NSW Government Bulletin - 12 November 2014

In a decision dated 10 November 2014, Hoeben CJ at Common Law has dismissed an application by the Deputy Senior Crown Prosecutor Margaret Cunneen SC and two others. The application sought declarations and orders restraining in relation to an investigation by ICAC known as Operation Hale. Operation Hale concerns allegations that on 31 May 2014, the first and second plaintiffs, with the intention to pervert the course of justice, counselled the third plaintiff to pretend to have chest pains and that the third plaintiff, with the intention to pervert the course of justice, did pretend to have chest pains to prevent investigating police officers from obtaining evidence of the third plaintiff's blood alcohol level at the scene of a motor vehicle accident.

The declarations sought were that the ICAC was exceeding its jurisdiction in conducting the investigation and that the decision to hold a public inquiry was invalid and a nullity. Orders were sought restraining the ICAC from continuing to investigate the allegations and from conducting a public inquiry.

The grounds upon which the relief was sought were that the defendant was acting beyond its jurisdiction in investigating the allegations, that the defendant took into account an irrelevant consideration and exceeded its power by deciding to conduct a public hearing.

In his decision, his Honour firstly gave reasons for declining to make an order under Rule 59.9 of the UCPR that the ICAC provide the plaintiffs with a copy of its decision to investigate and its decision to hold a public inquiry and a statement of reasons for each decision.

His Honour's reasons for declining to make the order were based on s.111(3) of the ICAC Act (the Act) which excuses officers of the ICAC, which should be read as applying to the ICAC itself, from producing in any Court any document or divulging or communicating to any Court any matter, except in the circumstances specified by the section. His Honour also had regard to discretionary factors such as that exposing the reasons may be prejudicial to the investigation and that judicial review was available to the plaintiffs once recommendations and findings had been made in an ICAC report.

Acting beyond jurisdiction

The plaintiffs submitted that the failure by the ICAC to provide reasons for its decision to conduct an investigation meant that in conducting its investigation it was acting beyond power and further submitted that the ICAC was required to provide reasons at each step of the process of the investigation. His Honour rejected this submission as having no support in the Act or at common law.

The plaintiffs submitted that there was no suggestion in the allegations that any alleged conduct in the matter could adversely affect any public official beyond that which is ordinarily involved in perverting the course of justice. The plaintiffs submitted that there were two requirements in section 8(2) of the Act which needed to be satisfied and that the two tests could not overlap or be satisfied by the same conduct. Those requirements were that the conduct needed to "adversely affect... the exercise of official functions by a public official" and secondly that it must be conduct of a type which could involve any of the matters set out in s.8(2)(a) to (y). The plaintiffs submitted that the ICAC's interpretation relied on the same conduct and that such an interpretation would give wide powers to ICAC to "create in it a secret crime body to investigate any alleged attempt to pervert the course of justice". The plaintiffs further submitted that if the Act did confer such a parallel power that citizens' fundamental rights to silence or against self incrimination would be overthrown or abrogated and the principle of legality would in those circumstances require that the intention be expressed with irresistible clarity.

His Honour rejected these submissions, finding that there was nothing in the Act to suggest that the two tests in s.8(2) could not be met by the same conduct and that this was reinforced by the broad language of the section. His Honour also rejected the submission on the basis of legality, expressing the view that whilst provisions which infringe general law rights should be carefully examined and possibly read down, the gateway...