case of Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, the High Court considered the case of a member of the Board who was purportedly bribed by a person trying to ensure their greyhound was nominated in a field, because the number of nominations vastly exceeded acceptances.  The wife of the relevant owner and trainer handed the official an envelope containing $200 that was described as a ‘present’.  The problem was that after the hearing but before the decision (which was adverse to the accused), the accused left the room, but the official stayed in the room whilst the other Board members conducted their deliberations. The High Court found that, even if the official did not participate in deliberations, his influential role led to a perception of apprehended bias by his continuing presence in the room.

Bell J considered whether there was anything preventing him from finding that apprehended bias could arise from post-decision facts.  He relied on a number of observations in various decisions. However, it is fair to say there was nothing directly on point.  This is an interesting question of law, and a possible appeal point.

Policy lessons going forward

What the decision means is that an investigator or adjudicator should consider very carefully whether or not to issue a press release, even if its purpose is to correct an apparent error.

The issue is acute if the investigation or hearing has taken place confidentially.  Even though open courts are considered preferable because transparency means justice is seen to be done, it must be remembered that many statutory authorities and personnel do not have the special statutory protections that enable such a transparent process.  For example, they do not have the protection of absolute privilege, which is a complete defence to a defamation action.  It means that if proceedings are conducted openly, the presiding body is exposed to defamation risk.

The balance between the administration of justice (open courts) and the rights of an individual to a fair hearing (suggesting privacy) is delicate. For adjudicative bodies which are not courts (e.g. sporting bodies, many statutory authorities), that balance presently favours the individual.

The lesson from this case is that, even if confidentiality frustrates, if you go down that path as investigator or decision maker, you may be stuck with any misconceptions that arise as a result. If someone later describes the decision differently from what you intended, you may have to live with it.