R v Vos
[2011] NSWCCA 172
•05 August 2011
Court of Criminal Appeal
New South Wales
Case Title: R v Vos Medium Neutral Citation: [2011] NSWCCA 172 Hearing Date(s): 20 June 2011 Decision Date: 05 August 2011 Before: McClellan CJ at CL at [1]
Hidden J at [41]
Johnson J at [42]Decision: 1. Appeal allowed.
2. Quash the orders made in the court below.Catchwords: CRIMINAL - s5F Appeal - Police Integrity Commission Act 1996 (NSW) - permanent stay ordered in District Court as person granted leave to appear in relevant hearing was not a qualified Australian Legal Practitioner - purpose of Act considered - hearing not a nullity - appeal allowed - orders in court below quashed. Legislation Cited: Police Integrity Commission Act 1996
Criminal Appeal Act 1912
Police Regulation Act 1958 (Vic)
Administrative Decisions Tribunal Act 1997Cases Cited: Attorney General of NSW v World Best Holdings Ltd (2005) 63 NSWLR 557
Craig v The State of South Australia (1995) 184 CLR 163
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
R v Ashby (2010) VSC 14; 25 VR 107
R v Janceski (2005) 64 NSWLR 10
R v King (2003) 59 NSWLR 472Category: Interlocutory applications Parties: Crown (Appellant)
Stuart Vos (Respondent)Representation - Counsel: C Maxwell QC (Crown/Appellant)
C Ronalds SC/S Wilkinson (Respondent)- Solicitors: Director of Public Prosecutions (Crown)
Walter Madden Jenkins (Appellant)File Number(s): 2009/211708 Decision Under Appeal - Before: Syme DCJ - Date of Decision: 10 March 2011 - Court File Number(s): 2009/211708
JUDGMENT
McCLELLAN CJ at CL: The respondent, a police officer, was charged by indictment with eleven counts. The first three counts allege that he fabricated false evidence. These proceedings are not concerned with those counts.
Counts 4 to 11 of the indictment allege a breach of s 107 of the Police Integrity Commission Act 1996 ("the Act"). Section 107 provides that a person who "at a hearing before the Commission, gives evidence that is, to the knowledge of the person, false or misleading in a material particular is guilty of an indictable offence" (s 107(1)).
The respondent successfully moved in the District Court for a permanent stay with respect to counts 4 to 11. The primary judge held that because the person granted leave to appear at the relevant hearing was not a qualified legal practitioner the proceedings before the Police Integrity Commission where the respondent gave evidence were a nullity, with the consequence that the evidence given in those proceedings could not be the foundation for a charge of perjury. Her Honour described the problem as a fundamental flaw in the proceedings which was unable to be cured.
The Director appeals from that decision to this Court pursuant to s 5F(2) of the Criminal Appeal Act 1912. The granting of a permanent stay constitutes an interlocutory judgment or order for the purpose of s 5F(2) (R v King (2003) 59 NSWLR 472 at [22]).
The Act established the Police Integrity Commission as a body to "detect, investigate and prevent police corruption and other serious police misconduct" (s 3(a)).
The Commission is constituted by a Commissioner appointed pursuant to s 7 of the Act. Section 8 provides for the appointment of Assistant Commissioners. Section 10 provides for the staff of the Commission. Assistant Commissioners are included amongst the staff of the Commission (s 8).
Section 12 of the Act provides for the appointment of counsel to assist the Commission. That section is in the following terms:
"The Commissioner may appoint an Australian legal practitioner to assist the Commission as counsel, either generally or in relation to a particular matter or matters."
Part 3 of the Act provides for the functions of the Commission. The principal functions are provided in s 13(1) which is in the following terms:
"13 Principal functions
(1) The principal functions of the Commission are as follows:
(a) to prevent police misconduct,
(b) to detect or investigate, or manage or oversee other agencies in the detection or investigation of, police misconduct,
(c) (Repealed)
(d) to receive and assess all matters not completed by the Police Royal Commission, to treat any investigations or assessments of the Police Royal Commission as its own, to initiate or continue the investigation of any such matters where appropriate, and otherwise to deal with those matters under this Act, and to deal with records of the Police Royal Commission as provided by this Act."Section 15 provides for the functions of the Commission in assembling evidence that may be admissible in the prosecution of a person for a criminal offence. When providing evidence which it has assembled to the relevant body the Commission may make observations and recommendations as to what action the Commission considers should be taken in relation to the evidence (s 15(2)). The Commission is also empowered to furnish information which it incidentally obtains to a relevant authority, or the Minister for the authority, with recommendations as to any action which the Authority should take (s 15(4)).
Section 16 provides that the Commission may make assessments and form opinions on the basis of its investigations as to whether police misconduct or other misconduct or corrupt conduct of an administrative officer has or may have occurred (s 16(1)(a)). The Commission may make recommendations as to whether consideration should be given to the prosecution or the taking of disciplinary action against any person (s 16(1)(b)).
Section 16(2) provides that the Commission may not make a finding or form an opinion that a person is guilty of a criminal or disciplinary offence or make a recommendation that a particular person should be prosecuted for a criminal or disciplinary offence.
In the carrying out of its functions the Commission may establish task forces (s 17) and may cooperate with other agencies (s 18). The Commission is not bound by the rules or practice of evidence and can inform itself of any matter in such manner as it considers appropriate (s 20(1)). The Commission is also required to exercise its functions "with as little formality and technicality as is possible" and its hearings "are to be conducted with as little emphasis on an adversarial approach as is possible" (s 20(2)).
Division 2 of Part 3 of the Act provides the Commission's powers in relation to investigations. Section 23 provides that the Commission may conduct an investigation and s 24 provides for a preliminary investigation. Various powers are provided for the Commission to obtain information and documents (Part 3 Div 3).
Division 4 of Part 3 is concerned with hearings which may be conducted by the Commission. A hearing may be held for the purposes of an investigation (s 32(1)) and must be conducted by the Commissioner or by an Assistant Commissioner (s 32(2)). Section 33(1) provides that a hearing may be held in public or in private. Provision is made for the Commission to hear closing submissions in private although the hearing itself may be in public (s 33(2)). Section 33(2) contemplates that submissions may be made by a person appearing before the Commission, by an Australian legal practitioner representing such a person as well as by "an Australian legal practitioner assisting the Commission as counsel."
A person interested in the subject matter of the hearing may appear (s 34) and may be represented by an Australian legal practitioner (s 35).
Section 37 provides for the examination and cross-examination of witnesses. Section 37(2) concerns the role of a legal practitioner appointed to assist the Commission. Section 37 is in the following terms:
"37 Examination and cross-examination of witnesses
(cf ICAC Act s 34)(1) A person authorised or required to appear at a hearing, or a person's Australian legal practitioner authorised to appear at a hearing, may, with the leave of the Commission, examine or cross-examine any witness on any matter that the Commission considers relevant.
(2) An Australian legal practitioner appointed by the Commission to assist it may examine or cross-examine any witness on any matter that the Commission considers relevant.
(3) Any witness examined or cross-examined under this section has the same protection and is subject to the same liabilities as if examined by the Commissioner or an Assistant Commissioner."
Section 38(1) provides power in the Commission to summon a person to appear before the Commission at a hearing. Section 38(3) provides:
"(3) The Commission may, at a hearing, take evidence on oath or affirmation and for that purpose:
(a) the person presiding at the hearing may require a person appearing at the hearing to give evidence either to take an oath or make an affirmation in a form approved by the person presiding, and
(b) the person presiding, or a person authorised for the purpose by the person presiding, may administer an oath or affirmation to a person so appearing at the hearing."Section 38(4) provides that a person who has been summonsed must attend until excused from further attendance.
Section 39 provides powers in aid of the Commission's function in requiring witnesses to attend.
Section 40 of the Act provides that a person who has been summonsed to attend at a hearing is not entitled to refuse to be sworn or to make an affirmation. Such a person is not entitled to refuse to answer any question put to them by the Commissioner or other person presiding at a hearing. Section 40 is in the following terms:
"40 Privilege as regards answers, documents etc
(cf ICAC Act s 37)
(1) A witness summoned to attend or appearing before the Commission at a hearing is not entitled to refuse:
(a) to be sworn or to make an affirmation, or
(b) to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a hearing, or
(c) to produce any document or other thing in the witness's custody or control that the witness is required by the summons or by the person presiding to produce.(2) A witness summoned to attend or appearing before the Commission at a hearing is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.
(3) An answer made, or document or other thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings, but may be used in deciding whether to make an order under section 173 or 181D of the Police Act 1990 and is admissible in any proceedings under Division 1A or 1C of Part 9 of that Act, an order under section 183A of that Act or any proceedings for the purposes of Division 2A of Part 9 of that Act with respect to an order under section 183A of that Act and in any disciplinary proceedings (including for the purposes of taking disciplinary action under Part 2.7 of the Public Sector Employment and Management Act 2002).
(4) Nothing in this section makes inadmissible:
(a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or
(b) any answer, document or other thing in any civil or criminal proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or
(c) any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.(5) Where:
(a) an Australian legal practitioner or other person is required to answer a question or produce a document or other thing at a hearing before the Commission, and
(b) the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between an Australian legal practitioner (in his or her capacity as an Australian legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a hearing before the Commission,the Australian legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so."
Section 107 makes it an offence to give evidence before the Commission that is to the knowledge of the person false or misleading.
The respondent has been prosecuted for a breach of s 107 when giving evidence to a hearing conducted by Commissioner Pritchard. The factual circumstances from which the investigation before the Commission arose are not presently relevant. However, as a result of a complaint the Commission held a hearing. The respondent gave evidence under objection on 9 December 2008 and 17 December 2008.
On both of the days on which the respondent gave evidence a senior investigator with the Commission, Mr Errol Ryan was given leave by Commissioner Pritchard to appear and to examine the respondent. Mr Ryan was not an Australian legal practitioner and accordingly could not be appointed as counsel assisting pursuant to s 12 of the Act. Furthermore, he could not be authorised under s 37(2) to examine or cross-examine a witness.
The respondent does not challenge the appointment of Commissioner Pritchard and accepts that, apart from the leave granted to Mr Ryan, the hearings were validly constituted. The respondent submitted below and repeated the submission in this Court that as a consequence of the fact that Mr Ryan was not authorised by the Act to ask questions at a hearing, any hearing in which he participated was a nullity. Accordingly so it was argued, any prosecution based upon evidence given by the respondent at a hearing in which Mr Ryan participated could not be tendered in evidence against him.
The respondent submitted that the mere granting of leave to Mr Ryan to appear had the effect of rendering the hearing a nullity even if Mr Ryan had not asked any questions. It was further submitted that because the hearing was a nullity any question asked by the Commissioner or counsel for the respondent and any response made by the respondent were not admissible in evidence against him.
The trial judge was persuaded by the respondent's submission. The argument below was framed in terms of jurisdictional error. The trial judge accepted a submission that the statutory provisions concerning the appointment of counsel assisting were intended to ensure that persons would be examined or cross-examined only by persons with legal qualifications. The identified purpose was to ensure that "counsel are accountable to the Commission and must abide by legal professional rules and obligations." Reference was made to Craig v The State of South Australia (1995) 184 CLR 163 and R v Ashby (2010) VSC 14; 25 VR 107. Her Honour accepted that from those cases the following three matters of significance emerge in relation to the Commission:
1. First, the powers being exercised, that of questioning a person in relation to a Commission hearing, is a significant duty.
2. The requirement of having questions conducted by a properly qualified person with attendant duties and obligations is of high public importance.
3. In this case, even if witnesses object to answering questions they are compelled to do so by statute. This constitutes extensive powers.
The trial judge provided the following analysis:
"In Cassel's case the issue was whether the District Court judge had erred in holding that the evidence was sufficient to prove that there had been a hearing validly conducted under the ICAC Act. The majority found that an administrative arrangement could, if necessary, be cured by the de facto officer rule. In this case the de facto officer rule does not apply. In light of the PIC Act's very clear and specific provisions the appointment of a person other than a legal practitioner to appear to assist PIC and to examine witnesses amounts to significantly more than an administrative arrangement. In considering whether the breach of a condition is to be considered a breach that nullifies the exercise of statutory power, this Court also has regard to the following issues: first where there can be a discerned legislative purpose. In this case the purpose of requiring an Australian legal practitioner must only be to require that counsel assisting be bound by the rules of conduct applicable to legal practitioners. If it were intended that Parliament intended that persons who were experienced in a particular prosecution or investigation (sic) they could have made that clear as they did in both the Local Courts Act and the Criminal Procedure Act. Secondly, the purpose of the PIC Act, the objects of the Act, to which I have already referred (s 3). Notwithstanding this investigative purpose s 107 is a provision that creates an offence. The sanction is of a serious kind.
Thirdly, the consequence for the parties of holding void every act done in breach of the condition. In considering this provision it is of concern to this Court that an act done by the Commission apparently in the belief it was acting properly could result in a very serous alleged infraction by a police officer going unpunished. The irony of requiring strict compliance to the laws of statute in a case where a police officer is alleged to have flouted proper procedure is not lost on me. Nevertheless statutory provisions creating PIC must be strictly observed.
Finally the intention of Parliament. I have regard to the position of the Local Court, as referred to above. Parliament is obviously capable of discerning the difference between an Australian legal practitioner and other persons who may be granted leave. The fact that the wording of the PIC Act is so precise, militates against this requirement being anything other than a strict one. The provision by Parliament of ss 36 and 37 of the Criminal Procedure Act, ss 57 and 58 of the Local Court Act, show that Parliament is capable of considering such legal niceties as a difference between police and other prosecutors and the requirements or otherwise to have a person described and qualified as an Australian legal practitioner to question witnesses.
The Crown must prove that the proceedings before PIC were valid or not invalidated by the authorisation of Mr Ryan by Commissioner Pritchard purportedly pursuant to s 37 of the PIC Act. If the hearing was not valid then the hearing was a nullity and any evidence given is simply not evidence."
Apart from the decision in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 to which I shall return each of the decisions referred to by her Honour were concerned with an irregularity in the appointment of the person or body in whom a statutory power had been reposed or an irregularity in the decision making process of that body. None of the decisions are concerned with the process by which that body gathered information or "evidence" to support its ultimate decision.
In Ashby an accused person was charged with 11 counts of perjury as a result of evidence given at hearing held under the Police Regulation Act 1958 (Vic). That hearing was conducted by a person who had not received the proper delegation from the Director to conduct a hearing. Osmond J held that the delegation was accordingly invalid and that the answers given on oath before the purported delegate were not answers given on oath before a competent tribunal and the evidence could not amount to perjury.
In Attorney General of NSW v World Best Holdings Ltd (2005) 63 NSWLR 557 Spigelman CJ said that proceedings before the Administrative Decisions Tribunal miscarried because non judicial members had participated in the proceedings contrary to the Administrative Decisions Tribunal Act 1997. His Honour held that, because a non judicial member could not participate in the adjudication, the purported act of the tribunal was invalid.
Difficulties have arisen with the authority of a person prosecuting for an indictable offence. In R v Janceski (2005) 64 NSWLR 10 this Court held that an indictment signed by a person who was not authorised to sign it was invalid and the trial and convictions were accordingly a nullity. The error could not be cured and accordingly as it went to the root of the proceedings those proceedings failed.
It is instructive for present purposes to be mindful of the remarks of the Chief Justice at [44] where his Honour said:
"Parliament always intends that its procedural stipulations will be complied with. That does not mean that it intends that every failure to comply with such a stipulation has the consequence that events subsequent to the failure are invalid."
Before the decision in Project Blue Sky the issue for consideration in this case would have required consideration of whether s 37(2) was mandatory or directory and whether, if mandatory, a failure to comply would have rendered the hearing of the Commission a nullity.
The contemporary approach to the difficulties occasioned by a failure to comply with a procedural requirement in legislation is found in Project Blue Sky where in their joint judgment McHugh, Gummow, Kirby JJ said at [91]-[93]:
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case:
"substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not."
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
To my mind it is significant that a hearing under the Act may be conducted by a Commissioner or Assistant Commissioner without the assistance of a legal practitioner appointed by the Commission to assist the Commission as counsel. In that event the Commissioner or Assistant Commissioner could ask questions as may be necessary and can require answers of any witness. The question in the present case is, when questions are asked and answered by a person who could not be authorised to appear at the hearing, whether that hearing is a nullity, with the consequence that although being sworn or having taken an affirmation to tell the truth a person who gives false evidence cannot be prosecuted for a breach of s 107.
The objects of the Act are concerned with the detection, investigation and prevention of police corruption. To that end the Commission has been constituted and provided with coercive powers which may be exercised in pursuit of an investigation of suspected police corruption and serious police misconduct. The Commission may conduct hearings. At those hearings the Commissioner who is presiding is empowered to require a person to answer questions. Although the questions may be asked by another, the Act contemplates counsel assisting, nevertheless each question is asked with the authority of the Commissioner. The Commissioner is charged with the function of ensuring that the questions are fair to the witness and that procedural fairness is afforded to that person. Although in the present case questions were asked by Mr Ryan, who could not have been authorised to ask them, they were nevertheless questions sanctioned by the Commissioner, who it may be presumed allowed them to be asked and required them to be answered in furtherance of the investigation.
This analysis is apparent from the terms of the Act. Although s 37(2) provides for the Commission to be assisted by a legal practitioner who may examine or cross examine a witness and s 37(3) provides protection to a witness who is examined or cross examined by that practitioner, s 40 makes plain that any question asked is asked with the authority of the Commissioner or other person presiding at a hearing (s 40(1)(b)). The Act does not otherwise provide for an obligation on a witness to answer questions of counsel assisting or any other person. Accordingly, it may be inferred that even when counsel assisting has been appointed whether a question is actually asked by that person or by the Commissioner the question will be deemed to be a question put to the witness by the Commissioner or Assistant Commissioner.
Sections 12 and 37(2) provide powers which are given to the Commission to assist it in the furtherance of its investigative function when conducting a hearing. Although the sections regulate the exercise of the function they are not concerned with the constitution of the investigation and are not concerned with the validity of any hearing conducted to assist that investigation.
The purpose of s 37 is to allow the Commissioner or Assistant Commissioner conducting a hearing to have available the expertise of a legal practitioner to assist in examining a witness. No doubt the legislature was concerned to ensure that a person fulfilling this role was aware of appropriate crucial obligations. However, the legislature would also have been concerned to ensure that any person authorised to assist the Commission had the requisite skills and experience necessary to assist the Commission to efficiently and effectively perform its task. For that reason a legal practitioner trained in asking questions relevant to conduct which was likely to be criminal in nature was seen by the Parliament as necessary. However, this does not have the consequence that when the person given leave to appear at a hearing is not a legal practitioner the hearing itself is a nullity. Although leave could not be granted to Mr Ryan pursuant to s 37 this did not have the consequence that the respondent's answers during the hearing were not evidence capable of amounting to false evidence for the purpose of s 107.
I would allow the appeal and quash the orders made in the court below.
HIDDEN J: I agree with McClellan CJ at CL.
JOHNSON J: I agree with McClellan CJ at CL.
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