D'Amore v Independent Commission Against Corruption

[2013] HCATrans 317

[2013] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S143 of 2013

B e t w e e n -

ANGELA D’AMORE

Applicant

and

INDEPENDENT COMMISSION AGAINST CORRUPTION

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2013, AT 12.42 PM

Copyright in the High Court of Australia

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR R.R. TRIPODI, for the applicant.  (instructed by W.G. McNally Jones Staff Lawyers)

MR T.A. ALEXIS, SC:   May it please your Honours, I appear with MS A.M. MITCHELMORE for the respondent.  (instructed by Crown Solicitor (NSW))

BELL J:   Yes, Mr Kirk.

MR KIRK:   Your Honours, the application raises issues concerning the operation of administrative law principles to an administrative body which makes findings of criminal conduct, doing so with respect to a circumstantial case and where, in our respectful submission, it failed to address central exculpatory evidence which was raised before it.

BELL J:   Is that another way of saying that we should grant special leave to revisit concurrent factual findings?

MR KIRK:   No, it is not, your Honour, because in relation to factual findings, the only relevant factual findings were those made by ICAC.  This, of course, is an administrative law challenge to those findings ‑ ‑ ‑

BELL J:   I understand that, Mr Kirk, but you challenge the factual analysis of the primary judge and the factual analysis of the Court of Appeal in concluding that jurisdictional error was not established in the way for which you contended.  I suppose it is rather raised by this, if I could just take you to application book 175, paragraph 32, just by way of illustration.

MR KIRK:   Paragraph 32, your Honour?

BELL J:   Yes.  You assert the particular conduct was:

foolhardy in the extreme if the Applicant had known she was flouting the allowance policy –

and so forth.  Then you advance a submission about the likely inference on the evidence.  Now, there is a fair deal of that character in these submissions.

MR KIRK:   There is no doubt that there is a significant amount of factual analysis in here, and I am not disputing that, and I also do not dispute that that is a nice start, but one has to go much further to establish legal error; jurisdictional error, as we put it.

GAGELER J:   You have to establish a special leave point.  I have not seen one in your submissions.

MR KIRK:   The special leave point we seek to raise is the interaction between administrative law principles and criminal principles, in a sense, relating to a circumstantial case.  Can I start with the statute – I understand the point your Honour Justice Bell has raised and I will seek to deal with it over the course of my submissions, because in a sense, that goes to the heart of what I have to persuade your Honours of, and your Honour Justice Gageler’s point too.

GAGELER J:   Special leave points can ordinarily be crystallised in a sentence.

MR KIRK:   We have sought to do that ‑ ‑ ‑

GAGELER J:   We normally do not have to wade through the facts to get to them to understand what the point is?

MR KIRK:   Yes.  If your Honour looks at page 169 of the application book, in particular in paragraph 1a of our primary summary of argument, that is the central point.

BELL J:   I must say, as I read through this thicket of facts and inferences that the Court was invited to find, I actually could not discern any reference in the body of the submissions to 1b.

MR KIRK:   Paragraph 1b in a sense is an extension or corollary of 1a, but 1a is the central point.  Can I seek to tie this back to the law and then develop my argument, if I may?  Can I start with the statute which your Honours will find in the bundle of materials from my client, which I hope your Honours have, and behind tab 1 is the Act as it applied at the relevant time.  Could I take your Honours to section 8 and seek to articulate the nature of corrupt conduct. 

Section 7 has some relevance, but I will not bother your Honours with it.  If your Honours go to section 8(1)(a), “Corrupt conduct is” certain things, and that is an expansive definition.  Then subsection (2) broadens that out, and I do not want to get bogged in the detail.  If one then goes to section 9(1), from that very broad starting point in section 8 is then constrained in by section 9:

conduct does not amount to corrupt conduct unless it could constitute or involve –

and relevantly here, we have –

(a)      a criminal offence, or . . . 

(d)in the case of conduct of a Minister . . . or a member of a House of Parliament—a substantial breach of an applicable code of conduct –

Section 9(1)(d) then brings in 9(4) and 9(5) – again, I do not want to get bogged in detail, but 9(4) expands things again, and then in relation to 9(1)(d) findings, and 9(5) contracts it.  But if one then turns to section 13, which relates to the functions of the Commission, if your Honours go to subsection (2), your Honours will see:

The Commission is to conduct its investigations with a view to determining –

certain things, particularly –

(a)      whether any corrupt conduct . . . has occurred –

If one then turns to subsection (3A) it indicates –

The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in –

any of the provisions of section 9(1) –

only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described –

I note in this case the issue is an offence, the common law offence of misconduct in public office.  Section 13(4) then says –

The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B . . . prevents –

But otherwise, only section 9(5) and this section are the relevant restrictions.  If one then goes to section 74B, it is an odd provision because subsection (1) indicates:

The Commission is not authorised to include in a report under section 74 a statement as to:

(a)a finding or opinion that a specified person is guilty of or has committed –

et cetera, relevantly a criminal offence, or a recommendation that a person be prosecuted for such.  But then subsection (2) says –

A finding or opinion that a person has engaged, is engaging or is about to engage:

(a)      in corrupt conduct . . . or,

(b)     in specified conduct

is not a finding or opinion that the person is guilty of or has committed . . . a criminal offence –

So in a sense, the Parliament is speaking with a forked tongue because on the one hand it is saying the Commission cannot make a finding that a person is guilty of a criminal offence, but it seems to be saying insofar as the “corrupt conduct” finding depends on the finding of a criminal offence, as it did here, then it can make such a finding.

That, in essence, overturns this Court’s decision in Balog v ICAC in 1992, where this Court held that the Commission could only make a recommendation that certain things be considered for the prosecution.  It could not make, as an administrative body, a finding of criminal guilt, and it noted in that regard principles about fundamental rights, and also noted potential prejudice to the administration of criminal justice of an administrative body making such a finding no doubt in a blaze of publicity.  This is also in a context where to make such a finding can have devastating potential effects.

To tie that relevance to this case, in our submission, where the finding of corrupt conduct depends upon a finding of a criminal offence, then there needs to be a positive and reasonable satisfaction in the Commission that that offence has been committed.  In other words, it needs to meet a high standard.  If it is going to go down that track, if it is going to potentially influence the administration of justice prejudicially, it needs to meet that high standard.

GAGELER J:   Well, it is not a particularly high standard, is it, positive and reasonable satisfaction.

MR KIRK:   Of criminal guilt?

GAGELER J:   Of criminal guilt.

MR KIRK:   Yes, and where there is a circumstantial case in particular, that will mean considering and excluding reasonable alternative possibilities inconsistent with guilt, and where it is a circumstantial case, Hillier principles come in – and of course, your Honours are familiar with Hillier, but to take your Honours briefly to it at tab 2 ‑ ‑ ‑

BELL J:   Indeed, and the use made of it is somewhat ingenious.  Hillier was about not isolating individual circumstances and explaining them in order to attack the prosecution case viewed as a whole.  You look at all the circumstances and you do not engage in that sort of piecemeal analysis.

MR KIRK:   Yes, precisely so.  The way we seek to use it is to say that if any significant piece of exculpatory evidence which has been raised below has not been addressed or addressed properly by the decision‑maker, it is as though the jury had closed its mind to that piece of evidence.  If you pull that piece out of the circumstantial puzzle, then the whole thing collapses.  That is so per se, but it is particularly true of central matters.

Can I then turn to the facts?  The key issue here was whether or not my client knew at the time that she signed the forms of the restrictive terms of the policy which, as your Honours know, was all about whether the temporary officer was working at Parliament House or working in the electorate office.  The key issue is knowledge; there is no dispute about that.  The key factual material which the Commission relied upon was one conversation with the first relevant temp officer between my client and Ms Harbilas, the temp.  If I can take your Honours to the report ‑ ‑ ‑

BELL J:   Does one add to that the consideration of the appearance of the form and the inferences to be drawn from that, and the material touching on your client’s interest in matters of an industrial nature thought to inform her likely response to the two emails?

MR KIRK:   One certainly adds that, because it is a circumstantial case ‑ ‑ ‑

BELL J:   For all relevant circumstances.

MR KIRK:   Yes, that is right.  But first, the critical piece, and there is no doubt about it – in fact, the respondents in their submissions pick up something Justice Basten is saying.  So this Harbilas conversation was at the heart of ICAC’s case, so some bits are more important than others, but also we do challenge two of the other aspects.  If I can take your Honours to the report at page 202 of the application book – this is the chapter analysing the interactions and circumstances relating to the first temp, Ms Harbilas.  If your Honours look at the bottom of the left‑hand side on page 202, your Honours will see an identification of the crucial dispute, and then on the bottom of the right‑hand column:

Nevertheless, the Commission accepts the following parts of Ms Harbilas’ evidence –

and if your Honours read to yourselves paragraphs a and b, and then c, that comprises the gist of the conversation, and your Honours will note “gist” is in quotation marks. 

That was not the gist of the conversation.  The gist of the conversation is described – and that was Ms Harbilas’ word – is found in two places.  The first, if your Honours go to page 362 – this is some transcript from the compulsory private examination, and if your Honours look around line 30, this is Ms Harbilas being examined:

It was my understanding that I was to put, that his name was there because he was the electorate officer of the second grade.

Reiterates –

Yes, that he’s the EO2 and that’s who I was relieving –

and then if your Honours go between lines 40 to 50 –

I don’t have a specific recollection of things that was said.  But the gist was that I was to put David’s name there because he was the other EO2.

David is David Nicoletti, the other relevant officer – and similarly, in the public examination at page 377, about lines 25 to 30, relevantly in fact lines 30 to 31.  That is a factual point; how does that lead to error?  It leads to error, in our respectful submission, because that explanation, because he was the other EO2, makes no sense on ICAC’s case.  The fact that Mr Nicoletti was an EO2 and the temp was being paid as an EO2 has nothing to do with the policy, nothing to do with the form, and for my client to give that explanation in this key conversation suggests a misunderstanding either of what was asked and/or of the policy itself.  Yet the Commission ignored that gist of the conversation, and only dealt with half of it.

That is jurisdictional error, in our respectful submission, because it is failing to deal with all the evidence before it.  It is a constructive failure to exercise jurisdiction.  It is doing so in a circumstantial case where it has “passed the evidence”, to quote Chief Justice Gleeson and Justice Heydon in Suvaal’s Case.  If I can take your Honours to how the trial judge dealt with that point; it is at page 43, I think – paragraph 92 on page 43 of the application book.  Your Honours will see the trial judge says:

There is more substance in the plaintiff’s complaint that the defendant does not appear to have considered the various statements made by Ms Harbilas –

Jumping to the next sentence –

This evidence was clearly relevant to the extent that it supported an inference that the plaintiff’s instruction ‑ ‑ ‑

BELL J:   I am sorry, which paragraph are you reading from?

MR KIRK:   I am sorry, your Honour, paragraph 92 on page 43.  This is in Justice McClellan’s judgment.

BELL J:   Yes, I understand, all right.

MR KIRK:   I was drawing your Honour’s attention to the first sentence, “There is more substance in the plaintiff’s complaint”.  The second sentence, I think:

This evidence was clearly relevant to the extent that it supported an inference . . . But even if it be assumed in the plaintiff’s favour that the evidence was a mandatory relevant consideration, the absence . . . was not a failure . . . that could have “materially affected” the outcome –

That is where we say legal error is found, because his Honour goes on to refer to other aspects of the circumstantial case over the page; the forms, the plaintiff’s interest and so forth, telephone conversation.  But first, this was the central piece of evidence.  Secondly, where it has been ignored and indeed passed, it cannot be said other than on a purely speculative basis that it would have made no difference.  You pull out the critical piece of the foundation.  Furthermore, it is reinforced by, for example, reference to the forms where we criticised the way that ICAC dealt with the forms themselves, so shaky foundation is reinforced with shaky foundation.

Now if I can seek to address that point.  In relation to the forms, and relevantly, they are found – these are the forms actually signed by Ms La Manna, the second temp, at pages 314 to 318 of the application book.  If your Honours look, for example, at page 315 – this is one of the forms which led to one of the findings of corrupt conduct – there are at least three points of materiality here.  First, my client signed, as your Honours will see at the bottom left‑hand side, in advance, even though she was signing up to a declaration that the electorate officer had worked at Parliament House on the above days ‑ ‑ ‑

BELL J:   This is your coming back to the inference to which I directed your attention earlier?

MR KIRK:   Yes, that is right.

BELL J:   Yes.

MR KIRK:   If your Honour looks at the previous page, 314, David Nicoletti is written in there – this is another one of the key forms.  It is not in dispute.  It was established by the evidence that that was not filled in when the form was submitted.  That is actually the form of one of the parliamentary officers.  In other words, the key point about this form was not filled in, and yet Ms La Manna submitted the form signed by my client.

BELL J:   Mr Kirk, you have now identified, I think, more than one key or critical issue.  If one goes back to the primary judge’s reasons at application book 44, paragraph 92, his Honour goes on to note a number of other aspects of the evidence.  Simply drawing on one bit of evidence and saying it was critical may be not particularly helpful.  For example, it seems the primary judge thought a relevant factual consideration in the determination of the challenge was that your client denied the conversation with Ms Harbilas altogether.

MR KIRK:   Yes.

BELL J:   So the fact‑finder dealing with that body of evidence and with the conclusions that the fact‑finder was to draw might well have placed emphasis on the circumstance that your client denied that that conversation in those terms had occurred at all.  All I am raising with you, Mr Kirk, is to label it “the critical bit of evidence” such that it was jurisdictional error not to advert to it might be putting it high.

MR KIRK:   Can I make two points in response to that, if I may?  The first is that the word “critical”, it is not my word – “critical” might be, but ICAC’s word was “crucial”.  The crucial dispute is the Harbilas one.  My learned friends in their submissions accept it is at the heart of its case.

BELL J:   I am looking at the reasoning of the primary judge at paragraph 92.

MR KIRK:   Yes, but I am seeking to answer the substance of your Honour’s point.  Your Honour says there are a whole series of factual matters; undoubtedly true, it is a circumstantial case.  But the crucial

dispute was this one about Ms Harbilas’ conversation.  That was the key one on what ICAC has said, and yet ICAC failed properly to address it.  It dealt with half of what Ms Harbilas said, not the whole part, where the whole part does not make sense on ICAC’s case.  If ICAC had addressed that and said “We do not believe that” or “We think it does make sense” and explained it away, I would not have any point.  But it did not.  It simply failed to grapple with it.

GAGELER J:   What is your point?

MR KIRK:   That there was a failure to address on the critical issue, the crucial dispute, to quote ICAC, material which was exculpatory, namely the full gist of what Ms Harbilas said my client said to her in this conversation - “Whose name do I put on this form?” – and by the way, there is no finding that the form was in front of them when the conversation took place.  ICAC accepted that was not certain – “Whose name do I put on this form?”  “David Nicoletti, because he is the other EO2” ‑ ‑ ‑

GAGELER J:   What is wrong with Justice Basten’s analysis at page 148, paragraph 243?

MR KIRK:   Sorry, 148, your Honour?

GAGELER J:   Paragraph 243.

MR KIRK:   Because, with respect to his Honour, it comes down to saying it was a circumstantial case, there were lots of circumstances, and there were, I accept that.  But on the critical one, there had been a failure to address exculpatory material.  Then there were other failures too with respect to the forms, and also with respect to our final ground of appeal, which I will not go to, about the explanation of my client. 

But on the crucial dispute on ICAC’s own explanation, it had…..half of what was said.  The rest was exculpatory.  It is not as though we have just pulled out one stick in the Jenga pile.  We have pulled out the main one at the bottom, and when that is linked to Hillier principles and linked to Stead principles about if there is a possible different result, one should not speculate, in our respectful submission.  The court should not have speculated as to what ICAC would have done, but it should say this finding is flawed and it should go back.  Unless I can assist your Honours any further.

BELL J:   Yes, thank you.  We do not need to hear from you, thank you, Mr Alexis.

There is no reason to doubt the correctness of the decision of the New South Wales Court of Appeal.  Special leave is refused with costs.

AT 1.04 PM THE MATTER WAS CONCLUDED