EDC v Crime and Misconduct Commission; WSX v Crime and Misconduct Commission

[2014] HCATrans 192

[2014] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B37 of 2013

B e t w e e n -

EDC

Applicant

and

CRIME AND MISCONDUCT COMMISSION

Respondent

Office of the Registry
  Brisbane   No B38 of 2013

B e t w e e n -

WSX

Applicant

and

CRIME AND MISCONDUCT COMMISSION

Respondent

Applications for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 4 SEPTEMBER 2014, AT 10.56 AM

Copyright in the High Court of Australia

____________________

MR P.J. CALLAGHAN, SC:   If it please the Court, I appear for the applicants in both matters.  (instructed by Robertson O’Gorman Solicitors)

MR G.W. DIEHM, QC:   If it please your Honours, I appear with my learned friend, MS E.J. LONGBOTTOM, for the respondent in both matters.  (instructed by Crime and Corruption Commission)

HAYNE J:   Yes, Mr Callaghan.

MR CALLAGHAN:   Your Honours, it has never been disputed – I am sorry, there is a preliminary issue as to whether the matter ‑ ‑ ‑

HAYNE J:   We have received a letter, Mr Callaghan.

MR CALLAGHAN:   It is not something, can I say, that we agitate with any great concern.  It is a matter to which both parties thought the Court’s attention should be drawn.  It is certainly a case where we, I think, are of the one mind that there is probably going to be little difficulty with the transcript being published.  It is only if something gets mentioned that there might be an issue.

HAYNE J:   I know of no case where an application to this Court has been made in closed court, Mr Callaghan.

MR CALLAGHAN:   I do not press the point, your Honour.

HAYNE J:   Very well.

MR CALLAGHAN:   It is something which has been part of the history of the matter, as your Honours may be aware, and for that reason, we thought we should draw attention to it.

HAYNE J:   I understand that.

KIEFEL J:   This Court deals with confidential materials on a regular basis.

MR CALLAGHAN:   Your Honour, I will move on to the argument.

KIEFEL J:   It simply assumes that counsel can exercise care.

MR CALLAGHAN:   Certainly.  It has never been disputed that a commission such as the CMC has the power to compel the attendance of people like the applicants and compulsorily examine them.  Such regimes are part of Australia’s legal landscape.  Within this regime, the one and only shelter for the applicants was to be found in the concept of reasonable excuse.  The applicants’ complaint has been, and remains, that the presiding officer misdirected himself as to what was involved in this concept and this application is brought because notwithstanding the fact that the case has been to the Supreme Court and the Court of Appeal, there has still been no real engagement with the point.

HAYNE J:   What do we do in the face of paragraph [44] of the Court of Appeal’s reasons at page 60 of the application book?

MR CALLAGHAN:   You have to be concerned that the presiding officer will again misdirect himself as to the applicable principles, and his errors in applying those principles have to be corrected.

HAYNE J:   The Court of Appeal – well, to put it interrogatively, does the Court of Appeal accept that there may be circumstances in which questions of safety bear upon a determination of reasonable excuse?

KIEFEL J:   Is that question left open by the Court of Appeal, because this case, looking at paragraphs [34] and [35] at special leave book page 58, turns upon the question whether further evidence was necessary to prove the concern.

MR CALLAGHAN:   We say that was in itself an error when the single relevant feature was the conclusion drawn by the presiding officer on the basis of materials to which we do not have access – to which the applicants did not have access, but he nonetheless drew the conclusion which should have been binding for all that followed, that the concern was at least a real one; substantial, not to be ignored. 

Now, on that basis, he had to then direct himself according to principle and he has erred in several distinct ways when he did.  That is the only factual conclusion that we need to rely upon, his conclusion to that effect.  We do not have all the evidence.  It makes no sense to talk about what the evidence was, is, might yet be, when we will never know all of it, so we cannot weigh it up.

KIEFEL J:   But the Court of Appeal has proceeded upon the basis that there was an insufficiency of it.

MR CALLAGHAN:   We say that was wrong in circumstances where we can never know what there was, because the presiding officer had access to things that we do not know, and when they had, in any event, the conclusion that had been drawn from that evidence by the presiding officer, that was the factual basis for the application and all else follows, in our submission.  You have got a finding.  Evidence will not disturb that, we would submit, because that is all we need, a finding of a real and substantial concern. 

It is what you do with that finding then, whether you direct yourself as he did.  He said that notwithstanding that finding, the applicants had not discharged the onus to satisfy him that the consequences of answering a question would far outweigh the benefits that would accrue to the Commission from its being answered. 

It is implicit in the test as articulated by the presiding officer that someone would fail to establish reasonable excuse even if they established that the risks or consequences of answering a question did in fact outweigh the benefits that the Commission might enjoy if he did answer.

We ask, with respect, rhetorically, what sort of a chance does that give anyone?  If they roll up to one of these hearings and prove discharge and onus – and prove that the consequences to them outweigh the benefits to the condition, but then have their claim defeated because they have not demonstrated that they are far outweighed, it is just too slippery to be a basis for rejecting claims like this.  It is not an approach that is supported by statute or authority. 

So it is submitted there is a clear case that the presiding officer misdirected himself after having reached the factual conclusion that there was a basis for the concerns as to the manner in which he considered the issue of reasonable excuse.

Your Honours, this case was made squarely to the Court of Appeal and, with respect, it was ignored.  In that way, we say the case raises more

than one issue of general importance.  The question of the manner in which presiding officers in this sort of situation should direct themselves as to the question of reasonable excuse is an important one, but so too is the manner in which the Court of Appeal dealt with the applicants’ complaints. 

Those complaints are itemised in the application book, pages 71 and 72.  I do not need to repeat at length that which is written there, but for example, it is said that the Witness Protection Program – the Court of Appeal said it was plainly a relevant consideration.  Perhaps, but so too, it is submitted, was the conundrum it presented.  The so‑called catch‑22 was not dignified by the Court of Appeal with so much as a mention, something at least that the presiding officer himself did.

We further say that the principle identified by Justice McHugh in York v The Queen (2005) 225 CLR is part of the law of Australia and that it is something which could inform the construction of the term “reasonable excuse”.  The argument was made.  It was put squarely to the court and dealt with only on the basis that York was a different sort of case from this one.  Of course it was, but the principle demanded an engagement and it did not receive it in the Court of Appeal.  In that way, we say, there is an error that demands the attention of this Court.

I simply submit that on the question of reasonable excuse, words have been read into the term and it has had added to it qualifications for which there is no justification.  It occurred in the hearing before the presiding officer; a complaint has been made about it to the Supreme Court and the Court of Appeal; there has been no engagement with those complaints. 

We say the complaints should be allowed, and corrected, and not entrenched as they in effect have been and will be by the undisturbed treatment of the matter by the Court of Appeal.  On both of those bases, we say special leave should be granted.  Unless there was a particular aspect that was not disclosed in those submissions, or in the written summaries, those are our submissions.

HAYNE J:   Thank you, Mr Callaghan.  We will not call on you, Mr Diehm.

The Court of Appeal proceeded in this matter on the premise that threats of physical violence to a witness before the Crime and Misconduct Commission could constitute a reasonable excuse for refusing to answer questions.  The Court of Appeal recognised that if the hearing before the Crime and Misconduct Commission is resumed, and the applicants in this Court are again asked certain questions, the issue of reasonable excuse would again fall for consideration according to the evidence then before the presiding officer of the Crime and Misconduct Commission.  In these circumstances, no question suitable to a grant of special leave to appeal to this Court now arises.  Special leave to appeal is refused. 

The Court will adjourn to reconstitute.

AT 11.09 AM THE MATTERS WERE CONCLUDED