R v Bell - [2020] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v BELL
[2020] SADC 107
Reasons for Decision of Her Honour Judge Chapman
7 August 2020
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
The Applicant is charged with 20 counts of theft and six counts of dishonestly dealing with documents allegedly committed between July 2009 and March 2013 at Mount Gambier. He has made an application for these criminal proceedings to be stayed on the basis they are an abuse of process. The grounds for the application arise from the investigation of the matter by the Independent Commissioner Against Corruption (ICAC).
The abuse of process is said to arise from the ICAC's referral of the matter to the DPP (SA) rather than to SAPOL, the ongoing effect of notations on summonses and non-communication directions and the involvement of the ICAC investigators in the criminal process after charges were laid.
Held: The ICAC's referral of the matter direct to the DPP, and the provision of information and evidence to the DPP at that time, was contrary to the ICAC Act. The matter should have been referred to the SAPOL for further investigation and prosecution. The involvement of the ICAC investigators in the prosecution of the charges once laid was beyond the functions of the ICAC. The failure to address notations on summonses and non-communication directions in a timely manner once charges were laid and the use by investigators of unexplained references to s 54 of the ICAC Act in emails when liaising with witnesses has resulted in at least a perception of forensic advantage to the prosecution and forensic disadvantage to the Applicant.
The actual prejudice is not such that there is no means of remedying the unfairness. The circumstances are not such that allowing the prosecution to proceed would so much bring the administration of justice into disrepute that the prosecution should be stayed.
The application is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134(1), s 140(4); Director of Public Prosecutions Act 1991 (SA) s 10, s 10A; Director of Public Prosecutions Act 1986 (NSW) s 15A; Evidence Act 1929 (SA) s 21; Independent Commissioner Against Corruption Act 2012 (SA) s 3, s 7, s 23, s 24, s 26, s 27, s 28, s 29, s 29A, s 30, s 31, s 32, s 33, s 36, s 36A, s 37, s 38, s 43, s 45, s 54, s 56, s 56A, Schedule 2; Independent Commission Against Corruption Act 1988 (NSW) s 53; Magistrates Court Rules Rule 12; Summary Offences Act 1953 (SA) s 104; Telecommunications (Interception and Access) Act 1979 (Cth) s 46, s 74, s 78, referred to.
Australian Crime Commission v OK (2010) 185 FCR 258; Barton v The Queen (1980) 147 CLR 75; C v The Independent Commissioner Against Corruption [2020] SASCFC 57; Director of Public Prosecutions (SA) v Jaunay & Anor [2020] SASCFC 25; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129; Edelsten v Health Insurance Commission (1990) 27 FCR 56; (1990) 96 ALR 673; Fagan v New South Wales [2004] NSWCA 182; Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380; Jago v District Court of New South Wales (1989) 168 CLR 23; James v Robinson [1963] HCA 32; Johns v Australian Securities Commission and Others (1993) 178 CLR 408; Lee v R (2014) 308 ALR 252; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 112 ALR 463; Momcilovic v The Queen (2011) 245 CLR 1; Commonwealth of Australia v Helicopter Resources Pty Ltd & Ors (2020) 377 ALR 191; Potter v Minahan (1908) 7 CLR 277; R v Daily Mirror; Ex parte Smith (1927) 1 KB 845; Roberts v The Queen [2020] VSCA 58; Rona v District Court of South Australia (1995) 63 SASR 223; Sorby and Another v Commonwealth of Australia and Others (1983) 152 CLR 281; Williams v Spautz (1992) 174 CLR 509; X7 v Australian Crime Commission and Another (2013) 298 ALR 570, applied.
Smethurst v Commissioner of Police (2020) 376 ALR 575; Strickland v Commonwealth Director of Public Prosecutions & Others (2018) 361 ALR 23, discussed.
Chief Examiner v Brown (2013) 44 VR 741; Director of Public Prosecution (SA) v King [2019] SASC 42, considered.

R v BELL
[2020] SADC 107

The Applicant, Troy Stephen Bell, is charged with 20 counts of theft contrary to s 134(1) of the Criminal Law Consolidation Act, 1935 (SA) (CLCA) and six counts of aggravated dishonest dealings with documents contrary to s 140(4) of the CLCA. It is alleged the offending occurred between July 2009 and March 2013 at Mt Gambier.
He has made an application for an order that these criminal proceedings be permanently stayed on the basis they are an abuse of process. The final version of the application is the further amended application for directions dated 8 July 2020, which sets out five grounds for the stay.
The grounds arise from the investigation of this matter by the Independent Commissioner Against Corruption (the ICAC). The general basis of the application is that the ICAC, having conducted an investigation, had no power to refer the matter directly to the Director of Public Prosecutions (SA) (the DPP). Instead, the matter should have been referred by the ICAC to the South Australian Police (SAPOL). The exercise of the ICAC’s powers of investigation was permissible insofar as it was for the purpose of assembling a brief of evidence to be referred to SAPOL for further investigation and prosecution, but not permissible for the purpose of assembling a brief of evidence for direct referral to the DPP.[1] Further, it is said that the continuing involvement of the ICAC in the preparation of the matter for trial alongside the DPP (rather than SAPOL, who were not involved at any stage) was beyond his jurisdiction. The exercise of his powers after referral was unlawful. The result is that the Applicant cannot now receive a fair trial. The direct referral and the subsequent conduct has resulted in a fundamental alteration to the accusatorial process.[2]
[1] Defendant’s written outline re: stay application, dated 26 June 2020, [5.2].
[2] Defendant’s written outline re: stay application, [3].
In support of his application, the Applicant filed written submissions,[3] a chronology, eight affidavits[4] and made oral submissions,[5] including reply.[6] The DPP filed written submissions,[7] a book of documents[8], two affidavits[9] and made oral submissions.[10]
[3]Defendant’s written outline re: stay application; Defendant’s supplementary outline re: stay application, dated 6 July 2020; Accused’s Reply to the Director’s Note to the court, dated 22 July 2020; Accused’s Reply to the Director’s Reply to the Accused’s Reply to the Director’s Note to the court, dated 24 July 2020; Accused’s Reply to the Director’s further Note to the court, dated 4 August 2020.
[4]     VDD2 - Affidavit of Joseph Robert Henderson, dated 25 June 2020.
[5]     T14 – 217.
[6]     T299-363, T366-367.
[7]Prosecution outline on the stay application, dated 6 July 2020; Prosecution Note as to Schedule 2 Clause 3 (13) and (14) & Section 43 of the ICAC Act, dated 17 July 2020; Director’s Reply to the Accused’s reply to the Director’s Note to the court, dated 23 July 2020; Prosecution answer to the court’s question regarding the power to disclose the transcripts of compulsory examinations, dated 3 August 2020.
[8]     VDP14.
[9]VDP10 - Affidavit of Keryn Janine Park, dated 13 July 2020; Affidavit of Geoffrey David Guy Corbett, dated 3 August 2020.
[10]    T217 – 297.
Background chronology
In March 2014, the Office of Public Integrity (OPI) received a complaint which was assessed by the OPI as a matter raising a potential issue of misconduct in public administration. Under s 24(2)(b) of the ICAC Act, the matter was referred to the Department of Education and Child Development (DECD) for investigation.
On 12 November 2014, following receipt of an internal audit from the DECD, the matter was re‑assessed by the Deputy ICAC as raising potential issues of corruption in public administration. Under s 24(1)(a) of the Independent Commissioner Against Corruption Act 2012 (ICAC Act)[11], the ICAC determined that the matter should be investigated by him. As part of that investigation, the ICAC exercised his power to examine three witnesses, Mr Shelton, Mr Fox and the Applicant’s wife, Mrs Michaela Bell. He also issued search warrants and obtained search warrants following application to the Supreme Court.
[11]All references to the ICAC Act are references to the historical version for the period 1 April 2017 to 14 July 2017 (which covers the time of the ‘referral’ to the DPP), unless otherwise stated.
On 2 May 2017, the ICAC ‘referred’ the matter to the DPP.
On 9 August 2017, an Information was filed in the Magistrates Court in the Director’s name laying charges against the Applicant.
On 18 June 2018, the Applicant was committed for trial from the Magistrates Court to the District Court.
On 9 October 2018, the Information was filed in the District Court. The Applicant was arraigned and pleaded not guilty.
On 21 March 2019,[12] the trial date was listed to commence on 8 October 2019.
[12]The listing of the matter for trial was delayed because of legal argument regarding the question of whether the matter should be heard by the Supreme Court of South Australia and heard in Adelaide or Mount Gambier.
On 4 July 2019, the trial date was vacated because the Applicant’s counsel was unable to continue due to ill health. The Applicant briefed alternative counsel and the trial was re-listed to commence on 6 July 2020.
Statement of the grounds of the application for a permanent stay
Grounds 3 and 4 of the application focus upon the ICAC’s referral of the matter, and provision of information and evidence to the DPP in May 2017. The Applicant submits the ICAC had no power to refer a matter for prosecution directly to the DPP (ground 4), or to provide evidence and information directly to the DPP (ground 3). Such is said not to be authorised by s 7 or s 36 of the ICAC Act (ground 4) or s 54, s 56A or sch 2 cl 3 of the ICAC Act (ground 3).
Ground 4 is set out in the application as follows:
5.The ICAC, having determined to conduct an investigation pursuant to section 24A(1)(a) of the Act, had available to him upon completion of his investigation the powers as contained in section 36(1) of the Act. That is, the ICAC was empowered to:
5.1 ‘refer a matter to the relevant law enforcement agency for further investigation and potential prosecution’; and, or
5.2 ‘refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible’.
6.The ICAC therefore had no power to refer this investigation directly to the Director of Public Prosecutions (SA) and thereafter retain conduct of it. The referral, and all actions subsequent, were beyond power and constitute an abuse of process justifying a stay.
Ground 3 is set out in the application as follows:
3.Neither the ICAC nor an investigator appointed under the Act has jurisdiction to authorise the deployment of information obtained under search warrant, summonses to witnesses, compulsory examination or any other power under the Act beyond that prescribed in the Act, and in particular, for use or receipt as evidence in criminal proceedings not instituted under the ICAC Act.
4.In so far as sections 54, 56A and schedule 2 clause 3(13) and (4) refer to the disclosure and use of information in a criminal investigation or proceedings, they are limited to criminal proceedings under the ICAC Act. Section 36 does not authorise unrestricted use by or publication to any other person or to a court of law.
Ground 1 of the application focuses upon the conduct of the ICAC after the referral to the DPP in regard to three witnesses (Mr Shelton, Mr Fox and Mrs Bell who had been examined pursuant to s 29(1) of the ICAC Act prior to the referral) and in regard to another person (Mr Wheaton) who was the subject of an exercise of power to produce documents under s 29(2) of the ICAC Act after the referral. The contention is that the exercise of powers for the non‑communication of information and evidence in relation to those persons, which persisted for years (Mr Shelton, Mr Fox and Mrs Bell), or were made, after charges were laid (Mr Wheaton), has amounted to the prosecution having property in those witnesses.
Ground 1 is set out in the application as follows:
1.The Independent Commissioner Against Corruption (‘ICAC’), by exercising his powers under the Independent Commissioner Against Corruption Act 2012 (SA) (‘the Act’), to seize documents, summons and examine witnesses and thereafter direct each of the witnesses summonsed for examination not to speak with persons (including the accused and his solicitors) about their examination and its subject matter, has acted unlawfully (see grounds 2, 3, and 4) and interfered with the fundamental premise of the accusatorial system that there is no property in witnesses, such that the accused cannot receive a fair trial.
Ground 2 of the application combines the other four grounds and adds other aspects of the conduct of the ICAC to comprise the basis for a stay of the proceedings. It focuses upon conduct of the ICAC before referral to the DPP ([2.5] and [2.6] which comprise ground 5, [2.7]), conduct of the ICAC in referring the matter directly to the DPP ([2.10], [2.11], [2.13] which are grounds 3 and 4) and conduct of the ICAC following referral to the DPP ([2.1], [2.2], [2.3], [2.4], [2.8], [2.9] which is ground 1, [2.12]).
Ground 2 is set out in the application as follows:
2.     The ICAC and his investigators, by;
2.1    purporting to use its powers to seize or otherwise compel the production of documents and things,
2.2    summonsing the witnesses, Robert Shelton and Peter Fox for compulsory examinations, requiring each of them to answer questions (including about seized or compulsorily acquired documents or things);
2.3 summonsing a witness, Michaela Bell, who was not compellable against the accused by virtue of section 21 of the Evidence Act 1929 (SA), and requiring her to answer questions;
2.4    converting the transcripts of compulsory examinations into a written statement of fact for use in a criminal proceeding when those transcripts and the evidence recorded in them were each inadmissible in a criminal proceeding;
2.5    obtaining, and purporting to execute, search warrants from the Honourable Justice Lovell which were General Warrants and illegal and void, and thereafter purporting to seize documents or things and require the assistance of persons in doing so under the purported power of the warrants;
2.6    issuing, and purporting to execute, search warrants which were General Warrants and illegal and void, and thereafter purporting to seize documents or things and require the assistance of persons in doing so under the purported power of the warrants;
2.7    obtaining notice of the accused’s proposed defence by telephone intercepts in breach of legal professional privilege and using that notice for the express purpose of obtaining evidence to negate the accused’s proposed defence;
2.8 purporting to prevent witnesses interviewed by investigators from disclosing any subject matter connected with the investigation, or their involvement in it, to anyone else save for those persons mentioned in section 54 of the Act, including the accused or his legal practitioners, by virtue of section 54 of the Act, both before and after the commencement of the prosecution by the laying of the Information;
2.9 purporting to prevent the witnesses Shelton, Michaela Bell and Fox from disclosing to the accused and/or his legal practitioners that each was the subject of a compulsory examination under the Act or to otherwise discuss the evidence they may potentially give, including evidence exculpatory of the accused, with the accused and/or his legal advisers;
2.10 disclosing evidence which is inadmissible against the accused to the Director of Public Prosecutions (‘DPP’) for the purposes of the DPP determining whether there was a prima facie case, reasonable prospects of conviction, and the public interest lay in prosecuting the accused, for the purpose of determining whether or not to lay criminal charges against the accused;
2.11 disclosing evidence and material obtained under the Act to the DPP for use in a criminal proceeding against the accused;
2.12 attending at proofings of prosecution witnesses by solicitors and counsel for the DPP; and
2.13 failing to refer the investigation to SA Police or a law enforcement agency within the meaning of the act for further investigation and potential prosecution, and instead referring a brief of evidence to the DDP in breach of section 36 of the Act;
has:
a.undermined the fairness of the accused’s trial such that the accused cannot now receive a fair trial;
b.undermined the accusatorial system of criminal justice such that the accused cannot now receive a fair trial;
c.engaged in conduct in the investigation, both before and after the commencement of the within prosecution, which is vexatious, oppressive and unfair, and
d.engaged in conduct in the investigation which brings the administration of justice into disrepute;
such that in all the circumstances the Information should be stayed as an abuse of process of this Honourable Court.
Ground 5 relates to search warrants issued prior to the referral to the DPP.
Ground 5 is set out in the application as follows:
7.The search warrants issued on 28 April 2016 by the Honourable Justice Lovell and on 4 May 2017 by the ICAC were general warrants and were illegal and void.
Summary of findings
One of the primary objects of the ICAC Act is to establish the ICAC with functions designed to further the identification and investigation of corruption in public administration. The primary object of the Commissioner is to investigate a matter raising a potential issue of corruption in public administration. A function of the ICAC is to identify corruption in public administration and then investigate it or refer the matter to SAPOL for investigation. The ICAC is invested with extraordinary powers to investigate corruption. Prosecution of an offence falling within the definition of corruption in public administration forms no part of the Commissioner’s functions. If a matter arising out of a corruption investigation is to be prosecuted in South Australia, then it must be referred by the ICAC to SAPOL via s 36(1)(a) of the ICAC Act.
Once referred, if the matter is to proceed to charges and trial, SAPOL is to have conduct of the matter, as would occur in the ordinary course when criminal proceedings are on foot. The functions and powers of the ICAC do not extend to the gathering of evidence for the purpose of those criminal proceedings. After referral, if the ICAC has cause to perform functions or exercise powers in respect of that particular matter, the ICAC must endeavour to avoid prejudice to the accused person.
The ICAC’s referral of this matter direct to the DPP in May 2017, with the provision of information and evidence at that time, was contrary to the ICAC Act. The matter should have been referred to SAPOL for further investigation and prosecution. The involvement of the ICAC investigators in the prosecution of the charges once laid (including serving the Applicant with the Information and Summons, purporting to restrict the ability of the Applicant to disclose matters, filing declarations and declaration delivery certificates in court, contacting witnesses and potential witnesses to obtain declarations, preparing witness statements from transcripts of examinations, exercising the s 29A power to inspect and take copies of financial records and exercising the s 29(2) power to require production of documents) was contrary to the ICAC Act. The failure to address notations on summonses and non‑communication directions in a timely manner once charges were laid and the use by investigators of unexplained references to s 54 (confidentiality provision in the ICAC Act) in emails when liaising with witnesses or potential witnesses has resulted in actual, or at least a perception of, forensic advantage to the prosecution and forensic disadvantage to the Applicant.

The court does not condone conduct which is contrary to the ICAC Act. Nevertheless, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. The actual prejudice to the Applicant is not such that there is no other means of remedying the unfairness. Nor is this a case in which allowing the prosecution of the Applicant to proceed would so much bring the administration of justice into disrepute that the prosecution should be stayed.
The ICAC Act
In order to provide the context for the Applicant’s submissions, it is necessary to set out the relevant provisions of the ICAC Act.
There are three stated primary objects of the ICAC Act. The first is set out in s 3(1)(a). The primary object of the Commissioner is stated in s 3(2)(a). The emphasis on the investigation of corruption in public administration is clear:
3‑Primary objects
(1)     The primary objects of this Act are‑
(a)     to establish the Independent Commissioner Against Corruption with functions designed to further‑
(i)the identification and investigation of corruption in public administration; and
(ii)the prevention or minimisation of corruption, misconduct and maladministration in public administration, including through referral of potential issues, education and evaluation of practices, policies and procedures; and
…
(2)Whilst any potential issue of corruption, misconduct or maladministration in public administration may be the subject of a complaint or report under this Act and may be assessed and referred to a relevant body in accordance with this Act, it is intended‑
(a)     that the primary object of the Commissioner be to investigate corruption in public administration; and
(b)     that matter raising potential issues of misconduct or maladministration in public administration will be referred to an inquiry agency or to a public authority (unless the circumstances set out in section 7(1(cb) or (cc) apply).
The functions of the ICAC are found in s 7 of the ICAC Act. They include a function to identify corruption in public administration and (i) to investigate and refer it for prosecution; or (ii) refer it to a law enforcement agency for investigation and prosecution.
The ICAC is to receive complaints/reports or act on own initiative regarding matters raising potential issues of corruption, misconduct and/or maladministration in public administration. The assessment[13] of a matter into one or more of those categories, including additional categories of serious or systemic misconduct or maladministration in public administration, will determine what action may be taken.[14]
[13] Section 23 of the ICAC Act.
[14] Section 24 of the ICAC Act.
If a matter is assessed as raising potential issues of serious or systemic maladministration or misconduct in public administration, the Commissioner may exercise the powers of an inquiry agency as if he constituted that agency. He must inform the agency of the outcome of the matter.[15]
[15] Section 24(2)(b) and (c); section 36A of the ICAC Act.
If a matter is assessed as raising potential issues of misconduct or maladministration, the Commissioner may refer the matter to an inquiry agency[16] or to a public authority with directions or guidance.[17]
[16] Section 24(2)(a); section 37 of the ICAC Act.
[17] Section 24(2)(d); section 38 of the ICAC Act.
The investigation of a potential issue of corruption in public administration
If a matter is assessed under s 23 of the ICAC Act as raising ‘a potential issue of corruption in public administration that could be the subject of a prosecution’, s 24(1) addresses the action to be taken:
24 – Action that may be taken
(1)If a matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution, the matter must be—
(a) investigated by the Commissioner; or
(b) referred to South Australia Police, the Police Ombudsman (if the issue concerns a police officer or special constable) or other law enforcement agency.[18]
[18]This is the version of s 24(1) as in force at the time of the assessment by the Commissioner in this matter, namely, March 2014. It was amended by 60/2016 Schedule 1 clause 15 to commence on 4 September 2017 by deleting ‘the Police Ombudsman’ (if the issue concerns a police officer or special constable).
The making of an assessment, whether action is taken and what action is taken, is at the absolute discretion of the Commissioner.[19]
[19] Section 24(7) of the ICAC Act.
If the Commissioner decides to investigate under s 24(1)(a), the applicable procedures and available powers are set out in Part 4, Division 2, Subdivision 2 of the ICAC Act. They include powers beyond those available to the SAPOL. The Commissioner must oversee the investigation.[20] During his investigation he is empowered to:
[20]    Section 27 of the ICAC Act.
·     require an inquiry agency, public authority or public officer to produce a written statement of information about a specific matter, or to answer specified questions, within a specified period and in a specified form, verified if required by statutory declaration (s 28);
·     require a person to attend for an examination at which that person commits an offence if he or she refuses or fails to answer questions (s 29(1), Schedule 2);
·     require a person to produce a document or thing (s 29(2), Schedule 2);
·     authorise an investigator to inspect and take copies of financial records (s 29A);
·     issue a warrant authorising an investigator to enter and search a place or vehicle used by a public authority or public officer (s 31);
·     apply for a warrant from a judge of the Supreme Court to enter and search a private place or private vehicle (s 31);
·     issue orders for the retention of things seized (s 32);
·     require a law enforcement agency, inquiry agency or public authority to refrain from taking action in respect of a particular matter being investigated or to conduct a joint investigation (s 34);
·     apply to the Supreme Court for an injunction restraining a person engaging in certain conduct regarding the investigation or proposed investigation (s 33).
It is an offence to obstruct an investigation.[21]
[21] Section 33 of the ICAC Act.
What the ICAC may do at the conclusion of that investigation if there is potential for prosecution (in terms of referral of the matter, provision of evidence and information and other involvement in the prosecution of any subsequent charges), is very much an issue in this Application.
Confidentiality of an ICAC investigation
Generally, the ICAC is required to conduct an investigation into suspected corruption in public administration in private.[22] Persons involved must maintain confidentiality either as directed by the ICAC and/or by force of the ICAC Act. One of the primary objects of the ICAC Act is to achieve an appropriate balance between the public interest in exposing corruption in public administration and the public interest in avoiding undue prejudice to a person’s reputation.[23] The legislature has balanced the use of coercive powers invested in the ICAC to investigate suspected corruption with the need to maintain privacy/confidentiality during that investigation. The Commissioner is to perform his functions in a manner that is as open and accountable as is practicable, while recognising, in particular, that examinations relating to corruption in public administration must be conducted in private.[24]
[22]    Section 55 of the ICAC Act.
[23]    Section 3(1)(c) of the ICAC Act.
[24]    Section 7(4)(a)(i) of the ICAC Act.
There is a complex matrix of overlapping measures in the ICAC Act dealing with the confidentiality of the investigation. Those measures include the ICAC determining to place a notation prohibiting disclosure of information on a summons to a person to attend for examination[25] or on a summons to a person to produce a document or thing;[26] making a non‑communication direction at a compulsory examination;[27] and authorising a person to disclose,[28] or publish,[29] limited information. In addition, there are provisions which operate, by force of the ICAC Act, around those various measures. Those provisions include s 54, s 56 and s 56A of the ICAC Act. The various measures are set out as follows.
Notation on summons to attend for examination /notice to produce documents
[25]    Schedule 2 cl 6(1) of the ICAC Act.
[26]    Schedule 2 cl 6(1) of the ICAC Act.
[27]    Schedule 2 cl 3(9) of the ICAC Act.
[28] Section 54(3) of the ICAC Act.
[29] Section 56 of the ICAC Act.
If an examiner issues a summons pursuant to s 29(1) and sch 2 cl 4 for a person to appear to give evidence at an examination, or issues a notice pursuant to sch 2 cl 5 requiring a person to produce a document or other specified thing, the examiner must include in the summons/notice (if satisfied that failure to do so would reasonably be expected to prejudice (i) the safety or reputation of a person, or (ii) the fair trial of a person who has been or may be charged with an offence, or (iii) the effectiveness of an investigation) a notation to the effect that disclosure of information about the summons, or any official matter connected with it, is prohibited, except in the circumstances, if any, specified in the notation. The examiner may include the notation if satisfied that failure to do so might prejudice (i), (ii) or (iii) or if satisfied the failure to do so might otherwise be contrary to the public interest.[30]
[30] Schedule 2 cl 6(1) and (2).
The summons must be accompanied by a written statement setting out the rights and obligations conferred or imposed by sch 2 cl 7.[31]
[31] Schedule 2 cl 6(3).
The effect of the notation lapses after five years or when the summons is cancelled by sch 2 cl 6(4), whichever is the sooner.
Relevant to the consideration of this Application, there were notations on the summons to Mrs Bell to give evidence at an examination and on the summons to Mr Wheaton to produce documents.
Direction to witness/person who produces documents or other specified thing
An examiner must or may give a direction to a witness at an examination or to a person who produces documents or other specified things. Schedule 2 cl 3(9) and (10) are as follows:
3 – Conduct of examination
....
(9)     An examiner may direct that—
(a)     any evidence given before the examiner; or
(b)     the contents of any document, or a description of anything, produced to the examiner; or
(c)     any information that might enable a person who has given evidence before the examiner to be identified; or
(d)     the fact that any person has given or may be about to give evidence at an examination, must not be communicated or provided to any person, or must not be communicated or provided except in such manner, and to such persons, as the examiner specifies.
(10) The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
The direction may be varied or revoked by the Commissioner as set out in cl 3(11) and (12):
(11) Subject to subclause (12), the Commissioner may, in writing, vary or revoke a direction under subclause (9).
(12)The Commissioner must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
A court has the ability to require and do the following in relation to a direction given by an examiner, as set out in cl 3(13) and (14):
(13)   If—
(a)     a person has been charged with an offence; and
(b)     the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subclause (9), be made available to the person or to a legal practitioner representing the person,
the court may give to the examiner or to the Commissioner a certificate to that effect and, if the court does so, the examiner or the Commissioner, as the case may be, must make the evidence available to the court.
(14)   If—
(a)     the examiner or the Commissioner makes evidence available to a court in accordance with subclause (13); and
(b)     the court, after examining the evidence, is satisfied that the interests of justice so require,
the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.
Relevant to consideration of this Application, directions were given at the examinations of three persons – Mr Fox, Mr Shelton and Mrs Bell - pursuant to s 29(1) of the ICAC Act. Variations and revocations were subsequently made.
General confidentiality and authorisation to disclose
Section 54(1) of the ICAC Act sets out a general confidentiality requirement applicable to a person who is or has been engaged in the administration of the ICAC Act. Section 54(2) permits such a person to disclose information in certain circumstances. In addition, the Commissioner may authorise the person to disclose information.
54 – Confidentiality
(1)Except as required or authorised by this Act or by the Commissioner, a person who is or has been engaged in the administration of this Act must not, directly or indirectly, disclose information in relation to or connected with a matter that forms or is the subject of a complaint, report, assessment, investigation, referral or evaluation under this Act.
Maximum penalty: $2 500 or imprisonment for 6 months.
(2)Despite subsection (1), a person engaged in the administration of this Act may disclose information—
(a)     for the purposes of the administration or enforcement of this Act; or
(b)     for the purposes of referring a matter in accordance with this Act to a law enforcement agency, inquiry agency, public authority or public officer; or
(c)     for the purposes of a criminal proceeding or a proceeding for the imposition of a penalty; or
(d)     for the performance of the functions of the Office or the Commissioner under another Act; or
(e)     as otherwise required or authorised by this or another Act.
Section 54(3) and (4) applies to any person who knowingly receives certain information. Disclosure is prohibited, unless there has been (a) an authorisation by the Commissioner/a person approved by the Commissioner; or the disclosure is (b) for a purpose specified or (c) to a person specified:
(3)A person who receives information knowing that the information is connected with a matter that forms or is the subject of a complaint, report, assessment, investigation, referral or evaluation under this Act must not disclose that information unless—
(a)     the person is authorised in writing by the Commissioner or by a person approved by the Commissioner under this section to give an authorisation; or
(b)     the disclosure of that information is for the purpose of—
(i)dealing with a matter referred under this Act by the Commissioner or the Office; or
(ii)a criminal proceeding, a proceeding for the imposition of a penalty or disciplinary action; or
(iii)a person obtaining legal advice or legal representation or for the purposes of determining whether a person is entitled to an indemnity for legal costs; or
(iv)a person obtaining medical or psychological assistance from a medical practitioner or psychologist; or
(c)     the information relates to the person and is disclosed by the person to a close family member of the person.
Maximum penalty: $2 500 or imprisonment for 6 months.
(4)For the purposes of subsection (3)(c), a person is a close family member of another person if—
(a)     1 is a spouse of the other or is in a close personal relationship with the other; or
(b)     1 is a parent or grandparent of the other (whether by blood or by marriage); or
(c)    1 is a brother or sister of the other (whether by blood or by marriage); or
(d)     1 is a guardian or carer of the other.
Relevant to this matter, the ICAC investigators included reference to this provision when contacting various witnesses after referral to the DPP, including after the charges were laid by the Director in the Magistrates Court.
Publication of information and evidence
Section 56 of the ICAC Act regulates the publication of information and evidence obtained by the ICAC. It makes publication an offence unless it is authorised by the Commissioner or a court hearing proceedings for an offence against the ICAC Act. The word ‘publish’ is defined to mean publish by newspaper, radio or television; or internet or other electronic means of creating and sharing content with the public or participating in social networking with the public; or any similar means of communication to the public.[32]
[32]    Section 4 of the ICAC Act.
56 - Publication of information and evidence
A person must not, except as authorised by the Commissioner or a court hearing proceedings for an offence against this Act, publish, or cause to be published –
(a)     information tending to suggest that a particular person is, has been, may be, or may have been, the subject of a complaint, report, assessment, investigation or referral under this Act; or
(b)     information that might enable a person who has made a complaint or report under this Act to be identified or located; or
(c)     the fact that a person has made or may be about to make a complaint or report under this Act; or
(d)     information that might enable a person who has given or may be about to give information or other evidence under this Act to be identified or located; or
(e)     the fact that a person has given or may be about to give information or other evidence under this Act; or
(f)      any other information or evidence publication of which is prohibited by the Commissioner.
Maximum penalty:
(a)     in the case of a body corporate—$150 000;
(b)     in the case of a natural person—$30 000.
Ground 4: Referral to DPP for prosecution
For the Applicant, Mrs Shaw QC submitted that the ICAC has no power to refer the product of an investigation into corruption in public administration directly to the DPP for prosecution. That is what occurred in this matter in May 2017. The SAPOL did not ever have carriage of this matter. After direct ‘referral’ to the DPP, the ICAC continued to work alongside the DPP in preparing the matter for charges/trial. She submitted that was outside the jurisdiction of the ICAC and unlawful.
Submissions focussed upon the construction of the ICAC Act, in particular, s 7 and s 36. Compelling submissions were made by the prosecution and defence.
The Applicant’s submission is that the ICAC has no power to refer directly to the DPP for prosecution, but instead, referral for prosecution must be via SAPOL. Section 36(1)(a) is the sole power for referring a matter during or at the completion of an ICAC corruption investigation.
For the Director, the submission is that the ICAC can refer directly to his Office. Section 7(1)(a) establishes the ICAC with the responsibility to investigate and refer for prosecution. Section 7(1)(a) should be read in conjunction with s 36(1) with the consequence that there are multiple different paths for referral of a matter after the ICAC has decided to investigate corruption himself. Further, the nature of a referral is such that a specific power is not required in any event.
The construction of the ICAC Act on this aspect is not straightforward. What is stark in its absence is any relevant mention of the DPP in the ICAC Act. There are only two specific references to the DPP in the ICAC Act, both unrelated to this aspect.[33]
[33]Section 13(3) permits the ICAC to make use of the services or staff of the DPP; and s 57(7) provides that a prosecution for the offence of victimisation under s 57(6) can only be commenced by a police officer or a person approved by either the Commissioner of Police or the DPP.

Is s 36(1)(a) the sole path for referral of a matter during or at the completion of an ICAC corruption investigation? Did Parliament intend for a referral of a matter for prosecution to be via SAPOL to the DPP?
As set out above at [29]-[31], if a complaint or report received by the OPI is assessed as raising a potential issue of corruption in public administration under s 23(1)(a) of the ICAC Act, and the ICAC decides to investigate under s 24(1)(a), then Part 4 Division 2 Subdivision 2 sets out procedures and powers relevant to conducting that investigation. Section 36 is the last section in that subdivision. At the time of the ‘referral’ of this matter to the DPP in May 2017, s 36(1) and (2) were as follows:
36 – Prosecutions and disciplinary action
(1)On completing an investigation or at any time during an investigation (whether relating to a potential issue of corruption in public administration or of misconduct or maladministration in public administration), the Commissioner may do either or both of the following:
(a) refer a matter to the relevant law enforcement agency for further investigation and potential prosecution;
(b) refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.
(2)The Commissioner may disclose to the relevant law enforcement agency or public authority any evidence or information that the Commissioner has in respect of the matter.
The Applicant submitted that s 36 sets out the two options for referral which are available to the ICAC during, or on completion of, his investigation into possible corruption in public administration. The only option for referral for potential prosecution is via a relevant law enforcement agency. The definition of law enforcement agency[34] includes SAPOL, but does not include the DPP.
[34] Section 4 of the ICAC Act: Law enforcement agency means –
The plain meaning of the text of s 36 does not support a power invested in the ICAC to refer a matter for prosecution to a body which is not a law enforcement agency. Section 36(1) does not authorise referral direct to the DPP. The Director did not submit otherwise.
However, the Director did submit that s 36 must be read in the context of the ICAC Act as a whole, in particular, s 7. That section creates the Independent Commissioner Against Corruption and sets out the functions of the ICAC. Relevantly, s 7(1)(a) is as follows:
7 – Functions
(1)There is to be an Independent Commissioner Against Corruption with the following functions:
(a)     to identify corruption in public administration and to—
(i)    investigate and refer it for prosecution; or
(ii)     refer it to a law enforcement agency for investigation and prosecution;
The Director submits that s 7(1)(a)(i) plainly states that one of the functions of the ICAC is to investigate corruption in public administration and refer it for prosecution. Section 7(1)(a) and s 36(1) should be read together. First, s 36(1) should not be construed as operating to constrain s 7(1)(a)(i). It is in discretionary terms, namely the Commissioner may do either or both of the following. Second, it is not framed in terms that require an exclusive construction as it would if it said ‘may only’. I agree. For example, the ICAC may decide not to refer any matter at all during, or at the end of, an investigation. Such an option is consistent with the ICAC’s ability to find that there is good reason why no action should be taken in respect of a matter under s 24(4) of the ICAC Act.
The Director submits that the language of s 36(1)(a) and (b) is important. What is being referred in s 36(1) is a ‘matter’, not the investigation. They may be, but are not necessarily, the same thing. A consideration of the definition of law enforcement agencies in s 4(1) of the ICAC Act makes it apparent that s 36(1) is enabling the ICAC to refer a matter which the ICAC might have touched upon by virtue of evidence gathering in the course of the investigation, but in which this State has no interest. The ICAC can refer that aspect and continue his investigation. I agree, however, s 36(1) also plainly envisages referral of the product of the Commissioner’s corruption investigation to SAPOL during or upon completion of that investigation.
The Director submits that the better view was that rather than constraining s 7(1)(a), s 36(1) expands the dispositive options available to the Commissioner, that is, they should be read in harmony. Reading the two sections together, the Director submits[35] the options available to the ICAC are to:
1.investigate an allegation of corruption in public administration and refer it for prosecution;[36]
2.refer an allegation of corruption in public administration for investigation and potential prosecution to a law enforcement agency;[37]
3.refer a matter arising in the investigation of an allegation of corruption in public administration investigated in whole or in part by the Commissioner to a law enforcement agency for further investigation and potential prosecution;[38] or
4.refer a matter arising in the investigation of an allegation of corruption in public administration investigated in whole or in part by the Commissioner to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.[39]
[35]    Prosecution outline on the stay application, [34].
[36]    Section 7(1)(a)(i).
[37]    Section 7(1)(a)(ii).
[38]      Section 36(1)(a).
[39]    Section 36(1)(b).
The Applicant submits that s 7(1) should not be construed as expanding the referral options available to the ICAC during or at the completion of a corruption investigation. Section 36(1)(a) is the only path for referral when corruption is investigated by the ICAC. The s 7(1)(a)(i) function (‘investigate and refer for prosecution’) may be carried out under s 36(1) because SAPOL can investigate as well as prosecute by commencing proceedings in the Magistrates Court.
The Director made the submission that there is no reference in the Police Act 1998 to SAPOL being a prosecuting authority. Further, the SAPOL does not have a legal personality enabling SAPOL to bring a prosecution. An Information is laid in the name of an individual police officer. Rule 12 of the Magistrates Court Rules 1992, enables an Information laid by a police officer in the execution of his or her duty to be entitled “Police v …….”.[40] The Director submitted that the Applicant’s construction that s 36(1) is the only referral path in the ICAC Act leaves s 7(1)(a)(i) with no work to do.
[40]Rule12 also permits a “public authority” to lay an information. It states that “public authority” is defined in section 57A of the Act. “The Act” is the Magistrates Court Act 1991. There is no section 57A in the Magistrates Court Act 1991.
The Applicant also submits that the requirement that the matter be referred to the DPP via SAPOL fits with the relationship between the SAPOL and the DPP as set out in sections 10 and 10A of the Director of Public Prosecutions Act 1991 (SA) (the DPP Act). The Commissioner of Police must comply with any request to investigation and has a duty of disclosure to the Director.
10—Investigation and report
The Commissioner of Police must, so far as it is practicable to do so, comply with any request from the Director to investigate, or report on the investigation of, any matter.
10A—Disclosure of information to Director
(1)     A police officer in charge of the investigation of an indictable offence (the chief investigator) has a duty to disclose to the Director all documentary material collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case for the defence.
(2)     The chief investigator must, when so required by the Director, provide the Director with—
(a)a list, certified by the chief investigator, of all documentary material so far collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case for the defence; and
(b) copies of documentary material referred to in the list.
(3)     The duty of disclosure under subsection (1)—
(a)extends to material that would be exempt from production in court because it is protected by privilege or for any other reason; and
(b)     continues until the termination date.
(4)     The chief investigator must ensure that all material disclosed, or liable to disclosure, under subsection (1), is retained until the termination date.
(5)     The chief investigator must, at the request of the Director, provide the Director with copies of specified documentary material collected or created in the course of the investigation that is not liable to disclosure under subsection (1).
(6)     Copies of documentary material to be provided under this section may be provided in electronic form.
(7)     A police officer must not, without good and sufficient cause, fail to carry out a duty under this section promptly and diligently.
(8)     The police officer in charge of the investigation of an indictable offence will, for the purposes of this section, be the police officer appointed by the Commissioner for that purpose.
(9)     In this section—
termination date means the date when—
(a)the Director decides that the person suspected of having committed the alleged offence not be prosecuted for the offence; or
(b)the prosecution is terminated; or
(c) the accused person is convicted or acquitted, and all rights of appeal have expired or been exhausted.
There is no statutory obligation on the ICAC to comply with any request from the DPP regarding the investigation of any matter nor is there any obligation on the ICAC to make disclosure to the DPP. There is no reference to the ICAC in the DPP Act.
The Director submits that the absence of reference to the ICAC in sections 10 and 10A of the DPP Act is of no moment. The Director has the common law obligation of disclosure in a criminal prosecution. That obligation has been in existence long before the provisions were enacted.[41] Sections 10 and 10A provide the Director with a greater degree of comfort than would otherwise be the case.[42]
[41] Roberts v The Queen [2020] VSCA 58, [55] – [61].
[42] T281.
I do not consider that the absence of references to the ICAC in the DPP Act is definitive of a lack of intention on the part of Parliament to provide for direct referral of the product of a corruption investigation to the DPP. However, if there had been reference to the ICAC in the DPP Act in similar terms to the existing sections 10 and 10A regarding the role of SAPOL, then that would have been persuasive of such an intention. For example, in NSW, s 15A of the Director of Public Prosecutions Act 1986 provides that law enforcement officers investigating alleged offences have a duty to disclose to the DPP all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. ‘Law enforcement officers’ are defined to mean a policer officer or a staff member of the Law Enforcement Conduct Commission, the NSW Crime Commission or the ICAC who is responsible for an investigation into a matter that involves the suspected commission of an alleged offence. Corresponding with s 15A are provisions in the ICAC Act 1988 (NSW) which refer expressly to the DPP (NSW). For example, one of the functions of the ICAC (NSW) is to gather and assemble, during or after the discontinuance or completion of its investigations, evidence that may be admissible in the prosecution of a person for a criminal offence against a law of the State in connection with corrupt conduct and to furnish such evidence to the DPP. Section 53(1) of that Act then gives the ICAC (NSW) a broad discretion to refer a matter (whether the ICAC investigation is completed, and whether or not the ICAC has made any findings) for investigation or other action to any person or body considered by the Commission to be appropriate in the circumstances.
One of the difficulties with the Director’s expansive interpretation is that s 7 is a provision setting out the functions of ICAC, not powers. The distinction between functions and powers was referred to by Lockhart J in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission:[43]
33.The ASC Act draws a distinction between the functions and powers of the ASC, a distinction well recognized in the law with respect to the functions and powers of administrative bodies. The distinction is between functions or purposes or activities of an administrative body on the one hand, and the powers conferred upon it to perform or execute those functions, purposes and activities on the other. As Northrop J. and I observed in Edelsten v. Health Insurance Commission (1990) 27 FCR 56 at 63:
"The types of statutory contexts in which the expressions 'functions' and 'powers' of such bodies appear to differ considerably. Sometimes the two expressions are treated interchangeably or with blurred dividing lines; whilst some statutory definitions of 'functions' provide that 'functions include powers and duties': see the definition of function in Stroud's Judicial Dictionary of Words and Phrases, 5th ed., 1986 and Kathleen Investments (Aust) Limited v Australian Atomic Energy Commission (1977) 139 CLR 117 at 130; Leon Fink Holdings Pty Limited v Australian Film Commission (1979) 141 CLR 672 at 677-678; Committee of Direction of Fruit Marketing v. Australian Postal Commission (1979) [1979] FCA 31; 37 FLR 457."
[43](1993) 40 FCR 409; 112 ALR 463, as discussed in D Pearce, Statutory Interpretation in Australia, 9^thedition, [12.31].
I do not consider that the two expressions (functions/powers) are treated interchangeably in the ICAC Act nor with blurred dividing lines. Section 7(1)(a) sets out functions, not powers. Section 24(1) and s 36(1) are powers conferred on the ICAC to execute that function. That militates against accumulating them to make four available dispositive options for referral.
Ultimately, the Director submits that an express power to refer to the DPP is unnecessary. A referral is simplistically just a matter of handing something over – ‘I give this to you, now it’s your problem, if you do something with it that’s up to you, if you don’t so be it’. There is no coercion involved and there is no duty imposed by the ICAC Act upon whoever receives the material. In construing the ICAC Act, it is necessary to identify what the Commissioner is to do. The fact of the investiture of these functions in the Commissioner carries with it a duty. The Director submits this is a statutory function given to a statutory office holder, so it is necessarily implicit that he or she will discharge their responsibilities under the ICAC Act by referring direct to the DPP.[44]
[44] T228 – 229.
It may be that ordinarily there is no need for a legislative power to exist in order to refer something on. However, the term ‘refer’ is repeatedly used in the ICAC Act and is used in a way that makes it distinct from ‘providing’ or ‘disclosing’ information or evidence. For example, in s 36(1), the Commissioner may ‘refer’ a matter to the relevant law enforcement agency or to a public authority. In s 36(2), the Commissioner may ‘disclose’ to the relevant law enforcement agency or public authority any evidence or information that the Commissioner has in respect of the matter. Also, s 56A describes evidence or information being ‘provided’ to law enforcement agencies and prosecution authorities, not ‘referred’. The term ‘refer’ is generally used in the ICAC Act in respect of a ‘matter’[45] whereas ‘information’ or ‘evidence’ is ‘disclosed’ or ‘provided’.[46] It would be odd for there to be an express power to ‘refer’ a matter to a law enforcement agency, inquiry agency or public authority but no express power to ‘refer’ a matter to the DPP or a prosecuting authority.
[45] Sections 20(2), 23(1), 24, 36, 36A, 37, 38, 41, 43, 45, 49, 54(2)(b), 54(3)(b)(i).
[46] Sections 36(2), 38(5), 54, 56A, Sch 2 cl 3(9).
Further, the ICAC Act contains a complex matrix of notations, directions, authorisations and exceptions in relation to the disclosure and provision of information and evidence obtained by the ICAC during an investigation. In those circumstances, it is to be expected that Parliament would intend to expressly address the ability of the ICAC to ‘refer a matter’ by way of a power. In my view, Parliament has done so in s 36(1).
Contrary to the submissions of both parties, I consider that s 36(1)(a) is the power for carrying out the function in s 7(1)(a)(i), not the power for carrying out the function in s 7(1)(a)(ii).
First, s 24(1)(b) is the action/power that enables the function in s 7(1)(a)(ii) to be carried out. Under s 24(1)(b), if a matter is assessed as raising a potential issue of corruption in public administration that could be the subject of a prosecution, the Commissioner may refer it to SAPOL. That is action the Commissioner must take if he decides not to investigate it. If he takes that option, he is carrying out his function as set out in s 7(1)(a)(ii). That is a function to identify and refer. It is his function to refer if he decides not to investigate.
Second, I consider that s 24(1)(a) is the action/power that enables the function in s 7(1)(a)(i) to be carried out, that is, when the ICAC decides to investigate the possible corruption himself. It follows that s 36(1)(a) is the referral power arising from action taken under s 24(1)(a), which is the exercise of the s 7(1)(a)(i) function, namely, the function to investigate. It is the power for carrying out the function of investigating and referring for prosecution. It is a referral via SAPOL.
The intention of Parliament is that referral for prosecution of corruption in public administration is to be via SAPOL to the DPP. That is supported by the stark absence of relevant reference to the DPP. The only reference in the ICAC Act to ‘prosecution authorities’ is in s 56A (see discussion of ground 3).
The Director submits that his construction is consistent with the language of s 43 of the Act which adopts the language of ‘referral of the matter for prosecution or investigation and prosecution’. I consider that language is also consistent with the alternative construction. I think ‘referral of the matter for prosecution’ in s 43 is reflecting s 7(1)(a)(i), s 24(1)(1) and s 36(1)(a), that is, the pathway for when the ICAC investigates corruption in public administration. It is referred for prosecution, via SAPOL. I think ‘referral of the matter for investigation and prosecution’ is reflecting s 7(1)(a)(ii) and s 24(1)(b), that is, the pathway for when the ICAC decides not to investigate corruption in public administration.
It is also necessary to consider those phrases in the context of the complete list in s 43. What is being listed are not necessarily decisions or actions of the ICAC. The list also includes ‘the institution of any proceedings before a judicial body or the charging of a person with an offence’, neither of which is a function or power of the ICAC. In my view, the list addresses the various possible stages of the progression of ‘the matter’. The mischief being addressed by s 43 is the ability of the ICAC to perform his functions or exercise powers in respect of a particular matter when that matter is elsewhere in the criminal justice system. I do not consider s 43 assists the Director’s construction.
There are other provisions which tend to support the Applicant’s construction, that is, there being no referral power direct to the DPP. One of those is s 54(2) (the relevant parts in bold). There is no mention of a referral of a matter in accordance with the ICAC Act to the DPP or a prosecuting agency:
54 – Confidentiality
…
(2)Despite subsection (1), a person engaged in the administration of this Act may disclose information—
(a) for the purposes of the administration or enforcement of this Act; or
(b) for the purposes of referring a matter in accordance with this Act to a law enforcement agency, inquiry agency, public authority[47] or public officer; or
[47]Although the DPP is a ‘public authority’ under the ICAC Act, it is clear that only misconduct or maladministration in public administration may be referred to a public authority and that any referral is not for prosecution but rather for possible disciplinary action.

Similarly, s 45 of the ICAC addresses the Commissioner’s annual report. Fourteen items are listed that must be described in the report. No reference is made to the need for the report to describe referrals to the DPP or prosecuting agency. That supports the construction that there is no provision for direct referral for the DPP in the ICAC Act.
45 - Commissioner's annual report
(2) The report must –
…
(b) describe –
(i)the number and general nature of complaints and reports received by the Office; and
(ii)the number and general nature of matters investigated by the Commissioner;
(iii)the number of warrants issued by the Commissioner and by judges of the Supreme Court;
(iv)the number of examinations conducted; and
(v)the extent to which investigations have resulted in prosecutions or disciplinary action; and
(vi)the number and general nature of matters referred for investigation to the Commissioner of Police or other law enforcement agency; and
(vii)the number and general nature of occasions on which public statements have been made by the Commissioner; and
(viii)the number and general nature of matters referred to an inquiry agency or public authority[48]; and
(ix)the number and general nature of the occasions on which the Commissioner exercised the powers of an inquiry agency; and
….
[48] Supra.
The Director submits that the odd consequence of not reading s 7(1) and s 36(1) in harmony to make four dispositive options would be that the Commissioner is prevented from referring a matter arising from a completed investigation to the DPP, notwithstanding the ordinary meaning of the text of s 7(1)(a)(i). Instead, the Director submits, there would be an ‘unnecessary step’ to be taken of referring the matter (including a completed investigation) to a law enforcement agency for referral to a prosecution agency.
In light of the involvement of the ICAC’s investigators in this prosecution following the ‘referral’ of the matter to the DPP, there is much to be said against the Director’s submission that referring via SAPOL to the DPP would be an ‘unnecessary step’. On the contrary, there is much to be said for it being a ‘necessary step’ to ensure that the ICAC investigators do not stray outside the functions of the ICAC by prosecuting a matter, as they have done here. As Mrs Shaw QC submits, the Applicant’s construction of s 7(1)(a) and s 36(1)(a) would bring about a result consistent with what occurs in the ordinary criminal process.[49] The ICAC Act has, as part of its purpose, the curtailment of fundamental rights. The clear intention is that that curtailment occurs during the investigation. There is no basis for discerning an intention to curtail fundamental rights once charges have been laid.
[49] Defendant’s written outline re: stay application, [62].
Statements made in the second reading speeches on the various amendments to s 36 support the Applicant’s construction of the ICAC Act. There is no reference to the DPP or a prosecuting agency. The Applicant set out the following legislative history in his written submissions:[50]
[50] Defendant’s written outline re: stay application, [55] – [58].
55. Section 36 as it was introduced initially provided only:
On completing an investigation or at any time during an investigation, the Commissioner may do either or both of the following:
(a)refer a matter to the relevant law enforcement agency for further investigation and potential prosecution;
(b)refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.
56.In his second reading speech on the Introduction of the Independent Commissioner Against Corruption Bill 2012 on behalf of the Attorney‑General, the Minister for Employment said:
34‑Prosecutions and disciplinary action
This provision recognises that the outcome of an investigation may be a referral for prosecution or disciplinary action.
57.Section 36 was then amended by the Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2014. Relevantly, that Act inserted what is now s36(2) providing that the ICAC may disclose information to a law enforcement agency upon a s36 referral. In his second reading speech the Attorney‑General said of the amendments:
The Bill will also amend section 36 to make it clear that the Commissioner may disclose to the relevant law enforcement agency or public authority information that the Commissioner has in respect of a matter. The amendment will also enable the Commissioner to issue directions and guidance to a public authority on a referral under section 36.
16‑Amendment of section 36‑Prosecutions and disciplinary action
This clause amends section 36 to clarify certain issues relating to referral of a matter to the relevant law enforcement agency for potential prosecution, or to a public authority for potential disciplinary action, during or after a corruption investigation and to allow the Commissioner to give a public authority directions.
58.Section 36 was last amended by the Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2016. The amendments inserted the words “(whether relating to a potential issue of corruption in public administration or of misconduct or maladministration in public administration)” after “investigation”. In his second reading speech the Attorney‑General said of the amendments:
11‑Amendment of section 36‑Prosecutions and disciplinary action
These amendments provide that the power to refer a matter to the relevant law enforcement agency or public authority on completing an investigation or during an investigation applies regardless of the subject matter of the investigation and makes it clear that the Commissioner can provide both evidence and information to the relevant law enforcement agency or public authority.
After referring to the need for ICAC investigations to be conducted in private, the following was said in the second reading speech on 15 February 2012 for the Independent Commissioner Against Corruption (Miscellaneous) Amendment Bill:
Under the process set out in this Bill, once a matter investigated by the ICAC has been referred to SA Police for determination as to whether, based on the evidence collected by the ICAC, a charge or charges are to be laid, the normal processes and procedures of a criminal prosecution will apply. In other words, subject to any suppression order, the charge or charges and identity of the accused will then become public and the matter will proceed as per any other criminal offence, through the criminal justice system to finalisation.[51]
In my view, the ICAC had no power to refer this matter directly to the DPP in May 2017. The matter should have been referred to SAPOL pursuant to s 36(1)(a) of the ICAC Act.
[51]Second Reading Speech in the Parliament of South Australia, House of Assembly, Hansard, 15 February 2012, Independent Commissioner Against Corruption Bill, p 1360.
Ground 3: Provision of evidence and information to the DPP
In considering Ground 4, I had regard to the submissions made by both parties in relation to Ground 3, and in particular, to s 54 and s 56A of the ICAC Act.
The Applicant submits the ICAC could not provide to the Director any material assembled during his corruption investigation except via the s 36(1) mechanism. The power in s 56A and the power to vary a direction in sch 2 cl 3(11) must be read to conform to s 36(1).
This ground largely, if not wholly, builds upon the Applicant’s contention that there is no power for the ICAC to directly refer a matter to the DPP (ground 4). It is said that s 56A(1)(b) cannot authorise direct disclosure of information by the ICAC to the DPP because a direct referral to the DPP is not a referral under the ICAC Act. Section 56A can only work following a lawful referral to the DPP via a law enforcement agency under s 36(1)(a). Section 56A must be read as permitting only the law enforcement agency, not the ICAC, to provide the evidence and information to a prosecution authority.[52]
[52] Defendant’s written outline re:stay application, [87].
The Applicant also submits that ‘criminal proceedings’ in s 56A should be read to refer only to those criminal proceedings instituted under the ICAC Act or for offences committed in breach of the ICAC Act.[53]
[53] Defendant’s written outline re:stay application, [26].
The focus of s 56A is the use that may be made of evidence or information obtained by the ICAC. It is not limited to evidence or information obtained during an investigation into possible corruption in public administration.
56A – Use of evidence or information
(1) Subject to this Act (but despite any other Act or law) evidence or information obtained (whether before or after the commencement of this section) by the lawful exercise of powers in relation to suspected corruption, misconduct or maladministration in public administration—
(a)     may be used for the purposes of any other investigation in relation to suspected corruption, misconduct or maladministration in public administration; and
(b)     may be provided to, and may be received and used by—
(i)law enforcement agencies and prosecution authorities for the purposes of any criminal investigation or proceedings or proceedings for the imposition of a penalty; and
(ii)public authorities for the purposes of any disciplinary investigation or action in relation to suspected corruption, misconduct or maladministration in public administration,
whether the investigation, proceedings or action relate to, or arise from, the same matter or a different matter; and
(c)     is not inadmissible in proceedings before a court merely because the evidence or information was not obtained for the purposes of those proceedings.
(1a) For the purposes of subsection (1), evidence or information will be taken to be obtained by a lawful exercise of powers in relation to suspected corruption, misconduct or maladministration in public administration notwithstanding a jurisdictional error in the exercise of those powers.
(2)No civil or criminal liability lies against a person in respect of any use of evidence or information permitted by this section.
The Director submits that his expansive approach to the construction of s 7(1) and s 36(1) [ground 4] is supported by s 56A(1)(b)(i). He referred to the decision in C v The ICAC[54], submitting that paragraphs [137] to [141] therein are consistent with the construction contended for, namely, a broad and fully distributive one.[55] The Director submits s 56A stands alone on its own language which means that everything in the prosecutor’s brief is material that the prosecutor may have and use at trial.
[54] [2020] SASCFC 57.
[55] T267.
In my view, s 56A needs to be read in the context of the Act as a whole. It deals with the provision, receipt and use of ‘evidence or information’ in that context. It is not dealing with ‘referral of a matter’. Nor is its focus the provision of evidence or information upon referral of that matter. Section 36(2) is the power enabling the Commissioner to disclose ‘evidence or information’ that the Commissioner has in relation to the referred matter, to the referral body (law enforcement agency or public authority). Section 56A enables the Commissioner to provide any other ‘evidence or information’ the Commissioner has for the purposes of any other criminal investigation or proceedings. The law enforcement agency or prosecution authority may receive and use the evidence or information even though it may have been obtained in the course of a different investigation. It is not inadmissible before a court merely because the evidence or information was not obtained for the purposes of the particular court proceedings. Without s 56A, the Commissioner would be prohibited from providing such evidence or information and the law enforcement agency and prosecution authorities would be prohibited from receiving or using it. That is because of the decision in Johns v ASC[56], namely, that statutory powers conferred, and information thereby obtained, for one purpose cannot be lawfully used for another purpose. As stated by Bleby J in C v The ICAC:
if the investigation is then carried out lawfully according to Parliament’s prescription, and information is thereby revealed that paints a more comprehensive picture of the nature of the matter, indicating some different character of wrongdoing, there is an obvious public interest in that information being available for that further purpose. That is the mischief to which s 56A is manifestly directed.[57]
[56] (1993) 178 CLR 408.
[57] C v The ICAC, [142] per Bleby J.
I do not consider s 56A is a stand-alone provision which does the work of a direct referral to the DPP.
I also do not think it necessary to constrain the operation of s 56A as suggested by the Applicant. There is no basis to restrict the meaning of ‘a criminal proceeding’ to criminal proceedings instituted under the ICAC Act or for offences committed in breach of the ICAC Act. In my view, s 56A enables the ICAC to provide information and evidence obtained during a corruption investigation directly to the DPP for the purpose of any criminal proceeding, but such a ‘provision’ of information does not amount to a ‘referral’ for prosecution. If the ICAC intends to refer the matter for prosecution then it must be done via s 36(1).
The Applicant also submits that the variations to the directions made by the ICAC under sch 2 cl 3(11) in April 2017 (to enable the evidence of the examinations of Mr Shelton, Mr Fox and Mrs Bell to be provided to the Director and others) were beyond power. The matter was unlawfully ‘referred’ to the Director. I agree that the variations themselves did not and could not amount to a ‘referral’ of the matter or a stand‑alone power to provide evidence to the DPP. The provision of evidence for receipt and use by the DPP, in relation to a matter not ‘referred’ to the DPP, must be via s 56A.
If the evidence was being provided to the DPP under s 56A(1)(b)(i), then the non‑communication direction in relation to the examinations of Mr Shelton, Mr Fox and Mrs Bell did have to be varied. That is consistent with what was said in C v The ICAC. It was accepted that the words ‘Subject to this Act’ in s 56A reflects a need for s 56A to work with sch 2 cl 3[58]. In submissions on that appeal, the Commissioner gave an example of wishing to use information obtained in one class of investigation for the purposes of a different class of investigation (s 56A(1)(a)), but where that information might be effected by a non‑communication direction made under cl 3(9). In that situation, it would be necessary to vary the non‑communication direction in accordance with sch 2 cl 3(11) before the evidence and information could be used for that purpose.[59] A non‑publication order takes priority, or ‘trumps’, a general provision authorising disclosure.[60]
[58]The submission made here by the Applicant that ‘Subject to this Act’ is included in s 56A to preserve the division of evidence and information obtained as a consequence of a corruption investigation from other material was made and rejected in C v The ICAC, at [135] – [143] per Bleby J.
[59] C v The ICAC, [136] per Bleby J.
[60]Chief Examinerv Brown [2013] VSCA 167; (2013) 44 VR 741 at [112]; Australian Crime Commission v OK (2010) 185 FCR 258.
The variations of the directions regarding Mr Shelton, Mr Fox and Mrs Bell would have been permissible if the purpose was to provide them for a criminal proceeding pursuant to s 56A. A ‘criminal proceeding’ is not defined in the ICAC Act. In the context of contempt of court, it has been held that ‘proceedings’ includes pending proceedings and the expression must be given a sufficiently broad meaning in criminal cases to cover a person who has been arrested and charged; although it may not be sufficient that the institution of criminal proceedings may be imminent or expected.[61] It is questionable whether as at May 2017, the provision of the evidence could be said to be for the purposes of criminal proceedings against Mr Bell given that charges were not laid until August 2017.
[61]Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281, 306 (Mason, Wilson and Dawson JJ) citing James v. Robinson [1963] HCA 32; (1963) 109 CLR 593, at p 606 ; R. v. Daily Mirror; Ex parte Smith (1927) 1 KB 845, at p 851.
The Applicant relied upon Chief Examiner v Brown[62] in which it was held that a power similar to sch 2 cl 3(9) did not permit a non‑communication direction to be made which had incorporated within it exceptions permitting disclosure to the Victoria Police and the Office of Public Prosecutions for the purpose of a prosecution.[63] The breadth of the exceptions was tantamount to making an exception to the ‘world at large’.[64] That defeated the need for a non‑communication direction. It was tantamount to refusing to make one.
[62] [2013] VSCA 167; (2013) 44 VR 741.
[63] Chief Examiner v Brown, [87] per Tate J.
[64] Ibid [72] per Tate J.
Unlike the ICAC Act (SA), the legislation in Victoria does not include the power to vary a direction akin to sch 2 cl 3(11) and (12). In any event, the variations here were not in the wide terms as the direction in Brown. They were confined to the Director himself, a named Senior Counsel within the Office of the DPP and to such other members of the staff of the DPP as may from time to time be nominated by the Director. The variation envisaged the ability to limit and trace persons to whom disclosure was authorised. It is worth noting, however, based on the decision in Brown, that a variation of a direction so as to make provision to the DPP an exception may, in particular circumstances (such as those in Brown where there were safety concerns about the examined witness), be impermissible because it effectively defeats the protective purpose of such a direction in the first place; the direction may need to be revoked before such disclosure is made:
It would be anomalous if a non-publication order could not be rescinded where, for example, circumstances changed so as to reveal that there was no longer (or had never been) any threat to the safety or reputation of a witness. But that is wholly different from the proposition that, while a non‑publication order is in force, it can contain exceptions which permit the release of evidence given confidentially so as to be included in a prosecution brief and thereby made available to the defence. Where the purpose of the order is to protect the safety or reputation of a witness, without which those interests might be prejudiced, more is needed to support the view that the order may include a qualification to the effect that, despite the ostensible confidentiality of the evidence, it can nevertheless be released to a person charged with an offence although the evidence given by the witness is potentially adverse to the defendant’s interests.[65]
[65] Ibid [70] per Tate J.
The lack of clarity about the statutory source of the power to provide the evidence to the DPP in May 2017 is perhaps best illustrated by the terms of the variations themselves. On the sch 2 cl 3(11) variation, dated 24 April 2017, of the direction at the examination of Mr Fox, satisfaction is expressed in the following terms: ‘that making the variation is necessary to allow the outcome of this investigation to be referred to the Director of Public Prosecutions (SA) so that it may be properly considered by him and his office’.[66] On the variation, dated 15 June 2017, satisfaction is expressed in these terms: ‘that making the variation is necessary for the further investigation of this matter’. By that stage, the matter had been ‘referred’ to the DPP. The only difference in the second variation was that Mr Fox was added as a person to whom disclosure was permitted. No equivalent second variation was made in relation to Mr Shelton or Mrs Bell.
[66] VDD4 - Affidavit of JRH, Exhibit JRH-2, page 22.

Initially, the Director made the submission that all the investigators were doing was alerting the email recipient to the application of s 54, but did not say whether it applied or if it did, how. The reason for that was said to be because an investigator cannot give legal advice as to whether or not the person can bring themselves into one of the exceptions. The Director agreed that by contacting witnesses as ICAC investigators, they were bringing s 54 into play but there was no prejudice to the Applicant. His legal representatives have always been able to contact and speak with the witnesses because s 54(3) applies. The Director did concede that ‘the ordinary person in the street who receives an email with s 54(3) in it might be somewhat frightened’.[155] He agreed that was arguably not ideal but submitted it was not unlawful.[156]
[155] T248.
[156] T249.
In relation to an email sent to Mr Barton after charges were laid, the Director conceded that the ICAC investigator was ‘in the business at that time of preparing a matter for prosecution’ and was ‘not investigating solely for the ICAC at that stage’.[157] The Director also conceded that ‘There is no doubt that an investigation conducted by the ICAC because of the ICAC’s involvement has complexities that an investigation conducted by SAPOL does not. When you introduce those complexities…there is no doubt that anybody involved might need legal advice…the fact is, it’s not for the investigator to provide legal advice’.[158] The Director then conceded that the email sent to Mr Wheaton on 1 August 2019 did amount to legal advice.[159] That legal advice was in relation to the effect of the notation on the summons issued to Mr Wheaton.
[157]    T257.
[158]    T260.
[159]    T261; VDD4 - Affidavit of JRH, Exhibit JRH4, page 75.
I agree with the Director that it is likely the witnesses were within the exception which permitted disclosure for the purpose of the criminal proceedings. The situation is similar to the issue in DPP (SA) v Jaunay & Anor.[160]The Full Court considered an appeal against an order of a magistrate permanently staying the prosecution of the respondents who were two police officers charged with assault. The investigation had been conducted jointly by the internal investigation service of SA Police (the IIS) and the ICAC.
[160] [2020] SASCFC 25, [148].
The permanent stay has been granted by the Magistrate on the basis that an inspector had unlawfully directed the appellants to provide statements in affidavit form when he was not authorised in law to do so or had otherwise procured the affidavits unlawfully. It was determined on appeal that the inspector did not direct, but requested that the two officers provide affidavits. The disciplinary offence created by the relevant act of declining to provide information on the ground of the privilege against self‑incrimination applied only to refusal to provide information in response to a direction.
Here, the ICAC investigators did not expressly tell the witnesses they were bound by confidentiality under the ICAC Act. However, witnesses could have been left with the distinct impression that they were. My view, as stated above, is that the ICAC investigators had impermissibly crossed the line into engaging in the criminal proceedings. Having done so, the gravamen of this conduct is that their communications about the role of s 54 were less than transparent. If they had been acting in the performance of their functions (which they were not), then they were required to be as open and accountable as is practicable under s 7(4)(a) of the ICAC Act.
Assisting the DPP
Based on the filed affidavit material, it is clear that ICAC investigators have undertaken the role that SAPOL would usually perform in the preparation of major indictable charges for trial. That has included contacting witnesses, preparing declarations, arranging proofing sessions, attending proofing sessions and following up reluctant witnesses. For the reasons stated above at [111]‑[127], I do not consider this falls within the functions of the ICAC and his investigators.
Pre-charge conduct: telephone intercepts (paragraph [2.7] of ground 2)
Ground 2.2 complains about conduct of the ICAC investigators prior to May 2017. The complaint is that information about the Applicant’s proposed defence was obtained by telephone intercepts in breach of legal professional privilege and then used for the express purpose of obtaining evidence to negate his defence.
On 2 May 2016, a member of the Administrative Appeals Tribunal authorised warrants in relation to the mobile phone of the accused[161] and the mobile phone of Mr Shelton.[162] Each of the warrants included the following condition: “Any communications involving apparently legally privileged material will not, after they have been identified, be transcribed or provided to any ICAC investigator or otherwise used in the course of the investigation.”[163] The warrants were obtained pursuant s 46 of the Telecommunications (Interception and Access) Act 1979 (Cth).
[161]    VDD2 - Affidavit of JRH, exhibit JRH-1.
[162]    VDD2 - Affidavit of JRH, exhibit JRH-2.
[163]    VDD2 - Affidavit of JRH, exhibit JRH – 2.
On 10 May 2016, the ICAC executed a search warrant upon the accused’s residential address. During the search, the investigator invited the accused to speak to his lawyer. The accused made a call and the conversation was intercepted.
On 12 May 2016, the accused spoke with Ms Redmond MP. He told her his position in relation to funds at the time the LCETA was being wound up. According to the Applicant, the conversation involved the disclosure of information that was covered by legal professional privilege.
On 12 May 2016, and twice on 19 May 2016, the Applicant spoke to his wife discussing his defence and his legal advice. An ICAC investigator transcribed call 771 which occurred on 19 May 2016 between the Applicant and Mrs Bell.[164] The transcript of that conversation was exhibited to the affidavit of Mr Orford, dated 21 April 2017.[165] In that conversation, Mr Bell told his wife that he had spent some time with the solicitor again that day. He told his wife what the defence was going to be in relation some funds relating to LCETA. He put $30,000-$60,000 of his own money into LCETA when it was being wound up so that the staff could be paid. He did not financially benefit.
[164] VDD11 - Affidavit of JRH, [13], exhibit JRH – 7.
[165] VDD11 - Affidavit of JRH, [13], exhibit JRH – 7 and JRH – 8.
On 1 July 2016, Investigator Orford, according to the running sheet entry, ‘sought information from Chris Davis business manager for Millicent High School to negate Bell’s proposed defence’.[166]
[166] Running sheet entry, 1 July 2016, page 67 of 87; accused’s submissions paragraph 194.
The Applicant submits that the warrants were obtained a matter of days before the execution of the search warrants. They could not have been issued to gather evidence of suspected ongoing criminal conduct because that conduct concluded years before. It was submitted that ‘the compelling inference is that the only purpose for the obtaining of those warrants must have been to obtain admissions during calls either to lawyers or to others during the course of the planned execution or following’.[167] That was said not to have been a proper purpose to seek the TI warrants and execute the search warrants at that time.
[167] Accused’s supplementary submissions, paragraph 70.
In relation to Mr Shelton, the ICAC produced a spreadsheet[168] in response to a subpoena that was said to identify the intercepted communications. The covering letter stated that the entries marked in yellow on the spreadsheet are intercepted communications between Mr Shelton and a legal representative which were quarantined by ICAC investigators.[169]
[168] On 19 June 2020, in response to a subpoena issued by the Applicant.
[169] VDD4 - Affidavit of JRH, paragraph 35, exhibit JRH – 9.
At [91] of the statement of Mr Orford, dated 21 April 2017, he said that he reviewed intercepts to both services and where it was considered appropriate, he identified material that could be the subject of a legal professional privilege claim.[170]
[170] VDD4 - Affidavit of JRH, paragraph 36.
The Applicant submits that on the face of the warrant, the ICAC investigator was not permitted to listen to calls that were apparently the subject of legal professional privilege. It is apparent that those calls, in contravention of the terms on the face of the warrant, were provided to Mr Orford who purported to determine whether those calls were apparently the subject of LPP. The Applicant’s solicitors were never afforded an opportunity to make submissions to an independent person as to whether those calls did in fact attract the privilege. That is a serious breach that cannot now be undone. The same breaches occurred in respect of Mr Shelton.
The Applicant submits that the warrants also expressly prohibited any apparently legally privileged material from being transcribed. Call number 771 was transcribed.
The Applicant submits that the ‘ICAC, in defiance of the conditions of the TIIA warrants, transcribed and used apparently legally privileged material. The ICAC then disclosed that material to the prosecutor, the DPP, who now seeks to lead that material as admissions on the Applicant’s trial. That is unlawful. The investigator expressly sought further evidence to negate [Mr] Bell’s proposed defence.[171] The Applicant submits that even if that was not unlawful, it was unfair because the ICAC has covertly gained information about the Applicant’s defence and then secretly sought to obtain further evidence for the purpose of negating it. This has ‘altered the fundamental principle that it is for the prosecutor to prove its case without the assistance of the accused’.[172]
[171] Defendant’s written submissions re: stay application, [208].
[172] Ibid [209].
The Director submitted that call 771 is the only call which has been transcribed in circumstances in which it is debateable whether the conversation was privileged. The difficulty with the condition of the warrant is that it leaves it to an inspector to determine privilege, so that assessment, ‘for good or ill, has been made’.[173] There is no basis for a stay on the basis of the transcription of one call, which may be privileged. Further, the complaint in relation to Mr Shelton’s calls is that some of them may be privileged. The content of those calls is not evidence on this application. The Director submitted that this issue can be dealt with under ss 74(1) and 78 of the Telecommunications (Interception and Access) Act 1979 (Cth).
[173] T287.
There is insufficient material before me to determine whether the conduct of the ICAC in regard to the identified calls was unlawful or unfair. The content of the calls relating to Mr Shelton is not evidence on this application. Even if the calls involving Ms Redmond MP and the Applicant’s wife are privileged, I would not grant a stay on the basis of the breach of privilege in relation to those two calls. It may be that the evidence sought to be led by the prosecution is the subject of an application to exclude, which, if made, will need to be argued and considered in due course.
Pre-charge conduct: examination of Mrs Bell
The Applicant submits that, by s 21(2) of the Evidence Act 1921 (SA), Mrs Bell is not a compellable witness against the Applicant at his trial. The Applicant could not be compulsorily examined because criminal proceedings were under consideration. Instead, it is said that the ICAC used Mrs Bell ‘as a proxy’ to examine the Bell family’s household finances prior to ‘referring’ this to the DPP. ‘In other words, by his examination the ICAC sought to obtain information from a non‑compellable witness that he could not lawfully acquire from the accused himself’.[174] That was said to be an abuse of the power to summons a person for examination. It also gives the DPP, now in possession of that evidence, an unfair advantage.
[174] Defendant’s written outline re: stay application, [173].
The Director submits that Mrs Bell is competent and compellable. That she might be excused from giving evidence under s 21 of the Evidence Act 1929 (SA) does not alter that. She stands in no different position to Mr Shelton or Mr Fox. The common law does not recognise a privilege against spousal incrimination.[175] The privilege against self-incrimination nor the accusatory nature of the common law criminal trial is offended by compulsorily examining a spouse.
[175] Prosecution outline on the stay application, [78.d], citing ACC vStoddart (2011) 244 CLR 544.
I consider that the position here is similar to that of a company employee, the latter being the subject of the decision in Commonwealth of Australia v Helicopter Resources Pty Ltd & Ors.[176]At an inquest into the death of an employee of Helicopter Resources Pty Ltd, the Commonwealth requested that another company employee be made available for cross‑examination. The company was charged with summary offences under the Work Health and Safety Act 2011 (Cth), as was the Commonwealth. Two of the charges arose out of the death of the employee. The Coroner issued a subpoena. The company sought judicial review of that decision. Section 87(1)(b) of the Evidence Act 2011 (ACT) provided that a representation by an employee of a party may be taken as an admission by the party if the representation relates to a matter within the scope of the employee’s employment.
[176] [2020] HCA 16.
The High Court held that that provision did not have the effect that the compulsion of an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence amounts to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case.[177] That rule applies to an accused, not a witness or potential witness other than the accused.[178] There is nothing fundamental to the accusatorial system of criminal justice that requires that an accused employer be free to prevent statements of an employee from being used as evidence against the employer.[179] An accused has no property in a witness or potential witness, even one who may be attributable to the accused.[180] Strickland has nothing to do with the lawfulness of compulsory interrogation of potential third-party witnesses.[181] Because an otherwise lawful compulsory investigative procedure may result in a witness making representations that can be treated as an admission against an accused in subsequent criminal proceedings, the deployment of that procedure does not amount, without more, to a breach of the companion rule or other interference with the accusatorial system of criminal justice.[182]
[177] Helicopter Resources, [2].
[178] Ibid [17].
[179] Ibid [20].
[180] Ibid [20].
[181] Ibid [22].
[182] Ibid [22].
I do not consider there was any unlawfulness or unfairness in the examination of Mrs Bell.
Ground 5 – search warrants
On 28 April 2016, on application of the ICAC pursuant to s 31(2) of the ICAC Act, Justice Lovell issued warrants authorising the search of premises at four separate addresses in Millicent and Mount Gambier (the Supreme Court warrants).[183]
[183] DPP Book of Documents, VDP14, Tab 11.
On 4 May 2017, the ICAC issued warrants pursuant to s 31(1) of the ICAC Act at three separate addresses (the ICAC warrants). [184]
[184] DPP Book of Documents, VDP14, Tab 10.
The Applicant contends that the Supreme Court warrants were invalid for want of disclosing on their face the specific offence/s under investigation and further, the ICAC warrants fail to mention an offence at all, referring only to an ‘issue’.
Supreme Court warrants
Paragraph one of each of the Supreme Court warrants were in the following terms:-
1.On an application made on …….by an investigator seconded under section 13 of the Independent Commissioner Against Corruption Act 2012 (SA) (‘the Act’),
I, David Cameron Lovell, a Judge of the Supreme Court of South Australia, am satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration and relates to a private place in which it is reasonably suspected there may be records relating to a prescribed offence or a thing that has been used in or may constitute evidence of a prescribed offence being proper grounds for the issue of a warrant under section 31(2) of the Act.
Each of the Supreme Court warrants nominated the authorised investigator, the address of the private premises, the hours between which entry was authorised and expiry within one month if not executed.
The Applicant complains that the Supreme Court warrants referred only to a prescribed offence. That is defined as meaning corruption in public administration or an offence against the ICAC Act.[185] Corruption in public administration is conduct which constitutes a large number of potential offences.[186]
[185] Section 4 of the ICAC Act.
[186] Section 5(1), (2) and (5) of the ICAC Act.
ICAC warrants
Each of the ICAC warrants were in the following terms:
On the application made on 28 April 2016, by Mark Andrew Orford, an investigator pursuant to section 14 of the Independent Commissioner Against Corruption Act 2012 (SA) (‘the Act’), I, Bruce Lander QC, am satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration.
Each of the ICAC warrants nominated the authorised investigator, identified the premises, the hours between which entry was authorised and expiry within one month if not executed.
The Applicant submitted that the decision of Bampton J in DPP(SA) v King[187] was wrongly decided, particularly in light of the recent decision of the High Court in Smethurst v Commissioner of Police.[188]
[187] [2019] SASC 42.
[188] (2020) 376 ALR 575.
The Applicant complains that the reference to ‘a potential issue of corruption in public administration’ is so broad as to be almost meaningless.
Discussion
The ICAC Act does not require that a warrant must state the particular offence to which the warrant relates or the things that are the object of the warrant. Section 31 was then in the following terms:
31—Enter and search powers under warrant
(1)The Commissioner may, on application by an investigator or on his or her own initiative, issue a warrant authorising an investigator to enter and search—
(a)     a place occupied or used by an inquiry agency, public authority or public officer; or
(b)     a vehicle owned or used by an inquiry agency, public authority or public officer.
(2)A judge of the Supreme Court may, on application by an investigator, issue a warrant authorising an investigator to enter and search—
(a)     a private place or private vehicle that is reasonably suspected of being, or having been, used for or in connection with a prescribed offence; or
(b)     a private place or private vehicle in which it is reasonably suspected there may be records relating to a prescribed offence or anything that has been used in, or may constitute evidence of, a prescribed offence.
(3)A warrant may only be issued if the Commissioner or the judge is satisfied that the warrant is reasonably required in the circumstances for the purposes of an investigation into a potential issue of corruption in public administration.
….
(6)     A warrant must—
(a)     specify the place or vehicle to which the warrant relates; and
(b)     state whether entry is authorised at any time of the day or night or during specified hours of the day or night.
In DPP (SA) v King,[189] Bampton J considered a submission that the ICAC warrants in that case lacked specificity as to the nature of the offences being investigated and the things to be seized. The warrants were said to be invalid because they did not identify the offence/s the subject of investigation. It was held by Bampton J that s 31 of the ICAC Act did not require a suspected offence to be recorded on the warrants. The warrants disclosed on their face what was required to be disclosed under s 31. They were not invalid.
[189] [2019] SASC 42.

The Applicant submitted that, as the decision was made by a Supreme Court Judge sitting alone in a Magistrates Appeal (a single judge of the Supreme Court does not sit above a single judge of the District Court in the appellate hierarchy), I am not bound by the decision, but must accord very great weight and respect to it as it is on the same issue of law and should be followed unless convinced that it was wrongly decided or clearly wrong.[190]
[190] Defendant’s written outline re: stay application, [117].
In Smethurst, the High Court considered warrants issued under Pt 1AA of the Crimes Act 1914 (Cth). Section 3E(5) specifically required that the offence to which the warrant relates must be stated in the warrant. The statement of the offence on the warrants was not only deficient, but a misstatement. The members of the Court discussed the exceptional nature of the power to search and the balance struck by legislatures by enacting provisions to ensure a measure of protection to persons affected by a warrant. The courts must therefore insist upon strict compliance with those provisions.[191]
[191] Kiefel CJ, Bell and Keane JJ at [27].
I do not consider that Smethurst requires a different conclusion in DPP (SA) v King. I do not consider the ICAC warrants were invalid on their face.
I make the same finding in relation to the Supreme Court warrants. There is no legislative requirement for an offence to be specified in the warrant. The ICAC has been entrusted with extraordinary powers in order to investigate suspected corruption in public administration, however, on the face of the warrants, there was compliance with these legislative provisions.
I dismiss this ground.
The power to stay the proceedings
I adopt the written submissions made by the Director on the implied power of a court to permanently stay criminal proceedings:
80.This Court possesses an implied power to stay criminal proceedings where the prosecution will result in a trial that is unfair and an abuse of the processes of the Court.[192] The power involves the exercise of a discretion.[193] It is a power to protect the court’s processes, not to punish.[194]
81.The grant of a stay amounts to a refusal by the court to exercise jurisdiction. The need to maintain general confidence in legal process “imposes severe limits upon the power to stay proceedings, because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes”.[195] Bearing in mind that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised,[196] the power is to be exercised only in the most exceptional circumstances[197] and the Court must approach consideration of the exercise of this discretion with caution.[198]
82.The onus is on the defendant to demonstrate the existence of facts which enliven the discretion to order a stay and that, in all the circumstances, a stay is the only remedy available in order to prevent abuse.[199] The onus is a “heavy one”.[200]
[192]    Rona v District Court (SA) (1995) 63 SASR 223.
[193]    Jago v District Court (NSW) (1989) 168 CLR 23 at 31 (Mason CJ), 75 (Gaudron J).
[194]    Strickland v DPP (Cth) (2018) 93 ALJR 1 at [154] (Gageler J).
[195]    DPP v Shirvanian (1998) 44 NSWLR 129 at 134 (Mason P, Beazley JA agreeing).
[196]Jago v District Court (NSW) (1989) 168 CLR 23 at 76 (Gaudron J); Re Qld Electricity Commission ex parte Electrical Trades Union (1987) 61 ALJR 393 at 399 (Deane J).
[197]Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Barton v The Queen (1980) 147 CLR 75 at 94-95 (Gibbs ACJ and Mason J); Jago v District Court (NSW) (1989) 168 CLR 23 at 31, 34 (Mason CJ), 60 (Deane J), 76 (Gaudron J); Strickland v DPP (Cth) (2018) 93 ALJR 1 at [106] (Kiefel CJ, Bell and Nettle JJ), [248] (Edelman J).
[198]Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Barton v The Queen (1980) 147 CLR 75 at 94-95 (Gibbs ACJ and Mason J); Jago v District Court (NSW) (1989) 168 CLR 23 at 31, 34 (Mason CJ), 60 (Deane J), 76 (Gaudron J).
[199]Jago v District Court (NSW) (1989) 168 CLR 23 at 34 (Mason CJ); Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ).
[200]Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); R v B, P [2016] SASCFC 30 at [28] (Kourakis CJ, Kelly and Bampton JJ agreeing).
There are two lines of reasoning relied upon by the Applicant, which were discussed by the High Court in Strickland v Commonwealth Director of Public Prosecutions & Others.[201]The first is the remedy of a stay where there has been forensic advantage or disadvantage.[202] The second is where the continued prosecution would bring the administration of justice into disrepute.[203] The two may certainly overlap.
[201] [2018] HCA 53.
[202] Ibid [75] – [85].
[203] Ibid [86] – [107].
Under consideration in Strickland was the examination of the appellants by the Australian Crime Commission (ACC). After the appellants had declined to participate in a cautioned interview with the AFP, they were compulsorily examined by the ACC and subsequently charged. At the time of the examinations, the ACC examiner was aware that the appellants were regarded by the AFP as suspects who may be charged and had declined to answer questions. Between six to nine AFP officers watched the examinations from a nearby room. Their presence was not disclosed to any of the appellants. The examiner made non‑publication directions that permitted dissemination of the examination material to the AFP and the Commonwealth Director of Public Prosecutions.
The compulsory powers conferred on ACC examiners were available for use only for the purposes of a specific ACC investigation. ‘Whatever the ambit of the ACC’s powers, they are constrained by the ACC Act to be exercised only in the circumstances and only for the purposes for which the Act provides’.[204] The powers were not available to be ‘let out to the AFP whenever an AFP suspect declines to be interviewed, for the purpose of compelling the suspect to make admissions in relation to the offence of which he or she is suspected’.[205] The examinations were not held for the purpose of a special ACC investigation as there was no ACC investigation on foot. Rather, they were held for an extraneous, unlawful purpose of assisting the AFP to compel the appellants to give answers to questions about offences of which they were suspected and had declined to be interviewed. The examinations were unlawful.[206] The ACC acted at all times simply as a facility for the AFP to cross examine the appellants under oath for the AFP’s own purposes.[207]
[204] Ibid [72].
[205] Ibid [73].
[206] Ibid [73] – [74].
[207] Ibid [30].
What was the effect of the unlawfulness?
First, there was forensic advantage and disadvantage. The majority found ‘the prosecution derived the forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial’.[208] The appellants suffered a forensic disadvantage of being locked into a version of events from which they could not credibly depart at trial.
[208] Ibid [75].
Reference was made to the decision in X7[209] where an unlawful compulsory examination conducted post charge fundamentally altered the accusatorial judicial process.[210] Here, the appellants were unlawfully subjected to a pre‑charge compulsory examination conducted for an extraneous, unlawful purpose. It fundamentally altered the accusatorial process for that offence by unlawfully compelling the person to provide the prosecution with information.[211]
[209] X7 v Australian Crime Commission (2013) 298 ALR 570.
[210] Strickland, [76].
[211] Ibid [77].
Second, the forensic disadvantage in conjunction with the examiner’s unlawful, reckless disregard of his statutory responsibilities was such that the continued prosecution of the appellants would bring the administration of justice into disrepute.[212] The whole exercise (to assist the AFP to compel the appellants to give answers to questions about offences of which they were suspected and in relation to which they had exercised their common law right to silence) was profoundly unlawful.[213] Instead of making non‑publication orders to prevent prejudice to the fair trials of the appellants, the examiner made non‑publication orders (allowing the product to be distributed to all AFP officers involved in the investigation and the CDPP without restriction) that served to undermine their fair trials.[214]
Certainly, as this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.
To condone such grossly negligent disregard of statutory protections and fundamental rights as occurred in these cases would be to encourage further negligent infractions of the strict statutory requirements of Div 2 of Pt II of the ACC Act and thus of the common law right to silence. In effect, it would be to imply that, short of intentional or advertent reckless disregard of the ACC Act, ACC officers might proceed however negligently in violation of the Act and the protections which it expressly affords to examinees, and therefore however much in violation of a suspect’s common law right to silence, confident in the knowledge that this Court would wave through the results on condition only that there would be a change of prosecutorial team and such trial directions as it might be hoped would ameliorate the prejudice thereby caused to the person whose statutory and common law rights have thus been abused. To allow the prosecutions of the appellants to proceed in these cases would so much bring the administration of justice into disrepute that the prosecution should be stayed.[215]
[212] Ibid [86].
[213] Ibid [90].
[214] Ibid [94].
[215]Ibid [106] – [107].
What is the forensic disadvantage/advantage here?
Contrary to the ICAC Act, the matter was referred direct to the DPP rather than referred to SAPOL. Information and evidence was provided to the DPP at that stage which should have been provided to SAPOL. The consequence of SAPOL being bypassed is that the ICAC investigators stepped beyond the performance of the statutory functions of the ICAC into the arena of criminal proceedings.
How did that prejudice the Applicant? He was served with an authorisation which, on its face, restricted his ability to disclose matters relating to the ICAC. He lost the benefit of the application of s 10A of the DPP Act. The two prosecution witnesses and his wife who were compulsorily examined were prohibited for almost three years from speaking to his lawyers about their evidence given at that examination. One of those witnesses may have been given the impression he was required to provide a statement based on his examination transcript. Other witnesses may have been given the impression they were required to participate in the prosecution by providing statements and attending proofings with the DPP and that they were bound by secrecy. A power was unlawfully exercised to obtain financial records from banks and a credit union. A power was unlawfully exercised to obtain documents from Mr Wheaton.
There is no evidence of actual prejudice to the Applicant in terms of non‑communication arising from the service of the authorisation or the inability to speak to witnesses or his wife about the matter. There is no evidence of the defence being told by potential prosecution witnesses that they would not discuss the matter because of the involvement of the ICAC. The financial records were likely to have been obtained by SAPOL in any event, as were the documents from Mr Wheaton. Or at least a subpoena issued for their production.
The Director submits that the complaint in regard to Mr Wheaton can be shortly dealt with because the notation on his summons was cancelled. From the end of 2019, Mr Wheaton was free to speak to the Applicant’s legal practitioners and provide to them whatever documentation he may have.[216] The Director submits that ‘the matter has been put beyond doubt in any event by the revocation of the directions to the three witnesses’.[217] It is less than satisfactory that the revocation took three years. The Director submits the remedy is to adjourn and allow sufficient time for the defence to speak to the witnesses.[218]
[216]    Prosecution outline on the stay application, [39].
[217]    Prosecution outline on the stay application, [43].
[218]    T253.
I do not consider the Applicant has suffered a forensic disadvantage nor the prosecution obtained a forensic advantage which warrants a stay of the proceedings on the basis that any trial would be irretrievably unfair. I agree with the Director’s submission about the available remedy for some of the Applicant’s complaints (allowing sufficient time for the defence to speak to prosecution witnesses). There are other possible available remedies for the unlawfulness, that may be the subject of submissions in due course. A stay of proceedings is not warranted on the basis of a finding of unlawfulness per se. It must depend on the circumstances of that unlawfulness.
Before a stay will be granted, there needs to be no other way of bringing about a fair trial. In DPP (SA) v Jaunay & Another the Chief Justice, with whom Kelly and Parker JJ agreed, considered the following statements of principle correct:[219]
74. Before granting a stay, the Court must be satisfied that there is no other way of remedying the problem, and no other available means to bring about a fair trial. The community interest in facilitating the prosecution of persons accused of serious crimes weighs heavily against the grant of a permanent stay of proceedings.
...
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 that a trial Magistrate can do in the conduct of the trial to relieve against its unfair consequences. To put this another way, there must be no other means of remedying the problem said to give rise to unfairness (for example, appropriate directions, adjournments, interlocutory orders, rulings on evidence, etc.), nor any other means available to the court bring about a fair trial.
[219] [2020] SASCFC 25 at [148].
My decision not to grant a stay is not to condone the direct referral to the DPP, the bypassing of SAPOL involvement and the engagement of the ICAC in the criminal proceedings, but rather, to recognise that a stay will only be granted in very rare circumstances. The Director submits ‘There’s no unlawful exercise of powers. Your Honour’s referred to a number of mistakes. Granted. Not unlawful. Errors. Unhelpful, we concede, but not unlawful.’[220] I have found there was unlawful exercise of powers, however, that on its own is not sufficient for a stay. There were certainly mistakes and errors which were unhelpful.
[220] T272.
This is not a situation in which the accused’s common law right to silence has been abrogated, as occurred, for example, in X7, Lee v R (No 2)[221] and Strickland. I do not think the conduct was such as to turn the pre-trial proceedings into an inquisitorial process rather than an accusatorial one, as submitted by Mrs Shaw QC. The conduct of the ICAC is not such that allowing the prosecution of the Applicant to proceed would so much bring the administration of justice into disrepute that the prosecution should be stayed.
[221] Lee v R (2014) 308 ALR 252.
The application for an order that the within proceedings be stayed on the basis that they are an abuse of process is refused.

      VDD3 - Affidavit of Joseph Robert Henderson, dated 3 July 2020.
      VDD4 - Affidavit of Joseph Robert Henderson, dated 3 July 2020.
      VDD5 - Affidavit of Joseph Robert Henderson, dated 6 July 2020.
      VDD6 - Affidavit of Joseph Robert Henderson, dated 7 July 2020.
      VDD8 - Affidavit of Joseph Robert Henderson, dated 9 July 2020.
      VDD11 - Affidavit of Joseph Robert Henderson, dated 13 July 2020.
      VDD13 - Affidavit of Joseph Robert Henderson, dated 31 July 2020.

      (a)     the Australian Crime Commission; or
      (b)     the Australian Federal Police; or
      (c)     the Australian Commission for Law Enforcement Integrity; or
      (d)     South Australia Police; or
      (e)     the Police Ombudsman; or
      (f)     the police force of another State or a Territory of the Commonwealth; or

(g)in relation to New South Wales—the Crime Commission, the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the Police Integrity Commission or the Inspector of the Police Integrity Commission; or

(h) in relation to Queensland—the Crime and Corruption Commission; or

(i) in relation to Tasmania—the Integrity Commission; or

(j)in relation to Victoria—the Office of Police Integrity, the Independent Broad-based Anti‑corruption Commission or the Independent Broad-based Anti-corruption Commission Committee; or

(k)in relation to Western Australia—the Corruption and Crime Commission or the Parliamentary Inspector of the Corruption and Crime Commission; or

(l)a Royal Commission of the Commonwealth, the State or another State or a Territory of the Commonwealth; or

(m) a person or body declared by regulation to be a law enforcement agency.

On 15 October 2015, the Australian Competition and Consumer Commission was declared by regulation 3A of the Independent Commissioner Against Corruption Regulations 2013 to be a law enforcement agency.