Bell v The Queen

[2022] HCATrans 30

[2022] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A30 of 2021

B e t w e e n -

TROY STEPHEN BELL

Appellant

and

THE QUEEN

Respondent

KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 MARCH 2022, AT 2.15 PM

Copyright in the High Court of Australia

MR B.J. DOYLE, QC:   If the Court pleases, I appear with my learned friends, MS M.E. SHAW, QC and MR S. JOYCE, for the appellant.  (instructed by Shaw & Henderson)

MR M.G. HINTON, QC:   If the Court pleases, I appear with my learned friend, MS J. LITSTER, for the respondent.  (instructed by Office of the Director of Public Prosecutions (SA))

KEANE J:   Mr Hinton, before you sit down ‑ ‑ ‑ 

MR HINTON:   Yes, your Honour?

KEANE J:   ‑ ‑ ‑ you have an application for the revocation of the grant of special leave.

MR HINTON:   I do, your Honour.

KEANE J:   It would be convenient for the Court to hear that application first.

MR HINTON:   On the application for special leave, Justice Gageler put to me that the questions that were reserved on the respondent’s application before the Full Court were important questions, and I agreed with that proposition that they were important questions.  At that time, they were important because the Independent Commission Against Corruption Act2012 had not been amended, and we were not to know of the amendments that were subsequently made.

Accordingly, when I agreed that the questions were important it was on the basis that settling them would settle every case until such time as amendment was made in a fundamental way, as it has.  In actual fact, what has happened is, we have had amendments such that there are now only eight cases and 11 accused who are affected.  So simply numerically, we no longer have questions of general importance within South Australia because the Act has moved on, and I will demonstrate in a moment for your Honours how the Act has moved on.

We simply have eight cases and 11 accused that this matter will now affect.  Can I show your Honours the way in which the changes have been made that are fundamental.  I invite you to have the joint book of authorities part A and part B.  The amending Act is in part B commencing at page 88.  The Act with which we were concerned at the time is in Part A commencing at Part 11.  Critical to the argument, and question 1 in particular, are sections 7 and 36.

If I can take your Honours in the then applicable Act to section 7, you will find it at page 19.  It is the functions vested in the Commissioner.  The argument as to functions and powers and whether you could make a direct referral to the Director focuses very much on section 7(1)(a):

to identify corruption in public administration and to –

(i)investigate and refer it for prosecution –

Contrasting it to 7(1)(a)(ii), or:

refer it to a law enforcement agency for investigation and prosecution –

If your Honours keep a finger at 7(1) and turn over to section 36(1), my learned friend’s argument is that section 36(1) is exhaustive of what the Commissioner may do upon embarking upon an investigation into, amongst other things, corruption in public administration.  The argument is that the Commissioner can only do either (a) or (b):

refer a matter to the relevant law enforcement agency –

and the DPP is not a relevant law enforcement agency:

for further investigation and potential prosecution –

or (b).  In other words ‑ ‑ ‑ 

GORDON J:   The DPP is not a public authority within (b)?

MR HINTON:   No, not within the meaning of (b).  Yes.  So the argument on the old Act is, well, we know you have this function that says you can investigate and refer, but that is a function, not a power.  The only power you have is section 36(1)(a), and that does not allow you to refer the product of an investigation direct to the DPP.  When we go to the amending Act, part B of the joint book of authorities, page 90, we will see that Parliament has now changed matters.

Section 7(1)(a)(i) has been amended.  You will find that the amending section is section 11, the bottom quarter of the page, page 90 of the joint book of authorities.  The function is now:

to identify corruption in public administration and to –

(i)investigate and refer it to a law enforcement agency for any further investigation –

Now, that is a significant change and, your Honours, then if I can invite you to turn over the page to an amendment to section 36 ‑ you will find that about point 6 – there is now the inclusion of a section 36(1a):

For the avoidance of doubt, the Commission must not refer a matter directly to a prosecution authority but may only refer it to a law enforcement agency who will be responsible for any further investigation and prosecution of the matter.

So we have a sea change.  The Commissioner can no longer investigate a potential issue of corruption in public administration and bring the product of the investigation directly to the Director of Public Prosecutions.  Now it must go through a law enforcement agency.  In South Australia that will be the South Australian Police who will decide whether or not to investigate and bring it to the Director or to investigate and charge.

Because of that amendment the judgment in this case will only affect, as I said, eight cases and 11 accused.  To add to that briefly, our submission before the Court was also that the judgment was not attended by sufficient doubt.  Now, I can go into that in detail if your Honour wishes me to.  The submission, very briefly, was that this was, with respect, a standard statutory construction exercise and you can see as the Full Court go through sections 7, 36, 43 and 56 ‑ ‑ ‑

KEANE J:   Well, whether or not the Full Court’s analysis was correct, the exercise that is involved is one involving close consideration of the text, context and structure of the legislation, an exercise that in respect of South Australian legislation, peculiarly South Australian legislation, the highest court in South Australia is perfectly fitted to do.

MR HINTON:   I would adopt that, with respect.  That is the point.  One other issue your Honours might like to take into account is, if you resolve the questions, you do not resolve the eight cases.  All you do, with respect, is put us in a position where, depending on what was done after matters were referred to the Director, you might have public policy arguments.

GORDON J:   Is that right?  Can I just test that proposition?  I understood from the appellant’s reply, especially at paragraph 3 ‑ ‑ ‑

MR HINTON:   Yes, your Honour.

GORDON J:   Do you have that, Mr Hinton?  There are a number of facts and matters that are put against the revocation of special leave, given the fundamental shift in the change in the statute, and you can see those set out:

First . . . enliven a basis for a permanent stay of the proceedings.

And so on.  Do you wish to say anything in relation to each of those matters?

MR HINTON:   With respect to the first, the application for a permanent stay has already been argued and answered.

GORDON J:   I accept that.  It is also possible, is it not, that a further application could be made depending upon what transpires in relation to the steps taken if at trial the judge was faced with a question about those steps in the context of a fair trial.  In other words, the fact that a permanent stay has been rejected now does not preclude a further application being made if the circumstances give rise to one.

MR HINTON:   It does not.  The basis at the moment for the permanent stay has been resolved, to adopt what your Honour Justice Keane said, by the highest court in South Australia undertaking an orthodox statutory construction exercise.  But that does not mean ‑ your Honour Justice Gordon is quite right ‑ that there could be another basis or different bases for a permanent stay.  What my learned friend puts against me there is, well, if your Honours decide the questions differently, that could agitate or provide the reasons for an application for a permanent stay, and I cannot shy away from that.  It could, and we conceded as much on the application for special leave to appeal.  But of course this ‑ ‑ ‑

KEANE J:   But that is going to depend on the circumstances of each case ‑ ‑ ‑

MR HINTON:   It will.  It will.

KEANE J:   ‑ ‑ ‑ and whether or not a relevant disadvantage has arisen, forensic disadvantage of the kind that has been discussed in the authorities.

MR HINTON:   Yes, yes.  And each case, your Honour is quite right, will be different depending upon what the Commissioner did post‑referral to the Director.  They will not be identical by any means.  So certainly the questions do provide that bedrock upon which we go forward, but it will be of variable application.  The second point that is put against me is ‑ that is the basis, it might provide a basis for discretionary exclusion.  Well, certainly, but each of the eight cases will be different.  The third ‑ ‑ ‑ 

GORDON J:   In a sense, I think the way I understand the third point is that, absent a decision from this Court, there is nothing to preclude or restrain ICAC from continuing this conduct in relation to these eight cases.

MR HINTON:   Correct.

GORDON J:   Do you accept that?

MR HINTON:   If this Court does not interfere, yes.

EDELMAN J:   So ICAC would continue to instruct and perform the role of the police on a continuing basis?

MR HINTON:   Well ‑ ‑ ‑ 

GORDON J:   That is why I asked the question.

MR HINTON:   Sorry, your Honour.  Can I go back a step?  The word “instruct” has a bit of conduct there.  If ICAC does not ‑ ‑ ‑ 

GORDON J:   Well, let us put it bluntly, would it continue to do the steps it has taken in this case in relation to those eight cases absent a ruling from this Court?

MR HINTON:   It will continue to do the steps the Full Court says it can, yes, but not all that it said.  Now, that is not, with respect, to instruct.  ICAC, and neither ICAC nor SAPOL instruct.  The decision, all decisions with respect to a prosecution in South Australia, and all around the country where a Director of Public Prosecutions is involved, are made by the Director.  I do not take instructions from anybody in the conduct of a prosecution.

GORDON J:   Yes, but you do have authority and control consistent with your Act in the way in which you conduct the prosecution of your matters within your remit.  So the question is, is it, that the DPP will continue to use ICAC in the way in which it has in these eight cases?

MR HINTON:   The answer is, in accordance with the Full Court judgment, if your Honours do not interfere, yes.

EDELMAN J:   Why would it be in accordance with the Full Court judgment under the Act prior to the amendments?  Would the relevant question not be, under the proper construction of the Act after the amendments?

MR HINTON:   No, with respect, the transitional provisions, save the Act as it applies to the eight matters.

EDELMAN J:   Yes.

MR HINTON:   I understood Justice Gordon’s question to relate only to the eight matters.

GLEESON J:   So the legislature could have addressed this in the transitional provision, but it did not.

MR HINTON:   It could have, it could have.  But bear in mind ‑ ‑ ‑ 

KEANE J:   And chose to enact the transitional provisions on a particular footing.

MR HINTON:   Yes, your Honour.

KEANE J:   On the footing that they would continue to apply to pending proceedings.

MR HINTON:   Yes, your Honour.  And when we say “would continue”, one, the ICAC does not instruct, two, what they would do is perform the same functions that SAPOL does.

GORDON J:   That is the problem, though.  That is the problem perceived by the new amendments.  That is the problem the new amendments are seeking directly to address.

MR HINTON:   Partially.

GORDON J:   Well, it identifies with precision that ICAC is not to refer matters directly to the DPP, and the DPP is not to take a direct brief ‑ a direct reference from ICAC.

MR HINTON:   Yes.  And with respect to all matters post the transitional provision, that will be done.  But what is the same between the ICAC and SAPOL is what the Full Court found, in effect, was the same.  It was part of the same investigative function, to obtain statements, if they were required by a prosecutor, to arrange for witnesses ‑ ‑ ‑ 

GORDON J:   Yes, required by a prosecutor, that is the point.

MR HINTON:   Yes, if your Honour pleases.  And that is the same function that the South Australian Police would provide, if they were requested to do so.  The only real differences are the ones to which my learned friends refer, and that is that there is no ability under section 11 of the DPP Act to issue a direction direct to the ICAC, and there is no application of section 10A of the DPP Act, which is a means by which the DPP is provided with some comfort with respect to disclosure.

But, of course, disclosure applies to the prosecution, and when a prosecutor stands up they must be able to guarantee that there has been disclosure, otherwise there are remedies.  If the DPP cannot guarantee that the duty with respect to disclosure has been discharged, the DPP should go along and say as much and then there can be a stay.

So, the basis of the application is that numerically it is no longer of general importance throughout South Australia.  Secondly, it is not of importance to the country as a whole.  Thirdly, it provides a measure of certainty going forward, but in those eight cases there is still an awful lot of variation such that the certainty you might say is of – well, bearing in mind the requirements for an application for special leave to appeal, it might be such that the Court should not take this case.

If the Court pleases, those are my submissions with respect to the application to rescind.

KEANE J:   Thanks, Mr Hinton.  Yes, Mr Doyle.

MR DOYLE:   If the Court pleases.  This Court should not revoke special leave for the following reasons.  First, the disposition of this appeal remains of importance and has a profound significance, both for the status and future conduct of the criminal proceeding involving numerous charges of serious indictable offences, but also for numerous other prosecutions which I think the affidavit evidence ‑ which has not been formally received but has been filed in Court – shows involved trials of significant length and complexity.

EDELMAN J:   Is that right, Mr Doyle?  If Mr Hinton is correct ‑ and let it be assumed that your submissions on the substantive issues in relation to the unamended Act were accepted by this Court ‑ would there not still be a subsequent question of what the effect of the transitional provisions are?  In other words, even if the Full Court was incorrect in its construction of the Act prior to its amendments, is the effect of the transitional provisions to preserve in relation to ongoing matters that incorrect construction?  And if that is an open question, then any decision that this Court gives on the construction of the Act prior to the amendments will have potentially no effect on any ongoing case.

MR DOYLE:   Well, first, Justice Edelman, the Director has not suggested that there is to be inferred from the transitional provision some negative implication that, irrespective of what this Court might declare on this appeal, the law, as decided by the Full Court, should continue in effect, and with great respect that would be a strange implication to read into a transitional provision, particularly in an Act which came into operation at a time when special leaves had been granted in this proceeding.  In my respectful submission, in those circumstances one could not take the transitional provision, speaking as it does only to a certain group of cases in the future ‑ ‑ ‑

KEANE J:   Except that ordinarily procedural matters in accordance with the maxim “no one has any right to a procedure”, questions of procedure are often affected by amendments that take effect from the time they come into force in relation to proceedings that are already pending.  To the extent that the legislature has here indicated an intention that the law as previously expounded in relation to the unamended Act by the Full Court, why would we not take the Parliament to be indicating an intention that the law as so expounded by the Full Court should be applied in relation to the previous matters – pending matters?

MR DOYLE:   With respect, your Honour, the changes to the Act cannot fairly be described as solely procedural, they relate more generally to provisions concerning the status of the Commissioner as an office and converts that to ‑ ‑ ‑

KEANE J:   This is true, but they are not concerned with – they are procedural in the sense that they are distinctly not concerned with your client’s substantive rights.

MR DOYLE:   Well, that is so, your Honour, but in my respectful submission it would be a very large implication to draw from a transitional provision when the proper operation of the proceeding law is the subject of an extant application for special leave and in fact a grant of special leave at the time of its passage.

KEANE J:   It is not so much drawing an implication from the provision.  It is the respect to be accorded to the Parliament when the Parliament has made a choice.

MR DOYLE:   Well, with respect, your Honour, the Parliament has afforded respect to the judicial process by not purporting to dictate the result of an extant matter that is before this Court and ‑ ‑ ‑

EDELMAN J:   That is the very question.  Is the effect of the transitional provision to say, well, whatever may be the judicial process in relation to these cases, that process is preserved, or is the effect to say that these cases are carved out because of the decision of the Full Court?  That may be an open question, and it is not addressed in any of the submissions.

MR DOYLE:   No, your Honour, and that is my starting point, is that it is not a submission advanced by the Director and in the absence of her submission that that is the effect of the transitional provision, in my respectful submission, this Court would not entertain it.  But that would be an unusual effect to give to a transitional provision when there is a matter of some notoriety in the State of South Australia in respect of which there had been a grant of special leave.  Had the intention been a positive intention to confirm the operation of the law as declared by the Full Court, that would have been an easy matter that could have been the subject of the positive provision, yet it was not. 

So, in our respectful submission, the absence of such a provision in fact speaks to the conclusion that the proper operation of the law as it previously stood is a matter for the courts.  There might be a question about whether it would even be an appropriate law that sought to dictate the outcome of this matter, having regard to Kable‑type considerations, had the Parliament specifically sought to ensure the result that is being posited as now arising by way of implication.  In my respectful submission, the Court would be very slow to read the transitional provision in that way.

If I might move on, the significance, subject to the matter that Justice Edelman has raised, is potentially threefold for each of the matters.  My learned friend says only eight matters and only 11 accused but, with great respect, that rather shows the significance of this matter to a number of serious prosecutions in South Australia.  The significance is threefold.  First, as Justice Gordon put arguendo, plainly it will affect the future conduct of these prosecutions.  Several of them have a substantial amount of water to flow under the bridge before any trial will be reached and the answers given by the Director to Justice Gordon’s questions show that this Court can only proceed on the basis that the outcome of this case will affect how those matters will be progressed to a trial.

There is no doubt on the affidavit evidence that at the moment ICAC officers who under legislation owe their sole duty to an Independent Commission Against Corruption are in fact performing the task routinely performed by police officers who, when those tasks are performed by police officers, owe distinct statutory duties to the Director of Public Prosecutions.

GLEESON J:   Mr Doyle, there has been a complete shift in that formally we had the Commissioner, now we have the Commission.  The Commission is constrained to exercise its functions only in relation to corruption in public administration.

MR DOYLE:   Yes.

GLEESON J:   I am just wondering whether the answer might be on that basis that the employees now of the Commission are in quite a different position from the employees of the Commissioner which might affect whether they could exercise that function to continue to instruct.  I was looking particularly at item 6(2) in the amendment Act.

MR DOYLE:   Yes.  Certainly there is that narrowing of jurisdiction, if I can use that word loosely.  But the critical provisions that govern how ICAC investigators and officers were to act under the legislation before it was amended require a consideration of the old section 7(2) which provided that the Commissioner was not subject to the direction of any person in relation to any matter. 

GORDON J:   How does that sit with section 15?

MR DOYLE:   How it sits is that the Commissioner can only cooperate to the extent consistent with the Commissioner’s purposes and objectives and proper role under the Act.  The Commissioner could never ‑ ‑ ‑ 

GORDON J:   Do you mean under section 7, read with section 36?

MR DOYLE:   Pardon me, your Honour?

GORDON J:   Do you mean under section 7, read with section 36?

MR DOYLE:   In respect of referrals for prosecution of corruption matters, there are other functions of the Commissioner, however ‑ ‑ ‑ 

GLEESON J:   Well, it is the Commission, not the Commissioner.

MR DOYLE:   Yes, it is now the Commission.  However, in my respectful submission, none of the amendments withdraw the effect of what was section 7(2), which precluded the Commissioner from being the subject of direction.  Now, item 11 of the amending Act replaces the word “Commissioner” in subsection 7(2) with “Commission”, but that fundamental independence remains, and further, there is no amendment made to the DPP Act in terms that would impose upon the Commissioner’s staff the sorts of obligations to the Director that are owed by other prosecuting authorities under sections 10, 10A and 11 of the DPP Act.

And so the position would remain that, on the basis that my learned friend has indicated, ICAC officers will perform the task of police officers, but are in point of law employees of the Commission, which is, by statutory mandate, quite independent from the Director.  So what you have are these two spheres of statutorily‑enshrined independence coexisting in the conduct of a prosecution.  That is one of the very matters we rely on in the appeal proper as contraindicating that Parliament intended that ICAC officers would act as an investigative arm in a prosecution, because the two regimes simply do not work together.

In my respectful submission, the change from “Commissioner” to “Commission”, albeit that will apply in respect of the future course of these eight prosecutions, will not change that tension, and on the basis that my learned friend has indicated, will not stop the DPP seeking to use ICAC officers and investigators as the investigative arm of the prosecution.  So there will be that significant impact necessarily for all eight prosecutions.  Secondly, as my learned friend acknowledged, there is an extant Bunning v Cross application in this matter which relied upon the comprehensive findings of unlawfulness made by the trial judge that were overturned, in effect, by the Full Court.

And that was a matter that Justice Gordon raised with my learned friend on the special leave hearing as a matter militating in favour of a grant of leave in that it would permit those applications to proceed on a certain footing, and we rely on that.  But, thirdly, there is the prospect, again acknowledged by my learned friend, of applications for stay in each of those proceedings.  Now, of course, whether they are granted will depend upon what has occurred and the significance of the evidence gathered in each case, but those arguments simply cannot proceed at all on the basis of the law as declared by the Full Court.

And so having the proper footing established by this Court is fundamental to each of those applications, if there be such applications, proceeding on a sure footing.  My learned friend conceded on the special leave application in answer to a question from Justice Gageler that no point would be taken against the re‑agitation of the stay application in this matter if the High Court differed in relevant respects from the analysis of the Full Court.

In my respectful submission, those considerations alone – in relation to the present matter and the other eight – show why it is in the interests of justice that the application for revocation not be allowed and the only circumstance in which this Court should revoke leave having regard to that circumstance is if the Court formed the view that the prospects of success on appeal were not reasonably arguable.  For the reasons we have made in our written submissions on the appeal, we say that simply cannot be said. 

However, beyond those eight prosecutions, there are broad questions of principle that are important, and we say were fundamentally misapplied in the present case.  Now, true it is that in this field of legislation investing statutory bodies with special powers, there are constantly shifting sands, and true it is that the legislation is by no means uniform in relation to such bodies around this country.

And so, it will always be a possibility that this Court’s analysis of the principles which govern the proper construction of those statutes will be expressed in respect of a statute that will not be in place forever, or may not be in place across multiple jurisdictions, but the guidance that this Court gives in such significant matters is of considerable assistance to lower courts when these constructional issues arise, as they inevitably do. 

In our respectful submission, there were, with respect, fundamental errors of principle made by the Full Court in the present case, in that the Full Court proceeded by reference to an a priori assumption as to the legislative purpose, assigning to the legislation the purpose not only of giving a body special powers in relation to investigation, but excluding from the process of law enforcement South Australian police.  That was the mischief and the purpose attributed to this legislation by the Full Court, we say without any proper anchor in the text, context or structure of the Act.  And insofar as the extrinsic material bore on the question of mischief, the extrinsic material suggests the precise opposite. 

The second reading speech is contained within book E, joint book E, and if I could just draw the Court’s attention to a passage at page 1035 of that book, where in the Minister’s second reading speech, at about point 4 of the page – this is on the introduction of the ICAC Act – it was said:

Under the process set out in this Bill, once a matter investigated by the ICAC has been referred to SA Police for determination as to whether, based on the evidence collected by the ICAC, a charge or charges are to be laid, the normal processes and procedures of a criminal prosecution will apply.

Now, we accept that there is a distinction to be drawn between mischief and meaning, when one is having regard to extrinsic material.  The purpose that the Full Court attributed to this legislation is directly contradicted by the second reading speech, which expressly contemplates that the ICAC – the product of an ICAC investigation will be referred to SA police for determination – independent determination by SA police – on the question of whether the evidence collected justifies a prosecution. 

Now, that is a serious error of principle, we respectfully say, made by the Full Court.  And although the underlying principle that courts must not proceed by reference to a priori assumptions is, of course, well‑known, it is, with great respect, important that this Court superintends compliance with that principle.

We also say that the Full Court made a fundamental error by not approaching the scope of the Commissioner’s powers and functions from the starting point that the Commissioner, having been given special compulsive powers, those powers must be construed conservatively rather than expansively by reason of the principle of legality.  The Full Court simply did not apply that constructional norm, and nor did they apply the constructional norm which we submit is associated with the Anthony Hordern case, or perhaps more broadly the maxim that reference to a specific excludes the general. 

The Court avoided that constructional principle by treating section 36(1)(a), which refers to referral to law enforcement agencies, as having an evident purpose that is concerned with non‑corruption offences.  There is simply no foundation for that ascribing of an evident purpose in the text or structure of the Act.  Again, it was the ascribing of an a priori assumption as to legislative purpose.  So we say that the grant of leave should be maintained because the principles involved are important and significant.

Thirdly, we respectfully submit that even in respect of cases that would be governed entirely by the Act as now amended, the amendments do not effectively reverse all of the Full Court’s reasoning in a relevant respect.  And by that I mean that although there is now a clear provision that referral must only be to a law enforcement agency, namely South Australian Police, there is no substantive amendment to section 43 of the Act, and the Full Court considered that section 43 in and of itself was a reason to treat the ICAC as having powers that could be exercised in aid of a criminal prosecution.  And so that line of argument which finds expression in the Full Court’s reasons and is put by my learned friend on appeal would still remain available.

EDELMAN J:   Well, that would depend on a construction of the Act as amended ‑ ‑ ‑ 

MR DOYLE:   Certainly.

EDELMAN J:   ‑ ‑ ‑ and particularly in light of the removal of any referral power.

MR DOYLE:   I accept that, of course, Justice Edelman.

EDELMAN J:   That is not before us.

MR DOYLE:   No, the Act must be construed as though it has, in effect, been re‑enacted, but plainly enough a South Australian court will have regard to the reasoning of the Full Court, and the Full Court expressed themselves in terms that attached very great significance to section 43.  We say, with respect, they entirely misconstrued section 43, but the logic of it would apply equally to the Act as amended.  And so there remains utility for future cases in maintaining the grant of leave.

Finally, can I just return to the interests of justice.  In my respectful submission, the interests of justice take on a very different complexion at the point of revoking special leave than they bear at the stage of an application for special leave.  In this respect we emphasise that it was the Director’s application to refer questions of law in this case based on the significance of them that has seen my client lose the benefit of findings of pervasive unlawful conduct that were made by the primary judge.

The Director, having elevated the importance of the matter in that way and having obtained a favourable ruling from the Full Court, it is, in my respectful submission, unjust that my client should be denied an opportunity if this Court considers that our arguments are reasonably arguable to have the matter finally resolved, and there is a real sense of grievance arising – if this Court were to revoke special leave there could be a real sense of grievance arising from the fact that, on one view, Parliament has simply spoken in much clearer terms now with a view to confirming the position that was revealed in the second reading speech when this Act was first introduced.

In effect, the Parliament has made a policy judgment, but what has been occurring is not appropriate, yet, by reason of that expression of the Parliament’s will, my client finds himself without any avenue to challenge what he says is erroneous reasoning in the Full Court.  Having obtained the grant of special leave, and invested, plainly enough, substantial time and cost in preparing the arguments, this Court should be, in my respectful submission, hesitant as a result to revoke special leave, and we submit that you should not adopt that course.  If the Court pleases.

KEANE J:   Thanks, Mr Doyle.  Mr Hinton, anything in reply?

MR HINTON:   Very briefly.  Firstly, Justice Edelman, for your benefit, the transitional provision is in section 70, I am not sure if your Honour has managed to pick that up, you will find that at page 97 of joint book B.  There is not a lot to help in terms of the text ‑ 70(1), the old Act:

as in force before the commencement of this Act continues to apply –

We would have ‑ anything done by the ICAC would have to be brought within its purposes as an investigation and the answers by the Full Court to question 3 bring it within that purpose.

I mentioned section 10A and section 11 ‑ my friend touched upon them ‑ of the DPP Act.  What I neglected to say was that of the eight matters, not all are indictable matters.  The effect of that is that not all of the eight matters come to the DPP’s office.  They will be prosecuted by the South Australia Police, the DPP Act does not become engaged at all.

Equally, even if you went to the new regime, of course, and the referral was made through the South Australia Police, section 11 and section 10A of the DPP Act only give the DPP a measure of control over the South Australia Police.  You still cannot reach through the South Australia Police to penetrate the ICAC.  So if the ICAC is hiding something, or does not want to cooperate – and there is no suggestion in this case or any case that that has occurred – but if that were the case it still would not save you.

GORDON J:   So how is it that you can give direction, Mr Hinton, to ICAC?

MR HINTON:   I cannot.

GORDON J:   Well, this is what we were discussing in‑chief.  You said you proposed to continue to use ICAC officers to do your work.

MR HINTON:   Yes, and it is simply a request, and the ICAC, the Commissioner or other, decides to expend her resources and undertake our requests or not.  It is the same with request to the South Australia Police.  Even though there is the power to direct, that is not a power that is used on a daily basis.  Your Honours will see under section 11(2) or (3), if a direction is given it has to appear “in the Director’s annual report”.  I do not know of a Director ever giving a direction.

So it is just an administrative arrangement where the police, in discharging their own duties and investigating whether or not offence has occurred, continue to do so, albeit with the assistance of a prosecutor’s advice, and when I said we would use them to obtain statements, it was in that context.  Where we foresee a gap in the case, a gap in their investigation, we would ask them to investigate that issue.

GLEESON J:   Mr Hinton, it is not clear to me how that assistance from Commission staff could be given to you in the light of the narrowed functions of the Commission.

MR HINTON:   Your Honour is quite right.  Any assistance they give upon request can only be given if it falls within the functions of the ICAC, and the Full Court determined that obtaining further witness statements at the request of the Director was an investigative function.  Assisting the Director by finding witnesses to bring them to proofings was within those function, that is because during the course of a proofing there is every likelihood that you will get further information provided which would have to be reduced to a statement, or a prior inconsistent statement which would be reduced to a statement and provided to the defence.  So they were the two main things that the Full Court said the ICAC officers could continue to do and that is what I would expect them to do.

GORDON J:   Do you accept that the powers of ICAC in undertaking both of those steps – and we use neutral language – are very different from those of South Australian Police?

MR HINTON:   No, with respect.  The task is identical.  With respect to those two, just the obtaining of a voluntary statement and the attendance at a witness proofing in case there is a prior inconsistent statement, no difference, with respect.

EDELMAN J:   So, the only reason then that the Department of Public Prosecutions would use ICAC officers for those functions is just convenience?

MR HINTON:   Absolutely, it was their investigation.

EDELMAN J:   They could be done by any police officer?

MR HINTON:   If the ICAC refused, then we would prevail upon the Police Commissioner for his assistance, and he could equally ‑ ‑ ‑

GORDON J:   No, that question was quite direct, Mr Hinton, and it is very important.  So it is for convenience rather than using what is now the regime that it has to be through South Australian Police.  So what is the convenience that compels that conclusion?

MR HINTON:   On an ICAC investigation, it is convenient to use the ICAC investigator, that is all, because of their knowledge of the case.

GORDON J:   They are not at court, or are they at court?  I mean, one of the reasons why the regime has been set up across the States to have an ICAC referral through the police on indictable offences – and I am just dealing with one to the DPP – is because of the role the police played both in the development of the brief which sometimes to go to the DPP does not include all the material provided by ICAC because some of it is not able to be used, and other reasons, which is then delivered to the DPP in order for the DPP to decide if a charge will be laid and, if so, what charge.

MR HINTON:   Yes.

GORDON J:   So when you talk about convenience, it is convenience but sometimes arguably in respect of matters which you say they have knowledge about the case but it is knowledge on a different basis, and one of the reasons why is because the preparation of the brief giving rise to the laying of the charge is often a subset of that which is before the ICAC.  They have a different function.  They are there to investigate and collect sometimes evidence which for obvious reasons is not able to be admitted at trial.

MR HINTON:   Yes, and the police do the same.

GORDON J:   They do, but they do it through a different lens because they recognise that they have to prosecute a case or provide assistance to prosecute a case to the DPP at trial.  Their purpose is different.  Their object is different.  Their skills are different.  The tools they have available to them are different.

MR HINTON:   With respect, the tools they have available are different, but the balance is not because ultimately the prosecution and the prosecutor owes a series of duties which the ICAC cannot conduct themselves in the course of an investigation in a manner that is not – or does not allow the prosecutor to comply because otherwise the prosecution will fail.

EDELMAN J:   Mr Hinton, there may be great force in those submissions, but I just for the moment cannot understand what the practical benefit or purpose of the DPP continuing to use ICAC investigators in relation to the future progress of some of these eight matters purely for the convenience that you describe in circumstances in which, as Mr Doyle has submitted, there may be very large questions about the extent and scope of sections such as section 43.  What advantage is there to the DPP in exposing all of its ongoing prosecutions to potential appeals merely for the sake of this minor convenience that you refer to?

MR HINTON:   When your Honour puts it that way, there is probably none and we should go back and ‑ ‑ ‑

GORDON J:   Well, I think that is why we are asking.  We just do not understand it.

MR HINTON:   The only reason was we had the benefit of a judgment, and with so many matters in the office you just carry on as normal without turning your mind to it, and the Full Court says the way it has operated so far, there is no problem.  So when I say “convenience”, it is simply that.  But now that your Honour has raised the issue, it can be rethought.

Can I deal very quickly with the two spheres point, two independent authorities.  I come back to the submission I made not moments ago about the importance being a fair trial and the duties owed by the court, so

ultimately everything filters up to that point and that trumps all.  If we cannot assure the court that there will be a fair trial, then we will be stayed.  We will refer to – sorry, I withdraw that point.

My learned friends referred to a priori assumptions.  With respect, we take issue with that, as we do with the submission about the application of the principle of legality and as we do with respect to the application of the Anthony Hordern principle.  In our submission, what the Court was involved with was the antecedent question and that is, were these two powers dealing with the same subject matter?  Now, it is only when they are capable of a construction that says they are dealing with the same subject matter that the Anthony Hordern principle comes into play, and our submission is that they do not.

As to the interests of justice, a very brief submission.  Yes, there was an application made for questions to be reserved, but of course the appellant also appealed, and the appeal gave rise to a notice of contention covering all the same issues.  So it was not just a matter of the Director inserting ‑ myself inserting this proceeding such that there is now this sense of grievance, there was always the possibility of a notice of contention once the appeal was issued.  So, in those circumstances, with respect to my learned friend’s client, he stands in the same position as anybody else who appeals on an issue antecedent to trial.  If the Court pleases.

KEANE J:   Mr Doyle, did you have something further?

MR DOYLE:   No.

KEANE J:   Well, then, in that event, the Court will adjourn briefly to consider the course it will take in this matter.  Adjourn the Court please.

AT 3.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.18 PM:

KEANE J:   Mr Hinton, the Court would be disposed to grant your application for revocation subject to the provision of an undertaking in these terms.  The Director undertakes not to make any further requests of the Commission for assistance in the prosecution of any matter covered by item 70(1) of Part 21 of Schedule 1 of the 2021 Act.  Now, are you in a position to give that undertaking?

MR HINTON:   If I understand it correctly, the effect of it is that, going forward, I use the South Australia Police.

KEANE J:   That is right.

MR HINTON:   I am prepared to give that undertaking, yes, your Honour.

KEANE J:   Very well.  Upon the undertaking of the Director not to make any further requests of the Commission for assistance in the prosecution of any matter covered by item 70(1) of Part 21 of Schedule 1 of the 2021 Act, special leave is revoked.  It is revoked on the footing that since the grant of special leave in this matter, the South Australian Parliament passed the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021.

In consequence of that Act coming into force, the provisions of the Independent Commissioner Against Corruption Act2012 which govern the issues in the present matter will no longer apply in South Australia.  The resolution of the issues of construction which arose in relation to the provisions of the 2012 Act is no longer a matter of sufficient general importance to sustain the grant of special leave to appeal to this Court.  Special leave is revoked.

The Court will now adjourn until 9.30 am tomorrow for the pronouncement of orders and otherwise until 9.45 am.

Adjourn the Court please.

AT 3.20 PM THE MATTER WAS CONCLUDED