Court of Appeal (WA)|2013-12-18|Before: Martin CJ

A -v- CORRUPTION AND CRIME COMMISSIONER [2013] WASCA 288 (18 December 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : A -v- CORRUPTION AND CRIME COMMISSIONER [2013] WASCA 288

CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : RE ROGER MACKNAY QC; EX PARTE A [2013] WASC 243

Corruption and Crime Commission - Public examination - Closed-circuit television (CCTV) footage played during hearing - Certification that disclosure necessary in the public interest - Corruption and Crime Commission Act 2003 (WA), s 152

Administrative law - Certiorari - Application to quash decision to disclose CCTV footage - Public interest - Whether the Commissioner considered irrelevant considerations or failed to consider relevant considerations - Unreasonableness - Improper purpose - Education function - Misconduct function - Subsequent investigation and fair trial of appellant

Intervener : Mr R M Mitchell SC & Ms A B Preston-Samson

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129; (1980) 29 ALR 228

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353

Bruce v Cole (1998) 45 NSWLR 163

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Channel Seven Perth Pty Ltd v S (A Company) [2007] WASCA 122; (2007) 34 WAR 325

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297

Corruption and Crime Commission v Allen [2012] WASCA 242

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Elcham v Commissioner of Police [2001] NSWSC 614

Ex parte WA Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177

FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594

Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651

Hunter v the Minister for Planning [2012] WASC 247

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291

Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531

Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363

Levi v Australian Securities Investments Commission (No 2) [2013] NSWSC 932

Lo v Chief Commissioner of State Revenue [2013] NSWCA 180

Maloney v Commissioner for Railways (1978) 52 ALJR 292; (1978) 18 ALR 147

McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

McLennan v McCallum [2010] WASCA 45

Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110

National Crime Authority v Gould [1989] FCA 477; (1989) 23 FCR 191

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310

Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320

Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466

Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45

R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407

Re Mactiernan; ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S 20 [2003] HCA 30; (2003) 77 ALJR 1165

Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175

Re Roger Macknay QC; ex parte 'A' [2013] WASC 243

Re Shire of Carnarvon; ex parte Humphrey [2005] WASCA 182

Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91

Rowe v Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1

Russell v The State of Western Australia [2011] WASCA 246

Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363

State Drug Crime Commission of New South Wales v Chapman (1987) 12 NSWLR 447

Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418

Trompler v The State of Western Australia [2008] WASCA 265

Vagh v The State of Western Australia [2007] WASCA 17

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492

Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239

Williams v Minister for the Environment & Heritage [2003] FCA 535; (2003) 74 ALD 124

X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858

Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589

1 The appellant, whose name has been suppressed in these proceedings, was formerly a police officer stationed at Broome. He was involved in two incidents in which physical force was used against detainees at the Broome police station. Both incidents were recorded on closed-circuit television (CCTV). The Corruption and Crime Commission (Commission) (the second respondent) commenced an investigation into the incidents in order to assess whether misconduct by public officers occurred or may have occurred during the arrest and detention of the two detainees or in the aftermath of the incidents to which we have referred.

2 The Corruption and Crime Commissioner (Commissioner) (the first respondent) decided to open the Commission's examination of the matters to which we have referred to the public on the ground that it was in the public interest to do so. That decision has never been challenged by the appellant.

3 During the public examination, in the course of her opening address, counsel assisting the Commission presented and played to the Commission the CCTV recordings to which we have referred. However, before that occurred, the Commissioner ordered that the CCTV recordings not be disclosed to the public until further order. The appellant and other witnesses gave evidence with respect to the incidents depicted on the CCTV recordings. After that evidence had been given, the Commissioner revoked the order which he had made preventing disclosure of the CCTV recordings to the public and further certified that disclosure of the CCTV recordings was necessary in the public interest (pursuant to s 152(4)(c) of the Corruption and Crime Commission Act 2003 (WA) (the Act)). The purpose of that certification was to enable the CCTV recordings to be provided to the media for public dissemination.

4 Before the certification could be implemented, and in particular before the CCTV recordings were provided to the media, the appellant commenced proceedings in the Supreme Court seeking orders quashing the decision of the Commissioner to disclose the CCTV recordings 'to the media and/or the public pursuant to s 151 and/or 152' of the Act. The orders were sought on the grounds that the Commissioner had wrongly exercised his discretion, had failed to take into account a number of specified considerations which were said to be relevant, and had taken into account irrelevant considerations. Those proceedings were dismissed - see Re Roger Macknay QC; ex parte 'A' [2013] WASC 243.

5 The appellant appeals from that decision. Appropriately, the Commissioner and the Commission have informed the court that they will abide by the court's decision and have not participated in the appellate process. However, leave was granted to the Attorney General of Western Australia to intervene in the proceedings, and in that capacity the Attorney General has acted as a contradictor to the relief sought by the appellant.

6 The grounds of appeal differ in a number of respects from the grounds which were advanced at first instance. For the reasons which follow, all grounds of appeal should be dismissed.

7 It is convenient to commence by outlining the relevant statutory framework which governs the Commission's operations.

8 The Act's primary purposes are to combat and reduce the incidence of organised crime, and to improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector (Act, s 7A). These purposes are to be primarily achieved by establishing the Commission, which is able to authorise the use of investigative powers not ordinarily available to the police service to investigate organised crime, and to help public authorities to deal effectively and appropriately with misconduct (Act, s 7B).

9 The Commission's functions are specified in the Act (pt 2, div 2). They include receiving allegations of misconduct and investigating and dealing with such allegations, which may involve the reference of matters to, or taking action with, another authority. This 'misconduct function' is described in s 18 of the Act, which provides:

(1) It is a function of the Commission (the misconduct function) to ensure that an allegation about, or information or matter involving, misconduct is dealt with in an appropriate way.

(2) Without limiting how the Commission may perform the misconduct function, the Commission performs the function by -

(a) receiving and initiating allegations of misconduct;

(b) considering whether action is needed in relation to allegations and matters related to misconduct;

(c) investigating or taking other action in relation to allegations and matters related to misconduct if it is appropriate to do so, or referring the allegations or matters to independent agencies or appropriate authorities so that they can take action themselves or in cooperation with the Commission;

(d) monitoring the way in which independent agencies and appropriate authorities take action in relation to allegations and matters that are referred to them by the Commission;

(e) regardless of whether or not there has been an allegation of misconduct, investigating whether misconduct -

(i) has or may have occurred;

(ii) is or may be occurring;

(iii) is or may be about to occur; or

(iv) is likely to occur;

(f) making recommendations and furnishing reports on the outcome of investigations;

(g) consulting, cooperating and exchanging information with independent agencies, appropriate authorities and -

(i) the Commissioner of the Australian Federal Police;

(ii) the Commissioner of a Police Force of another State or Territory;

(iii) the CEO of the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;

(iv) the Commissioner of Taxation holding office under the Taxation Administration Act 1953 of the Commonwealth;

(v) the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;

(vi) the Director of the Australian Transaction Reports and Analysis Centre under the Financial Transaction Reports Act 1988 of the Commonwealth;

(vii) any person, or authority or body of this State, the Commonwealth, another State or a Territory that is declared by the Minister to be a person, authority or body to which this paragraph applies;

(h) assembling evidence obtained in the course of exercising the misconduct function and -

(i) furnishing to an independent agency or another authority, evidence which may be admissible in the prosecution of a person for a criminal offence against a written law or which may otherwise be relevant to the functions of the agency or authority; and

(ii) furnishing to the Attorney General or a suitable authority of another State, a Territory, the Commonwealth or another country, evidence which may be admissible in the prosecution of a person for a criminal offence against a law of the jurisdiction concerned or which may otherwise be relevant to that jurisdiction.

...

10 Section 4 of the Act provides that misconduct occurs if:

(a) a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer's office or employment;

(b) a public officer corruptly takes advantage of the public officer's office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person;

(c) a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years' imprisonment; or

(d) a public officer engages in conduct that -

(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct;

(ii) constitutes or involves the performance of his or her functions in a manner that is not honest or impartial;

(iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or

(iv) involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person, and constitutes or could constitute -

(v) an offence against the Statutory Corporations (Liability of Directors) Act 1996 or any other written law; or

(vi) a disciplinary offence providing reasonable grounds for the termination of a person's office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).

11 Police officers are classified as 'public officers' under the Act (Act, s 3 and Criminal Code (WA) s 1). Pursuant to s 21A of the Act, the Commissioner of Police is required to notify the Commission of matters concerning, or that may concern reviewable police action in accordance with guidelines issued under s 30 of the Act (which empowers the Commission to issue guidelines with respect to matters referred to in s 21A). 'Reviewable police action' is defined by s 3 of the Act to mean any action taken by a police officer or an employee of the police service that is contrary to law, unreasonable, unjust, oppressive or improperly discriminatory (amongst other things). Section 21A provides that the Commission may deal with a matter notified under that section as if it were a notification of misconduct pursuant to s 28(2) of the Act.

12 The Commission's functions with respect to misconduct are not limited to investigation. The Commission has a further role in helping to prevent misconduct. Section 17 of the Act confers this 'prevention and education' function upon the Commission, and sets out a non-exhaustive list of the ways this function may be performed. It provides:

17. Prevention and education function

(1) The Commission has a function (the prevention and education function) of helping to prevent misconduct.

(2) Without limiting the ways the Commission may perform the prevention and education function, the Commission performs that function by -

(a) analysing the intelligence it gathers in support of its investigations into organised crime and misconduct; and

(ab) analysing the results of its investigations and the information it gathers in performing its functions; and

(ac) analysing systems used within public authorities to prevent misconduct; and

(ad) using information it gathers from any source in support of its prevention and education function; and

(b) providing information to, consulting with, and making recommendations to public authorities; and

(c) providing information relevant to its prevention and education function to the general community; and

(ca) ensuring that in performing all of its functions it has regard to its prevention and education function; and

(cb) generally increasing the capacity of public authorities to prevent misconduct by providing advice and training to those authorities, if asked, to other entities; and

(d) reporting on ways to prevent misconduct.

13 For reasons which will appear, it is significant that the Act expressly provides that the Commission is to have regard to its prevention and education function when performing 'all of its functions' under the Act (s 17(2)(ca) above).

14 Part 6 of the Act specifies the various powers conferred upon the Commission which may be exercised in the performance of its functions. Those powers include the power to obtain information from a public authority or officer (s 94), the power to compel the production of documents or other things (s 95), and the power to summon witnesses to attend an examination and to give evidence or produce any record or other thing in that person's custody or control, or do both (s 96).

15 Part 7 empowers the Commission to conduct examinations (s 137) including examinations for the purposes of an investigation under the Act. Examinations are to be conducted in private unless the Commission otherwise orders (s 139 and s 140). The Commission may open examinations to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, the Commission considers that it is in the public interest to do so (s 140(2)). If the Commission decides to open an examination to the public, the Commission may close the examination for a particular purpose (s 140(4)).

16 Part 9 of the Act concerns confidentiality, disclosure, secrecy and protection of witnesses, and contains a number of 'stringent' confidentiality provisions - see Corruption and Crime Commission v Allen [2012] WASCA 242 [22]. The critical provisions of the Act for the purposes of this appeal are ss 151 and 152.

17 Section 151 prohibits the disclosure of 'restricted matter' except as authorised or required by the Act.

Disclosure of certain information restricted

(1) In this section -

restricted matter means any of the following -

(a) any evidence given before the Commission;

(b) the contents of any statement of information or document, or a description of any thing, produced to the Commission;

(c) the contents of any document, or a description of any thing, seized under this Act;

(d) any information that might enable a person who has been, or is about to be, examined before the Commission to be identified or located;

(e) the fact that any person has been or may be about to be examined before the Commission.

(2) Subject to subsections (3) and (4), a restricted matter must not be disclosed.

(3) Unless the Commission orders otherwise, a restricted matter may be disclosed if that matter has already been disclosed at a part of an examination that was open to the public.

(4) A restricted matter may be disclosed -

(a) in accordance with a direction of the Commission;

(b) to a legal practitioner for the purpose of obtaining legal advice or representation relating to a notice, summons or matter;

(c) to a person for the purpose of obtaining legal aid relating to a notice, summons or matter;

(d) to an officer or agent of a body corporate by the body corporate or another officer or agent of the body corporate for the purpose of ensuring compliance with a notice or summons;

(e) by a legal practitioner for the purpose of complying with a legal duty of disclosure arising from his or her professional relationship with a client;

(f) by a legal practitioner referred to in paragraph (b) for the purpose of giving legal advice, making representations, or obtaining legal aid, relating to the notice, summons or matter;

(g) by a person referred to in paragraph (c) for the purpose of obtaining legal aid relating to the notice, summons or matter; or

(h) if that disclosure is otherwise authorised or required under this Act.

(a) the Commission or a relevant person as defined in section 152(1); or

(b) a relevant person as defined in section 208(1),

in relation to a restricted matter that is official information under section 152 or 208, as the case may be.

(6) This section does not apply to -

(a) an authority or person referred to in section 153 or 209; or

(b) any person or employee under the control of an authority or person referred to in section 153 or 209,

in relation to a restricted matter that is information to which section 153 or 209, as the case may be, applies.

(7) If a restricted matter is disclosed contrary to this section, any person who so discloses the matter, or causes the matter to be so disclosed, commits an offence.

Penalty: Imprisonment for 3 years and a fine of $60 000.

18 Restricted matter includes any evidence given before the Commission (Act, s 151(1)), and 'disclose' is defined as meaning 'to publish in any way' or to 'divulge or communicate to any person in any way' (Act, s 3). A person, other than the Commission or its officers or lawyers, who discloses restricted matter without authorisation under s 151(3) or (4) of the Act commits an offence (Act, ss 151(7), (2), (5) and (6)).

19 Relevantly, disclosure of restricted matter is permitted where the restricted matter has been disclosed as part of an examination that the Commission has determined should be open to the public under s 140, unless the Commission 'orders otherwise' (s 151(3)). As will be seen, the power to 'order otherwise' in s 151(3) was invoked by the Commission to order that the CCTV footage the subject of this appeal not be disclosed publicly until further order. Significantly, in the case of 'restricted matter' that is also 'official information' within the meaning of s 152, s 151 does not apply to or deal with disclosure by the Commission or its officers or lawyers (s 151(5)).

20 Section 152 concerns disclosure of 'official information' by the Commission. The purpose of the provision is to protect from disclosure by its officers or lawyers any information in the possession of the Commission relating to, amongst other things, investigations in which it is involved - Corruption and Crime Commission v Allen [43]. Section 152 provides:

Disclosure by the Commission or its officers

(1) In this section -

Commission lawyer means -

(a) a legal practitioner appointed to assist the Commission; and

(b) a person who assists, or performs services for or on behalf of a legal practitioner appointed to assist the Commission in the performance of the legal practitioner's duties assisting the Commission;

court includes a tribunal, authority or person having power to require the production of documents or the answering of questions;

official information, in relation to a relevant person, means information acquired by the person by reason of, or in the course of, the performance of the person's functions under this Act;

relevant person means a person who is or was -

(a) an officer of the Commission; or

(b) a Commission lawyer.

(2) Subject to subsections (3), (4) and (6) a relevant person must not, either directly or indirectly -

(a) make a record of any official information; or

(b) disclose any official information.

Penalty: Imprisonment for 3 years and a fine of $60 000.

(3) Despite subsection (2), a relevant person may make a record of official information -

(a) under or for the purposes of this Act;

(b) otherwise in connection with the performance of the person's functions under this Act.

(4) Despite subsection (2), official information may be disclosed by a relevant person if it is disclosed -

(a) under or for the purposes of this Act;

(b) for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act or any other prosecutions or disciplinary action in relation to misconduct;

(c) when the Commission has certified that disclosure is necessary in the public interest;

(d) to either House of Parliament or to the Standing Committee;

(e) to any prescribed authority or person; or

(f) otherwise in connection with the performance of the person's functions under this Act.

(5) A relevant person is not authorised to disclose operational information under subsection (4)(d) or (e) unless the Commission has certified under subsection (4)(c) that disclosure is necessary in the public interest.

(6) Despite subsection (2), a relevant person may disclose the fact that an allegation has been received or initiated by the Commission or the details of an allegation.

(7) A relevant person cannot be required to produce or disclose any official information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.

(8) This section also applies to the Commission as if references to official information were references to all information acquired by the Commission by reason of, or in the course of, the performance of the Commission's functions under this Act.

21 The breadth of the definition of 'official information' is such that any information acquired by an officer or lawyer of the Commission, or the Commission itself, in the performance of functions under the Act will fall within the scope of s 152, with the result that s 151 will not apply to the disclosure of that information (s 151(5)). In this case it has never been contended at any point, either before the Commission, the primary judge, or during the appeal, that s 151 provides, of itself, sufficient authority to provide the CCTV recordings to the media.

22 Section 9(2) of the Act effectively provides that anything that may or must be done by the Commission under the Act can be effectually done by the Commissioner. It follows that the orders, directions and certificates of the Commission to which reference is made in s 151 and s 152 of the Act can be issued by the Commissioner.

23 Although less relevant to these proceedings, s 153 forms part of the scheme relating to disclosure contained within pt 9 of the Act. It provides:

(1) In this section -

court includes a tribunal, authority or person having power to require the production of documents or the answering of questions;

produce includes permit access to.

(2) This section applies to information if, in circumstances referred to in section 152(4), it is disclosed to an authority or person for use in connection with the performance of a function of the authority or person under a written law.

(3) The authority or person, or any person or employee under the control of the authority or person -

(i) make a record of information to which this section applies; or

(ii) disclose any information to which this section applies,

except for the purpose for which it was disclosed to the authority or person; and

(b) cannot be required to produce or disclose the information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.

Penalty, for a contravention of paragraph (a): Imprisonment for 3 years and a fine of $60 000.

(4) Subsection (3) does not prevent the disclosure of the fact that an allegation has been received or initiated by the Commission or the details of an allegation.

The public examination conducted by the Commission

24 The Commission's examination commenced on 10 June 2013. It is clear that the Commissioner had previously determined that the examination would be open to the public, pursuant to s 140(3) of the Act. After taking appearances, the Commissioner adjourned briefly to allow for the installation of equipment which would enable the Commissioner's opening remarks, and the opening address of counsel assisting the Commission, to be televised. When the examination resumed, the Commissioner made brief remarks concerning the role and responsibilities of police officers. He described the investigation to be undertaken by the Commission in these terms:

This investigation concerns two incidents at the Broome police station and particularly will examine issues of supervision and accountability in relation to those incidents, as those things are at the heart of the maintenance of discipline.

The scope and purpose of this series of examinations and investigation is to enable the Commission to make an assessment and form an opinion as to whether misconduct by public officers has or may have occurred during the arrest and detention of D1 and D4.

25 Counsel assisting the Commission then opened the case which would be presented. She referred to two incidents involving the use of force against persons in police custody occurring in Broome police station three weeks apart - in March and April 2013. Both incidents were said to involve the same police officer, described in the examination before the Commission as D5, and who is the appellant in these proceedings. Counsel advised the Commission that the relevant conduct had been captured on CCTV and went on to explain the reasons why the Commission had concluded that the examination should be conducted in public pursuant to s 140 of the Act. In that context, she stated that the main focus of the examination would not be upon the conduct of the officer who used the force, but rather would be on the actions taken or inaction of other officers who witnessed parts of the events. She also adverted to the investigation into the adequacy of supervision within the police service, and advised that the use of padded cells, the stripping of detainees, the use of restraints and police policies in relation to all of those matters would be the subject of investigation. In that context she asserted:

The benefits of public exposure of the investigation into those issues is obvious: in particular, public hearings are likely to be significantly educative of police officers; also, holding public examinations as part of the investigative process will assist in maintaining public confidence that these types of incidents are being investigated thoroughly and transparently. It may also encourage people to make complaints when they have concerns about how a detainee has been treated.

26 Counsel then went on to outline the steps that would be taken in order to prevent prejudice or the infringement of privacy. In that context, she referred specifically to the possible prejudice to the appellant, who may be subject to subsequent criminal charges. She proposed an order suppressing the identity of the appellant (which was made) and further proposed that before any particular witness was examined, specific consideration could be given to the question of whether that witness should be examined in public.

27 In relation to the CCTV recordings, counsel observed that there was potential for the events the subject of the Commission's investigation to stir up strong feelings amongst some members of the public, and in particular amongst the Broome community. She stated that on the whole, those matters did not outweigh the positive benefits of a public hearing, but that one matter that would require further consideration was whether the CCTV recordings should be made public. She proposed that before a decision was made on that subject, the Commission should hear submissions from all those with a relevant interest. In order to enable that to occur, she proposed that 'suppression orders' should be made, including an order that the CCTV recordings which were to be played during the course of her opening address (which, as we have noted, was being televised) were not permitted to be broadcast until further order. Although not specified, it seems clear that the order proposed by counsel was an order to be made pursuant to s 151(3). The Commissioner made the orders sought.

28 Counsel assisting the Commission then opened on the facts. During that opening she presented and played the CCTV recordings to the Commission. Before doing so, she sought and obtained confirmation that the CCTV recordings were 'to be suppressed until further order', which can be taken to be a shorthand reference to the non-disclosure order made by the Commissioner pursuant to s 151(3) of the Act. The recordings were played in a number of instalments, and the Commissioner reiterated that 'at least until further order any reproduction of that footage has been suppressed, [and] is prohibited' (ts 10/6/13, 15). Counsel for the intervener informed the court that the cameras present during the public examination did not record the playing of the CCTV recordings.

29 After counsel's opening was completed, a number of witnesses were called. They were asked about the events depicted in the CCTV recordings. Transcript of that day's proceedings, including the opening observations of the Commissioner, the opening address of counsel assisting the Commissioner, and the evidence of the witnesses was published, and remains published, on the website of the Commission. It seems that no specific order was made, or certificate granted, to enable that publication to occur (although before each witness was sworn, the Commissioner advised the witness that he had determined that the examination was to be conducted in public, and that the evidence to be given by the witness may be published in due course).

30 The public examination resumed on 11 June 2013. The appellant attended in answer to a summons issued by the Commission requiring him to attend and be examined.

31 Prior to his examination, counsel for the appellant applied to the Commissioner under s 140(4) of the Act for an order that his examination be closed to the public. Counsel for the appellant submitted that holding his examination in public may be prejudicial to the appellant. In essence, she contended that if he was charged with criminal offences arising from the incident at some later point, and the examination was public and published in the media, his answers at the hearing could be indirectly used against him in relation to those later charges. She characterised this as an impermissible 'derivative use' of the answers, which she submitted would also undermine the appellant's 'right to silence'. Further, if the examination generated media attention, counsel submitted that this could lead to the jury at his trial having regard to the appellant's answers given at the hearing when considering their verdict (ts 11/6/13, 4 - 7, 10).

32 Counsel assisting the Commission submitted that if the appellant was charged, the matter might be dealt with in the Magistrates Court, or if it was dealt with in the District Court the appellant could apply to be tried by judge alone, potentially minimising any prejudice incurred from the public examination (ts 11/6/13, 7-8). Such prejudice would also be limited, in her submission, by the orders made suppressing the appellant's identifying details.

33 In reply, counsel for the appellant submitted that the issue concerned the erosion of the appellant's privacy, and repeated her submissions regarding the potential prejudice to the appellant from the public examination.

34 The Commissioner ruled that it was appropriate for the examination of the appellant to be in public, on the condition that the appellant's name and identifying details be suppressed. He had regard to, but ultimately rejected the appellant's submissions that a public examination would prejudice the appellant in any future criminal trial or amount to an impermissible 'derivative use'. He adopted the submissions of counsel assisting the Commission (ts 12). He accepted that the potential prejudice to the appellant was outweighed by the benefits of a public examination, and that prejudice to any future trial of the appellant could be addressed by suppression orders relating to his identifying details and by appropriate directions to the jury, which they should be assumed to have the capacity to follow (ts 11/6/13, 12).

35 The Commissioner's decision to decline to make an order closing the examination for the purposes of taking the appellant's evidence has not been challenged by the appellant at any stage. His evidence was given during the course of the public examination and subsequently transcribed and published on the website of the Commission. Counsel assisting the Commission examined the appellant at length in relation to the events depicted on the CCTV recordings, and at a number of points during the course of that examination portions of the CCTV recordings were played to the appellant. At various points during his evidence, the appellant denied the interpretation of the images depicted in the CCTV recordings put to him by counsel assisting the Commission. The examination of the appellant occupied all of that day's hearing.

36 The public examination resumed on 12 June 2013. More witnesses were called. Portions of the CCTV recordings were put to some of those witnesses during the course of their examination. As with the previous day's proceedings, the evidence given by those witnesses was transcribed and published on the website of the Commission, apparently without any specific order to that effect being made, although each witness was warned by the Commissioner that this was likely to occur before being sworn.

37 The public examination continued on 13 June 2013. Counsel representing a number of media organisations announced his appearance and challenged the validity of the 'suppression orders' made by the Commission restricting publication of the CCTV recordings. Submissions were put on a number of grounds, including an asserted lack of statutory power. In response to those submissions, the Commissioner referred counsel for the media organisations to s 151(3) of the Act. Counsel representing the media organisations then put further submissions in support of the proposition that the CCTV recordings should be released.

38 In reply, counsel assisting the Commission cited Ex parte WA Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177 in support of the proposition that s 152 of the Act applied to the CCTV recordings, because they came within the definition of 'official information' notwithstanding that those recordings had been played during the course of a public examination. She submitted that it was therefore necessary for a disclosure to fall within one of the provisions of s 152(4) before the CCTV recordings could be disclosed by the Commission to the media. As we have already noted, the proceedings before the Commissioner, the primary judge and this appeal have all been conducted on this basis, which has not been challenged.

39 Counsel assisting the Commission also responded orally to written submissions that had been presented to the Commission by counsel for the appellant in opposition to the disclosure of the CCTV recordings. Those submissions proceeded upon the assumption that disclosure could only occur if a certificate was issued by the Commission to the effect that disclosure was necessary in the public interest, in accordance with s 152(4)(c) of the Act. In those written submissions, the issue of such a certificate was opposed on a number of grounds including:

(1) that disclosure may prejudice the safety or reputation of the appellant, and would defeat the efficacy of any non-disclosure order in respect of the appellant's identity;

(2) that publication would be unfair to persons depicted in the footage, as they have not been charged with any offences;

(3) that disclosure may affect the integrity of any criminal investigation into the appellant; and

(4) that public disclosure could prejudice the fairness of a trial in relation to any criminal or civil proceedings arising from the incidents, and this would be prejudicial to the administration of justice.

40 In response, counsel assisting the Commission submitted that:

(1) the CCTV footage constituted 'official information' and therefore s 152 of the Act, and specifically s 152(4), had to be considered when determining whether the footage could be released;

(2) section 151 was not applicable, because s 151(5) provides that s 151 does not apply to the Commission in relation to a restricted matter that is official information; and

(3) pursuant to s 152(4), the footage can be disclosed if disclosure is necessary in the public interest (s 152(4)(c)).

41 Counsel assisting the Commission spoke to the public interest in the disclosure of the footage. She commenced by addressing the appellant's submissions with respect to the prejudice which might arise from the release of the CCTV recordings. She responded to the submission that the release may prejudice the safety or reputation of the appellant by observing that his identity had been suppressed. In her submission, this, alongside the pixelation of his face in any footage, would be effective to obscure the appellant's identity. In relation to the submission that the release of the footage would be unfair to the persons depicted in the footage, and may impact upon any investigation, counsel noted that the footage was sourced from police cameras and that the footage added little to the publicly reported evidence other than demonstrating visually what happened. As regards the allegation that disclosure may prejudice the fairness of any trial of the appellant, counsel observed that the footage would be admissible evidence at any trial (ts 13/6/13, 27).

42 Counsel assisting then addressed the reasons why in her submission it was in the public interest for the footage to be released. She relied upon the reasons she had enunciated in the course of her opening address explaining why the examination was being conducted in public as being relevant to the determination of whether release of the footage was necessary in the public interest; namely that the release of the footage would assist in maintaining public confidence that such incidents are being thoroughly and transparently investigated, that the release of the footage would be educative of police officers, and that it may encourage further complaints.

43 Counsel assisting noted that one of the core functions of the Commission is to educate. She submitted that this function extends to educating police officers, encouraging them to consider and take seriously their duty of care, and their duties to report and intervene. She pointed out that the appellant had said that he did not use excessive force, and submitted that in order to enhance the education function people should be allowed to assess whether that was the case by reference to the footage itself. For these reasons, she submitted that the release of the footage was necessary in the public interest.

44 Counsel for the appellant made oral submissions to the effect that:

(1) the Commissioner should focus on s 152 of the Act when determining whether to release the footage (ts 13/6/13, 31), and the release of such footage must be necessary in the public interest;

(2) the principles of open justice are of little or no relevance to the proceedings of the Commission, which are governed by specific statutory provisions vesting decisions with respect to public access with the Commission (citing Ex parte West Australian Newspapers);

(3) in considering the Commission's discretion under s 152, in Ex parte West Australian Newspapers the majority in the Court of Appeal held that it was relevant that there was no pending investigation or trial that could be compromised by the publication of the material;

(4) when considering whether to make a non-publication order, an important consideration is the need to preserve the integrity and efficacy of any future investigation, and that it was unclear what effect the release of the footage would have on the investigation of criminal charges;

(5) the Commission's primary function is to deal with misconduct. Whilst the Commission may have a role in assisting in the eradication of misconduct, the performance of this function is enhanced by the Commission ensuring that prosecutions will ultimately be conducted fairly. Publication of the CCTV recordings prior to them being tested in court might compromise the ability to investigate or charge a person with criminal offences;

(6) it was likely that the appellant would face criminal charges, and may be tried by jury, and therefore showing the CCTV recordings to the public may impinge upon the fairness of his trial because members of the public may have pre-judged the appellant based on such recordings;

(7) such prejudice could not be removed by directions to the jury, and even if directions are given, this overlooks the underlying principle which is that information should not be disclosed if the Commission forms the view that it may prejudice the fair trial of an individual;

(8) no weight should be given to the argument of counsel assisting the Commission that the public interest was served by the release of the CCTV recordings in furtherance of the Commission's education function. The Commissioner of Police should instruct his officers what is acceptable behaviour. Even if the disclosure of the footage is educative to police, and police form part of the public at large, it does not follow that disclosure of these images of the appellant before any trial is 'necessary' in the public interest;

(9) the public have had described to them by reporters the contents of the CCTV recordings, and the appellant's evidence of the events depicted on the CCTV recordings. The public's confidence in the transparency of the Commission and of its investigative procedures has already been served by the fact the examinations had been held in public; and

(10) regard must be had to the risk to the appellant's reputation.

45 The Commissioner was of the view that the 'suppression' or 'non-disclosure' order made in relation to the CCTV recordings should be lifted (ts 13/6/13, 44) and certified that disclosure of those recordings to the media, with the faces of persons whose identities had been suppressed pixelated, was necessary in the public interest under s 152(4)(c). He said that 'largely for the reasons put foward by senior counsel for the Commission' (ts 13/6/13, 44), the CCTV recordings should be released to the public including the media. He went on to identify the reasons, additional to those identified by counsel, why in his view release of the recordings was necessary in the public interest, stating:

I think the order in the circumstances in which this matter has proceeded really flows from the order that was made that there be a public examination. What has occurred is that counsel, senior counsel, has opened on a particular basis in relation to that material. Some evidence has been given by some witnesses in relation to that material.

Ms Vernon's client, D5, has given evidence which has strongly challenged a number of factual aspects. This is, to take a term from another context, really a case of best evidence. The position now is that different parties have talked about the same observable piece of information and have given extremely different descriptions of that and in those circumstances, the hearing being a public hearing, in my view it would almost be a perversion to leave the matter as it is.

I'm quite satisfied that it is necessary in the public interest that this material, which is objective material, be allowed to be in the public domain, given the dichotomy in relation to the evidence that has been arrived at. I think that is relevant to the function of [the] commission of which senior counsel has spoken. That is not expressly in relation to D5, but rather in relation to the commission's obligation to exercise oversight of [sic] a particular branch of the public service, that being the police force, and to inform in the way that senior counsel has described.

I arrive at that conclusion pursuant to section 152 subsection (4)(c) and I certify that disclosure is necessary in the public interest for those reasons. In those circumstances it is not necessary for me to consider whether or not section 152(4)(a) would permit disclosure. Clearly, the test under that section would be substantially lower than that in relation to subsection (4)(c) and, clearly, if that was available then, having regard to what I have said, then disclosure would be appropriate under that subsection, but it is not necessary for me to arrive at that point (ts 13/6/13, 44 - 45).

46 Therefore, whilst the Commissioner 'largely' adopted the submissions of counsel assisting, he did not adopt the submission that the CCTV recordings added little to the publicly reported evidence regarding the incident. Rather, he regarded the CCTV recordings as providing a necessary context to the evidence adduced by those summoned to attend the public examinations, and that the examinations could not be properly or accurately understood by the public without reference to the footage.

47 The appellant commenced proceedings seeking writs of certiorari and prohibition to quash the Commissioner's decision to disclose the CCTV recordings and to prevent the Commission from releasing the CCTV recordings to the media. The appellant alleged that the Commissioner's decision to disclose was a 'wrongful exercise of the discretion'. The appellant also asserted that the Commissioner:

(1) failed to take into account relevant considerations, namely:

(a) the need to preserve the integrity and efficacy of the investigation and subsequent proceedings;

(b) the prejudice to the appellant's safety, reputation and right to a fair trial; and

(2) took into account irrelevant considerations; namely the need to disclose the CCTV recordings to police officers as part of the education function of the second respondent.

48 The primary judge was not persuaded that the Commissioner made any error in construing s 152(4)(c), or that he exercised powers under that section for a purpose other than that for which the power was conferred. He interpreted the appellant's argument that the Commissioner exercised his discretion 'wrongly' as a submission that the Commission misconstrued s 152(4)(c) or exercised its power for a purpose other than those for which it was conferred. His Honour accepted that s 152(4)(c) required more than merely establishing that the disclosure was in the public interest; rather, it needed to be 'necessary' in the public interest. However, he held that the Commissioner had in fact found that disclosure was necessary in the public interest, and observed:

Necessary is capable of a wide range of meanings. The meaning will depend on the statutory context. One meaning is needing to be done, or essential. As the High Court has observed, there is, in Australia, 'a long history of judicial and legislative use of the term "necessary" not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted': Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 [39]. See, for example, the cases outlined by O'Keefe J in Elcham v Commissioner of Police [2001] NSWSC 614; (2001) 53 NSWLR 7 [48] - [56]. In some contexts, necessary may not mean essential but merely conducive: Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 [53].

In my view, no error of construction of s 152(4)(c) is revealed in the reasons of the Commissioner. The question for the CCC was whether disclosure was necessary in the public interest. That is the question which the Commissioner asked and answered. The Act does not spell out explicitly the considerations relevant to the public interest in s 152(4)(c), and as to the considerations bearing on whether disclosure is necessary in the public interest. That silence is an indication of the breadth of the discretionary decision entrusted to the decision-maker. Whether he took into account all mandatory relevant considerations, or an irrelevant consideration, is dealt with in grounds 2 and 3 [72] - [73].

49 The primary judge found that there was no failure by the Commissioner to take into account the considerations alleged by the appellant to be relevant when making the decision to release the CCTV recordings, and concluded that he did not therefore have to determine whether such considerations were mandatory [84] - [85].

50 In relation to the allegation that the Commissioner took account of irrelevant considerations, the primary judge found that the provisions of s 17(2)(ca) of the Act specifically authorised the Commission to take into account its education function in exercising its power under s 152(4)(c) of the Act.

51 For those reasons, the appellant's case was dismissed.

52 Following an amendment made at the commencement of the appeal hearing, the grounds of appeal are as follows:

The primary Judge made an error of law in that, having found that the test of whether disclosure is necessary in the public interest pursuant to section 152(4)(c) of the Corruption and Crime Commission Act 2002 (WA) (Act) requires something more than the conclusion that disclosure was in the public interest [71], the primary Judge failed to adopt the correct test by failing to make any finding:

1.1 as to the meaning of 'necessary' in section 152(4)(c), when he ought to have found that the ordinary and natural meaning of 'necessary' is 'essential';

1.2 as to the considerations which the first respondent was bound to take into account in applying the test, when he ought to have found that the first respondent was bound to take into account the following relevant considerations:

A -v- CORRUPTION AND CRIME COMMISSIONER [2013] WASCA 288 (18 December 2013)

At a glance

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Before

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Judgment (521 paragraphs)

A -v- CORRUPTION AND CRIME COMMISSIONER [2013] WASCA 288 (18 December 2013)

The appellant's contention that 'necessary' in s 152(4)(c) means 'essential' must be rejected.

Legislation Cited (9)

Cases Cited (58)