R v Bell

[2022] SADC 140

District Court of South Australia

(Criminal: Application for Stay of Proceedings)

R v BELL

[2022] SADC 140

Judgment of his Honour Judge Stretton 

29 November 2022

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW

CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS

The accused is charged with several counts of theft, it being alleged that he dishonestly dealt with the South East Education and Training Association’s money without their consent while intending to permanently deprive them of it or seriously encroach on their proprietary rights. The accused is also charged with dishonestly dealing with documents, it being alleged that on several occasions he dishonestly dealt with documents intending to deprive the Millicent High School or another to financially benefit himself with a sum of money on each occasion. The accused has elected to be tried by judge alone, such trial listed to commence on 14 March 2023. The accused has applied for a permanent stay of criminal proceedings, and if such application is unsuccessful that questions of law be referred to the Court of Appeal.

The accused’s primary propositions are that firstly, because of the coming into effect of clause 70(3) of Schedule 1 to the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021, (‘the transitional provisions’) the prosecution must be discontinued, no evidence gathered by the ICAC is admissible in any trial, and for the accused to be prosecuted a new investigation must be commenced from scratch without reference to the old one.

Further, that because of an undertaking given by the DPP to the High Court on 15 March 2022 (‘the undertaking’), the DPP cannot guarantee that proper disclosure will continue to be made to the accused, which together with an alleged failure to provide disclosure to date, mean that the accused cannot receive a fair trial and that as a consequence the ongoing prosecution is contrary to the interests of the administration of justice, constitutes an abuse of process and should consequently be permanently stayed.

The meaning and consequent effect of the transitional provisions and the undertaking are disputed, as is the consequent prosecutorial disclosure situation and whether prosecutorial disclosure is adequate to date and can be assured in the future.

HELD:

THE TRANSITIONAL PROVISIONS

1.      The transitional provisions (Schedule 1, clause 70) of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2012, do not require that the prosecution be discontinued. It is lawful for the prosecution to proceed.

2.      The transitional provisions (Schedule 1, clause 70) of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2012, do not render all evidence gathered by the ICAC inadmissible. Subject to the normal tests of relevance and the like, the evidence gathered by the ICAC is admissible.

THE UNDERTAKING

3.    The undertaking given by the DPP to the High Court on 15 March 2022 means that any requests by the DPP for substantive further investigation in the matter, and for ongoing administrative prosecutorial support, were to be directed to and conducted by SAPOL rather than the ICAC.

4.       In this matter the DPP has adhered to the undertaking given to the High Court on 15 March 2022 in that any DPP requests for substantive further investigation in the matter (there have been none to date) or for ongoing administrative prosecutorial support were directed to and conducted by SAPOL rather than the ICAC.

5.      The undertaking given by the DPP to the High Court on 15 March 2022, does not mean that the DPP cannot, via SAPOL treat the ICAC as any other witness or entity in possession of evidence. It is accordingly not in breach of the undertaking for the DPP via SAPOL to request the provision of evidence in the ICAC’s possession, proof witnesses employed by the ICAC, and call such evidence and witnesses at trial.

6.      The undertaking given by the DPP to the High Court on 15 March 2022 does not prevent the DPP asking the ICAC, as it could ask any other witness or entity in possession of evidence to be called at a trial, whether it has disclosed everything relevant to the case at bar. It is lawful and not in breach of the undertaking for the DPP to make such a request either unilaterally or at the request of the defence.

ADEQUACY OF DISCLOSURE

7.      As held by the Full Court in Bell v The Queen [2020] SASFC 116 at [183], both the DPP and the ICAC have an ongoing common law prosecutorial obligation to disclose material relevant to the matter. That obligation is recognised by the ICAC.

8.        On the evidence presented on the application for a stay, there is no evidence which on proper analysis materially suggests that the DPP have not responded in a timely and appropriate way to all defence requests for provision of all and any material in their possession that satisfies the test for prosecutorial disclosure.

9. On the material presented on the application for a stay, as at the date of this application there is no evidence which on proper analysis materially suggests that appropriate prosecutorial disclosure has not now been made, nor to suggest that there is relevant material that has not been disclosed, such that there is actual prejudice as envisaged by the Full Court in Bell v The Queen [2020] SASCFC 116 or per the more expansively expressed test expounded in DPP v Kinghorn (2020) 102 NSWLR 7 and Gould v DPP (2018) 333 FLR 352 that in light of disclosure issues there would be a ‘tangible risk’ that the trial would be unfair, or that the trial is ‘likely’ to be unfair.

FAIR TRIAL, ABUSE OF PROCESS AND APPLICATION FOR A PERMANENT STAY

10.    Consequently, on the evidence presented on the application for a stay there is no basis to conclude, believe or materially suspect that the accused is unable to receive a fair trial, nor that the ongoing prosecution is contrary to the interests of the administration of justice, nor that a trial would constitute an abuse of process.

11.    Accordingly, there is no basis to stay the trial.

COURT OF APPEAL REFERRAL

Given that the answers to the primary legal issues are clear, that a permanent stay is not justified, and that a referral would likely cause the trial to be unduly delayed for at least a further year, the application to refer questions of law to the Court of Appeal is refused.

Legislation Interpretation Act (SA) s 16; Independent Commissioner Against Corruption Act 2012 (SA); Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2012 (SA) cl 70; Criminal Procedure Act 1921 (SA) s 153, referred to.
Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116; R v Bell [2020] SADC 107; R v C, DR & Ors [2006] SASC 158; Carter v Hayes (1994) 61 SASR 451; R v Bunting & Ors [2002] SASC 412; Edwards v The Queen (2020) 95 ALJR 808; Ragg v Magistrates' Court of Victoria (2008) 18 VR 300; DPP v Kinghorn (2020) 102 NSWLR 72; Gould v DPP (2018) 333 FLR 352; R v Bell [2020] SASCFC 116; Strickland v DPP (2018) 93 ALJR 1; Rona v District Court (1995) 63 SASR 223; Jago v District Court (1989) 168 CLR 23; DPP v Shirvanian (1998) 44 NSWLR 129; William v Spautz (1992) 174 CLR 509; R v B,P [2016] SASCFC 30; DPP v Jaunay & Another [2020] SASCFC 25; R v Gee & Thaller [1999] SASC 116; R v Elliot [1996] HCA 21; R v Liddy [2001] SASC 116; Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260; George (a pseudonym) v The Queen [2022] SASCA 66, considered.

R v BELL
[2022] SADC 140

1. This an application for a permanent stay of criminal proceedings, and if such application is unsuccessful the applicant seeks a referral of questions of law to the Court of Appeal.

   The charges

2. The accused is charged with several counts of theft, it being alleged that he dishonestly dealt with the South East Education and Training Association’s money without their consent while intending to permanently deprive them of it or seriously encroach on their proprietary rights. The accused is also charged with dishonestly dealing with documents, it being alleged that on several occasions he dishonestly dealt with documents intending to deprive the Millicent High School or another to financially benefit himself with a sum of money on each occasion.[1]

   [1]     Information dated 9 October 2018.

3. The accused has elected to be tried by judge alone, as is his right. The trial is listed to commence on 14 March 2023.

   The prosecution case

4. The DPP say they will allege at trial that the charges arise from the accused’s involvement with a sub-campus of the Millicent High School known as the Independent Learning Centre. They will allege at trial that the accused ran the Independent Learning Centre as if it was his personal business, although the funding for it was provided by Millicent High School. They will allege that the accused invoiced Millicent High School in advance for services provided at the Independent Learning Centre, but overcharged for them, and will allege that he used funding earmarked for intended student purposes for his own personal use.[2]

   [2]     Per DPP written submissions para 6, ‘Brief Overview of the Prosecution Case’.

   Procedural note

5. As the matter is to proceed as a trial by judge alone, the court has been mindful to consider nothing except the matters specifically tendered and proffered by counsel on the applications under consideration, and has not read, sighted, or placed any reliance on any material apart from the material placed before it by counsel on these applications.

   The application for a stay[3]

   [3]     Amended Interlocutory Application FDN 12 7-10-22 paras 1-4.

6. The accused originally applied for both a permanent and a contingent stay, and in the alternative that if not stayed, that questions of law be referred to the Court of Appeal. As the matter proceeded, the application for a contingent stay was not proceeded with.[4]

   [4]     Submissions made by Mr Henderson on 25 November 2022.

7. At the core of the application for a permanent stay is whether the amended legislation requires the prosecution to be discontinued as a matter of law, and whether the accused has received, is receiving, and can be confident he will receive full prosecutorial disclosure.  The application is in the following terms:

   1.     (Not proceeded with).

   2.The court reserve for consideration and determination by the Court of Appeal relevant questions on an issue both antecedent to trial and relevant to the trial of the applicant.

   3.The within proceedings be stayed until the questions referred have been determined by the Court of Appeal.

   4.In the alternative to order 2 and 3 above, and subject to receiving the material sought in order 1, the trial of the charged offences is permanently stayed as a consequence of:

   4.1    the need for strict and unqualified compliance with the undertaking;

   4.2    As a consequence of the transitional provisions (Schedule 1, clause 70) of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2012, the within matter that has been the subject of investigation by the ICAC must be discontinued, and it cannot be continued under section 43 of the Independent Commissioner Against Corruption Act 2012;

   4.3    As a consequence of the change in circumstances referred to in 4.1 and 4.2 above and others, the proceedings should be stayed as they are likely to bring the administration of justice into disrepute and, or, the applicant cannot now receive a fair trial.

8. The court has had the assistance of comprehensive written and oral submissions and has carefully considered all counsel’s arguments.

9. The accused’s primary propositions are that firstly, because of the coming into effect of clause 70(3) of Schedule 1 to the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021, the prosecution must be discontinued.[5]

   [5]     Accused’s written submissions dated 18 October 2022, para 1.1.

10. The accused also puts that because of an undertaking given by the DPP to the High Court on 15 March 2022, the DPP cannot guarantee that proper disclosure will continue to be made to the accused which, together with an alleged failure to provide disclosure to date, mean that the accused cannot receive a fair trial.[6]

    [6]     Accused’s written submissions dated 18 October 2022, para 1.2.

11. The accused argues that because of these matters he is unable to receive a fair trial, the ongoing prosecution is contrary to the interests of the administration of justice, constitutes an abuse of process and should consequently be permanently stayed.[7]

    [7]     Accused’s written submissions dated 18 October 2022, para 1.3.

    Procedural history

12. The matter has a long procedural history, and the court has regard to the full history of the matter per counsel’s written and oral materials, without setting it all out. Much of the history is traversed in an earlier judgement of the District Court dismissing an earlier application for a stay[8] and a subsequent appeal and reservation of questions of law to the Full Court.[9]

    [8]     R v Bell [2020] SADC 107.

    [9]     Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116.

13. In short, the offending is alleged to have occurred through a series of events between 2009 and 2013, with the Independent Commissioner Against Corruption (‘the ICAC’) commencing an investigation in 2014. In May 2017 the ICAC forwarded the matter to the DPP who decided to prosecute, filing an Information in the Magistrates Court in August 2017. The matter was committed to the District Court for trial, the DPP filing the current information in October 2018.[10]

    [10]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 1-7.

14. An October 2019 trial date was vacated on 4 July 2019 due to the accused’s then counsel’s ill health, and for the accused’s current counsel to prepare the matter and be available for trial. The new trial date of 8 July 2020 was vacated to allow a prior application for a stay filed by the accused on 1 June 2020 to be argued.

15. On 7 August 2020 the District Court delivered judgment declining to order a stay but finding that some of the ICAC’s actions had not been authorized by the ICAC Act.[11] The accused appealed the decision, and a question of law concerning the powers and functions of the ICAC was also reserved for the consideration of the Full Court.[12]

    [11]   R v Bell [2020] SADC 107.

    [12]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 8-12.

16. On 3 December 2020 the Full Court delivered judgment. It is clear from the judgment that the ICAC’s investigation and the conduct of the prosecution to date were the subject of counsel’s very detailed analysis, criticism, and review before the Full Court. The District Court is bound by the Full Court’s decision.

17. The Full Court judgment was followed by an application for special leave to the High Court, however special leave was ultimately revoked considering a supervening amendment to the ICAC legislation and the giving of an undertaking by the DPP. The meaning of that undertaking is in issue.

18. Insofar as the Full Court decision applies to the current applications, the District Court is where applicable bound as a matter of law. Further, the meaning of any undertaking will be governed by its words and context. For both these reasons it is necessary to set out the Full Court’s decision in some detail.

19. As to the ICAC’s powers and functions at that time, the Full Court held, inter alia, that:

    1.The ICAC Act conferred on the ICAC the capacity to refer a matter to the DPP for prosecution.[13]

    2.The ICAC Act allowed the ICAC to provide on such referral evidence it had gathered, including material obtained with the use of compulsive powers, such as examinations of potential witnesses in February 2017 when charges were in contemplation.[14]

    3.The ICAC had power after the institution of criminal proceedings to interview witnesses, prepare witness statements, attend DPP witness proofings and exercise s29 and 29A compulsive powers to obtain business and financial records.[15]

    4.Section 43 of the ICAC Act provided that the ICAC and the ICAC’s officers could continue to perform functions concerning a matter after criminal proceedings had been commenced in relation to the matter, and the fact that the section provided that in the case where a person has been charged, ‘…must endeavor to avoid, so far is practicable, prejudice to any person … charged with the offence’ positively demonstrated that.[16]

    5.The ICAC’s functions did not extend to filing or serving documents relating to the prosecution; that was properly the function of the DPP. Insofar as that had occurred to date, it was beyond the ICAC’s powers to have done so.[17]

    6.That the non-communication directions given to examinees at the ICAC examinations while preventing them from disclosing that they had given evidence under examination and the content of that evidence, did not preclude any examinee from discussing with the accused, his lawyers or anyone else the events that occurred between 2008 and 2013, or any other factual matter relevant to the charges.[18]

    [13]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, para 196.

    [14]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 206-254.

    [15]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 257-296.

    [16]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 269-270.

    [17]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 305-314.

    [18]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 321-322.

20. As to the application for a stay, the Full Court held, inter alia, that:

    7.While non-communication directions given to two examinees and a non-disclosure notation given to one examinee should have been revoked in 2017 when the accused was charged, ‘… it is apparent the revocations were simply overlooked until June 2020’, at which time they were revoked,[19] and in any event the directions and notation did not prevent the accused’s lawyers approaching and interviewing the three people concerned as to matters relevant to the charges.[20]

    8.Insofar as the ICAC’s filing or serving documents relating to the prosecution that had occurred to date was beyond the ICAC’s powers to have done so, these acts were mechanical tasks incapable of resulting in an unfair trial.[21]

    9.There was no basis on which it could be found that the accused had suffered or would suffer any forensic disadvantage, or the prosecution would enjoy any forensic advantage by reason of the ICAC’s conduct, or that the accused could not now receive a fair trial.[22]

    [19]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, para 323.

    [20]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, para 357.

    [21]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, para 366.

    [22]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, para 367.

1. The Full Court held that (as at the date of the hearing in November 2020), considering everything collectively, there was no basis to conclude that the accused could not have a fair trial.  The Full Court held that the ICAC’s actions had been in good faith, and to the extent that they had exceeded their remit in terms of filing or serving documents or omitting to notify three persons in a timely way that their non-disclosure obligations had been revoked, that conduct was not intentional, reckless, grossly negligent or in blatant or wholesale disregard of the ICAC Act.[23]

   [23]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, para 368.

2. The Full Court held that (as at the date of the hearing in November 2020), it was not tenable to contend that a permanent stay was necessary to avoid the administration of justice being brought into disrepute, but on the contrary the grant of a permanent stay would be liable to lead to the administration of justice being brought into disrepute.[24]

   [24]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, para 368.

3. The Full Court rejected the accused’s further ‘varying contentions concerning the hypothetical conduct of SAPOL if the Commissioner had referred the matter to SAPOL for further investigation and potential prosecution’.[25]

   [25]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, para 370.

4. The Full Court answered the referred questions in the following way:

   Question 1: Did the Independent Commissioner Against Corruption (the Commissioner) act unlawfully in that he referred the investigation into a potential issue of corruption in public administration that resulted in this prosecution as commenced by the Director of Public Prosecutions (the Director), directly to the Director?

   Answer:      No.

   Question 2: If the answer to question 1 is ‘yes’, did the Commissioner further act unlawfully in that s 56A(1) of the Independent Commissioner Against Corruption Act 2012 (SA) (the Act) did not permit the Commissioner to provide evidence and information, being evidence and information comprising the investigation into a potential issue of corruption in public administration, directly referred to the Director and resulting in the commencement of this prosecution, to the Director for the purposes of commencing and conducting this prosecution?

   Answer:      Does not arise. The Commissioner did not act unlawfully in providing evidence and information to the Director as part of and for the purposes of the referral for prosecution by the Commissioner to the Director.

   Question 3: Did the Commissioner further act unlawfully in that–

   (a)     he provided transcripts of examinations conducted under s 29 and schedule 2 of the Act with Mr Shelton, Mr Fox and Mrs Bell to the Director for the Director’s use in this prosecution?

   Answer:      No.

   (b)     he continued to investigate the potential issue of corruption in public administration that resulted in this prosecution, including the use of coercive powers vested in or available to him under the Act, after the Director commenced this prosecution in the Magistrates Court for the purposes of this prosecution?

   Answer:      No. The Commissioner was entitled to continue to investigate the potential issue of corruption in public administration after the Director commenced the prosecution.

   (c)     he provided the evidence and information gathered as a consequence of continuing to investigate the potential issue of corruption in public administration that resulted in this prosecution after it was commenced by the Director, to the Director for use in this prosecution?

   Answer:      No. The Commissioner was entitled to provide to the Director the evidence and information gathered as a consequence of continuing to investigate the potential issue of corruption in public administration after the Director commenced the prosecution.

   (d)     under the direction of the Commissioner, the Commissioner’s investigators undertook tasks including the service of the Information and summons on the defendant, filing declarations and declaration delivery certificates, preparing witness statements and responding to requests by the Director to obtain witness statements for trial, locating and dealing with reluctant witnesses, attending proofings with witnesses and officers of the Director and serving subpoenas for trial, for the purposes of the conduct of this prosecution by the Director?

   Answer:      The filing and service of court documents, including the Information, declarations and subpoenas, was the function of the Director and not the Commissioner. The Commissioner was entitled to perform the other tasks as part of a continuing investigation into a potential issue of corruption in public administration.

   Does clause 70(3) of Schedule 1 to the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 require the prosecution of the accused to be discontinued, render the gathered evidence inadmissible and grant the accused effective immunity from the current prosecution?

5. The accused’s initial proposition[26] is that clause 70(3) of Schedule 1 to the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021, requires that the current prosecution must be discontinued,[27] provides that none of the prosecution evidence can now be used against him, and that it has the effect of granting him statutory immunity from the current prosecution,[28] indeed from any prosecution based on any of the evidence gathered by the ICAC in their investigation.

   [26]   Accused’s written submissions dated 18 October 2022, paras 1.1, 6-60.2 and the accused’s oral submissions throughout.

   [27]   Accused’s written submissions dated 18 October 2022, para 1.1.

   [28]   Accused’s written submissions dated 18 October 2022, para 15.

6. Given its suggested existential significance to the continuance of the prosecution, it should be set out in full;

   70—Investigations etc to continue

   (1) Subject to this clause, the Independent Commissioner Against Corruption Act 2012 as in force before the commencement of this Act continues to apply in relation to any complaint or report made under that Act on or before 25 August 2021, or any investigation commenced under that Act before 25 August 2021.

   (2) The following provisions of the Independent Commission Against Corruption Act 2012 as amended by this Act apply in relation to a matter referred to in subclause (1):

   (a)      section 6;

   (b) section 59A and Schedule 5 (but only in respect of legal expenses incurred after commencement of section 59A and, in relation to a matter involving suspected misconduct or maladministration in public administration, as if Schedule 1 of the Ombudsman Act 1972, as inserted by this Act and with any necessary modifications, applied instead of Schedule 5).

   (3) If a matter that continues to be dealt with under the Independent Commissioner Against Corruption Act 2012 as in force before the commencement of this Act in accordance with subclause (1) is not completed within 12 months after the commencement of this clause, the matter must be discontinued (but nothing prevents the matter being the subject of a further complaint or report under the Independent Commission Against Corruption Act 2012, or the Ombudsman Act 1972, as amended by this Act).[29]

   [29] Related amendments and savings and transitional provisions-Schedule 1 to the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021.

7. Clause 70 was one of several amendments to the ICAC Act passed in 2021. The amending legislation was introduced by a backbench member of the Legislative Council in August 2021, and accordingly his is the Second Reading Speech. The member concerned, the Hon F. Pangallo said the Bill arose from the recommendations of a Parliamentary Committee. He said:

   Among the major changes I am proposing are:

   • That ICAC be known as the Independent Commission Against Corruption—that is, removing the title of commissioner—and that its powers and responsibilities be revised to handle only matters of serious and systemic corruption.

   • That responsibility for misconduct and maladministration be conferred to the Ombudsman.

   •      That a separate and independent office of public integrity be established.

   • The establishment of an office of inspector, replacing the reviewer, with enhanced powers of review and oversight of ICAC and the OPI, reporting directly to parliament.

   •      Building effective protections for persons facing investigation by the commission.

   • Better managing public statements and reporting to protect people from reputational damage and harm.

   • That there be provisions, including retrospectivity, for the inspector to recommend remedies, including compensation, where individuals have suffered severe, undue prejudice to their reputations. …

   … The changes proposed in this bill, most of which I will outline shortly, are designed to make ICAC a more streamlined and more effective corruption-busting tool and, importantly, a more accountable integrity body than it has been.[30]

   … The reforms I am proposing are not intended to weaken the role of our integrity agencies. On the contrary, they are carefully considered amendments based on the recommendations made by the Crime and Public Integrity Policy Committee, provided to the Attorney-General some 10 months ago. They are intended to improve the performance and standing of the integrity agencies in the community and give the public confidence and trust in them.[31]

   [30]   Hansard, 25 August 2021, pg 4011.

   [31]   Hansard, 25 August 2021, pg 4015.

8. Unhelpfully, no reference to the meaning and purpose of the transitional provision in question was made by the member in the second reading speech.

9. During the subsequent debates, several members spoke. Historically, speeches by members in the course of debates, given by those unconnected with the germination of the legislation have been regarded as irrelevant to its interpretation, for obvious reasons. Such members may have had nothing to do with the formulation of such legislation, indeed may oppose it or substantially disagree with the mover’s interpretation of it.

10. Counsel’s position however, was that considering s 16 of the Legislation Interpretation Act 2021 (SA) now provides that any relevant material in the minutes of proceedings or the votes and proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament may be considered, the content of the debates were potentially relevant to the section’s interpretation.[32]

    [32]   Legislation Interpretation Act 2021 (SA), s 17(2)(h).

11. The amending legislation in question appears to have had near unanimous bi-partisan support. In my view, the relevance of a member’s pronouncements should be determined in accordance with the member’s degree of likely or apparent connection to the genesis and development of the Bill, such that the member’s views are likely to assist in an assessment of its purpose.

12. During the debates, the Treasurer observed that he had introduced the original legislation and supported the amending legislation. He said that the original and proposed amending legislation had attracted the closest of involvement, scrutiny and assessment by the government. He said that he had worked with others on the issue and as the Leader of the Government in the Legislative Council was responsible for the government’s handling of the passage of the bill. He referred to the transitional provision in question. No members disagreed with his observations. Neither counsel suggested his views were irrelevant. The Treasurer referred to the transitional provision in these terms:

    In terms of some of the details of the major changes in both the legislation and the amendment, I will now run through the government's view of the summary of those. I guess the major change is to modify the ICAC's jurisdiction so that the responsibility for investigating maladministration and misconduct will be transferred to the Ombudsman. That will also mean the capacity to do evaluations of government agencies would also transfer to the Ombudsman.

    Importantly, there is a saving provision in there. There is a 12-month transition arrangement so if there have been any current complaints lodged or investigations lodged before the start date— which is in August for this particular provision with the ICAC—the ICAC will be able to continue with those current complaints or current investigations which are on foot. If I can put it that way. The ICAC will have a 12-month period to complete those inquiries or investigations. …

    …   In addition, and as earlier mentioned, it establishes transitional arrangements under which public officers who are currently under investigation continue to be investigated using ICAC's existing jurisdiction, provided those investigations are resolved within 12 months, after which the new jurisdictional arrangements come into force. It establishes transition arrangements to preserve evidence already gathered by ICAC. It gives effect to certain other necessary transitional arrangements.[33]

    …  In concluding my indication of support from government members for this package of reform measures, it is important to re-emphasise that a crime today would remain a crime after this bill and amendments pass. What is contemplated by this act is a change to the jurisdiction of ICAC in particular, and a concentration of the ICAC on what many of us believe should be its true role, and that is identifying and rooting out corruption in South Australia.[34]

    [33]   Hansard, on resumption of debate, 22 September 2021, pg 4314-5.

    [34]   Hansard, on resumption of debate, 22 September 2021, pg 4315.

13. The first and primary source of meaning for any statutory provision, must be the words of the statute. 

14. In saying per 70(3):  ‘If a matter that continues to be dealt with under the Independent Commissioner Against Corruption Act 2012 as in force before the commencement of this Act in accordance with subclause (1)…’ (my emphasis), with subclause (1) providing that the Independent Commissioner Against Corruption Act 2012 as in force before the commencement of the amending Act continues to apply in relation to any complaint or report made under that Act on or before 25 August 2021 or any investigation commenced under that Act before 25 August 2021, it is clear that subclause (3) is intending to apply to matters commenced under the pre-amendment legislation that would by virtue of subclause (1) continue to be dealt with under the pre-amendment legislation. In other words, existing complaints, reports or investigations that commenced or were proceeding under the pre-amendment legislation; in this case, an investigation that was proceeding under the pre-amendment legislation at the time of the commencement of the clause.

15. In other words, the transitional provisions provide that per sub-clause (1), investigations commenced prior to 25 August 2021 will continue to be regulated by the pre-amendment Act. In other words, ‘…an investigation commenced under that Act’, will continue to be regulated by that (pre-amendment) Act. 

16. So, when sub-clause (3) provides that a ‘matter’, relevantly here an investigation commenced under the pre-amendment legislation, which is continuing to be dealt with under the pre-amendment legislation per sub-clause (1), is not completed within 12 months of the commencement of the clause, ‘the matter’ which must be discontinued is the investigation by ICAC pursuant to the pre-amendment legislation.

17. Accordingly, a literal reading of the legislation connotes that where an investigation by the ICAC under the pre-amendment legislation is in progress at the time of the commencement of the clause, the investigation by ICAC under the pre-amendment legislation may proceed for 12 months. After 12 months, what must be discontinued is the investigation by the ICAC under the pre-amendment legislation.

18. There is no suggestion that evidential material gathered must all then be discarded. Indeed, there would be no point in providing for an investigation to continue for 12 months only to provide that upon the expiry of that time the product of that very investigation must be discarded and rendered inadmissible in any prosecution.

19. Secondly, does the Second Reading Speech or other relevant material from the official record of debates assist in ascertaining the meaning of the provision? Whilst s 16(2) of the Legislation Interpretation Act 2021 (SA) per sub-clauses (f) and (h) indeed provides that regard may be had to both the speech of the member moving a Bill and to any official record of debates in either House of Parliament, the extent to which regard may be so had, is delimited by s 16(1). Section 16(1) provides that:

    (1) In the interpretation of a provision of an Act or a legislative instrument, if any material not forming part of the Act or instrument is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

    (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made); or

    (b) to determine the meaning of the provision—

    (i)      if the provision is ambiguous or obscure; or

    (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made) leads to a result that is manifestly absurd or is unreasonable.

20. The extrinsic materials are accordingly potentially relevant if they confirm the meaning is the ordinary meaning as conveyed by the text. Otherwise, if the provision is ambiguous or obscure, they may determine the meaning, and may also do so if the ordinary meaning would lead to a result that is manifestly absurd or is unreasonable.

21. Accordingly, so long as a provision is not ambiguous or obscure, it will retain its ordinary literal meaning unless that would lead to a manifestly absurd or unreasonable result.

22. Two observations are accordingly plain. Firstly, the words are not ambiguous or obscure. They allow an investigation which is on foot under the pre-amendment legislation to continue for 12 months, after which the investigation under the pre-amendment legislation must discontinue.

23. Secondly, such an interpretation would not lead to a manifestly absurd or unreasonable result. It would mean that there would be a transitional period to allow for existing stages of investigations that may be incomplete or part-complete which may be utilising amended or deleted sections of the Act, or occurring pursuant to a specific coercive power that is being amended or deleted, to complete rather than for example being rendered illegal mid-stride. That is not manifestly absurd or unreasonable. The literal meaning is, in a legal sense, clear and reasonable.

24. Are the parliamentary speeches ‘capable of assisting in the ascertainment of the meaning of the provision’, either per s 16(1)(a) in support of a literal interpretation of the provision, or if I am wrong as to the clarity and reasonableness of the literal interpretation, per s 16(1)(b)?

25. The proposing member told parliament that the purpose of the amendments was to make ICAC a more streamlined, more effective and accountable corruption-busting tool,[35] and that the amendments were not intended to weaken its role. He said they were intended to improve the performance and standing of the State’s integrity agencies in the community and give the public confidence and trust in them.[36]

    [35]   Hansard, 25 August 2021, pg 4011.

    [36]   Hansard, 25 August 2021, pg 4015.

1. The Treasurer told parliament that the major change was to modify the ICAC's jurisdiction so that the responsibility for investigating maladministration and misconduct would be transferred to the Ombudsman.

2. It was in that context that the Treasurer said that the intention behind the saving provision was to provide a 12-month transition arrangement so that if there were any current investigations lodged before the provision’s August start date the ICAC would be able to continue with those current investigations which were on foot and would have a 12-month period to complete those investigations.

3. As set out in the referenced portions of Hansard, the Treasurer said that the transitional arrangements were so that public officers who were currently under investigation continued to be investigated using the ICAC's existing jurisdiction, provided those investigations were resolved within 12 months. He said that after 12 months the ‘new jurisdictional arrangements’ would come into force. In other words, for 12 months the ICAC could continue to investigate pursuant to their former jurisdiction utilising their former powers, after which an investigation per those old powers and jurisdiction must cease.

4. In saying that the amending legislation ‘… establishes transition arrangements to preserve evidence already gathered by ICAC’, the Treasurer made it plain that it was intended that all evidence gathered by ICAC up until that point would be retained and available for use after the expiry of the 12 months.[37]

   [37]   Hansard, on resumption of debate, 22 September 2021, pg 4314-5.

5. In concluding his speech, the Treasurer emphasised that an existing ‘crime today would remain a crime after this bill and amendments pass’ and that the purpose of the amending legislation was to change the jurisdiction of ICAC and concentrate it on ‘… its true role, and that is identifying and rooting out corruption in South Australia’.[38]

   [38]   Hansard, on resumption of debate, 22 September 2021, pg 4315.

6. There is no indication in the words of the amending clause 70 that any current prosecution arising out of an ICAC investigation commenced prior to the amendments must be discontinued if it has not gone to verdict within 12 months of the transitional provisions, as effectively submitted by the accused.[39] There is no indication in the words of the amending clause 70 that none of the evidence gathered by the ICAC in the course of any of their investigations could be used in any prosecution after 12 months has expired subsequent to the amending provisions, nor that it has the effect of granting a person in the accused’s position any kind of effective statutory immunity from the current prosecution,[40] or indeed from any prosecution based on any of the evidence gathered by the ICAC in their investigation.

   [39]   Accused’s written submissions dated 18 October 2022, para 1.1.

   [40]   Accused’s written submissions dated 18 October 2022, para 15.

7. Neither is there any indication in the parliamentary speeches or debates that this might be the intention or meaning of the statute. To the contrary, there are indications that the intention is to preserve already gathered evidence for appropriate use, and throughout all the debates all speakers variously maintain that the investigation of alleged corruption in the state is important and is not intended to be impeded by these amendments.

8. In the court’s view, these materials strongly support a literal reading of the amending clause 70 and provide no support for the accused’s contentions to the contrary.

9. The interpretation contended by counsel for the accused is that any evidence of potential or actual corruption gathered by the ICAC prior to 25 August 2022 during an investigation commenced prior to 25 August 2021, could never now be used in any prosecution of a corruption matter. The contention is that SAPOL would need to start from scratch to look for evidence, unable to use any of the already gathered evidence. SAPOL would need to go back to witnesses who have given statements and try to take new statements about the exact same subject matter, possibly doubling the time and cost to the State of any such investigation by requiring the entire investigation to occur again. It would mean that a matter ready for prosecution, would have been able to go ahead if the evidence could be tendered by 25 August 2022, but not if the trial commenced the following week. Outcomes such as these would, to use the language of s 16(1)(b) of the Legislation Interpretation Act 2021, lead to manifestly absurd and unreasonable results. Such arbitrary and unreasonable consequences, productive of such potential waste of time, resources and delay could not have been the intention of parliament.

10. The court has carefully considered counsel for the accused’s wide-ranging and comprehensive arguments to the contrary, however in the court’s view, the clear effect of clause 70 of the amending legislation is to allow the ICAC to continue to investigate a matter for a further 12 months under the powers and jurisdiction of the pre-amending legislation, but require it to cease investigating such a matter under their pre-amendment powers and jurisdiction after 12 months. After that time, ‘nothing prevents the matter being the subject of a further complaint or report’ under the amended legislation; in other words, any further investigation by the ICAC could only occur pursuant to the amended jurisdiction/powers provided in the amended legislation.

11. The amendments do not mean that evidence gathered prior to the amendments becomes inadmissible. The amendments do not mean that investigations must start again from scratch, nor that already-gathered evidence must be discarded and collected again from scratch by SAPOL.

    The prosecutorial duty of disclosure

12. It is settled law that to ensure a fair trial the Crown has a duty to disclose all information in its possession or known to it that on a sensible appraisal by the prosecution is relevant or possibly relevant to an issue in the case, raises or possibly raises a new issue that was not apparent from the prosecution case or that holds out a real prospect of providing a lead in relation to evidence concerning such matters.[41]

    [41]   R v C, DR & Ors [2006] SASC 158, Carter v Hayes (1994) 61 SASR 451, R v Bunting & Ors [2002] SASC 412, Edwards v The Queen (2020) 95 ALJR 808, Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300.

13. It has been held that in relation to the issue of disclosure, a failure to comply with the duty may result in a stay if it is shown that as a consequence there is a ‘tangible risk’ that the trial would be unfair or that the trial is ‘likely’ to be unfair.[42]

    [42]   DPP v Kinghorn (2020) 102 NSWLR 72, Gould v DPP (2018) 333 FLR 352.

14. The Full Court held in its earlier decision concerning the case at bar that the duty of disclosure is owed by the state, including its organs both the DPP and the ICAC.[43]

    Does an undertaking given by the DPP to the High Court on 15 March 2022 mean that the DPP cannot guarantee that proper disclosure will continue to be made to the accused, such that the accused cannot receive a fair trial – the meaning and effect of the undertaking itself.[44]

    [43]   R v Bell [2020] SASCFC 116 at [183].

    [44]   Accused’s written submissions dated 18 October 2022, para 1.2. The second aspect of para 1.2, an alleged ‘failure to provide disclosure up to this point’, will be dealt with later in these reasons.

15. As set out earlier in these reasons, the accused previously made application for a stay. On 7 August 2020 the District Court delivered judgment declining to order a stay but finding that some of the ICAC’s actions had not been authorized by the ICAC Act,[45] whereupon the accused appealed the decision, and at the DPP’s behest questions of law concerning the powers and functions of the Commissioner were also reserved for the consideration of the Full Court.[46]

    [45]   R v Bell [2020] SADC 107.

    [46]   Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, paras 8-12.

16. On 3 December 2020 the Full Court delivered judgment. The accused made application for special leave to the High Court, which was initially granted in part. Special leave was ultimately revoked after a supervening amendment to the ICAC legislation, and the giving of an undertaking by the DPP.

17. The accused’s second primary proposition is that because of the undertaking given by the DPP to the High Court on 15 March 2022, the DPP cannot guarantee that proper disclosure will continue to be made to the accused, which together with an alleged failure to provide disclosure to date, mean that the accused cannot receive a fair trial.[47]

    [47]   Accused’s written submissions dated 18 October 2022, para 1.2.

18. The court will initially address the meaning of the undertaking given to the High Court, and whether it has the effect contended by the accused.

19. As is apparent from the tendered transcript of proceedings before the High Court on 13 August 2021, the accused appealed both the Full Court’s answers to the reserved questions of law (set out in full earlier in these reasons), and the Full Court’s refusal to stay the prosecution. As is apparent from the transcript, the DPP whilst opposing leave, agreed that the questions of law remained important questions. The High Court granted leave to appeal the Full Court’s reserved questions of law but refused leave to appeal the Full Court’s decision refusing a stay of proceedings.

20. The meaning of an undertaking will ordinarily be informed by its context. To understand the context of this undertaking, it is necessary to distill which issues were proceeding for the High Court’s consideration at the time it was given. The accused had already succeeded before the Full Court in establishing in answer to question 3(d) that the filing and service of court documents, including the Information, declarations, and subpoenas, was the function of the Director and not the ICAC, so that issue was not one being pursued.

21. The extant questions answered by the Full Court were to the effect that the ICAC did not act unlawfully in providing evidence and information to the DPP as part of and for the purposes of the referral for prosecution by the ICAC to the DPP, nor in providing transcripts of examinations conducted under s 29 and Schedule 2 of the Act with Mr. Shelton, Mr. Fox and Mrs. Bell to the Director for the Director’s use in this prosecution, (in February 2017, when charges were in contemplation such persons being potential witnesses).

22. The Full Court answered the remaining questions to the effect that the ICAC was entitled to continue to investigate the potential issue of corruption in public administration after the DPP commenced the prosecution and was entitled to provide to the DPP the evidence and information gathered as a consequence of it continuing to investigate the potential issue of corruption in public administration after the DPP commenced the prosecution.

23. Those were the matters about which the High Court granted leave to appeal. At the core of those extant questions and answers was the ICAC’s ability to continue to investigate a matter when a prosecution was in contemplation and while it was being prosecuted, and in the course of so doing, provide the DPP with evidence it may gather in the process, whether or not the DPP continued to use the ICAC investigators to investigate to assist the preparation of the prosecution or whether they investigated of their own motion pursuant to s 43 of the ICAC Act.

24. In the course of the DPP application to revoke leave, counsel for the accused raised a concern that ICAC officers who owed ‘their sole duty to an ICAC are in fact performing the task routinely performed by police officers who, when those tasks are performed by police officers, owe distinct statutory duties to the DPP’,[48] and ‘… So what you have are these two spheres of statutorily enshrined independence co-existing in the conduct of a prosecution. That is one of the very matters we rely on in the appeal proper as contraindicating that parliament intended that ICAC officers would act as an investigative arm in a prosecution, because the two regimes simply do not work together’.[49]

    [48] [2022] HCA Trans 30, pg 10.

    [49] [2022] HCA Trans 30, pg 11.

25. Counsel for the accused put to the High Court that the amending legislation that had changed the relevant entity from a commissioner to a commission, ‘…will not stop the DPP seeking to use ICAC officers as the investigative arm of the prosecution. So there will be a significant impact necessarily for all eight[50] prosecutions’.[51] Counsel for the accused reminded the High Court that the Full Court had held that s 43 of the ICAC Act enabled the ICAC to continue to investigate a charged person of their own motion and could do so in aid of a prosecution.[52]

    [50]   It is common ground that there are current prosecutions against seven or eight other persons affected by the amending legislation.

    [51] [2022] HCA Trans 30, pg 12.

    [52] [2022] HCA Trans 30, pg 14.

26. During the DPP’s oral reply to the High Court, the DPP agreed that he could not direct the ICAC, whereas pursuant to the Director of Public Prosecutions Act 1991 the DPP could direct police who were investigating or prosecuting offences on behalf of the Crown.[53]

    [53] [2022] HCA Trans 30, pg 16.

27. When quizzed by the High Court as to why the DPP would want to continue to use the ICAC to perform the limited function of bringing witnesses to proofings and noting any further information provided at those proofings, the only functions the DPP said it would require of them, the DPP replied it was largely for convenience as those officers had a knowledge of the case, and that those tasks could just as easily be performed by police.[54]

    [54] [2022] HCA Trans 30, pgs 17-18.

28. After a short adjournment the High Court reconvened and raised the issue of an undertaking from the DPP. I set out, in context, the undertaking that was then given.

    KEANE J: Mr Hinton, the Court would be disposed to grant your application for revocation subject to the provision of an undertaking in these terms. The Director undertakes not to make any further requests of the Commission for assistance in the prosecution of any matter covered by item 70(1) of Part 21 of Schedule 1 of the 2021 Act. Now, are you in a position to give that undertaking?

    MR HINTON: If I understand it correctly, the effect of it is that, going forward, I use the South Australia Police.

    KEANE J: That is right.

    MR HINTON: I am prepared to give that undertaking, yes, your Honour.

    KEANE J: Very well. Upon the undertaking of the Director not to make any further requests of the Commission for assistance in the prosecution of any matter covered by item 70(1) of Part 21 of Schedule 1 of the 2021 Act, special leave is revoked. It is revoked on the footing that since the grant of special leave in this matter, the South Australian Parliament passed the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021.

    In consequence of that Act coming into force, the provisions of the Independent Commissioner Against Corruption Act2012 which govern the issues in the present matter will no longer apply in South Australia. The resolution of the issues of construction which arose in relation to the provisions of the 2012 Act is no longer a matter of sufficient general importance to sustain the grant of special leave to appeal to this Court. Special leave is revoked.

    The Court will now adjourn until 9.30 am tomorrow for the pronouncement of orders and otherwise until 9.45 am.

29. What had been being discussed immediately prior to the High Court’s short adjournment was the DPP’s proposed continued use of ICAC officers to perform the limited ‘prosecution support’ role outlined, of bringing witnesses to proofings and noting any further information provided at those proofings. This was in the context of the accused’s concerns that such ICAC officers were not actually subject to binding direction in the way police were, and who were able per the Full Court’s interpretation of s 43 of the ICAC Act, to continue to investigate alleged corruption of their own motion.

30. The undertaking by the DPP, as indicated, was in the following terms: ‘Not to make any further requests of the Commission for assistance in the prosecution of any matter covered by item 70(1) of Part 21 of Schedule 1 of the 2021 Act’. It is common ground that there were 8 such prosecutions on foot which were covered by the said transitional provision. Insofar as relevant to the case at bar, the undertaking was that the DPP would not request the ICAC to assist in the prosecution of the current matter. As the transcript indicates, the DPP sought to clarify his understanding of the undertaking he was being asked to give; ‘…If I understand it correctly, the effect of it is that, going forward, I use the South Australia Police’. The answer was in the affirmative.

31. Both in its words, and in context, the meaning of the undertaking is clear. It was to undertake that as the DPP went about its ordinary preparation of this case for trial, in making any administrative request such as bringing a witness to a DPP proofing or to court, or any request for supplementary investigation ahead of trial, the DPP would address any such request to the police (who have enforceable duties and obligations to the DPP) and not to the ICAC. The police would then perform such functions subject to the legal obligations they owe to the DPP, and pursuant to the ordinary and uncontroversial powers they would exercise in all other cases.

32. Neither in its words, nor in the said meaning informed by the context, is the undertaking such as to render any subsequent trial unfair.

33. In any event, the undertaking was itself formulated by the High Court as appropriate for the DPP to give in the circumstances of this case, and on that basis leave to appeal the Full Court’s judgment was refused, with the plain contemplation by the High Court that the prosecution could now proceed to trial subject to any new or further pre-trial issues arising. In those circumstances, in the absence of some matter unknown to the High Court at the time of the undertaking, the legal appropriateness of an undertaking crafted by the High court as appropriate in the matter must, all other things being equal, also be recognised.

34. For all these reasons, the giving of the undertaking is not itself such that the accused cannot have a fair trial.

35. The accused however further contends that the way the DPP has subsequently interpreted the undertaking means that appropriate prosecutorial disclosure cannot be assured and for that reason he cannot receive a fair trial.

    Does the undertaking given by the DPP to the High Court on 15 March 2022 mean that the DPP ‘cannot guarantee that proper disclosure will continue to be made to the accused, such that the accused cannot receive a fair trial’[55]

    [55]   Accused’s written submissions dated 18 October 2022, para 1.2.

36. Counsel for the accused advanced comprehensive written and oral argument, and tendered affidavit material in support of this proposition. The court has carefully reviewed and considered all the accused’s written and oral contentions and material, however will not set them all out in these reasons.

37. The accused primarily contended that the DPP could not guarantee that proper disclosure has been, is being and will be made to the defence, for two main reasons. Firstly, because the accused contends that the undertaking given by the DPP to the High Court means that the DPP cannot now ask the ICAC either directly or indirectly to make disclosure of any undisclosed material in their possession, nor ask the ICAC to even provide an assurance to the DPP and the defence that they have made all relevant disclosure. Secondly, because the ICAC are independent of direction by the DPP and hence cannot be compulsorily directed to make disclosure by the DPP. 

1. To supplement those contentions the defence put that although the 2021 jurisdictional changes to the ICAC Act mean that the offences with which the accused is charged are no longer within the jurisdiction of the ICAC to investigate, and hence they have no current legislative power to investigate them, the defence suspects they may still be doing so unlawfully pursuant to s 43.

2. To address this latter submission first, s 7 of the amended ICAC Act now in force prescribes the investigation function of the ICAC as to investigate ‘corruption in public administration’. ‘Corruption in public administration’ is now strictly defined and delimited in s 5 of the amended ICAC Act to conduct that constitutes an offence against Part 7 Division 4 (Offences related to public officers) of the Criminal Law Consolidation Act 1935, an offence against the Public Sector (Honesty and Accountability) Act 1995 or the Public Corporations Act 1993. If during such investigations, the ICAC identifies any other offence its function is to refer that matter elsewhere for investigation.

3. The accused is charged with theft pursuant to Part 5 Division 2 of the Criminal Law Consolidation Act 1935 and dishonestly dealing with documents pursuant to Part 5 Division 6 of the Criminal Law Consolidation Act 1935. As is apparent, such alleged offences are no longer within the investigational remit of the ICAC.

4. The offences with which the accused is charged should not therefore be the subject of any ongoing investigation by the ICAC post the expiry date of the application of the transitional provisions to any investigation commenced under the pre-amendment legislation, which was 12 months after the commencement of the transitional provisions, which was 7 October 2022.

5. So, per the undertaking given by the DPP, as of 15 March 2022 the DPP agreed not to request any assistance from the ICAC either to conduct any further investigations, nor to perform prosecutorial support duties ordinarily carried out by SAPOL.

6. Further, per the amending legislation, since 7 October 2022 the ICAC have not as a matter of law had the function of investigating the category of offence with which the accused is currently charged.

7. Accordingly, the issue of whether disclosure of relevant materials by the ICAC has, is and will occur must be seen in the context that since 7 October 2022 the ICAC have had no statutory remit to investigate the matter and accordingly bring such materials into existence, and that since 15 March 2022 the DPP has undertaken not to request their assistance either by way of any further investigations or providing the prosecutorial support function.

8. The accused contends that the undertaking (and the transitional provisions) mean that the ICAC cannot be asked to do anything at all in relation to the accused’s upcoming trial; whether by way of its officers giving evidence, providing any documents or materials it obtained or created during the investigation, or otherwise. Relevant to this aspect of the stay application, the accused contends that the DPP undertaking means that the DPP cannot now ask the ICAC to either provide disclosure, ask it to list relevant materials or even give any assurance that it has provided full disclosure to date.

9. The DPP maintain that they have and will continue to comply with the undertaking not to ask the ICAC to assist by way of any further investigation or by way of any prosecutorial support role. They also maintain that the DPP, via the police, is entitled to treat the ICAC witnesses and ICAC-gathered evidence in the same way as they would evidence in the possession of any other entity or person in the lead up to a trial. The DPP maintains such witnesses can be proofed and called to give evidence in the same way as any other witness, and such evidence legally obtained and created by the ICAC in their earlier investigation can be obtained from them and tendered by the DPP at trial in the same way as evidence in the possession of any other person or institution in the community.

10. In the court’s opinion, on a close analysis of the pre and post amendment legislation and in particular the transitional provisions discussed in some detail earlier in these reasons, there is nothing to indicate that evidence lawfully gathered by the ICAC under its pre-amendment jurisdiction cannot or should not be used by the DPP in an extant prosecution.

11. Further, the parliamentary speeches and debates insofar as they address the issue maintain that an existing ‘crime today would remain a crime after this bill and amendments pass’,[56] indicating no intention to end all extant prosecutions for existing offences, or render their ability to proceed subject to vagaries such as their trial date.

    [56]   Hansard, 22 September 2021, pg 4315.

12. Nor, as discussed, is there any indication that all gathered evidence would become inadmissible, requiring police to needlessly start again and replicate, if they could, the entire investigation, then re-charge an accused again; all at great delay and multiplication of cost to both the community and the accused. Such a dramatic, arbitrary, costly, evidentially and jurisprudentially unnecessary outcome would have to be articulated in the clearest of terms.

13. At the cut-off date set out in the transitional provisions it is clear that the ICAC’s old jurisdiction and old powers to investigate a matter previously commenced cease, and any further investigation into a matter can only occur pursuant to a new complaint or report and pursuant to the amended new jurisdiction and powers.

14. It is clear both from the literal words and parliament’s expressed intention that what must cease at that time is ‘investigation’, not prosecution. It is plainly in statutory contemplation that evidence may arise from such prior investigation, and equally in contemplation that it may be relevant to a subsequent prosecution. Indeed, s 36(2) of the ICAC Act in its current form specifically provides that the ICAC may disclose to a relevant law enforcement agency, earlier defined to include SAPOL, ‘any evidence or information the Commission has in relation to a matter’ that it has investigated but that has been referred to a relevant law enforcement agency for further investigation and potential prosecution.

15. Whilst not authorised to further investigate the current matter as it sits outside the ICAC’s now-amended jurisdiction, the ICAC now sits in no different position to any other witness or entity in the community who may be in possession of evidence of an alleged crime, and like any other witness or entity in the community can accordingly be asked or subpoenaed to provide it for the purposes of prosecuting or defending a criminal case. The provision of ‘any evidence or information that the commission has in respect of a matter’ referred for the purposes of further investigation and/or prosecution to a law enforcement agency such as SAPOL, is authorised per s 36(2).

16. As to disclosure, the ICAC then has the same relationship to SAPOL and the DPP as any other witness or entity in the community. Absent a new complaint or report, which would not be expected as there is no longer jurisdiction to investigate these two categories of offence, the ICAC is no longer an investigatory body in relation to this matter. So far as the current prosecution of this accused is concerned, they are now just an entity in possession of some evidence relevant to a case at bar. It is true that they cannot be ‘directed’ to do things by the DPP via the police, but neither can many other potential witnesses or entities in possession of evidence.

17. There is no statutory reason why the DPP or the DPP via SAPOL cannot ask any person or entity in the community whether they have disclosed everything relevant to a particular upcoming prosecution, and if they have any doubt issue a subpoena to that person or entity.

18. To do so, is not to ask that person or entity to ‘investigate’ the alleged offence, nor to provide ‘assistance’ in the conduct of the prosecution as the undertaking ought properly to be understood. Rather, asking a witness or entity to make or confirm disclosure, is properly characterised as a standard pre-trial procedure conducted by SAPOL and the DPP to ensure prosecutorial obligations of disclosure are complied with. Any response by a witness or entity to such a request is not in the court’s view prohibited by the ICAC Act or any law, nor contrary to appropriate prosecutorial practice.

19. Accordingly, absent the undertaking, there is no legal reason why the DPP cannot take steps to assure himself and the defence that all relevant disclosure has been made, by asking the ICAC for such assurance or further disclosure, and if either it or the defence are not satisfied with any such assurance, issue a subpoena. Such is commonplace in criminal trials in this state. 

20. So, does the undertaking have the effect contended by the accused, of preventing the DPP from asking the ICAC for any further disclosure or from seeking any assurance from the ICAC that it has made full disclosure?

21. As earlier discussed, the context, the words themselves and the clarificatory answer given by the High Court to the DPP’s question, together render the meaning of the undertaking clear. It was to undertake that as the DPP went about its ordinary preparation of this case for trial, that in making any administrative request for prosecutorial support such as bringing a witness to a DPP proofing or to court, or any request for supplementary investigation ahead of trial, the DPP would address any such request to SAPOL (who have enforceable duties and obligations to the DPP) and not to the ICAC. SAPOL would then perform such functions subject to the legal obligations they owe to the DPP, and pursuant to the ordinary and uncontroversial powers they would exercise in all other cases.

22. The substance of the undertaking is that the ICAC would not be requested to further investigate in any way, and that the police would conduct both any further investigation requested by the DPP and also undertake the prosecutorial support role that they ordinarily perform in other cases, rather than such prosecutorial support role being undertaken by ICAC officers.

23. The undertaking contemplates no other departures from the ordinary conduct of a prosecution, which such ordinary conduct of a prosecution may involve the DPP via the police asking witnesses and entities about the evidence and materials they have in their possession, and whether all relevant materials have been disclosed to the DPP.

24. Asking a witness or entity to make or confirm disclosure is properly characterised as a standard pre-trial procedure conducted by SAPOL and the DPP to ensure prosecutorial obligations of disclosure are complied with, rather than the ‘assistance in the prosecution of any matter’ contemplated by the High Court when it proposed, explained, and received the undertaking given by the DPP.  That ‘assistance’ was per any further investigations, and in performing the prosecutorial support role.

25. Accordingly in the court’s view it is both lawful and not in breach of the DPP’s undertaking for the DPP, should it decide to do so, to ask the ICAC via SAPOL to disclose any hitherto undisclosed relevant material if there be any, or to similarly ask the ICAC to provide an assurance that they have made all relevant disclosure.

26. The DPP submitted that while they are both willing and prepared to do so, and take the view it is lawful for them to do so, they have been reticent to do so in light of counsel for the accused’s stance that such action would be in breach of their undertaking to the High Court and would constitute contempt of court.

27. That reticence was repeated during current submissions when defence counsel declined to provide any assurance that the defence would not seek to issue contempt proceedings or agitate contempt proceedings against the DPP or the individual prosecutors of this matter, should they seek any further disclosure from the ICAC or seek assurances about disclosure from the ICAC.[57]

    [57] T221-222, 239-247.

28. In the court’s view it is lawful and not in breach of the DPP’s undertaking, for the DPP in all the circumstances of this case, to treat the ICAC in this matter the same way they would any other witness or entity in possession of material relevant to a prosecution, in terms of requesting via the police any further relevant disclosure, or assurances of disclosure.

29. The court turns to review the tendered affidavit material to assess whether the evidence reveals the alleged failure to make relevant disclosure to date.[58]

    Is there a prosecutorial failure to make relevant disclosure to date such that alone or together with other matters the accused cannot receive a fair trial.[59]

    [58]   Accused’s written submissions dated 18 October 2022, para 1.2.

    [59]   Accused’s written submissions dated 18 October 2022, para 1.2.

30. The accused contends that:

    … the conduct of the Director (DPP) and the ICAC in the other 7 matters, including P*****, E****, J****** and T******** exposes the inability of the (DPP) to guarantee proper disclosure without breaching the undertaking.

    ‘Even if the ICAC had voluntarily provided disclosable information to the DPP after 15 March 2022 (that is, absent a request from the DPP), the DPP was not in a position to guarantee that all proper disclosure had been made. It is reasonable to believe, as set out above, that ICAC documents have not been disclosed. However, the DPP has not made a request for any disclosure of any ongoing investigation. Nor has ICAC voluntarily handed over any further information or documents. It follows therefore that the DPP cannot “guarantee” that full disclosure has occurred, and that the accused won’t learn for the first time during a witness’s evidence what investigations have taken place since the giving of the undertaking by the DPP to the High Court on 15 March 2022.[60]

    [60]   Accused’s written submissions dated 18 October 2022, paras 36-37.

31. As earlier discussed, it is lawful and not in breach of the undertaking for the DPP to request via SAPOL any further disclosable information from the ICAC. The prosecution has offered to do so immediately and believe they may lawfully do so, although they have some hesitation in circumstances where they perceive the accused may, and his counsel has not ruled out the possibility that the defence will, agitate contempt proceedings against the DPP or one or more of its officers if it does so, with such contempt proceedings also having the potential to further delay the prosecution.[61]

    [61]   T239-247.

32. All that was and is accordingly required for the DPP to, without such hesitation, formally request that the ICAC make any further disclosure or give an assurance that it has made full disclosure, was and is for the defence to indicate that without in any way abandoning their submissions or their legal position in support of a stay, they would not at this time take or agitate actual contempt proceedings against the DPP or this trial’s allocated prosecutor for doing so. Whilst there was and is no compulsion for the defence to do so, and there is never any onus on the defence in a criminal trial, to do so would not reveal the defence or any aspect of it or require any action on the part of the defence. It would be a procedural assurance that collateral legal action would not be commenced or agitated by the defence against the DPP or this trial’s prosecutor for the DPP attempting to ensure and assure proper ICAC disclosure is made to the defence. In this way, the said further DPP action to ensure and assure ICAC disclosure has been and is immediately available to the accused.  This aspect of the accused’s concerns has accordingly been and is immediately resolvable at the discretion of the defence.

33. The DPP may now lawfully take such action in any event, considering this ruling. That is a matter for the DPP. 

34. The defence also contends that it has provided evidence that ‘raises a reasonable, and very serious, possibility that the accused cannot receive a fair trial according to law precisely because he (the DPP) cannot comply with his disclosure obligations’.[62]

    [62]   Accused’s written submissions dated 18 October 2022, paras 61-81, in particular, paras 62 and 75.

35. Affidavits from the accused’s solicitor Mr Henderson were tendered, said to set out the accused’s relevant disclosure requests and prosecution responses ‘in summary form’.[63] The court has read, reviewed, and considered all the affidavits tendered on behalf of the accused on this application.

    [63]   Accused’s written submissions dated 18 October 2022, para 62.

36. The court will not set all the affidavit material out in full but has considered all the material. The court has carefully considered it together with each and every argument, oral and written, advanced by the accused.

37. By way of his initial affidavits in this application dated 26 September 2022 and 7 October 2022 Mr Henderson attaches correspondence between the DPP and the defence on the topic of disclosure between 4 September 2022 and 6 October 2022.[64]

    [64]   Affidavits of Joseph Robert Henderson dated 26 September 2022 and 7 October 2022.

38. Mr Henderson’s affidavit of 26 September 2022 deposes his belief that the DPP had ‘…filed an affidavit in another matter, the matter of P***** ‘relating to the undertaking and of enquiries and correspondence had with SA Police regarding the prosecution of matters to which the undertaking relates…’. Mr Henderson deposes that he had on 4 and 5 September 2022 requested a copy of the DPP affidavit filed in P*****, together with disclosure of:

    5.2 all communications between the office of the DPP, the ICAC and, or SA Police since the undertaking was given by the DPP to the High Court in relation both to the undertaking and the prosecution of Mr Bell;

    5.3 all communications between the office of the DPP and any defendant or witness to criminal proceedings in relation to the status and interpretation of the undertaking;

    5.4 all emails and electronic communications between the DPP and ICAC (and any records and notes thereof) in relation to this investigation since the undertaking was given to the High Court in relation to this investigation and the prosecution of this matter;

    5.5 any and all notes, records and emails of SAPOL in relation to this investigation since the undertaking was given to the High Court; and

    5.6 all information and records of all communications with any potential witness since the undertaking was given to the High Court.

39. Mr Henderson further deposed in his affidavit of 26 September 2022 that he received a reply from the DPP on 6 September 2022 that it was their position that they had ‘no obligations of disclosure concerning the undertaking’.

40. Mr Henderson’s affidavit of 7 October 2022 initially summarises correspondence with the DPP between 6 September 2022 and 6 October 2022 in relation to ‘disclosure and the undertaking’ wherein each party sought clarification of the other party’s position. It also mentioned correspondence from the DPP referring to previous DPP correspondence setting out the DPP position and the DPP’s assurance that it was complying with the undertaking, and the operational assistance the DPP had received from SAPOL in respect of the prosecution. It deposed that the DPP said that it had filed an outline as to its disclosure and had invited the defence to discuss the legitimate forensic purpose behind the request for further disclosure.

41. Mr Henderson’s affidavit of 7 October 2022 then deposes that in two factually unrelated prosecution matters of P***** and E****, said to be subject to the same undertaking, the accused in those matters had filed and argued applications for a stay and Mr Henderson’s affidavit attached some of the filed documents in those matters.[65] The filed documents indicate that in those two matters the defence is seeking stays, taking a broadly similar stance to the undertaking and its consequences as the defence in the case at bar.

    [65]   Affidavit of Joseph Robert Henderson dated 7 October 2022, paras 6-13.

1. The affidavit of DPP prosecutor Ms Tollenaar dated 6 October 2022 deposes that its purpose is to firstly provide context to several of the extracts of certain correspondence and matters deposed by Mr Henderson in his affidavit of 26 September 2022, and to update the DPP position as to disclosure. Ms Tollenaar initially sets out the following statement by the current prosecutor to the defence, given on 29 July 2022:

   I provide an update as to ongoing compliance with the Director’s High Court undertaking so that you are clear. Following the Director’s undertaking given on 15 March 2022, as at today’s date, the Prosecution team working on the matter (myself, Keryn Park and Peta White) have not sought any assistance from the ICAC in prosecuting the case. We have only sought the assistance of SAPOL officers. Specifically, we have sought their assistance in preparing and serving subpoenas, and in arranging and attending meetings with witnesses to update them about the March trial listing. The Director’s undertaking has been complied with.[90]

   [90]   Affidavit of Peta Louise Tollenaar dated 6 October 2022, para 3.

2. Ms Tollenaar’s affidavit of 6 October 2022 deposes that her review of correspondence in the matter found no disclosure requests from the defence between June 2020 and 4 September 2022.

3. Ms Tollenaar’s affidavit of 6 October 2022 deposes that there was correspondence dated 4 and 5 September 2020 sent by the defence to the DPP prosecutor, and annexes that correspondence. That annexed correspondence comprises 2 emails from Mr Henderson requesting an affidavit:

   … that the Director may have filed in another matter relating to his interpretation of the undertaking given by him to the High Court in Mr Bell’s matter’, and requesting disclosure of ‘1. All communications between the office of the DPP, the ICAC, or, SA Police since the undertaking was by the Director to the High Court in relation both to the undertaking and the prosecution of Mr Bell; and 2. All communications between the office of the DPP and any defendant or witness to criminal proceedings in relation to the status and interpretation of the undertaking given by the Director to the High Court.’[91] And: ‘Further to … (that request) … ‘… are you able please to obtain and disclose: 1. All emails and electronic communications between the DPP and ICAC (and any records and notes thereof) in relation to this investigation since the High Court undertaking was given in relation to this investigation and the prosecution of the matter. 2. Any and all notes, records, and emails of SAPOL in relation to this investigation since the High Court undertaking was given in relation to this investigation and the prosecution of the matter. 3. All information and records of all communications with any potential witness since the High Court undertaking was given in relation to this investigation and the prosecution of the matter.[92]

   [91]   Email from Mrs Shaw dated 5 September 2022 exhibited to the Affidavit of Peta Louise Tollenaar dated 6 October 2022.

   [92]   Email from Mrs Shaw dated 6 September 2022 exhibited to the Affidavit of Peta Louise Tollenaar dated 6 October 2022.

4. Ms Tollenaar’s affidavit of 6 October 2022 deposes that such emails from the defence sat within a broader passage of correspondence, and that the passage from the prosecutor that had been deposed by Mr Henderson in paragraph 6 of his affidavit dated 26 September 2022 sat within that context. The prosecutor had said to the defence on 5 September 2022: ‘I refer you to my letter to you and your instructing solicitor dated 29 July 2022. I made plain at page 4 what matters the prosecution had sought the assistance of SAPOL in respect of, and that there had been no breach of the undertaking given by the Director to the High Court. That remains the case as of today. In the circumstances, the Director has no obligations of disclosure pertaining to the undertaking. Your requests sent in the last day are without any discernible relevance. As such I put you on notice that any subpoena on the topic will be opposed by the Director’s office’. Ms Tollenaar deposed that the prosecution had not received any notice of a subpoena for such materials.

5. Ms Tollenaar’s affidavit of 6 October 2022 goes on to depose that much of what had been very recently requested had never previously been sought, and that on certain disclosure topics such as witness lists, lists of relevant witness statements and ICAC investigational running sheets, disclosure had variously been made in 2018 and 2020:

   8.  A number of matters on the stay application have never been the subject of previous disclosure requests to the Director, or have been the subject of completed disclosure requests.

   a.     The following matters on my review of the materials have never been the subject of a request for disclosure:

   i.all communications between the office of the Director of Public Prosecutions (DPP), the Independent Commission Against Corruption (ICAC) and, or SA Police since the undertaking given to the High Court by the DPP on 15 March in relation to all other defendants nominated by the DPP in the High Court in respect of whom the undertaking also applied;

   ii.all statements obtained by SA Police in relation to the prosecution of the within matter since the provision of the undertaking; and

   iii.    disclosure of the current case management log maintained by the ICAC.

   b.    The following matters have been the subject of completed communications:

   i. A list of witnesses proposed to be called by the prosecution together with a list of the relevant witness statements; and

   ii.Whether the within trial will proceed and evidence will be adduced on the basis of the material obtained as a result of the investigation conducted by ICAC.

   c.     It can be observed that the list of witnesses in the trial has been the subject of previous correspondence dated 29 April 2020. Jemma Litster reminded defence counsel of this list and correspondence on at least the following dates 10 May 2020, 2 June 2020, 29 July 2022 and 5 September 2022, and defence have not responded to this correspondence.

   d.    The matter was prepared for trial to commence in July 2020. At that date defence counsel had a running sheet which was up to date, having been provided the ICAC investigational running sheet on both 12 February 2018 and provided with an update email dated 29 May 2020.

   9. On 29 September 2022 Ms Litster emailed Mrs Shaw and Mr Henderson confirming that they received this material in 2020.’

6. The affidavit of Ms Tollenaar dated 11 October 2022 expanded on aspects of disclosure. Mr Tollenaar deposed that the draft witness list sent to the defence on 29 April 2020 was a 10-page document listing the witnesses the defence proposed to call, agree, or abandon, and she annexed the list to the affidavit. Ms Tollenaar deposed that a review of DPP records indicated the defence had requested an updated spreadsheet of exhibits in a searchable format on 20 May 2020, and that such exhibit spreadsheet was provided to the defence on the same day. When printed in A3 the spreadsheet amounted to 39 pages and set out the item number, exhibit number, a description of the document and where the exhibit appeared in the relevant statement if applicable.

7. Ms Tollenaar’ s affidavit of 11 October 2022 went on to depose that on 29 July 2020 the defence were additionally provided with an electronic copy of exhibits received by Senior Investigator Corbett until 11 June 2020, which log set out the used and unused status of exhibit materials. The log was 13 A3 pages long. Further, the affidavit deposed that the ICAC running sheet dated 12 February 2018 had been disclosed to the defence on 24 April 2018. The document when printed was 87 pages and set out the actions that were taken in the investigation between 17 March 2014 and 12 February 2018.

8. Ms Tollenaar’ s affidavit of 11 October 2022 deposed that an updated ICAC running sheet dated 10 June 2020 was produced to the defence by way of subpoena on 19 June 2020. It comprised 336 pages when printed in A3 and set out the actions taken in the investigation until 9 June 2020.

9. Ms Tollenaar’ s affidavit of 11 October 2022 annexed an 11 October 2022 affidavit of Detective Brevet Sergeant Willdin.

10. Detective Brevet Sergeant Willdin deposed that because of the March 2022 DPP undertaking to the High Court, all matters the subject of the undertaking were allocated to officers within the anti-corruption section of SAPOL.

11. The affidavit of SAPOL officer Detective Brevet Sergeant Willdin dated 11 October 2022 sets out that in April 2022 the ICAC provided materials such as statements, transcripts, and declaration delivery certificates by way of USBs, and such materials were available to SAPOL from 11 April 2022. She deposes that to her knowledge there was no formal handover document, letter, or internal briefing document.

12. The affidavit of SAPOL officer Detective Brevet Sergeant Willdin dated 11 October 2022 deposes that on 19 May 2022 the ICAC file in the matter at bar was allocated to SAPOL officer Detective Mothersole, and a SAPOL running sheet was commenced.

13. The affidavit of SAPOL officer Detective Brevet Sergeant Willdin dated 11 October 2022 deposes that on review of the SAPOL running sheet in this matter, no further materials had been received from the ICAC in relation to the matter except when on 6 October 2022 a DPP prosecutor requested that SAPOL obtain copies of the record of interview with the accused, and so SAPOL made arrangements to obtain copies from the ICAC, and a SAPOL officer delivered those copies to the DPP.

14. The affidavit of SAPOL officer Detective Brevet Sergeant Willdin dated 11 October 2022 further deposes that no evidentiary statements have been obtained by SAPOL in relation to the case at bar. 

    Adequacy of disclosure – risk of non-disclosure

15. On a detailed examination of the affidavit material tendered, there is no evidence that any material ordinarily to be expected to be disclosed in a criminal matter has not now been disclosed. All statements, running sheets, and exhibits identified appear to have been disclosed. Aids to handling of these materials such as searchable spreadsheets have also been provided.

16. Where requests have been made for supplementary or other information, with few exceptions, the DPP have provided that further information, or responded that they would pursue such information or responded that it either did not exist, or they did not have it.

17. On one occasion when the request was declined on the basis that the DPP took the view that the material had ‘no discernible relevance’ and suggested that a subpoena would be required and opposed, no subpoena followed.

18. That request had been from Mr Henderson’s office for a copy of the DPP affidavit filed in the unrelated prosecution of P*****, together with disclosure of:

    5.2 all communications between the office of the DPP, the ICAC and, or SA Police since the undertaking was given by the DPP to the High Court in relation both to the undertaking and the prosecution of Mr Bell;

    5.3 all communications between the office of the DPP and any defendant or witness to criminal proceedings in relation to the status and interpretation of the undertaking;

    5.4 all emails and electronic communications between the DPP and ICAC (and any records and notes thereof) in relation to this investigation since the undertaking was given to the High Court in relation to this investigation and the prosecution of this matter;

    5.5 any and all notes, records and emails of SAPOL in relation to this investigation since the undertaking was given to the High Court; and

    5.6 all information and records of all communications with any potential witness since the undertaking was given to the High Court.

19. Copies of affidavits filed in other matters as to the DPP’s attitude to the undertaking would not ordinarily satisfy the test for prosecutorial disclosure unless they indicated that disclosure in the case at bar would likely be affected. A DPP taking the view that the DPP was properly applying the undertaking in all matters would not ordinarily be required to disclose in matter A the identical stance it may be taking in matters B, C and D.

20. Here, that specified affidavit filed in P*****’s matter was in any event obtained by the defence and tendered. It displayed nothing inconsistent with the attitude taken by the DPP in the case at bar. Items 5.2, 5.3, 5.4, 5.5 and 5.6 ostensibly appear to reflect a wish to check or audit all correspondence, rather than relate to matters which would inherently or necessarily satisfy the test for prosecutorial disclosure.

21. The observation by the DPP in the DPP’s affidavit in P*****’s matter that the ICAC could, per s 43 of the ICAC Act still be investigating is inapplicable in the case at bar because post-amendment the ICAC no longer has jurisdiction to investigate the categories of offences in the case at bar.[93]

    [93]   See discussion later in these reasons.

22. The tendered evidence indicates that over time, on occasion, further material has been disclosed by the DPP. Further, that on occasion the defence has issued subpoenas which have returned material from ICAC, the DECD and SAPOL. 

23. Notwithstanding the defence’s wide-ranging submissions to the contrary all of which the court has carefully considered, on close analysis, those communications and the material requested and provided do not disclose any material omission to supply evidence that would come within the prosecutorial duty to disclose, or any habit or practice of omission to disclose relevant material that connotes that there may currently be a material risk of non-disclosure.

    Section 43 of the ICAC Act

24. Counsel for the accused contended that the ICAC may be continuing to investigate anyway, given s 43 of the ICAC Act and para 21 of the DPP’s affidavit of 16 August 2022 (exhibited to Mr Henderson’s affidavit of 7 October 2022). Counsel contends that is another way in which the defence suspects evidence may be coming into existence and the defence is not getting disclosure of it.

25. The DPP’s affidavit of 16 August 2022 was filed in the factually unrelated prosecution of P*****. The accused has placed that affidavit before the court in this matter. In that DPP affidavit, in context of the matter of P*****, the DPP said:

    21. If the ICAC has undertaken any further enquiries in relation to the Relevant Matters after the undertaking, such enquiries will have been undertaken of the ICAC’s own volition, as permitted by section 43.

26. A similar paragraph was included in a letter dated 9 June 2022 from the DPP to Mr E****’s solicitor, in Mr E****’s factually unrelated matter, attached to an affidavit from Mr E****’s solicitor, itself exhibited to Mr Henderson’s affidavit of 7 October 2022. In Mr E****’s case, disclosed material indicates that some investigatory inquiries were made per s 43 by the ICAC of their own initiative in May/June of 2022, which the DPP disclosed to the defence when they occurred, per the letter dated 9 June 2022. An affidavit filed by SAPOL officer Ms Wilden dated 9 June 2022 stated that SAPOL had not made any request for that assistance or material.

27. Section 43 does not in the court’s view confer a separate or supplementary jurisdiction on the ICAC, beyond their statutory remit to investigate. All it does is preserve the right to investigate in matters where it already possesses the power to do so, notwithstanding a matter has been referred for investigation or prosecution.

28. Accordingly in the current matter, when upon the expiry of the time limit set out in the transitional provisions the ICAC ceased to have the jurisdiction to investigate the categories of offence with which the accused is currently charged, s 43 does not create or preserve a power to further investigate just because the matter has been referred for prosecution.

29. Hence while the ICAC may have an ongoing power to investigate in the matters of P***** or E****, depending on whether those categories of offending remain within ICAC’s amended investigatory jurisdiction, it is not so in the case at bar. The court has not been provided with the full facts, contexts, and issues in the other cases.

30. Here, whatever the case may be in other matters, the ICAC’s jurisdiction to investigate the charged offences has expired, and s 43 does not preserve it. Hence any ongoing investigations into the current matter by the ICAC are not to be expected. There must remain the possibility that while conducting investigations in relation to other matters within their current jurisdiction, the ICAC could come across material relevant to and hence disclosable in the case at bar. In other words, theoretically, there may be instances when the ICAC might come across evidence about matter A when investigating matter B, or when investigating a similar or related other matter, or there might be other scenarios. There is however no indication that is the case.

31. As earlier explained, the DPP is lawfully able to, via SAPOL, ask the ICAC to disclose if there is any such relevant material, and there is no prohibition on a similar request being made by the defence. The DPP has offered to do so if the defence asks it to. Either the prosecution or the defence could seek a subpoena if there is a legitimate basis to suspect that there is such material which is not being disclosed.

32. In summary, in this case the ICAC’s jurisdiction to investigate has expired, and s 43 does not create or preserve a power to further investigate. There is no indication that the ICAC is continuing to investigate pursuant to s 43. The DPP’s attitude to s 43 as expressed in P***** or E**** is not necessarily relevant or applicable to this case as they are different cases, nor can the DPP direct the ICAC what to do.  As held by the Full Court, the ICAC has a common law disclosure obligation in this matter, which would apply should it come across disclosable material relevant to the case at bar in other unrelated matters it may be investigating.   

33. Accordingly, for all these reasons, s 43 does not create a material apprehension that undisclosed further ICAC investigation of the charged offences may be occurring in this case.

    The test for a permanent stay of proceedings

34. A fair trial is one of the foundational elements of an effective and just criminal justice system.

35. For that reason the court has a power to stay a criminal trial where if the trial were to proceed it would be unfair and an abuse of the process of the court.[94] The discretion to order a stay will be exercised to protect the integrity of the court’s process where such a situation arises.[95] Given that the exercise of the power prevents an otherwise extant prosecution from proceeding to trial at all, the court is required to exercise care and caution when approaching the issue.[96]

    [94]   Strickland v DPP (2018) 93 ALJR 1, Rona v District Court (1995) 63 SASR 223, Jago v District Court (1989) 168 CLR 23.

    [95]   Jago v District Court (1989) 168 CLR 23.

    [96]   DPP v Shirvanian (1998) 44 NSWLR 129.

36. The onus is on an applicant for a permanent stay to establish a basis for such an order to be made.[97]

    [97]   Williams v Spautz (1992) 174 CLR 509, Jago v District Court (1989) 168 CLR 23, R v B,P [2016] SASCFC 30.

37. The Supreme Court recently explained that given the community interest in facilitating the prosecution of persons accused of serious crimes, to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial which is of such a nature that there is nothing the court can do in the conduct of the trial to relieve against its unfair consequences. The Supreme Court went on to explain that the applicant must prove on the balance of probabilities actual prejudice, rather than presumptive prejudice or some risk of prejudice.[98]

    [98]   DPP v Jaunay & Another [2020] SASCFC 25. The court bears in mind that in the context of disclosure, as articulated earlier in these reasons the test has been expressed slightly differently interstate, that a failure to comply with the duty may result in a stay if it is shown that as a consequence there is a ‘tangible risk’ that the trial would be unfair, or that the trial is ‘likely’ to be unfair. DPP v Kinghorn (2020) 102 NSWLR 72. Gould v DPP (2018) 333 FLR 352. This court is bound by the SA Full Court decision of Jaunay, but for completeness and in fairness also considers the ‘more favourable to the accused’ Kinghorn and Gould test.

    Conclusions – the meaning and effect of the transitional provisions

    1.The transitional provisions (Schedule 1, clause 70) of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2012, do not require that the prosecution be discontinued. It is lawful for the prosecution to proceed.

    2.The transitional provisions (Schedule 1, clause 70) of the Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2012, do not render all evidence gathered by the ICAC inadmissible. Subject to the normal tests of relevance and the like, the evidence gathered by the ICAC is admissible.

    Conclusions – the meaning and effect of the undertaking

    3.The undertaking given by the DPP to the High Court on 15 March 2022 means that any requests by the DPP for substantive further investigation in the matter, and for ongoing administrative prosecutorial support, were to be directed to and conducted by SAPOL rather than the ICAC.

    4.In this matter the DPP has adhered to the undertaking given to the High Court on 15 March 2022 in that any DPP requests for substantive further investigation in the matter (there have been none to date) or for ongoing administrative prosecutorial support were directed to and conducted by SAPOL rather than the ICAC.

    5.The undertaking given by the DPP to the High Court on 15 March 2022, does not mean that the DPP cannot, via SAPOL treat the ICAC as any other witness or entity in possession of evidence. It is accordingly not in breach of the undertaking for the DPP via SAPOL to request the provision of evidence in the ICAC’s possession, proof witnesses employed by the ICAC, and call such evidence and witnesses at trial.

    6.The undertaking given by the DPP to the High Court on 15 March 2022 does not prevent the DPP asking the ICAC, as it could ask any other witness or entity in possession of evidence to be called at a trial, whether it has disclosed everything relevant to the case at bar. It is lawful and not in breach of the undertaking for the DPP to make such a request either unilaterally or at the request of the defence.

    Conclusions – adequacy of disclosure

    7.As held by the Full Court, both the DPP and the ICAC have an ongoing common law prosecutorial obligation to disclose material relevant to the matter. That obligation is recognised by the ICAC.

    8.On the evidence presented on the application for a stay, there is no evidence which on proper analysis materially suggests that the DPP have not responded in a timely and appropriate way to all defence requests for provision of all and any material in their possession that satisfies the test for prosecutorial disclosure.

    9.On the material presented on the application for a stay, as at the date of this application there is no evidence which on proper analysis materially suggests that appropriate prosecutorial disclosure has not now been made, such that there is actual prejudice as envisaged by the Full Court in Bell v The Queen [2020] SASCFC 116 nor to suggest that there is relevant material that has not been disclosed, nor that per the more expansively expressed test expounded in DPP v Kinghorn (2020) 102 NSWLR 7 and Gould v DPP (2018) 333 FLR 352 that in light of disclosure issues there would be a ‘tangible risk’ that the trial would be unfair, or that the trial is ‘likely’ to be unfair.

    Conclusions – fair trial, abuse of process and application for a permanent stay

    10.Consequently, on the evidence presented on the application for a stay there is no basis to conclude, believe or materially suspect that the accused is unable to receive a fair trial, nor that the ongoing prosecution is contrary to the interests of the administration of justice, nor that a trial would constitute an abuse of process.

    11.    Accordingly, there is no basis to stay the trial.

    Should these questions however be referred to the Court of Appeal for consideration and determination

1. The accused contends that if the court fails to ‘stay the within proceedings on the basis argued for’ then the matters discussed should be referred to the Court of Appeal for determination prior to trial.[99]

   [99]   Accused’s written submissions dated 18 October 2022, para 5.

2. The fact that the legal issues have been raised in several other current prosecutions is acknowledged.

3. Reserving a question of law during the course of a criminal trial should only occur in unusual or exceptional circumstances.[100] The law has long recognised that undue fragmentation or interference with the conduct of a trial is to be avoided where possible.[101]

   [100] R v Gee & Thaller [1999] SASC 116.

   [101] R v Elliot [1996] HCA 21, R v Liddy [2001] SASC 116, Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260.

4. Further, it is relevant to consider whether reserving questions to the Court of Appeal would lead to undue or unacceptable delay in the resolution of proceedings.[102]

   [102] Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260.

5. Indeed s 153(3) of the Criminal Procedure Act 1921 currently and its predecessor s 350(3) of the Criminal Law Consolidation Act 1921 (in force at the time the accused was charged)[103] provide that unless required to do so by the Court of Appeal, a court must not reserve a question for consideration and determination by the Court of Appeal if reservation of the question would unduly delay the trial or sentencing of the defendant.

   [103] Transcript of submissions, pg 201.

6. It should however occur where appropriate in all the circumstances.[104]

   [104] R v Gee & Thaller [1999] SASC 116, George (a pseudonym) v The Queen [2022] SASCA 66.

7. The trial is set to commence on 15 March 2023. Between now and then is the Christmas closure of the District Court from Christmas Eve to 9 January 2023. The Supreme Court resumes in the week commencing 16 January 2023. It is unclear whether there would be sittings of the Court of Appeal in January.

8. If the matter were referred to the Court of Appeal it would need to be set down at a time convenient both to the court and counsel, fully argued, and time for judgements to be considered and delivered. There can be no guarantee that would occur prior to the trial date, and in that event the trial date would need to be vacated and given the District Court’s current listing time, and that counsel estimate the trial will take three months, the matter would likely not be relisted before 2024. That is a significant further delay, which all other things being equal, is manifestly not in anyone’s interest.

9. In the court’s view, the primary legal issues the accused seeks to have referred are clear, and the answers, on proper analysis, are also clear.

10. In the court’s view it is clear that the transitional provisions were not intended to, nor do they legally have the effect of, rendering any prosecution arising from an earlier investigation ‘discontinued’.

11. In the court’s view it is clear that the transitional provisions do not require entire earlier ICAC investigations to be repeated by SAPOL.

12. In the court’s view it is clear that the DPP undertaking given to the High Court does not mean that the DPP cannot ask the ICAC to make or assure disclosure.

13. In the court’s view it is clear that none of these matters, nor the disclosure matters or the other matters advanced in conjunction with these matters by the accused, either alone or in combination justify a permanent stay.

    Conclusion – should there be a referral of questions of law to the Court of Appeal

14. Given that the answers to the primary legal issues the accused wishes to have referred are in the court’s view clear, that a permanent stay is not justified, and that a referral would likely cause the trial to be unduly delayed for at least a year, the application to refer questions of law to the Court of Appeal is refused.