Shaw v Police Integrity Commission

[2005] NSWSC 782

Reported Decision: 155 A Crim R 345

New South Wales

Supreme Court

CITATION:	Shaw v Police Integrity Commission [2005] NSWSC 782
HEARING DATE(S):	09/05/05
JUDGMENT DATE :	3 August 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Part of proposed report of first defendant beyond its proper scope.

CATCHWORDS:	CONSTITUTIONAL LAW [150]- Permanent commissions of inquiry- Police Integrity Commission- Scope of powers- Legislation focused on the investigation of police misconduct- Whether investigation of police misconduct is on foot- Whether evidence before Commission includes evidence of conduct of people who are not police- Whether Commission empowered to form opinions and make assessments about police and other misconduct- Whether Commission required to report to Parliament on matters before Commission- Whether Commission authorised to report on conduct of non-police parties unconnected with police misconduct. WORDS & PHRASES- "Affected person"- "Other misconduct"- "Police misconduct".
LEGISLATION CITED:	Imperial Acts Application Act 1969, s 6 Independent Commission Against Corruption Act 1988, ss 12, 20 Interpretation Act 1987, s 33 Judiciary Act 1903 (Cth), s 39 Police Integrity Commission Act 1996 (Principal Sections) ss 16, 96, 97, 130 Police Integrity Commission Act 1996, ss 3, 5, 13, 14, 15, 18, 21, 23, 32, 77, 82, 83, 107, 131 Imperial Statutes: 42 Ed III ch 3 16 Car 1 Ch 10
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Attorney General for Quebec v Attorney General for Canada [1979] 1 SCR 218 (Can) Balog v Independent Commission Against Corruption (1990) 169 CLR 625 Bethel v Douglas [1995] 1 WLR 794 Chairperson Aboriginal & Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 63 FCR 163 Clough v Leahy (1904) 2 CLR 139 Cock v Attorney General (1909) 28 NZLR 405 Ex parte Brady; Re Oram (1935) 52 WN (NSW) 109 Ex parte Walker (1924) 24 SR (NSW) 604 Kable v DPP (1996) 189 CLR 51 Laxton v Laxton [1962] 1 WLR 729 Mahon v Air New Zealand [1984] AC 808 McGuinness v Attorney General (Vic) (1940) 63 CLR 73 Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 Smith v NSW Bar Association (1992) 176 CLR 256 Stanton v Abernathy (1990) 19 NSWLR 656 Victoria v Australian Building Construction Employees & Builders Labourers Federation (1982) 152 CLR 25
PARTIES:	Jeffrey William Shaw (P) Police Integrity Commission (D1) Terrence Peter Griffin (D2)
FILE NUMBER(S):	SC 6993/04
COUNSEL:	B W Walker SC and A R Moses (P) M G Sexton SC, Solicitor General and J K Kirk (D)
SOLICITORS:	Turner Freeman (P) I V Knight, Crown Solicitor (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 3 August 2005

6993/04 – SHAW v POLICE INTEGRITY COMMISSION & ANOR

JUDGMENT

1 HIS HONOUR: By summons filed 24 December 2004 and amended on 14 March 2005, the plaintiff seeks declarations that on the true construction of the Police Integrity Commission Act 1996 ("the PIC Act"), particularly s 16, the first defendant and the second defendant, its Commissioner, are not authorised to make any assessment or express any conclusion or opinion that improper conduct may have occurred in relation to the plaintiff.

2 The majority of the facts that I need to consider are not in dispute. The principal matter for me is the construction of the PIC Act.

Background

3 The background facts are that on 13 October 2004, a motor vehicle accident involving the plaintiff occurred in Louisa Road, Birchgrove.

4 The Commission had before it the investigation of "the conduct of NSW police officers and others involved in events arising from a motor vehicle accident at Louisa Road, Birchgrove on 13 October 2004 at approximately 2330 hours." No-one argues that that matter was not properly before the Commission.

5 Under s 32 of the PIC Act, the Commission may hold hearings for the purposes of an investigation. The Commission decided to hold a hearing and that hearing was held in public before the second defendant, the Commissioner, on 15 November 2004. An edited copy of the transcript is in evidence before me.

6 At the commencement of the hearing, the Commissioner said:

"Today, pursuant to s 32 of the Police Integrity Commission Act, the Commission commences a public hearing in relation to an investigation codenamed Banff. The hearing is of an interim nature and part of an investigation which is continuing.
In coming to the decision to hold this hearing in public, the Commission has had regard to relevant matters of public interest. I have appointed Mr Rushton, senior counsel, to assist the Commission in relation to this matter."

7 Mr Rushton SC then opened the matter. In his opening he said at p 3 of the transcript:

"I should indicate what is the focus of this investigation and what is not. The focus or purpose of the Commission's investigation concerns the conduct of New South Wales police officers and others following the accident to which I have referred. The focus is not on whether, at the time of the crash, Mr Shaw was or was not under the influence of alcohol. That is a matter which I anticipate will be referred to the New South Wales Police by the Commission and dealt with as it deems appropriate in due course."

8 At p 4, counsel referred to the disappearance of a blood sample and commented:

"The disappearance of the sample cast a considerable shadow over the New South Wales Police. Had the sample disappeared as a consequence of human error or, alternatively, police corruption or misconduct?"

9 At p 6, the opening referred to a statement given by the Police Minister to a radio journalist named Alan Jones. According to counsel, the Police Minister "frankly said", "Alan, it's unbelievable that this one sample would go missing. It's shocking, but it's absolutely unbelievable. There is either a major stuff-up, or a criminal act has occurred, and we have to get to the bottom of it, if it is humanly possible."

10 Counsel then continued:

"The New South Wales Police Service was not the only body to be engulfed in a pall of innuendo and speculation. The staff of Royal Prince Alfred Hospital came to be tarred with the same brush. Was it possible, Commissioner, that one or more of those persons had, either alone or in concert, been involved in what the Police Minister described as 'a major stuff-up' or had they been involved in a 'criminal act'?"

11 The introduction into the opening of an on air discussion between the Minister and Mr Jones was, in my view, unfortunate. This is for at least two reasons. First, it meant that the opening was being given a sensationalist flavour. The decision to use the words of a talkback radio interview to express the impetus for the investigation did not befit the independent role of counsel assisting, and carried a tone of “jury rhetoric” rather than disinterested inquiry.

12 Secondly, instead of the prime thrust being whether there had been misconduct by police, the attention was diverted to whether the Minister was correct that there might have been a major stuff up or a criminal act perhaps by hospital staff or the present plaintiff.

13 Picking up the thought in [10], it is of course, clear, that there could be no public investigation into a “stuff up”, major or minor or the commission of a criminal act by a person unless either the PIC or ICAC had power to do so under its Act.

14 The opening may have been the prelude to the alleged miscarriage of the inquiry. I do not know whether that opening was presented on the initiative of counsel or on the instruction of the Commissioner. However, it shows the wisdom of the accepted view of counsel assisting a Royal Commission is as set out in Dr Hallett's book "Royal Commissions and Boards of Inquiry" (Law Book Co, Sydney, 1982) at pp 217-218.

15 Ordinarily counsel assisting is not presenting the case for one side or the other. He or she is assisting the inquiry by soberly outlining the facts which counsel properly regard as reasonably clear, outline the procedure to be adopted and then let the evidence unfold. Dr Hallett makes this particularly wise observation:

"There is the additional consideration that inquiries are usually very fully reported in the press and public interest is very high at the outset of an inquiry. There is often a build-up which arouses public suspicions which can be inflamed by counsel's opening statement. However, as an inquiry progresses, it could be expected that interest might wane, particularly if there is a lack of foundation to the initial suspicion. In those circumstances much harm can be done, particularly if names have been mentioned by counsel in his opening statement. A person might be exonerated from all blame or guilt, but irreparable harm done by the original allegations."

16 The PIC Act does not clearly differentiate the various roles of the Commissioner, his or her staff and counsel assisting. It is clear, however, that the hearing under s 32 is for the purposes of an investigation and is only part of the investigation.

17 Whilst, for some purposes, the PIC is akin to a Royal Commission, for many purposes it is not. The investigation is performed by the Commission, its staff and consultants and it by no means follows that every fact or probable fact that it considers it has discovered is revealed to public gaze.

18 The only limitation on the investigation is that the PIC is bound by rules of natural justice which require it, amongst other things, to give an opportunity of answering the allegations to people to be accused of misconduct.

19 As to the role of counsel assisting, in the case of what I might call the old style royal commission, matters were considered by the secretary of the Commission, statements from witnesses and others were forwarded to counsel assisting, and counsel assisting then made an independent assessment of what material would be placed before the Royal Commissioner. The reason for this is as was said by John Donaldson QC as he then was to the Salmon Royal Commission in 1966, that it is extremely difficult for the same person to assess the worth of the evidence objectively that has to be presented and also to make an objective and dispassionate assessment of that evidence when given.

20 However, with the PIC, it is unclear what the role is save that counsel has the task of conducting examination of witnesses and making submissions.

The real questions in dispute

21 Both parties are of the view that I must approach the construction of the PIC Act with s 33 of the Interpretation Act 1987 in mind, namely that I should construe the Act in a way that would promote the purpose or object underlying the Act rather than that which would not do so. Further, both parties agree that the focus of the Act is on police misconduct. They disagree however, as to what are its incidental effects.

22 I believe that the questions I need to address are the following:

(1) What is the proper construction of s 16 of the Police Integrity Commission Act 1996?

(2) On that construction, and in the events which have happened, is it open to the PIC to take the view that the plaintiff may have committed "other misconduct" within the meaning of the PIC Act?

(3) Is the plaintiff an "affected person” within the meaning of the PIC Act?

(4) What is the scope of s 130 of the PIC Act? , and

(5) What, if any, orders should be made on the summons?

23 Before turning to these actual questions, it is necessary to examine in some detail the legislative scheme of the PIC Act, relevant decisions on analogous legislation and the common law background to the legitimacy and conduct of public inquiries outside the court system.

The legislative scheme

24 The PIC Act and what I might term its companion, the Independent Commission Against Corruption Act 1988 ("the ICAC Act"), establish rather extraordinary bodies with extraordinary powers for particular public purposes. Many of the provisions in the PIC Act are in the same wording as used in the ICAC Act. A significant omission, however, from the PIC Act is anything corresponding with s 12 of the ICAC Act, viz:

"In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns."

25 Instead we have s 3 of the PIC Act which reads as follows:

"The principal objects of this Act are:
(a) to establish a body whose principal function is to detect, investigate and prevent police corruption and other serious police misconduct, and
(b) to provide special mechanisms for the detection, investigation and prevention of serious police misconduct and other police misconduct, and
(c) to protect the public interest by preventing and dealing with police misconduct, and
(d) to provide for the auditing and monitoring of particular aspects of the operations and procedures of NSW Police."

26 However, the Act does not stop there. Section 16(1)(a) is the critical provision for the purposes of this current litigation. It provides that the Commission "may make assessments and form opinions … as to whether police misconduct or other misconduct has or may have occurred … ".

27 Section 96(3) requires the Commission to prepare reports to Parliament in relation to matters on which the Commission has conducted a public hearing.

28 Section 97 deals with the Commission's Report to Parliament. Section 97(2) provides that the Report "must include, in respect of each 'affected' person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the prosecution of a person for a specified criminal offence or the taking of action against the person for a specified disciplinary offence." I will return to the consideration of this section later in these reasons.

29 Accordingly, we here have a Commission whose principal objects are to focus upon police misconduct. However, the Act makes it clear that the Commission has other objects and functions than its principal objects. Furthermore, there is a strong flavour that it is within its purview to make reports about persons who are not police.

30 The central point, however, upon which I must rule is what is the scope of the mandate given to the PIC by the words “other misconduct”.

31 Allied to this is the question whether if the Police Integrity Commission reaches the stage in its investigation where it becomes clear that there is no matter of police misconduct involved, it ceases to have any authority to make adverse findings, opinions, assessments or recommendations against persons who are not police.

32 I should note here what Pidgeon J said when giving the decision of the Supreme Court of Canada in Attorney General for Quebec v Attorney General for Canada [1979] 1 SCR 218 at 249:

"The Commissioner … has only a limited jurisdiction. … His orders may be questioned on jurisdictional grounds because his authority is limited."

33 Here, it is plain that the Police Integrity Commission Act only confers limited jurisdiction on the Commissioner. What are the limits of his jurisdiction needs to be closely examined. Indeed, this examination may not be sufficient to solve the present problems. An investigation may be within the limits of theoretical jurisdiction, but its scope may be limited by a number of factors, particularly the way the investigation is conducted.

Submissions as to the construction of the PIC Act

34 I heard this matter on 9 May 2005, Mr B W Walker SC and Mr A R Moses appearing for the plaintiff, and Mr M G Sexton SC, Solicitor General, and Dr J K Kirk appearing for the defendants.

35 I am most indebted to counsel for both their concise and precise written and oral submissions.

36 Both sets of counsel took me through the principal sections of the PIC Act which may impinge on the present question. I do not do justice to that presentation by the simple summary I am about to give, but I hope I will convey the general flavour without distortion.

37 Mr Walker commenced his analysis of the Act at s 3 which I have already set out. Section 3, as I have said, deals with the principal objects of the Act. Section 13 then deals with the principal functions of the Commission.

38 As to s 3, Mr Walker says that although one might be forgiven for thinking that when the words "principal objects" are seen that there must be other subsidiary objects as well, fairly read what the language is saying is "These are the cardinal aims of the Statute and everything is to be read subsidiary to, ancillary to and informative of those objects." It is noteworthy that there is no section dealing with ancillary objects.

39 Mr Walker points out that although the word "other" is employed in s 3, the whole of s 3 is devoted to police misconduct. That is defined in various sections of the Act, particularly s 5 where it is noted that police misconduct may or may not involve non-police participants. Mr Walker says that that is really part of what he calls the "two to tango" approach of the statute, that is, that it is usually necessary to have a corrupt member of the police and a non-police person who corrupted the police.

40 One then comes to Part 3, the functions of the Commission and s 13 sets out the principal functions, again strongly focused on police misconduct, but then s 14 deals with other functions of the Commission, though these are defined in an inclusive and non-exhaustive manner.

41 Section 15 again deals with other functions, this time other functions regarding evidence and information collected. Mr Walker says that it is useful to take s 15(1)(a) as a litmus test of the scope of the Commission's powers. That section reads:

"Other functions of the Commission include the following:
(a) to assemble evidence that may be admissible in the prosecution of a person for a criminal offence against the law of the State and to furnish any such evidence to the Director of Public Prosecutions."

42 Mr Walker says that this is a classic example of a provision that has to be read in context and governed by the ambit of the functions of this specialist body and it is quite wrong to read the provision literally as transforming a specialist body into some generalist law enforcement body. Mr Walker says that this is clear when one looks at the matters set out in sub-paragraphs (a) to (d). Each of these refers to material of a particular status, viz the assembling of admissible evidence. In paragraph (b) it is clear that the evidence is to be such as may be used in the investigation of a police complaint, (c) referring to prosecution of persons other than a police officer was intended to cover the situation where a person is working in cahoots with a corrupt police person. Paragraph (d) allows the Commission to furnish certain admissible evidence obtained in the course of its investigations to the Attorney General or other appropriate authority.

43 Under s 15(2) and only with respect to 15(1)(d), the Commission may make observations in addition to furnishing evidence and where the Attorney General is concerned, recommendations as to what action the Commission considers should be taken in relation to the evidence.

44 It is significant that s 15(2) does not refer to the wider matter in (a). Furthermore, sub-section 4 speaks not of evidence that is admissible, but rather information. And there the information relating to the functions of a public authority may be furnished to the Minister. Again, this is rather restrictive if there is a plenary power to deal with any material that comes into the hands of the PIC in any way it thinks fit.

45 Section 15 is not a section which permits the Commission to make findings. It is quite clear that if the PIC has information of a particular status, then it may furnish such material to the appropriate people.

46 One then goes to s 16 which is headed "Provisions regarding Assessment, Opinions and Recommendations". As I have said earlier, this is the principal section relied on by the defendants. Sub-section 1 empowers the Commission to make assessments and form opinions as to whether police misconduct or other misconduct may have occurred. It then can make recommendations as to whether action other than recommendation of prosecution under the Police Act 1990 should take place, but it may not make a finding or form an opinion or make a recommendation that a specified person should be prosecuted for a criminal or disciplinary offence. However, there is then a volte-face in sub-section 3 that the PIC can form an opinion and presumably publish it, that a person is engaging in police misconduct or conduct that constitutes or involves or could constitute police misconduct. Again, Mr Walker says it is significant that this large exception to people's civil rights is limited to police misconduct.

47 Passing to s 17, this is again widely expressed. It allows the PIC to establish task forces within the State. Mr Walker asked whether it could seriously be argued that these task forces are task forces which could investigate misconduct of people with no connection with police misconduct at all.

48 Likewise s 18 continues the theme. There are investigative functions, but the PIC is not the only body to exercise those functions and it may work in conjunction with other bodies which have different prime functions.

49 Section 21 of the PIC Act contains such wide powers with the propensity of detrimentally affecting a person’s criminal trial. Despite the rather soft safeguards in sub-section 2, allowing the Commission to continue its work despite the fact that there are curial proceedings pending, gives an indication that the investigation is within the prime focus of the PIC Act.

50 Again s 23(2) is very widely expressed and on the face of it allows the PIC to conduct investigations even though no police misconduct is suspected. The section derives from s 20 of the ICAC Act, but, with respect, has been clumsily transferred. It is difficult to read the section as allowing the PIC to investigate whomsoever it likes in the light of the preceding sections of the Act. It must be read down, and probably confined to cases where non-police misconduct is closely aligned with some involvement with a member of the police service. However, I do not need to so find in this case.

51 I will not deal with every section that was canvassed during the hearing. I have already given the general flavour of the argument in connection with the first 23 sections of the Act.

52 I now turn to Part 5, Division 1. Division 1 of Part 5 refers to referring matters to police authorities. Section 77 refers to referring a "matter", either before, while, or after investigation to a police authority. The word "matter" is very wide. However, the significance of s 77 is that the power is to refer the matter to a police authority. One could not normally expect, so the argument goes, something concerning an ordinary citizen to be referred to a police authority unless, of course, it was very closely concerned with police misconduct.

53 In Part 5 Division 2, particularly s 83, there is power to refer a matter to an authority. There is some attempt to define "authority" in s 82, but, for present purposes, not helpfully. The term "authority", however, would seem to cover a wide number of bodies. The Commission may refer a matter for investigation or action to an authority and may communicate information to an authority. Section 83 seems to go against some of the submissions that Mr Walker made with respect to other sections.

54 The Solicitor General puts particular weight on s 97. Section 97 deals with the contents of the report which the PIC is to make to Parliament under s 96(3) of the Act. Section 97(1) authorises the Commission to include in its report statements as to any of its assessments, opinions and recommendations and the reasons therefor and then sub-section 2 reads as follows:

"(2) The report must include, in respect of each 'affected' person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following:
(a) the prosecution of a person for a specified criminal offence,
(b) the taking of action against the person for a specified disciplinary offence … ".

55 "Affected person" is defined in sub-section 3 as "A person against whom, in the Commission's opinion, substantial allegations have been made in the course of or in connection with the investigation concerned."

56 The Solicitor General submitted:

"There is nothing surprising about that power to ensure that the product of an investigation is not wasted in so far as it for example turns up evidence of misconduct including possibly criminal conduct by some persons other than police officers."

57 The only other section to which I need refer is s 130 which provides in sub-section 1, "The PIC cannot investigate or otherwise deal with a matter involving the conduct of public officials if the matter does not also involve the conduct of police officers." The question is why would this section be necessary if the PIC could not do that in any event if Mr Walker's argument was correct. It supports the Solicitor General's wider argument, because without this section, on his argument, it would be open for the PIC to investigate these matters, at least if there was some scintilla of a nexus with police.

58 I have, as counsel did, gone through the sections that may give a clue as to the ambit of the defendants' investigatory activities. As the review has disclosed, there is no clear message that comes through, though there is the flavour that the focus of the activities of the PIC must be on police misconduct. That, however, in the present context, is not a very helpful statement and I will have to revisit it.

59 It is useful, I believe, to tackle the problem before me on two other lines. First, by looking at cases decided under the ICAC Act, and secondly, by looking at the general principle that the legislature is not presumed to take away basic common law rights unless it does so clearly.

Cases decided under the ICAC Act

60 The key decision on the ICAC Act is Balog v Independent Commission Against Corruption (1990) 169 CLR 625. The basal facts were that ICAC was investigating the manner in which a local council had dealt with development applications. Mr Balog was the managing director of a developer. Mr Balog filed a summons for a declaration that ICAC was not entitled in any report to make any finding or state any conclusion that he was a person substantially and directly interested in an investigation and was guilty of a criminal offence.

61 Section 74 of the ICAC Act was not dissimilar to s 97 of the present Act. In particular, s 74(5) (which has now been repealed) of the ICAC Act is very close to s 97(2) of the PIC Act. But there is one vital difference. Section 74(5) of the ICAC Act commenced with the introductory words "A report may include a statement of the Commission's findings as to whether there is or was any evidence or sufficient evidence warranting consideration of" whereas the equivalent words in s 97(2) are "A statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to".

62 At p 633 the High Court held that the use of the expression "any evidence or sufficient evidence warranting consideration" "suggests that it is someone else's evaluation of the evidence – that of the person who is to consider it – which is to determine whether a person is to be prosecuted or not." The fact that those words occurred in the vital provision of the ICAC Act led to the conclusion that there was no other power to make such findings in the Act, vide p 634.

63 The actual decision in Balog's case accordingly does not assist in the present case. However, at pp 635-6 the Court said:

"If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred".

64 The plaintiff submits that the jurisdiction provided by s 16(1)(a) of the PIC Act must be properly understood in the context of the statutory construction principles just referred to from Balog's case as relating to people accused of police misconduct or corruption or people involved in such police misconduct and corruption. It is put that any other meaning would provide the defendants with jurisdiction to express an opinion or make a finding concerning any citizen of NSW who is not a police officer or who has not been involved in police misconduct or corruption. This, it is submitted, would be nonsense and contrary to the statutory framework of the PIC Act.

65 The cases since Balog, do not really advance the argument one side or the other in the present case. I note that in Chairperson Aboriginal & Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 63 FCR 163 at 173, Einfeld J said that the applicant in that case coined and relied upon what she called the "Balog principle", viz:

"If there is a potential of damage to an individual's reputation without the requisite safeguards of an open full-fledged court, power to report findings of individual guilt should not be implied into a statute."

The learned Judge declined to follow this "Balog principle".

66 Counsel for the defendants more or less submits that the plaintiff's argument in the instant case gets to this point. Counsel put that "The plaintiff apparently submits that (Balog) establishes that all powers and functions of an investigative body such as ICAC or the Commission should always be read down." They submit that that would be an over-statement of the decision and that Balog itself was a case which was solved by careful textual analysis. The defendants point out that the passage I latterly quoted from Balog was only invoked to confirm the contextual conclusions. In any event, that principle is itself subject to s 33 of the Interpretation Act 1987, that one must construe a statute to promote the purpose or object underlying the Act.

67 The defendants do not deny that the focus of the PIC Act and the focus of the functions of the Commission relate to police misconduct. However, they say it is neither nonsense nor contrary to the statutory framework for the Commission to be able to express an opinion about any citizen of NSW not being a police officer when such an issue has arisen incidentally in the conduct of an investigation into police misconduct.

Inquiries and the Common Law

68 It is perhaps appropriate at this point to look into the common law that is said to protect citizens against wide-ranging inquiries authorised by the executive.

69 In this respect it is noteworthy that the courts in Australia have provided far less protection to citizens than courts in other countries. In the seminal case Cock v Attorney General (1909) 28 NZLR 405, the New Zealand Court of Appeal held that an inquiry into the acceptance of a bribe by a member of a court was illegal because of the Statute 42 Edward III ch 3 and the Act 16 Car 1 Ch 10 which abolished the Court of Star Chamber and declared all courts but the ordinary courts of justice illegal. Counsel cited to the Court Stephen's, History of the Criminal Law Vol 1 p 497, where the learned author said:

"4. The King cannot set up a commission to inquire into and determine or to inquire only into a charge of crime cognizable by existing jurisdictions."

70 However, the High Court of Australia has taken a different approach altogether to that in New Zealand. One commences with Clough v Leahy (1904) 2 CLR 139. In that case a person who had been convicted of refusing to give evidence to a royal commission, sought to have his conviction quashed on the basis that the so-called commission was illegal. The applicant’s point was that it was illegal to hold a royal commission to enquire into matters which, by the law of the land, were entrusted to the sole jurisdiction of a court (vide p 148). This was said to be contrary to Magna Carta and subversive of the freedom of the subject, see p 151.

71 Griffiths CJ, however, replied:

"This Commission did not take them away from the courts. It did not try them, as the court would. It merely inquired."

72 Clough's case was followed by the Full Court in this State in Ex parte Walker (1924) 24 SR (NSW) 604 and was affirmed by the High Court in McGuinness v Attorney General (Vic) (1940) 63 CLR 73. The High Court held the New Zealand decision just to be wrong, Dixon J in particular at pp 101-102 saying that its reliance on 42 Edward III ch 3 was just contrary to scholarly exegesis of those statutes.

73 In a passage that has often been quoted since, Dixon J said at p102:

“For while the principle that the Crown cannot grant special commissions outside the ancient and established instruments of judicial authority, for the taking of inquests, civil or criminal, extends to inquisitions into matters of right and into supposed offences, the principle does not affect commissions of mere inquiry and report involving no compulsion, except under the authority of statute, no determination carrying legal consequences and no exercise of authority of a judicial nature in invitos.”

74 In Victoria v Australian Building Construction Employees & Builders Labourers Federation (1982) 152 CLR 25, the High Court was again asked to reconsider McGuinness. As appears, particularly from the judgment of Wilson J at p 126, leave was granted to argue that that decision was erroneous, but the Court affirmed it.

75 An article by a New Zealander, D R Mummery, in (1982) 97 LQR 287 strongly argued that the New Zealand decision was correct. However, the Privy Council in Bethel v Douglas [1995] 1 WLR 794, on appeal from the Bahamas followed McGuinness, see particularly p 800.

76 I might note that Cock's case has also not been followed in Canada; see AG Quebec v AG Canada [1979] 1 SCR 218 at 240.

77 The distinction taken by the High Court in the cases to which I have referred is that the principles of Magna Carta and the statute of Edward III are not contravened by an inquiry set up by Act of Parliament to inquire and investigate even if that is conjoined with a power to make a report on the investigations of the Governor or to Parliament.

78 For completeness, I might note that the statute 42 Ed III ch 3 has always been in force in this State and is still in force, see Imperial Acts Application Act 1969 s 6 and Second Schedule. The Act abolishing the Star Chamber may or may not have been in force in NSW prior to that Act, but has now been repealed by it. Whilst it is thus theoretically open to the NSW Parliament to set up a Star Chamber in NSW, apart from political barriers, s 39 of the Judiciary Act 1903 (Cth) and the High Court’s decision in Kable v DPP (1996) 189 CLR 51 may constitute legal barriers.

79 I should also add that though the legislature may set up this sort of inquiry, judges over the years have been very wary of the problems that can be caused to persons as a result of these inquiries. The remarks of Halse Rogers J in Ex parte Brady; Re Oram (1935) 52 WN (NSW) 109 at 112 with respect to a coroner's inquest show the concern:

"An inquest is merely an inquiry and it has its disadvantages as well as its advantages. As to the latter, it may often, from the publicity which it receives, enable further evidence to be procured which will assist in the administration of justice. But where an arrest has been made and a charge of murder laid, the publicity given to the evidence at such an inquiry may be gravely prejudicial to the accused, especially when evidence which would be inadmissible at a trial is received and published widely … . However that has nothing to do with the matter before me."

80 In the case of coroners' inquests that concern was met in due course by the legislature by requiring that coroners terminate inquests if the point is reached where an indictable offence appears might have been committed by an identified person.

81 I should note, however, that, whilst judges have noted their concern about the unfairness of a public inquiry not bound by the rules of evidence blackening a person’s reputation, there are few reported cases where courts have stepped in to intervene. Perhaps the declarations of right made in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and Balog’s case are the prime examples of cases where the court has made protective orders.

Material before the Commission

82 At this point I should look at some of the actual material before the PIC, in particular the final address of counsel assisting the Commission. Paragraphs 73 and 75 of that address are as follows:

"73. The Commission would be satisfied to the required standard that no police officer was in any way involved in the disappearance of the Police Sample and its paperwork.
75. Further, it is now clear that both Senior Constable S … who collected the Blood Collection Box and Constable F … who removed the samples from the Blood Collection Box on 19 October 2004 (see Exhibit 21), were not in any way involved in the disappearance of the blood sample and the Commission should so find."

83 In paragraphs 128-130, counsel assisting made submissions as to a proposed s 97(2) statement that the Commission might make as follows:

"128. It is submitted that in respect of each 'affected' person identified in paragraph 13 of these submissions other than Mr Shaw, the Commission ought to include in its report a statement pursuant to s 97(2) but in all the circumstances it is not of the opinion that consideration should be given to the prosecution of those persons for a specified criminal offence.
129. In relation to each of [names of four police officers] the Commission should also include in its report a statement that in all the circumstances the Commission is not of the opinion that consideration should be given to the taking of the types of action referred to in s 97(2)(b), (c) and (d) of the Act."

84 Paragraph 130 then suggested that the Commission should include in its report a statement that in all the circumstances it is of the opinion that consideration should be given to the prosecution of Mr Shaw for a specified criminal offence.

85 Para 132 submitted that the Commission should include in its report a statement that the Commission is of opinion that consideration should be given to the prosecution of Mr Shaw for six offences under s 107 of the PIC Act in allegedly giving false evidence to the Commission on 15 November 2004.

86 There is thus a threat that the defendants will cause Mr Shaw’s reputation damage by what Mr Shaw says is an act beyond their authority.

87 Counsel for Mr Shaw say that para 73 of these submissions by counsel assisting the Commission put an end to any inquiry that the defendants could legitimately make.

88 The defendants say that this is to misunderstand the role of counsel assisting the Commission. They point out that counsel assisting the Commission is not a delegate of the Commission. He or she is merely a person appointed to assist and that a statement made by counsel in submissions cannot bind the Commission.

89 As I said earlier, the relationship between counsel assisting and the relevant commission itself is one which varies from commission to commission. It is just completely unclear what the respective roles are with the PIC and in particular with the PIC and the current inquiry.

90 However, counsel for Mr Shaw said this is quite irrelevant. The Commission as it acknowledges, is bound to conduct a fair investigation and to apply the rules of natural justice. In Annetts v McCann (1990) 170 CLR 596 at 608, Brennan J said:

"Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has a full and fair opportunity to show why the finding should not be made."

91 Brennan J cited strong authority for that proposition in particular the words of Lord Diplock in giving the reasons of the Privy Council in Mahon v Air New Zealand [1984] AC 808 at p 820.

92 Lord Scott noted in his article "Procedures and Inquiries – The Duty to be Fair" (1995) 111 LQR 596 at 615-6 written after being involved in a long inquiry in England:

"In summary, as a general rule, fairness at an Inquiry certainly requires that witnesses be given adequate advance notice of the matters in respect of which questions will be asked. It requires that adverse and damaging allegations (if they are relevant but not otherwise) should be drawn to the attention of the object of the allegations so that he or she can, if desired, respond to them. It requires that proposed criticisms be drawn to the attention of the object of the criticism so that he or she can, if desired, make representations in response. It requires that legal assistance be available to those involved, both at the stage of giving evidence and at the stage of responding to criticism. … ".

93 The plaintiff says that because it is clear that the Commission intends to apply principles of natural justice, it has shown by its conduct that the inquiry has proceeded to the point where police misconduct has been excluded. Thus, even if it be the case that the plaintiff has acted in a way to pervert the course of justice (which, of course, is not conceded) that act could not in any way be connected with any police misconduct.

94 Counsel assisting, having made those statements together with the way in which the police witnesses were questioned, means that the Commission could not possibly come to the view that there was any police misconduct. Despite what Mr Sexton SG says to the contrary, it seems to me that that proposition must be correct.

95 Counsel for the plaintiff pointed to the document headed "Banff", Opinion on Jurisdiction issued by the Commission on 11 February 2005. That document makes it quite clear that the defendants take the view that "other misconduct" in s 16(1) of the PIC Act clearly encompasses forms of misconduct by persons who are not present or former police officers and that whilst an investigation must necessarily commence with a bona fide view of examining the propriety of conduct by police, it will not inevitably reveal police misconduct and it may turn out that none has in fact occurred, but notwithstanding that, the PIC still has jurisdiction to form and express opinions.

96 The Commission also calls in aid s 130 of the PIC Act pointing out that at the relevant time the plaintiff was a public official within the meaning of s 130. The plaintiff's counsel say this is quite irrelevant as s 130 in any event only refers to the public conduct of a public official and not what might occur as he is lying in a hospital bed after a car accident.

Return to the key questions

97 The conflict set out in the two preceding paragraphs is a critical matter for my decision and directs me back to s 16(1) aided by the review of other material parts of the PIC Act earlier considered.

98 I apologise for the long preamble before getting to this point, but it is necessary to canvass the various matters that were raised in written and oral submissions before honing the case down to the vital points. I will now deal with each of these points raised by the questions set out earlier in these reasons in turn.

99 The reasons will probably be easier to read if I repeat the questions, they are:

(1) What is the proper construction of s 16 of the Police Integrity Commission Act 1996?

(2) On that construction, and in the events which have happened, is it open to the PIC to take the view that the plaintiff may have committed "other misconduct" within the meaning of the PIC Act?

(3) Is the plaintiff an "affected person” within the meaning of the PIC Act?

(4) What is the scope of s 130 of the PIC Act? and

(5) What, if any, orders should be made on the summons?

The Proper Construction of the PIC Act

100 (1) Section 33 of the Interpretation Act 1987 means that I must look at the object underlying the PIC Act. I have already exhaustively considered the provisions of the Act and there is little point in looking at them again.

101 The legislature has made this exercise easy in one sense because s 3, which is headed "Principal Object of the Act" sets out four principal objects and the principal function of a PIC is to detect, investigate and prevent police corruption and other serious police misconduct, to provide mechanisms for its detection, to protect the public interest by preventing it and to monitor particular aspects of the NSW police. Although the words "principal function" occur in s 3(a), there is nothing in s 3 which takes the PIC outside the field of police misconduct and corruption.

102 As Hallett points out in his work on Royal Commissions cited earlier, it is extremely important in a normal Royal Commission to look at the terms of reference. The present Commission is, of course, not a normal Royal Commission. No outside body gives it its terms of reference and when it sets its own it may set them fairly widely as it did in this case "to investigate the conduct of NSW police officers and others involved in events arising from a motor vehicle accident …". One might construe "and others" as meaning as others involved with police, but that is bye the bye. Hallett says at p 52 that:

"The drafting of the terms of reference for an inquiry is of importance. If the terms of reference are carefully drawn, so that the main area for the investigation is precisely defined, the inquiry will benefit not only in the time taken to perform its functions, but also because the report will deal only with the central issues and not be concerned with peripheral matters. An inquiry can be left floundering in a wilderness of possible avenues of investigation and be forced by constraints of time to make its own choices – which ultimately might not be in accordance with the desires of the executive which appointed it."

103 The point being made is that it is a serious result that the inquiry will become overwhelmed by evidence, particularly evidence of peripheral matters and so cease to focus on its main purpose (vide footnote 47 on page 52).

104 Where there is no provision for control by terms of reference, then to my mind an administrative inquiry must be particularly conscious of the principal purpose of the Act and not be distracted by peripheral matters. Although the analysis of the various sections of the Act made earlier in these reasons show that it is not expressed with great clarity, there is no doubt that its principal function is to detect, investigate and prevent police misconduct. The more time and energy it expends on peripheral matters the less it is able to use its budget to deal with matters within its prime scope.

105 Having regard to this and having regard to the wording of s 3 and having regard to the many references canvassed earlier as to the linking of other misconduct with police misconduct, it seems to me that investigating conduct that is not linked with police misconduct or investigating conduct after it has been established that there is no police misconduct is beyond the functions of the PIC.

106 In the present case, I have accepted the submission that because of natural justice considerations (which both parties accept are applicable) the way the hearing has been conducted means that it would be unfair to find that there was police misconduct. I must thus conclude on the balance of probabilities that such a finding will not be made.

107 The Solicitor General objects to the matter being classed as one of jurisdiction. He put that the apparent claim by the plaintiff that the entire "jurisdiction" of the Commission came to an end at some particular point because of a view expressed by say, counsel assisting the Commission, is unsupportable.

108 This may or may not be correct, but the proposition really is that the Commission by its own conduct in the way in which questions were put to witnesses and the submissions of counsel assisting show that it would be unfair for it to come to the view that there had been police misconduct. In any event, the Solicitor General's submission must be correct when it says that jurisdiction as such cannot come to an end. If the Commission comes to the view that there has been no police misconduct, then it does not have to stop everything. It may have to stop further investigation, a matter about which I need not proffer any view, but may still be bound to prepare a report under s 96 of the PIC Act even if report is only to the effect that it had found no police misconduct and noted matters that had concerned the Commission up to that point.

109 The Solicitor General says that the core issue in the case is really not one of jurisdiction "rather, it is whether or not the Commission has the power (and duty) pursuant to ss 16 and 97 of the Act to make assessments and form opinions as to whether any 'other misconduct' has or may have occurred (s 16(1)) in the Commission's mandatory report to Parliament under s 97…".

110 I agree with this submission, however, the real question is what is “other misconduct”?

111 Bearing in mind the text and context of the PIC Act and the other matters to which I have already adverted, the strong indication is that the sort of conduct that is intended to be covered is conduct which is closely connected with police misconduct and does not extend to conduct which may be misconduct found to have occurred independently which has no sufficient nexus with police misconduct.

112 "Police misconduct" must for this purpose include potential police misconduct. By "potential police misconduct", I mean to cover the situation where there is an attempt by an outsider or a probity test within the service setting the scene whereby a member of the police service could yield to a temptation being proffered by or in company with the person setting the scene and so commit actual misconduct.

113 That it is necessary to include potential police misconduct in any attempted definition is made clear by the following example.

114 Suppose for example, there was an investigation into corrupt police officers, and it was discovered that certain persons had bribed police officers, but the police officers had refused the bribes, the whole tone of the PIC Act shows that the conduct of those who offered the bribes was so closely connected with the core business of the Commission that it must have authority to compile a report as to the bribes and any action that should be taken.

115 The above seems fairly straightforward, but it does not cover all the mischief against which the PIC Act is directed.

116 Suppose the Commission comes to the view that there is no police misconduct because the dastardly deed of which the police were suspected was in fact committed by Z a non police person and that Z had no connection with the police whatsoever.

117 Even though Z’s misconduct was in no way related to police misconduct, it would seem to be a strained view of the PIC Act that the Commission could not at least say, “The Commission finds no police misconduct because the deed which the police were suspected of committing was in fact committed by a person who had nothing whatsoever to do with the police.”

118 Indeed, the fact that s 96 authorises the Commission to report to parliament the reasons for its assessments shows that this must be so.

119 Thus, "other misconduct" must include conduct of which it is suspected that police may have committed.

120 In his letter to Lord Kames of 30 June 1759, the Earl of Hardwicke LC wrote, “Fraud is infinite, and were a court of equity once to lay down rules, how far they would go and no farther, in extending their relief against it, or to define strictly the species or evidence of it, the jurisdiction would be cramped, and perpetually eluded by new schemes which the fertility of man’s invention would contrive.”

121 Substituting the word "misconduct" for "fraud", Lord Hardwicke’s wisdom points up the undesirability of defining misconduct in the PIC Act.

122 All I believe I should say by way of guideline is that when considering whether there has been "other misconduct", the lynch pin appears to be to be the close nexus between the misconduct of a propositus and actual or potential police misconduct. For conduct of a non-police person to come within the term "other misconduct" in s 16(1) of the PIC Act there must be an intimate connection between that person’s conduct and actual or potential police misconduct or alleged police misconduct.

123 To summarise, the PIC is established to detect, investigate and prevent police misconduct (s 3). In order to give effect to this aim, it has powers to investigate conduct linked with suspected police misconduct, including to hold hearings (s 32). Such investigations will necessarily put the PIC in touch with a wide range of information, both relevant and irrelevant to its aims. As a result of the Commission’s investigations, s 16 authorises the commission to make assessments and form opinions about “police misconduct or other misconduct”. Reading s 16 purposively, “other” misconduct must be that conduct that is intimately connected with the misconduct or potential police misconduct (actual or suspected) being investigated – it cannot be conduct peripheral to or innocently co-incidental with conduct said to amount to police misconduct.

124 When one passes to ss 96 and 97, by parity of reasoning, the “assessments, opinions and recommendations” included in reports to Parliament must be those assessments, opinions and recommendations made and authorised to be made under s 16.

125 (2) The next matter to address is whether in this case, the conduct of the plaintiff fell within "other misconduct" or whether it was entirely peripheral to the investigation of police or other misconduct.

126 If it fell within the former category, it fell within the scope of the PIC’s investigation and the plaintiff is not entitled to relief unless there has been a breach or potential breach of the requirements of natural justice. If it fell within the latter category, opinions or assessments about it are not permitted to be formed or reported to Parliament under the PIC Act.

127 At paragraphs 75 and 76 of the closing submissions of counsel assisting, he made the following points:

“75. Further, it is now clear that (Names and descriptions of the only two police involved) were not in any way involved in the disappearance of the blood sample and the Commission should so find.

76. The only issue which needs to be resolved by the Commission is whether Dr H… mistakenly handed the Police Sample to Mr Shaw or, alternatively, Mr Shaw took the Police Sample some time shortly after 2:15am on 14 October 2004.”

128 It thus can be seen that this was not a case where the possible or suspected police misconduct was eliminated because of the guilt of a third person.

129 The Commission by the statement of its counsel assisting so conducted the enquiry that it had eliminated the question of police misconduct before it turned to the issue referred to in paragraph 76 of the submission of counsel assisting which was the matter which concerned the conduct of Mr Shaw.

130 The involvement of the plaintiff was thus within the latter category referred to above and thus could not in this case constitute “other misconduct”.

131 It is thus beyond the scope of the PIC’s mandate to investigate and comment upon such conduct.

132 I must stress that this finding is for this case only. In any particular case the manner in which the investigation is conducted and the statements of counsel assisting will be vital in assessing into which category a case falls.

133 The next matter that I must consider is whether the course of the inquiry means that if I had considered that there was "other misconduct" it would be contrary to natural justice for the Commission to take the action it seems intent on taking.

134 Everyone connected with this inquiry acknowledged that the plaintiff was entitled to natural justice. Everyone acknowledged that within those principles, the plaintiff was entitled to have the allegations against him put to him so that he could answer them if he wished.

135 However, in para 14 of the closing submissions counsel assisting said:

"In the context of an inquiry, it is often inappropriate to put serious matters as a fact rather than as a possibility or probability until all relevant evidence has been given and considered."

136 Lord Diplock in giving the reasons of the Privy Council in The Erebus Case (Mahon v Air New Zealand [1984] AC 808) said at 821 that the rules of natural justice, inter alia, require:

“that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.”

137 The content of natural justice varies from case to case. However, generally speaking, it follows from what Lord Diplock said that a person must be given the opportunity not merely to make submissions in reply to an allegation raised against him, but also to put before the tribunal additional material on the subject-matter.

138 It thus, seems to me, that despite the difficulties alluded to in paragraph 14 of the closing address of counsel assisting, if significant allegations against the plaintiff were being formulated in a substantial form for the first time, the plaintiff should have been permitted the opportunity to consider whether he might want to put further material.

139 The preceding observation is of little moment in the instant case as the transcript shows that the allegations were not in fact being made for the first time in counsel’s closing address.

140 Mr Shaw is an eminent lawyer, he was represented by eminent lawyers and would surely have got the flavour of the allegations from what was in fact put to him.

141 To illustrate, a question was put on page 194 of the transcript to Mr Shaw, “What do you say to the possibility that it was your intention when you left the hospital premises to secure the police sample in the Supreme Court Building?”

142 The answer Mr Shaw gave was that he categorically denied it.

143 Mr Shaw’s counsel objected that that was not a proper way of putting a serious allegation to a witness. However, he then changed tack and put the objection on the basis that as there was no basis in fact for the allegation, counsel was in breach of his ethical obligations to put it. Naturally enough, counsel assisting bristled at this. The Commissioner then ruled the question unobjectionable.

144 In my view the question did alert the witness to the allegation being made against him. An allegation does not have to be wrapped up as an alleged fact, all the matters contained in the opponent’s case count as allegations for this purpose. See, for example two cases in a vastly different area of the law, Laxton v Laxton [1962] 1 WLR 729 (divorce) and Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 (extradition).

145 Again at page 198, Mr Shaw was asked, “You say on your oath do you, that you certainly did not have the police sample?” The answer was, “I say that, and I say it emphatically… .”

146 Thus, if it is necessary to rule on the matter, my ruling is that there was no breach of natural justice in this respect.

147 The only exception that might be made is the reference to the possibility that the plaintiff may have given false evidence to the Commission. It seems to me that questions such as the one referred to in [145] may not be sufficient to raise this issue fairly. This allegation, in view of cases such as Smith v NSW Bar Association (1992) 176 CLR 256 may well stand in a different category.

148 However, in view of my main finding (see [131]), I do not need to go further into this matter.

Is the Plaintiff an “Affected Person”?

149 (3) It is first necessary to construe s 97. Is it an independent head of power to make a report to the Parliament as to what has transpired before the Commission or is it consequential on the results of inquiries within its proper scope?

150 As appears from [124] above, I have taken the second construction. I do not believe that anything against this construction was put to me.

151 On this basis, as I have held that investigating Mr Shaw’s conduct is beyond the functions of the PIC, and that his conduct was not “other misconduct” under s 16, the Commission is not authorised to report on his conduct under s 97 and thus this question is not relevant.

152 To put the matter more fully, it is only relevant to consider whether the plaintiff is an “affected person” if the Commission is authorised to report on his conduct under s 97, whereupon the status as an “affected person” determines whether it is mandatory or optional to report on his conduct.

153 I have found that on the true construction of the PIC Act, the PIC is not empowered to form opinions or report to parliament about the plaintiff’s conduct. Accordingly, whether he is an affected person or not does not matter. This is crucial. If a person meets the definition of “affected person”, but the PIC is nevertheless not authorised under s 97(1) to report on his or her conduct, then the fact that the person is an affected person is not a separate basis on which the PIC may report to Parliament. The Commission is still only authorised to include in a report under s 96 those items stated in s 97.

154 However, if I am wrong on this, the question arises as to whether the plaintiff is an “affected person”. If he is properly so classified, the Commission must so report under s 97(2) and the Commission has jurisdiction to report on his conduct.

155 I should repeat the text of Section 97(3) of the PIC Act:

"An 'affected' person is a person against whom, in the Commission's opinion, substantial allegations have been made in the course of or in connection with the investigation concerned."

156 Plaintiff’s counsel say that there is a duty of procedural fairness which exists throughout the inquiry. This is not disputed. The counsel put that the plaintiff has not been involved in any police misconduct. Further, they say, no substantial allegation of fact was made against the plaintiff and at no stage during the course of the hearing did counsel assisting the first defendant or anyone else put any allegation of fact to the plaintiff that might cause him to consider that a report would be made that he was an affected person against whom it might be considered that charges should be brought.

157 Indeed, in his closing submissions to the PIC counsel assisting actually said this:

"It might be said that Mr Shaw was not an 'affected person ' because no 'substantial allegation' was directly put to him as a fact by either counsel assisting or any other party represented before the Commission. It is submitted, however, that as a consequence of these submissions Mr Shaw is now properly regarded as an ' affected person' ."

158 Although it is true that no substantial allegation as a fact was put to Mr Shaw, in my view it was sufficient that material was put to him from which a reasonable person would reasonably comprehend what matters against him were concerning the Commission. It is also true that the mere fact that his counsel could put responses to what was said to counsel assisting would not be sufficient.

159 However, as I have noted earlier, an allegation does not have to be wrapped up as an alleged fact, all the matters contained in the opponent’s case count as allegations for this purpose.

160 As noted earlier, I consider that the allegations were sufficiently raised to provide the opportunity for an answer or the supply to the Commission of contrary probative material.

161 So far as the allegation that Mr Shaw may have given false evidence to the Commission is concerned, the matter is not so clear cut. Apart from the problems that arise from Smith v NSW Bar Association, I do not see where this matter was ever properly put to Mr Shaw. The mere suggestion in a Browne v Dunn type question or, as here, “Do you say on your oath that” is not to my mind sufficient. There is some reply to the matters in Mr Shaw's counsels' closing address, but this is insufficient in a fair inquiry. Furthermore, as was pointed out in that set of submissions, the problems inherent in prosecutions founded on such allegations exemplified in Stanton v Abernathy (1990) 19 NSWLR 656 in themselves call for the opportunity of proper comment.

162 The matter most recently considered does not take away from the fact that there were some substantial allegations made against Mr Shaw. Moreover, they were made in the course of the inquiry, they were made during cross-examination. Thus, were it relevant, I would find that Mr Shaw was properly classed as an “affected person”.

163 I should conclude this part of the reasons by noting that s 97(4) would permit the Commission to make a statement about Mr Shaw which could properly fall within s 96(1) even if Mr Shaw were not an affected person.

What is the scope of s 130 of the PIC Act?

164 (4) Again, I must note that, I cannot really see how s 130 assists the argument of either side on the prime questions that were put to the Court. However, in respect to the arguments that were put on both sides, I will briefly deal with it.

165 Section 130 of the PIC Act must be read in conjunction with s 131. Section 131 contemplates that ICAC may well be investigating questions involving corruption of public officials. That ICAC can investigate a public official and corruption may or may not be directly referable to his or her office as for instance a case where a public official uses his or her official letterhead in order to put pressure on another person in connection with a private matter. However, purely private actions would not seem to come under ICAC's jurisdiction.

166 Section 130 of the PIC Act is directed to making sure that ICAC is the prime investigator except where the public official's conduct is connected with police misconduct. It would seem that if ICAC is limited to public misconduct of a public official, then so must the PIC.

What orders should be made?

167 (5) The Solicitor General criticises the form of the amended summons. However, it is now clear that the Court is expected to give relief where an inquiry such as the present is found to have overstepped its mandate and the plaintiff's personal reputation may be at stake.

168 I agree with the Solicitor General that the declarations in the amended summons are far too wide. It is very difficult to frame a precise form of declaration. I should not attempt to do so, but leave it to plaintiff’s counsel to attempt it if they so wish.

169 A not insignificant part of the difficulty of framing a declaration is that whilst the specific matters raised by counsel assisting and which formed part of paragraphs 128-132 of his closing submissions may not properly be made the subject of a report about an affected person under s 97(2), some diluted version might legitimately be reported upon under s 97(4).

170 In an effort to provide some guidance for this task, I would suggest that if the plaintiff is to obtain any declaration, it would take the form of “Declare that the defendants would be exceeding their mandate if they were to make a report to Parliament with respect to the plaintiff that …”.

171 It may well be that the difficulty of framing a precise declaration is so considerable that it is sufficient merely to publish these reasons confident that a public authority will not act contrary to them.

172 Thus, it is appropriate now to stand the matter over for 14 days so that counsel for the plaintiff can bring in short minutes of the precise orders which the plaintiff seeks. The question of costs can be agitated at the same time.

173 All I do at this stage is to publish these reasons and stand the matter over to my list for mention on Thursday 18 August, 2005 at 9:30 am for short minutes to be brought in and considered. However, if that date is unsuitable to counsel, or it is considered that more than 15 minutes will be required then by arrangement with my Associate made not later than the previous Monday, some other date can be set.

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