Lazarus v Independent Commission Against Corruption

[2017] NSWCA 37

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Lazarus v Independent Commission Against Corruption [2017] NSWCA 37
Hearing dates:	3 February 2017
Decision date:	07 March 2017
Before:	McColl JA at [1]; Leeming JA at [2]; Simpson JA at [146]
Decision:	1. Further Amended Summons filed 24 November 2016 be dismissed. 2. Applicants pay the costs of the First, Second, Third and Fourth Respondents (noting that the costs of the Third and Fourth Respondents are on the basis of a submitting appearance).
Catchwords:	CONSTITUTIONAL LAW - Commonwealth Constitution, Chapter III - implied limitation on State legislative power - State statute validating acts undertaken by ICAC which were beyond power - statute extended to acts relevant to pending criminal appeals - whether impermissible interference in judicial process or repugnancy to integrity of judicial function   STATUTORY CONSTRUCTION - statute validating past acts undertaken by ICAC - whether validation extended to acts connected with pending criminal proceedings - both applicants had pending appeals against conviction when statute commenced - evidence in Crown case against one applicant obtained pursuant to summonses issued by ICAC which were beyond power - other applicant convicted of giving false or misleading evidence to ICAC in the course of investigation which was beyond power - whether presumption against retrospectivity caused statute not to apply to validate conduct which was the subject of pending criminal proceedings - relationship between submissions on statutory construction and constitutional validity
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 63 Crimes Act 1900 (NSW), ss 178BB, 300 Criminal Appeal Act 1912 (NSW), s 5B Director of Public Prosecutions Act 1986 (NSW), s 9 District Court Act 1973 (NSW), s 176 Evidence Act 1995 (NSW), s 138 Independent Commission Against Corruption Act 1988 (NSW), ss 8, 18, 35, 37, 38, 74A, 87, Pt 13 Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) Interpretation Act 1987 (NSW), ss 31, 33 Judiciary Act 1903 (Cth) Supreme Court Act 1970 (NSW), ss 48, 49, 51, 69C Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 59.8
Cases Cited:	ACMA v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88 Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19 Bandara v Director of Public Prosecutions [2016] NSWCA 140 Boensch v Commissioner of Fines Administration [2017] NSWCA 17 Bunning v Cross (1978) 141 CLR 54 Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 Cheikho v R (2008) 75 NSWLR 323; [2008] NSWCCA 191 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Duncan v Independent Commission Against Corruption (2015) 256 CLR 83; [2015] HCA 32 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 Felton v Mulligan (1971) 124 CLR 367 Ferguson v Attorney General of Trinidad and Tobago [2016] UKPC 2 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326 Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137 H A Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547; [1998] HCA 54 Ha v State of New South Wales (1997) 189 CLR 465 Hart v Attorney-General for New South Wales [2016] NSWCCA 71 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 Industrial Relations Act Case (1996) 187 CLR 416 Jenkins v Director of Public Prosecutions [2013] NSWCA 406 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 Lambert v Weichelt (1954) 28 ALJ 282 Landsman v Director of Public Prosecutions [2013] NSWCA 369 Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408 Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426 Lazarus v Director of Public Prosecutions NSW [2015] NSWSC 1776 Lazarus v New South Wales Director of Public Prosecutions [2016] NSWCA 47 Lazarus v NSW Director of Public Prosecution [2015] NSWSC 1116 Lodhi v R [2006] NSWCCA 121; 199 FLR 303 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Majak v Rose (No 2) [2016] NSWCA 337 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 Newell v The King (1936) 55 CLR 707 Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 Parker v Comptroller of Customs [2009] HCA 7; 83 ALJR 494 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8 R v Hughes (2000) 202 CLR 535; [2000] HCA 22 R v Humby; Ex parte Rooney (1973) 129 CLR 231 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611 Ridgeway v The Queen (1995) 184 CLR 19 Roads and Maritime Services v Porret [2014] NSWCA 30 Saeed v Minister of Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 Spanos v Lazaris [2008] NSWCA 74 Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 Wende v Horwath (No 2) [2015] NSWCA 416 West v Gwynne [1911] 2 Ch 1 WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Yates v Wilson (1989) 168 CLR 338
Category:	Principal judgment
Parties:	Ms Sandra Lazarus (First Applicant) Ms Michelle Lazarus (Second Applicant) Independent Commissioner Against Corruption (First Respondent) Director of Public Prosecutions, New South Wales (Second Respondent) District Court of New South Wales (Third Respondent) Local Court of New South Wales (Fourth Respondent)
Representation:	Counsel: A Moses SC, L Livingston (Applicants) S Free, T Boyle (First Respondent) D Kell SC, J Davidson (Second Respondent) M Sexton SC, C Lenehan (Attorney-General for New South Wales, intervening)   Solicitors: Aquila Lawyers (Applicants) New South Wales Crown Solicitor (First Respondent and Attorney-General for New South Wales) Solicitor for Public Prosecutions (Second Respondent)
File Number(s):	2016/276980
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 19 August 2016 Before: Zahra DCJ File Number(s): 2013/76236, 2013/98654

Headnote

[This headnote is not to be read as part of the judgment]

In 2010 and 2011, ICAC conducted an inquiry into possible corrupt conduct in New South Wales hospitals. ICAC’s report contained findings that Ms Sandra Lazarus engaged in “corrupt conduct”, and on 27 November 2014, Sandra was convicted of fraud offences in the Local Court. The evidence at the trial included evidence derived from summonses issued in the course of ICAC’s inquiry.

ICAC’s report also recommended Ms Michelle Lazarus be prosecuted for giving false or misleading evidence to an ICAC examination or inquiry, and Michelle was convicted of this offence on 23 May 2014.

Both sisters appealed to the District Court. While their appeals were pending, the High Court determined Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14. The effect of that decision was that ICAC’s inquiry into New South Wales hospitals was not authorised. As a result, Sandra was entitled to apply to exclude evidence tendered against her as illegally obtained and Michelle could not be said to have been present at a valid ICAC examination or inquiry, which was an element of the offence for which she was convicted.

Following the High Court’s decision, the NSW Parliament passed the Independent Commission Against Corruption (Validation) Act 2015, which retrospectively authorised ICAC to conduct an inquiry such as the inquiry it had conducted in 2010 and 2011.

By notices of motion in the District Court, Michelle and Sandra sought a stay of their appeals against conviction. On 19 August 2016, the District Court refused their applications. Michelle and Sandra brought a summons seeking judicial review of that decision, and argued (1) that on its true construction, the Validation Act did not apply to pending criminal proceedings, applying the presumption against retrospectivity explained in Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303; and (2) in the alternative, if the Validation Act applied to pending criminal proceedings it was invalid as interfering with the exclusively curial function of adjudging and punishing criminal guilt and thereby threatening the independence and institutional integrity of the District Court.

Held, by Leeming JA, McColl and Simpson JJA agreeing, dismissing the summons:

The Validation Act applies to pending criminal proceedings

1. The text and purpose of the Validation Act support the construction that it applies to validate acts of ICAC, even where those acts are in issue in pending criminal proceedings: at [1], [86]-[95], [146].

Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9, applied; Duncan v Independent Commission Against Corruption (2015) 256 CLR 83; [2015] HCA 32, discussed; Lodhi v The Queen [2006] NSWCCA 121; 199 FLR 303, Newell v The King (1936) 55 CLR 707, distinguished.

2. The construction proposed by the appellants would give rise to unexpected and capricious results whereby an arbitrary class of persons would be exempt from prosecution of offences merely because of the timing of the prosecution: at [1], [96]-[100], [146].

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, applied.

The Validation Act is not invalid to the extent that it applies to pending criminal proceedings

1. A State law which retrospectively attaches new legal consequences to an act does not impermissibly interfere with the judicial process: at [1], [104], [106], [128], [133]-[134], [146].

Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; Ferguson v Attorney General of Trinidad and Tobago [2016] UKPC 2, applied.

R v Humby; Ex parte Rooney (1973) 129 CLR 231, Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62, H A Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547; [1998] HCA 54, Ha v State of New South Wales (1997) 189 CLR 465, discussed.

2. In relation to Sandra, the operation of the Act is directly analogous to the Commonwealth legislation upheld in Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9, and a State law in the same terms as that upheld in Nicholas could not have compromised or been repugnant to the institutional integrity of the District Court: at [1], [114]-[119], [146].

3. In relation to Michelle, the Validation Act does not determine the ultimate guilt or innocence of the accused; it merely affects the legal characterisation of certain facts if those facts be found. As such it does not amount to a usurpation of the judicial process: at [1], [121]-[137], [146].

Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9, Duncan v Independent Commission Against Corruption (2015) 256 CLR 83; [2015] HCA 32, H A Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547; [1998] HCA 54, X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, discussed and applied; Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46, considered.

Held, by Simpson JA:

The application to quash the decision of the District Court should be dismissed because the applicants could not demonstrate jurisdictional error: at [152]-[160].

Spanos v Lazaris [2008] NSWCA 74, applied.

Judgment

1. McCOLL JA: I agree with Leeming JA’s reasons and the orders his Honour proposes.

2. LEEMING JA: By Further Amended Summons filed in this Court on 24 November 2016, two sisters (Ms Sandra Lazarus and Ms Michelle Lazarus) seek orders under s 69 of the Supreme Court Act 1970 (NSW) as well as declaratory relief. The principal issue debated in this Court was whether the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (“Validation Act”) applies to the appeals pending in the District Court brought by the two sisters against their convictions in 2014, and, if so, whether it is invalid because it interferes with pending criminal proceedings.

3. The issue arose in the following way. Ms Sandra Lazarus was convicted of numerous fraud offences, and the prosecution case depended on documents obtained pursuant to summonses issued by the Independent Commission Against Corruption (“ICAC”) as part of an investigation known as “Operation Charity”. Ms Michelle Lazarus was convicted of seven counts of giving false or misleading evidence at a compulsory examination or at a public inquiry conducted by ICAC in the course of Operation Charity. Both sisters appealed. While their appeals were pending, the High Court determined Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14, and it is common ground that, in accordance with that decision, Operation Charity was not authorised. Shortly after that decision, the Validation Act was passed. By notices of motion in the District Court, the sisters in substance sought a stay of their own appeals on the basis, inter alia, that the Validation Act did not apply to their proceedings.

4. The District Court (Zahra DCJ) refused to order a stay by reserved decision delivered on 19 August 2016. It is accepted that only if the Validation Act is valid and applies to the convictions of Ms Michelle Lazarus can those convictions stand (the position is more complex in the case of her sister Sandra).

5. That said, the issue is more confined than would otherwise be the case, because the High Court has held that the Validation Act is valid, at least in its application to pending civil litigation challenging the validity of what would otherwise be unauthorised findings by ICAC: Duncan v Independent Commission Against Corruption (2015) 256 CLR 83; [2015] HCA 32. For that reason, the applicants’ submissions both on construction and validity focussed attention on the impact of the Validation Act on pending criminal proceedings.

6. For the reasons which follow, I have rejected the applicants’ submissions on construction and validity.

Factual background

7. I shall follow the approach adopted in the parties’ submissions and refer, for concision and without conveying any disrespect, to the applicants as “Sandra” and “Michelle”. I shall refer to the Independent Commission Against Corruption Act 1988 (NSW) as the ICAC Act.

8. Although this was an application in this Court’s original jurisdiction, many of the primary documents before the primary judge were not tendered. The gaps included the evidence read before the primary judge, the orders founding the application for judicial review (as opposed to his Honour’s reasons), the sisters’ convictions and the material in the Crown case. During the course of the hearing in this Court, the report of ICAC dated August 2011 “Investigation into corrupt conduct involving alleged fraud on two Sydney hospitals” was tendered without opposition, and, at the Court’s request, the parties provided, after the conclusion of the hearing, a Statement of Agreed Facts.

9. ICAC’s report states that in January 2009 and around January 2010 it received two reports concerning possible corrupt conduct in two hospitals (p 9). Both reports contained allegations involving the payment of invoices to companies associated with Sandra; the second alleged that Michelle was also involved in the payments. The report records that:

“The Commission decided to investigate following the receipt of the second section 11 report and information that similar frauds may have been perpetrated at other hospitals” (p 9).

That investigation became known as “Operation Charity”.

10. Relevantly for present purposes, the Statement of Agreed Facts states that each of Sandra and Michelle received summonses under s 35 of the ICAC Act dated 2 July 2010 and 18 January 2011 to attend a compulsory examination on 12 July 2010 and a public inquiry on 14 February 2011. The document also states:

“During the course of the investigation, ICAC executed a search warrant at a premises occupied by [Sandra and Michelle] on 28 May 2010.

During the execution of that search warrant, ICAC seized various documents including correspondence, invoices, vendor maintenance forms, non-order vouchers and other hospital forms. ICAC also seized two laptops and two external computer hard drives. A number of the seized documents, and certain contents of the computer hard drives, were tendered in the criminal proceedings against [Sandra] in the Local Court.

A set of three payslips for Medical and Clinical Informatics Consultants Pty Ltd and Wish Consulting documents, which had been seized during the execution of the search warrant at the premises occupied by [Sandra and Michelle] referred to in paragraph 5 above, were tendered in the criminal proceedings against [Michelle] in the Local Court.”

11. ICAC’s report contains findings that Sandra engaged in “corrupt conduct” in relation to both hospitals, and statements pursuant to s 74A(2) of the ICAC Act that the Commission was of the opinion that consideration should be given to obtaining the advice of the Director of Public Prosecutions (“the Director”) with respect to prosecuting Sandra for a number of offences under ss 300 and 178BB of the Crimes Act 1900 (NSW). (Section 74A requires that ICAC’s report must include, in respect of each “affected” person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to, inter alia, obtaining such advice from the Director.)

12. The report also records that “Michelle Lazarus gave her evidence following a declaration made pursuant to section 38 of the ICAC Act” (p 67). The immunity conferred by that section (when read with s 37(4)(b)) was stated to be the reason why the Commission was not of the opinion that the Director’s advice be obtained in relation to a prosecution under s 178BB of the Crimes Act. However, the report does contain a statement pursuant to s 74A(2) that consideration be given to obtaining the advice of the Director with respect to prosecuting Michelle for offences of giving false or misleading evidence contrary to s 87 of the ICAC Act. It also contains two passages from the transcript of evidence at the public inquiries when Michelle accepted, in answer to questions from the Commissioner, that she had not been telling the truth, and to her knowledge, when giving evidence at an earlier inquiry (pp 64 and 66).

Procedural history

13. Prosecutions appear to have been commenced substantially in accordance with ICAC’s s 74A(2) statements. Both Sandra and Michelle were issued with Court Attendance Notices dated 1 March 2013. That issued to Sandra identified 58 offences contrary to ss 178BB and 300(1) of the Crimes Act. That issued to Michelle identified seven offences contrary to s 87(1) of the ICAC Act (one of giving false or misleading evidence at a compulsory examination and six of giving false or misleading evidence at a public inquiry). Section 87 relevantly provides:

“87 False and misleading evidence

(1) A person who, at a compulsory examination or public inquiry conducted by the Commission, gives evidence that is false or misleading in a material particular knowing it to be false or misleading, or not believing it to be true, is guilty of an indictable offence.

Maximum penalty: 200 penalty units or imprisonment for 5 years, or both.”

14. The reasons of Zahra DCJ record that on 23 May 2014, Michelle was found guilty of contravening s 87 of the ICAC Act in the Local Court constituted by Barnes LCM. On 14 July 2014, Barnes LCM sentenced Michelle to a suspended sentence, and on the same day, Michelle filed a Notice of Appeal in the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW).

15. The reasons of Zahra DCJ also record that on 27 November 2014, Sandra was found guilty by the Local Court constituted by Keogh LCM of 44 offences contrary to ss 178BB and 300 of the Crimes Act. The reasons also record that on 27 April 2015, Sandra was sentenced in the Local Court to a total effective sentence of one year and nine months with a non-parole period of one year and four months. Once again, on the same day, Sandra filed a Notice of Appeal to the District Court.

Other proceedings brought by Sandra and Michelle

16. On 5 February 2015, Sandra commenced proceedings in which she sought an order that the conviction be quashed on the basis that Keogh LCM’s judgment was infected by bias. Her application was rejected by the Supreme Court constituted by Garling J: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426. It was this proceeding which produced the delay between conviction and sentence in the Local Court. Sandra sought leave to appeal from this decision to this Court. However, on 16 December 2015, leave to appeal was refused: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408.

17. Sandra subsequently filed two further proceedings in the Supreme Court (in addition to the summons the subject of this judgment). On 15 May 2015, Sandra brought an application under Part 5 of the Crimes (Appeal and Review) Act appealing the decision of Keogh LCM, and on 20 July 2015, Sandra brought an application for judicial review of the decision. These two proceedings were heard and determined together by RS Hulme AJ, who summarily dismissed the applications as an abuse of process of the extant District Court appeal: Lazarus v Director of Public Prosecutions NSW [2015] NSWSC 1776 at [35]. Sandra did not appear when those proceedings were listed for hearing, and the hearing proceeded in her absence.

18. On 23 February 2015, Michelle brought an application seeking to quash her conviction, which was also heard by Garling J. On 22 July 2015, Michelle filed a notice of motion for Garling J to recuse himself on the basis that his Honour had heard and refused Sandra’s application for judicial review. This was refused, along with the substantive application for judicial review: Lazarus v NSW Director of Public Prosecution [2015] NSWSC 1116 at [27] and [143]. Michelle sought leave to appeal from this decision. On this occasion (unlike the previous Supreme Court litigation) she was represented by junior counsel – although not the junior counsel who appeared in this Court. Junior counsel then appearing sought to raise a number of new arguments on appeal. On 14 March 2016, the Court refused Michelle’s application for leave to appeal. Basten JA noted that it would be inappropriate to grant leave for these matters to be raised on appeal for the first time: Lazarus v New South Wales Director of Public Prosecutions [2016] NSWCA 47 at [15]-[17].

The applicants’ appeals to the District Court

19. Prior to the hearing of the substantive appeals in the District Court, Michelle and Sandra each filed notices of motions on 27 October 2015, each of which was amended on 13 November 2015, seeking various orders that the criminal proceedings be “struck out”. On 18 January 2016, Michelle and Sandra sought orders that certain evidence against them be ruled inadmissible as improperly obtained. On 12 February 2016, Michelle brought a notice of motion seeking an order that criminal proceedings against her be dismissed. It would seem (according to the materials in the White Folders supplied by the applicants) that there were five notices of motion (seven if one counts the original notices of motion before they were amended) made returnable before the primary judge. Neither the written nor the oral submissions identified with any particularity the process on which Sandra or Michelle moved or to which those submissions were directed.

20. As is made clear in the primary judgment, the substance of the orders sought by the applicants was a permanent stay of their own District Court appeals. That reflected the way their case was advanced. Their written submissions commenced:

“By a number of Notice of Motions filed in this court the Appellants (Michelle Lazarus and Sandra Lazarus) seek to in effect stay all proceedings against both Appellants that are pending in the District Court by way of appeals from the Local Court”.

21. Orally, counsel introduced the application as follows:

“WATERSTREET: ... So the prima facie document before you would be the appeal from the District Court. It is an all grounds appeal. Thereafter it became a notice of motion seeking a stay, inter alia of a stay, but more predominantly, a stay because of two things. One, the ICAC inquiry itself under the Cunneen principle and the non-application of the Validation Act ... and, secondly, the change in law of the power of an ICAC member to serve and sign or issue a CAN changed with apparent retrospectivity. ... The more predominant one will be the first leg”.

22. The primary judge heard argument on 24 June 2016 and delivered reasons for judgment on 19 August 2016, rejecting both limbs of Sandra’s and Michelle’s submissions. The substantive order was framed, “I decline to stay the proceedings against both Appellants”. That is the order which is sought to be reviewed in this Court’s supervisory jurisdiction. Strictly, there are no proceedings “against” either applicant. The only extant proceedings were those initiated by the applicants appealing from their convictions and sentences, although the prosecution bore the onus in those appeals to establish each applicant’s guilt (see for example Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137 at [42]). His Honour also made timetabling orders listing the appeals to be heard on 7 October 2016 (another date on which the appeals did not proceed).

23. By summons filed 15 September 2016, Sandra and Michelle sought judicial review of the decision not to grant a permanent stay of their appeals. When the application was heard in this Court, Sandra and Michelle moved on a Further Amended Summons which sought orders setting aside or quashing the order made on 19 August 2016 declining to stay the District Court appeals, and in lieu thereof, orders quashing their convictions, permanently staying the appeals. They also sought declarations to the effect that the Validation Act did not apply to validate anything done in connection with the criminal proceedings against them, and, in the alternative, that to the extent that the Validation Act purported to validate anything done in connection with the criminal proceedings against them, it was constitutionally invalid. Notices under s 78B of the Judiciary Act 1903 (Cth) were served and the Attorney-General of New South Wales intervened.

24. The summons also joined ICAC, which had not been a party to the proceedings in the District Court, and sought declaratory relief against it to the effect that ICAC had no power to conduct “Operation Charity” and that the findings and recommendations made against Sandra and Michelle were “beyond power and were nullities”. A claim that the respondents pay the applicants’ costs in the District Court and in the Local Court was abandoned during the hearing in this Court.

Procedural irregularities in the litigation

A stay of an appellant’s own appeal?

25. Each of Sandra and Michelle has exercised her right of appeal to the District Court, pursuant to s 11 of the Crimes (Appeal and Review) Act. Until those appeals have been finally determined, the execution of the sentences imposed upon each of them is automatically stayed, by reason of s 63 of that Act.

26. As already noted, both Sandra and Michelle filed notices of motion in their own appeals seeking a “permanent stay”, and that was the substance of the application heard and determined by the primary judge, in advance of the hearing of the appeals. Precisely how that occurred is not clear from the record, although it was accepted that the Crown had, at the least, not opposed that course.

27. The motions were misconceived. An accused person may apply for a permanent stay of a prosecution. If a permanent stay is granted, that is “not the equivalent of a verdict and judgment of acquittal”, “confers no vested right” and “does not determine the matter charged”: Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 at [41]. But Sandra and Michelle have been convicted. It is legal nonsense for Sandra and Michelle to apply for stays of their own appeals against conviction. An appellant may choose to discontinue his or her appeal, but so far as I can see there is no proper basis on which an appellant may ask that his or her own appeal be permanently stayed. Moreover, such an application fundamentally subverts the statutory stay of execution of the sentences imposed which applies while an appellant’s appeal is pending.

28. The statutory stay of execution serves an important purpose, for it is important that the right of appeal from a conviction or sentence not be rendered nugatory because the sentence has been fully served by the time the appeal is heard. Conversely, it is important that those appeals are heard and determined promptly. Appeals from summary convictions and sentences imposed by the Local Court are an important aspect of the work of the District Court. The latest Annual Report discloses that in 2015 there were 1266 conviction appeals and 5781 sentence appeals lodged, and that the overwhelming majority were determined within 12 months (in the case of conviction appeals) and 6 months (in the case of sentence appeals): District Court of New South Wales Annual Review 2015, pp 19-20. It is extremely unusual for there to have been the extended delay which may be seen in Sandra’s and Michelle’s appeals.

29. I am conscious of the advantage of hindsight, but with respect, the applications brought by Sandra and Michelle seeking a stay of their own appeals should have been dismissed summarily. All of the issues sought to be raised on the motion were available to be raised at the hearing of the appeal, and only if the appeals were heard and determined favourably could the District Court set aside Sandra’s and Michelle’s convictions.

Discretionary refusal of relief?

30. Not only was that point seemingly not advanced before the primary judge, but also in this Court, none of the respondents said that the application for judicial review should be dismissed because the application for a permanent stay had been misconceived. Their criticism was more muted. ICAC’s submissions noted the “peculiar procedural context” and the Director referred to the position being “unclear”.

31. In oral submissions in this Court, the Director’s first and primary point, to which more time was devoted than any other, was that this Court should in the exercise of its discretion decline to entertain the application for judicial review. His submission was that “even assuming that jurisdictional error could be established, as a matter of discretion, this Court would not intervene until the District Court appeals are determined”, having regard to the extensive delay and fragmentation of the criminal proceedings. He went through the earlier applications made by Sandra and Michelle, for the most part when they were unrepresented, which have been summarised above. The Director went so far as to urge that if relief were refused in this Court’s discretion, then a case could be stated for the determination of the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW).

32. The Director was correct to submit that there are ordinarily powerful discretionary factors against entertaining applications which fragment criminal proceedings: see, for example, Yates v Wilson (1989) 168 CLR 338 and Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23]. Gleeson JA referred in Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [85], by reference to authority, to the “reticence regarding the use of the supervisory jurisdiction of this Court to interfere in criminal proceedings at an interlocutory stage”. Those considerations have no less force in the case of the District Court exercising its appellate jurisdiction, where s 176 of the District Court Act 1973 (NSW) prevents further review save for jurisdictional error, and where, if proceedings seeking judicial review are commenced, s 69C of the Supreme Court Act 1970 (NSW) provides for a further stay (as to which see Majak v Rose (No 2) [2016] NSWCA 337).

33. But in the highly unusual facts of this case, the ordinarily orthodox course proposed by the Director is inapt. It would lead to considerable further delay, and to no useful end. What is more, it was accepted that the Director had (at the least) acquiesced in the fragmentation which occurred by the separate determination of the misconceived motions for a permanent stay. And this Court has heard full argument, following the service of notices under s 78B of the Judiciary Act and with the assistance of the Solicitor-General of New South Wales. There is no utility in the same issues being debated in the Court of Criminal Appeal at some later date.

34. The application for judicial review is a civil proceeding, despite the fact that it seeks to review an interlocutory decision made in the course of a criminal appeal. Section 56 of the Civil Procedure Act2005 (NSW) applies. Two “real issues” in the proceedings are whether the Validation Act applies and whether if so it is valid. This Court is obliged to seek to give effect to the just, quick and cheap resolution of those issues. That involves rejecting the submission to withhold relief in the exercise of discretion.

Absence of jurisdictional error?

35. There is however a further reason why, in my preliminary view, the proceedings in this Court must fail. It was accepted, in accordance with authority, that the effect of s 176 of the District Court Act (“No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court”) was that Sandra and Michelle must fail unless they can establish jurisdictional error: see (for example) the decisions collected in Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [10].

36. As presently advised, I do not consider that jurisdictional error is made out. No case of jurisdictional error was advanced in the Further Amended Summons or the written submissions filed in support. Instead, Sandra and Michelle merely submitted that either the primary judge was wrong to construe the Validation Act as applying to the pending criminal proceedings, or else his Honour erred in proceeding on the basis that the Validation Act was valid (although no submission to the contrary was made to him). But the District Court has jurisdiction to determine questions of law. If Sandra’s and Michelle’s submissions are correct, there is a material error of law on the face of the record. But that falls short of the requisite jurisdictional error.

37. Sandra’s and Michelle’s written submissions in reply accepted the need to establish jurisdictional error, but did not explain how such error was said to be established. In oral submissions, Mr Moses SC, who appeared with Mr Livingston in this Court but not below, addressed the point most elaborately in reply:

“[T]he District Court cannot give itself power by construing cll 34 and 35 as having retroactive operation and ultimately as part of the task that it is currently engaged in affirm the conviction and/or the sentence or increase the sentence where there is no power to do so. The only power that it has in the circumstances is to uphold the appeal and quash the convictions.

There is no doubt based on the decision of the primary judge that if we are right on our construction argument that that decision, that is the decision of the primary judge, is one where he has fallen into error because he is contemplating making a decision or order of the kind by continuing to hear the matter which wholly or partly lies outside the limit of the functions of the Court.”

38. I agree that where an inferior court misconstrues its own empowering statute, so that it determines a controversy which is outside its jurisdiction, or grants relief which it is not authorised to grant, then there is jurisdictional error. One example is the “Mareva” orders made by the District Court in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19. But as presently advised, I do not agree that there is jurisdictional error of the nature indicated by Mr Moses even in respect of Michelle’s appeal (and it is quite plain that Sandra’s position can be no better). The jurisdiction of the District Court was invoked by Michelle when she filed a notice of appeal from her conviction and sentence. Eventually, although not originally, she advanced submissions based on the compulsory examination and public inquiry not being authorised by the ICAC Act. Whether or not that submission be correct turns upon the validity and construction of the Validation Act, being an issue which the District Court was authorised to decide.

39. There will be jurisdictional error if an inferior court “[misconstrues] the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case”: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]. The emphasised qualifying words are important. Not every misconstruction of a statute by a court is jurisdictional error; indeed, that will only seldom be so. It is necessary further for that misconstruction to result in the court stepping outside the limits of what it was authorised to do. Thus jurisdictional error on the part of the District Court exercising its criminal appellate jurisdiction has been found where it has misapprehended its function by declining to state a case (Landsman v Director of Public Prosecutions [2013] NSWCA 369) or erroneously considered it had power to set aside a conviction ab initio (Roads and Maritime Services v Porret [2014] NSWCA 30). But there was no jurisdictional error in (what was at best) “misapplying the applicable statutory test” giving rise to the offence (Boensch v Commissioner of Fines Administration [2017] NSWCA 13). It would be wrong to expect there to be bright-line rules delineating jurisdictional error from errors within jurisdiction, but a useful working guide may be found in WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 at [14]:

“An erroneous application of the criminal law in the course of criminal proceedings will not generally demonstrate jurisdictional error.”

40. However, although raised in the course of submissions, the absence of jurisdictional error was not at the forefront of the debate, and I do not regard this Court as having received full submissions on it. Further, all parties, as well as the intervening Attorney-General, urged this Court to decide the questions of construction and validity. It is clear given the procedural history to date that if the summons is dismissed because the applicants have not made out a case of jurisdictional error, there will be further delay and expense. Accordingly, I refrain from reaching a concluded view.

40. Had the threshold issue of jurisdictional error been dispositive, I would have invited the parties to provide further submissions on it. In many cases, the issue would be dispositive, because the first duty of any court is to determine whether it has jurisdiction: Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1] and [14]. In cases to which it applies, s 176 of the District Court Act qualifies this Court’s jurisdiction to where there is jurisdictional error.

41. However, Sandra and Michelle also sought declaratory relief, including declarations of constitutional invalidity, something which had not been raised before the primary judge. Although I do not accept their submissions, and there were separate procedural difficulties with the course adopted, the underlying question of validity was not without substance. The presence of the Solicitor-General of New South Wales confirmed as much. The position resembles that identified by the High Court in Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [25]. This Court’s undoubted jurisdiction to issue declaratory relief which, as it happens, is dispositive of the principal issues debated between the parties enables me to refrain from reaching a final view as to the absence of jurisdictional error.

Declaratory relief against a new party

43. I turn to ICAC, which was joined as the first respondent to the summons, although it was not a party to the proceedings before the primary judge. Prayer 1 of the further amended summons sought broadly worded declarations about the status of findings and recommendations made. Recognising the force of ICAC’s criticisms of these, the applicants were granted leave to supply a more focussed formulation of relief, which was in the following terms:

“Declare that, in and for the purposes of District Court of New South Wales proceedings numbered 2013/76236 and 2013/98654, which were pending at the time of the commencement of the [Validation Act] and which remain pending:

(a) the findings of corrupt conduct under s 8(2) of the [ICAC Act] made by [ICAC] in its report dated August 2011 entitled "Investigation into Corrupt Conduct involving Alleged Fraud on Two Sydney Hospitals" ("ICAC Report") [Exhibit 1] against [Sandra] at pages 6-7, 38 and 59 and against [Michelle] at pages 7 and 66;

(b) the statements made by [ICAC] under s 74A(2) of the ICAC Act at pages 6-7, 39, 59-60 and 67 of the ICAC Report recommending that consideration be given to obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of [Sandra] for alleged offences contrary to ss 178BB and 300(1) of the Crimes Act 1900 (NSW) and of [Michelle] for alleged offences contrary to s 87(1) of the ICAC Act;

(c) the findings made by [ICAC] at pages 61, 64, 66 and 67 of the ICAC Report to the effect that [Michelle] knowingly gave false and misleading evidence to the [ICAC]; and

(d)   the following steps taken by [ICAC] during the investigation and public inquiry as referred to on page 10 of the ICAC Report:

(i)   issuing notices requiring the production of documents by the applicants and by other persons;

(ii)   executing a search warrant at [Sandra’s] residence;

(iii)   issuing notices requiring [Sandra and Michelle], and other persons, to attend compulsory examinations; and

(iv)   issuing notices requiring [Sandra and Michelle], and other persons, to attend the public inquiry to give evidence;

were beyond power, were invalid and were not validated by the Validation Act.”

44. ICAC and the applicants supplied further written submissions after the hearing on the reformulated claim for declaratory relief.

45. That reformulation leaves two remaining objections advanced by ICAC, both of which were relevant to the discretionary aspects of the declarations sought. First, ICAC pointed to the substantial delay of more than five years since ICAC’s report was made. Against this, there is force in Sandra’s and Michelle’s response that there was “no real delay” because the issue crystallised only after Cunneen was delivered. I would not, contrary to ICAC’s submission, have withheld relief merely by reason of delay.

46. Secondly and more substantively, the declaratory relief now sought was never sought in the court below, and forms no part of the application for judicial review. In reality, this aspect of the summons amounts to what would ordinarily be a fresh civil proceeding by way of collateral attack upon aspects of pending criminal proceedings. This is generally undesirable. “[The] power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged”: Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23]. Still less should such a prayer for declaratory relief (which would not ordinarily be assigned to the Court of Appeal) be incorporated in proceedings necessarily in the Court of Appeal (Supreme Court Act 1970 (NSW), s 48(2), read with s 48(1)(a)(iv)) because judicial review is sought of a decision of the District Court.

47. Ordinarily, faced with the expansion of a proceeding in the nature of judicial review by including a prayer for declaratory relief against a non-party to that proceeding, the appropriate order would be to sever that aspect of the relief and remit it to a Division, or else dismiss that prayer leaving it to the plaintiff to file a fresh summons to be heard and determined in the ordinary way. To be clear, that would not preclude a matter being heard in the first instance in the Court of Appeal, for example by referral under UCPR r 28.2, if that course were appropriate. However, the suggestion that a litigant can obtain as an incident of judicial review proceedings in this Court declaratory relief as of course in respect of broader issues should not receive any encouragement. Sections 49 and 51 of the Supreme Court Act proceed on the basis that ordinarily matters not allocated by legislation to the Court of Appeal will be heard and determined by a Division.

48. However, in the highly unusual circumstances of this case, where there has already been an excessive degree of fragmentation, and where the applicants’ claim against ICAC will fail at the threshold if their submissions on construction and validity are not accepted, it is appropriate to deal with this aspect of the summons. It will be clear from the foregoing that the procedural course which has been adopted by the applicants hitherto is unsatisfactory in many respects, and shall not be regarded as a precedent.

Other preliminary issues

49. The applicants did not include the orders made by the primary judge in the materials. The application is for review of the order, not his Honour’s reasons, and there was non-compliance with UCPR r 59.8(1)(c). When the Court made copies of the orders available, it appeared that the only substantive order made in each appeal was “I decline to stay the proceedings against both Appellants”. The multiplicity of notices of motion before his Honour coupled with the failure by counsel then appearing for Sandra and Michelle to identify the motions being moved upon may explain the way in which this order was framed. No party made submissions directed to its form. I shall proceed on the basis, favourably to Sandra and Michelle, that the order is to be understood as an order dismissing the notices of motion filed by Sandra and Michelle, or alternatively is apt to be amended, pursuant to the slip rule, to an order which in terms disposes of those motions adversely to them.

50. There are three final preliminary comments. In light of some of the criticisms above, I should make it clear that, so far as the materials in this Court reveal, neither counsel now appearing for Sandra and Michelle had anything to do with the formulation of the motions in the District Court, the earlier applications to the Supreme Court, the drafting of the summons in this Court’s supervisory jurisdiction or the joinder of ICAC.

51. Secondly, the court papers included written submissions by Sandra and Michelle personally, as well as submissions in chief and in reply by their counsel. I have had regard to all those submissions.

52. Finally, it is plain that this Court has had the benefit of written and oral submissions of a high calibre, in contrast to the primary judge who heard the application in what appears to have been a running list, during which hearing two matters were interposed and one judgment delivered. His Honour delivered a lengthy judgment dealing with each issue raised before him, including some which were not raised in this Court. Further, the submissions in this Court went further in some respects than those advanced before the primary judge. For example, at the forefront of the submissions before his Honour was the validity of the Court Attendance Notices, while no question of constitutional validity was advanced before him.

53. Since the issues debated in this Court are pure questions of law, it is convenient to turn to them directly, without summarising the detailed reasons of the primary judge on the (substantially different) issues argued before him.

The Validation Act

54. The Validation Act, which received Royal Assent and commenced on 6 May 2015, inserted a new Part 13 into the ICAC Act. The entirety of that Part comprises cll 34 and 35, which are as follows.

“34 Interpretation

(1) In this Part:

relevant conduct means conduct that would be corrupt conduct for the purposes of this Act if the reference in section 8 (2) to conduct that adversely affects, or could adversely affect, the exercise of official functions included conduct that adversely affects, or could adversely affect, the efficacy (but not the probity) of the exercise of official functions.

(2) A reference in this Part to anything done or purporting to have been done by the Commission includes a reference to:

(a) anything done or purporting to have been done by an officer of the Commission, and

(b) any investigation, examination, inquiry, hearing, finding, referral, recommendation or report conducted or made by the Commission or an officer of the Commission, and

(c) any order, direction, summons, notice or other requirement made or issued by the Commission or an officer of the Commission, and

(d) the obtaining or receipt of anything by the Commission or an officer of the Commission.

(3) A reference in this Part to evidence given to the Commission includes a reference to:

(a) a statement of information, or a document or other thing, produced in response to a notice by the Commission or an officer of the Commission, and

(b) an answer made, or a document or other thing produced, by a person summoned to attend or appearing before the Commission or an officer of the Commission at a compulsory examination or public inquiry, and

(c) any information, document or other thing otherwise obtained or received by the Commission or an officer of the Commission.

35 Validation

(1) Anything done or purporting to have been done by the Commission before 15 April 2015 that would have been validly done if corrupt conduct for the purposes of this Act included relevant conduct is taken to have been, and always to have been, validly done.

(2) The validation under subclause (1) extends to the validation of:

(a) things done or purporting to have been done by any person or body, and

(b) legal proceedings and matters arising in or as a result of those proceedings,

if their validity relies on the validity of a thing done or purporting to have been done by the Commission.

(3) The validation under subclause (1) extends to the validation of things on and from the date they were done or purported to have been done.

(4) The Commission is authorised (and is taken always to have been authorised) to exercise functions under this Act on or after 15 April 2015 to refer matters for investigation or other action to other persons or bodies, or to communicate or provide evidence given to the Commission to other persons or bodies, even if the matter arose or the evidence was given to the Commission before 15 April 2015 and its validity relies on the validation under subclause (1).

(5) Subclause (4) applies even if any finding of corrupt conduct that relates to the matter or evidence is declared a nullity or otherwise set aside by a court.

(6) However, a person is not (and was not) required to comply, on and after 15 April 2015, with any order, direction, summons, notice or other requirement made or issued by the Commission or an officer of the Commission before 15 April 2015 if the validity of the order, direction, summons, notice or other requirement relies on the validation under subclause (1).”

55. The Validation Act was enacted following Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14. When introducing the Validation Act, the Premier said:

“The bill does not reverse the High Court’s decision; it validates actions and findings of the ICAC before 15 April 2015 where they were based on the previous understanding of the ICAC’s jurisdiction. The bill also validates actions taken by other persons or bodies, and legal proceedings, where they rely on the validity of the ICAC’s past actions. This will mean, for example, that the past prosecution, conviction and sentencing of a person, where it arose following an ICAC investigation, will stand.

The bill will also validate the obtaining of evidence and information by the ICAC in the past ...” (Hansard, Legislative Assembly, 6 May 2015).

56. The High Court upheld the validity of the Act in Duncan v Independent Commission Against Corruption (2015) 256 CLR 83; [2015] HCA 32. That litigation challenged the effect of the Act upon pending civil proceedings brought by Mr Duncan seeking judicial review of findings of corrupt conduct by ICAC.

The operation of the Validation Act

57. The central operative provision of the Validation Act is cl 35(1). It will be seen that it applies to “anything done or purporting to have been done” by the Commission before 15 April 2015, but only if the thing “would have been validly done” if “corrupt conduct” for the purposes of the ICAC Act bore the broader meaning extending to “relevant conduct” defined in cl 34.

58. The Validation Act is not confined to legal proceedings, although it expressly extends to the validation of “legal proceedings and matters arising in or as a result of those proceedings”. Its primary focus is upon “anything done or purporting to have been done by [ICAC]”. One important point for present purposes is that the Validation Act on its face extends to the issuing of summonses and the asking of questions in the course of compulsory examinations and public inquiries in 2010 and 2011 in the course of “Operation Charity”.

59. It is not necessary to summarise in any detail the narrower construction of “corrupt conduct” in the ICAC Act given by the High Court in Cunneen, or to seek to delineate the metes and bounds of the broader notion of “relevant conduct” in the Validation Act, because the parties had reached agreement both before the primary judge and in this Court on the operation of the ICAC Act and the Validation Act, assuming the latter was applicable and constitutionally valid.

60. It was common ground that the summonses issued to Sandra and Michelle, and their questioning during the course of Operation Charity, were not authorised by the ICAC Act. It was conceded that no aspect of Operation Charity suggested that there was any question of the probity of any public official’s conduct within the scope of the investigation, with the result that that investigation did not fall within the scope of the ICAC Act as construed in Cunneen. It was also common ground that, if the Validation Act applied and was constitutionally valid, then the summonses and questioning during the course of Operation Charity were taken to have been authorised by the Validation Act.

61. The thrust of the applicants’ submissions was not so much upon the effect of the Validation Act upon the action taken by ICAC in 2010 and 2011, but upon the court proceedings which commenced in 2013. In this respect, it is necessary to bear steadily in mind the different ways in which the Validation Act operated in relation to Sandra and Michelle.

The operation of the Validation Act upon Sandra’s prosecution and appeal

62. The position in the case of Sandra is relatively straightforward. Putting to one side a minor point about the validity of the Court Attendance Notices, the charges laid against her do not themselves depend upon any excess of power by ICAC. Instead, part of the evidence in the Crown case against her was documents obtained upon the execution of summonses issued by ICAC in the course of an investigation which, it is now accepted, it was not at the time authorised to undertake.

63. Neither the common law, nor the provisions of s 138 of the Evidence Act 1995 (NSW) which varied it, imposes a strict rule that evidence which has been obtained improperly or unlawfully may not be tendered in a criminal prosecution. To the contrary, the outcomes in cases such as Parker v Comptroller of Customs [2009] HCA 7; 83 ALJR 494 and Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326 reflect the fact that there may be cases where evidence which is critical to the Crown case and which has been obtained improperly or unlawfully may nevertheless be permitted to be adduced.

64. Thus, even if the applicants’ submissions on construction or validity are accepted, it does not follow that Sandra’s convictions for making false instruments and making false statements to obtain money will inevitably be quashed. The effect of the Validation Act, instead, is to deny to Sandra the ability to ask a court to exclude evidence obtained in excess of power.

The operation of the Validation Act upon Michelle’s prosecution and appeal

65. The position is different in the case of Michelle’s convictions for giving false or misleading evidence contrary to s 87 of the ICAC Act.

66. The first element of the offence created by s 87 is that the person charged be giving evidence “at a compulsory examination or public inquiry conducted by the Commission”. It was common ground that, in order to satisfy that element of the offence, the compulsory examination or public inquiry must have been an examination or inquiry which was within power.

67. Thus, if the Validation Act was either inapplicable or invalid, then Michelle was entitled to an acquittal. (I do not express a view on the question whether this Court could make such an order; as noted in Wende v Horwath (No 2) [2015] NSWCA 416 at [18]-[19] and Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [98]-[101], different views have been expressed on that issue.)

The different operation of the Validation Act on the applicants’ convictions

68. On no view could Sandra obtain relief by way of a permanent stay, let alone an acquittal, even if her submissions were accepted in their entirety. On the other hand, Michelle was entitled to an acquittal if her submissions on construction or validity were accepted.

69. That is one reason why it is necessary to consider separately the way in which the Validation Act might apply to Sandra’s and Michelle’s appeals. As will be seen below, in order to resolve the constitutional arguments, it will also be necessary to consider the position of each appeal separately.

The relationship between the applicants’ submissions on construction and validity

70. Although the applicants’ submissions on construction and validity were advanced separately, they are not independent of one another. Instead, they are, to an extent, intertwined.

71. In support of their narrow construction of the Validation Act, the applicants prayed in aid the principle that a valid construction should be preferred to a construction leading to invalidity: see ACMA v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [66]. This approach is reinforced by s 31 of the Interpretation Act 1987 (NSW). Against this, it is trite that courts will not unnecessarily determine a constitutional question: see Lambert v Weichelt (1954) 28 ALJ 282 at 283, which has been applied on many occasions. Those two principles may be reconciled as follows.

70. In a case such as this, the first step is to construe the statute: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [3], [158], [219]-[221], [306]; North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [11]. If, putting to one side questions of validity, the Validation Act would not apply to the applicants, then the analysis would cease, and the court would not reach the constitutional questions. As will be seen, I would reject the applicants’ submissions on construction, save for the possible impact of the constitutional questions. Accordingly, the second step is to determine the constitutional issue, and to do so on the basis of the construction tentatively reached. As will be seen, I would reject the applicants’ constitutional submissions as well. The result is to confirm the construction previously reached. It is therefore not necessary to take the further step and consider whether in truth s 31 is capable of operation upon cl 35 of the Validation Act (the principles applicable in the case of a generally expressed statute may be found in the Industrial Relations Act Case (1996) 187 CLR 416 at 503 and R v Hughes (2000) 202 CLR 535; [2000] HCA 22 at [43]). Nor is it necessary to consider the extent to which avoidance of constitutional invalidity warrants favouring an alternative reasonably open construction: see North Australian Aboriginal Justice Agency Ltd at [78]-[79].

The submissions on construction

73. Self-evidently, the Validation Act has retrospective force. It is, after all, a validation Act, whose entire purpose is to alter the legal status of historical conduct. Some might prefer to characterise the Validation Act as “retroactive”, rather than “retrospective”, but nothing material turns upon the label, and I shall pass over this distinction: cf West v Gwynne [1911] 2 Ch 1 at 11-12. Accordingly, the ordinary presumption against retrospectivity is displaced. But the applicants relied upon a more finely nuanced principle of construction, to the effect that even a patently retrospective statute will only be given so much retrospective effect as is clearly stated. They relied on the following passage from the reasons of Spigelman CJ in Lodhi v R [2006] NSWCCA 121; 199 FLR 303 at [25]-[28]:

“There is a line of authority that the common law presumption against retrospectivity is not spent when it is clear that Parliament intended a statute to operate retrospectively. The extent of retrospective operation is itself a matter requiring interpretation of the statute. A statute will only be given retrospective operation to the extent intended by the Parliament and to no greater extent. This is to be determined by the words of the statute, construed in their full context, and in accordance with the scope and purpose of the legislation.

As Bowen LJ said in Reid v Reid (1886) 31 Ch D 402 at 408-409:

‘ ... [E]ven in construing an Act which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective, we ought nevertheless to bear in mind that maxim is applicable wherever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.’

Furthermore, Lindley LJ said in Lauri v Renad [1892] 3 Ch 402 at 420-421:

‘It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.’

Similarly, in Moss v Donohoe (1915) 20 CLR 615 at 621, Griffith CJ said, in dissent on the result:

‘ ... A larger retrospectivity should not be given to a statute which is to some extent intended to be retrospective than that which it can plainly be seen that the legislature intended.’”

74. In accordance with what was said by Dixon J in Newell v The King (1936) 55 CLR 707, the applicants then submitted that as a matter of construction the Validation Act should not extend to pending criminal proceedings. The applicants’ written submissions included the following:

“In Newell v The King, the High Court held that, upon its true construction, an amendment to jury legislation providing for a majority verdict did not apply to a trial in criminal proceedings which were pending at the time of the amendment. Dixon J said that the general words ‘on the trial of any criminal issue’ as contained in s 2 of the Jury Act 1936 (Tas), should ‘be taken to mean on the trial of any criminal issue joined after the commencement of the Act.’”

75. Anticipating that reliance would be placed by their opponents upon what was said when the bill was introduced, the applicants said that the Premier’s language could not be used to displace the statutory language, and that “the words of a Minister must not be substituted for the text of the law”, relying on Re Bolton; ex parte Beane (1987) 162 CLR 514 at 518.

76. Ultimately, the applicants’ submission on the principal issue reduced to this: the Validation Act validates actions that lead to criminal proceedings, provided that the criminal proceedings were not on foot at the time the Validation Act commenced. However, the Validation Act does not validate actions taken where a criminal proceeding is pending, and an undetermined appeal against conviction to the District Court is a pending criminal proceeding.

77. In answer to a question from the presiding judge, senior counsel for the applicants accepted that, had no appeal been pending at the time the Validation Act commenced, it would have applied to his clients’ convictions. That concession was properly made. It reflected the fact that the Validation Act not only is unambiguously retrospective, but also refers in terms to legal proceedings and matters arising in or as a result of those proceedings: cl 35(2)(b). It was also consistent with the reasoning in Duncan that the Validation Act extended to the pending (civil) proceedings brought by Mr Duncan.

78. The Director and ICAC referred to the words of generality in the Validation Act, to the extrinsic materials, and to the difficulty in accommodating a construction whereby the Act did not apply to pending criminal proceedings, essentially reflecting the approach taken by the primary judge in the dispositive section of his judgment on this issue (at [66]-[68]). They submitted that there was no textual basis to distinguish pending civil and pending criminal proceedings; instead the Act spoke generally and in the broadest terms, using the language of “anything done or purporting to have been done”, “any investigation, examination …”, “any order, direction, summons …” (emphasis added). Even if the general terms “things done or purporting to have been done by any person or body” might be thought insufficiently specific to apply to the admission of evidence in, or a conviction imposed by, the Local Court exercising a summary jurisdiction, the words “legal proceedings and matters arising in or as a result of those proceedings” extended on their natural meaning to such an admission or evidence or imposition of a conviction.

79. The Director observed that elsewhere in the ICAC Act, the term “proceedings” necessarily extends to criminal proceedings: see for example s 18(2) (“If the proceedings are proceedings for an indictable offence ...”). The Director relied upon what Mason J described as a “sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise”: Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611 at 618.

80. The applicants maintained in response that those considerations did not displace the principle that generally worded statutes are to be read down where they collided with other important principles.

81. The Director submitted that this was a case where the Validation Act merely altered the substantive law, rather than altering the elements of the offences with which Sandra and Michelle had been charged. In reply, the applicants observed that even if that were accepted in the case of Sandra, the Validation Act went directly to an element of the offences of which Michelle had been convicted.

Does the Validation Act apply to the pending criminal proceedings?

82. The question then is whether the Validation Act should be construed as inapplicable to the appeals brought by Sandra and Michelle by reason of the fact that they were pending at the time it was enacted. The centrepiece of the applicants’ submissions on construction was expressed as follows:

“Applying the orthodox canon of construction illustrated by Lodhi and Newell, the primary judge should have concluded that the validation effected by cll 34 and 35 did not apply to pending criminal proceedings.”

83. One matter may be put to one side immediately. Contrary to the respondents’ submissions, I would give limited weight to what was said in Parliament when the Validation Act was introduced. The Premier’s words were not squarely directed to the point arising in this case, namely, whether the Act applies to pending criminal proceedings.

84. In Saeed v Minister of Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [31], it was said that statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need carefully to consider the words of the statute to ascertain its meaning. The question is one of construction of the words in context, of which the extrinsic materials form part. Contextual construction does not deny that primacy must be given to the legislative text. This Court has recently reproduced and applied what Kiefel J had said of the purpose of resort to extrinsic materials:

“That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit.”

See Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8 at [91], referring to Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [89].

85. That said, for the reasons which follow, I do not accept the applicants’ submissions on construction.

86. First, the evident purpose of the Validation Act is that it operate universally, in relation to anything done prior to 15 April 2015 that would have been authorised under a broader construction of the ICAC Act than that determined in Cunneen. That appears both from the repeated generality of the legislative text and the nature of a validation Act. Section 33 of the Interpretation Act 1987 (NSW) requires this Court to prefer a construction which promotes that purpose over a construction which would cause the Validation Act not to apply universally.

87. Secondly, there is authority on point. Some of the respondents relied on the High Court’s decision in Duncan and the decision of the Court of Criminal Appeal in Hart v Attorney-General for New South Wales [2016] NSWCCA 71. In the former, it was accepted that the Validation Act applied to pending civil proceedings. In the latter, it appears to have been assumed that the Validation Act applied to Mr Hart’s appeal. But, to paraphrase what Walsh J said in Felton v Mulligan (1971) 124 CLR 367 at 413, decisions in which the question under consideration was not raised cannot be treated as authorities on that question. To the contrary, cases are only authorities for what they decide: Coleman v Power at [79]. Even if expressed broadly, it does not follow that a judgment is authority for a narrower proposition. The precedential authority of a decision depends upon the issues raised before the court, hence the principle that “every word of every judgment” must be read secundum subjectam materiam: see Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 at [89]-[90].

88. However, Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 is authority on point. I shall deal more fully with the facts of Nicholas when dealing with the constitutional submission below. For present purposes, it may be recalled that the third and final submission of Mr Nicholas was one of construction: it was that s 15X of the Crimes Act 1914 (Cth) (the section requiring a court to disregard the offence committed by the law enforcement officer) should not apply to him, even if it were valid, because “the question of whether the evidence has been admitted has been resolved and a stay granted. If there is any ambiguity, s 15X should be construed against retrospective operation”: see 193 CLR at 176. All members of the majority, as did Kirby J in dissent (unnecessarily, since his Honour considered that s 15X was invalid), addressed this submission and rejected it: see at [41] (Brennan CJ), [59] (Toohey J), [84] (Gaudron J), [169] (Gummow J), [218] (Kirby J) and [255] (Hayne J). Their Honours did so in short order, simply observing that there was no basis for the differential operation contended for. The statute introducing s 15X was differently worded, but it is difficult to see a basis for distinction in this respect.

89. Thirdly, Lodhi is not squarely on point. Contrary to the applicants’ submissions, there is an important distinction between legislation which retrospectively validates historical administrative acts, and legislation which retrospectively alters a criminal offence. In Lodhi, the retrospective amendments were directed to the elements of the relevant criminal offences, widening their scope, so that the Crown was no longer required to prove that preparations had been made for a particular terrorist act; it followed that past acts that would not have been criminal at the time they were committed were rendered criminal: see Lodhi at [35] and [43]. That was the context in which Spigelman CJ formulated the statement of principle upon which the applicants relied, as may be seen at [48]-[49]:

“As Isaacs J put it in Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 93:

‘The full literal intention will not ordinarily be ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found, either in the context or the circumstances to overcome the presumption.’

In my opinion, Parliament is ‘prima facie expected to respect’ the principle that a statute will not retrospectively alter a criminal offence where a trial has commenced.”

90. However, in the present case, the elements of the offences with which both Sandra and Michelle have been charged are unaltered by the Validation Act. Even in the case of Michelle, the Validation Act altered the legal character of what was done in 2010 and 2011, not the elements of the offences with which she was charged in 2013.

91. Fourthly, although the passage from Dixon J’s judgment in Newell v The King when considered in isolation seems to be squarely on point and in favour of the applicants, in fact that decision provides only limited assistance to them.

92. Mr Newell was first arraigned and tried in March 1936 but a jury could not reach a unanimous verdict. Another jury was empanelled to try him, and the second trial took place on 31 August and 1 September 1936. Some three weeks earlier, on 10 August 1936, the Tasmanian statute was amended so as to permit a majority verdict. New subs 48(1) of the Jury Act 1936 (Tas) applied to civil cases, and new subs 48(2) applied to “the trial on any criminal issue, other than a charge of a crime punishable with death”. New subsection (2) was held by the Tasmanian Court of Criminal Appeal (answering a question reserved by the primary judge) to apply. The amending Act was silent as to whether it applied to pending criminal proceedings. The High Court gave an ex tempore judgment allowing the appeal. The first judgment was delivered by Latham CJ, who said at 711 that “[t]he matter debated before us was whether or not this is a procedural statute”. All members of the court held that it was not. The other judgments do not assist the applicants, who relied only on the concurring judgment of Dixon J.

93. The passage in Dixon J’s judgment in its full context is as follows:

“The right which his plea so asserted had this conspicuous feature, namely, that although he was placed in jeopardy, he was placed in jeopardy of the unanimous verdict of twelve men. This was the position he occupied when the Jury Act 1936 altered the law and made the concurrence of ten sufficient for a conviction or acquittal. When it says that this should be so ‘on the trial of any criminal issue,’ should these general words be understood as applying to a trial already begun of issues already joined? In my opinion they should not. They should be taken to mean on the trial of any criminal issue joined after the commencement of the Act. They should not be construed as depriving a prisoner standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict”: at 712-713.

94. The first two sentences are to be read as accepting that the right to be found guilty only by the unanimous decision of twelve jurors was substantive, not procedural. The balance of the paragraph reflects Dixon J’s appreciation that the presumption that amending legislation which is substantive did not apply to pending proceedings is just that, a presumption, which was not displaced by statutory language his Honour regarded as equivocal.

95. Thus, the issue determined in Newell was quite different. The Act simply permitted majority verdicts to be accepted in a class of criminal prosecutions. Its entire operation was on legal proceedings. It was silent as to whether it applied to pending prosecutions or only future prosecutions; the question was whether it was procedural. All of that means that the statements in Newell are of limited value in the present case.

96. Fifthly, a large difficulty with the applicants’ construction is that it is apt to have unexpected and capricious results. The source of the difficulty is exposed by the concession elicited during the course of submissions that, in order for the Validation Act not to apply, according to the applicants, there must not only be conduct prior to 15 April 2015 which would otherwise be validated, but there must also be pending criminal proceedings. That gives rise to a number of difficulties.

97. One difficulty is that if the applicants’ construction be correct, then the Validation Act would apply to prosecutions commenced after 6 May 2015 (the date of commencement of the Validation Act) arising out of matters occurring before that date, but not to prosecutions commenced before that date. It seems strange that if two persons were charged with giving false or misleading evidence to ICAC on the same day at a public inquiry which was part of an investigation which was not (save for the possible effect of the Validation Act) authorised, then whether or not the Validation Act applied might depend upon the happenstance of the timing of the commencement of the two prosecutions or the filing of any notices of appeal. How can the Validation Act apply to validate a public hearing in respect of one witness, but leave it invalid in respect of the other witness?

98. Another way of exposing the difficulty turns on considering the position of all persons who received summonses to produce documents and to give testimonial evidence as part of Operation Charity. But for the potential operation of the Validation Act, all such persons would have been entitled (had they presciently anticipated the decision in Cunneen) to set aside the summons addressed to them, and to obtain injunctive relief against ICAC. On the applicants’ case, the Validation Act applies to all of those summonses, save for those served on Sandra and Michelle, because so far as appears from the record, only Sandra and Michelle had pending criminal proceedings on foot when the Validation Act commenced.

128. It may be that there is a very powerful Crown case in relation to each factual element of the offence, based on the transcript of Michelle’s evidence, such that but for the effect of the Validation Act, her conviction on some or all of the offences charged is quite likely. None of the evidence in the Crown case on which Michelle was convicted in 2014 was in the materials in this Court, and it is neither possible nor appropriate to express a view in this respect. But let it be supposed, as seems implicit in the submissions made on behalf of Michelle reproduced above, that the Crown case is strong or indeed overwhelming, save for the possibility that the Validation Act does not apply. Even though the valid operation of the Validation Act might, in those circumstances, be determinative of whether Michelle is found innocent or guilty, that does not impact upon the restrictions on State legislative capacity identified in Kable and the cases which followed.

129. Even on that hypothesis, the Validation Act is not a law which “deal[s] directly with ultimate issues of guilt or innocence”, to use the language of Hayne in Nicholas at [249], to which French CJ and Crennan J referred in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [48]. To similar effect, in Nicholas, Gaudron J referred to the statute not preventing “independent determination of guilt or innocence” (at [80]), and Gummow J to the statute not deeming “any ultimate fact, being an element of the offences with which the accused is charged”, to exist or to have been proven (at [156]). Even if the validity of the compulsory examination or public hearing is the only live issue in the prosecution of Michelle, a law retrospectively validating the examination and hearing is not a law determining the ultimate issue of guilt or innocence. It remains the case that the Crown must establish, beyond reasonable doubt, all the factual elements of the offences with which Michelle has been charged.

130. “Adjudging and punishing criminal guilt is an exclusively judicial function”: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [47]. But there is no “adjudging of guilt” by the Validation Act. The passage from the judgment of Crennan, Kiefel, Gageler and Keane JJ in Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 at [235] explains why that is so:

“The only legal effect of a declaration is to establish an ingredient of an offence, the contravention of which must still be proved in the ordinary way. The argument for the plaintiff confuses the exercise of judicial power with the power of the legislature to impose norms of conduct and to provide for the consequences of breach of those norms. In Leeth v The Commonwealth, Mason CJ, Dawson and McHugh JJ explained that ‘a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function.’” [citations omitted].

133. There is a further reason why there is no repugnancy to the integrity of the judicial function. When a court, especially the High Court, determines a point of law, the effect is retrospective. Indeed, it is inevitably and necessarily retrospective: in this country, there is no power to overrule a decision prospectively: Ha v State of New South Wales (1997) 189 CLR 465 at 503-504. An inevitable consequence of Cunneen and every other appellate judgment which alters the perceived legal meaning of a statute is that it may affect the legal character ascribed to past acts purportedly made pursuant to that statute. That may extend to judicial acts. In this State, sentencing which was entirely orthodox in accordance with what had been held in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 was found, years later, to have been erroneous in light of the High Court’s determination of the true legal construction of the statute in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. Examples of appellate decisions which had the effect of converting acts which were perceived to be legally impeccable to acts which were legally erroneous could readily be multiplied. The presently relevant observation is merely that retrospective alterations to the perceived character of past acts brought about by appellate decisions cannot be antithetical to the institutional integrity of courts, because this is an intrinsic aspect of the legal system. In those circumstances, it is difficult to see how legislation which reverses the effects of those retrospective alterations to the perceived character of past acts could be antithetical to the institutional integrity of courts.

134. Substantially this point was made by Lord Sumption JSC for the Privy Council in Ferguson v Attorney General of Trinidad and Tobago [2016] UKPC 2 at [24]:

“Once it is established as a matter of construction, mere retrospectivity does not violate the separation of powers or the rule of law, and is not contrary to due process. It is after all characteristic of all developments of the common law arising from judicial decisions. As Mason CJ observed in Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501, 536, ‘if the law, though retrospective in operation, leaves it to the courts to determine whether the person charged has engaged in the conduct complained of and whether that conduct is an infringement of the rule prescribed, there is no interference with the exercise of judicial power’.”

135. To the contrary, it would be strange if the Legislature were not empowered to enact a law to undo the effect of a narrow construction of a statute by the High Court (in circumstances where there could be no suggestion that the broader construction was not within State legislative power).

136. There is no reason to think that Michelle, in 2010 and 2011, did not either swear an oath or make an affirmation to tell the truth when giving evidence at a compulsory examination or at a public inquiry. As it turns out, she should not have been required to attend or to answer any questions. But there is no suggestion in any of the materials in this Court that any person believed at the time that the questioning was not authorised. Further, it is plain that the State at all times had legislative power to empower ICAC to conduct Operation Charity. It turned out in 2015 that the ICAC Act had a narrower operation than had been perceived, such that Operation Charity was not authorised. There is nothing antithetical to the judicial process for a law to be enacted in 2015, altering the legal character of what occurred in 2010 and 2011 to a position, consistent with what was understood at the time, even though that law has an impact upon a prosecution commenced in 2013 in respect of which the appeal rights have not been exhausted.

137. Fourthly, the foregoing accords with what has been held as to the operation of the Validation Act. The Validation Act “does no more than attribute the consequences of legal validity to things done by [ICAC]”: Duncan at [15]. It “attach[es] new legal consequences and a new legal status to things done which otherwise would not have had such legal consequences or status”: Duncan at [25]. The Act is not directed to legal proceedings, let alone targeted to a particular person or small class of persons. It operates at a stage prior to the commencement of criminal proceedings.

138. For those reasons, I would reject this aspect of the summons. That extends to dismissing the application for declaratory relief in respect of the findings, statement and conduct of ICAC. I did not understand the applicants to advance any separate case in that respect. The breadth of the language in the Validation Act extends to all of the things sought to be the subject of declaratory relief as amended.

Remaining issues

139. An issue argued elaborately before the primary judge was whether the Court Attendance Notices issued to Sandra and Michelle in 2013 were valid, because they were issued in the name of an officer of ICAC, although it seems (from what is said in his Honour’s reasons, not to mention the parties to the proceedings) that the Director of Public Prosecutions took over the prosecution pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW). His Honour dealt with this at [69]-[101].

140. A much narrower, not to mention somewhat muted, challenge was made in this Court. In the summons, the question was confined to whether the Court Attendance Notices which had been signed by an officer of ICAC were invalid. That submission was developed in the written submissions of Sandra and Michelle in one sentence (in paragraph 57), to the effect that in addition to the documents and evidence which had been obtained without lawful authority, it was also contended that “the criminal proceeding was initiated by Court Attendance Notices executed by an officer of ICAC without lawful authority.” The same point was made orally, and briefly.

141. I did not understand any separate submission to be made by the applicants in relation to the Court Attendance Notices, except that if the Validation Act were invalid, then there was jurisdictional error because the originating process in the Local Court was invalid.

142. In those circumstances, the submission can be addressed concisely. Once again, I am doubtful that on any view of the matter there was any jurisdictional error. There is no question that the District Court’s jurisdiction was validly engaged by Sandra’s and Michelle’s notices of appeal. The District Court was authorised to decide whether the Court Attendance Notices were invalid, and, if so, the consequences upon the convictions. Even if the applicants’ submissions on construction or validity were accepted, my present view is that that falls short of jurisdictional error. However, as stated above, I would not, given the way the argument was developed in this Court, decide the summons on this basis.

143. Either the Court Attendance Notices were valid or they were not. If they were valid, the issue dissolves. If they were not, then for the reasons already given, the Validation Act applied to them in terms: cl 35(2(b). For the reasons already stated, this operation of the Validation Act gives rise to no question of constitutional invalidity. Accordingly, this relatively minor aspect of the summons stands and falls with the two issues of construction and validity determined above.

Conclusion and orders

144. On the main issue argued, the Validation Act is not invalid assuming it applies to the pending criminal proceedings brought by Sandra and Michelle. It follows that there is nothing to detract from the preliminary conclusion that on its proper construction, the Validation Act applies to those appeals. It follows that the summons must be dismissed. It was accepted that costs should follow the event.

145. I propose that:

1. Further Amended Summons filed 24 November 2016 be dismissed.

2. Applicants pay the costs of the First, Second, Third and Fourth Respondents (noting that the costs of the Third and Fourth Respondents are on the basis of a submitting appearance).

146. SIMPSON JA: What follows assumes a familiarity with the judgment of Leeming JA, which I have read in draft, and with which, subject to the following, I agree. The relevant history and facts are adequately to be found in his Honour’s judgment, and need not be repeated. For the reasons given by Leeming JA, I agree that the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (“the Validation Act”):

(i)  operates retrospectively to validate the steps taken in the prosecution of the criminal charges against each applicant; and

(ii)  is constitutionally valid.

147. The relief claimed by the applicants in the Further Amended Summons fell into two categories. In the first category, the applicants claimed orders under s 69 of the Supreme Court Act 1970 (NSW). In the second, they claimed declarations of the kind authorised by s 75 of the same Act.

148. Declarations of the kind sought by the applicant are authorised by s 75 of the Supreme Court Act 1970 (NSW), although, as Leeming JA has pointed out, such applications would ordinarily be brought in a Division of the Supreme Court and not this Court. It is because the applicants seek relief or remedy under s 69 of the Supreme Court Act in relation to a decision of the District Court that the proceedings are assigned to this Court: Supreme Court Act, s 48.

149. For the reasons given by Leeming JA, the claim for declarations ought to be refused. I wish only to add that no basis exists for relief under s 69.

150. The orders sought were framed in the following terms:

“1A Pursuant to s 69 of the Supreme Court Act 1970 (NSW), set aside or quash the order made by Zahra DCJ on 19 August 2016 declining to stay District Court proceedings numbered 2013/76236 and 2013/98654.

1B  In place thereof, order as follows.

1C  Quash the convictions on all counts of the first applicant entered on 27 November 2014 and the convictions on all counts of the second applicant entered on 23 May 2014.

1D  Order that District Court proceedings numbered 2013/76236 and 2013/98654 be permanently stayed.”

(The District Court proceedings referred to in Orders 1A and 1D were the appeals brought by the applicants against their convictions in the Local Court.)

151. It was not in issue that, although it was not known at the time, Operation Charity was beyond the power of the Independent Commission Against Corruption (“ICAC”), as explained in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14. What was in issue was the extent to which the Validation Act effectively validated what would otherwise have been invalid. In particular, the applicants contended that the Validation Act did not extend to validate anything done in respect of criminal proceedings that were on foot as at the date of the assent and commencement (6 May 2015) of the Validation Act. That encompassed the criminal proceedings against each applicant.

152. Although, in most cases, s 69 relief may be granted where jurisdictional error or error of law on the face of the record is established, where (as here) the decision in question is that of the District Court in its criminal jurisdiction, the jurisdiction is confined to jurisdictional error. Error of law on the face of the record is insufficient: Spanos v Lazaris [2008] NSWCA 74 at [12]-[15]; and see Kirk v Industrial Relations Court of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority NSW (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 at [55]; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 at [31]-[34] (affirming that the decision in Kirk did not affect the conclusion earlier stated in Spanos).

153. It was necessary, therefore, that the applicants establish jurisdictional error on the part of the primary judge. It is not easy to discern any jurisdictional error asserted by them, either by reference to the Further Amended Summons, the written submissions, or the oral submissions in chief. It was not until counsel replied to the submissions of ICAC, the Director of Public Prosecutions (“the Director”) and the Solicitor-General (intervening on behalf of the Attorney-General) that any identification of an asserted jurisdictional error was made. Senior counsel then said:

“The proposition being advanced is that the District Court cannot give itself power by construing cll 34 and 35 as having retroactive operation and ultimately as part of the task that it is currently engaged in affirm the conviction and/or the sentence or increase the sentence where there is no power to do so. The only power that it has in the circumstances is to uphold the appeal and quash the convictions.”

154. While I would accept that if an error of law in the construction of legislation were such that it gave rise to a purported exercise of jurisdiction not possessed by the court on the proper construction of the legislation, jurisdictional error would be established, that is not this case. The “order” the applicants sought to characterise as beyond jurisdiction was the determination of the primary judge to “decline to stay the proceedings against both [applicants]”, an order the primary judge made in response to their own applications. There were, in fact, no proceedings against either applicant; the only proceedings on foot at the time were their own appeals. The applicants do not appear to recognise that, if the District Court had jurisdiction to grant their permanent stay applications, it necessarily also had jurisdiction to refuse them. Nor do they appear to appreciate the circularity inherent in their conduct of the litigation. The applicants:

• invoked the jurisdiction of the District Court by instituting their appeals;

• again purportedly invoked the jurisdiction of the District Court in order to seek to have their own appeals permanently stayed; and

• invoked the jurisdiction of this Court in order to assert that the District Court lacked the jurisdiction they had purportedly invoked to determine their own permanent stay applications.

155. The District Court is a court of statutory jurisdiction. The jurisdiction that it was exercising was that conferred by s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). By that section, each applicant had a right of appeal to the District Court against her convictions in the Local Court. Each applicant availed herself of that right and initiated an appeal.

156. Examination of the proposition extracted above from counsel’s submission shows that, in fact, the assertion is merely that the circumstances of the case allow for only one result in the District Court – that the appeals be upheld. That is not to deny jurisdiction – it is an argument as to the merits of the applicants’ appeals. As with the permanent stay applications, if (as was expressly put by counsel for the applicants) the District Court had jurisdiction to allow the appeals, it necessarily also had jurisdiction to dismiss them. The applicants’ argument goes not to jurisdiction, but to the appropriate outcome of the applications.

157. In fact, if, on the applicants’ argument, any jurisdictional issue is raised, it is as to the jurisdiction of the Local Court. Again, however, the argument goes only to the merits of the prosecutions. The Local Court undoubtedly had jurisdiction to hear and determine prosecutions brought under ss 178BB and 300 of the Crimes Act 1900 (NSW) (as in Sandra Lazarus’ case) and under s 87 of the Independent Commission Against Corruption Act 1988 (NSW) (“the ICAC Act”) (as in the case of Michelle Lazarus). In each case, that was so whatever construction is placed upon the Validation Act.

158. If the applicants were correct in their construction of the Validation Act, Michelle Lazarus was entitled to an acquittal, because the prosecution would be unable to prove an essential element of the charges against her – that she gave false or misleading evidence to a public inquiry or compulsory examination (validly) conducted under the ICAC Act. That that would be the inevitable result says nothing about jurisdiction.

159. In the case of Sandra Lazarus, acceptance of the construction placed upon the Validation Act propounded on behalf of the applicants would entitle her to a re-hearing of the charges, with the issue of the admissibility of the evidence obtained under the coercive powers of ICAC to be determined under s 138 of the Evidence Act 1995 (NSW).

160. Neither consequence is jurisdictional. And, in either case, the appropriate route to determination was pursuit of the appeals under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW).

161. It is not to be overlooked that the jurisdiction in question in these proceedings is that of the District Court. Just as the Local Court undoubtedly had jurisdiction to hear and determine the charges against each applicant, the District Court undoubtedly had jurisdiction to hear and determine the appeals by each applicant – and had that jurisdiction even if those convictions were entered in excess of the Local Court jurisdiction (which, as I have just explained, they were not).

155. Nothing I have said should be taken as acceptance of the proposition that the District Court had jurisdiction to entertain the applications for permanent stay of the appeals. To adopt the language of Leeming JA, that was “legal nonsense”. A stay of proceedings is a remedy available to an opposing party in proceedings; it is entirely inapt as a remedy to be invoked by the initiating party. In the circumstances of this case, such a course presents particular difficulties. By s 63(2)(a) of the Crimes (Appeal and Review) Act, on an appeal being lodged against a conviction in the Local Court, execution of the sentence imposed is stayed (pending the determination of the appeal) and (subject to any order of the District Court) the stay continues in force until the appeal is finally determined (s 63(3)). A permanent stay of the applicants’ appeals would result in converting a temporary stay granted by statute into a permanent stay (of execution of the sentences), without determination of the appeals. The convictions would remain, the sentences would be permanently stayed and finalisation of the criminal process would be thwarted.

156. The applications for permanent stay were certainly an abuse of process; whether they were outside the jurisdiction of the District Court was not argued and need not be decided.

157. The proceedings for permanent stay of the appeals in the District Court were misconceived, as were the proceedings in this Court insofar as they relied upon s 69 of the Supreme Court Act. No jurisdictional error has been shown. For those reasons, in addition to those given by Leeming JA, I agree that the Further Amended Summons ought to be dismissed.

**********

Amendments

08 March 2017 - Coversheet - correct solicitor for second respondent

08 March 2017 - Coversheet - correct solicitor for Attorney-General for NSW

25 September 2017 - Coversheet - references to ACMA v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, Bunning v Cross (1978) 141 CLR 54, Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 and Gedeon v R [2013] NSWCCA 257, added.

Coversheet - "Independent Commission Against Corruption Act 1987 (NSW)" corrected to "Independent Commission Against Corruption Act 1988 (NSW)"

[7] "Independent Commission Against Corruption Act 1987 (NSW)" corrected to "Independent Commission Against Corruption Act 1988 (NSW)"

[21] "Cuneen" corrected to "Cunneen" in indented quote

[39] "Boensch v Commissioner of Fines Administration [2017] NSWCA 17" corrected to "Boensch v Commissioner of Fines Administration [2017] NSWCA 13"

[57] "Commissioner" replaced by "Commission"

[88] "of the Crimes Act 1914 (Cth)" inserted following "s 15X" in line four

[92] "of the Jury Act 1936 (Tas)" inserted following "New subs 48(1)" in line five

[122] "cl" replaced by "cll" in line six of the indented quote

[130] line two corrected from "... based on the transcript of what Michelle's evidence ..." to "... based on the transcript of Michelle's evidence ..."

[131] "Kiefel J" replaced by "Crennan J"

[132] Paragraph reference corrected from "[235]-[236]" to "[235]"

[137] "Thirdly" corrected to "Fourthly"

[138] Final sentence corrected from "... extends to all of the things sought to be the subject to declaratory relief" to "... extends to all of the things sought to be the subject of declaratory relief"

16 October 2017 - [152] Correct citation - "Industrial Relations Commission" replaced by "Industrial Court of New South Wales"

[156] "counsel for the applicant" replaced by "counsel for the applicants"

[160] "District Court Act 1973 (NSW)" replaced by "Crimes (Appeal and Review) Act 2001 (NSW)"

Decision last updated: 16 October 2017