Director of Public Prosecutions (SA) v King
[2019] SASC 42
•22 March 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v KING
[2019] SASC 42
Judgment of The Honourable Justice Bampton
22 March 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - GENERALLY, ISSUE AND VALIDITY - VALIDITY
Appeal by Director of Public Prosecutions against interlocutory judgment of a Magistrate – where Magistrate ruled to exclude the evidence obtained under the authority of four warrants issued by the Independent Commissioner Against Corruption on the trial of the respondent – where permission to appeal required – whether special reasons exist – whether the warrants were issued within power – whether the warrants lacked specificity.
Held, granting permission to appeal and allowing the appeal: the warrants were issued within power – the warrants did not lack specificity.
Independent Commissioner Against Corruption Act 2012 (SA) s 3, s 5, s 31, s 56A; Magistrates Court Act 1991 (SA) s 3, s 42; Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2014 (SA) s 12(8); Public Sector (Honesty and Accountability Act 1995 (SA) s 26; Criminal Procedure Act 1921 (SA) s 68; Motor Vehicles Act 1959 (SA), referred to.
White v State of South Australia (2007) 96 SASR 581; Siewertsz van Reesema v Police [2009] SASC 8; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207; Federal Commissioner of Taxation v Applegate (1979) 27 ALR 114; Department for Health & Ageing v Li [2018] SASCFC 52; Inco Europe Ltd v First Choice Distribution (a firm) [2000] 2 All ER 109; Jones v Wrotham Park Settled Estates (or Wentworth Securities Ltd) [1980] AC 74; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Joukhador v Commissioner of Police (NSW) [2018] NSWSC 872; Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166; Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384, applied.
R v Tillett; Ex Parte Newton (1969) 14 FLR 101, distinguished.
Question of Law Reserved in Acquittal (No. 5 of 1999) (2000) 76 SASR 356, discussed.
Bunning v Cross (1978) 141 CLR 54; Obeid v The Queen (2016) 329 ALR 372; Frugtniet v Victoria (1997) 71 ALJR 1598; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"public officer", "use"
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v KING
[2019] SASC 42Magistrates Appeal: Criminal
BAMPTON J: The Director of Public Prosecutions (“the Director”) seeks permission to appeal a Magistrate’s interlocutory ruling that evidence obtained under the authority of warrants issued by the Independent Commissioner Against Corruption (“the Commissioner”) is excluded on the trial of Michael King.
The charges against Mr King
Mr King is charged on a Magistrates Court Information with 14 counts of failing to act honestly in the performance of his duties as a public sector employee, contrary to s 26 of the Public Sector (Honesty and Accountability) Act 1995 (SA), and seven counts of unlawful possession, contrary to s 41(1) of the Summary Offences Act 1953 (SA).
At the request of Mr King and the direction of the Magistrate, the Director provided a draft prosecution opening during a status conference on 23 August 2018. Mr King pleaded not guilty in the Magistrates Court to all counts on 27 August 2018.
The challenge to admissibility of evidence seized under authority of warrants
Immediately following the entering of Mr King’s pleas, his counsel informed the Magistrate that “we have an argument dealing with the admissibility” of the “two sets of warrants” and “in our submission both sets of warrants are invalid and unlawful”. The Magistrate then commenced hearing a voir dire on the validity of four warrants issued by the Commissioner on 18 September 2014 (“the ICAC warrants”) and three warrants issued by a Supreme Court Judge on 15 January 2015 (“the Supreme Court warrants”).
The 28 August 2018 ruling that the ICAC warrants were invalid
On 28 August 2018, counsel for the Director asked that the Magistrate deliver his rulings in relation to the ICAC and Supreme Court warrants at the same time. The Magistrate declined and proceeded to rule only in relation to the ICAC warrants. The Magistrate ruled that all four ICAC warrants were invalid holding that it was the intention of Parliament to limit the Commissioner to “issuing warrants in the public domain” and that warrants “affecting private interests were for a judge to consider”. The Magistrate also held that the warrants lacked specificity as to the nature of the offences being investigated and things that were to be seized.
The application to exclude evidence
Counsel for Mr King then made application for exclusion of the evidence seized under the authority of the ICAC warrants. The voir dire on the question of the Bunning v Cross[1] discretion was heard over five days during August 2018 during which the Director called to give evidence the ICAC investigator on whose application the ICAC warrants were issued. On 31 August, the Magistrate intimated that he would deliver his rulings on the Bunning v Cross discretion and the validity of the Supreme Court warrants on 21 September 2018.
[1] (1978) 141 CLR 54.
On 14 September 2018, the Director made application to reopen the voir dire with respect to the Bunning v Cross discretion seeking the admission of two documents over which there was an initial claim by the Commissioner to public interest immunity by recalling the investigator. The application was refused and the matter adjourned to 21 September 2018.
At the commencement of the hearing on 21 September, counsel for the Director raised an issue arising under s 56A of Independent Commissioner Against Corruption Act 2012 (SA) (“the Act”). Counsel for Mr King in turn raised issues regarding the construction and validity of s 56A of the Act. The s 56A issue was adjourned to 16 November 2018 and the Magistrate ruled that the three Supreme Court warrants were invalid “on their face”. Just prior to the Court adjourning, counsel for the Director said:
… the Director has been waiting for your Honour’s judgment in relation to both warrants to consider what direction the matter might take. I can indicate to your Honour that your Honour’s rulings have a substantial and broad impact on all the warrants issued by ICAC since 2012 and the Director will be considering whether to refer a question of law.
The 16 November 2018 ruling excluding the evidence obtained under the ICAC warrants
On 16 November 2018, the Solicitor-General appeared for the Attorney‑General, who had intervened following the raising of the s 56A issue. The Solicitor-General formally informed the Court that the s 56A issue would not be pursued.
The Magistrate then delivered his ruling “in favour of exclusion of the fruits of the search” conducted under the authority of the ICAC warrants (“the 16 November 2018 ruling”).
On 12 December 2018, Mr King made application for a permanent stay of proceedings. On 21 December 2018, the Magistrate delivered his ruling refusing the application.
On 15 and 25 February 2019, argument was heard regarding the discretion to exclude the evidence obtained under the authority of the Supreme Court warrants. I am informed by the parties that the Magistrate will hear final submissions on this issue on 26 March 2019.
The notice of appeal
On 21 November 2018, the Director filed a notice of appeal seeking permission to appeal the 16 November 2018 ruling. The first proposed ground of appeal encompasses complaint about the 28 August 2018 ruling that the ICAC warrants are invalid. It asserts that the Magistrate erred in finding that the ICAC warrants were invalid:
1in his construction of the Act by holding that s 31(1) of the Act did not authorise the Commissioner to issue the warrants; and
2in importing as prerequisites for valid warrants requirements beyond those contained in the Act (namely information on the face of the warrants as to the precise nature of the offences being investigated and things to be seized).
In the alternative to proposed ground 1, the Director complains that the Magistrate erred in the exercise of the Bunning v Cross discretion excluding the evidence obtained under the authority of the ICAC warrants.
Section 3 of the Magistrates Court Act 1991 (SA) (“the MCA”) includes in the definition of interlocutory judgment “an order or ruling relating to the admissibility or giving of evidence”. Accordingly, the 16 November 2018 ruling is an interlocutory judgment.
Section 42(1a) of the MCA permits appeals from interlocutory judgments in limited circumstances. The Director seeks permission under s 42(1a)(c) of the MCA which provides that an appeal lies only if the Court “is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal”.
I heard both the application for permission and the substantive appeal on 28 February 2019. The Solicitor-General appeared for the Attorney-General and the Director. Mr C Jacobi appeared for Mr King. Written submissions were filed by the parties. The Attorney-General adopted the written submissions of the Director.
Prior to considering whether special reasons exist, I set out the relevant sections of the Act and a brief description of the background to the issuing of the warrants.
Background
The Act
One of the primary objects of the Act was to establish the ICAC with functions designed to further the identification and investigation of corruption in public administration.[2] Section 3(2) provides that while the Commissioner may perform functions under the Act in relation to any potential issue of corruption, misconduct or maladministration in public administration it is intended that the primary object of the Commissioner be to investigate serious or systemic corruption in public administration and “to refer serious or systemic misconduct or maladministration in public administration to the relevant body, giving directions or guidance to the body or exercising the powers of the body as the Commissioner considers appropriate”.
[2] Independent Commissioner Against Corruption Act 2012 (SA) s 3(1)(a)(i).
Section 31(1), in force as at the date the Commissioner issued the ICAC warrants, gave the Commissioner power to issue warrants in investigations into potential issues of corruption in public administration:
31—Enter and search powers under warrant
(1)The Commissioner may, on application by an investigator or on his or her own initiative, issue a warrant authorising an investigator to enter and search—
(a) a place occupied or used by an inquiry agency, public authority or public officer; or
(b) a vehicle owned or used by an inquiry agency, public authority or public officer.
Section 31(2) empowered a judge of the Supreme Court to issue a warrant authorising an investigator to enter and search:
(a)a private place or private vehicle that is reasonably suspected of being, or having been, used for or in connection with a prescribed offence; or
(b)a private place or private vehicle in which it is reasonably suspected there may be records relating to a prescribed offence or anything that has been used in, or may constitute evidence of, a prescribed offence.
Section 31(3) provided that:
A warrant may only be issued if the Commissioner or the judge was satisfied that the warrant to search [was] reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration.
The grounds of an application for a warrant had to be verified by a statutory declaration if the application was made to the Commissioner, or by affidavit if the application was made to a judge of the Supreme Court.[3]
[3] Independent Commissioner Against Corruption Act 2012 (SA) s 31(5).
Section 31(6) prescribed that a warrant must:
(a)specify the place or vehicle to which the warrant relates; and
(b)state whether entry is authorised at any time of the day or night or during specified hours of the day or night.
Section 31(7) specified the powers which could be exercised by the investigator during searches pursuant to a warrant, including the power to seize and retain objects and documents found in the course of the search.
Section 31(14) defined private place and private vehicle referred to in s 31(2) as follows:[4]
(14)In this section—
private place means a place other than a place occupied or used by an inquiry agency, public authority or public officer;
private vehicle means a vehicle other than a vehicle owned or used by an inquiry agency, public authority or public officer.
[4] Independent Commissioner Against Corruption Act 2012 (SA) 1.9.2013 to 23.11.2014.
On 27 November 2014, s 31(14) of the Act was amended to provide:[5]
(14)In this section—
private place means a place other than a place occupied or used wholly or primarily for official purposes by an inquiry agency, public authority or public officer;
private vehicle means a vehicle other than a vehicle owned or used wholly or primarily for official purposes by an inquiry agency, public authority or public officer.
[5] Independent Commissioner Against Corruption Act 2012 (SA) 27.11.2014 to 4.12.2016 as amended by the Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2014 (SA) (“the Amending Act”) s 12(8).
All references to “the Act” that follow in these reasons are to the Act in operation from 1 September 2013 to 23 November 2014.
The ICAC warrants to enter and search Mr King’s home and vehicles
Between October 2012 and January 2015, Mr King was a public sector employee employed as the Regional Coordinator of the Marine Operations and Response Section of the Department of Planning, Transport and Infrastructure (“DPTI”).
As a public sector employee, Mr King was subject to the duty prescribed by s 26 of the Public Sector (Honesty and Accountability) Act 1995 (SA) which provides:
26—Duty of employees to act honestly
(1)A public sector employee must at all times act honestly in the performance of his or her duties, whether within or outside the State.
Penalty: Division 4 fine or division 4 imprisonment, or both.
Public sector employees are, pursuant to s 4 and sch 1 of the Act, public officers for the purposes of the Act.
On 18 September 2014, the Commissioner issued the four ICAC warrants authorising Miroslav Petkovich, an investigator appointed pursuant to s 14 of the Act, to enter and search Mr King’s home and three vehicles. The warrants, issued pursuant to s 31(1) of the Act, each recorded that the Commissioner was satisfied that the warrant was reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration as required by s 31(3) of the Act.
The individual ICAC warrants authorised the investigator to enter and search: Mr King’s home, “being a place occupied or used by a public officer”; Mr King’s station wagon, “being a vehicle being used by a public officer”; a Yamaha jet ski “being a vehicle being used by a public officer”; and a Dunbier jet ski trailer, “being a vehicle being used by a public officer”.
The ICAC warrants were executed on 19 September 2014 (“the first search”) and property was seized.
On 15 January 2015, the three Supreme Court warrants were issued on the application of Mr Petkovich. A second search of Mr King’s home, station wagon, and jet ski trailer took place on 21 January 2015 (“the second search”) and property was seized.
It is alleged by the Director that Mr King still held his DPTI issued credit card, DPTI issued mobile phone and DPTI issued laptop at the time of the first search.
Briefly stated, Mr King is alleged to have failed to act honestly in accordance with his obligations as a public sector employee by using DPTI funds to purchase items for his own personal use. It is alleged that Mr King purchased the items using his DPTI issued credit card or DPTI credit cards issued to staff members he supervised and whose purchases he approved.
Do special reasons exist warranting the grant of permission?
The MCA does not define the term “special reasons”. It is an expression that “must always be interpreted in light of its context”.[6] The issue to be considered in determining whether special reasons exist is whether there is some fact or circumstance which takes this matter out of the ordinary and distinguishes it from the usual cases, noting that “[a]n arguable case by itself will generally be insufficient”.[7] This task requires consideration of the proposed appeal.
[6] White v State of South Australia (2007) 96 SASR 581 at 592 per Doyle CJ.
[7] Siewertsz van Reesema v Police [2009] SASC 8 at [23] per Bleby J.
The Director’s submissions regarding special reasons
As submitted by the Director, this matter concerns the construction of a fundamental power of the Commissioner, namely the enter and search powers under warrant prescribed by s 31(1) as it was cast for a period of time. It also concerns the adequacy of the descriptions on warrants issued by the Commissioner.
The Director submitted that these issues requiring determination on appeal go to the heart of the power of the Commissioner, who as an independent statutory officer has a critical integrity role in government. As such, it was submitted that it is extremely important that the Court determine the correctness of the 16 November 2018 ruling on the limits of the powers of the Commissioner and the adequacy of the descriptions on the warrants, whatever the outcome of the trial of the charges against Mr King.
It was submitted that the Magistrate’s ruling 28 August 2018 does not provide guidance to the Commissioner and the 16 November 2018 ruling will have a fundamental effect on the trial. The Director argued that that effect arises in a broader context that gives rise to special reasons that warrant the granting of permission. It was submitted that the broader context encompasses the protracted hearing on the voir dire which commenced on 27 August 2018, and has not yet concluded. The Director pointed to a key issue on the voir dire hearing being the extent and impact of any derivative use of the evidence obtained from the exercise of the ICAC warrants in the obtaining of the Supreme Court warrants. It was submitted that if the ICAC warrants are ultimately held to have been valid, that will necessarily change the scope of the challenge to the exclusion of the evidence obtained under the Supreme Court warrants. In this context, the Director submitted that the ruling of the Magistrate on 21 September 2018 that the Supreme Court warrants were invalid “on their face” is capable of being revisited, should there be cause to do so.
It was also pointed out that if the Magistrate exercises his discretion to exclude the evidence obtained under the authority of the Supreme Court warrants, there is a high prospect that the Director would have to give consideration to whether that ruling, either in conjunction with or independently from the 16 November 2018 ruling, would likely lead to an abandonment of the prosecution. It was submitted that if that situation arises, an appeal in respect of both rulings would then lie as of right under s 42(1a)(b) of the MCA. That possibility raises the following conflicting considerations:
1certain economies would be achieved by hearing both appeals together; but
2this would come at the cost of further drawing out the proceedings; and
3if this appeal were to be heard now, that may alter the scope of any permissible challenge to the Supreme Court warrants.
The Director pointed out that there has already been a serious delay to the trial, with no immediate prospect of a timely conclusion. It was submitted that, in the circumstances, the question is how to best manage what is already a significant delay.
The Director submitted that special reasons exist warranting the grant of permission having regard to the fact that: the trial has not commenced and is unlikely to commence for some time; the determination of this appeal may be capable of having an effect on the outstanding challenges to the Supreme Court warrants; and the delay to the trial appears entrenched on account of these challenges.
Mr King’s submissions regarding special reasons
Mr King submitted that, as the Director acknowledges, the Director cannot at this time rely on the basis identified in s 42(1a)(b) of the MCA which would permit an appeal as of right. Mr King argued that the Director seeks the exercise of the Court’s discretion, notwithstanding that he does not meet the threshold that Parliament has identified would be a proper case for the prosecution to be able to bring an appeal as of right. It was submitted that this highlights the rather unusual nature of the application the Director makes. Mr King contended that in the circumstances of this matter the issue for consideration is whether there are special reasons for determining an appeal now, as opposed to an appeal to be brought shortly following the conclusion of the voir dire. He argued that because an appeal as of right would exist at the point of the ruling on the exclusion of the evidence obtained under authority of the Supreme Court warrants, it is the difference between an appeal then and the proposed appeal that must give rise to special reasons and justify the exercise of the discretion to grant permission. The challenge of that task, he submitted, is demonstrated by the likely shortness of the time between those events.
Mr King cited the High Court in Obeid v The Queen,[8] where the Court affirmed Kirby J’s remarks in Frugtniet v Victoria:[9]
The Court expressed its attitude of restraint most recently in its decision in R v Elliott. There are many earlier such cases. They evidence the strong disposition of appellate courts in Australia — and especially of this Court — not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required.
(Citation omitted)
[8] (2016) 329 ALR 372.
[9] (1997) 71 ALJR 1598 at 1602.
Mr King further submitted that to grant permission to appeal now would result in a fragmentation of the trial process. Mr King argued that, as a matter of analysis, the hearing of the charges against him has commenced. He has entered his plea and the Court has proceeded to hear evidence.[10] He contended that the hearing concludes with the Court determining to dismiss the Information, to convict, or make an order against him, unless the proceedings are earlier withdrawn. As such, he said that the trial of the matter commenced when the voir dire commenced.[11]
[10] Criminal Procedure Act 1921 (SA) s 68(1).
[11] Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 at 577-578 [15] per Gaudron, Gummow and Hayne JJ.
Mr King submitted that the effect of an appeal now is that the parties will be backwards and forwards to a superior court seeking to agitate matters in dispute. He maintained that there is a certainty of a multiplicity of appeals if permission is granted. He argued that even if the evidence is admitted following a successful appeal by the Director, there is a prospect of an appeal against conviction or acquittal by either side at the conclusion of the proceedings, as well as an appeal as a consequence of the ruling on the admissibility of the evidence obtained under the Supreme Court warrants. In this context, it was submitted that the multiplicity takes on a new dimension in the circumstances where it is highly likely there will be a second appeal. Mr King contended that as the Magistrate has already found that the warrants issued by the Supreme Court are invalid, there is a freestanding argument that the evidence seized under those warrants ought be excluded.
Mr King said that, at this point in the trial before the Magistrate, the prosecution has already called its evidence on its application for admission of the evidence obtained under the Supreme Court warrants by calling the investigator and tendering documents. His counsel has cross-examined the investigator. The matter is now listed for submissions on 26 March 2019. It was submitted that the argument regarding the evidence seized under the Supreme Court warrants falls to be determined irrespective of what happens on this proposed appeal.
Mr King contended that the administration of justice requires a consideration of the consequences of the grant of permission on the parties. He submitted that there is a marked and differential impact of permitting multiple appeals as between him and the Director. He is faced with a trial that will continue, an appeal, and a likely second appeal and, if the Director is unsuccessful on this appeal, a further appeal to the Full Court. He submitted that this assumes a particular significance where it has been established on the voir dire that he was injured and away from work from 2011 and has not worked since 2013. He said that the consequences of multiple appeals to this Court are likely to have significant financial, psychological and psychiatric impact upon him and his family.
Further, Mr King argued that the Director’s reliance on the importance of the issue requiring determination has no relevance in these circumstances because the Director would not be denied the opportunity to litigate the issue. Mr King contended that there is no prejudice that arises by the reason of the Director waiting until the Magistrate has delivered his ruling regarding the admissibility of the evidence obtained under the Supreme Court warrants to agitate that issue.
Mr King submitted that if permission is granted the reality is that the contest he faced in the Magistrates Court stands to be re-litigated on appeal. He said that in the interests of the administration of justice he should be able to deal with the re-litigation of those issues once in a consolidated process. Accordingly, Mr King submitted that the Director’s application for permission should be refused.
Discussion
The Director referred to the extent and impact of any derivative use of the evidence obtained from the exercise of the ICAC warrants in the obtaining of the Supreme Court warrants as a key issue on the continuing voir dire. During a directions hearing before me, counsel for Mr King, in submitting that permission should be not granted to appeal the 16 November 2018 ruling, stated that one of the grounds regarding the admissibility of evidence under the authority of the Supreme Court warrants was that it was as a consequence of information obtained in first search that gave rise to the application for the Supreme Court warrants and the second search.
The prosecution provided a draft opening prior to Mr King entering his pleas. The voir dire has been concerned with matters antecedent to Mr King’s trial. The ambit of the trial will be determined by the antecedent rulings made by the Magistrate. Whilst it is preferable that the Magistrate who makes the antecedent rulings hear the trial, it could be heard by another magistrate. The procedure prescribed by s 68 of the Criminal Procedure Act 1921 (SA) has advanced only to the point of Mr King pleading not guilty. The Magistrate has ruled against the Director adducing certain evidence by the 16 November 2018 ruling and is part heard on another application to exclude evidence the Director intends to adduce. The next procedural step prescribed by s 68(1)(a) whereby the Magistrate hears “the informant and his witnesses and any other evidence which he adduces in support of his information” has not begun. I am satisfied that to grant permission to appeal at this stage does not fragment the trial process where the prosecution has not formally opened its case, the procedure prescribed by s 68(1)(a) has not commenced, and the trial has been delayed by a protracted, yet to be finalised, voir dire. Further, in my view, the fact that “the derivative use” of the ICAC warrants is a source of challenge to the matters that are still being argued on the voir dire bolsters the argument to determine the appeal at this stage.
The determination of this appeal has the potential to provide direction in respect of the resolution of the issues pertinent to the Supreme Court warrants. Determination of the validity of the ICAC warrants at this juncture is, in my view, in the best interest of the both Mr King and the Director so that they know the case to be prosecuted before the prosecution opening.
Further, as counsel for the Director submitted to the Magistrate on 21 September 2018, the rulings on the ICAC warrants potentially have a significant impact on warrants issued by the Commissioner pursuant to s 31(1) of the Act since the ICAC’s inception in 2012. This appeal may assist in the resolution of any uncertainty regarding such impact.
For the reasons discussed below, the proposed appeal has merit beyond being reasonably arguable. The matters the subject of this appeal are of general importance and pivotal to the course of the trial. Accordingly, I am satisfied that special reasons exist why it is in the interests of the administration of justice to grant permission to appeal.
The appeal
In ruling the ICAC warrants invalid on 28 August 2018, the Magistrate said:
[4]The warrants are directed at premises and vehicles in which the defendant held a private interest.
[5]Regrettably the sections as originally constructed dealing with the two types of warrants imported a degree of ambiguity.
[6]Applying rules of statutory construction, taking note of the second reading speeches in support of the original Bill and the amending Bill, the changes made to the relevant definitions in the original Act, and noting the absurd extent of the reach of such a warrant if interpreted otherwise, in my view make it clear that the intention of parliament, while initially poorly expressed, was to limit the ICAC Commissioner to issuing warrants in the public domain. Warrants affecting private interest were for a Judge to consider.
[7]The ambiguity that arose in the original Act in my view must in the context of this criminal case be read down and not given a broad interpretation. More so when considering that ICAC is a creature of the executive and not a court. The ICAC himself is an investigator and not a judge.
[8]Additionally I consider that the warrants lack specificity as to nature of the offences being investigated and the things that are to be seized. Having the warrants merely expressed as being “reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration” is too broad particularly bearing in mind the vast array of offences included in the definition of “corruption in public administration”. These matters considerably impact on a defendant’s ability on the face of a warrant to know the scope of the search in order to comply with it and to otherwise assert his rights.
(Emphasis in original)
Were the ICAC warrants issued within power?
In determining the ambit of the Commissioner’s power to issue a warrant to enter and search conferred by s 31(1) of the Act:[12]
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
[12] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] per McHugh, Gummow, Kirby and Hayne JJ.
Mr King sought to rely, as the Magistrate did, on the Second Reading Speech for the Act. The Magistrate also referred to the Amending Act. Extrinsic materials may be consulted to determine the mischief to which a provision is directed, without there being a threshold of ambiguity to surmount, but the words of the Second Reading Speech are not a substitute for the text.[13] Mr King agreed that it was axiomatic that the Act is not construed by reference to the amendment to s 31(14). He explained that the construction he advanced is “the result that Parliament has selected” in the Amending Act.
[13] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 521–522 [52]–[53] per French CJ.
The phrase used in Second Reading Speech for the Act, “…it is considered appropriate to give this power to the Commissioner (rather than a judge) because the focus is on matters of public administration and attendance at offices or vehicle of public agencies” is not of assistance because the Act ultimately does not identify such focus.[14] As the Director submitted, the passage of the Second Reading Speech relied on by Mr King is “in part reductionist and in part inaccurate when compared with the text of the Act ultimately enacted”. Accordingly, the Second Reading Speech is of limited assistance.
[14] South Australia, Parliamentary Debates, House of Assembly, 2 May 2012, 1361 (Tom Kenyon).
Mr King argued that s 31(1) empowered the Commissioner to issue warrants authorising the entry and search of places occupied or used and vehicles owned or used by an inquiry agency, public authority, or public officer “in that capacity”. The Director advanced a plain textual construction of s 31(1) such that the Commissioner was empowered to issue warrants authorising the entry and search of places occupied or used and vehicles owned or used by a public officer.
Consideration must be given to the words “occupied”, “owned”, and “used”. The Director, in arguing that the term “occupied … by” extends to the immediate control of private premises, referred to Harris v McKenzie, where Kirby P, in considering whether a university college occupied premises, held:[15]
“Occupier” normally means the person who has the immediate supervision and control of premises and the power of permitting or prohibiting the entry of other persons.
It was submitted that adding the words “used by” can only extend that meaning further.
[15] (1987) 9 NSWLR 139 at 147.
The Director submitted that “owned”, as it relates to vehicles, most likely means registered ownership in accordance with the Motor Vehicles Act 1959 (SA), and in any event ownership implies control.
The Director said that the word “used” is protean as it can encompass utilisation, exploitation, and employment of land. Mr King contended that it was “all‑encompassing” and that its inclusion brings in a great many places and vehicles. The Director made submissions analysing the words “occupied”, “owned” and “used” in isolation. However, as Mr King correctly argued, the meaning of these words is fixed by their context, and not by their isolation in abstraction.[16] Where a word has many shades of meaning, the context in which it appears will be of the greatest significance.[17] As Spigelman CJ said in Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd:[18]
[30]The general principle of the law of interpretation that the meaning of a word can be gathered from its associated words – noscitur a sociis – has a number of specific sub‑principles with respect to the immediate textual context. The most frequently cited such sub-principle is the ejusdem generis rule. The relevant sub-principle for the present case is the maxim propounded by Lord Bacon: copulatio verborum indicat acceptationem in eodem sensu – the linking of words indicates that they should be understood in the same sense. As Lord Kenyon CJ once put it, where a word “stands with” other words it “must mean something analogous to them”. (Evans v Stevens. See also W J Byrne (ed) Broomes Legal Maxim (9th ed) Sweet and Maxwell, London).
…
[32]There is no such difficulty here. Unless the expression “assumption of obligations” is confined to “alienation”, most of the adjoining words would be otiose. The reading down of general words is one of the most common mechanisms applied in the course of legal interpretation. The Court should not give one word in an interrelated, overlapping list of expressions a meaning that is so broad as to be inconsistent with adjoining words or that renders those words irrelevant.
(Citations omitted)
[16] See Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) at 169-171 [4.25].
[17] Federal Commissioner of Taxation v Applegate (1979) 27 ALR 114.
[18] [2006] NSWCA 207 at [30]-[32].
The words “occupied or used”, when read together, and “owned or used”, when read together, are directed to the question of control. In each case, textually, the question is whether the public officer exercises control, as described, over the place or the vehicle as the case may be. In applying the maxim copulatio verborum indicat acceptationem in eodem sensu, “used” takes a narrow construction by virtue of the words that accompany it. The Act contemplates use akin to occupation, or use akin to ownership.
Mr King contended that the premises occupied and used by an inquiry agency or an administrative unit of the government and for which a warrant would be required are places at or from which the government is administered or government services are provided. He asserted that though these places are also workplaces (for example, the office of a Chief Executive of a Department) they are not places where an employee has any personal right (aside from a right of the agency itself) to exclude third parties. That lack of personal rights arises, it was submitted, because that place is under the management and control of, relevantly, the Chief Executive of the administrative unit or other authority (such as a Minister). There is, for that reason, no trespass in entering a person’s office.
Mr King argued that the inclusion of public officers in the s 31(1)(a) list recognises that public officers may occupy a place “in their capacity” as a public officer (either because they are not part of an inquiry agency or public authority itself, or because the inquiry agency or public authority does not control that place). It was submitted that the underlying theme that links each of the categories identified in kind is that the place is occupied and used by an agency, or by a public officer, in that capacity. Mr King’s argument is that the last part of s 31(1)(a) is to be read down to provide occupied or used by a public officer “in their capacity as a public officer”. He argued that the Commissioner could not issue a warrant to search a private residence, not because it is “private” but because it is not occupied by a public officer “in their capacity as a public officer”. Pursuant to Mr King’s argument, a private place which is occupied or used by a public officer but not “in their capacity” as a public officer cannot be the subject of a warrant issued by the Commissioner.
Mr King also argued that the words “in their capacity as a public officer” be added to the last part of s 31(1)(b). He submitted that having regard to the scope of the conception of public officer there is no reason why a vehicle cannot be owned by a public officer in that capacity. He argued that both Ministers of the Crown and a variety of other statutory officers are empowered under legislation to be the owners of property.
Words should not be read into legislation unnecessarily. In Department for Health & Ageing v Li, Stanley J set out the circumstances in which a court may read words into legislation.[19] Lord Nicholls,[20] citing Lord Diplock in Jones v Wrotham Park Settled Estates (or Wentworth Securities Ltd),[21] said:
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation …
In order to interpret s 31(1) in the manner contended by Mr King by adding the words “in their capacity as a public officer”, I must be abundantly sure of the three matters Lord Diplock identified. I am sure of the intended purpose of s 31(1): to empower the Commissioner in identifying and investigating corruption in public administration, to issue warrants to enter and search those places occupied or used and vehicles owned or used by an inquiry agency, public authority, or public officer. I am not satisfied that by inadvertence the draftsperson and legislature failed to give effect to the intended purpose of s 31(1). When “used” takes the narrow construction I have identified above, there has been no failure to give effect to that intended purpose. As such, s 31(1) should not be read down to include the words “in their capacity as a public officer”.
[19] [2018] SASCFC 52 at [96]-[98].
[20] Inco Europe Ltd v First Choice Distribution (a firm) [2000] 2 All ER 109 at 115.
[21] [1980] AC 74 at 105–106.
The term “public domain” referred to by the Magistrate is an ambiguous concept, and does not appear in the Act. The word “public” appears in s 31 only in the defined terms “public authority”, “public officer” and “public administration”. Section 31 should not have the word “public” otherwise read into it.
Corruption in public administration was defined in s 5(1) of the Act to mean:
(1)Corruption in public administration means conduct that constitutes—
(a) an offence against Part 7 Division 4 (Offences relating to public officers) of the Criminal Law Consolidation Act 1935, which includes the following offences:
(i)bribery or corruption of public officers;
(ii)threats or reprisals against public officers;
(iii)abuse of public office;
(iv)demanding or requiring benefit on basis of public office;
(v)offences relating to appointment to public office; or
(b) an offence against the Public Sector (Honesty and Accountability) Act 1995 or the Public Corporations Act 1993, or an attempt to commit such an offence; or
(c) any other offence (including an offence against Part 5 (Offences of dishonesty) of the Criminal Law Consolidation Act 1935) committed by a public officer while acting in his or her capacity as a public officer or by a former public officer and related to his or her former capacity as a public officer, or by a person before becoming a public officer and related to his or her capacity as a public officer, or an attempt to commit such an offence; or
(d) any of the following in relation to an offence referred to in a preceding paragraph:
(i)aiding, abetting, counselling or procuring the commission of the offence;
(ii)inducing, whether by threats or promises or otherwise, the commission of the offence;
(iii)being in any way, directly or indirectly, knowingly concerned in, or party to, the commission of the offence;
(iv)conspiring with others to effect the commission of the offence.
As submitted by the Director, corruption in public administration is not confined to normal office hours, the standard 38 hour working week, and government buildings. Public officers engaged in such corruption will most likely act covertly to avoid detection by non-complicit work colleagues or whistle-blowers. They most likely will attempt to conceal evidence of their activities in places they occupy or use other than in their capacity as public officers.
A simple example of a public officer concealing acts of corruption is an officer who appropriates equipment owned by the public authority he or she works for and conceals it in his or her home or private vehicle or in the home or vehicle of a relative or friend. Section 31(1)(a) in force as at 18 September 2014, on my reading, empowered the Commissioner, if satisfied a warrant was reasonably required for the purposes of an investigation into a potential issue of corruption in public administration, to issue a warrant authorising an investigator to enter and search the public officer’s home, being a place occupied or used by the public officer. Section 31(1)(b) granted the Commissioner an equivalent power to issue warrants in respect of a vehicle registered in the public officer’s name being a vehicle owned by the public officer.
Section 31(2) empowered a Supreme Court judge, acting persona designata, to issue warrants authorising an investigator to enter and search private places and private vehicles defined by s 31(14) to be places and vehicles other than those encompassed in s 31(1). By defining private places and private vehicle the legislature clearly indicated the intention to depart from the ordinary meaning of “private”.[22]
[22] Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) at 155 [4.8].
Returning to my earlier example of a public officer storing equipment appropriated from a public authority, this time at a relative’s or friend’s home or vehicle, a Supreme Court judge was empowered by s 31(2)(a), if satisfied in accordance with s 31(3), to issue a warrant to enter and search the relative or friend’s home or vehicle being “a private place or private vehicle that is reasonably suspected of being, or having been, used for or in connection with a prescribed offence”.
An example of a more sophisticated possible instance of corruption may concern a public officer involved in suspected corruption with an accountant who was a principal in an accounting firm. Upon being satisfied in accordance with s 31(3), a judge was empowered to issue warrants pursuant to s 31(2)(b) to enter and search the accounting firm and the accountant’s home being private places “… in which it is reasonably suspected there may be records relating to a prescribed offence or anything that has been used in, or may constitute a potential issue of corruption in public administration”.
In Electrolux Home Products Pty Ltd v Australian Workers’ Union, Gleeson CJ cautioned:[23]
Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied.
(Footnotes omitted)
[23] (2004) 221 CLR 309 at 328 [19], see also at 357 [118] per McHugh J.
Section 31(1) clearly modifies the common law rights of public officers. The list of public officers in Schedule 1 of the Act is extensive. Counsel for Mr King contended that the extent of that list of public officers who may “use” a place or vehicle is the absurdity to which the Magistrate was referring. I have addressed the construction of “used” earlier in these reasons. The Commissioner’s powers to issue warrants is directly related to the object of the Act that the Commissioner identify and investigate corruption in public administration.[24] Furthermore, s 31(3) of the Act imposes the threshold test that “[a] warrant may only be issued if the Commissioner or the judge is satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation”. This threshold test evidences Parliament’s intention to moderate the abrogation of public officers’ common law rights.
[24] Independent Commissioner Against Corruption Act 2012 (SA) s 3(1)(a)(i).
In my view, there is no “absurdity” in construing s 31(1) as empowering the Commissioner to issue warrants to search all places occupied, owned or used by public officers when “used” takes the narrow construction identified above. Such a construction is consistent with the primary objects of the Act prescribed in s 3(1) and s 3(2). The power conferred by s 31 is in accordance with and proportionate to the task the Commissioner is required to perform.
Section 31, correctly construed, limited the Commissioner to issuing warrants to search places occupied or used and vehicles owned or used by an inquiry agency, public authority, or public officer. It reserved to judges the power to issue warrants to enter and search places other than places occupied or used by an inquiry agency, public authority, or public officer and vehicles other than vehicles owned or used by an inquiry agency, public authority, or public officer.
Limitation of the Commissioner’s powers to where the occupation, ownership or use is in a particular “capacity” in the manner argued by Mr King is not supported by the text, context or purpose of s 31 of the Act.
The Commissioner had the power on 18 September 2014 to issue the ICAC warrants.
Did the ICAC warrants lack specificity?
The Magistrate found that the warrants “lack specificity as to the nature of the offences being investigated and the things to be seized”.
Mr King argued that the warrants are also invalid because they did not identify the offence or offences the subject of investigation or identify the kind of items that might afford evidence of the unspecified class of proscribed conduct. He submitted that on their face the warrants issued only recited in paragraph 1 that the Commissioner was satisfied with the criteria in s 31(3) of the Act. As a matter of implication, he contended that that cannot be sufficient.
The Act did not require that the warrants state “the nature of the offences being investigated and the things that are to be seized”. Section 31 did not require a suspected offence to be recorded on the warrants. Each of the ICAC warrants disclosed the jurisdiction of the Commissioner pursuant to the Act. In accordance with the s 31(3) requirement, each warrant recorded that the Commissioner was “satisfied that the warrant [was] reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration”.
Each warrant disclosed the name of the investigator who had applied for the warrant and the provision of the Act under which he was appointed an investigator.
Each warrant specified the place or vehicle to which the warrant related and stated that entry was authorised between the hours of 6.00 am and 9.00 pm. In doing so, each warrant complied with s 31(6) of the Act which provided:
(6) A warrant must—
(a) specify the place or vehicle to which the warrant relates; and
(b) state whether entry is authorised at any time of the day or night or during specified hours of the day or night.
The requirements for the valid issue of the ICAC warrants are found in the text of the Act in force as at 18 September 2014 when the Commissioner issued the warrants.[25] The Director contended that additional rights or requirements going beyond those spelt out are not easily inferred.[26]
[25] Joukhador v Commissioner of Police (NSW) [2018] NSWSC 872 at [12] per McCallum J.
[26] Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166 at 177 [24].
The Director submitted that in construing the statutory requirements for the issue of a search warrant, the Court should be careful to give effect to the legislation by its terms, and not approach its task armed with a prima facie hostility to the invasion of privacy necessarily involved in the exercise of investigative powers.[27]
[27] Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384 at 401 [68]; Carratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166 at 176 [22].
The power to seize and retain under authority of an ICAC warrant is prescribed by s 31(7)(c) which empowers an investigator:
(c) in the course of executing the warrant—
(i) to take photographs, films or audio, video or other recordings; and
(ii) to examine, copy or take extracts from a document connected with the investigation or any other investigation into corruption in public administration; and
(iii) to examine or test any thing connected with the investigation or any other investigation into corruption in public administration, or cause or require it to be examined or tested; and
(iv) if the investigator reasonably suspects that a person who is or has been on or in the place or vehicle has on or about his or her body evidence of a prescribed offence, to search the person; and
(v) to seize and retain anything that the investigator reasonably suspects has been used in, or may constitute evidence of, a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator; and
(vi) to seize and retain anything that the investigator reasonably suspects has been used in, or may constitute evidence of, an offence other than a prescribed offence, or issue a retention order in respect of such a thing requiring that it not be removed or interfered with without the approval of an investigator, if the investigator reasonably believes that it is necessary to do so in order to prevent its concealment, loss, mutilation or destruction or its use in committing such an offence.
(Emphasis added)
“Prescribed offence” is defined in s 4 as “corruption in public administration or an offence against this act”. Sections 31(7)(c)(v)–(vi) introduce the requirement of reasonable suspicion as a requisite to an investigator exercising powers of seizure. This demonstrates the intention of the legislature to regulate powers of seizure under warrant through the course of execution of the warrant.
In Question of Law Reserved in Acquittal (No. 5 of 1999),[28] this Court considered warrants issued pursuant to the Controlled Substances Act 1984 (SA) and held it was unnecessary that the warrants should relate to a specific offence. Mullighan J held that there was no requirement for the warrants to specify the offences being investigated as:[29]
The Legislature has provided the restriction upon what may be seized and removed, namely, only those items which the authorised officer suspects on reasonable grounds afford evidence of an offence.
Justice Lander held that:[30]
If the warrant had to identify a particular offence the Act would not have empowered the authorised officer in those terms.
[28] (2000) 76 SASR 356.
[29] Question of Law Reserved in Acquittal (No. 5 of 1999) (2000) 76 SASR 356 at 365.
[30] Question of Law Reserved in Acquittal (No. 5 of 1999) (2000) 76 SASR 356 at 376.
The powers of search of a person and seizure under the Act have been restricted by the legislature in s 31(7)(c)(iv), (v) and (vi) and are to be distinguished from the more general powers considered in R v Tillett; Ex Parte Newton[31] referred to by Mr King.
[31] (1969) 14 FLR 101.
Each warrant disclosed on its face that it was issued for the purposes of an investigation into a potential issue of corruption into public administration pursuant to the Act. There was no requirement for an offence to be specified on the face of the ICAC warrants. The warrants complied with the requirements of s 31(6) of the Act.
Conclusion
I grant permission to appeal.
The Commissioner was authorised by s 31(1) of the Act to issue the ICAC warrants and each warrant was validly issued pursuant to the requirements of the Act on 18 September 2014.
I find that ground 1 of the appeal is made out. I allow the appeal.
I set aside the 28 August 2018 ruling that the ICAC warrants are invalid.
I set aside the 16 November 2018 ruling excluding the admission of evidence obtained under the authority of the ICAC warrants.
In view of my findings, it is unnecessary to consider the alternative ground of appeal.
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