NSW Crime Commission v Police Integrity Commission [2011] NSWSC 55

Supreme Court New South Wales

Medium Neutral Citation: NSW Crime Commission v Police Integrity Commission [2011] NSWSC 55 Hearing dates: 18 February 2011 Decision date: 18 February 2011 Jurisdiction: Common Law Before: Schmidt J Decision: Catchwords: INJUNCTION - interlocutory orders sought in relation to an investigation by Police Integrity Commission - question as to whether ongoing hearings should be conducted in public - s 23 of the Police Integrity Commission Act 1999 - whether investigation of NSW Crime Commission beyond power - serious question to be tried - construction of Police Integrity Commission Act - primae facie case - orders Legislation Cited: Police Integrity Commission Act 1999 Category: Separate question Parties: NSW Crime Commission (Plaintiff) Police Integrity Commission (Defendant) Representation: Counsel:Mr I Temby AO QC (Plaintiff) Solicitors: IV Knight, Crown Solicitor (Plaintiff) Ms M O'Brien, Police Integrity Commission (Defendant) File Number(s): 2011/54085

Judgment 1 By summons filed today the New South Wales Crime Commission ('NSWCC') seeks orders in relation to an investigation being conducted by the Police Integrity Commission ('PIC'). This afternoon I heard the parties as to two orders sought on an interlocutory basis, by way of motion. The motion was supported by an affidavit sworn by Ms Rebecca Graham of the Crown Solicitor's office. 2 In evidence is various transcript of the PIC proceedings, submissions by counsel assisting and correspondence between the parties. 3 The NSWCC supported the application on two bases. The first, its dissatisfaction with the PIC's decision to conduct further hearings in an ongoing investigation in public. To this point the hearings have been held in private. The second, its argument that the PIC has no statutory power to conduct one aspect of its investigation. 4 While I was unable to come to the view that the first ground advanced was a basis on which the orders sought could be made, even as a matter of this Court's supervisory jurisdiction, I came to the view that there was a serious question to be tried as to the second ground. In those circumstances, the PIC did not argue that the balance of convenience lay with a refusal of the orders sought and accordingly, they were made. 5 My short reasons for reaching these conclusions were that the PIC's investigation is being conducted under s 23 of the Police Integrity Commission Act 1999 ('the Act'), which provides: 23 Investigations generally (cf ICAC Act s 20) (1) The Commission may conduct an investigation: (a) on its own initiative, or (b) on a police complaint made or referred to it or on a police complaint of which it becomes aware, or (c) on an administrative officer complaint made to it, or (c1) on a Crime Commission officer complaint made to it, or (d) on a report made to it. (2) The Commission may conduct an investigation even though no particular police officer, administrative officer, Crime Commission officer or other person has been implicated and even though no police misconduct, misconduct of a Crime Commission officer or corrupt conduct of an administrative officer is suspected. (3) The Commission may, in considering whether or not to conduct, continue or discontinue an investigation, have regard to such matters as it thinks fit, including whether or not (in the Commission's opinion): (a) the subject-matter of the investigation is trivial, or (b) the conduct or matter concerned occurred at too remote a time to justify investigation, or (c) if the investigation was initiated as a result of a police complaint, Crime Commission officer complaint or administrative officer complaint—the complaint was frivolous, vexatious or not in good faith. 6 Section 32 governs the way in which the PIC must conduct its hearings: 32 Hearings (cf ICAC Act s 30) (1) For the purposes of an investigation, the Commission may hold hearings. (2) A hearing must be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner. (3) At each hearing, the person presiding must announce the general scope and purpose of the hearing. (4) A person appearing before the Commission at a hearing is entitled to be informed of the general scope and purpose of the hearing, unless the Commissioner is of the opinion that this would seriously prejudice the investigation concerned. 7 Apart from its principal functions, specified in s 13, so far as the NSWCC and its officers are concerned, s 13B provides: 13B Other functions of PIC in relation to Crime Commission officers (1) Other functions of the PIC include the following: (a) to prevent misconduct of Crime Commission officers, (b) to detect or investigate, or oversee other agencies in the detection or investigation of, misconduct of Crime Commission officers. (2) The PIC is, as far as practicable, required to turn its attention principally to serious misconduct of Crime Commission officers. (3) The reference in this section to overseeing other agencies in the detection or investigation of misconduct of Crime Commission officers is a reference to the provision by the PIC of guidance that relies on a system of guidelines prepared by it and progress reports and final reports furnished to it rather than the provision of detailed guidance in the planning and execution of such detection and investigation. (4) In overseeing other agencies for the purposes of this section, the PIC does not have a power of control or direction, and any such oversight is to be achieved by agreement. However, it is the duty of Crime Commission officers to co-operate with the PIC in the exercise of its oversight functions. (5) However, nothing in subsection (2), (3) or (4): (a) affects the capacity of the PIC to exercise any of the functions as referred to in subsection (1), or (b) provides a ground for any appeal or other legal or administrative challenge to the exercise by the PIC of any of those functions. 8 The PIC explained that its investigations had evolved to the point where it had become necessary to understand the operations of the Commission, in order for investigations of particular NSWCC officers to be pursued. That was an aspect of its investigation expressly envisaged by s 23(2). The NSWCC's case was, however, that the announcement made by the PIC at the hearing on 13 December 2011, in accordance with s 32(3) as to an extension of its investigation, had taken the PIC beyond such a limited undertaking and beyond its statutory powers. The announcement that day, was relevantly: "The scope and purpose of this private hearing is … to examine practices and procedures of the New South Wales Crime Commission in the conduct of actions under or taken pursuant to the Criminal Assets Recovery Act 1990." 9 Having heard the parties and considered the various statutory provisions in issue, I was satisfied that there was a serious question to be tried as to the proper construction of the Act and whether the PIC's extended investigation into the practices and procedures of the NSWCC was beyond its power. 10 The resolution of the issues lying between the parties will in part turn on a consideration of the steps actually taken in the PIC investigation, which it is unnecessary to outline in detail. It has to date been conducted in private. Suffice it to say that those steps appear to go beyond, for example, seeking information of the NSWCC as to whatever its practices are, to the point where the NSWCC has itself become a subject of investigation. In light of the statutory scheme and having in mind the announced scope and purpose of the extended investigation, I am also satisfied that the NSWCC has a prima facie case.