A v Corruption and Crime Commissioner [No 2]

[2014] WASCA 33

A -v- CORRUPTION AND CRIME COMMISSIONER [No 2] [2014] WASCA 33

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 33
Court:	THE COURT OF APPEAL (WA)	Published:	10/02/2014
Case No:	CACV:74/2013	Heard:	23 DECEMBER 2013
Coram:	MARTIN CJ	Delivered:	23/12/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	A CORRUPTION AND CRIME COMMISSIONER CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Catchwords:	Practice and procedure Judgments and orders Stay Where stay order would be of no effect Stay for the purpose of special leave Administrative law Excess of jurisdiction Injunctive relief
Legislation:	Corruption and Crime Commission Act 2003 (WA), s 84, s 85, s 87, s 93, s 151, s 152(4)(c), s 152(4)(d)
Case References:	X7 v Australian Crime Commission [2013] HCA 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : A -v- CORRUPTION AND CRIME COMMISSIONER [No 2] [2014] WASCA 33 CORAM : MARTIN CJ HEARD : 23 DECEMBER 2013 DELIVERED : 23 DECEMBER 2013 PUBLISHED : 10 FEBRUARY 2014 FILE NO/S : CACV 74 of 2013 BETWEEN : A

Appellant

AND

CORRUPTION AND CRIME COMMISSIONER
First Respondent

CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA
Second Respondent

ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : BEECH J

Citation : RE ROGER MACKNAY QC; EX PARTE A [2013] WASC 243

File No : CIV 1940 of 2013

Catchwords:

Practice and procedure - Judgments and orders - Stay - Where stay order would be of no effect - Stay for the purpose of special leave

Administrative law - Excess of jurisdiction - Injunctive relief

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 84, s 85, s 87, s 93, s 151, s 152(4)(c), s 152(4)(d)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms K A Vernon
First Respondent : Ms P E Cahill SC
Second Respondent : Ms P E Cahill SC
Intervener : Mr A J Sefton & Ms A B Preston-Samson

Solicitors:

Appellant : Lyn Zinenko Lawyers
First Respondent : Corruption and Crime Commission
Second Respondent : Corruption and Crime Commission
Intervener : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

X7 v Australian Crime Commission [2013] HCA 29

MARTIN CJ:

(This judgment was delivered extemporaneously on 23 December 2013 and has been edited from the transcript.)

1 On 18 December 2013 I published the reasons of the court for concluding, by a majority, that the appeal against the earlier decision of Beech J, refusing the appellant relief, should be dismissed. At the time, I heard argument with respect to the orders that should be made and, after hearing that argument, decided that there should be no orders made, and that the matter should, instead, be adjourned to today in order that further consideration should be given to whether orders should be made and, if so, whether there should be additional injunctive relief granted to restrain the effect of that decision.

2 By an application which was filed after the publication of the reasons of the court, the appellant - whose name has been suppressed throughout these proceedings, and whose name will continue to be suppressed - seeks an order staying the effect of the decision, the reasons for which were published last week, or, alternatively, an order restraining the first and second respondents, who are the Corruption and Crime Commissioner (the Commissioner) and the Corruption and Crime Commission (the Commission), from disclosing the CCTV footage taken in the Broome police station on 29 March 2013, and on 19 April 2013. In order to provide the context for those applications, it is necessary to refer to the history of these proceedings.

3 The Commission decided to conduct an investigation into incidents in which physical force was used against detainees at the Broome police station. As part of that inquiry, the Commission received, I am told, voluntarily, without exercising its compulsory powers, video recordings that were taken on closed-circuit television within the Broome police station. The appellant is an officer who was working at the police station, and whose name has been suppressed as I have noted. No criminal charges have been brought against the appellant, but the investigation was conducted by the Commission, against the expectation that the commencement of proceedings against the appellant was likely.

4 The CCTV recordings were played at a number of points during the conduct of the investigation, and the appellant and other witnesses were examined in relation to the images displayed on that footage. During the course of the public hearings of the Commission, the Commissioner decided, pursuant to s 152(4)(c) of the Corruption and Crime Commission Act 2003 (WA) (the Act), that disclosure of a pixelated version of the CCTV recordings - pixelated so as to prevent the facial image of the appellant and others being seen - was necessary in the public interest.

5 The purpose of that decision was to enable the CCTV recordings to be released to the public in that form, and the Commissioner gave his reasons for coming to that view. That decision of the Commissioner was challenged in the proceedings which eventually came on appeal to the Court of Appeal. Various grounds of challenge to that decision were advanced, and various forms of relief sought, including relief in the form of prohibition in relation to the decision of the Commissioner to release the CCTV recordings to the public.

6 Those proceedings were dismissed and the appellant appealed to this court. The appeal was heard. An additional ground of appeal was added during the course of the appeal, challenging the reasonableness of the Commissioner's decision. By a majority, the court decided, for reasons that were published last week, that the appeal should be dismissed.

7 When the appeal was commenced, a question arose as to the disclosure of the CCTV recordings, pending the court's consideration of the appeal. On 3 July 2013, the court ordered that, upon undertakings given by the Commissioner and the Commission not to release the CCTV recordings of events occurring on 29 March and 19 April at Broome police station, in respect of which the appeal had been lodged, until either the determination of the appeal, or 14 days after notice in writing to the appellant of an intention to release the CCTV video, the appellant's application for an order restraining the Commission from disclosing the CCTV recordings pending determination of the appeal was dismissed.

8 On 9 July 2013, the court, by consent, noted a variation of the undertakings. In addition to the undertakings being given in the same terms as indicated in the order of 3 July, it was noted that the undertaking did not prevent the Commission from showing the CCTV recordings to any person for the purposes of the second respondent's functions, under the Act. So at all times the undertakings proffered by the Commissioner and the Commission expired upon the determination of the appeal, or 14 days after notice in writing to the appellant of an intention to release the CCTV recordings.

9 When reasons were published last week, I was told by counsel for the appellant that advice had been given by the Commission, who was not represented before the court on that occasion, to the effect that it was proposed to submit a report to the Parliament today. This was confirmed by counsel for the intervener, the Attorney General. It was proposed to include within that report the pixelated version of the CCTV recordings which have been the subject of these proceedings.

10 It is desirable to identify the precise statutory provisions by which that is to occur. The proposal is for the Commission to exercise its power to report to Parliament, conferred by s 84, in respect of an investigation into misconduct, and that the report would be provided to the Clerk of each House of Parliament, pursuant to s 93 of the Act, on the basis that neither House of Parliament is sitting. The consequence of the Commission providing its report to the Clerks today would be to trigger the operation of s 87 of the Act, which provides that if a report under s 84 or s 85 is laid before either House of Parliament, a matter included in that report may be disclosed, despite s 151 of the Act.

11 It is also pertinent at this point to refer to the standing orders of the Legislative Assembly, with which I have been provided. They contain provisions to the effect that all papers tabled in the Legislative Assembly will be considered public unless otherwise ordered by the Speaker. Papers tabled may be inspected at the offices of the Legislative Assembly, and copies of, or extracts from, the papers may be made where the form of the record makes that practical. It is implicit in that standing order that there is power in the Speaker to make an order to the effect that material tabled with the House not be made public, but unless that power is exercised, the effect of the presentation of the report to the Clerk of the Assembly will be to enable the report, and any papers included in the report, such as the video recordings to which I have referred, to be made available to the public.

12 At my request and suggestion, the Corruption and Crime Commissioner, and the Commission, have today been represented by senior counsel. Counsel has advised me that the Commission continues to propose to present its report to the Clerks later today, but not otherwise make the report or the CCTV recordings public. The effect of that would be to leave public disclosure of the report and the CCTV recordings essentially under the control of the Parliament, with the result that, pursuant to the standing orders to which I have referred, that material will be made available unless the Speaker orders otherwise.

13 It is of some significance to note that counsel for the Commissioner and the Commission have advised me that neither propose to act upon the certification ordered by the Commissioner, pursuant to s 152(4)(c) of the Act. Rather, there is no proposal at this stage to exercise any power of disclosure pursuant to that certificate. The only proposal is to present the report, including the CCTV recordings, to the Parliament with the possible consequences to which I have referred. It seems to me that that is a matter of considerable significance when I come to consider the exercise of the powers that the appellant seeks to invoke.

14 The case that was fought before the judge at first instance, and in the Court of Appeal, was, of course, focused upon the power of the Commission that had been exercised, being the power conferred by s 152(4)(c), which was a power which required the Commissioner to certify that disclosure of the material was necessary in the public interest. The case was conducted, and the appellant's argument was presented, on the basis that the language used in that provision created a significant threshold that had to be crossed before that power could be lawfully exercised. To a significant extent those submissions were accepted, certainly in the Court of Appeal, by all members of the court, who described the language used in the statutory provision as strong, and as requiring that something more than convenience be demonstrated before the power could properly be exercised.

15 So the case was conducted on the basis that there was a threshold that had to be crossed before the power conferred by s 152(4)(c) could be exercised. The powers, and indeed, the duty to report to the Parliament are different in character, and do not have any equivalent threshold or precondition to their exercise. Those powers are to be exercised later today. The relevant paragraph of s 152(4) that will be invoked is paragraph (d), which enables any official of the Commission, or the Commissioner, to disclose official information to either House of Parliament, or to the Standing Committee. That power is not conditioned upon any conclusion that disclosure be necessary in the public interest, and in the exercise of that power, the issues that were debated in the course of these proceedings would not appear to be relevant.

16 As I noted earlier, the appellant today asks the court to do two things. The first is to stay the effect of the decision of the Court of Appeal, so that the undertaking given by the Commission would continue in force at least until the Commission gave 14 days notice in writing of an intention to release the CCTV video.

17 There are a number of reasons why, in my view, that power should not be exercised. The first is that I am told by counsel for the Commission, and have no reason to doubt, that the Commission does not in fact propose to proceed in reliance upon the decision that was impugned in these proceedings. In other words, the Commission does not propose to make any disclosure of the CCTV recordings as a consequence of the earlier decision of the Commissioner to the effect that disclosure was necessary in the public interest. So there is no need to stay any action by the Commission in reliance upon the decision impugned in these proceedings because no such action is proposed.

18 The second reason why it seems to me a stay would be inappropriate is because the effect of that stay would be to lock the Commission into an undertaking different in character to the undertaking which it proffered and which was accepted by the court as the basis for dismissing the earlier application for an order restraining the activities of the Commission. The Commission's undertaking was limited to the period expiring upon the determination of the appeal. That period has now expired. A stay of the determination of the appeal would lock the Commissioner and the Commission into an undertaking different in character to that which was proffered.

19 The third reason for declining the stay sought is that the course which the Commission proposes to take later today will in all likelihood have the consequence that a stay order would be of no effect in terms of preventing disclosure of the CCTV recordings. That is because the question of whether public disclosure of the CCTV recordings will take place will effectively be determined by the course of dealings between the Commission and the Parliament later today, in the exercise of a power which is quite different to the power which was impugned in these proceedings.

20 The reason that is significant is because, of course, the primary circumstance in which the power to stay a decision pending the exercise of a power of appeal or, in this case, the exercise of the power to apply to the High Court for special leave to appeal will be exercised is the circumstance that the appeal will be rendered nugatory unless that power is exercised. There are two reasons why that is not the circumstance in this case. First, the Commission does not propose to rely upon the decision that is impugned in these proceedings - so a stay would have no effect on the course of action the Commission proposes to follow. Second, if that course of action is followed, for the reasons I have given, the material may well pass into the public domain anyway, with the result that a stay would have no effect upon the utility of any further appeal.

21 Put another way, if the CCTV recordings do pass into the public domain as a consequence of the Commission reporting to Parliament, it will not be the consequence of anything that was done or determined in these proceedings, but will be the consequence of the exercise of quite different powers of the Commission.

22 It is necessary now to turn to the appellant's alternative claim which seeks an injunction restraining the Commission from disclosing the video recordings in any form, including in the form of a report to the Parliament pursuant to the duties imposed upon the Commission by the Act.

23 As I indicated to counsel for the appellant during the course of argument, I am prepared to treat that application as, in effect, an application for an injunction to restrain the exercise of the Commission's power to report to the Parliament notwithstanding that these proceedings had not previously impugned any purported exercise of that power. It seemed to me that in the circumstances that prevailed, the interests of justice required me to take a relaxed procedural approach to these proceedings and so I invited counsel for the appellant to conduct the case before me as if there had been proceedings instituted challenging the validity of the Commission's decision to transmit a report to the Parliament, including the CCTV recordings as part of that report, and asserting that there was an arguable case to the effect that that decision exceeded the Commission's jurisdiction and that an injunction should, therefore, be granted to restrain the Commission from proceeding in that manner. That is how I now approach the issue before me.

24 I invited counsel to enunciate the basis for the arguable case to the effect that the exercise of the power to report to Parliament would exceed the jurisdiction conferred upon the Commission. In the course of the debate between counsel and I, it seemed that three propositions emerged. The first focused upon the undertaking previously given by the Commission and to which I have referred. That proposition, as best as I can understand it, is that if the appellant had known that there was a prospect that the CCTV recordings would be included within a report to be provided by the Commission to the Parliament, he may have sought broader injunctive relief at the time these proceedings were instituted rather than rely upon the limited form of undertaking proffered by the Commission.

25 The difficulty with that proposition is ascertaining any way in which it could impact upon the power or jurisdiction of the Commission to provide a report to the Parliament. There does not seem to be any basis upon which it could do so, as I would see the matter. Another difficulty is that counsel was unable to identify how an awareness of the prospect that the CCTV recordings might be in a report presented to the Parliament would have put the appellant in any better forensic position in July of this year, when the appeal was commenced, than he is today or, indeed, how he would be in any better position in 14 days time if the Commission today gave notice of its intention to terminate its undertaking.

26 Counsel for the appellant effectively conceded that forensically there was no material difference in any of those three points in time. I made it clear to counsel appearing on behalf of the appellant that she could and should today put any argument upon which she would rely in support of an application for an injunction restraining the Commission from exercising its power to report to the Parliament. In those circumstances, it is impossible to see how reference to the previous ambit of the undertaking given by the Commission provides any arguable basis for an assertion that the Commission's power to report to the Parliament is somehow constrained.

27 The second argument is, as I would understand it, to the effect that there should be an injunction granted because if the Commission exercises its power to report to the Parliament and if, pursuant to that power, officers of the Commission provide that report to the House of Parliament under s 152(4)(d), that would render the challenge to the previous decision under s 152(4)(c) nugatory. Generally speaking, the fact that presentation of a report to the Parliament including the CCTV recordings might have an impact upon the utility of the proceedings previously commenced can readily be accepted given the regime for public disclosure of reports to Parliament to which I have referred.

28 As I put to counsel during the course of argument, this proposition essentially comes down to the assertion that because there has been an as yet unsuccessful challenge to the exercise of one statutory power, the proposed exercise of a different statutory power can somehow be constrained or restrained. I cannot see any basis in either logic or law to support that assertion.

29 The question before the court in these proceedings was whether the threshold that had to be crossed to enable the lawful grant of a certificate that disclosure was necessary in the public interest had been crossed. There is no analogous threshold that has to be crossed before the Commission exercises its power to report to the Parliament. I am unable to see, therefore, how a challenge to the purported exercise of a narrower power can provide any constraint upon the exercise of the broader power conferred upon the Commission to report to the Parliament, nor can I see any arguable basis for such a restraint, especially in a context in which I have been advised by counsel that the Commission does not propose to proceed to undertake any action in reliance upon the decision the subject of these proceedings.

30 The third basis upon which injunctive relief was sought was to invoke an argument said to be analogous to the argument that found favour with the High Court in X7 v Australian Crime Commission[2013] HCA 29. That was a case which concerned the exercise of powers of compulsory examination in respect of a person who had been charged with a criminal offence. The circumstances in this case are very different. First, the CCTV recordings which are the subject of the injunctive relief sought were not obtained by the exercise of any coercive power. They were presented to the Commission voluntarily. Second, no charges have been laid against the appellant. Although it is undoubtedly true that he was examined compulsorily before the Commission and in the course of that examination he was questioned about the images shown in the CCTV recordings, it remains the case that no charges have been laid.

31 The proposition that in these circumstances the Commission's power to report to the Parliament is somehow constrained by the possibility that charges might be laid is, in my view, unarguable. The proposition would effectively amount to an assertion that the Commission has no power to report to the Parliament in any case in which there is a possibility that criminal charges might be laid. That does not seem to me to be a credible or arguable interpretation of the various provisions of the Act which relate to the functions of the Commission, which include investigating conduct that may well, in some circumstances, be criminal. Accordingly, this proposition does not appear to me to provide any arguable basis for the injunctive relief sought.

32 Given the nature of the injunctive relief sought and its context, there is a very real question as to whether it would be appropriate in any circumstance for this court to restrain a statutory agency from exercising its duty and responsibility to report to the Parliament even if there was an arguable case for relief. That question would properly raise important issues relating to the relationship between the courts and the Parliament and might raise issues with respect to the privileges of the Parliament and the possibility that any such order might constitute a contempt of the Parliament. However, as I have concluded that there is no arguable basis for the grant of injunctive relief, it is unnecessary to address those issues.

33 For these reasons, I have concluded that there should be no order staying the proceedings, nor should there be any injunction restraining the Commission from publishing the CCTV recordings, noting that the Commission only proposes to publish those recordings in the form of a report to the Parliament.

34 So the orders of the court will be that the suppression order relating to publication of the appellant's name will be continued, the appeal will be dismissed, there will be no order as to the intervener's costs of the appeal, and the application for a stay of the effect of the court's decision and for injunctive relief against the Commission will be dismissed. I will hear from the parties with respect to the costs of the latter application.