Waddell v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 144

CITATION:	Waddell -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 144
DIVISION:	General Division
PARTIES:	APPLICANT James McBeath Waddell RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003214
HEARING DATES:	12/09/2000
SUBMISSIONS CLOSED:	09/12/2000
DATE OF DECISION:	10/16/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Preliminary matter on scope of Tribunal's fact finding powers
LEGISLATION CITED:	Security Industry Act 1997
CASES CITED:	Blair v Curran (1939) 62 CLR 464 Tedeschi v Legal Services Commissioner (1997) 43 NSWLR 20 Re Kevin and Minister for Capital Territory (1979) 37 FLR 1 Casey v Repatriation Commission (1995) 60 FCR 510 Saffron v Federal Commissioner of Taxation (No 2) (1991) 102 ALR 19 at 22.) Ridley v Secretary, Department of Social Security ((1993) 113 ALR 655 The Taxpayer v The Commissioner of Taxation (No. NT 95/8 AAT No. 11407)
REPRESENTATION:	APPLICANT D Jackson, solicitor RESPONDENT D Godwin, barrister
ORDERS:	1. The principle of issue estoppel, based on the acquittal of the applicant of criminal charges by the District Court, does not apply to prevent either party raising any issue of fact or law in these proceedings; 2. Transcripts of the applicant’s evidence before the Independent Commission Against Corruption are not admissible as evidence in these proceedings.

Background

1 These proceedings concern an application by Mr Waddell for review of a decision by the Commissioner of Police NSW (the Commissioner) refusing to grant him Class A, B and C security industry licences under the Security Industry Act 1997 (the Act).

2 The reasons for the refusal were that:

· Mr Waddell is not fit and proper person to hold a licence (s 15(1)(a) of the Act);
· Mr Waddell engaged in corrupt conduct (s 16(3) of the Act); and
· it is not in the public interest to grant Mr Waddell a licence (s 15(3) of the Act).

3 The Tribunal’s decision, set out below, relates to certain preliminary issues which were raised by the parties. Briefly, those issues are whether the principle of issue estoppel applies to these proceedings, the scope of the Tribunal’s power to admit evidence and make findings of fact in circumstances where Mr Waddell has been acquitted of charges involving corrupt conduct and the effect of s 37 of the Independent Commission Against Corruption Act 1988 (ICAC Act) on the admissibility of evidence in these proceedings.

Summary of Agreed Facts

4 For the purposes of these proceedings, the respondent accepted the following chronology of events outlined orally by the solicitor for the applicant at the preliminary hearing.

5 Mr Waddell joined the Police Service in 1962. He attained the position of patrol commander at Paddington Police Station. In 1992 the Independent Commission Against Corruption (ICAC) began certain inquiries into corrupt conduct within the Police Service and Mr Waddell was suspended from duty in August 1992. In December 1992 and January 1992, Mr Waddell appeared before ICAC. He returned to full duties in May 1994. He applied for retirement some time after that but was again suspended from duty in August 1995. Mr Waddell resigned from the Police Service in January 1996.

6 Following certain findings by ICAC, four informations were brought against Mr Waddell by an officer of ICAC. These information were:

· that in breach of s 309(3)(e) of the Crimes Act 1900 , on 16 August 1990 the defendant did intentionally obtain access to data stored in a computer (namely, information relevant to the motor vehicle registration number RES-163) being data that he knew or ought reasonably to have known related to the personal affairs of another person contrary to the Act;
· that in breach of s 309(3)(e) of the Crimes Act 1900 , on 16 August 1990 the defendant did intentionally obtain access to data stored in a computer (namely, information relevant to the motor vehicle registration number RJK 131) being data that he knew or ought reasonably to have known related to the personal affairs of another person contrary to the Act;
· that contrary to s 87 of the Independent Commission Against Corruption Act 1988 , on 13 December 1991 at Redfern the defendant did give evidence (namely that he had never had dealings with Beverley Mary Ryan or Albert Tierney for the purpose of providing RTA information) contrary to the Act.
· that between 15 July 1989 and 17 December 1991 at Sydney the defendant did conspire with Nelson Rowatt Chad, Albert Tierney and Beverley Mary Ryan intentionally to obtain access to data stored in a computer, being data that he knew or ought reasonably to have known related to the personal affairs of another person contrary to the Act;

7 Section 309(3)(e) of the Crimes Act 1900, under which the first two informations were laid, states that:

A person who, without authority or lawful excuse, intentionally obtains access to a program or data stored in a computer, being a program or data that the person knows or ought reasonably to know relates to:
(e) the personal affairs of any person (whether living or deceased),
is liable to imprisonment for 2 years, or to a fine of 500 penalty units, or both.

8 Section 87 of the ICAC Act which was the basis for the third information, states 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. Maximum penalty: 200 penalty units or imprisonment for 5 years, or both.

9 Mr Waddell pleaded not guilty before a District Court jury to the first three charges and was acquitted of those charges. The final charge, alleging common law conspiracy, was discontinued.

10 In its Statement of Reasons, provided under s 49 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Commissioner relied on five Findings of Fact in support of his decision to refuse Mr Waddell’s security licence applications. Four of these findings are set out below. Given my ruling in relation to the admissibility of ICAC transcripts, I have omitted the findings based on those transcripts.

That the applicant, whilst a member of the New South Wales Police Service did, between the period of July 1989 and December 1991, provide information from the Police Service Eagle computer system to unauthorised persons, Mr NR Chad, Mr A Tierney, and Ms B.M Ryan.

Between late July 1989 and December 1991, whilst there is no evidence, the Applicant is thought to have received remuneration for the information he provided to Mr N.R. Chad’s company Satinvale P/L.

The information supplied by the Applicant was used by Mr Chad in connection with his business as a Private Enquiry Agent.

On August 13, 1992, the Applicant was suspended with pay after an internal investigation into the matters found the issue of the Applicant accessing and releasing confidential police information, without authority, sustained. It was also found that the Applicant was engaged in unauthorised secondary employment, sustained.

Preliminary issues

11 Several preliminary issues arose as to the Tribunal’s powers in relation to these proceedings. Those issues were expressed by the respondent in the following way:

Can the Tribunal make its own independent findings in respect of the factual matters considered by the District Court jury during the trial of the applicant?
If so, can the Tribunal accept the factual findings of that jury in respect of the matters considered by it, without first conducting its own investigation into those factual matters?
Does the acquittal of the applicant by the District Court legally preclude the Tribunal from making findings that the applicant had in fact committed the offences he has been acquitted of?
Is the Tribunal entitled to consider all the material before the decision maker, including the transcript of the applicant’s evidence to ICAC over which the applicant claimed privilege under s 37 of the ICAC Act?
Can the Tribunal rely upon the factual findings of ICAC about the conduct of the applicant, without first conducting its own investigation into those factual matters?
Applicant’s submissions

12 The applicant’s submissions were that:

· the Tribunal should accept the verdict of the District Court jury in acquitting Mr Waddell;
· the principle of issue estoppel applies to the Tribunal’s consideration of the facts in this case; and
· s 37 of the ICAC Act prevents the Tribunal from admitting evidence given or documents produced before ICAC.
Respondent’s submissions

13 Briefly, the respondent’s submissions were, firstly, that the Tribunal can make its own findings of fact in respect of the factual matters considered by the District Court jury because none of the reasons for the refusal of the licence are predicated on the applicant’s acquittal of a criminal offence.

14 Secondly, the Tribunal should apply sections 91(1) and 92(2) of the Evidence Act 1995 and not admit the fact of the applicant’s acquittal by the jury as logically probative on the issue of whether the conduct the subject of the criminal charges occurred.

15 Thirdly, the acquittal of the applicant does not create an issue estoppel in respect of whether the Tribunal can be satisfied that the applicant had in fact committed the offences of which he was acquitted.

16 Fourthly, the provisions of s 37 of the Evidence Act 1995 should either be read down as not being applicable to proceedings in the Tribunal or the ADT Act impliedly repeals that section to the extent of any inconsistency with it.

17 Finally, the Tribunal should give due weight to the factual findings of ICAC.

Issues to be resolved

18 Having read the party’s written and oral submissions and the respondent’s Statement of Reasons, the preliminary issues in dispute between the parties can be summarised as follows:

(a) Can the applicant successfully plead issue estoppel by virtue of findings made in the criminal proceedings?
(b) Can the Tribunal treat the acquittal as prima facie evidence of the facts on which that acquittal was founded?
(c) What is the effect, if any, of s 37 of the ICAC Act and any other relevant provisions, on the Tribunal’s powers to admit evidence of answers made, or documents produced by a witness at a hearing before ICAC?

Can the applicant successfully plead issue estoppel by virtue of findings made in the criminal proceedings?

19 The applicant’s lawyer, Mr Jackson, contended that Mr Waddell’s acquittal by the District Court creates an issue estoppel which prevents the Tribunal from determining this matter. The principle of issue estoppel was enunciated by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531:

A judicial determination involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.

20 Estoppel has the same effect as the respondent formally admitting certain facts. In order for issue estoppel to apply, the parties (or their privies) must be the same in each case. (Tedeschi v Legal Services Commissioner (1997) 43 NSWLR 20). In the criminal proceedings the parties were Mr Waddell and the Crown in right of the State of New South Wales. The proceedings were brought by an officer of ICAC. The parties before the Tribunal are Mr Waddell and the Commissioner of Police. Consequently, the parties are not the same and the principle of issue estoppel cannot apply.

Can the Tribunal treat the acquittal as prima facie evidence of the facts on which that acquittal was founded?

21 The answer to this question in relation to court proceedings is “No.” Section 91(1) and (2) of the Evidence Act 1995 (NSW) state that:

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

22 Section 92(2) of the Evidence Act 1975 provides that evidence of a conviction is an exception to s 91(1):

In a civil proceeding, section 91 (1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction:
(a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or
(b) that has been quashed or set aside, or
(c) in respect of which a pardon has been given.

23 Applying these provisions to the present case, the general rule is that evidence of Mr Waddell’s acquittal, or of any finding of fact in the criminal proceedings, is not admissible to prove the existence of a fact in issue in these proceedings. Since the exception in s 92 applies to the admission of evidence that a person has been convicted of an offence, it does not apply to these proceedings.

24 It remains for the Tribunal to decide whether it should choose not to apply this rule of evidence in the light of s 73(2) of the ADT Act which states that:

The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

25 The respondent submitted that while the Tribunal is not bound by the rules of evidence, the case law on this issue in relation to federal administrative tribunals suggests that the rules of evidence should provide a guide as to the material which should be considered to be logically probative. (Re Kevin and Minister for Capital Territory (1979) 37 FLR 1; Casey v Repatriation Commission (1995) 60 FCR 510).

26 On the question of whether this Tribunal should be bound by s 91(1) of the Evidence Act 1975 in the circumstances of this case, federal authorities are instructive. For example, there is authority in relation to the Administrative Appeals Tribunal (AAT), that “. . . where the exercise of the power (by the administrator) is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based.” (Saffron v Federal Commissioner of Taxation (No 2) (1991) 102 ALR 19 at 22.) In Ridley v Secretary, Department of Social Security ((1993) 113 ALR 655 at 661), the full Federal Court (Spender, Gummow and Lee JJ) said that:

The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the tribunal) exercise that decision-making power. That person is entitled to present to the tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out be excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based.

27 It is arguable that this line of reasoning could apply equally to acquittals.

28 I am not prepared to make a general ruling in relation to the admissibility of evidence in the absence of a specific application by the applicant that certain identified findings of fact should be admissible in these proceedings. If the applicant identifies the facts on which the acquittal was founded, and I accept that the acquittal was founded on those facts, I would then need to decide whether the Tribunal should or should not be bound by the rules of evidence on that point as set out in s 91 and 92 of the Evidence Act 1975.

29 The identification of such facts may prove to be a difficult task because my understanding is that when juries acquit a person of a criminal charges, they do not identify the findings of fact on which that acquittal was based. Furthermore it may not be possible to infer that certain findings must have been made.

What is the effect of s 37 of the ICAC Act?

30 The respondent submitted that the transcript of Mr Waddell’s evidence before ICAC and other unidentified material that was before ICAC, should be admitted into evidence by the Tribunal despite s 37(3) and (4) of the ICAC Act. Those provision states that:

(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 or in any disciplinary proceedings.
(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 or in any disciplinary 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.

31 The respondent’s submission was that the ADT Act has created a code as to the evidence and other material on which the Tribunal should rely. In the respondent’s view, s 37 of the ICAC Act should either be read down as not being applicable to proceedings in the Tribunal or the Tribunal should find that the ADT Act impliedly repeals s 37 of the ICAC Act to the extent of any inconsistency. According to the respondent, if the Tribunal cannot take into account the same material that the administrator took into account when making the decision, it cannot “stand in the shoes” of the administrator as required by s 63(2) of the ADT Act.

32 In The Taxpayer v The Commissioner of Taxation (No. NT 95/8 AAT No. 11407) the AAT decided that s 37 of the ICAC Act applied to proceedings conducted by the AAT and that the documents in question in those proceedings were inadmissible partly because of s 37.

33 I will confine my ruling to the transcripts of Mr Waddell’s evidence before ICAC. These are the only documents that the respondent has identified specifically. In my view, the meaning of s 37(3) is unambiguous. The transcript of Mr Waddell’s evidence is an answer made by a witness at a hearing before ICAC. As such it is not admissible in evidence against him in civil proceedings such as those currently before the Tribunal. Section 37(3) is not a rule of evidence which the Tribunal can choose not to be bound by.

34 I appreciate that the implications of this view are anomalous in the sense that the Tribunal will not be able to take into account material which the administrator took into account when making the decision to refuse Mr Waddell a security licence. However, s 63(2) of the ADT Act says that “. . . the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.” There is no requirement on the Tribunal to have regard to all the material that the administrator had regard to when reaching the decision. Although the Tribunal must take into account “any relevant factual material” in determining an application for review (ADT Act, s 63(1)), it cannot have regard to material which is not admissible by virtue of a valid and applicable law such as s 37 of the ICAC Act.

35 If the respondent seeks to adduce evidence in relation to any findings of ICAC or any other material relating to the proceedings before ICAC concerning Mr Waddell, I will consider the admissibility of that evidence at the time.

Orders

36 Based on the reasoning and findings set out above, I make the following orders:

(1) The principle of issue estoppel, based on the acquittal of the applicant of criminal charges by the District Court, does not apply to prevent either party raising any issue of fact or law in these proceedings.
(2) Transcripts of the applicant’s evidence before the Independent Commission Against Corruption are not admissible as evidence in these proceedings.