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R & M v Ibac

R & M v Ibac

Case [2015] VSCA 271 30 September 2015

Criminal Liability

Jurisdiction

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R & M v Ibac

Details

AGLC: R & M v Ibac [2015] VSCA 271
Case: [2015] VSCA 271
Decision Date: 30 September 2015

CaseChat Overview and Summary

In the matter of R & M v Ibac, the applicants sought judicial review of decisions made by the Independent Broad-based Anti-corruption Commission (IBAC) under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic). The applicants, who were under investigation for criminal offences, challenged the legality of being examined by IBAC regarding matters that were the subject of their investigation, contending that such examinations were not permitted under the statute. They also argued that the abrogation of their privilege against self-incrimination contravened the principle of legality. The applicants sought to have the decisions of IBAC quashed on the basis that they were affected by jurisdictional errors, including irrelevant considerations, a failure to take into account relevant considerations, and legal unreasonableness.

The court was tasked with interpreting the relevant provisions of the IBAC Act to determine whether the statute authorised IBAC to examine persons under investigation for criminal offences in relation to matters under investigation, and whether such examinations could be conducted publicly. The court also had to consider the effect of the abrogation of the privilege against self-incrimination and whether the decisions of IBAC were affected by jurisdictional errors. The court was required to examine the principle of legality and the express statutory obligation of reasonableness imposed on IBAC.

The court found that the IBAC Act did not explicitly authorise the examination of persons under investigation, nor did it permit such examinations to be conducted publicly. The court held that the abrogation of the privilege against self-incrimination did not contravene the principle of legality, as the statutory scheme provided adequate safeguards. The court further determined that IBAC’s decision was not affected by jurisdictional errors, as the Commissioner's opinion that the jurisdictional conditions were satisfied was not a reviewable error. The court held that the decisions of IBAC were not unreasonable, as they were in accordance with the express statutory obligation of reasonableness.

The court dismissed the application for judicial review, finding that IBAC had not erred in its decisions. The applicants were not granted the relief they sought, and the decisions of IBAC were upheld.

Orders