Criminal Justice Act, Re [1993] QSC 286 [1994] 2 Qd R 581

/ \ . 'j TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) \ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J os No 68 of 1993 REVISED COPiES ISSUED State Reporting Bureau I . I Date ~ 71 3 RE: AN APPLICATION UNDER THE CRIMINAL JUSTICE ACT BRISBANE •• DATE 17/09/93 JUDGMENT A.a.f .. rf--- ~...... 7 ---·· r ......... ~ ... r----- r"'L.... ... -.a. n--~-'- -- - """ .,.,...,. ,_ • • -- 1 of 7 -- 170993 HIS HONOUR: This is an application under the Criminal Justice Act by a serving police officer who is under investigation by the Criminal Justice Commission in respect of a possible offence consisting of stealing a quantity of tools taken by the police in the course of an investigation of another offence. The applicant has been notified of the investigation by the Criminal Justice Commission which proposes to interrogate his son and daughter-in-law who are the occupiers of the premises where the relevant tools were found, those premises being immediately contiguous to the premises of the applicant. The applicant sought to be present by himself and with counsel and solicitor at the hearing of the interrogation of his son and daughter-in-law, but the Commission representative conducting the investigation denied permission for the presence of any of those persons. The applicant then seeks a direction by this Court to the Commission requiring it to permit him to be present at that interrogation and to be represented by counsel and solicitor. Section 3.23 of the Criminal Justice Act 1989 provides: "(1) In any proceedings of the Commission a person concerned therein may appear in person or by counsel or solicitor, or by an agent approved by the Commission." Subsection 2 of that same section regulates the way in which 2 JUDGMENT --~ -~-- ---- --~-- -- 2 of 7 -- ( ( \ ( ( / 170993 that representation may act, such as by examination, cross-examination, etcetera. It has been held in Re Whiting 1993 QLR 4 September 1993 that the right of a person to be represented by counsel and solicitor is subject to implied . restrictions contained in the general purpose of the Act, that is, for example, restriction on the conduct or activity of a person which would make it difficult for the Commission to carry out investigations which are required of it. In the particular circumstances discussed in Whiting the matter in issue was the representation of the "person concerned" and other possible witnesses by the same counsel and solicitor. It was held that the Commission's performance of its functions in accordance with the general provisions of the Act and its purpose provided a limitation to the otherwise unlimited terms of section 3.23, notwithstanding that the section had no express limitation contained in it. The circumstances of the present case are not identical to those in Whiting in the sense that what was dealt with there was a procedural matter, but the principle established still went to the issue of the Commission's proper performance of its functions as provided for generally by the Act. In the present case it is not a question as to whether the applicant is entitled to be represented by counsel or 3 JUDGMENT -- 3 of 7 -- 170993 solicitor. That is fully conceded by the Commission. The real question is whether any of them should be entitled to be present at what is described as a closed session of the Commission; that is, a session where everyone is excluded during the interrogation of a witness. The purpose behind this closed session is to exclude other persons, including a concerned person, so that the Commission may properly perform its function of investigation. That function would be seriously impaired in a number of cases if it were carried out with the person concerned standing, as it were, at the elbow of the investigator during the entire investigation, hearing all aspects of the investigation as it proceeded and thereby being well armed to frustrate it. Such an inhibition to the investigation has been referred to by the High Court in National Companies and Securities Commission y. The News Corporation Limited ( 1984) 156 CLR 296 at pp 323-324, where the Court held that such an inhibition to the investigation was a good reason for the implication of a power of the investigator to exclude the party under investigation at that time in order to perform its investigatory powers satisfactorily. Accordingly, it held that the interference with the natural rights of the person under investigation was justified by the statutory powers provided by the Act then invoked. See also: Corporation Limited & ors y. National Companies and Securities Commission (1984) 57 ALR 550 at 564-566. It will be seen that the question is not whether the party 4 JUDGMENT -- 4 of 7 -- 170993 should be represented by counsel or solicitor, but whether the applicant is entitled to be present at all, whether by himself or through some representative, and on the authorities the answer is clearly in the negative. The reason is that the exclusion is justified by the general purpose of the Act and the power of investigation reposed by it in the Commission. Consequently, the broad terms in section 3.23 of the right / ( to representation does not assist the applicant at all and is really not relevant to the issues here, and the application must be dismissed because nothing has been demonstrated to be wrong by the proposed action of the Commission's representative. However, it must be added that this conclusion is based upon the assumption that in the course of time the applicant will be informed fully of any proposed adverse report which the Commission may consider making, and of the details of it to such an extent that he will know the evidence that has been received; and that he will have the right to test all such evidence that may be relevant to the conclusion that would lead the Commission to make such an adverse report. That general observation may be subject to qualification if it were to be demonstrated that in some way the broad expression of it would interfere with the performance of the Commission in a way contrary to the purpose of the Act. It is impossible, of course, to define with precision all such 5 JUDGMENT -- 5 of 7 -- I ---- 170993 circumstances. It is also impossible to state the obligations of the Commission in strict terms as to what must be done in every case. It is possible, however, to state generally that the principles of natural justice rema~n of great importance and should be observed. While these may give way where the purpose of the Statute requires it, however, the extent to which they are to be interfered with should be limited to (\----.,. '·"~ that which is necessary to enable the purpose of the Act to be met. So where it is no longer necessary to interfere with such rights, they should be restored. For example, his exclusion from the interrogation of a particular party may be necessary to permit the Commission to carry out its investigations properly; but once that reason ceases to exist then his rights to natural justice (''~. ··~ should be restored to permit him to have the opportunity of knowing and meeting and testing any such evidence that may have been received by the Commission during the time of his exclusion. Of ·course, once again this general expression of the appropriate conduct of the matter is always subject to any qualification that may arise from the principle that has been stated above. In the result, the application is dismissed with costs. 6 JUDGMENT -- 6 of 7 -- 170993 HIS HONOUR: I order that there be non-publication of details of this matter such as may identify in any way the applicant. I will make an order that until further order the material filed in respect of this application be placed in a sealed envelope but not the judgment. 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