R & M v Ibac

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2015 0078

R	First Applicant
and
M	Second Applicant
v
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSIONER	Respondent

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 September 2015
DATE OF JUDGMENT:	30 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 271
JUDGMENT APPEALED FROM:	[2015] VSC 374 (Riordan J)

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CRIMINAL LAW – Independent Broad-based Anti-corruption Commission – Examination of persons – Where persons under investigation for criminal offences – Whether legislation authorises examination of persons under investigation with respect to matters the subject of the investigation – Accusatorial system of justice.

STATUTORY INTERPRETATION – Whether Independent Broad-based Anti-corruption Commission Act 2011 (Vic) grants power to examine persons, under investigation for criminal offence, publicly or at all – Principle of legality – Effect of the abrogation of the privilege against self-incrimination – Independent Broad-based Anti-corruption Commission Act 2011 (Vic), ss 8, 15, 70, 115, 117 and 144.

ADMINISTRATIVE LAW – Jurisdictional error – Whether Commissioner’s opinion that jurisdictional conditions satisfied was a reviewable error – Whether decision affected by irrelevant considerations, a failure to take into account relevant considerations or legal unreasonableness – Effect of an express statutory obligation of reasonableness.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Applicants	Mr D Grace QC with Mr O P Holdenson QC	Tony Hargreaves & Partners
For the Respondent	Mr T Woodward SC with Ms J Davidson	Independent Broad-based Anti-corruption Commission

PRIEST JA
BEACH JA
KAYE JA:

Introduction

The applicants, R and M, are sworn members of Victoria Police. The respondent is the Commissioner appointed pursuant to s 20 of the Independent Broad-based Anti-corruption Commission Act 2011 (‘the IBAC Act’).

In January 2015, R and M were working at the Ballarat police station. Late on 14 January 2015, a woman referred to as person A was arrested and taken into custody at Ballarat police station. R and M were involved in her arrest and dealt with her while she was in custody. These dealings were subsequently the subject of a Victoria Police criminal investigation into allegations of assault by R and M.

On 20 March 2015, the Independent Broad-based Anti-corruption Commission (‘IBAC’) commenced an investigation pursuant to s 64(1)(c) of the IBAC Act into the alleged conduct by members of Victoria Police stationed at Ballarat towards certain persons with whom they had physical contact in the course of their duties.

On 1 April 2015, the respondent issued witness summonses to R and M pursuant to the provisions of the IBAC Act. The witness summonses required R and M to give evidence before IBAC at a public examination in relation to their knowledge of matters the subject of the scope and purpose described in a document attached to their respective witness summonses entitled ‘Preliminary Information and Directions for Public Examinations in Operation Ross’. The scope and purpose of the public examinations were described in that document as concerning investigations into:

1.Allegations of serious police personnel misconduct (within the meaning of the IBAC Act) on account of alleged unnecessary and/or excessive use of force towards certain vulnerable persons at Ballarat police station.
2.Whether any human rights have been violated by any such alleged conduct.
3.The sufficiency and appropriateness of internal reporting by Victoria Police members involved in or associated with such alleged conduct.
4.The handling by Victoria Police of complaints made by such persons concerning such alleged conduct.

On 2 April 2015, by notices issued by an Assistant Commissioner of Victoria Police, the applicants were suspended on full pay. The notices each provided that the applicants were reasonably believed to have committed an offence punishable by imprisonment. On 10 April, the applicants were informed that the offence in question was an allegation of assault that occurred on 15 January 2015 and that ‘no interview [would] take place pursuant to s 464 of the Crimes Act 1958 until the conclusion of the IBAC public hearing’.

On 15 April 2015, the applicants commenced judicial review proceedings, in the Trial Division of the Supreme Court, in which they sought to restrain IBAC from examining them, or from doing so in public. The proceeding was heard by a judge of the Trial Division over two days in May 2015.

On 7 August 2015, the applicants’ judicial review proceeding was dismissed. The applicants now seek leave to appeal and, if leave is granted, appeal to this Court from the dismissal of their judicial review proceeding. The applicants’ proposed grounds of appeal are as follows:

1.The trial judge erred in finding that there was power to examine the applicants.
2.The trial judge erred in finding that it was open to [the respondent] to find that the circumstances were ‘exceptional’ within the meaning of s 117(1)(a) of the IBAC Act.
3.The trial judge erred in relying upon a matter not relied upon by [the respondent], when considering whether [the respondent] had erred in concluding that the circumstances were ‘exceptional’ within the meaning of s 117(1)(a) of the IBAC Act.
4.The trial judge erred in failing to find that [the respondent] misconstrued the test of whether it was ‘in the public interest’ to hold the examinations of the applicants in public within the meaning of s 117(1)(b) of the IBAC Act.
5.The trial judge erred in finding that it was open to [the respondent] to determine that it was ‘in the public interest’ to hold the examinations of the applicants in public within the meaning of s 117(1)(b) of the IBAC Act.

The issues in dispute

In the proceeding below, and before this Court, there were, and are, two principal issues: first, whether, as a matter of statutory construction, the power to examine persons granted by s 115 of the IBAC Act extended to persons who were the subject of an ongoing criminal investigation, about the subject matter of that criminal investigation; and secondly, whether the respondent’s reasons for examining the applicants in public were infected by reviewable error.

The IBAC Act

As s 1(1) of the IBAC Act provides, the main purpose of the IBAC Act is to establish IBAC. The objects of the IBAC Act are set out in s 8. Section 8 provides that those objects are to:

(a)       provide for the identification, investigation and exposure of—
(i)        serious corrupt conduct; and
(ii)       police personnel misconduct;

(b)       assist in the prevention of —
(i)        corrupt conduct; and
(ii)       police personnel misconduct;
(c)facilitate the education of the public sector and the community about the detrimental effects of corrupt conduct and police personnel misconduct on public administration and the community and the ways in which corrupt conduct and police personnel misconduct can be prevented;
(d)assist in improving the capacity of the public sector to prevent corrupt conduct and police personnel misconduct;

(e) provide for the IBAC to assess police personnel conduct.

‘Corrupt conduct’ is defined in s 4 of the IBAC Act by reference to various types of conduct ‘that would, if the facts were found proved beyond reasonable doubt at a trial, constitute a relevant offence’. ‘Relevant offence’ is defined in s 3 of the IBAC Act to mean:

(a)       an indictable offence against an Act; or
(b)       any of the following common law offences committed in Victoria —
(i)        attempt to pervert the course of justice;
(ii)       bribery of a public official;
(iii)      perverting the course of justice;

The expressions ‘police personnel conduct’ and ‘police personnel misconduct’ are each defined in s 5 of the IBAC Act. ‘Police personnel conduct’ is defined to mean:

(a)in relation to a public officer who is a police officer or protective services officer —
(i)an act or decision or the failure or refusal by the public officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the public officer has as, or by virtue of being, a police officer or protective services officer; or
(ii)conduct which constitutes an offence punishable by imprisonment; or
(iii)conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or
(iv)disgraceful or improper conduct (whether in the public officer's official capacity or otherwise);

(b)in relation to a public officer who is a Victoria Police employee or police recruit —
(i)an act or decision or the failure or refusal by the public officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the public officer has as, or by virtue of being, a Victoria Police employee or police recruit; or
(ii)conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it;

The definition of ‘police personnel misconduct’ is the same as the definition of ‘police personnel conduct’, except that sub-para (a)(i) and (b)(i) are not included. Thus, conduct that is ‘police personnel misconduct’ is a subset of the conduct that is ‘police personnel conduct’. Further, and no doubt because the conduct that is ‘police personnel misconduct’ is a subset of the conduct that is ‘police personnel conduct’, s 5 of the IBAC Act defines ‘police personnel conduct complaint’,[1] but does not contain a corresponding definition in relation to what might have been called police personnel misconduct complaints.
[1]A ‘police personnel conduct complaint’ may be made against police officers and protective service officers (see paragraph (a) of the definition of ‘police personnel conduct complaint’ and the reference therein to complaints made against those officers as provided for under s 167 of the Victoria Police Act 2013) and members of Victoria Police other than police officers and protective service officers (see paragraph (b) of the same definition).

By ss 12 and 14 of the IBAC Act, IBAC is established, consisting of one Commissioner appointed in accordance with s 20 of the IBAC Act. The functions of IBAC are identified in s 15 of the IBAC Act, and include:

(a) identifying, exposing and investigating serious corrupt conduct;

(b) identifying, exposing and investigating police personnel misconduct;

(c) assessing police personnel conduct;

(d) holding examinations;

(e) making referrals to other persons or bodies; and

(f) exercising education and prevention functions for the purpose of achieving the objects of the IBAC Act.

Section 51 of the IBAC Act permits a person to make a complaint to IBAC about conduct that that person believes may be corrupt conduct. Similarly, s 52 of the IBAC Act permits a person to make ‘a police personnel conduct complaint’ to IBAC. There is no corresponding provision permitting a person to make a police personnel misconduct complaint.

By s 60 of the IBAC Act, IBAC is empowered to conduct an investigation ‘in accordance with its corrupt conduct investigative functions’ on a complaint made to IBAC under s 51, or on IBAC’s own motion. Similarly, s 64 empowers IBAC to conduct an investigation ‘in accordance with its police personnel conduct investigative functions’ on a police personnel conduct complaint made to it under s 52, or on IBAC’s own motion. Again, there is no separate statutory provision that permits IBAC to conduct an investigation in accordance with what might have been called ‘police personnel misconduct investigative functions’.

Section 115 of the IBAC Act empowers IBAC to hold an examination for the purposes of an investigation. Section 116 provides that, in holding an examination, IBAC is not bound by the rules of evidence; and may regulate the procedure of the examination as it considers appropriate.

As to whether an examination is to be held in private or in public, s 117 of the IBAC Act provides:

(1)Subject to subsection (2), an examination is not open to the public unless the IBAC considers on reasonable grounds —
(a) there are exceptional circumstances; and
(b) it is in the public interest to hold a public examination; and
(c)a public examination can be held without causing unreasonable damage to a person's reputation, safety or wellbeing.

(2)The IBAC must not hold an examination in public if the examination may disclose particulars likely to lead to the identification of a person who has made an assessable disclosure.
(3)However, the IBAC may hold an examination in public if the information that may be disclosed is information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.
(4)For the purposes of subsection (1)(b), the factors the IBAC may take into account in determining whether or not it is in the public interest to hold a public examination include, but are not limited to —
(a)whether the corrupt conduct or the police personnel conduct being investigated is related to an individual and was an isolated incident or systemic in nature;
(b)the benefit of exposing to the public, and making it aware of, corrupt conduct or police personnel misconduct;
(c)in the case of police personnel conduct investigations, the seriousness of the matter being investigated.

(5)Not less than 7 days before a public examination is held, the IBAC must —
(a)inform the Victorian Inspectorate that the IBAC intends to hold the public examination; and
(b)provide a written report to the Victorian Inspectorate giving the reasons the IBAC decided to hold a public examination in accordance with subsection (1).

(6)A judicial officer is not required to attend a public examination but may consent to doing so.

Section 70 of the IBAC Act deals with investigations when there are other proceedings on foot. As will be seen later, s 70 is significant so far as the resolution of ground 1 is concerned. Section 70 provides:

(1)The IBAC may commence or continue to investigate a matter despite the fact that any proceedings (whether civil or criminal) are on foot, or are commenced, in any court or tribunal that relate to, or are otherwise connected with, the subject matter of the investigation.
(2)If the IBAC is or becomes aware that such proceedings are on foot, or have been commenced, the IBAC must take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings.

Section 144 of the IBAC Act deals with the privilege against self-incrimination. In summary, a person is not excused from answering a question or giving information in accordance with a witness summons on the ground that the answer or information might tend to incriminate the person or make the person liable to a penalty. However, any answer or information so given is not admissible in evidence against that person before any court except in limited circumstances. Specifically, s 144 relevantly provides:

(1)A person is not excused from answering a question or giving information or from producing a document or other thing in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.
(2)Any answer, information, document or thing that might tend to incriminate the person or make the person liable to a penalty is not admissible in evidence against the person before any court or person acting judicially, except in proceedings for —
(a)       perjury or giving false information; or
(b)       an offence against this Act; or
(c)       an offence against the Victorian Inspectorate Act 2011; or
(d)an offence against section 72 or 73 of the Protected Disclosure Act 2012; or

(e) contempt of the IBAC under this Act; or
(f) a disciplinary process or action.

Section 42 of the IBAC Act deals with confidentiality notices. Section 42(1) relevantly provides:

(1)If during an investigation the IBAC considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice —
(a) that investigation; or
(b) the safety or reputation of a person; or
(c)the fair trial of a person who has been, or may be, charged with an offence —

the IBAC may issue a confidentiality notice in respect of that investigation to a person (other than an IBAC Officer or a Victorian Inspectorate Officer) specifying the restricted matter or restricted matters in accordance with this section.

A preliminary jurisdictional issue

At the commencement of their oral submissions, counsel for the applicants submitted that IBAC had no jurisdiction to conduct the investigation it was purporting to conduct on its own motion. The applicants contended that IBAC’s own documents showed that IBAC was conducting an investigation ‘in accordance with its police personnel misconduct investigative functions’. In support of this contention, the applicants relied upon that description of the investigation set out in an affidavit sworn in the proceeding below[2] and a similar description given in the respondent’s reasons for decision for conducting the examinations of the applicants in public.
[2]Affidavit of Alexis Barbara Eddy affirmed 15 April 2015.

The applicants’ point was that s 64 of the IBAC Act only permits IBAC to conduct an investigation on its own motion ‘in accordance with its police personnel conduct investigative functions’. While s 60 of the IBAC Act permits IBAC to conduct an investigation on its own motion ‘in accordance with its corrupt conduct investigative functions’, the applicants point out that there is no corresponding provision permitting IBAC to conduct an investigation on its own motion in accordance with any police personnel misconduct investigative functions. Thus, they say IBAC has no jurisdiction to conduct the current investigation ‘on its own motion’.[3]
[3]See ss 60(1)(c) and 64(1)(c) of the IBAC Act.

The point (which was not the subject of any ground for relief in the proceeding before the trial judge, nor the subject of any proposed ground of appeal, nor referred to in the applicants’ written case) is without merit. Sections 60 and 64 of the IBAC Act permit IBAC to conduct investigations in accordance with IBAC’s corrupt conduct investigative functions and police personnel conduct investigative functions. Both kinds of investigation may be conducted on a relevant complaint, a relevant notification or on IBAC’s own motion. There is no corresponding provision dealing with investigations in accordance with police personnel misconduct investigative functions. If the applicants’ submissions were correct, then, not only would IBAC have no jurisdiction to conduct the present investigation on its own motion, it would have no jurisdiction to conduct any such investigation at all. This would be a curious result, having regard to one of the objects of the IBAC Act being the investigation of police personnel misconduct,[4] and IBAC having, as one of its functions, the function of investigating police personnel misconduct.[5]
[4]See s 8(a)(ii) of the IBAC Act.
[5]See s 15(2)(b) of the IBAC Act. See further, s 16 of the IBAC Act, which gives IBAC the power to do all things that are necessary to achieve the objects of the IBAC Act and the performance of IBAC’s duties and functions.

The answer to the applicants’ submissions is to be found in the definitions of ‘police personnel conduct’ and ‘police personnel misconduct’. All of the conduct that is ‘police personnel misconduct’ is, as we have said, a subset of the conduct that is defined to be ‘police personnel conduct’. In such circumstances, an additional provision in the IBAC Act mirroring s 64 in respect of police personnel misconduct investigative functions would be otiose.

That the applicants’ submissions are without substance is put beyond doubt when one examines s 3(3) of the IBAC Act. Section 3(3) relevantly provides:

A reference in this Act to the investigative functions of the IBAC —
…
(b)in respect of police personnel conduct, is a reference to the functions specified in section 15(2)(b), (2)(c), (3)(b) and (3)(c).

The function specified in s 15(2)(b) is IBAC’s function ‘to identify, expose and investigate police personnel misconduct’. Thus, there can be no doubt that the IBAC Act, and in particular s 64 of the IBAC Act, gives IBAC jurisdiction to conduct an investigation into police personnel misconduct on IBAC’s own motion.
Ground 1: the power to examine the applicants

The applicants contend that the trial judge erred in finding that there was power to examine them about the ongoing facts of a criminal investigation of which they were subjects. As the applicants submitted, the issue is one of pure statutory construction. As the trial judge put it:

The critical question is whether the IBAC Act has by express words or necessary intendment, demonstrated the intention to abrogate the privilege against self-incrimination to allow the examination of persons, who might be charged with an offence, about the circumstances of the alleged offence.[6]

[6]R and M v IBAC [2015] VSC 374 [77] (‘Reasons’).

The trial judge, after analysing a number of authorities, including Hammond v The Commonwealth,[7] Sorby v The Commonwealth,[8] X7 v Australian Crime Commission,[9] Lee v New South Wales Crime Commission,[10] A v Corruption and Crime Commissioner,[11] Hamdan v Callanan,[12] and Construction, Forestry, Mining & Energy Union v Boral Resources (Vic) Pty Ltd,[13] concluded that, on its proper construction, the IBAC Act permitted the examination of the applicants about the facts of the ongoing criminal investigation of which they were subjects. While much of the parties’ arguments concerned what the High Court and various intermediate appellate, and trial, courts have said in respect of other pieces of legislation that have given powers to different bodies to conduct various examinations, as was made clear by the High Court in X7, it is the Act in question that must be examined and construed to see whether, by its express words or necessary intendment, that Act authorises the conduct of the relevant examinations.
[7](1982) 152 CLR 188 (‘Hammond’).
[8](1983) 152 CLR 281 (‘Sorby’).
[9](2013) 248 CLR 92 (‘X7’).
[10](2013) 251 CLR 196 (‘Lee’).
[11](2013) 306 ALR 491.
[12][2014] QCA 304 (‘Hamdan’).
[13](2015) 320 ALR 448.

The objects of the IBAC Act include the identification, investigation and exposure of serious corrupt conduct, and misconduct by police officers that includes conduct which constitutes an offence punishable by imprisonment. Section 70 of the IBAC Act provides that IBAC’s powers of investigation (which include conducting examinations) may be ‘commenced or continued’ despite the fact that criminal proceedings that relate to, or are otherwise connected with, the subject matter of the investigation are on foot, or have been commenced. Further, if IBAC becomes aware of such criminal proceedings, then s 70(2) of the IBAC Act requires IBAC to ‘take all reasonable steps to ensure that the conduct of the investigation does not prejudice those proceedings’. Nothing in the IBAC Act requires IBAC to halt its investigation or to cease to conduct any relevant examination.

While a plain text reading of s 70 of the IBAC Act contemplates that investigations (and thus examinations that are held for the purposes of an investigation)[14] may occur notwithstanding the existence of criminal or civil proceedings, the applicants submit that the purpose of s 70 is considerably more limited. They submit that the only purpose and operation of s 70 is to overcome the issue of a possible contempt of court being committed by the conduct of an investigation under the IBAC Act while the subject matter of the investigation is before the courts.
[14]Cf s 115 of the IBAC Act.

We reject this submission. In our view, the operation of s 70 is not so limited. If the Parliament had merely intended to address potential contempt of court issues, one might have expected s 70 to be framed in a more specific and limited way than the text ultimately enacted. Specifically, one might have expected some reference to the concept of contempt in the section. While the text of s 63 of the Criminal Assets Recovery Act 1990 (NSW), that was considered by the High Court in Lee, is not in the same terms as s 70 of the IBAC Act,[15] we are fortified in our conclusion by the approach taken to that section by the majority in Lee who concluded that s 63 of the NSW Act operated so as to permit proceedings under that Act to continue (including compulsory examinations) while overlapping criminal proceedings were on foot.[16]
[15]Section 63 of the Criminal Assets Recovery Act 1990 providing that the commencement of criminal proceedings was not a ground for staying proceedings commenced under that Act that are not criminal proceedings.
[16]Lee (2013) 251 CLR 196, 205 [7] (French CJ), 257 [144] (Crennan J), and 301 [288] and 319 [332] (Gageler and Keane JJ).

Of importance in determining whether persons believed to have committed a crime, but who have not been charged, may be examined, is s 144 of the IBAC Act. As we have noted, s 144 provides for an abrogation of the privilege against self-incrimination.

In England, up until the middle of the seventeenth century, the ex officio oath (or inquisitorial oath) was a method employed by the Court of Star Chamber and the High Commission to examine accused persons without formal accusation or indictment. It was administered so that a person might be examined and himself provide the accusation to be made against him. Such compulsorily applied interrogation procedures were used to gather evidence and compel people to incriminate themselves. Charles I received bills to abolish the Court of Star Chamber and the High Commission in July 1641, and the ex officio oath to answer criminal charges went with them. The abolition of the Court of Star Chamber and the High Commission spelled not only the end of the ex officio oath, but also signalled the rejection of inquisitorial procedures concerning criminal accusations. By the middle of the seventeenth century the privilege against self-incrimination, expressed in the Latin maxim nemo tenetur seipsum prodere (or accusare) — no one is bound to betray (or accuse) himself — was entrenched.[17] It arose out of great political and social upheaval provoked by the abuses of compulsory interrogation at the hands of the judges of the Star Chamber and High Commission. And although it arose from legislative change, it is now firmly embedded in the common law, and remains an important and embedded protection of the individual against the excesses of the state.
[17]Environment Protection Authority v Caltex Refining Co Pty Ltd (1992) 178 CLR 477, 526–7 (Deane, Dawson and Gaudron JJ); John H Wigmore, ‘The Privilege Against Self-Crimination: Its History’ (1901–02) 15 Harvard Law Review 610, esp 633–4; Suzanne B McNicol, Law of Privilege (Law Book Company, 1992) 137.

Its importance was discussed in Hammond,[18] a case where a person who had been committed for trial on a charge of conspiracy to commit an offence against the law of the Commonwealth in connexion with the export of meat, was called to give evidence before a Royal Commission and was questioned about the conspiracy on which he had been committed for trial. In that context, Brennan J observed of the privilege against self-incrimination:[19]

… it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged. Some reference to the development of the principle may be found in Stephen’s History of the Criminal Law, vol. I, ch. XI and Glanville Williams, The Proof of Guilt, 3rd ed (1963), ch 3. Its importance is eloquently described by Brown J in delivering the opinion of the Supreme Court of the United States in Brown v Walker:[20]
‘The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. … [The abuses of interrogation which were] so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence.’
An accused person may not be deprived of his immunity from interrogation by the exercise of the prerogative power to appoint a Commission of Inquiry and Report. Whether the Parliament could deprive him of that immunity when he stands charged with an offence against a law of the Commonwealth is a question which need not now be determined, for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice.

[18](1982) 152 CLR, 188, 202–3.

[19]Ibid.

[20](1896) 161 US 591, 596–597 [40 Law Ed 819, 821].

It is because the privilege is so treasured by tradition, and so central to the administration of criminal justice, that its legislative nullification may only ‘be made clearly by express words or by necessary intendment’,[21] and by ‘clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom’.[22]
[21]X7 (2013) 248 CLR 92, 143 [125] (Hayne and Bell JJ).
[22]Coco v The Queen (1994) 179 CLR 427, 437–8 (Mason CJ, Brennan, Gaudron and McHugh JJ); Lee (2013) 251 CLR 196, 309 [310] (Gageler and Keane JJ).

While s 144 abrogates the privilege against self-incrimination, it prevents any answer that might tend to incriminate a person being examined from being used in a criminal trial of that person for the offence in respect of which the person has incriminated (or might incriminate) himself or herself. While the applicants submitted that the abrogation of privilege in s 144 had ample work to do in the examination of persons whose criminality is ‘either entirely unknown, or is not the subject of a criminal investigation’, such a limited sphere of operation seems to us, with respect, to be unlikely.[23]
[23]Cf X7 (2013) 248 CLR 92, 131 [83] (Hayne and Bell JJ).

IBAC is expressly empowered to investigate conduct which may constitute a serious criminal offence. Section 115 empowers IBAC to hold an examination ‘for the purposes of an investigation’. In other words, such an examination must be directed to an investigation of either corrupt conduct (which necessarily involves a possible criminal offence) or police personnel conduct (which may involve a criminal offence).

The class of persons who may, or may not, be ‘subject of a criminal investigation’ at any particular time can be quite indefinite and amorphous. It would include, for example, ‘persons of interest’, or persons who, it might fairly be expected, might be excluded from implication in the conduct after a proper investigation of it. If an examination under Part 6 of the IBAC Act did not extend to such persons who might have been involved, or implicated, in the conduct under investigation, the Part would have very little application. That is, the fact that an examination, under Part 6, must ordinarily involve an inquiry into potentially criminal conduct, implies that the IBAC Act intended that the persons, who might be examined, include persons who might have been implicated in that conduct.

By contrast, it is understandable that, once a person has been charged with a criminal offence, an investigative body may not have the power of compulsory examination of that person, unless such a power is expressed in clear and unambiguous terms. As Hayne and Bell JJ pointed out in X7,[24] it is the laying of the charge that commences the criminal processes before the courts, which are essentially accusatorial in nature. Any provision which alters that structure of the process, accordingly, must be expressed in clear and unambiguous terms. 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. This is in sharp contradistinction to the amorphous group of persons who may or may not be ‘of interest’ or ‘suspected’ or ‘possibly of interest’ in respect of alleged criminal conduct that is under investigation.
[24](2013) 248 CLR 92, 142 [124].

The IBAC Act is highly prescriptive, setting out what IBAC can and cannot do in specified circumstances. While it does not determine the issue, in circumstances where the text of the IBAC Act would, on a plain reading, suggest that IBAC has power to conduct examinations of persons who are the subject of ongoing criminal investigations (and who have not been charged with any offence), the absence of any words of relevant limitation tends to suggest that no such limitation was contemplated or intended by the Parliament when the IBAC Act was enacted. It is clear that the IBAC Act was and is intended to permit the investigation by IBAC of serious criminal offences. In our view, to construe the IBAC Act so as to deprive IBAC of a power to examine people who have not yet (and may not be) charged with any offence would significantly impede the intended operation of the IBAC Act as disclosed by the provisions of the Act to which we have referred.

For these reasons, like the trial judge, we too conclude that, on its proper construction, the IBAC Act empowers IBAC to examine the applicants in the present case.

Grounds 2 to 5: public examinations of the applicants

Grounds 2 to 5 of the application seek to impugn the decision of the respondent to hold the examinations of the applicants in public pursuant to s 117 of the IBAC Act. Grounds 2 and 3 relate to the respondent’s conclusion, under s 117(1)(a), that there were reasonable grounds to consider that there were exceptional circumstances justifying such a public examination, and grounds 4 and 5 relate to the respondent’s finding, under s 117(1)(b), that it was in the public interest to hold a public examination of the applicants.

The respondent also considered that such a public examination could be held without causing unreasonable damage to the applicants, or any other person’s, reputation, safety or wellbeing, for the purposes of s 117(1)(c). Although that part of the respondent’s conclusion was the subject of challenge before the primary judge, it is not part of the case made on behalf of the applicants before this Court.

Before examining grounds 2 to 5 individually, it is convenient to summarise, first, the revised reasons of the respondent for reaching those conclusions, and the judge’s consideration of them.

Revised reasons of respondent

The Commissioner stated his conclusions, in respect of the two aspects that are now the subject of this application, as follows:

·In paragraph [5] of his revised reasons, the Commissioner noted that s 117(1) of the IBAC Act imposes as ‘the norm’ a situation where witness examinations will be conducted in private. He also noted that a considerable number of police jurisdiction-related examinations had been conducted since the respondent became fully operational in February 2013, but that this case was the first occasion upon which he had determined that examinations in the respondent’s police jurisdiction ought to be open to the public.
·In paragraph [6], the respondent stated:
… Ballarat Police Station has previously been identified by both IBAC and Victoria Police as having a relative high incidence of complaints against police members stationed there. These complaints predominantly concern excessive use of force, and otherwise duty failures. This high rate of complaints about excessive use of force has been identified as an ongoing issue since at least 2010, including by the former Office of Police Integrity. If there be a culture of excessive use of force against vulnerable persons on occasions at Ballarat Police Station amounting to human rights violations … it is in my view a matter of considerable public importance that such a culture be thoroughly investigated by an independent body, exposed and if found to exist, eradicated. I consider it also in the public interest that if there exists such a culture, to determine why Victoria Police have not eradicated it already and what can be learned by Victoria Police from what is alleged to have occurred.
·In paragraph [7], the respondent noted that the respondent, in March 2015, had received a formal notification from Victoria Police Professional Standards Command (PSC) involving certain police personnel conduct of uniformed officers stationed at the Ballarat Police Station, and that they involved allegations that would, if proven, amount to serious police misconduct. The respondent then described those allegations as follows:
… allegations of assault of a vulnerable female recently held in custody there (being person A), and of what PSC itself described to IBAC in its notification as human rights violations to her. PSC provided CCTV footage concerning the matter to IBAC which might reasonably be said, absent explanation by those involved, to support such allegations. Indeed, it might reasonably be said that some of the conduct borders on gratuitous brutality, and is therefore in itself exceptional from the point of view of conduct that might be expected from trained and experienced members of Victoria Police in the circumstances at hand; namely, in dealing with one woman who posed no apparent physical threat but albeit was proving difficult at the time, a fairly routine situation for frontline police to be dealing with I would thought. … .
·In paragraph [8], the respondent noted that Operation Ross had commenced an investigation of its motion into that matter, as well as into other incidents of alleged unnecessary and/or excessive use of force at the police station in recent years, ‘…again amounting to alleged human rights violations and which IBAC had become aware of through complaints previously made by other vulnerable women (being persons B, C and D)’. The respondent noted that those incidents had also been captured on CCTV footage which IBAC had been able to obtain, and which might reasonably be considered to support those allegations.
·In paragraph [9] of the revised reasons, the respondent turned to the requirement in s 117(1)(a) of the IBAC Act in the following terms:

In arriving at my decision, for open examinations, I have regard to each of the prescribed components in s 117(1) of the IBAC Act. In particular the circumstances were considered exceptional by reference to apparently quite forceful physical conduct by certain police members towards vulnerable women being persons A, B, C and D on three separate occasions since 2010, including, as recently as, January 2015 in the case of person A, and in the terms otherwise described above. It was also considered relevant by me in this context of the existence of a relatively high incidence of complaints about excessive use of force at Ballarat Police Station as a force, details of which are intended to be the subject of evidence led in open examination from senior PSC police witnesses who are not considered to be persons of interest in the investigation (with such evidence giving rise to concerns about a possible unhealthy culture referred to above).
·Turning (in paragraph [10]) to the requirement in s 117(1)(b) of the IBAC Act, the respondent stated:
It was considered by me to be in the public interest that such examinations be open to the public because the allegations are very serious in nature. Furthermore, the relatively high incidence of complaints for excessive use of force at Ballarat, coupled with these allegations as supported by CCTV, gave rise to concerns on my part of a possible culture at Ballarat Police Station of sometimes unnecessary aggressive behaviour towards vulnerable females by some police members bordering on what some may reasonably consider to be gratuitous brutality. This in turn gave rise to concerns mentioned above of a culture of tolerance within that police station of such behaviours which were considered to require investigation, and if found to exist, exposure and eradication, all in the public interest.
·The respondent (at paragraph [11]) noted that one of IBAC’s principal objects and functions was to expose serious police misconduct. He stated:
Public examinations are held to encourage persons with relevant information to come forward, and to help garner public acceptance of the investigation in question and any public report on it. … That first mentioned benefit is already occurring … They are also intended to serve as a deterrent to others in the police force and to support IBAC’s prevention and education role. Such outcomes are to assist IBAC in carrying out its principal objects and functions.

Reasons of primary judge

The bases, upon which the applicants sought to impugn the decision of the respondent in respect of the application of s 117(1)(a) and (b) of the IBAC Act, before the primary judge, were broader than the bases upon which the application is made to this Court.

The judge noted that the applicants submitted that the finding of ‘exceptional circumstances’ by the respondent, for the purposes of s 117(1)(a), was infected with Wednesbury[25] unreasonableness on the basis that no reasonable person could conclude that the circumstances were exceptional. The judge accepted the definition of ‘exceptional circumstances’ stated by Nettle JA in R v Steggall,[26] in the context of the application of s 31(5A) of the Sentencing Act 1991, to require that the circumstances ‘… rarely occur and perhaps be outside reasonable anticipation or expectation’.[27] The judge noted that the respondent’s reasons had identified that the examinations were part of a broader investigation covering conduct at the Ballarat Police Station, particularly towards vulnerable women over an extended period of time. The purpose of the investigation went beyond establishing whether the assaults had taken place, or whether there was a culture at that police station of acceptance of such conduct. Rather, the investigation was also as to why Victoria Police had not identified and dealt appropriately with that culture. In addition, a public examination would encourage other persons to come forward with relevant information, which was critical for the investigation to assess properly whether the suspected culture did exist.
[25]Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (‘Wednesbury Corporation’).
[26](2005) 157 A Crim R 402, 406 [12].
[27]See also R v Ioannou (2007) 17 VR 563, 568 [17] (Redlich JA) (‘Ioannou’).

The judge then noted:

This last consideration was identified in the Reasons with respect to the public interest. However, for the same reasons as previously expressed, I consider that it was properly a matter to which the Commissioner could have regard when making the overall determination that the examination should be in public. The plaintiffs did not take issue with the defendant’s reliance on this consideration with respect to the exceptional circumstances criterion.

The judge thus held that it could not be concluded that no reasonable decision maker could have considered that exceptional circumstances existed for the purpose of determining whether the examination should be in public.

The judge then turned to the decision by the respondent that it was in the public interest to hold the examinations in public. It had been submitted before the judge (as it was submitted before us in support of ground 4 of the application) that the respondent took into account an irrelevant consideration, namely, the investigation by the respondent whether there was a culture at Ballarat Police Station involving aggressive behaviour towards vulnerable females. The judge held that such a consideration was proper and relevant. In particular, his Honour noted that s 117(4) identified a number of factors that the respondent may take into account in determining whether or not it was in the public interest to hold a public examination. Those factors include whether the corrupt conduct of police personnel being investigated related to an individual and was an isolated incident, or was systemic in nature; the benefit of exposing to the public and making it aware of such conduct; and the seriousness of the matter being investigated.

The judge noted that the respondent’s reasons disclosed that he took each of those factors into consideration in determining that the public examination was in the public interest.

Further, the judge concluded that it was open to the respondent to consider that it was in the public interest to hold the examinations in public.

Preliminary observations

In considering each of grounds 2 to 5 of the present application, it is important to bear in mind that the relief that was sought by the applicants before the primary judge, was by way of judicial review based on the principles of administrative law. It is trite, but nevertheless necessary, to emphasise that the application before the judge, and the present application, is not by way of a re-hearing of the decision of the respondent on its merits. That point is important when considering whether there was any error, at law, to be found in the conclusions by the respondent that there were exceptional circumstances under s 117(1)(a), and that it was in the public interest to hold a public examination, for the purposes of s 117(1)(b). In order to succeed before the primary judge, and on this application, the applicant must demonstrate that there was either jurisdictional error, or error of law on the face of the record, in the decision made by the respondent.

Grounds 2 and 5 of the present application are to the effect that the judge erred in finding that it was open to the respondent to consider that the circumstances were ‘exceptional’ (ground 2), and that the judge erred in finding that it was open to the respondent to determine that it was in the ‘public interest’ to hold the examinations in public (ground 5).

Those two grounds seek to impugn the basis upon which the respondent concluded that the examinations of the applicants should be held in public. The conclusion by the respondent as to the existence of exceptional circumstances, and of the requisite public interest, were required to be reached by him on ‘reasonable grounds’. That phrase was considered by the High Court in George v Rockett,[28] to which the primary judge referred. That case concerned s 679 of the Criminal Code (Qld), which empowered a justice to issue a warrant to search premises where it appeared that there were ’reasonable grounds’ for suspecting particular matters specified in the section. In that connexion, the court stated:

When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[29]

[28](1990) 170 CLR 104.

[29]Ibid 112.

A conclusion by the respondent (on reasonable grounds) as to the existence of exceptional circumstances and of the requisite public interest, and that an examination could be held without causing unreasonable damage to reputation, safety or wellbeing of a person (as required by each of the subparagraphs in s 117(1)), is the basis upon which the respondent has the power, or jurisdiction, to conduct an examination in public. In the absence of a conclusion, on reasonable grounds, of any of the three specified matters, the respondent does not have such a power. It follows that such a consideration (or conclusion) by the respondent is a jurisdictional fact constituting the foundation of the respondent’s power to hold an examination in public.

The question, whether the respondent has achieved such a conclusion, is thus a matter which is appropriate to be reviewed on the ground of jurisdictional error. The principles applying to such a basis have been considered in a number of authorities. The most commonly cited formulation of those principles is that of Latham CJ in R v Connell; ex parte Hetton Bellbird Collieries Limited.[30] In that case, the National Security (Economic Organisation) Regulations enabled an Industrial Authority to alter any rate of remuneration if the authority was ‘satisfied that the rates of remuneration … are anomalous’. In respect of that power, Latham CJ stated:

It is … well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorised to deal. It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.[31]

[30](1944) 69 CLR 407.

[31]Ibid 432; see also 440 (Starke J); 455–6 (Williams J); and see also Gedeon v New South Wales Crime Commission (2008) 236 CLR 120, 139 [44]; Minister for Immigration v SZMDS (2010) 240 CLR 611, 647–8 [129]–[131] (Crennan and Bell JJ); Osland v Secretary, Department of Justice (2010) 241 CLR 320, 328 [12] (French CJ, Gummow and Bell JJ).

For the purposes of the present application, it is not considered necessary to examine whether there is any relevant difference between the formulation of the test posited by Latham CJ in Connell, requiring that the opinion not be ‘irrational’ or ‘capricious’, and the Wednesbury Corporation basis of judicial review, namely, that error exists where it is demonstrated that the administrative decision, under review, was so unreasonable that no reasonable decision maker could have arrived at it.[32]
[32][1948] 1 KB 223, 228, 233–4; compare Minister for Immigration v SZMDS, above, 646–7; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, 362–7 [63]–[76] (Hayne, Keifel and Bell JJ).

However the test is expressed, in order to establish relevant jurisdictional error by the respondent, it must be demonstrated that the conclusions that he has reached, as to the matters specified in s 117(1), must be, at the least, unreasonable in the sense defined by Lord Greene MR in Wednesbury Corporation, that is, conclusions that are so unreasonable that no reasonable Commissioner could have reached them.

The final preliminary observation we make is this. The decision, that was under review before the primary judge, and which we are required to consider, is an administrative decision. Under s 20 of the IBAC Act, a person is only eligible to be appointed Commissioner of IBAC, if that person is, or has been, qualified for appointment as a judge of the High Court, the Federal Court, or the Supreme Court of Victoria or another State or Territory. The respondent himself is an experienced member of senior counsel. Nevertheless, his reasons are not a judgment of a court of law, but, rather, an administrative decision, albeit one made by a person with substantial legal expertise. In that context, it is important to bear in mind the admonition, commonly stated in the authorities, that the reasons of an administrative decision maker should not be scrutinised ‘… upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’. A court should not be concerned with infelicity of expression, nor should the court construe the reasons with ‘an eye keenly attuned to the perception of error’.[33]
[33]Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ); Minister for Immigration & Multicultural Affairs v Singh (2002) 209 CLR 533, 554 [56] (McHugh J), 576 [134] (Callinan J).

Ground 2

In support of ground 2 the applicants submit that, in order that the circumstances be ‘exceptional’ for the purposes of s 117(1)(a), they must be extremely unusual, or fall outside the range of misconduct that might be reasonably anticipated that the respondent would encounter.

The two factors relied on by the respondent, in finding that the circumstances were exceptional, were, first, that the conduct involved ‘apparently quite forceful physical conduct’ against vulnerable women, and, secondly, that there was a relatively high incidence of complaints about excessive use of force at Ballarat Police Station. It was submitted that, in the context of the type of police misconduct that the respondent is in power to investigate, there was nothing particularly striking about the conduct depicted by the CCTV footage that was available to IBAC. Indeed, it was submitted that the alleged assaults were ‘relatively ordinary fare’ for those who investigate police misconduct. It was submitted that the force, used by the police, was not particularly surprising in view of the fact that person A had overpowered two police officers in her initial attempted escape.

In addition, it was submitted on behalf of the applicants that there was nothing unusual in the suggestion that there might be a cultural problem with Ballarat Police Station. That factor was only relevant to the question whether it was in the public interest that a public examination take place.

In response, it was submitted that the respondent’s conclusion, that there were reasonable grounds for considering that the circumstances were exceptional, was itself reasonable. In particular, reference was made to the description of the conduct of the police towards person A as described in the Commissioner’s reasons. Further, counsel referred to the circumstances that person A, while affected by OC spray while in the cells, was forcibly strip searched in the presence of male and female police officers, that she was kicked and assaulted while lying on her stomach in handcuffs, that she was left overnight in her wet shirt and underpants having been showered due to the use of the OC foam, and that she was not given any water to drink, so that she had to fill a cup of water out of the toilet to quench her thirst. In addition, the respondent’s reasons referred to forceful conduct by other officers at Ballarat Police Station towards vulnerable women on two other separate occasions, and the high incidence of complaints concerning excessive use of force by officers at the Ballarat Police Station. It was submitted that the respondent’s conclusion, that those circumstances are exceptional, was one which was reasonably open to the respondent.

In construing the three requirements prescribed by s 117(1) of the IBAC Act, the starting point, as recognised by the respondent, is that the prescribed ‘norm’ is that examinations by IBAC should be conducted in private. Each of the three prerequisites, specified in s 117(1), to the holding of a public examination, must be separately satisfied, in order that the Commissioner might determine to hold an examination in public.

IBAC, and the respondent, are possessed of far-reaching powers of inquiry and examination. Those powers are designed to enable them to carry out the important functions that are contained in the IBAC Act. However, those powers do impinge significantly on well-established and long-standing individual rights. Further, the type of examinations, upon which the IBAC might embark, may be far-reaching, and have the potential to have significant and long-standing effects on the rights of and interests of persons affected by such inquiries.

Those considerations favour the application of a strict construction to each of the three pre-conditions, to the holding of a public examination, specified in s 117(1) of the IBAC Act. In effect, those three conditions are intended to set the bar at a high level, so as to ensure that a proper balance is maintained between, on the one hand, the successful conduct by IBAC of its functions, and, on the other hand, the proper protection of individual rights.

The phrase ‘exceptional circumstances’, in s 117(1)(a), should be construed in light of such considerations. As a matter of ordinary usage, in order to be ‘exceptional’, circumstances must be highly unusual, and quite rare, for the type of circumstances which would normally be the subject of examination by IBAC under Part 6 of the IBAC Act. The requirement of ‘exceptional’ circumstances thus involves both a qualitative distinction between the circumstances which might ordinarily be inquired of by the respondent, and, in addition, an assessment that those circumstances might be reasonably rare.

That construction is supported by the meaning given to the phrase ‘exceptional circumstances’ in other statutory contexts. In construing the meaning of ‘exceptional circumstances’ in cl 15 of schedule 5 to the Magistrates’ Court Act 1989, Hedigan J, in Owens v Stevens[34] said:

The use of the phrase ‘exceptional circumstances’ is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.
Exceptional is defined, contextually, in the Oxford English Dictionary (2^nd edition volume 5), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does not mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests to the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps could be outside reasonable anticipation or expectation.

[34](Supreme Court of Victoria, Unreported, 3 May 1991); compare R v Kelly [2000] 1 KB 198; A-G (Qld) v Francis (2008) 250 ALR 555, 566 [40] (Muir JA); 577 [92] (McKenzie AJA); see also Mastrangelo v Reynolds (2001) 25 WAR 133; San v Rumble (No 2) (2007) 48 MVR 492.

That passage, from the judgment of Hedigan J, was quoted, and relied on, by Nettle JA (with whom Buchanan and Eames JJA agreed) in R v Steggall.[35] That case concerned whether there were exceptional circumstances, pursuant to s 31(5A) of the Sentencing Act 1991.
[35](2005) 157 A Crim R 402, 407 [12].

The same approach was followed by Redlich JA (with whom Chernov JA and Vincent JA agreed) in Ioannou.[36] In particular, Redlich JA considered that, for the circumstances to be exceptional for the purposes of s 31(5A), they must be ‘… clearly unusual or quite special or distinctly out of the ordinary … ‘.[37]
[36](2007) 17 VR 563, 568 [16]; see also DPP v Marell (2005) 12 VR 581, 597 [94]–[98] (Dodds-Streeton J); R v Ienco [2008] VSCA 17 [16]–[18] (Kellam JA).
[37](2007) 17 VR 563 [17].

Thus, in order that IBAC has power to conduct an examination publicly, it must first determine (inter alia), on reasonable grounds, that the circumstances are exceptional in that sense, namely, that they are clearly unusual and distinctly out of the ordinary. The question on review for the primary judge, and for this Court on this application, is whether the conclusion by the respondent, that the circumstances were of such a character, was one that could reasonably be considered to be based on reasonable grounds.

As identified by the primary judge, the two principal grounds, upon which the respondent determined that such exceptional circumstances existed, were, first, the degree of force displayed by police members towards vulnerable women, on the three separate occasions, including the occasion affecting person A, since 2010. Secondly, the respondent took into account the existence of a relatively high incidence of complaints of that type about excessive use of force at the Ballarat Police Station.

The question whether such circumstances are ‘exceptional’, in the context of the type of examination ordinarily undertaken by IBAC, is one on which minds might reasonably differ. Indeed, while that question should not be reserved for the exclusive determination of the respondent, nevertheless a review of that decision must take into account that the respondent, rather than this Court, is better placed to determine the type of examination which it might ‘ordinarily’ conduct in respect of police conduct. That said, while there might, regrettably, be expected that, from time to time, there are complaints, or instances, of excessive force used against vulnerable women by a member or members of the Victoria Police, it would not be unreasonable to consider it to be exceptional for one police station, over a period of less than five years, to be the site of three separate incidents involving forceful physical conduct towards four vulnerable women. The conclusion, that such circumstances are exceptional, is strengthened by the additional circumstance, referred to by the respondent in his reasons, that there had been a ‘relatively high incidence of complaints about excessive use of force at Ballarat Police Station’ which had amounted to alleged human rights violations. Taking those matters together, we do not consider that it could be concluded that it was not reasonably open to the respondent to consider that there were reasonable grounds to conclude that there were exceptional circumstances for the purposes of s 117(1)(a) of the IBAC Act.

As we have earlier stated, the conclusion by the respondent, as to the existence of each of the three prerequisites specified in s 117(1) of the IBAC Act, is a jurisdictional fact, which was fundamental to the power of IBAC to hold the examinations of the applicants in public. Accordingly, as accepted by the applicants, the challenge to that finding, on judicial review, involves an allegation of jurisdictional error. In such a case, it is permissible, and relevant, for the court to go beyond the record of IBAC, and, particularly, to consider the material upon which IBAC made its decision.

It was for that purpose that the respondent filed an affidavit of Robert John Sutton, the Director, Operations Division, of the respondent, before the primary judge. The contents of that affidavit further reinforce the conclusion that we have so far reached, in respect of the Commissioner’s consideration as to the existence of the relevant exceptional circumstances. The affidavit sets out, in some detail, a summary of the CCTV footage on the incidents involving each of persons A, B, C and D. In particular, in the incident involving person A, the two applicants are said to have been involved in what can only be described as entirely unacceptable and gratuitous violence to a female who was then prone on the ground and under restraint. Following that incident, person A, having been showered in her clothes, was not supplied with a change of clothes, but was left in her wet shirt and underpants for more than seven hours. Notwithstanding that she repeatedly asked for a blanket, she was not supplied with a blanket over that period of time. After advising police officers that the water tap in the cell was not working, she found it necessary to flush the toilet in the cell to fill a cup so that she could drink some water.

Without rehearsing the details of the two incidents involving persons B, C and D, it is sufficient to note that they involved gratuitous and unacceptable violence to females who had lawfully attended the police station.

Mr Sutton had also undertaken an analysis of complaints, which had produced the conclusion that there was a high incidence of complaints about excessive use of force by officers stationed at Ballarat Police Station, since at least 2010. The statistics, summarised by Mr Sutton in his affidavit, reveal that, in broad terms, the number of complaints, and a number of police, subject to those complaints, at Ballarat Police Station, was approximately three times the average of those in comparable stations.

The contents of Mr Sutton’s affidavit clearly reinforce the conclusion that we have reached, namely, that the consideration by the respondent, that the circumstances were exceptional, could not be characterised as unreasonable.

Faced with those considerations, senior counsel for the applicants, before us, appeared to concede that there were exceptional circumstances which might justify a public examination of the incident involving person A, but submitted that the circumstances, so far as they related to the involvement of the applicants in that matter, were not exceptional. There are two difficulties with that proposition. First, s 117(1)(a) does not require that exceptional circumstances attach specifically to the person or persons who are to be the subject of the public examination. Secondly, and in any event, the exceptional circumstances, found by the respondent, did attach to the conduct of the applicants. Their conduct towards person A, involving significant physical force, bordering on gratuitous brutality, towards person A, was one of three recent incidents involving such violence to vulnerable women at the same police station.

For those reasons, ground 2 of the application must fail.

Ground 3

In support of ground 3, it was submitted on behalf of the applicants that, in considering whether the respondent had erred in reaching the view that the circumstances were ‘exceptional’, the primary judge had noted that the respondent relied on the desirability of persons coming forward, when considering whether it was in the public interest that the examinations be conducted in public. Counsel for the applicants submitted that the judge took that circumstance into account in determining whether it was open to the respondent to find that there were ‘exceptional circumstances’. It was submitted that, by taking that factor into account in that way, the judge had failed to undertake an assessment whether the respondent’s decision was infected by relevant error.

Ground 3, and the applicants’ submissions, seek to impugn a basis upon which the primary judge concluded that the respondent did not err in considering that exceptional circumstances existed for the purposes of s 117(1)(a) of the IBAC Act. Ground 3, and the submissions, do not themselves assert any basis upon which the finding by the respondent, as to that matter, was erroneous.

In any event, there are two short answers that may be made in response to ground 3.

First, as we have stated, the respondent reached his conclusion as to the existence of exceptional circumstances based on two grounds, namely, the nature of the particular incidents involving persons A, B, C and D, and the high rate of complaints of violence against persons, and particularly women, attending Ballarat Police Station. As we have stated, we consider that those bases alone, and without more, were sufficient to render the conclusion by the respondent as to the existence of exceptional circumstances, not unreasonable.

Secondly, and in any event, we consider that it was relevant for the primary judge to take into account the additional factor, namely, that the conduct of the examinations in public would encourage other persons to come forward, in determining whether the respondent erred in finding the existence of the requisite exceptional circumstances. While the respondent only took that factor into account in determining the existence of the requisite public interest for the purposes of s 117(1)(b), nevertheless it formed part of the circumstances, in the context of which the primary judge was invited to conclude that the determination by the respondent, as to the existence of exceptional circumstances, was unreasonable. Logically, the desirability of encouraging other persons to come forward with complaints would, we consider, be relevant to a determination as to whether or not the requisite ‘exceptional circumstances’ exist under s 117(1)(a) of the IBAC Act.

For those reasons, ground 3 of the application is rejected.

Ground 4

The submissions made by the applicants, in support of ground 4, were directed to ground 3(e) of the originating motion. Those submissions focused on the observation by the respondent, in paragraph [10] of his revised reasons, that the serious nature of the allegations against members of the Ballarat Police Station, and the high incidence of those complaints, gave rise to concerns of a possible culture of unnecessary aggressive behaviour towards vulnerable females at the police station, and to concerns of a culture of tolerance within that station of such behaviour, which required investigation.

It was submitted that the desirability of investigating such a culture of tolerance was not relevant to the question of the desirability of such an investigation being conducted in public. Further, the fact that if the culture were found to exist, it ought to be exposed and eradicated, was (it was argued) irrelevant to the question whether the examination, to determine whether the culture existed, ought to take place in public. It was submitted that the primary judge erred by rejecting those submissions, which were directed to ground 3(e) of the review.

The IBAC Act does not define the term ‘public interest’. Section 117(4) does provide some guidance, by specifying three matters which (inter alia) the respondent was entitled to take into account in determining whether it is in the public interest to hold a public examination for the purposes of s 117(1)(b).

In its recent decision in Bare v Independent Broad-Based Anti-Corruption Commissioner & Ors,[38] this Court considered the nature of the term ‘public interest’ in the context of s 40(4) of the Police Integrity Act 2008. The members of the court examined a number of authorities in which that phrase has been considered, including the decisions of the High Court in O’Sullivan v Farrer[39] and Osland v Secretary, Department of Justice.[40] The principal propositions, that emerge from Bare, may be shortly stated. First, the term ‘public interest’ is a broad concept.[41] Secondly, the question whether a matter is in ‘the public interest’ necessarily imports at least to some extent, a discretionary value judgment.[42] Thirdly, however, a court is not ‘at large’ in determining whether a particular matter is ‘in the public interest’. Rather, the content of that phrase must depend on the statutory context in which it is employed.[43]
[38][2015] VSCA 197 (‘Bare’).
[39](1989) 168 CLR 210.
[40](2008) 234 CLR 275.
[41]Ibid 315; Bare [2015] VSCA 197 [229] (Warren CJ).
[42]O’Sullivan v Farrer (1989) 168 CLR 210, 216; Bare [2015] VSCA 197 [231] (Warren CJ), [313] (Tate JA).
[43]Bare [2015] VSCA 197 [549] (Santamaria JA).

In addition, there is, of course, a fundamental distinction between matters which may be ‘of public interest’ and a matter which is ‘in the public interest’. Plainly, to constitute the latter, the conduct of the examination in public must serve a relevant public interest within the context of the IBAC Act.

As we have stated, s 117(4) does provide some guidance as to whether it is in the public interest to hold a public examination. Section 117(4)(a) infers that it may be in the public interest to hold such an examination where the corrupt conduct, or the police personnel conduct, under investigation, is systemic, rather than being confined to an individual and being an isolated incident. Section 117(4)(b) recognises a relevant public interest where there might be a benefit to expose, to the public, the corrupt conduct, or police personnel misconduct, that is under investigation. Section 117(4)(c) similarly recognises a public interest where the police personnel conduct that is under investigation is serious.

Each of those matters were expressly referred to by the respondent in his revised reasons. In particular, the respondent noted, in paragraph [10] of his reasons, that the allegations were serious, and that there was a relatively high incidence of complaints relating to Ballarat Police Station. In paragraph [11] of his reasons, the respondent also noted that public examinations might encourage other persons with relevant information to come forward, and to help garner public acceptance of the investigation in question and any report on it. Pausing there, the applicants do not take issue with the respondent relying on any of those three matters. They fall squarely within the matters specifically referred to in s 117(4) of the IBAC Act. Without more, those matters, standing alone, and taken together, entitled the respondent to conclude that it was in the public interest for the examination of the applicants to be held in public.

As stated, ground 4 of the application (in respect of ground 3(e) of the originating motion) seeks to impugn the existence of such a public interest, on the basis that the respondent considered that the nature, and incidence, of the complaints of violent behaviour towards women at the Ballarat Police Station, gave rise to a concern that there might be a culture at the station of such behaviour, and of tolerance within the police station in respect of such behaviour. In our view, the submissions made by the applicants relating to that aspect of the respondent’s reasons should be rejected. First, we do not accept that the desirability of investigating such a possible culture was not relevant to the question of whether such an investigation should be carried out in public. As the respondent pointed out (in paragraph [11] of his reasons), such an investigation might serve the public interest by encouraging other persons, with relevant information, to come forward. In addition, the matter under investigation was serious, and the respondent was justified in considering that it was in the public interest that the community have confidence in the investigation, by conducting it in open session.

Secondly, the applicants’ submissions ignore the critical fact that an examination, under s 115, is expressly directed to be carried out for the purpose of ‘an investigation’. It is not to the point that, at the time at which the examination is to commence, the respondent may not have reached a concluded view as to a matter. Such a conclusion could only be reached after the conduct of an examination. In our view, it is sufficient, for the finding of a relevant public interest, that the respondent, on appropriate grounds, have concern as to the possible existence of a culture, at the police station, of unnecessary aggressive behaviour towards vulnerable females by some police, and a culture of tolerance within that station in respect of that type of behaviour. Once the respondent has formulated such a properly based concern, that, of itself, might, in an appropriate case, qualify as a matter of public interest for the purpose of s 117(1)(b) of the IBAC Act.

For those reasons, we consider that the primary judge was correct in rejecting ground 3(e) of the originating motion. It follows that ground 4 of the application must fail.

Ground 5

In support of ground 5, it was submitted that the conduct of the examination of the applicants in public would attract significant media focus, so that there would be a ‘trial by media’ of them. Counsel submitted that there was a high likelihood that the applicants would face a criminal trial, and that such a public examination of their alleged offending would impair the fairness of that trial. In those circumstances, the directions by the judge to the jury would not be sufficient to offset unfair prejudice to the applicants in their trial arising from such publicity. Accordingly it was submitted that it was not open, in such circumstances, for the respondent to conclude that it was in the public interest that the applicants be examined in public.

In response, it was pointed out on behalf of the respondent that ground 5 does not appear to address any of the grounds expressly stated in the originating motion. In any event, it was pointed out that the possible impact upon a fair trial of the applicants was considered by the respondent in his reasons, and weighed against other relevant factors. Accordingly, it could not be maintained that the respondent failed to take into account such a relevant circumstance.

It would appear that ground 5 does address an aspect of ground 3(d) of the originating motion, which asserts that the respondent failed to take into account the public interest in ensuring a fair trial for the applicants. However, as noted by the respondent, the respondent considered that it was not reasonable to conclude, at that stage, that it was inevitable that criminal charges would be brought against the applicants. At paragraph [30] of his reasons, the respondent considered that any theoretical jury trial would likely be some considerable time in the future, and the respondent noted that it was well recognised in the authorities that ‘… putative jurors’ memories fade of events over time as they are replaced by other sensational news’. The respondent also noted that it is well recognised that trial judges have broad and effective powers to ensure a fair trial, including the power to exclude evidence, and to give strong directions to juries,[44] with the ultimate protection for an accused, who cannot receive a fair trial, being a permanent stay.
[44]See Dupas v R (2010) 241 CLR 237, 247–248 [26]–[28]; Murphy v R (1989) 167 CLR 94, 99 (Mason CJ, Toohey J); R v Glennon (1992) 173 CLR 592, 614 (Brennan J), 623 (Deane, Gaudron and McHugh JJ); R v Dudko (2002) 132 A Crim R 371, 374–5 [19]–[21] (Spigelman CJ).

In those circumstances, it cannot be properly maintained that the respondent did not take into account a relevant circumstance, namely, the risk of prejudice to a fair trial of the applicants should criminal proceedings be brought against them. Rather, as we have just described, the respondent gave express consideration to that matter. The applicants do not seek to point to, or rely on, any error of law in the reasoning of the respondent in that respect.

For those reasons, ground 5 of the application should also be rejected.

Conclusion

Having heard full argument, we are now in a position to say that the applicants’ appeal does not have a real prospect of success. Accordingly, the application for leave to appeal must be refused.

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[2015] VSCA 271

30 September 2015