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

____________________

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] HCATrans 132
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, A, against the Corruption and Crime Commissioner and two other respondents. The dispute concerned the validity of a notice issued by the Commissioner under section 131 of the *Corruption, Crime and Misconduct Act 2003* (WA) (the Act) requiring A to attend an examination and produce documents. A sought to challenge the notice on the grounds that it was issued for an improper purpose, namely to obtain information for use in a criminal prosecution rather than for the purposes of an investigation under the Act.

The central legal issue before the High Court was whether the Commissioner's power to issue a notice under section 131 of the Act was limited to the purpose of conducting an investigation into corrupt or criminal conduct, or whether it could be exercised for the purpose of gathering evidence for a criminal prosecution. This involved an interpretation of the statutory language of section 131 and the overall scheme of the Act, particularly in relation to the Commissioner's investigative powers and their interface with the criminal justice system.

The High Court held that the Commissioner's power under section 131 was not confined to the purpose of conducting an investigation into corrupt or criminal conduct. Their Honours reasoned that the Act conferred broad investigative powers on the Commissioner, and the purpose of gathering information for a criminal prosecution was not excluded from the scope of those powers. The Court emphasised that the statutory language did not impose such a limitation and that the Commissioner's role encompassed the identification and referral of criminal conduct, which could include the gathering of evidence for subsequent prosecution.

The appeal was dismissed.

Orders