Supreme CourtNew South Wales
- Medium Neutral Citation
- Kazal v Independent Commission Against Corruption [2013] NSWSC 53
- Hearing Dates
- 5 February 2013
- Decision Date
- 07/02/2013
- Jurisdiction
- Common Law
- Before
- Harrison J
- Decision
- Summons dismissed with costs
- Catchwords
- ADMINISTRATIVE LAW - Independent Commission Against Corruption - finding of corrupt conduct - Independent Commission Against Corruption Act 1988 s 9(1)(a) - "could constitute or involve...a criminal offence" - whether necessary for Commission to be satisfied of facts to the criminal standard - whether necessary for Commission to make findings based only upon evidence admissible at a criminal trial
- Legislation Cited
- Crimes Act 1900
Independent Commission Against Corruption Act 1988 - Cases Cited
- Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 - Category
- Principal judgment
- Parties
- Charif Kazal (Plaintiff)
Independent Commission Against Corruption (Defendant) - Representation
- Solicitors:
Mitry Lawyers (Plaintiff)
Crown Solicitor (Defendant)
Counsel:
R F Sutherland SC and M Castle (Plaintiff)
T Alexis SC and A Mitchelmore (Defendant) - File Number(s)
- 2012/95312
JUDGMENT
1HIS HONOUR: By his summons filed on 26 March 2012, Charif Kazal originally sought the following orders:
1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid or unlawful the report of the defendant, made in December 2011 purportedly pursuant to section 74 of the Independent Commission Against Corruption Act1988 styled "Investigation into the Undisclosed Conflict of Interest of A Senior Executive of the Sydney Harbour Foreshore Authority".
2. A declaration that the report was made without jurisdiction or in excess of jurisdiction and was a nullity.
3. A declaration that on the facts as found in the report the determinations or findings were wrong in law.
4. An order in the nature of prohibition or, alternatively, an injunction preventing the defendant or any of its officers, servants or agents from acting on or taking any further step in reliance upon the report.
2By the time that this matter came before me for hearing, Mr Kazal had abandoned the first and fourth prayers for relief sought in his summons. Only the second and third prayers for relief were pressed.
3Mr Kazal claims that he is entitled to this relief because he contends that the Commission's report delivered to the NSW Parliament in December 2011 purportedly pursuant to s 74 of the Independent Commission Against Corruption Act 1988 contains a number of jurisdictional errors or errors of law on the face of the record. Alternatively, Mr Kazal says that the Commission constructively failed to exercise its statutory power in making the report. He also says that the Commission made a number of errors in its reasons for decision and in the findings that it made. These are all referred to below in more detail.
Background
4The Commission's report was prepared following an investigation into allegations against Mr Kazal and Mr Andrew Kelly, who was a senior executive of the Sydney Harbour Foreshore Authority. At the relevant time, the authority owned a number of commercial properties at The Rocks in Sydney that it had leased to Mr Kazal or interests with which he was connected.
5An allegation was made against Mr Kazal that he had sought improperly to influence the exercise of Mr Kelly's official functions by holding out the prospect that he would be involved with Mr Kazal and members of his family in a private business in the United Arab Emirates and by paying Mr Kelly's expenses associated with a trip to that country in May 2007, intending thereby to influence him to act in a manner favourable to Mr Kazal and the businesses conducted at The Rocks.
6Following an investigation, the Commission found that Mr Kazal had engaged in "corrupt conduct" within the meaning of that expression as used in ss 8 and 9 of the ICAC Act. In making that finding, the Commission was satisfied that Mr Kazal's conduct met the elements of the offence of offering a corrupt commission or reward to be found in s 249B(2)(b) of the Crimes Act 1900.
7The terms of the finding about which Mr Kazal complains are as follows:
"In holding out the prospect of employment in the UAE to Mr Kelly and paying him $11,170 for his May 2007 flight and accommodation expenses, with the intention that these would tend to influence Mr Kelly to exercise his official SHFA functions in a manner favourable to Kazal business interests, Charif Kazal's conduct is corrupt. This is because such conduct could adversely affect, either directly or indirectly, Mr Kelly's impartial exercise of his official functions (in his dealings with Kazal tenancy matters) and therefore come within section 8(1)(a) of the ICAC Act. His conduct falls within section 9(1)(a) of the ICAC Act because it could constitute or involve an offence under section 249B(2)(b) of the Crimes Act of corruptly giving an agent (Mr Kelly) a reward, the receipt or expectation of which would tend to influence the agent to show favour to any person in relation to the affairs or business of the agent's principal (the SHFA)."
8In relation to the requirement contained in s 74A(2) of the ICAC Act, the report said this:
"The Commission is not of the opinion that consideration should be given to obtaining the advice of the DPP with respect to the prosecution of Charif Kazal for an offence under s 249B(2)(b) of the Crimes Act. This is because the Commission does not consider there is sufficient admissible evidence to make out the elements of the offence."
9In summary Mr Kazal contended in these circumstances, when the Commission's findings are examined, together with that s 74A(2) statement, that the Commission's finding of corrupt conduct against him was made on a basis that was not available under the ICAC Act. It was therefore made either without jurisdiction or in excess of jurisdiction. Mr Kazal's central complaint is that the Commission erred in applying the civil standard of proof and relied upon evidence that would not be admissible in a criminal trial. Mr Kazal contends that in doing so the Commission made a finding that he was engaged in corrupt conduct when the evidence before it could not support a prima facie case in any criminal prosecution under s 249B(2)(b) of the Crimes Act.
Legislation
10At least the following provisions of the Act should be noted:
"7 Corrupt conduct
(1) For the purposes of this Act, corrupt conduct is any conduct which falls within the description of corrupt conduct in either or both of subsections (1) and (2) of section 8, but which is not excluded by section 9.
(2) Conduct comprising a conspiracy or attempt to commit or engage in conduct that would be corrupt conduct under section 8 (1) or (2) shall itself be regarded as corrupt conduct under section 8 (1) or (2).
(3) Conduct comprising such a conspiracy or attempt is not excluded by section 9 if, had the conspiracy or attempt been brought to fruition in further conduct, the further conduct could constitute or involve an offence or grounds referred to in that section.
8 General nature of corrupt conduct
(1) Corrupt conduct is:
(a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or
(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or
(c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or
(d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.
(2)...
9 Limitation on nature of corrupt conduct
(1) Despite section 8, conduct does not amount to corrupt conduct unless it could constitute or involve:
(a) a criminal offence, or
(b) a disciplinary offence, or
(c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official, or
(d) in the case of conduct of a Minister of the Crown or a member of a House of Parliament - a substantial breach of an applicable code of conduct.
(2) It does not matter that proceedings or action for such an offence can no longer be brought or continued, or that action for such dismissal, dispensing or other termination can no longer be taken.
(3)...
13 Principal functions
(1) The principal functions of the Commission are as follows:
(a) to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that:
(i) corrupt conduct, or
(ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or
(iii) conduct connected with corrupt conduct,
may have occurred, may be occurring or may be about to occur,
(b) ...
(2) The Commission is to conduct its investigations with a view to determining:
(a) whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has occurred, is occurring or is about to occur, and
(b) ...
(2A) Subsection (2) (a) does not require the Commission to make a finding, on the basis of any investigation, that corrupt conduct, or other conduct, has occurred, is occurring or is about to occur.
(3) The principal functions of the Commission also include:
(a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and
(b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.
(3A) The Commission may make a finding that a person has engaged or is engaging in corrupt conduct of a kind described in paragraph (a), (b), (c) or (d) of section 9 (1) only if satisfied that a person has engaged in or is engaging in conduct that constitutes or involves an offence or thing of the kind described in that paragraph.
(4) The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B (Report not to include findings etc of guilt or recommending prosecution) prevents the Commission from including in a report, but section 9 (5) and this section are the only restrictions imposed by this Act on the Commission's powers under subsection (3).
(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.
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.
(3) An "affected" person is a person described as such in the reference made by both Houses of Parliament or against whom, in the Commission's opinion, substantial allegations have been made in the course of or in connection with the investigation concerned.
(4) Subsection (2) does not limit the kinds of statement that a report can contain concerning any such "affected" person and does not prevent a report from containing a statement described in that subsection in respect of any other person."
11The relevant provision of the Crimes Act is in these terms:
"249B Corrupt commissions or rewards
(1) ...
(2) If any person corruptly gives or offers to give to any agent, or to any other person with the consent or at the request of any agent, any benefit:
(a) as an inducement or reward for or otherwise on account of the agent's:
(i) doing or not doing something, or having done or not having done something, or
(ii) showing or not showing, or having shown or not having shown, favour or disfavour to any person,
in relation to the affairs or business of the agent's principal, or
(b) the receipt or any expectation of which would in any way tend to influence the agent to show, or not to show, favour or disfavour to any person in relation to the affairs or business of the agent's principal,
the firstmentioned person is liable to imprisonment for 7 years.
(3)..."
Mr Kazal's submissions
12Mr Kazal referred to what is said generally in the report concerning corrupt conduct. It is in these relevant terms:
"Three steps are involved in determining whether or not corrupt conduct has occurred in a particular matter. The first step is to make findings of relevant facts. In making findings of fact, the Commission applies the civil standard of proof of reasonable satisfaction, taking into account the decisions in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and Neat Holdings Pty Ltd v Karajab Holdings (1992) 67 ALJR 170 at 171.
The second step is to determine whether the conduct, which has been found as a matter of fact, comes within the terms of sections 8(1) and 8(2) of the ICAC Act. The third step is to determine whether the conduct also satisfies the requirements of section 9 of the ICAC Act."
13Mr Kazal presumably raised no fundamental concern about the correctness of that formulation in cases where s 9(1)(a) of the ICAC Act was not involved. However, he contended that the Commission was required to adopt a different formulation when it was, and had accordingly committed a series of errors in making its ultimate determination of corrupt conduct against him in the present circumstances.
14First, the Commission noted that in its fact-finding process it was only required to find facts in accordance with the civil standard of proof. Mr Kazal submitted that because the Commission proceeded to consider whether the conduct found by it on the civil standard was not excluded by s 9 of the ICAC Act, it had to consider its findings in the criminal context. This was said to be for the reason that the Commission's basis for finding that the conduct was not excluded by s 9 was that it could constitute or involve a criminal offence.
15In this respect Mr Kazal contended that the Commission had to consider s 9 separately in the context of the criminal charge under s 249B(2)(b). It was therefore incumbent upon it to consider not simply what findings of fact were capable of being made on the civil standard but also whether they were capable of being made to the criminal standard. Mr Kazal submitted that the Commission was required to isolate the primary facts capable of supporting inferences that were essential to found a successful prosecution under that section as well as the admissible evidence that could prove those facts to the criminal standard.
16Secondly, Mr Kazal characterised the report and the Commission's determination as "illogical and self-contradictory". Mr Kazal relied in this respect upon the finding of corrupt conduct pursuant to s 8 and the finding that Mr Kazal's conduct was not excluded by s 9 because the same conduct constituted or involved a specified criminal offence. That is to be compared with the Commission's statement pursuant to s 74A(2) of the ICAC Act that there was insufficient admissible evidence to make out the elements of the offence. Mr Kazal contended that that portion of the s 74A(2) statement was itself sufficient to compel a finding that the s 8 corrupt conduct was released by the limitations in s 9(1)(a). In other words, if the very charge that the Commission nominated as the basis for satisfying the section was not capable of being made out, then as a matter of law, and by the operation of the ICAC Act itself, it must be excluded. Mr Kazal submitted "it would be offensive to the scheme of the Act to suggest otherwise."
17Thirdly, and it would seem principally, Mr Kazal contended that the Commission erred by failing to apply the correct test for the operation of s 9. His reasoning was as follows.
18Once the Commission has nominated s 9(1)(a) as the basis upon which to make a finding of corrupt conduct, it was "absolutely critical" for the Commission to apply the correct interpretation of the word "could" as it appears there. According to Mr Kazal, the Commission did not comply with the interpretation of that word given to it in Greiner v Independent Commission Against Corruption(1992) 28 NSWLR 125. Following Greiner, "could" has a particular legal meaning in this context. Mr Kazal submitted that the Commission adopted an idiosyncratic meaning of the word "could" in relation to the s 249B(2)(b) offence. It was Mr Kazal's position that, in effect, a proper use and application of the word "could" highlighted the contradiction between the Commission's finding that Mr Kazal's conduct could constitute or involve a criminal offence and the recommendation that the matter would not be referred to the DPP as there was insufficient evidence to make out a prima facie case for the nominated charge.
19Mr Kazal submitted that it was clear that Greiner stood for the proposition that where a criminal offence is nominated as the basis for corrupt conduct then the meaning of the phrase "could constitute...a criminal offence" in s 9(1) means "would, if proved". That meant that the Commission was required to point to an identifiable basis for saying that a criminal charge under s 249B(2)(b) was capable of being successfully prosecuted. According to this submission, that included pointing to the admissible evidence upon the basis of which a properly instructed jury could find the offence proved beyond reasonable doubt. That requirement necessarily presupposed the existence of such admissible evidence. According to Mr Kazal's submission, if there is no such evidence then s 9(1)(a) is not excluded and there cannot be a finding of corrupt conduct within the terms of the ICAC Act.
20It followed as part of Mr Kazal's submissions in this respect that he contended that the s 249B(2)(b) charge faced "insurmountable problems" and could never be substantiated. The reasons for this included the following matters.
21First, there was no evidence from any witness before the Commission that Mr Kazal ever offered or held out an offer of employment to Mr Kelly in the United Arab Emirates. Mr Kelly's evidence was that the offer to go there came from a Mr David. The prosecution would therefore be obliged to call Mr Kelly in its own case. Secondly, Mr Kazal gave evidence that the proponent of the trip to the United Arab Emirates was Mr David. Thirdly, no witness gave evidence that Mr Kazal made the payment of the $11,170 for the flight and accommodation costs to Mr Kelly. Mr David's evidence was that he paid that sum to Mr Kelly. Fourthly, the Commission made his finding upon the basis that Mr Kazal had a motive to invite Mr Kelly to join a business venture in the United Arab Emirates. That was against the background of a ruling by the Commission preventing Mr Kazal's counsel from questioning Mr David in an attempt to establish that Mr David had a significant motive himself for inviting Mr Kelly and for secretly paying his expenses. No similar restriction would apply in criminal proceedings concerned with a charge under s 249B(2)(b).
22Mr Kazal therefore submitted that there never was, and there never could be, any prospect at any level of persuasion of a successful criminal prosecution against Mr Kazal with respect to a charge brought pursuant to s 249B(2)(b) of the Crimes Act.
Consideration
23Mr Kazal's principal proposition is that the Commission acted without jurisdiction, or exceeded its jurisdiction, having regard to the terms of the enabling Act. It is plain that the ICAC Act confers powers upon the Commission with respect to the making of findings of corrupt conduct. It is no part of the Commission's role or function to determine the guilt or innocence of any person with respect to any criminal charges or to make final, conclusive or indeed any findings concerning the commission of any criminal offence in accordance with the criminal standard.
24The principal objects of the ICAC Act describe the Commission as "an independent and accountable body" with functions, among others, to "investigate, expose and prevent corruption involving or affecting public authorities and public officials". The importance of the Commission's investigative role is reflected in the terms of s 13 of the Act. In that setting, the Act confers "far-reaching" powers on the Commission: Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 629. They include the power compulsorily to obtain information and documents and the power to enter premises. It has the power to conduct compulsory examinations of witnesses in public or in private and to summon witnesses to appear and give evidence and produce documents.
25Even though some of the Commission's powers are analogous to those exercised by courts, the Commission is possessed of an investigative role with fewer constraints than ordinarily attend the conduct of court proceedings. For example, the Commission is not bound by the rules or practice of evidence and can inform itself in such manner as it considers appropriate: compare Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [15]. The Commission shall exercise its functions with as little formality and technicality as possible, with compulsory examinations and public inquiries de-emphasising the adversarial approach. The Act contains a statutory abrogation of the privilege against self-incrimination and other grounds of privilege that might otherwise be claimed by witnesses giving evidence to the Commission.
26The existence and scope of these extra powers demonstrate that the legislature did not intend to constrain the Commission by reference to the rules and procedures that apply in courts. The absence of those constraints is consistent with the Commission's role as "primarily an investigative body and not a body the purpose of which is to make determinations...as part of the criminal process":Balog at 633. It is also consistent with that role that the Act makes provision to ensure that the conduct or outcome of its investigations should not bind or otherwise prejudice subsequent legal proceedings. See in this respect ss 13(3) and (5)(c), 74A(1) and 74B(1)(a) and (b).
27Importantly, in considering the matters covered by s 74A(2), the Commission must bear in mind the directive in s 37(3) that any answer made or document produced to the Commission in the context of a compulsory examination or public inquiry is not admissible in evidence against the person "in any civil or criminal proceedings or in any disciplinary proceedings", subject to s 37(4). Section 37(3) of the ICAC Act, is in these terms:
"37 Privilege as regards answers, documents etc
(1)...
(3) An answer made, or document or other thing produced, by a witness at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by the Commissioner under section 35 (4A) is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings."
28Moreover, s 74B(2) provides that a finding or opinion that a person has engaged in corrupt conduct "is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence." Section 74B(3) confirms that "criminal offence" has the same meaning as in s 9. Section 74B is as follows:
"74B Report not to include findings etc of guilt or recommending prosecution
(1) The Commission is not authorised to include in a report under section 74 a statement as to:
(a) a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or
(b) a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).
(2) A finding or opinion that a person has engaged, is engaging or is about to engage:
(a) in corrupt conduct (whether or not specified corrupt conduct), or
(b) in specified conduct (being conduct that constitutes or involves or could constitute or involve corrupt conduct),
is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence.
(3) In this section and section 74A, 'criminal offence' and 'disciplinary offence' have the same meanings as in section 9."
29The Commission's task is to make findings in respect of allegations of corrupt conduct, as defined in s 7, on the balance of probabilities and subject to its satisfaction of the matters in s 13(3A). The Commission takes into account the seriousness of a finding of corrupt conduct when considering whether the standard of proof has been met in any given case. The Commission is not required to make and cannot make a finding of criminal guilt in respect of offences or breaches of legislative provisions that may form the basis of a finding of corrupt conduct. That function is expressly reserved to the courts dealing with prosecutions that may be mounted by others.
30Consistently with the decision in Greiner, s 9(1)(a) requires an objective determination as to whether, on the primary findings of fact, if there were evidence of those facts before a properly instructed jury, it could reasonably find that a criminal offence had been committed. Gleeson CJ in Greiner at 136 said this:
"It was common ground in these proceedings that, in determining whether conduct could constitute or involve a criminal offence, the Commissioner would be required to go through the following process of reasoning. First, he would be required to make his findings of fact. Then, he would be required to ask himself whether, if there were evidence of those facts before a properly instructed jury, such a jury could reasonably conclude that a criminal offence had been committed. (It is not necessary for present purposes to examine what happens in a case where the Commissioner's findings depend in a significant degree upon evidence that would be inadmissible at a criminal trial.)"
31That formulation does not, however, import into the Commission's fact-finding process the principles of fact finding that are inherent in a criminal trial. The Commission is instead required to consider the question posed above upon the facts it has found, not as they would have to be found before there could be a successful criminal prosecution. Priestley JA said this at 186-7:
"Despite section 8, conduct does not amount to corrupt conduct unless, in the case of a criminal charge which could be tried before a jury, the facts found by the Commission as constituting corrupt conduct, would if the jury were to accept them as proved beyond reasonable doubt, constitute the offence charged, and unless, in the case of a criminal offence which would be decided by a judicial officer sitting alone, the facts found by the Commission as constituting corrupt conduct would, if the judicial officer were to accept them as proved beyond reasonable doubt, constitute the offence charged."
32Mr Kazal's submission that s 9(1)(a) of the ICAC Act required the Commission to consider whether its findings were capable on admissible evidence of being made to the criminal standard is based upon a misreading of the section and the decision in Greiner. Section 9(1)(a) does not require the Commission to point to an identifiable basis for saying that a charge under s 249B(2)(b) would successfully be made out or established in a criminal trial if prosecuted. The reference in s 9(1)(a) to criminal conduct is in my opinion merely descriptive, not determinative or adjudicative. Far from only placing emphasis upon the word "could" as it appears in s 9(1), it seems to me to be equally instructive and also necessary to emphasise the words "constitute or involve", which complete the phrase.
33The parliament has adopted a series of formulations in s 9(1), one of which incorporates the words "a criminal offence", partly by reference to which the availability of a finding of corrupt conduct is to be assessed. This formulation describes the possible or hypothetical ("could") nature of the conduct ("a criminal offence") without the need to make any determination or adjudication upon whether it has been committed or will in the execution of the criminal process be found to have been committed. The section makes it clear that the Commission is not empowered to make a finding of corrupt conduct unless, whatever else it may have determined, one at least of the s 9(1) qualifications also applies. The Commission has a discrete role in this respect, relevantly to make or decline to make a finding of corrupt conduct in accordance with the formula for which ss 7, 8 and 9 of the ICAC Act provide. As a matter of construction, the words "unless it could constitute or involve...a criminal offence" are wholly different from words such as "unless a criminal offence has thereby been successfully prosecuted", or some equivalent formulation. Mr Kazal's argument depends upon some such construction being accepted. In my view, such a construction is not available.
34Mr Kazal's submissions include the contention that the phrase "could constitute...a criminal offence" in s 9(1)(a) means, "would, if proved". That submission has to be treated with some caution. It is instructive in this regard to recall the words of Gleeson CJ inGreiner at 129-30 as follows:
"...the Commission is not a court, but an administrative body that performs investigative functions and, in certain circumstances, makes reports. Clearly, its determinations can have devastating consequences for individuals... Yet there is no right of appeal against, or procedure for any general review of the merits of, such a finding. Indeed, a determination of corrupt conduct might be based upon the commission of an alleged crime, and might be followed by a trial of the individual involved, and an acquittal. That could happen for any one of a number of reasons. It could be simply because a jury believed a witness whom the Commission disbelieved, or vice-versa. Even so, the finding of corruption would stand."
35Mahoney JA said this at 168:
"Therefore s 9 may be satisfied, not merely by what is the fact, but according to what, in the sense to which I have referred, 'could' be the fact. On the literal reading of the Act, this gives an extraordinary width to the operation of s 9 and accordingly to the conduct which may fall within it. The facts as found by the Commission may be such that the Commission is of opinion that, judged according to the balance of probabilities, it would not be satisfied that the conduct would be reasonable grounds for dismissal or the like. But if, despite this, the conduct 'could' be such, then the Commission (special cases apart) must report that the conduct is 'corrupt conduct'."
36This also accords with the manner in which Priestley JA dealt with the expression in Greiner at 186 as follows:
"The meaning of 'could', at least in its relation to par (a) of s 9(1), must be sought in light of the relevance of this example. It seems to me that by far the most likely meaning of 'could', so far as this example is concerned, is 'would, if the facts were found proved at a trial'. If that is right, then the same meaning would fit the other possibilities equally well...".
37The expression "would, if proved" does not therefore mean "would when proved" or "would if and only if capable of proof". It seems clear from the words used by their Honours in Greiner at least that the relevant provision contemplates the outcome of purely hypothetical or notional, but not actual, criminal proceedings. Such proceedings may or may not be taken in the events as they ultimately occur. Whether or not such proceedings are taken, or the result of such proceedings if they are, is wholly beside the point. So much is clear, if it is not otherwise, from what was also said in Greiner by Priestley JA at 185:
"If the report contains a statement that the Commission is of the opinion that consideration should be given to prosecution or action as the case may be, then either the prosecution will be begun or action taken (by some authority or person other than the Commissioner) or not. If the opinion is that no consideration should be given to prosecution or action, prosecution or action may nevertheless still be begun or taken by an appropriate person."
38As appears from what I have set forth earlier, the Commission in this case was of the opinion that there was insufficient admissible evidence to make out the elements of the s 249B(2)(b) offence. Upon that basis Mr Kazal also reasoned that there was therefore an internal tension or contradiction in the Commission's report that invalidated the finding of corrupt conduct. He submitted that the s 74A(2) statement was irreconcilable with the Commission's finding of corrupt conduct and that the two could not continue to stand together.
39That contention is wrong in my opinion. To start with it is not in accordance with what was said in Greiner in the passages to which I have referred. Moreover, it fails to take account of s 37(3).
40It is not beyond contemplation, by way of example, that the Commission might in a particular case conduct an investigation into allegations of corrupt conduct upon the basis of evidence that would be completely inadmissible in criminal proceedings. There is no provision in the ICAC Act, nor is there any obvious inference available from the scheme of the Act, that in such a case the Commission would be obliged or required immediately to abandon any further examination of the corrupt conduct equation contemplated by ss 7, 8 and 9. The validity of the Commission's finding of corrupt conduct based on s 9(1)(a) is not tied to the certainty of a criminal conviction. The effect of Mr Kazal's submission would appear to be that in proceeding to a finding of corrupt conduct in this case the Commission was not entitled to rely upon evidence that would be inadmissible in a criminal trial. The authorities do not support that proposition and I am unable to accept the burden of Mr Kazal's submission that they do. As I have attempted to demonstrate, s 9(1)(a) is concerned with the description or characterisation of particular conduct as conduct possibly constituting or involving a criminal offence, not with the different question of whether or not that conduct ultimately will or might lead to the successful prosecution of someone for that offence.
41One final matter should be mentioned. Although not covered by Mr Kazal's written submissions, Mr Sutherland SC sought at the hearing to advance an argument based on s 9(2) of the ICAC Act. His contention was to the effect that s 9(2) contained the only limitation upon his principal argument, that the prospect of a successful prosecution of the criminal offence nominated by the Commission for the purposes of s 9(1)(a) was a necessary precondition to the finding of corrupt conduct. Because the parliament expressly discounted any impediment based upon the fact that the relevant proceedings could no longer be brought or continued, it had impliedly affirmed the continued significance and relevance of anything else that it had not specifically mentioned.
42The expression of one thing may well operate in some cases to the exclusion of another or others. In the context of the interpretation of a statute, as here, the approach is arguably often helpful in circumstances where the statute is ambiguous or vague. The difficulty as I see it in the present case however is that the statute is neither. The force of the reasons that led me to the conclusions I have otherwise reached does not easily yield to the inference that Mr Kazal seeks to draw from the specific matters referred to in s 9(2). The countervailing inferences flowing from the scheme of the Act, and the particular provisions of it to which I have referred, are such that Mr Kazal's argument based on s 9(2) cannot succeed.
43In relying upon the material before it and applying the civil standard to its findings, the Commission made no error and did not exceed its jurisdiction. I should observe that Mr Kazal quite properly recognised and accepted that this Court cannot revisit the findings of fact made by the Commission and did not ask me to do so.
Orders
44Mr Kazal's summons should be dismissed with costs.
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