PRS v Crime and Corruption Commission - [2019] QCA 255

SUPREME COURT OF QUEENSLAND

CITATION:

PRS v Crime and Corruption Commission [2019] QCA 255

PARTIES:

PRS
(appellant)
v
CRIME AND CORRUPTION COMMISSION
(respondent)

FILE NO/S:

Appeal No 4172 of 2019
SC No 9644 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2019] QSC 83 (Davis J)

DELIVERED ON:

19 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2019

JUDGES:

Morrison and McMurdo JJA and Bradley J

ORDERS:

1. Appeal dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – OTHER MATTERS – where the appellant in the first instance applied for injunctive relief against the respondent – where the application arose out of an investigation into alleged corrupt conduct by a person (ABC) who held an appointment in a unit of public administration – where an investigation by the respondent concerned dealings between the appellant and ABC – where the application in the first instance was dismissed – where the appellant seeks to appeal the decision to dismiss the application – where fourteen grounds of appeal were initially articulated in the amended notice to appeal, but were subsequently grouped into six grounds – where it is contended that the court erred in failing to order the respondent to provide disclosure of documents – where it is contended that the court erred in failing to allow the appellant leave to amend the orders sought – where it is submitted that the court erred in finding that the investigation had concluded at the relevant time and that the court therefore had no power to grant injunctive relief pursuant to s 332 of the Crime and Corruption Act 2001 (Qld) – where it is argued that the court erred in finding that a police officer seconded by the respondent had the power to charge the appellant in relation to a corruption offence – where it is submitted that the court erred in finding that it should not embark upon a consideration of the appellant’s complaint as to unfairness – whether the learned primary judge erred in the first instance pursuant any of to the appealed grounds

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – EXERCISE OF POWERS AND DUTIES – GENERALLY – where the learned primary judge concluded that the investigation of the respondent had concluded and the court therefore had no power to grant injunctive relief pursuant to s 332 of the Crime and Corruption Act 2001 (Qld) – where the appellant argues that for the purposes of s 332 the relevant time for deciding whether an investigation is on foot or not is the time at which a person “claims” one of the two bases under s 332(1) Crime and Corruption Act 2001 (Qld) – where it is contended that the interpretation of the s 332 of the Crime and Corruption…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCA 255
Decision Date: 19 November 2019

CaseChat Overview and Summary

The case of PRS v Crime and Corruption Commission involved an appeal by PRS against the decision of the trial judge to dismiss an application for injunctive relief against the Crime and Corruption Commission (CCC). The appeal arose from an investigation into alleged corrupt conduct involving ABC, who held an appointment in a unit of public administration. The primary judge dismissed the application, and PRS sought to appeal this decision, raising several grounds for appeal. The appeal was heard by McMurdo, Morrison, and Bradley JJA in the Queensland Court of Appeal.

The legal issues in the case centred around whether the primary judge erred in failing to order disclosure of documents, allowing PRS leave to amend the orders sought, finding that the investigation had concluded and thus the court had no power to grant injunctive relief under s 332 of the Crime and Corruption Act 2001 (Qld), finding that a police officer seconded by the CCC had the power to charge PRS in relation to a corruption offence, and finding that the court should not consider PRS's complaints of unfairness. The appeal also involved interpretation issues regarding s 332 of the Crime and Corruption Act 2001 (Qld).

The Court of Appeal found that all grounds of appeal failed. McMurdo JA concluded that the arguments regarding the police officer’s powers and the interpretation of s 332 of the Crime and Corruption Act 2001 (Qld) did not hold merit. Morrison JA and Bradley J agreed with the reasoning of the primary judge, who had concluded that the investigation was complete and that the court had no jurisdiction to review the investigation’s conduct or to grant injunctive relief. The court held that the complaints of unfairness were inappropriate for review as the investigation was complete, and any issues regarding the investigation's fairness would be addressed in the criminal court if PRS was charged.

In conclusion, the appeal was dismissed, and PRS was ordered to pay the CCC's costs of and incidental to the appeal. The judges agreed that the primary judge's decision to dismiss the application for injunctive relief was correct, and no grounds for appeal were substantiated.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground fails.Conclusion As all grounds have failed, the appeal should be dismissed with costs. I propose the following orders:1.Appeal dismissed.2.The appellant pay the respondent’s costs of and incidental to the appeal. McMURDO JA: Morrison JA has discussed thoroughly the extensive arguments of the appellant, and I need not repeat them. Grounds 6 to 11 have been somewhat overtaken by the event of the appellant being charged with the offence of corruption, after the primary judgment and before the hearing of this appeal. Nevertheless the appellant persists in his case that Detective Sergeant Edwards, as a police officer who had been seconded to the Commission, should not have been involved in a decision to bring that charge. This was because, it is argued, Detective Sergeant Edwards was not entitled to use information which he had obtained in his work on secondment to the Commission for the purpose of considering whether to charge the appellant. No specific statutory limitation to that effect, on the exercise of the powers of a police officer, is identified in the appellant’s argument. Further, the argument is difficult to reconcile with the terms of s 192 of the Crime and Corruption Act 2001. I refer there to the terms of s 192 prior to the addition of sub-section (7), which counsel for the Commission conceded did not operate in this case, because the investigation and the other use of the Commission’s powers was completed prior to the commencement of that amendment. The arguments in support of those grounds overlook the distinction between the Commission and a police officer. This charge has been made by Detective Sergeant Edwards, and not by the Commission. The Commission has no power to direct the police officer to discontinue that charge. The appellant’s arguments, if they otherwise have any merit, are for another day in a case to which the prosecutor is a party. I agree with the reasons of Morrison JA on the other grounds of appeal, and with the orders which his Honour proposes. BRADLEY J: I agree with the reasons of Morrison JA in respect of grounds 1 to 5 and 12 to 14. I agree with his Honour’s conclusions as to the factual evidence in respect of grounds 6 to 11. I agree with the reasons of McMurdo JA in respect of grounds 6 to 11. In the circumstances, I also agree with the orders proposed by Morrison JA for the disposition of the appeal.

Ratio Decidendi

Legal Principle Established

This ground fails.Ground 14: failure to embark on a consideration of the appellant’s complaints Counsel for PRS contended that the learned primary judge declined to consider the complaints as to the unfairness of the investigation carried out by the CCC. It was said that there were a number of bases upon which the inquiry was conducted in an unfair way, particularly in its failure to allow PRS, by his legal representatives, to cross-examine the witnesses called in the course of that investigation. The contention was that the duty of procedural fairness arose because the power involved was one which may destroy, defeat or prejudice a person’s rights, interests, or legitimate expectations. In this regard, reliance was placed on Ainsworth v Criminal Justice Commission.[76] The contention was that because PRS’s conduct had been the subject of examination in relation to potential criminal conduct, and other witnesses had given evidence relevant to that conduct, the requirements of fairness dictated that the PRS should have an opportunity to cross-examine those witnesses.[76](1992) 66 ALJR 571. The respondent contended that the requirements and dictates of procedural fairness varied from case to case, informed by the legislative purpose and context, and the nature of the power or function being exercised.[77] The decision in Ainsworth was distinguishable because the party there had been given no notice or opportunity to respond to findings made against them. Here, it was said, closed coercive hearings were held as part of an investigation and PRS attended with his legal representation, and answered questions under compulsion and had evidence put to him. Nothing further was required, it was submitted. Reliance was placed upon National Companies and Securities Commission v News Corporation Ltd.[78][77]Referring to Kioa v West (1985) 159 CLR 550 at [585], and Duncan v Independent Commissioner Against Corruption [2016] NSWCA 143 at [688]-[693].[78](1984) 156 CLR 296. The learned primary judge made findings that the investigation in respect of PRS was complete and that there was no current investigation on foot.[79] His Honour considered whether there was jurisdiction to review decisions made in the course of a criminal investigation, and noted that any such relief was discretionary.[80] His Honour’s conclusions were:[81]“[33] Here, discretionary considerations point inevitably towards the refusal of relief. The further exercise of coercive investigative powers against the applicant is not contemplated. The investigation is complete. Any court exercising criminal jurisdiction, once the applicant is charged, has power to exclude evidence improperly obtained (see: Bunning v Cross and Police v Dunstall) and to regulate any prosecution, even to the point of ordering a permanent stay if that is necessary in the interest of justice (Jago v District Court of New South Wales). For an example of a case where the conduct of coercive examinations led to a permanent stay of subsequent criminal proceedings, see: Strickland v DPP (Cth).[34]Any impact of the conduct of the investigation under the CCC Act upon criminal proceedings brought against the applicant, is a matter for the assessment of the court in which those criminal proceedings are brought. It is for that court to fashion any relief which might be thought to be necessary. No purpose is served by me on an application such as the present, reviewing the various complaints made by the application and then expressing views. Indeed, any views that I might express now might influence any decision made in the criminal court. That is inappropriate. For these reasons it is undesirable that I review the material and express views. Review of the complaints is unnecessary and inappropriate as I have concluded that there is no current investigation and no basis, whether under s 332 of the CCC Act or otherwise, to grant injunctive relief concerning the exercise of the CCC’s investigative powers.”[79]Reasons below at [27], [28] and [34].[80]Reasons below at [32].[81]Reasons below at [33]-[34]; internal citations omitted.

CITATION:	PRS v Crime and Corruption Commission [2019] QCA 255
PARTIES:	PRS (appellant) v CRIME AND CORRUPTION COMMISSION (respondent)
FILE NO/S:	Appeal No 4172 of 2019 SC No 9644 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2019] QSC 83 (Davis J)
DELIVERED ON:	19 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2019
JUDGES:	Morrison and McMurdo JJA and Bradley J
ORDERS:	1. Appeal dismissed. 2. The appellant pay the respondent’s costs of and incidental to the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – OTHER MATTERS – where the appellant in the first instance applied for injunctive relief against the respondent – where the application arose out of an investigation into alleged corrupt conduct by a person (ABC) who held an appointment in a unit of public administration – where an investigation by the respondent concerned dealings between the appellant and ABC – where the application in the first instance was dismissed – where the appellant seeks to appeal the decision to dismiss the application – where fourteen grounds of appeal were initially articulated in the amended notice to appeal, but were subsequently grouped into six grounds – where it is contended that the court erred in failing to order the respondent to provide disclosure of documents – where it is contended that the court erred in failing to allow the appellant leave to amend the orders sought – where it is submitted that the court erred in finding that the investigation had concluded at the relevant time and that the court therefore had no power to grant injunctive relief pursuant to s 332 of the Crime and Corruption Act 2001 (Qld) – where it is argued that the court erred in finding that a police officer seconded by the respondent had the power to charge the appellant in relation to a corruption offence – where it is submitted that the court erred in finding that it should not embark upon a consideration of the appellant’s complaint as to unfairness – whether the learned primary judge erred in the first instance pursuant any of to the appealed grounds STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – EXERCISE OF POWERS AND DUTIES – GENERALLY – where the learned primary judge concluded that the investigation of the respondent had concluded and the court therefore had no power to grant injunctive relief pursuant to s 332 of the Crime and Corruption Act 2001 (Qld) – where the appellant argues that for the purposes of s 332 the relevant time for deciding whether an investigation is on foot or not is the time at which a person “claims” one of the two bases under s 332(1) Crime and Corruption Act 2001 (Qld) – where it is contended that the interpretation of the s 332 of the Crime and Corruption…