Cassell v The Queen [2000] HCA 8 Date of Order: 18 November 1999 Date of Publication of Reasons: 10 February 2000 S110/1999
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales.
Representation:
J C Papayanni for the appellant (instructed by Peter C Prior & Co)
A M Blackmore for the respondent (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cassell v The Queen
Criminal law – False evidence – Independent Commission Against Corruption – Whether hearing conducted by Assistant Commissioner was a "hearing before the Commission" – Evidence of delegation by Commissioner.
GLEESON CJ, GAUDRON, McHUGH AND GUMMOW JJ. This appeal, from the Court of Criminal Appeal of New South Wales, was heard and determined on 18 November 1999. The Court ordered that the appeal be dismissed, and stated that reasons for the order would be given at a later date.
The matter has a long history. However, the question for decision in this appeal is narrow. In order to explain how it arises, it is necessary to state some features of the background.
In September 1989, the appellant gave evidence before Assistant Commissioner Roden, in the course of a hearing, or purported hearing, held by the Independent Commission Against Corruption of New South Wales, for the purposes of an investigation then being conducted by the Commission. The investigation concerned certain conduct of councillors and employees of the Tweed Shire Council. The nature of the evidence given by the appellant is presently immaterial.
"A person who, at a hearing before the Commission, gives evidence that is, to the knowledge of the person, false or misleading in a material particular is guilty of an indictable offence."
The offences were of a kind which could be dealt with summarily. The appellant was charged before a magistrate in the Local Court, entered pleas of guilty, and was convicted and sentenced. He then appealed against the convictions and sentences. The appeals came on for hearing in the District Court of New South Wales before Judge Downs QC. The appeals involved a hearing de novo of the charges against the appellant. At the conclusion of the case for the prosecution, counsel for the appellant submitted that there was no prima facie case. Judge Downs ruled against that submission. Counsel then requested the judge to state a case for the opinion of the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW).
There were five questions raised by the case stated. The Court of Criminal…
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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AGLC
Cassell v The Queen [2000] HCA 8
Case
[2000] HCA 8
Decision Date
CaseChat Overview and Summary
The case of *Cassell v The Queen* involved an appeal to the High Court of Australia concerning charges of giving false or misleading evidence before the Independent Commission Against Corruption (ICAC). The appellant, Mr Barry Cassell, had given testimony at a hearing conducted by an Assistant Commissioner of the ICAC. He was subsequently charged under s 87 of the *Independent Commission Against Corruption Act 1988* (NSW) with giving false evidence at a "hearing before the Commission." After conviction in the Local Court and a successful appeal to the District Court, the Crown sought review by the Court of Criminal Appeal, which ultimately remitted the matter for reconsideration. The District Court judge then stated a case for the opinion of the Court of Criminal Appeal on several questions of law.
The central legal issue before the High Court was whether the hearing at which Mr Cassell gave evidence constituted a "hearing before the Commission" for the purposes of s 87 of the Act. This question arose because the hearing was conducted by an Assistant Commissioner, not the Commissioner himself. The appellant argued that the evidence led was insufficient to prove that the hearing was validly conducted under the Act, thereby failing to establish the necessary element of the offence.
The High Court, by majority, dismissed the appeal. The Court considered the provisions of the *Independent Commission Against Corruption Act 1988* (NSW) concerning the powers of the Commissioner and Assistant Commissioners. It was held that the Act contemplated and authorised the delegation of powers by the Commissioner to Assistant Commissioners, and that a hearing conducted by an Assistant Commissioner, acting within the scope of their delegated authority, was indeed a "hearing before the Commission" for the purposes of s 87. The Court found that the evidence presented, including the testimony of a hearing room officer and the terms of reference for the investigation, was sufficient to establish that the hearing was conducted under the authority of the Commission.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
On 18 November 1999 this Court dismissed this appeal. In my view, the appeal should have been allowed. The approach and conclusion of the Court of Criminal Appeal of New South Wales were erroneous. The facts In September 1989 Mr Barry Cassell (the appellant) gave certain testimony in proceedings (to use a neutral word) conducted in a hearing room of the Independent Commission Against Corruption ("the Commission"). This is a statutory corporation constituted by s 4(1) of the Independent Commission Against Corruption Act 1988 (NSW) ("the Act"). Following the testimony, in July 1991, four informations were laid against the appellant in the Local Court of New South Wales. These charged him with offences against s 87 of the Act. That section states:"A person who, at a hearing before the Commission, gives evidence that is, to the knowledge of the person, false or misleading in a material particular is guilty of an indictable offence." The offence so provided carries a maximum penalty of a fine or imprisonment for five years, or both. Judicial authority exists which suggests that a person convicted of the offence should ordinarily receive a custodial sentence[10]. It could not be disputed that the charge was therefore a serious one potentially affecting the liberty of the appellant.[10]eg R v Anthony Aristodemou unreported, Court of Criminal Appeal (NSW), 30 June 1994 at 4; R v Nelson Rowatt Chad unreported, Court of Criminal Appeal (NSW), 13 May 1997 at 4-5. In the Local Court the appellant was convicted and sentenced. He appealed to the District Court of New South Wales[11]. His appeal was heard de novo by Judge Downs QC. Judge Downs allowed the appeal and quashed the convictions. The Crown applied to the Court of Criminal Appeal for review of the orders made by Judge Downs[12]. That Court quashed the purported order of Judge Downs and remitted the matter to the District Court for reconsideration[13]. The hearing before Judge Downs resumed in June 1997. The appellant raised a number of objections to the sufficiency of the evidence which had been led by the Crown to prove the alleged offences. Upon each of the appellant's objections, Judge Downs ruled in favour of the Crown. The appellant asked his Honour to state a case for the opinion of the Court of Criminal Appeal. This he did.[11]Justices Act 1902 (NSW), s 122(1).[12]Who had refused the Crown's request for a stated case pursuant to the Criminal Appeal Act 1912 (NSW), s 5B.[13]Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 173. The case stated ("stated case") recounts certain factual findings, submissions made for the appellant, the reasons of Judge Downs for rejecting the appellant's submissions and the questions of law reserved for opinion. Amongst the facts found were the terms of reference identifying the "investigation"[14] which the Commissioner appointed under the Act (Mr Ian Temby QC) had signed, the evidence of court reporters and monitors who had recorded and transcribed the several master tapes of the proceedings at which the appellant's testimony had been given, and the evidence of a Mr Kevin Hunter, an employee of the Commission. Mr Hunter deposed that he was a hearing room officer who had been present in the hearing room of the Commission on 6 and 7 September 1989 when the appellant gave evidence. Mr Hunter further deposed that he had subsequently listened to the audio cassette tapes and identified those tapes (six in number) and the voices on them as "Mr Toomey, Counsel assisting Mr Roden, Assistant Commissioner and the appellant". The evidence of the court reporters and monitors and of Mr Hunter was given and accepted by Judge Downs. In the stated case, his Honour also recorded, relevantly, that he had been advised at the outset of the appeal "that Counsel for the appellant required strict proof of all matters"[15]. He recorded the relevant submission "that there had not been a hearing by the Commissioner [sic] in accordance with the Act"[16]. He asked the Court of Criminal Appeal whether he had erred in law, relevantly, in holding that:[17]"The evidence was sufficient to prove that there had been a valid hearing under the ICAC Act in which evidence had been given by the appellant sufficient to support a conviction for an offence under Section 87 of the said Act."[14]The Act, s 30(1).[15]Stated case, Statement of Facts, par 4(a).[16]Stated case, Statement of Facts, par 11(iv).[17]Stated case, Questions of Law, par 5.