Director of Public Prosecutions (NSW) v McDonald, Ian; Director of Public Prosecutions

Local Court of NSW|2015-05-22

JUDGMENT

This is an application by the Crown to withdraw proceedings against both defendants. I am informed that the Crown has filed ex officio indictments in the District Court against both men.
Mr Ian McDonald is before this Court on two counts of the common law offence of 'misconduct in public office'. Mr John Maitland is before this Court on one count of the common law offence of 'being an accessory before the fact to misconduct in public office'.
Both defendants consent to the withdrawal of the proceedings however seek an order for costs against the Crown.
Submissions have been made on behalf of the Crown and also on behalf of both defendants.
While the matter was initially before this Court for the application by the Crown to withdraw the proceedings against both defendants, submissions were made on behalf of the defendants that the proceedings were improperly instituted and, therefore, are a nullity. The Crown did not oppose the submissions and in fact provided a written submission, in response to the defence application for costs, covering the question of determining the validity of the prosecutions.
The defendants submit that the proceedings were improperly commenced by an officer of the Independent Commission Against Corruption ("ICAC"). It has been submitted that ICAC does not have power under the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"), Criminal Procedure Act 1986 (NSW) ("the Act") or any other legislation to commence proceedings and, therefore, the proceedings were improperly instituted and are a nullity. The defendants seek costs pursuant to s 117 of the Act.
The Crown submits that the commencement of the proceedings by an officer of ICAC is valid and therefore no costs should be made in relation to these matters. The Crown submits that the appropriate procedure for determining the validity of a prosecution is found in Duncan v Demir (2009) 219 A Crim R 1 at [42]: "The informant's authority to prosecute is not an element of the offence being prosecuted. As long as a defendant does not object that an informant's authority has not been proved, the authorisation will be presumed in accordance with the presumption of regularity. If objection is taken, the informant must prove the authorisation on the balance of probabilities in order to establish the validity of the prosecution."

THE COURT ATTENDANCE NOTICES

The Court Attendance Notice ("CAN") against Mr McDonald was issued on 19 November 2014 with a first return date of 18 December 2014. The CAN outlines the details of two counts of the common law offence of misconduct in public office.
The CAN against Mr Maitland was issued on 19 November 2014 with a first return date of 18 December 2014. The CAN outlines the details of the offence as being an accessory before the fact to misconduct in public office.
The details on the CANs indicates that the prosecutor was Senior Investigator Paul Grainger with the organisation being ICAC, Level 7/255 Elizabeth Street, Sydney, Telephone (02) 82815999.
I agree with the submissions on behalf of the defendants that on the face of the CAN, Mr Grainger from ICAC is prosecuting the defendants.

COMMENCEMENT OF PROCEEDINGS

Committal proceedings can be commenced in the Local Court in a number of ways.
Section 48 of the Act allows a police officer or a public officer authorised either by s 14 or under any other law to commence committal proceedings by issuing a CAN: "48 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings, the officer may commence committal proceedings for an offence against a person by issuing a court attendance notice and filing the notice in accordance with this Division."
The words '"under [s] 14 of this Act or under any other law" was inserted into the Act by the Crimes and Courts Legislation Amendment Act 2006 (NSW).
Section 49 of the Act also facilitates the commencement of proceedings by a private person: "49 Commencement of private prosecutions (1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division. (2) A registrar must not sign a court attendance notice if: (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or (c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. (3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person."
The procedure outlined in s 49 of the Act has not been implemented and a registrar of the Local Court has not signed any CAN in relation to these matters. The proceedings have therefore not been commenced pursuant to s 49.
Section 14 of the Act states: "14 Common informer A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons."
As these prosecutions are not in respect of "any offence under an Act", s 14 of the Act does not apply and the Crown has expressly submitted that it does not rely on this section.
There is no dispute that Mr Gardiner is a public officer as defined in the Act and Criminal Procedure Regulation 2010 (NSW) ("the Regulation"). Section 3 of the Act provides the following definition of public officer: "3 Definitions .... public officer means any of the following persons, if acting in an official capacity: ... (f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition."
Section 3(3) of the Act states: "(3) In the absence of evidence to the contrary, a person specified in paragraphs (a)-(f) of the definition of "public officer" who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity."
Section 101(1) of the Regulation states: "101 Public officers (1) For the purposes of paragraph (f) of the definition of public officer in section 3 (1) of the Act, the following bodies are declared to be public bodies: (a) the Independent Commission Against Corruption."
It would follow and I find that the proceedings against both defendants have purportedly been commenced by Mr Gardiner in his capacity as a public officer of a public body acting in an official capacity pursuant to s 48 of the Act.
The Crown submits that, "the general rule is that any member of the public may commence a prosecution for an offence if the breach of the law charged is of a public nature except where a statutory provision limits the power of instituting a charge: Armstrong v Hammond [1958] VR 479 at 480 - 481; Duncan v Demir (2009) A Crim R 1 at [21] - [26]; R v Thompson (1991) 58 A Crim R 81".
In Armstrong v Hammond (supra), the Court stated: "The general rule is that any member of the public may lay an information for an offence if the breach of law charged is of a public nature. The rule is stated thus by Halsbury (3rd ed.) vol 10, p 337: "Generally speaking, any person may lay the information and make the charge before the justice, except where a statutory provision limits the power of making the charge to certain persons, or makes the consent or order of some person a condition precedent to the institution of the proceedings." The same rule applies to the commencement of preliminary proceedings for indictable offences." In the absence of statutory provisions to the contrary any person may of his own initiative, and without any preliminary consent, institute criminal proceedings with a view to an indictment."
The Crown directs the Court's attention to R v Thompson (supra) where the NSW Court of Criminal Appeal stated: "The right of any private person to prosecute a criminal charge is of very long standing in the legal systems of England and New South Wales…This right can only be displaced by clear words in a statute or statutory instrument."
The Crown submits that "any person (including officers of ICAC) would have the power to commence committal proceedings for an offence of misconduct in public office or accessory before the fact to misconduct in public office." This right to prosecute is not questioned in this matter, however the procedure by which the prosecution ought to be commenced has not been complied with and I find therefore that any purported private prosecution is not valid as it fails to comply with the conditions required in s 49 of the Act.
I find that these prosecutions can only be purportedly commenced pursuant to s 48 of the Act.

THE INDEPENDENT COMMISSION AGAINST CORRUPTION ACT 1988 (NSW)

The ICAC Act states the principle objects of it in section 2A: "2A Principal objects of Act The principal objects of this Act are: (a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body: (i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and (ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and (b) to confer on the Commission special powers to inquire into allegations of corruption."
The principle functions of ICAC are contained in s 13 of the ICAC Act.

THE McCLINTOCK REVIEW

Following a review of the ICAC conducted by Mr Bruce McClintock SC in 2005 (the McClintock Review"), a number of amendments were made to the ICAC Act. In the NSW Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2005 at 14133, Mr Frank Sartor stated: "The main changes introduced by the bill are as follows: The bill inserts a new section 2A into the Act to specify the objectives of the Act. These objectives confirm the role of the ICAC as an independent and accountable body established to investigate, expose and prevent corruption involving or affecting public administration."
The ICAC Act does not contain any provisions authorising any person or class of persons to prosecute for offences under that Act.
Section 48 of the Act requires that a person needs to be "authorised" under the Act or under any other law. I find that the use of the word "authorised" denotes an actual positive requirement in order for the provisions of s 48 to be enlivened. As the Crown has expressly indicated, and I find quite properly, that it does not rely on s 14, there must be some actual "authorisation" that the Crown can prove in order for the prosecutions to be valid. I find that the Crown has not satisfied the Court of any such authorisation.
The Crown submits that it was "the intention of Parliament to permit public officers including officers of ICAC to be able to commence committal proceedings by issuing [CANs]".
The intention of Parliament can be gleaned from the Honourable Nick Greiner, Premier, in the NSW Legislative Assembly, Parliamentary Debates (Hansard), 26 May 1988 at 677: 'The proposed Independent Commission Against Corruption will not have power to conduct prosecutions for criminal offences or disciplinary offences, or to take action to dismiss public officials. Where the commission reaches the conclusion that corrupt conduct has occurred, it will forward its conclusion and evidence to the Director of Public Prosecutions, department head, a Minister or whoever is the appropriate person to consider action…..It is important to note that the independent commission will not be engaging in the prosecutorial role. The Director of Public Prosecutions will retain his independence in deciding whether a prosecution should be instituted.'
This intention was confirmed by the Honourable John Dowd, Attorney General, in the NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1990 at 10201: "It is not for the commission to determine criminality. Nor is it the commission's role to conduct prosecutions for criminal or disciplinary offences. The Director of Public Prosecutions and other authorities are charged with that responsibility and the commission should not be able to pre-empt the decisions of those authorities to prosecute or not to prosecute."
I find that the intention of Parliament is quite clearly indicated in the above extract.
In the report, Bruce McClintock SC, Independent Review of the Independent Commission Against Corruption Act 1988, Final Report, (January 2005) at 35 ("the report"), Mr McClintock SC noted, inter alia, the following: "3.4 Criminal prosecutions Introduction 3.4.1 The discharge of ICAC's functions in relation to criminal proceedings has been the subject of criticism in recent years, particularly from the Parliamentary Committee. This criticism has focussed [sic] on the relatively low number of criminal convictions arising from findings of corrupt conduct and the long delay between publication of an ICAC investigation report and the initiation of criminal proceedings. 3.4.2 The Act confers limited powers on ICAC with respect to criminal proceedings, with the specific intention of separating the function of investigation from that of prosecution. ICAC has responsibility for assembling evidence admissible in the prosecution of corruption offences for provision to the Director of Public Prosecutions, although the Act makes it clear that this is not a principal function. 3.4.3 ICAC may make recommendations that consideration be given to the prosecution of particular persons. It is not, however, entitled to make a finding (or form an opinion) that a specified person is guilty of (or has committed) a criminal offence or disciplinary offence. Nor may ICAC recommend (or form an opinion) that a specified person should be prosecuted for a criminal offence. The Act does not confer any function or power on ICAC to initiate or conduct criminal prosecutions. 3.4.4 The separation of the function of prosecution from that of investigation was an important consideration for the then Government in establishing ICAC: 'The proposed Independent Commission Against Corruption will not have power to conduct prosecutions for criminal offences or disciplinary offences, or to take action to dismiss public officials. Where the commission reaches the conclusion that corrupt conduct has occurred, it will forward its conclusion and evidence to the Director of Public Prosecutions, department head, a Minister or whoever is the appropriate person to consider action…..It is important to note that the independent commission will not be engaging in the prosecutorial role. The Director of Public Prosecutions will retain his independence in deciding whether a prosecution should be instituted.' 3.4.5 When amending the Act to clarify the power of ICAC to make findings of corrupt conduct following the High Court's decision in Balog v ICAC (1990) 169 CLR 625 the then Government again emphasised ICAC's limited role in relation to criminal proceedings: 'It is not for the commission to determine criminality. Nor is it the commission's role to conduct prosecutions for criminal or disciplinary offences. The Director of Public Prosecutions and other authorities are charged with that responsibility and the commission should not be able to pre-empt the decisions of those authorities to prosecute or not to prosecute.'" [Emphasis added].
As a result of the McClintock Review, a number of amendments to the ICAC Act were recommended in the report. One important recommendation was that "the [ICAC] Act should be amended to authorise ICAC, after considering the advice of the [Director of Public Prosecutions], to institute criminal proceedings arising from its investigations": at 37 of the report. This recommendation was not adopted and the ICAC Act was not amended accordingly.
There were amendments to the ICAC Act following the McClintock Review and in particular, ss 13(5) and 74A(2) were included. Section 13(5) provides examples where ICAC is permitted to make findings and form opinions. The examples are not exhaustive. Section 13(5) states: "13 Principal functions ... (5) The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission's power to make findings and form opinions: (a) findings that particular persons have engaged, are engaged or are about to engage in corrupt conduct, (b) opinions as to: (i) whether the advice of the Director of Public Prosecutions should be sought in relation to the commencement of proceedings against particular persons for criminal offences against laws of the State, or (ii) whether consideration should or should not be given to the taking of other action against particular persons, (c) findings of fact."
Section 74A was amended to read: "74A Content of reports to Parliament (1) The Commission is authorised to include in a report under section 74: (a) statements as to any of its findings, opinions and recommendations, and (b) statements as to the Commission's reasons for any of its findings, opinions and recommendations. (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) obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence, (b) the taking of action against the person for a specified disciplinary offence, (c) the taking of action against the person as a public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official. ..."
The Crown submits that these amendments allow ICAC to express opinions in reports that advice should be sought from the Director of Public Prosecutions ("DPP" or the "Director") in relation to the commencement of proceedings and therefore this empowers and authorises an ICAC officer to commence proceedings.
I do not accept this submission. I find that the amendments above merely expand upon and provide examples of matters that may be subject of reports. The amendments are silent on authority or power to prosecute matters.
At the time of the McClintock Review, there appears to have been an obvious anomaly in the practice between ICAC and the DPP. According to the McClintock Review, the then Director described his role in relation to ICAC in the following terms at 36 of the report: "The Office of the DPP provides advice on the appropriate charges to lay and whether a prosecution has reasonable prospects. It conducts the prosecution. However, it does not lay charges. It is ICAC's decision to lay charges or not. The Office of the DPP does not investigate any matters. Where the brief of evidence is considered deficient, requisitions are sent to ICAC for more information."
Whilst it may have been the practice at that time, it does not affect the legislation or the legislative intent concerning prosecutions.

CONCLUSION

I find that the purported prosecutions were invalid as there was no authority for the CANs to be issued. There is therefore nothing before this Court to be withdrawn or dismissed.
As there is no valid information or matter before the Court, there is no basis or jurisdiction for making a costs order pursuant to ss 117(1)(b) or (d) of the Act as submitted on behalf of the defendants.
The papers will be marked 'No jurisdiction'. Magistrate G Grogin Local Court of NSW ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2015

Crimes and Courts Legislation Amendment Act 2006(NSW)

Criminal Procedure Regulation 2010(NSW)

("the ICAC Act"), Criminal Procedure Act 1986(NSW)

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