R & Anor v Independent Broad-Based Anti-Corruption Commissioner

[2015] HCATrans 293

[2015] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M234 of 2015

B e t w e e n -

R

First Applicant

M

Second Applicant

and

THE INDEPENDENT BROAD‑BASED ANTI‑CORRUPTION COMMISSIONER

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 NOVEMBER 2015, AT 10.15 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR O.P. HOLDENSON, QC, for the applicants.  (instructed by Tony Hargreaves & Partners)

MR E.W. WOODWARD, SC:   If the Court pleases, I appear with MS J.M. DAVIDSON, for the respondent.  (instructed by Independent Broad‑Based Anti‑Corruption Commission)

FRENCH CJ:   Thank you.  Yes, Mr Grace.

MR GRACE:   Your Honours, this application raises the issue of a potential prosecutor of the applicants being able to compulsorily and publicly examine on oath the applicants who the Chief Commissioner of Victoria Police reasonably believes to have committed serious criminal offences punishable by imprisonment in circumstances – and, to use the words of the IBAC Commissioner, prima facie involves acts that border on gratuitous brutality.

The IBAC Commissioner has been appointed the primary investigator by Victoria Police and you will see that in volume 2 of the application book at pages 447 and 478.  In terms of the IBAC Act, the Commissioner will not afford the applicants the rights and privileges that ordinary citizens of the State of Victoria would otherwise enjoy if they were believed to have committed such offences and arrested and interviewed in respect of those pursuant to the relevant provisions of the Crimes Act (Vic) which, as your Honours would be aware, is replicated in all States and Territories of Australia and within the Commonwealth law.

At the outset, it is important to note that the IBAC Act was enacted prior to the decisions of this Court in X7, Lee v NSW Crime Commission, Lee v R, Zhao and CFMEU.  Those decisions have not resulted in any legislative amendments to the IBAC Act to date and, as your Honours would be aware, X7 caused the Commonwealth of Australia to amend the Australian Crime Commission Act to overcome certain aspects of the decision in X7.  There has not been the same reaction in Victoria.

KEANE J:   Well, that might be because the IBAC Act does not authorise investigations where judicial proceedings have been commenced and in the present case judicial proceedings have not been commenced.  There is a view, some might think it the orthodox view, that the cases that you have mentioned turn on the attempt to exercise powers or the conferral of powers of investigation that affect or trench upon proceedings that have been commenced in court.

What do you say about the basis of those decisions?  Are those decisions statements of a broader principle than the principle that focuses on whether there is an interference between the investigative power that is conferred and judicial proceedings?  Is there a broader principle that is at play and, if so, what is it?

MR GRACE:   Yes, we say there is a broader principle and that was recognised, although it did not fall for decision, in those cases, and the reason it did not fall for decision was because in each of those cases – Lee (No 1), Lee (No 2), X7 – judicial proceedings had been instituted against the applicants.

As was identified by Justices Hayne and Bell and Kiefel in X7, and has been recognised subsequently in CFMEU v Boral by Justice Nettle, the accusatorial process commences prior to charge.  It extends beyond the mere commencement of the accusatorial judicial process.  It commences when there is a suspicion or a belief on the part of an investigating official that a criminal offence has been committed.  Hence, you have those provisions ‑ ‑ ‑

FRENCH CJ:   On that basis, it could be commenced when somebody at IBAC forms such a suspicion and decides to initiate an investigation. 

MR GRACE:   Well, it could, but just take this one step further.  If IBAC was to have that view about particular conduct of a public official it would be an easy way to circumvent the rights and privileges of that particular individual to conduct a no motion investigation without those privileges and rights being able to be exercised by that individual.  Now, we say that ‑ and one does not need to look further than three particular paragraphs in X7 at paragraphs 104, 106 and 118 in the joint judgment of Justices Hayne and Bell, that the accusatorial process clearly includes the investigation stage.

The Court of Appeal ‑ and the respondent adopts this ‑ suggests that the applicants are part of some amorphous group of persons who may or may not be of interest or suspected or possibly of interest in respect of alleged criminal conduct.  Nothing could be further from the truth in relation to this particular case.  You will see that phraseology used at paragraph 38 of the Court of Appeal’s judgment at volume 1 of the application book at page 122, and you will also see as a matter of interest the affidavit at volume 2 of the application book at page 570 the affidavit of Mr Sutton who is a person employed by the IBAC who sets out at page 570 what he says the video of the CCT footage which identifies what the Commissioner has described as gratuitous brutality shows.

You will see in (v) at line 33 on page 570 of volume 2 what it is that is alleged against the applicants, the applicants being referred there as plaintiff 1 and plaintiff 2, person A being the victim.  Now, if that is true ‑ and we do not need to enter into a debate about whether it is merely an allegation because you have the video footage which the IBAC officer, on oath, says shows all of this.  Now, if that meets the description of gratuitous brutality, then this is not mere speculation that we are talking about.  We are talking about here an investigation of serious criminal conduct, where the rights of the accused are denied.

Now, the interpretation of the IBAC Act provisions by the court below fundamentally alters the process of criminal justice without, we say, legislative warrant.  An analogy, of course, can be made – and this Court recently discussed it in Beckett, which was delivered in the last few weeks – where the common law offence of attempting to pervert the course of justice can arise, of course, in relation to acts that occur pre the substantive charge that is sought to be perverted.  Those pre‑offence acts give rise to an element of the offence, and they may affect the outcome of a trial for the substantive offence.  We say that at every stage of the criminal justice process, it involves an accusatorial process until verdict.

KEANE J:   Mr Grace, you have taken us to the passage at page 570, and the point you make, as I take it from what you are saying, is that there is a strong case against your clients.

MR GRACE:   Yes.

KEANE J:   How does the strength of the case that IBAC can make when it decides to use the powers in 115 bear upon the question of when the accusatorial process begins?

MR GRACE:   It was in answer to your Honour’s question as to whether the process that we are talking about commences at the time of the commencement of the investigation, rather than at the time of the commencement of any criminal charges.

KEANE J:   Is your contention that when the evidence is so strong that a prosecution is inevitable, that is the point at which you say the accusatorial process can be taken to have commenced, even though no charge has been laid?

MR GRACE:   At least that.  If the construction of the legislation does not admit of a wider application, then it at least involves a consideration of at what stage of the accusatorial process, and what the substratum of facts are that support the investigation in the first place involve.

At least in the circumstances of this case, this summons to compel the applicants to attend for examination should not have been issued because the Act, in its terms, has not provided for this situation.  It is a fundamental alteration to compel individuals – in the form of these applicants – to attend for examination in these circumstances.

FRENCH CJ:   One can talk in general terms of an accusatorial process as embracing pre‑charge investigations but it is a somewhat greyer area, is it not, than that which was contemplated in the cases you have referred to where there has been a charge laid. 

MR GRACE:   Yes.

FRENCH CJ:   Then, of course, that becomes a matter of – as we saw in X7 and Lee – statutory constructions, is the statute sufficient to displace the normal common law principles.  The question does not arise quite so acutely, does it, in the investigative context?  This is just another investigator, albeit one with certain powers subject to certain protections.

MR GRACE:   One could easily say that if these examinations are allowed to continue, then the type of protections that your Honours were talking about in those succession of cases in recent years, are of no avail.  That is highlighted by the differences in the IBAC legislation as compared to the legislation that your Honours were considering in those cases.  For instance, under the IBAC Act, there is no restriction on the publication of the fruits of the investigation, including evidence obtained in the examinations, and that can be distributed to Victoria Police or the DPP, for instance, or other prosecutorial bodies.

The examination is not conducted by a judicial officer which inform the constructional choice that your Honour the Chief Justice made in Lee (No. 1).  It was a close call, one would have thought, in your Honour’s mind at the time from reading between the lines.  I may be presuming too much.  But, your Honour said that your constructional choice was – or you are more confident in adopting your constructional choice because there was the protection of the safeguarding of a future criminal trial by the fact that the person presiding over the examination was a judicial officer as against a member of the Executive.

The third difference is that uniquely, in this legislation, the examiner himself may decide to prosecute.  So, all the protections that the companion rule is said to provide to a person subject to the normal investigation process, are lost.  Your Honours may be aware of the furore that is being created at the moment in New South Wales with the suggestion that ICAC be provided with a prosecutorial power.  Well, it exists in this legislation.

You can see how it plays out by how it can play out in actuality.  The holding of the examination in public additionally provides an additional lack of safeguard for the individual, and purports to legitimise that which

this Court in Lee (No 2) found to negate the fairness of the trial by placing in the arms of the prosecutor a body of material the prosecutor would not otherwise have.  That shifts the balance of power between the prosecutor – between the prosecution, or the Crown, and the individual.

So, the question in this case, at least in relation to the companion rule as to whether it has been abrogated, must be considered by analysis of the relevant statutory provisions.  We say, simply, that the words of the IBAC Act fail to state in sufficient clarity, or by way of necessary implication, that for which the respondent contends, and that which the Court of Appeal below held.

We say that the companion rule, at the very least, as enjoyed otherwise by these applicants is purportedly abrogated on the respondent’s argument and in the judgment of the court below by – through an absence, or by way of general statutory provisions which are not specific, as this Court discussed as being required in X7 and Lee (No 1) and Lee (No 2) and so on, and that purported fundamental operation is said to be implied in relation to legislation that was enacted prior to these cases being decided.  The fundamental alteration, we say, your Honours, is informed by the practical content of the results that would occur if this decision stands uncorrected.

So, we say this is a proper vehicle for the grant of special leave.  The ramifications of the decision will be that persons in similar positions to these applicants will be examined.  It is a real matter of public importance ‑ ‑ ‑

KEANE J:   I do not think you need to worry about how important it is.

MR GRACE:   Yes.  So, we contend that special leave is appropriate to be granted in this matter, your Honours.

FRENCH CJ:   Yes, thank you.  Yes, Mr Woodward.

MR WOODWARD:   Your Honour the Chief Justice asked my learned friend, or put to my learned friend, that an officer at IBAC could well form the view that a person they want to examine or investigate was someone who might have committed a criminal offence.  The key feature of this Act, your Honours, which in our submission – or perhaps, put it differently – the best example of why the construction that is urged upon your Honours by our learned friends is untenable comes from the fact that in respect of the serious ‑ of the corrupt conduct jurisdiction under this Act, the IBAC officer or IBAC itself must form the view that the person it is seeking to investigate has committed a serious criminal offence before it can even commence an investigation.  It is in those circumstances, your Honours, when you step back from the particular circumstances of this case ‑ ‑ ‑

FRENCH CJ:   I was putting that, obviously, to Mr Grace in the context of the contention about the engagement of an accusatorial process.

MR WOODWARD:   Yes, and we certainly accept, your Honour, that the accusatorial process does – as your Honour put in a very general sense – commence at the point at which – and the language our learned friends use in their submission – reasonably believe to have committed a criminal offence – one can see enormous difficulty in trying to draw a line in the sand, as it were, pre‑charge, as to where a point is reached between a general belief that someone may have committed a criminal offence and serious risk of prosecution.

But, fundamentally, your Honours, in this case, the structure of the Act particularly when one looks at the corrupt conduct jurisdiction and, of course, the Act will apply equally in both, is such that the way that the legislation is structured does mean that under the definition of “relevant offence” your Honours will have seen that there must be an indictable offence or other serious criminal offence.  Under section 60 of the Act the Commissioner cannot commence an investigation unless it is satisfied there is “serious corrupt conduct”.  “Corrupt conduct” under section 5 is conduct where, if the facts are proved, the Commission is satisfied that there is a reasonable likelihood of a relevant offence, namely, an indictable offence. 

So, what that gets to in terms of the operation of the Act in the corrupt conduct jurisdiction is that one does not even get to commence an investigation until one forms the view that someone is reasonably believed to have committed a criminal offence.  In our submission, it must follow, your Honours, from that fact that the Act clearly contemplates at least pre‑charge and, arguably, under section 70 post‑charge, that the investigation must be able to extend to the examination of ‑ ‑ ‑

KEANE J:   So, you say, that insofar as clear language is required to pare back the accusatorial principle, the companion principle that Mr Grace spoke of, it is here.

MR WOODWARD:   It is.  Yes, your Honour, we say that.

KEANE J:   It is necessarily here in the statute.

MR WOODWARD:   It is, and if one steps back again from the particular circumstances of this case and that can – that has the capacity to perhaps, to some extent, cloud the issue because one knows from the description of what occurred that there are other police officers in the vicinity and one can talk about, well, we do not need to examine these two individuals in order to find out what happened.  But, again, if we move to the serious corrupt conduct jurisdiction, one would assume that in many cases where a public officer is involved in corrupt conduct it is going to be covert. 

In those circumstances, it may be that the only person who can usefully be examined in relation to that conduct are those engaging in the conduct.  They are the only ones – one can think of many examples of where that would arise, where the only people who can shed light on the issues that the IBAC determines to investigate are those who are engaged in the conduct.  There will be many examples of situations where you do not have the other witnesses available to explain that this was a false invoice or whatever the circumstances are.  In those circumstances, in our submission, the whole structure of the Act and the fact that it requires the existence, not only of corrupt conduct which involves a criminal offence but serious corrupt conduct, before an investigation can even begin that, in our submission, the language is quite clear.  That is even before you get on to section 70 of the Act which, in our submission, rates the issue, if it needed to be even more clearer.

FRENCH CJ:   I suppose the question of the intersection of compulsory investigative powers with a circumstance in which an investigation has commenced but no charges have been laid is something which has not really been directly addressed.  I mean, there are inferences that may be drawn about the accusatorial process and the general principles enunciated in X7 and Lee and so on.  I am just looking at that as a matter of importance, as it were, in the context of a special leave application, regardless of the merits of your argument.

MR WOODWARD:   Your Honour, I understand what your Honour says.  In my submission, this is particularly because of section 70 in the Act, which deals explicitly with the accusatorial judicial process, in our submission.  This Act, at least, is not a suitable vehicle for the examination of that issue, which, in any event, your Honour, we would submit – it is at page 257 of court book 1 ‑ ‑ ‑

FRENCH CJ:   Does section 70 actually explicitly deal with the situation of an examination of a person charged?  It does not, really, does it?

MR WOODWARD:   In our submission, it does, your Honour.

FRENCH CJ:   It does not in terms.

MR WOODWARD:   It does not in terms, but it does in the sense that IBAC may commence or continue to investigate.  The term “investigate” in that sense, we would submit, is used as a term apart and necessarily ‑ ‑ ‑

FRENCH CJ:   It calls in all the powers.

MR WOODWARD:   It calls in all the powers, including the powers of examination in 115 and following.  Indeed, it is supported, if I may say, your Honours, by section 60, again in the corrupt conduct jurisdiction – I beg your pardon, in section 15, the functions of the Act, where, if one looks at – this is at page 200 of the book, your Honours.  Section 15(2) confirms, for instance, that one of its functions is to:

investigate serious corrupt conduct –

and then (3) –

Without limiting the generality of subsection (2) –

one then goes (a), (b), (c) to hold examinations.  In our submission, that is an integral part of the investigation process.

FRENCH CJ:   It is just that one would have expected to have seen some explicit reference to a power to continue an examination of a person notwithstanding that the person has been subject to a charge which is the – I cannot remember how it went in Lee; I think in Lee there were some express provisions, apart from the judicial officer exercise ‑ ‑ ‑

MR WOODWARD:   Your Honours looked at the operation and checks in section 63 of the Criminal Assets Recovery Act and, in my submission, section 70 is in even stronger terms than section 63 in terms of confirming the clear intention of the legislature, which incidentally is also identified in the statement of compatibility.  The legislature has directly engaged with this issue and has enacted section 70 against the background of – my friend says Lee and so on were not decided, but Hammond was decided, Hamilton was decided, Sorby was decided.  All of those cases were cases that were no doubt in the minds of the parliamentary drafters in the way they approached the Act, and section 70 is the response to those principles, in our submission, in clear terms.

FRENCH CJ:   I notice section 70 comes in – this is a kind of side wind in the sense that you are using it to displace a suggestion that an examination – sort of an a fortiori argument that if you can continue an investigation when the charge has been laid, then a fortiori, you can carry on when there is an investigation going on.

MR WOODWARD:   Exactly, and no charge.

FRENCH CJ:   It depends on, I suppose, what construction you put on section 70.  One view of section 70 would simply be that the power of investigation is not, as it were, extinguished because the matter is the subject of charges, silent as to whether the power is affected in relation to examination of a person charged.

MR WOODWARD:   Yes.  Of course, section 70, your Honours, is not the only provision that provides the protections.  We say in subsection (2) it does provide protections in relation to the operation of the examination power but, of course, the actual privilege against self‑incrimination itself and the protections ‑ ‑ ‑

FRENCH CJ:   144.

MR WOODWARD:   ‑ ‑ ‑ in 144, and the way in which the Commissioner can report and so on.  Indeed, in respect of examinations, your Honours, one should not overlook sections 116 and 119 that provide the examiner with capacity to take the sort of steps that were ‑ page 296 of the book, your Honours ‑ to regulate the procedures of the examinations and also, in section 119, to give directions about who may be present.  So one would envisage that, in a case of applying the operation of section 70(2) one would be in a situation where you would expect that those sorts of orders would be made.  One would expect probably a challenge if they were not in respect of ‑ ‑ ‑

FRENCH CJ:   I mean, section 70(2) may be directed against possible prejudice, which can occur in a variety of ways.  It is not confined to the notion of prejudice to the person charged.

MR WOODWARD:   No.  That is so, your Honour, yes.

FRENCH CJ:   Again, that relates to the point I made earlier, I suppose, that you do not lose your total investigation power, but the questions may still remain depending on your construction of section 70 as to whether your power to examine a person charged is protected or continue ‑ ‑ ‑

MR WOODWARD:   Yes.  And, your Honour, one could certainly envisage that, in that case, a person charged where section 70 is engaged that those sorts of steps might need to be carefully considered.  Obviously, one would have thought it would be an examination in private with appropriate restrictions, and so on.  But, I mentioned before, your Honours, your Honours’ reliance in X7 on the operation of section 69 in that case.  Your Honours may recall, the Court of Appeal made the comment that, accepting that the provisions are quite different in terms, they were fortified in their decision in relation to the non‑application – or the non‑acceptance of our friend’s submission in relation to section 63.

Your Honour Justice Keane, together with Justice Gageler, dealt with that at paragraph 332 as accepting that that was a clear legislative intention evinced there to abrogate the privilege to the extent necessary to enable these legislative powers, clearly articulated, in our submission, to be furthered.  As I say, it would be our submission that, to the extent that there is a comparison, the wording of section 63 of the CAR Act is, in some respects, even more oblique in that regard than section 70.

Your Honours, can I deal with two particular matters.  Our learned friend began by asserting that the police commissioner has appointed the IBAC Commissioner as the principal investigator.  A box has been ticked in a form by the police commissioner in relation to its investigation of these individuals.  But, of course, what the police commissioner may do in relation to their dealing with the matter has nothing whatsoever to do with what IBAC itself – its role is – which is, obviously, set out not only in sections 8 and 15 of the IBAC Act but also clearly articulated in the various documents that have been established.  The role of the IBAC in this investigation is not to conduct a criminal investigation on behalf of the police.  That is not, on any view, supported by the evidence, in our submission.

If I may, your Honours, the other matter that our learned friend referred to – and in somewhat critical terms in relation to the decision of the Court of Appeal in relation to identifying the amorphous group of people pre‑charge and how one draws a line at that point.  In my submission, what the Court of Appeal said at paragraph 38:

The laying of the charge places the accused in a particular defined category of persons, who are the subject of the processes described in X7 ‑

is precisely the answer to that suggestion.  We dealt with our friend’s interests and submissions on the operation of section 190 in our written submissions, your Honours, and we do not wish to add anything – it is just part of a suite of provisions that, on one view, has no real practical difference to the power of the Commission to provide, if it chose to, as much information as it wanted to, to a prosecutorial authority.  It does not alter or add an extra dimension to what would otherwise be a straightforward statutory construction issue.

The final thing perhaps to mention, your Honours, is to draw attention to – although it is not in itself in the documents, your Honours may have noticed that his Honour Justice Riordan at first instance set out, at page 39 of the appeal book, the statement of compatibility before the Parliament, which is a requirement in Victoria under the human rights

legislation, identifying that the Act does conflict with the Charter in relation to the right of a charged person – a right against self‑incrimination.

If any more assistance were needed in relation to the operation of the Act, in our submission, the statement of compatibility does make it crystal clear that the Parliament did engage with the very issues our learned friends have addressed and, specifically, in addition to the protections built into the Act, identify – and this is at line 50 on page 39 – the fact that there is the added layers of protection in relation to the decision by police officers as to how to use derivative material and, ultimately, the court itself in determining whether derivative material can be used to assist in a prosecution, remembering, of course, that section 144 itself contains a statutory limitation on direct immunity.

FRENCH CJ:   What do you say of the application of the interpretive rule under the Charter of Human Rights and Responsibilities ‑ ‑ ‑

MR WOODWARD:   I beg your pardon?

FRENCH CJ:   The interpretive rule.  You have had a statement of compatibility.

MR WOODWARD:   Yes.

FRENCH CJ:   But you have an interpretive rule, do you not, which also applies?  Or is that – are you just saying it is a principle of legality question?

MR WOODWARD:   Yes, that is right, your Honour, yes.  Unless there is anything else I can assist with, your Honours, that is ‑ ‑ ‑

FRENCH CJ:   Yes, all right.  We will not need to trouble you, Mr Grace.  There will be a grant of special leave in this matter.  Would you anticipate a day?

MR GRACE:   Yes, your Honour.

FRENCH CJ:   Do you agree with that?

MR WOODWARD:   Yes, your Honour.

FRENCH CJ:   It is possible the matter may be able to be listed for the second week of – or in the February sittings.

MR GRACE:   Yes.

FRENCH CJ:   There is a truncated timetable, which would enable you to be ready for that, which will be made available to you.

MR GRACE:   Yes.  Your Honours, there are two additional matters.  Your Honours may recall that there was an interlocutory application before Justice Nettle some weeks ago.

FRENCH CJ:   Yes, yes.

MR GRACE:   That dealt with the issue of – it is at volume 2 of the application book at page 421.

FRENCH CJ:   Yes.

MR GRACE:   At the time of that application, the respondent – and this position is maintained – the respondent does consent to the continuation of the orders made by Justice Nettle.  Now, of course it is a matter for your Honours, but we would seek that continuation.  The respondent has indicated that the assurance that the respondent gave to Justice Nettle on 20 October 2015 not to proceed with the examinations of either applicant until the final hearing and determination of the appeal would be maintained if special leave was granted.

FRENCH CJ:   So, the orders you are seeking are in terms of 1 and 2 of the summons set out at 421?

MR GRACE:   Yes.  You will see the order of Justice Nettle on page 419.

FRENCH CJ:   Yes.

KEANE J:   But is the effect of what you are telling us that there is no need for an order, given the attitude of the respondent?

MR GRACE:   Well, the non‑publication order perhaps is in a different category.  We would just merely seek the continuation of Justice Nettle’s order.

FRENCH CJ:   That is a general prohibition on publication?

MR GRACE:   Yes.

FRENCH CJ:   Are you content with that, Mr Woodward?

MR WOODWARD:   Your Honour, as before Justice Nettle, we do not wish to be heard in relation to that application.

FRENCH CJ:   There will be an order in terms of paragraph 1 of the summons filed on 16 October 2015, that is:

The disclosure of the identity of the Applicants, or any information tending to reveal the identity of the Applicants, is prohibited on the ground set out within s.77RF(1)(a) of the Judiciary Act . . . until further order.

AT 10.52 AM THE MATTER WAS CONCLUDED