A v The Corruption and Crime Commissioner & Ors

[2014] HCATrans 132

[2014] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P60 of 2013

B e t w e e n -

A

Applicant

and

THE CORRUPTION AND CRIME COMMISSIONER

First Respondent

CORRUPTION AND CRIME COMMISSION

Second Respondent

THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Third Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 20 JUNE 2014, AT 11.54 AM

Copyright in the High Court of Australia

____________________

MS K.A. VERNON:   May it please the Court, I appear together with my learned friend, MR D.P. JONES, for the applicant.  (instructed by Darren Jones)

MR R.M. MITCHELL, SC:   May it please the Court, I appear with my learned friend MS A.B. PRESTON‑SAMSON appear for the third respondent.  (instructed by State Solicitor’s Office)  There has been a submitting appearance on behalf of the first and second respondents in this matter.  (instructed by the Corruption and Crime Commission)

GAGELER J:   Thank you, Ms Vernon. 

MS VERNON:   Thank you, your Honours, unlike the case of X7 and Lee v New South Wales Crime Commission this application is not about the power to conduct compulsory examinations but it is about a decision that was made to disclose evidence in the form of CCT footage that was directly related to the compulsory examination process under legislation in Western Australia that involves an abrogation of fundamental common law rights. 

Whereas last month’s decision of this Court in Lee v The Queen [2014] HCA 20 concerning disclosure of the transcripts of compulsory private examinations to prosecutors conducting the criminal trials of those examinees, this application concerns the association between compulsory answers that would be inadmissible against the applicant in criminal proceedings and the document about which questions and answers related in the compulsory examination process. The applicant, of course, in this case is different to those persons in the cases of X7 and Lee.  The applicant was examined in public as opposed to in private and it was about his use of force against two persons before any criminal charges were actually laid against him.  We say ‑ ‑ ‑

GAGELER J:   Ms Vernon, could I just ask a question about the form of orders you would be seeking from this Court?  If you look at your amended application for special leave, which is at page 125 of the application book and the orders that are there sought at page 126, if we were to allow the appeal, what would follow?

MS VERNON:   What follow would be an order quashing the decision of the Corruption and Crime Commission to certify that disclosure of the CCTV footage was necessary in the public interest.

GAGELER J:   What utility would that order now have?

MS VERNON:   The issue in relation to the utility of the order is that, we say, because what was sought was certiorari and we no longer press the claim for prohibition that appeared in the originating motion, the utility goes to the principle of the declaration that was made by the Corruption and Crime Commission in the first place.  So, whereas it might be said, as it is in fact said against us by the third respondent, that there is no effective utility in this matter because the CCTV footage has now been released, we say this matter can be dealt with now freely without being confined to any facts associated with this case on the basis that the principle still remains. 

So we ought not to be robbed, in effect, of our opportunity to press the matter forward on special leave simply on the basis that the CCTV footage itself has been disclosed, because were we seeking prohibition I would accept that there would be no utility in seeking such an order to prohibit the Corruption and Crime Commission from disclosing the CCTV footage but prohibition is not pressed but certiorari is to quash, in effect, their certification that disclosure was necessary in the public interest.  We say that is a matter that has importance.

KEANE J:   How does that advantage your client in any practical way?  I mean, yes, you can ask us to write an essay, but at the end of writing the essay how will your client be better off if you win?

MS VERNON:   The position that we would be in if we were to succeed is that my client would then be in a position with regards to charges that have in fact now been laid against him last month.  We would be in the position to say that certification ought not to have been given and this of course does go now to the fairness of the process for trial that he will begin to undergo, criminal proceedings having been commenced against him. 

So, one of the arguments of course is now going to be whether in fact the trial process will compromised in terms of its fairness because there has been a decision that was made previously to release the CCTV footage, and I accept that it was not ultimately the Corruption and Crime Commission who did release it, but they nonetheless had certified that it ought to be disclosed in the public interest, and that, we say, is a matter that fundamentally goes to his right to the principle of the action that he brought before the Supreme Court.

KEANE J:   So, are you saying that the question you are agitating here will arise at his criminal trial?

MS VERNON:   The issue that arises here is one we say that goes towards the fundamental principle applying to the accusatorial process, namely whether or not there should be any interference with that process from what goes on in the Corruption and Crime Commission.  If it turns out that there is, as we submit, what happened to the applicant shows there is that fundamental alteration of his common law rights, and it does so in a way that interferes with the decisions that would be made forensically in his trial, a declaration from this Court, we say, would be of assistance in relation to an argument to be made in the criminal proceedings about whether or not there is a basis for those to continue.

GAGELER J:   For what to continue, the criminal proceedings?

MS VERNON:   For the criminal proceedings to continue.

GAGELER J:   So, this is in support of a stay application in criminal proceedings that have not yet commenced?

MS VERNON: They have commenced, your Honour, they commenced last month. Charges were laid against the applicant, one charge of common assault under section 313 of the Criminal Code (WA) and one charge of assault occasioning bodily harm under section 317(1) of the Criminal Code.  Those charges were laid in the month of May and last week the applicant appeared in court for the first time to answer those charges.  Perhaps if I could take your Honours to the other two matters that we say are significant and that the Court will wish to hear about, and the first is whether or not there is a question here of sufficient public importance, and then I will go on to deal with the question of what is wrong with the decision in the court below.

In terms of the question of sufficient public importance, section 152(4)(c) of the Corruption and Crime Commission Act, which is the provision that was under scrutiny by the court below, it is certain that that is unique.  It appears to Western Australian legislation as amongst Commonwealth counterparts in the area of the exercise of compulsive powers, but we would say that the power that exists under the Western Australian legislation may be limited in geographical location to Western Australia, but we say this power has a wider importance than is merely confined to the assessment of the factors that were taken into account by the Corruption and Crime Commission in this case in certifying that disclosure was necessary in the public interest.

It was President McLure in the court below who actually indicated that these being public law proceedings in fact raised issues of substantial public interest and that was a basis for which her Honour would have granted leave to amend the grounds of appeal to include the ground of unreasonableness, and your Honours will find that at application book, page 118, at line 60.  What we say in answer to a complaint that is made against us that this does not have that sufficient importance because it is confined to the particular circumstances of the case is that the public importance is not about what the Corruption and Crime Commission assessed was to be in the public interest.

It is actually about the satisfaction of a condition under the legislation that must exist to enliven the power to certify disclosure as necessary in the public interest and that has to be satisfaction on reasonable grounds, we say, that disclosure has that necessary qualification.  This legislation, it has to be said, affects public sector employees in Western Australia, of which according to the Australian Bureau of Statistics in 2013 exceeded some 200,000 employees, and in respect of those, there are at least in terms of members of the Western Australian police force, for whom the applicant was once a part, over 5,000 employees all of whom work in CCTV monitored environments.  Therefore, in those circumstances, it is not inconceivable that the issue of incidents that occur monitored by CCTV footage will continue to be the subject of matters in the future for the Corruption and Crime Commission of Western Australia.

In any event, the issue of public interest, we would say, is an indivisible concept in the sense that it is not the size of the section of the public to which that legislation would have immediate impact that affects the matter.  It is not the quantity, because it has no effect on the quality of the interest.  The interest of a section of the public, we would say, is actually the interest of the whole public.  For those reasons, we would say, this is an important matter.  There is unfortunately a dearth of authorities in relation to the Western Australian legislation that can be utilised for comparative review, and that again is another matter that brings open the importance of satisfying this condition and consideration of it by the High Court, we say, is a special leave point.

Ultimately, of course, this Court is really interested in what is wrong with the decision below.  If the Court is minded to consider that the utility argument that goes only with the fact that CCTV footage has been disclosed, if that is not to be held to rob the applicant of his opportunity to run this, and if this Court were to accept that there is sufficient general public importance, the Court will of course want to know what is wrong with the decision below.

In relation to the decision below, the majority, it is submitted, only asked itself whether the reasons that the Corruption and Crime Commission relied upon in coming to its view that disclosure was necessary in the public interest lacked an evident or intelligible justification, rather than the question of whether, on a proper understanding of the Act, it was open to the Corruption and Crime Commission to be satisfied on reasonable grounds that disclosure was necessary in the public interest.

This comes about because when one looks at the discussion by the majority of the proposed sixth ground of the appeal, known as the “unreasonableness ground” which begins for consideration at application book, page 86, in paragraph 119, it is abundantly apparent that the majority began by firstly looking at the proposed ground of appeal, and effectively saying, well, the particulars that are offered really add nothing to it.  The ground is really about whether or not this decision is:

so unreasonable that no reasonable authority could ever have come to it –

which is the classic statement of Wednesbury unreasonableness, or whether –

in the more contemporary terms enunciated –

by this Court in Minister for Immigration and Citizenship v Li, whether the –

the Commissioner’s decision lacked an evident and intelligible justification.

that is referred to.  After that, what the majority does is go on to look at, at paragraphs 121 through to 128, the law in relation to the question of unreasonableness, including the view of the plurality in the lie case from which the decision emanates where it was indicated that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.  A matter that his Honour Justice Gageler agreed with the analogy that was put between the approach to judicial and appellate review that was favoured by the plurality but went on to note that this should not be taken to say that the high threshold for unreasonableness is not to be maintained.  So, in other words, there will still be rare cases for the making out of unreasonableness.

It is, of course, what the majority does after summarising the case law that is important.  They refer on repeated occasions only to the qualification that this will be a rare case in which a process of evaluation and assessment could be said to lack an evident or intelligible justification.  That begins at paragraph 129 on page 89 of the application book where they say that, in the circumstances, they looked at the Commissioner taking into account a number of factors and those being the characteristics of how the public interest was assessed and that those same matters would be relevant to a proposed ground of appeal based upon unreasonableness.

So, having said that it would, of course, be a rare case in which that process of assessment could be said to lack an evident or intelligible justification, they then go on to refer to what were, in effect, the matters considered by the Corruption and Crime Commission.

GAGELER J:   We have read the judgment.  What is the point you are seeking to make?

MS VERNON:   The point that I am seeking to make, your Honour, is that in referring as they do in paragraph 129 to this lack of “evident or intelligible justification”, that then goes on to get airplay in paragraph 132 of the judgment at application book 90 where what the majority went on to say is that looking at the position of the Corruption and Crime Commission, they say that:

there is no reason to suppose that the Commissioner did not take account of the effect which disclosure of the CCTV recordings would have upon the process of investigation and possible trial –

But they go on to say in the last sentence that:

The weight to be given to those matters was a matter for the Commissioner unless and until it could be contended that the only reasonable conclusion open to the Commissioner, that had an evident or intelligible justification, was the conclusion that the CCTV recordings must not be disclosed.

They then go on to refer to the three principal reasons that were enunciated and say none of those propositions lacked an evident and intelligible justification.  The submission I wish to make is that putting together as they do in that last sentence of paragraph 132, the statement that the only reasonable conclusion open that had an evident or intelligible justification was the conclusion that was eventually reached by the Corruption and Crime Commission. 

We say that actually matches together two different tests, the Wednesbury unreasonableness test and what was said to be a lesser threshold test in the case of Li, namely the lacking in evident or intelligible justification, because certainly it will be rare that any reasons that are proposed lack some justification that is either evident or intelligible; intelligible in the sense of being able to be understood.  But in terms of Wednesbury unreasonableness, the position, we say, is that the correct statement of what was in issue is that which is found in the reasons of the learned President McLure at paragraph 249 of the reasons found at application book 120 where her Honour said:

The relevant question in this case is whether, on a proper understanding of the Act, it was open to the Commission to be satisfied, on reasonable grounds, that disclosure was necessary in the public interest.

We say it is not about the lacking of the evident or intelligible justification.  It is whether that on reasonable grounds, the Commission was able to be so satisfied and that really means ‑ ‑ ‑

KEANE J:   Well, assuming that that is so – accept that that is so, for the sake of argument, what is wrong with paragraphs 135 and 136 as answering that requirement at page 90?

MS VERNON:   In terms of 135 and 136, the issues that were raised firstly about it not being clear that the appellant would be tried by magistrate or in a superior court, what comes after that is a reference in essentially a focus on only one issue, namely, the impact of pre‑trial publicity associated with the CCTV footage, for which the Corruption and Crime Commission said could be adequately dealt with by a direction of the trial judge.

That is only one aspect of the issue of the prejudice to the applicant.  The other is the classic statement that arises from this Court in X7 about a fundamental alteration to the accusatorial process, namely, that the release of the CCTV footage, in conjunction with the decision to examine the applicant in public and then publish his answers to questions compulsorily obtained in the public domain, means that the CCTV footage and the answers go together and they make sense of one another but having released them in the public domain, then means there is the question of the derivative use immunity that is not granted by the Act. 

In other words, there will be decisions that will be taken away from the accused in terms of forensic, strategic decisions that can be made at trial which will be unable to be made in his case because the fundamental process has been changed.

KEANE J:   But the disclosure has nothing to do with the introduction of this footage at the trial.  The fact that it has been disclosed has nothing to do with the use of this material by the prosecution.

MS VERNON:   I accept that the disclosure of the CCTV footage has not got to do with the use of the prosecution at trial, but the issue is, as the learned President identified, it is the release of the CCTV footage in conjunction with the answers given by the applicant to questions about the CCTV footage which are of course evidence inadmissible against him in criminal proceedings, which is where the danger lies, and which is where, we say, in light of the acknowledged risk that he faced that he would be charged with criminal offences, a matter that has now come to pass, in those circumstances we say that causes the prejudice that could never, in the circumstances, have allowed the Corruption and Crime Commission to be satisfied that disclosure was necessary in the public interest.  If it please the Court, those are my submissions.

GAGELER J:   Thank you, Ms Vernon.  We will not need to call on you, Mr Mitchell.

In our view, the conclusion reached by the majority of the Court of Appeal in the present case is not attended by sufficient doubt to warrant the grant of special leave to appeal.  Special leave is refused with costs.

Call the next matter.

MR MITCHELL:   I might indicate, your Honour, that we did not, as an intervener, seek costs of the special leave application.

GAGELER J:   Special leave is refused.

AT 12.16 PM THE MATTER WAS CONCLUDED