GH (a pseudonym)[1] v Independent Broad-based Anti-corruption Commission
[2020] VSCA 175
•26 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0012
| GH (a pseudonym)[1] | Applicant |
| v | |
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Respondent |
[1]The trial judge ordered that the applicant be referred to as ‘GH’ pursuant to an order under s 30 of the Open Courts Act 2011: GH (a pseudonym) v Independent Broad-based Anti-corruption Commission [2020] VSC 74, [1] n 1.
---
| JUDGES: | MAXWELL P, BEACH and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 February 2020 |
| DATE OF ORDERS: | 13 February 2020 |
| DATE OF JUDGMENT: | 26 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 175 |
| JUDGMENT APPEALED FROM: | [2020] VSC 74 (Ginnane J) |
---
ADMINISTRATIVE LAW – Judicial review – Investigative agency – Corruption investigation – Coercive powers – Summons to attend for examination – Power to require immediate attendance – Applicant summoned to attend immediately – Judicial review of decision to issue summons – Application for stay pending final hearing – Whether serious question to be tried – Whether delay in attendance likely to result in serious prejudice to investigation – Whether reasonable grounds for apprehension of risk – Whether decision unreasonable – No serious question raised – No basis for stay – Leave to appeal refused – Independent Broad-based Anti-corruption Commission Act2011 ss 15, 60, 120, 124.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr H Borenstein QC with Ms P Knowles | Slater & Gordon |
For the Respondent | Mr E Nekvapil | Independent Broad-Based Anti-Corruption Commission |
MAXWELL P
BEACH JA
EMERTON JA:
Summary
In the course of 2019, the respondent (‘the Commission’) commenced an ‘own motion’ investigation under s 60(1)(c) of the Independent Broad-based Anti-corruption Act 2011 (the ‘Act’). On 30 January 2020, the Commission issued a summons under
s 120(1) of the Act, requiring the applicant (‘GH’) to attend and give evidence on 13 February 2020.
Under s 124(1), a witness summons must be served ‘at a reasonable time, being not less than seven days’ before the date on which the person summoned is required to attend. Despite a number of attempts to serve the summons on GH, the Commission was unable to serve it within the time specified by s 124(1).
On 7 February 2020, the Commission issued a fresh witness summons, pursuant to s 124(2) of the Act, requiring GH’s immediate attendance. Following service of that summons on 10 February 2020, GH commenced a judicial review proceeding under ord 56 of the Supreme Court Rules, contending that the decision to issue the ‘immediate attendance’ summons was not authorised by the Act. He sought a declaration that the decision was invalid and an order quashing it. GH also sought an order in the nature of a stay of the decision, to the effect that he not be required to attend for examination pending the determination of the judicial review proceeding.
On 11 and 12 February 2020, the stay application was heard by Ginnane J. His Honour refused the stay, holding that GH had not made out a ‘serious question to be tried’ concerning the legal validity of the decision to issue the summons. His Honour’s revised reasons became available on the morning of 13 February 2020, and later that day this Court heard GH’s application for leave to appeal from the refusal of the stay application. At the conclusion of argument, we announced that the application for leave would be refused, and that we would publish our reasons in due course. These are those reasons.
The Commission’s power to issue a summons requiring a person’s immediate attendance is enlivened if, but only if, the Commission
considers on reasonable grounds that a delay in the person’s attendance is likely to result in —
(a)evidence being lost or destroyed; or
(b)the commission of an offence; or
(c)the escape of the person who is summoned; or
(d)serious prejudice to the conduct of the investigation to which the witness summons relates.[2]
In this case, the decision rested on sub-para (d), the Commission considering that a delay in GH’s attendance was likely to result in ‘serious prejudice’ to the conduct of the investigation.
[2]Independent Broad-based Anti-corruption Act 2011 s 124(2).
GH’s attack on the legal validity of the decision rested on three contentions, as follows:
(a) the Commission failed to take into account a relevant consideration, namely, the adverse impact on GH’s ability to prepare for the examination of his being required to attend immediately;
(b) there were no reasonable grounds to support the issue of the summons; and
(c) the decision to issue the summons was unreasonable.
As explained below, we were satisfied that none of those contentions was reasonably arguable and that his Honour’s decision to refuse the stay application was entirely correct.[3]
[3]Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu (2000) 171 ALR 341, 343 [7]; [2000] HCA 23 (Gleeson CJ).
The statutory scheme
The relevant provisions of the Act are as follows:
15 Functions of the IBAC:
(1)The IBAC has the functions conferred on the IBAC under this Act or any other Act.
(1A)In performing its functions, the IBAC must prioritise its attention to the investigation and exposure of corrupt conduct which the IBAC considers may constitute serious corrupt conduct or systemic corrupt conduct.
(1B)Subsection (1A) does not restrict the IBAC's discretion to determine to investigate any matter that the IBAC considers may constitute corrupt conduct.
(2)Without limiting the generality of subsection (1), the IBAC has the following functions—
(a)to identify, expose and investigate corrupt conduct;
(b)to identify, expose and investigate police personnel misconduct;
(c)to assess police personnel conduct.
…
60Conducting investigations about corrupt conduct
(1)Subject to subsection (2), the IBAC may conduct an investigation in accordance with its corrupt conduct investigative functions—
(a)on a complaint made to it under section 51; or
(b)on a notification to it under section 57(1); or
(c)on its own motion.
(2)The IBAC must not conduct an investigation under subsection (1) unless the IBAC suspects on reasonable grounds that the conduct constitutes corrupt conduct.
…
124Service of witness summons
(1)Subject to subsection (2), a witness summons must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the witness summons.
(2)The IBAC may issue a witness summons requiring immediate attendance by a person before the IBAC if the IBAC considers on reasonable grounds that a delay in the person’s attendance is likely to result in—
(a)evidence being lost or destroyed; or
(b)the commission of an offence; or
(c)the escape of the person who is summoned; or
(d)serious prejudice to the conduct of the investigation to which the witness summons relates.
Factual background
As noted earlier, during 2019 the Commission commenced an own motion investigation under s 60(1)(c) of the Act. The Commission executed a search warrant on addresses associated with GH, in the course of which a very large amount of material (said to comprise thousands of documents) was seized.
On 30 January 2020, the Commission issued a summons pursuant to s 120 of the Act, requiring GH to attend for examination on 13 February 2020. On 31 January 2020, GH’s then solicitor informed the Commission that he was not available on that day. Subsequent attempts by the Commission to serve the witness summons on GH were unsuccessful. According to an affidavit filed by the Commission before the judge, GH took active steps to evade service, as a result of which the Commission was unable to serve the summons ‘not less than seven days before’ the examination fixed for 13 February 2020.
On 7 February 2020, a Deputy Commissioner decided that it was necessary to issue a fresh summons requiring GH’s immediate attendance. According to the Commission’s affidavit, the Deputy Commissioner considered that a delay in GH’s attendance ‘was likely to result in serious prejudice to the conduct of the investigation to which the summons relates’. As already noted, the decision rested on s 124(2)(d) of the Act.
According to the affidavit, the conclusion that there was likely to be serious prejudice to the conduct of the investigation rested on the following matters:
(a)the inability to conduct other investigative activities in a timeframe appropriate to the seriousness of the investigation;
(b)the effect on the time critical sequence of IBAC’s proposed investigative activities; and
(c)likelihood of collusion between witnesses and potential witnesses.
Failure to consider procedural fairness
The submission for GH was that, in deciding whether to issue the summons requiring immediate attendance, the Commission was obliged — but failed — to take into account the adverse impact on GH of being required to attend immediately. It was said that, in deciding whether delay in his attendance was likely to result in ‘serious prejudice to the conduct of the investigation’, the Commission had to weigh in the balance the prejudice to GH if he were required to attend immediately. Were that to occur, it was said, he would be denied a reasonable opportunity to prepare for the examination, including by reviewing relevant documents in his possession.
This point may be disposed of shortly. As counsel for the Commission correctly submitted, the legislature has squarely addressed the need to ensure that a person summoned for examination is given reasonable notice of the date for examination. As noted earlier, a witness summons must be served ‘at a reasonable time, being not less than seven days’ before the date for attendance. At the same time, the legislature has conferred on the Commission a strictly limited power to require a person’s immediate attendance.
The exceptional power is exercisable only where it is assessed that delay in the person’s attendance will create a risk of serious damage to the public interest, in one of four specified ways. The legislature has thus struck its own balance between the competing interests of procedural fairness, on the one hand, and the need to preserve the integrity of an investigation, on the other. It is not open to the interpreting court to alter that balance in favour of one of those interests.[4]
[4]MyEnvironment Inc v VicForests (2013) 42 VR 456, 497–498 [148]; [2013] VSCA 356 (‘MyEnvironment’) (Tate JA); R vIndependent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459, 480–481 [76]–[77]; [2016] HCA 8 (Gageler J).
In any event, the plain language of s 124(2)(d) renders the applicant’s contention unsustainable.[5] The phrase ‘serious prejudice to the conduct of the investigation’ is perfectly clear. The only task for the decision-maker is to assess the likely impact of delay on the investigation, in order to decide whether there is likely to be ‘serious prejudice’ to its conduct. That is the only matter to which para (d) requires — or permits — the decision-maker to have regard for this purpose.
[5]MyEnvironment (2013) 42 VR 456, 500–501 [155]–[156]; [2013] VSCA 356 (Tate JA).
‘Considers on reasonable grounds’
As noted earlier, the unchallenged evidence before the judge was that the Commission had identified a risk of ‘serious prejudice’ to the investigation, in that a delay in GH’s attendance would:
·affect the timeframe for other investigative activities;
·affect the ‘time critical sequence’ of proposed investigative activities; and
·create a ‘likelihood of collusion between witnesses and potential witnesses’.
The submission for GH was that these were merely statements of conclusion. Bereft of supporting detail, they were wholly insufficient to satisfy the Court that the conclusion reached by the Deputy Commissioner — that delay was likely to result in serious prejudice to the investigation — rested ‘on reasonable grounds,’ as required by s 124(2). Not only were the assertions unsubstantiated but, even taken at face value, they did not explain why what had previously been a ‘seven day’ summons was no longer suitable, such that it was necessary to have an ‘immediate attendance’ summons.
For his part, counsel for the Commission submitted that the statements in the affidavit adequately identified the bases of the apprehension of risk. He informed the Court that evidence in support of each statement was available in the form of a confidential affidavit but submitted that to provide that material to GH in this proceeding would be likely to create the very prejudice which the issue of the summons was intended to avert. (The trial judge having declined to receive the confidential affidavit, we took the same course.)
Counsel for the Commission relied, both at first instance and in this Court, on the following passage from the judgment of Gordon J in Prior v Mole,[6] which concerned an exercise of power conferred on a police officer, exercisable only if the officer had ‘reasonable grounds for believing’ that a person might behave in a particular way. Her Honour said:
[6](2017) 261 CLR 265; [2017] HCA 10.
When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind, it requires the existence of facts sufficient to induce that state of mind in a reasonable person. It is an objective test. The question is not whether the relevant person thinks they have reasonable grounds.
In explaining the connection between the ‘reasonable grounds’ and the requisite ‘belief’, this Court in George v Rockett stated:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.
Belief is not certainty. ‘Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture’.
Those considerations are important in this appeal. The matters set out in
s 128(1)(c)(iii) and (iv) are the ‘subject matter’ of the belief. That subject matter necessarily involves an element of opinion and judgment — a predictive opinion and judgment about what the person (here, Mr Prior) may or is likely to do in the future. That opinion and judgment is related to, but separate from, the objective facts and circumstances. Together, they constitute all of the relevant circumstances for assessing the reasonableness of the grounds. Accordingly, when considering whether there were reasonable grounds for the relevant belief for the purposes of s 128(1)(c)(iii) and (iv), matters of both fact and opinion must be considered.[7]
[7]Ibid 298 [98]–[101] (emphasis added, citations omitted).
According to the submission, the test established by s 124(2) involved, in the same way, an element of ‘predictive opinion and judgment’. The Commission is required to make a risk assessment of the likely adverse consequences if there is a delay in the person’s attendance. In any given case, the decision-maker will of necessity draw on his/her knowledge of the particular investigation and of how the examination of the relevant person fits in with the planned sequence and strategic objectives of the investigation.
We would uphold that submission. In this case, the Commission’s accumulated experience of investigative action would no doubt have informed the assessment of the risk of collusion between witnesses. This Court dealt with a similar question of risk assessment recently, in Chief Commissioner of Police v Websdale, which concerned the risks associated with the possession of firearms. The Court said:
Risk assessment is, by definition, imprecise and uncertain. It involves a judgment about the likely course of future events, on the basis of information about past events and about the individuals involved. It is a judgment informed by experience. There is, unavoidably, an element of speculation or guesswork.[8]
[8][2019] VSCA 305, [40] (Maxwell P, Tate and Niall JJA).
Here, the judge placed weight on the fact that both the Deputy Commissioner who made the decision and the principal investigator who swore the affidavit considered that there was a likelihood of serious prejudice to the investigation (in the ways identified) if GH’s attendance did not proceed — as planned — on 13 February 2020. In our respectful opinion, his Honour was entitled to do so. The position might have been different had there been any suggestion that the concerns expressed were not genuinely held, or were obviously groundless. No such challenge was advanced here.
As the judge rightly pointed out, the onus in a proceeding such as this is on the party alleging the absence of reasonable grounds. We refer, as did his Honour, to what was said by Wigney J in Caratti v Commissioner of Australian Federal Police [No 2], as follows:
An applicant who challenges an issuing officer’s decision to issue a warrant bears the onus of proving that the information before the issuing officer was not capable of establishing reasonable grounds for entertaining the relevant suspicion … That is a ‘difficult and exacting task’ … A court is not entitled to substitute its own opinion on whether there were reasonable grounds for the opinion of the issuing officer … The applicant must establish that there was an absence of ‘foundational facts’ from which the issuing officer might entertain the relevant suspicion on reasonable grounds …[9]
[9][2016] FCA 1132, [166].
The material in the affidavit was quite sufficient, in our view, to establish ‘foundational facts’ for this purpose. The matters identified were plainly capable of constituting, or giving rise to, ‘serious prejudice’ to the investigation and, hence, of constituting reasonable grounds for the decision-maker’s apprehension of the likelihood of such prejudice. How that assessment of risk was made, and on the basis of what detailed matters, did not need to be elaborated before the Court. It follows that GH’s complaint — that the lack of detail demonstrated the absence of reasonable grounds — was unfounded.
Unreasonableness
The third contention put forward by GH was that the decision to issue the summons was unreasonable in the sense elucidated by the High Court in Minister for Immigration and Citizenship v Li.[10] As this Court emphasised recently in CZG (a pseudonym) v Victims of Crime Assistance Tribunal, the unreasonableness ground will only succeed if it is shown that the decision fell outside the ‘area of decisional freedom’ conferred on the repository of the discretionary power.[11] It follows from what we have already said that, on the unchallenged evidence before the Court, this contention had no prospects of success.
[10](2013) 249 CLR 332; [2013] HCA 18.
[11][2020] VSCA 120, [8], [72], [74] (Maxwell P and Priest JA).
For these reasons, the judge was correct to conclude that there was no serious question to be tried with respect to the legality of the decision to issue the ‘immediate attendance’ summons. His Honour’s refusal of the stay application was entirely correct.
---
0
6
0