Cassell v The Queen

[1999] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S175 of 1998

B e t w e e n -

BARRY JOHN CASSELL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 1999, AT 12.38 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:   If the Court pleases, I appear for the applicant.  (instructed by Peter C. Prior & Co)

MR T.L. BUDDIN, SC:   May it please the Court, I appear together with my learned friend, MR L.M.B. LAMPRATI, on behalf of the respondent.  (instructed by S.E. O’Connor, Director of Public Prosecutions (New South Wales))

KIRBY J:   Yes, Mr Papayanni.

MR PAPAYANNI:   It is an application for special leave in relation to the stated case before his Justice Downs which went before the Court of Criminal Appeal.  The first point is in relation to the question as to section 87 of the Independent Commission Against Corruption Act and the ingredients of that section.  Section 87 says:

A person who, at a hearing before the Commission –

and we say that has to be proved strictly –

gives evidence that is, to the knowledge of the person, false or misleading in a material particular is guilty of an indictable offence.

We say in relation to the first matter that the knowledge of the falsity is one ingredient but also, the knowledge of the falsity in a material particular is also an ingredient and that, of course, was not in the indictment, that was not specified in the informations which are set out on pages 9 to 12.  In none of the informations was that set out.

Now, in relation to this specific matter, we rely upon the case of Reg v Davies (1973) 7 SASR 375. That was a case which was referred to by the Court of Criminal Appeal but what they said was somewhat misleading. The Chief Justice there said the leading judgment in this case is that of Wells.  That is reported on page 376 and the section there was:

“Any person who wilfully and corruptly makes any declaration by virtue of this Part, knowing that declaration to be untrue in any material particular, shall be guilty of a misdemeanour‑

and that was in similar terms to what the section is in this case and that was considered by the Chief Justice in relation to the question of perjury and Mr Justice Jacobs came to a different view to that of Mr Justice Wells on the question of perjury, and since then his Honour decided that the question of materiality was not a matter - had not been shown on the authorities, to be a matter strictly for the judge.  But later, in the case of Traino, they decided that the matter of materiality in the case of perjury was for the judge.

Now, his Honour the Chief Justice on page 379 referred to that situation about point 5:

however this may be on a charge of perjury committed in some previous legal proceedings involving the resolution of legal issues, I do not see how materiality in a statutory declaration can ever be a question for the judge alone.  In such a case there are no previous legal issues to which the impugned statement can be related; and the materiality of the statement to the declaration would, in my view, in many cases at least, be a question of logic to the decision of which the judge could bring no professional superiority over any other intelligent reasoner.  No doubt in many such cases it is a question which cannot be answered satisfactorily without some background information about the purpose of the declaration –

and his Honour came to the view, on page 380, about the second last paragraph:

Moreover, the offence under consideration is a purely statutory offence.  Section 27 makes it an indictable misdemeanour.  It contemplates a jury trial.  I do not see what right a court has to pick out one of the ingredients of a statutory crime so created and to say, “This ingredient is to be decided by the judge, not by the jury”.

Then his Honour went on at page 381 to deal with the question of materiality in relation to jury.  His Honour decided that had not been satisfactorily decided, whether it was for the judge or not but then the question of knowledge, his Honour went on to say:

I should also add that I agree, with respect, with Wells J. that it is an essential element of the crime that the accused should know of the materiality of his falsehood, and I agree further with him that in this case the omission to leave that question to the jury did not in the circumstances of the case cause any substantial miscarriage of justice for the reasons which he gives and to which I have just alluded.

So, his Honour there was saying that the question of knowledge of materiality was a question for the jury and Mr Justice Wells, when he was dealing with the situation, on page 387 at the top of that page referred to the fact:

The second principal ingredient is that which appears as the conclusion to the information:  “knowing that declaration to be untrue in a material particular, namely…”, and then follows the particulars of the part of the declaration complained of.

Then he sets out there that the matters that had to be proved was:

that the declaration was in fact untrue in the required sense; and (b) that the defendant knew that it was untrue in that sense.

That is in a material particular.  So, a further factor, there was no authority in relation to that.  But then on page 391, his Honour, at point 5 decided that the question of materiality was a question for the judge and then – he was talking about perjury there and he said:

A decision on materiality will, generally speaking, necessitate a judgment as to whether the testimony assigned as perjury was of a fact in issue, of a fact relevant to a fact in issue, or of some fact that was fairly capable of affecting the defendant’s credit –

Now that is not the situation here because in relation to the scope of the investigation, in relation to the Independent Commission Against Corruption which is set out on page 2 of the application book, refers to first of all to investigate the conduct of certain councillors and employees and so on:

in the exercise of their official functions –

and the conduct of other persons connected with them and then:

TO ASCERTAIN whether any such conduct amounts to corrupt conduct –

Now that was a question that was decided in the Waverley Case, of course, in relation to section 74 of the Independent Commission Against Corruption and all the Commissioner can do is refer - if he decides that there is evidence of corruption, he cannot decide that in relation to any particular person that the fact of corruption has been proved beyond reasonable doubt.  All he can do is refer to the DPP for consideration under section 74.  So, in this case, in any hearing under the Act, there is no question of any issues, really, as there is in perjury.

KIRBY J:   These are the matters that you argued in the Court of Criminal Appeal.

MR PAPAYANNI:   Yes.

KIRBY J:   And that court has given its construction to the statute which is a New South Wales State statute.

MR PAPAYANNI:   That is correct.

KIRBY J:   What is the general significance of the point that you have just been - - -?

MR PAPAYANNI:   Well, the general significance of this has been the number of prosecutions in relation to this section and the Court of Criminal Appeal or one of the persons on the Court of Criminal Appeal says that people must go to gaol unless there are special circumstances so, in relation to that, it assumes massive importance in relation to any question of any prosecution under this section.

HAYNE J:   Does it have any application beyond this State?

MR PAPAYANNI:   No application beyond this State, no.

HAYNE J:   Why should this Court then become involved in it?  Why should not the interpretation of laws unique to this State not remain with the principal court in this State, the Court of Appeal?

MR PAPAYANNI:   Well, the simple situation is that you have, in other States, similar legislation in relation to perjury and you have other statutory offences.  This is a statutory offence so this Act does not apply in any other State but the fact of the statutory offence and the elements of the statutory offence would apply in every other State in Australia and one of the matters that it would apply to is section 27 of the Oaths Act in South Australia.  That is made evident there.  There has been no decision by the High Court in relation to any interpretation of statutory offences and the ingredients that are required in relation to that.

KIRBY J:   I suppose the question is really directed to whether it would not be more appropriate if the issue of principle is to be raised, for it to come up under a statutory provision dealing with perjury which will be in largely common form throughout the country rather than in a provision of a statute which is still unique to New South Wales.  There is no other State - maybe, I think, Hong Kong has a statute similar where there is an Independent Commission against Corruption but no other Australian State has.

MR PAPAYANNI:   Well, the only point about this, this is not perjury in the sense that under section 87 it only refers to evidence and under section 35 the person does not need to be sworn so it is only a statutory offence.

KIRBY J:   Yes.

MR PAPAYANNI:   And it does not have to be on oath.  Now, a similar situation could apply in relation - in pari materia to any other States which have similar legislation.  As I say, there is one in South Australia and there should be others elsewhere.  The matter of importance is that it does not have to be, in my submission, a matter of general importance throughout the whole of Australia.  It may be that there is gross miscarriage of justice in relation to this matter by reason of the fact that every person who commits or is found guilty of this matter is in jeopardy of going to gaol unless they can show some special circumstances.

That, in my submission, makes it a matter of sufficient importance and shows that there has been a miscarriage of justice in relation to this particular matter because, not only in relation to this particular situation, the only authority on it is this case in South Australia which says knowledge of the materiality is a matter that must be decided, must be in the indictment and must be decided.  In this particular case also they applied the presumption of regularity which applies ‑ ‑ ‑

KIRBY J:   That is your second point which may ‑ ‑ ‑

MR PAPAYANNI:   Yes.  That applies throughout Australia in relation to that.

KIRBY J:   Yes.  Well, deal with that because that seemed to me to be more arguable.

MR PAPAYANNI:   Yes.  Well, of course, in relation to presumption of regularity I have set out in my written submissions there a number of cases whereby that has been determined and, in this particular case, you have the situation where Dillon’s Case  PC 274 at 277 made it quite clear in that case that the situation there was that:

Their Lordships are of the opinion that it was essential for the Crown to establish that the arrest and detention were lawful and that the omission to do so was fatal to the conviction of the appellant (subject to the argument…..The lawfulness of the detention was a necessary pre‑condition for the offence of permitting escape, and it is well established that the courts will not presume the existence of facts which are central to an offence –

and that is the situation here, because in relation to the hearing, the prosecution was put on notice at the beginning that the elements in relation to proving the hearing had to be proved strictly and that is in the application book at page 4.  Then on page 277, the Privy Council went on to say:

Moreover this particular offence is one which touches the liberty of the subject, and on which there is, for that reason also, no room for presumptions in favour of the Crown.

Of course, the general situation in relation to this matter is that it is not a public official.  Generally, the situation in relation to presumption of regularity applies to public officials in a public office and in this particular situation the matters that had to be proved in relation to the section were set out in section 30 of the Act which required that in relation to a hearing:

the Commission may hold hearings.

(2)  A hearing shall be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.

Now, there was no determination by the Commissioner and the situation also was that under section 4(3) of the Act:

The functions of the Commission are exercisable by the Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner –

there was no evidence of any authority of the Commissioner –

shall be taken to have been done by the Commission.

Then in (4) it refers to the same thing in relation to the Commissioner:

having authority in the circumstances.

Now, under section 107 of the Act, the power there to delegate - under section 30 you have a situation where it may be the Commissioner or by Assistant Commissioner has determined by the Commissioner then under section 107 you have the situation there where “The Commissioner may delegate” under (2):

to an Assistant Commissioner or an officer of the Commission any of his or her functions.

Then, under subsection (5):

The following functions may be delegated only to an Assistant Commissioner –

and so you have the situation under (5)(e):

the powers of the Commission or the Commissioner –

and there are a number of powers under the hearing section under Division 3 of Part 4 in connection to the hearing.  There are a number of powers there in relation to the Commission and the Commissioner.  So under (5)(e) the Commissioner can delegate the powers under that section except the power to issue a warrant under section 36.  Well, that comes within the same section.  So, there was no delegation by the Commissioner of any of his powers in relation to the hearing of this matter and so, under section 4, there would be no hearing by a commission.  There are a number of matters also in relation that needed to be proved but one of the vital matters that had to be proved was to show that the hearing was, in fact, a valid hearing and that the Assistant Commissioner, who was presiding, had the authority or it had been determined by the Commission that he, in fact ‑ ‑ ‑

KIRBY J:   So far as the approach of the court below is concerned, it reminded itself of the principle that you referred to in Dillon and also in the decision of this Court in Day and, therefore, from the point of view of this Court considering an application for special leave, it appears that the correct principles have been kept in mind by the court under review but what is then raised is, and is only as it seems to me, the question of whether the Court should grant special leave on the ground that this did an injustice to your client and it can scarcely be said, can it, that the fact that it was not proved, that there was a delegation to the Deputy Commissioner….did an injustice‑ ‑ ‑

MR PAPAYANNI:   Well, the Court of Criminal Appeal did not refer to Dillon at all.

KIRBY J:   Well, it referred to the principle relating to the care with which the presumption of ‑ ‑ ‑

MR PAPAYANNI:   It did not refer to the question of – all they said was that a presumption of regularity applied.  They did not give any reasons in relation to that.

KIRBY J:   I had the impression that their Honours did refer to - that Justice Smart did refer to that.  Anyway, you say he did not.

MR PAPAYANNI:   Well, there is no mention of it here.  All they said in relation to that was about the evidence.  There was evidence of Mr Roden and so on on page 129, “The presumption of regularity applies”.  Well now, it means here that if the presumption of regularity is going to apply to that, it is going to apply to every statutory hearing and, of course, the situation in relation to it has been held that it does not apply to royal commissions.  It does not apply to warrants.  It does not apply to a number of other hearings.  If a person commits perjury and he comes before the court, they have to prove by certificate if it is in the ‑ ‑ ‑

HAYNE J:   Can I just take you back?  Page 129, line 30, we see, “The presumption of regularity applies.” but can I take you back to 128, particularly line 52:

Evidence was not required of these matters.

What are the matters referred to as “these matters”?  Are they the matters set out at lines 30 to 46?  In particular do they include delegation?

MR PAPAYANNI:   They mentioned delegation in the previous – that is line 44:

Cassell submitted that there was no evidence that the Commission or the Commissioner had delegated any of its or his functions.

HAYNE J:   So, does the Court of Appeal depend on the presumption of regularity or does it say these were not matters for evidence, that is, that it was necessary to prove delegation?  Have you got to go back a logically anterior step beyond the ‑ ‑ ‑

MR PAPAYANNI:   No, it is quite clear, your Honour, that what that is saying there, by setting out those matters – there were a number of other matters too – but then they go on to say:

Evidence was not required of these matters.  Section 6…..conferred or imposed on an Assistant Commissioner under the Act.

It deals with that.  The evidence of Mr Roden and so on and then:

The presumption of regularity applies.

That is what they are saying, that is why no evidence of required of it.  I think that is self‑evident, in my submission.

KIRBY J:   You say that it had to be proved by evidence; that it was not proved by evidence; that the only explanation given by the Court of Criminal Appeal was the presumption of regularity?

MR PAPAYANNI:   That is correct.

KIRBY J:   That authority says presumption of regularity must be exercised with great care in the criminal sphere; that they did not remind themselves of those principles.

MR PAPAYANNI:   And they said that also at ‑ ‑ ‑

KIRBY J:   And that, therefore, the way they filled the gap was inadmissible and that this affected the tribunal which was deciding the matter and therefore affected whether you had a decision of the Commission according to law.

MR PAPAYANNI:   That is correct.  The situation, as I say was – and there is some doubt, as the authority that I gave in relation to Mr Justice McClemens where there is some doubt it should ‑ ‑ ‑

KIRBY J:   It hardly rings with the bell of merit or of injustice to your client.

MR PAPAYANNI:   That is correct.

KIRBY J:   It is a purely technical legal ground.

MR PAPAYANNI:   It is a matter that really is important in relation to proof because it carries this gaol sentence.

HAYNE J:   Why?  I understand that.  I understand the importance of that but why is it an element of proof?

MR PAPAYANNI:   Why is it an element of proof?

HAYNE J:   Why is it an element of proof of delegation?

MR PAPAYANNI:   Because the section states ‑ ‑ ‑

HAYNE J:   Why is the delegation an element of proof?

MR PAPAYANNI:   Because otherwise the only person who represents the Commission is the Commissioner at a hearing.  He can determine that the Assistant Commissioner represent the Commission.

KIRBY J:   It is like a quo warranto point.

MR PAPAYANNI:   Yes.

KIRBY J:   You are saying that unless there is a delegation and unless it is established, no other person or functionary and, in particular, you might say somebody who is not a public office holder or, in many cases, is just appointed to this function should be allowed to intermeddle without it being proved that there is to be a statutory delegation.

MR PAPAYANNI:   We certainly wanted strict proof and as Mr Justice McClemens says it is not up to the defendant in a matter to be able to prove a negative because he cannot prove it.

KIRBY J:   Did you raise this point squarely before the Court of Criminal Appeal?

MR PAPAYANNI:   I did not, no.

KIRBY J:   Why should we allow it to be expressed now?

MR PAPAYANNI:   The authorities were given in relation - and there were written submissions in relation to it and the authority of Dillon was given to the Court of Criminal Appeal and they did not even mention it.

KIRBY J:   Yes, very well.  Your time is up, thank you.  Yes, Mr Buddin.  On the second point, that is the point or ground 5, I think it is, only on that matter.

MR BUDDIN:   Yes, your Honour.  Well, starting with that last aspect first, this is not an appropriate matter for the grant of special leave, it not having been agitated in the form that it now, apparently, is agitated in the court below.

KIRBY J:   But it does go, in a sense, to the authority of the tribunal.  It makes a decision which, on the face of things, made one way is going to have a very severe penal consequence for the applicant.

MR BUDDIN:   It was not inappropriate to invoke the presumption of regularity with all the cautionary note that must be attended upon it.

KIRBY J:   It does not seem to give any reference to the cautionary note.

MR BUDDIN:   If the matter was not agitated in the way that it has been now ‑ ‑ ‑

KIRBY J:   We are told Dillon was referred to their Honours.

MR BUDDIN:   Even if Dillon was referred to their Honours, Dillon, as I understand it, really establishes the proposition that - - -

MR PAPAYANNI:   And Day, I should have mentioned Day, also.

KIRBY J:   He says that both Day and Dillon were referred to their Honours and, certainly, Day makes it clear that this is a presumption to be used with very great caution in the field of criminal law.

MR BUDDIN:   And certainly, it cannot be used to prove the existence of facts which are central to the offence.  Dillon, and Day might be the same – I do not specifically recall  ‑ ‑ ‑

KIRBY J:   I think Day says the same thing.

MR BUDDIN:   But the question in each of those cases, as I recall it, was it was necessary for the prosecution to prove as an essential element of its case, that the prisoners were in lawful detention and, in those circumstances, that question could not be presumed.

KIRBY J:   Why can you not say that it is analogous that a person is in lawful charge of a person who has been delegated the functions of the Commissioner under the Act?

MR BUDDIN:   We would respectfully submit that they are of a different character but, be that as it may, there was evidence upon these matters and the Court of Criminal Appeal refers to some of the evidence at page 129 and it is listed and it was apparently uncontroverted evidence and so did the trial judge.

KIRBY J:   But did that evidence ever rise to the proof of delegation?  My understanding of the submission is that it did not.  I mean, this is an argument without any merit from the point of view of miscarriage of justice.  It is a technical legal argument ‑ ‑ ‑

MR BUDDIN:   Yes, I understand that.

KIRBY J:    ‑ ‑ ‑ that an essential ingredient in the prosecution case was not proved.  We would not want to send a signal that that is not still the requirement of prosecutors.

HAYNE J:   Can I track it through, Mr Buddin?  Page 129, line 6:

There was evidence of Mr Roden acting as an Assistant Commissioner, presiding at a hearing in a hearing room of the Commission –

and the Assistant Commissioner conducted –

a hearing and the Commission’s reporting service…..providing the tape and the transcript.  The master tapes were retained – - -

MR BUDDIN:   Yes.

HAYNE J:   Now, under 35(3) he was given explicit power to administer on oath.

MR BUDDIN:   Yes.

HAYNE J:   The relevant offence is section 87:

A person who, at a hearing before the Commission, gives evidence –

“at a hearing before the Commission” is defined by 4(4) as including certain things, including:

a reference to a hearing before…..the Commissioner or another officer of the Commission having authority in the circumstances‑

but that is inclusive.  What do you say about the proposition that delegation of some sort to this Assistant Commissioner had to be demonstrated?

MR BUDDIN:   I must say that I thought there was some evidence upon that question although we do not ‑ ‑ ‑

HAYNE J:   Leave aside whether there was evidence for the moment.  Did it have to be demonstrated that there was some delegation to this Assistant Commissioner?

MR BUDDIN:   Even if it had to be demonstrated, if there was not, we would submit that that does not render the proceedings a nullity.

KIRBY J:   But, you see, the offence against the public is doing something not to an ordinary citizen, however important or distinguished, it is to do it in a serious statutory context before a public office holder whose role is recognised by Parliament as attaching to it considerable significance if there is false evidence and that does seem, on the tracking that Justice Hayne has done, to require that that is an ingredient of the offence because it is the fact that he holds the office that attracts, at least arguably, the obligations and the burden in the event that there is false evidence.

MR BUDDIN:   There was evidence which was not contradicted from one of the employees of the Commissioner that Mr Roden - I think he was Mr Roden at the time – yes, he must have been ‑ ‑ ‑

KIRBY J:   Yes.

MR BUDDIN:   - - - and that he was the Assistant Commissioner.  That evidence was not challenged.

KIRBY J:   Where was that?

MR BUDDIN:   Page 48.

KIRBY J:   What line?

MR BUDDIN:   At lines 27 to 30, round about there.  That evidence went over about three or four pages, I might indicate.

KIRBY J:   Who is Mr Hunter?  What is his authority to say these things?

MR BUDDIN:   He was, as I understand it, an employee of the Commission at the time but there is no objection taken to any of this evidence.  It was uncontradicted.  At page 42 he gives his occupation.

KIRBY J:   Yes.  Well, that is the highest you get to it, is it not, but it does not prove delegation in this particular case, does it?

MR BUDDIN:   It does not prove the delegation as such.

HAYNE J:   But do you say you need it?  I mean, can we start at the beginning?  They say you needed to prove a delegation.  Do you say you do or do you not?

MR BUDDIN:   No, we say we do not.

KIRBY J:   Why?

HAYNE J:   Why not?

MR BUDDIN:   Yes.  It is not an essential element of the offence.

KIRBY J:   But is not the office which the person before whom the false evidence is given integral to the significance which the law attaches to the falsity?  I mean, if he tells Mr Roden in the street or if he tells Mr Hunter things that are false, it does not matter.  It is the fact that he is telling it in a public forum in a statutory form of tribunal before a person who is given authority by Parliament to have the consequences attaching to his office, of false testimony.  Why is that not, at least, strongly arguable as a foundation for saying this is an ingredient of the offence?

MR BUDDIN:   Well, it is certainly not specified in the specific statutory offence that is proscribed by section 87.

HAYNE J:   By what right does an Assistant Commissioner conduct a hearing of the Commission?

MR BUDDIN:   By reason of delegation.

KIRBY J:   Otherwise it is not a hearing before the Commission, is it?

MR BUDDIN:   Yes, that is true.  Would your Honour just pardon me for a moment?  Section 30, your Honours, indicates that:

For the purposes of an investigation, the Commission may hold hearings.

(2)  A hearing shall be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.

KIRBY J:   Those words “as determined by the Commissioner” again raise the issue of delegation, do they not, of authority?

MR BUDDIN:   They do.  My recollection is there is some evidence about that.  Would your Honours just pardon me for a moment while I try ‑ ‑ ‑

KIRBY J:   Certainly.

MR BUDDIN:   It might be that Mr Hunter is called in aid again in relation to that matter.  Section 6 refers to the exercise of the functions but one accepts that that still needs to be considered in the light of section 30.  Your Honours, I am not sure that there is any direct evidence about this question.

HAYNE J:   Well, Mr Buddin, can I say this to you quite bluntly?  I would have hoped that we might have had better assistance in tracking our way through this statute and that we might have had better assistance in deciding whether the point was arguable or no.

KIRBY J:   It is just a New South Wales statute but it still has to be construed.

MR BUDDIN:   Yes, I accept that.

KIRBY J:   And if an element in an ingredient of the offence is missing then there has not been a proper – the offence may not have occurred and as loss of liberty attaches to it, it has to be taken seriously.

HAYNE J:   Yes.  Some man may go to gaol as a result of this and it is rather important in his life and others.

MR BUDDIN:   Yes.  I am not suggesting for a moment that it is not important, your Honour.  In the Minister for Natural Resources in New South Wales Aboriginal Land Council, I appreciate that it is slightly to one side but that was a decision we were going to rely on in relation to this question of the presumption of regularity.  The assumption that I made, perhaps an unwarranted assumption, was that the presumption of regularity as the Court of Criminal Appeal indicated, would obtain in this case because of the non‑essentiality of this matter as being an element of the offence.  In that case - I have copies available for your Honours.  It is a short extract.

KIRBY J:   Yes.  Hand it up.  What was the statute there?  What was the provision.

MR BUDDIN:   The Western Lands Act.  It refers to the position of a public official or authority purporting to exercise power and the presumption of regularity.  This is at page 164 at about point C.

KIRBY J:   Yes.

MR BUDDIN:   And there is a presumption that the person acting in a public office has been validly appointed as well as the presumption that flows in terms of the discharge of the exercise of powers that come with the appointment.  We seek to rely on that in support of the presumption of regularity which, as I have indicated, was the basis on which the Court of Criminal Appeal determined the matter augmented by the evidence to which I have referred.

KIRBY J:   You do have - as Day says and as the Privy Council says, you have to be very careful about the use in criminal proceedings because of the fact that it is the accusatorial system and you have to prove the essential ingredients and this Court has taken a stand against its too ready use in criminal proceedings.

MR BUDDIN:   I accept that, but the touchstone of our submission was, and remains, the non‑essentiality.

KIRBY J:   But it is not an essential element.  That is true.  But the question is whether it is an essential element in that it is the delegation that gives the office holder the importance that attaches to false statements before him or her, the very serious consequences that the law provides.  That is why it is suggested that it is essential and, at least, this was not fully canvassed and not fully dealt with in the Court of Criminal Appeal.  Upon it hangs, in effect, the custodial sentence on the applicant and it may be a matter that needs to be looked at.  It would only take an hour, I would think.

MR BUDDIN:   I am not sure that it was disposed of by way of the custodial sentence but that does not, I appreciate - - -

KIRBY J:   That requires us to take it very seriously, I think.

MR BUDDIN:   Might I take your Honours to Schedule 1 of the Act, section 2.  That, together with section 6, may well indicate that there is, in fact, no requirement for a delegation.  May it please the Court.

HAYNE J:   It is to be left at that point, is it, Mr Buddin?  It may indicate that it may not be necessary.

MR BUDDIN:   We submit that it is not.

HAYNE J:   I say again to you, Mr Buddin, that I expect better help.

MR BUDDIN:   We put it that it was not required.

KIRBY J:   Thank you, Mr Buddin.  Yes, Mr Papayanni, anything in reply?

MR PAPAYANNI:   I should mention that the question of regularity was not relied upon at the hearing before his Honour Judge Downs.

KIRBY J:   What was not relied on?

MR PAPAYANNI:   The presumption of regularity.

KIRBY J:   I see.

MR PAPAYANNI:   The situation, as I understand - your Honour said - that section 35(3) says:

The Commission may, at a hearing, take evidence on oath –

and if one looks through the hearing, one sees that it is the Commission and the Commissioner most of the times there and so, in my submission, it has to be a delegation in relation to a determination in the first place and then maybe a general delegation in relation to Assistant Commissioner or it may be a particular delegation and we do not know which it is or whether it was, in fact.

HAYNE J:   Well, what do you say as to Schedule 1 clause 2?

MR PAPAYANNI:   There is no provision in the Act as to the duties of an Assistant Commissioner except at different parts they say he cannot do this or he can do that.

HAYNE J:   You will not assist me, Mr Papayanni.  I ask you again, sir, what do you say as to clause 2(1) of Schedule 1?

MR PAPAYANNI:   That only refers to the appointment.

HAYNE J:   No.  It says:

while so acting, has all the functions of the Commissioner or Assistant Commissioner –

MR PAPAYANNI:   Yes.

HAYNE J:   No?  Or is that only during “illness or absence” or what?  How does it operate?

MR PAPAYANNI:   Well, it only operates within the terms of the Act.  Schedule 1 refers to “Eligibility for appointment” and then it sets out in relation to the persons who may be appointed and ‑ ‑ ‑

KIRBY J:   Would it be a correct construction of that clause that you would have to establish, in any case, that there was an appointment by the Governor of a person during the period that is specified.

MR PAPAYANNI:   Yes, well that is what I have put but it was not proved.  The situation was that it is the way the evidence is called was to prove the transcript first and that was subject to the other matters being proved that I required to be proved.

KIRBY J:   Yes.

MR PAPAYANNI:   And that was that the Assistant Commissioner had been appointed, it had been determined by ‑ ‑ ‑

KIRBY J:   I say again, Mr Papayanni.  It is not a matter dripping with merit except, perhaps, legal merit but that may be enough.  Is there anything else you want to say?

MR PAPAYANNI:   No, nothing else, your Honour.

KIRBY J:   Thank you.  The Court will not grant leave in respect of what has been described as ground 2(b).  It will grant special leave in respect of question 5.  The matter to be argued is a short matter.  It should be given a degree of expedition and could, perhaps, be added to the list on a day when the Court has a little time but it could attend to the short point to be argued.  Special leave to appeal is granted on ground 5.

AT 1.23 PM THE MATTER WAS ADJOURNED