Supreme Court New South Wales Medium Neutral Citation: McCloy v Latham [2015] NSWSC 1879 Hearing dates: 12 November 2015 and 13 November 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Common Law Before: McDougall J Decision: Summons dismissed with costs Catchwords: ADMINISTRATIVE LAW – judicial review – apprehended bias – where plaintiff was a witness in an inquiry conducted by the Independent Commission Against Corruption – where he alleges that the Commissioner might not bring an open mind to the question of what, if any, findings to make in respect of him – applicable test of whether a fair-minded lay observer might reasonably apprehend the same – where the conduct complained consisted of numerous episodes before and during the ICAC proceedings – where no episode alone could give rise to a reasonable apprehension – result that the cumulative effect of the episodes together could not do so – where much of the conduct referable to counsel assisting, rather than the Commissioner – whether attributable to the Commissioner – where many episodes explicable by reference to context – where, in any event, no rational connection was demonstrated between impugned conduct and the allegation that the Commissioner would not bring an open mind to her task – consequence that observer could not reasonably form the apprehension suggested Legislation Cited: Civil Procedure Act 2005 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Election Funding, Expenditure and Disclosures Act 1981 (NSW) Independent Commission Against Corruption Act 1988 (NSW) Independent Commission Against Corruption Amendment Act 2015 (NSW) Police Integrity Commission Act 1996 (NSW) Cases Cited: Aristodemou v Temby (Grove J, 14 December 1989, unreported; BC8901329) Browne v Dunn (1893) 6 R 67 Donaldson v Wood (Hunt CJ at CL, 12 September 1995, unreported; BC9507330) Duncan v Independent Commission Against Corruption (2014) 311 ALR 750 Duncan v Ipp (2013) 304 ALR 359 Dunghutti Elders Council (Aboriginal Corporation) v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 279 ALR 468 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 Isbester v Knox City Council (2015) 89 ALJR 609 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Lee v Cha [2008] NSWCA 13 McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 R v Vos (2011) 223 A Crim R 316 Category: Principal judgment Parties: Jeffrey Raymond McCloy (Plaintiff) The Honourable Megan Latham (First Defendant) Independent Commission Against Corruption (Second Defendant) Attorney-General for New South Wales (Third Defendant) Representation: Counsel: I D Faulkner SC / R L Gall (Plaintiff) N J Williams SC / B Kremer / D Hume (Defendants) Solicitors: Toomey Pegg (Plaintiff) Corrs Chambers Westgarth (First and Second Defendants) Crown Solicitor's Office (Third Defendant) File Number(s): 2015/263337 Judgment 1. HIS HONOUR: The plaintiff (Mr McCloy) seeks relief in the nature of prohibition against the second defendant (the Commission). In substance, the relief sought is an order restraining the Commission from continuing with, or reporting upon, an investigation conducted by it known as "Operation Spicer", at least while the first defendant (the Commissioner) is presiding over that investigation, and at least in so far as any further hearing or report might concern Mr McCloy. Mr McCloy alleges that there are reasonable grounds for apprehending that the Commissioner might not bring an open mind to the resolution of the question of what, if any, findings to make in respect of him. 2. The Commissioner and the Commission have submitted, save as to costs. The Attorney-General sought and was granted leave to be joined as a defendant. She appeared by Counsel, to act as a contradictor. 3. For the reasons that follow, Mr McCloy's case fails. The summons must be dismissed with costs. Background 1. The Commission is established, and the Commissioner was appointed, pursuant to the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act). In 2014, the Commission conducted two investigations, known as Operation Spicer and Operation Credo. They were conducted on the basis that evidence in one would be, to the extent it was relevant, evidence in the other. Mr McCloy was involved only in the Operation Spicer investigation. 2. The public inquiry in Operation Credo was conducted over 23 days, from 17 March to 16 April 2014. The public inquiry in Operation Spicer was conducted over 43 days, from 28 April to 12 September 2014. 3. Mr McCloy was not called to give evidence in the Operation Credo public inquiry. Nor was he called to give evidence in the first tranche of the Operation Spicer public inquiry (which ran for 17 days, from 28 April to 20 May 2014). He was called in the second tranche of the Operation Spicer inquiry (which ran from 6 August to 12 September 2014). In fact, he was called twice: first on 14 August 2014, and then on 12 September 2014. 4. Operation Credo concerned allegations of corruption against a number of people, including three Australian Labor Party members of the Parliament (and former Ministers of the Crown) of this State: Mr Tripodi, Mr Obeid and Mr Kelly. Operation Spicer concerned allegations of corruption against a number of people including Liberal Party members of the Parliament of this State, two of whom were, up until the time when they gave their evidence in the public hearing, Ministers of the Crown. 5. In very general terms, the alleged corrupt conduct that was the subject of Operation Spicer included the giving and receipt of money in exchange for favours; the giving and receipt of money in breach of provisions of the electoral funding laws; and the creation of sham structures to permit prohibited donors to make political donations through vehicles which rendered what purported to be invoices for (legitimate) services rendered to those would-be donors. Outline of Mr McCloy's case in this Court 1. Mr McCloy's Further Amended Summons filed in Court on the first day of the hearing (for convenience, I will refer to this simply as "the summons") set out, in grounds comprising 220 paragraphs, matters that, he said, would give rise to a reasonable apprehension of bias. In broad summary, the matters relied upon included: 1. conduct of the Commissioner before the commencement of the public inquiry in Operation Spicer; 2. adverse treatment, influenced by what was called a "predetermined case theory", of a number of witnesses; 3. unfair treatment, in reliance on a "Practice Direction" issued by the Commission, of witnesses and Counsel; 4. matters put to witnesses including (but not limited to) Mr McCloy, and in submissions, without a proper factual or legal basis; 5. alleged refusal to permit questioning on what were said to be "critical facts in issue", on the basis that unless a positive case were being advanced, the matters could be covered in submissions; 6. indications of political bias by both Counsel assisting and the Commissioner; 7. a miscellaneous collection of grounds that included alleged lack of even-handed treatment as between Counsel and otherwise; and the appearance (on the part of Senior Counsel assisting) of a personal interest in the outcome of the inquiry; 8. another miscellaneous collection of grounds including aspects of want of procedural fairness; asserted failures on the part of Senior Counsel assisting to comply with the Barristers' Rules; unfairness arising through access to documents and scheduling of evidence; questions without notice and beyond the scope of the inquiry; and other matters. 1. Grounds concerning matters that occurred in the course of the public inquiry relate to some 28 of the 43 days that the public inquiry occupied. According to the citation of transcript pages in the summons, those complaints relate to 110 pages of a transcript that exceeded 5000 pages in length. As I have noted, no complaint is made in respect of the public inquiry in Operation Credo (the transcript for that inquiry runs to some 2600 pages). 2. The public inquiry in Operation Spicer was intensely political. The politicians whose conduct was in question included Liberal parliamentarians, two of whom, as I have said, were at the time Ministers of the Crown. The allegations made against them were extremely serious. The hearings generated a substantial amount of dispute. That is hardly surprising, bearing in mind both the nature of the allegations made and the fact that the investigation into those allegations was, if not fatal, at least extremely damaging to the careers of those against whom they were made. The two Ministers whose conduct was under examination felt obliged to resign their portfolios. The Liberal parliamentarians whose conduct was the subject of inquiry resigned from the Party, and moved to the cross-benches. 3. It is apparent from the transcript alone that the hearings were heated, and at times intensely confrontational. It is apparent even from the transcript that the heated and confrontational nature of the hearings resulted in more than the usual amount of sniping, or sledging, between the numerous members of the Bar (many, Senior Counsel) who appeared with leave to represent the interests of their various clients. Those impressions are confirmed – indeed, strengthened – by viewing the video recording of parts of the hearing. All those matters must be assessed, in deciding whether the matters upon which Mr McCloy relies are capable of founding the necessary reasonable apprehension of bias. Structural flaws in the articulation of Mr McCloy's case 1. It is necessary to say a little about the way that the case for Mr McCloy was conducted. It was not his case that any one, or indeed any one group, of the grounds on which he relied was of itself sufficient to give rise to a reasonable apprehension of bias. His case was that it was the cumulative effect of all the matters alleged that had this result. However, it seems to me that if, among the grounds, something alleged is inherently incapable of creating a reasonable apprehension of bias, then the fact that it is combined with other matters that may contribute towards that apprehension does not add anything. To take an extreme example: if, upon examination, none of the matters relied upon could excite a reasonable apprehension of bias, neither could the combination of all those matters together do so. 2. Again at a level of some generality: the grounds based on the existence of a predetermined case theory have the unusual feature that the case theory is not articulated anywhere in the summons. Thus, although on numerous occasions it is said that something was done consistently with, or to advance, that case theory, the nature of the case theory is not spelled out. The reader is left to go to the outline submissions in support of the summons to find out what the case theory is. It is (and I quote from [32] of those submissions): that there was a case theory of the Commissioner and Counsel Assisting that the following persons engaged in wrongdoing (leading to a finding of corrupt conduct and reference to the DPP) and that publicly demonstrating this or making findings of this nature against the following persons was a priority of Operation Spicer, and in so far as other persons were involved, findings against them was [sic] secondary… . 1. The "following persons" included Mr McCloy and many other witnesses (one of whom at least was a Labor Party member of parliament, and a minister in a former Labor Government). 2. Two points may be made immediately. The first is that the statement of the nature or content of the case theory is, with all due respect to those who propounded it, unilluminating. The second, and more substantive, point is that it would be quite extraordinary if a body having the powerful and important investigative and reporting functions of the Commission were to launch an investigation, and as part of that inquiry conduct lengthy public inquiries (with all the risk to reputation and pocket involved), without having at least a "case theory" that the subject matter of the investigation involved corrupt conduct within the remit of the Commission to consider, and that the persons to be examined at the public inquiry might reasonably be suspected of having been engaged in that corrupt conduct. 3. To say that an investigative body such as the Commission has a "case theory" at the stage when it decides to conduct a public hearing is to do no more than say that, in that body's view, on the basis of information already garnered, there is a reasonable basis for holding the public hearing. I do not understand how it could be a criticism of such a body to have formed that view if it were one reasonably open on the evidence that it had garnered (and the submissions for Mr McCloy did not submit that such a view was not, at least prima facie, open to the Commission in this case). 4. In truth, if the "case theory" allegations are to go anywhere, it must be on the basis that the Commissioner was so firmly wedded to the case theory that she was, or had become, incapable of bringing an independent evaluative mind to all the evidence gathered, and of considering whether, on the basis of all that evidence, the case theory could be maintained. 5. Again at a level of generality, many if not most of the grounds stated in the 220 paragraphs of the summons are difficult to take at face value. Where complaints are made as to matters that occurred in the course of the hearing, the drafting technique involves picking out one comment, or a series of comments, in the course of the particular incident, and ascribing a particular characterisation to those comments. One consequence of that drafting technique is that the particular matters complained of are taken out of context. When the matters complained of are examined in context, they lose much (in many cases, all) of the sinister significance ascribed to them in the summons. I shall illustrate this by considering in detail a particular group of complaints. 6. Again, the articulation of Mr McCloy's case, as it is done in the summons, makes no real attempt to come to grips with the essential differences between an inquisitorial body such as the Commission, and an adjudicative tribunal, such as this Court, charged with determining the outcome of adversarial litigation. Thus, in many cases, the submissions for Mr McCloy relied on statements of principle relevant to adversarial litigation, without considering the extent to which those statements might be capable of application, with or without modification, to an inquisitorial investigation conducted by the Commission. Further, in many cases, the submissions failed to take account of the statutory framework regulating the Commission's activities. 7. Many of the complaints made by Mr McCloy in the grounds, and advanced in the submissions in support of those grounds, involve the attribution to the Commissioner of questions asked (and comments made) by Counsel assisting – usually, I think, Senior Counsel assisting. I do not mean that the grounds misread the transcript, and wrongly suggested that a question asked by Counsel assisting was in fact one asked by the Commissioner – although this mistake did occur on at least one occasion (ground [28] – see at [150] below). Rather, I mean that it was submitted for Mr McCloy that, as a matter of law based on the proper construction of the ICAC Act, questions asked by Counsel assisting were deemed to be asked by the Commissioner, and thus must be regarded in law as her questions. 8. That approach permeates the grounds and the submissions. It is based on a reading of the decision of the Court of Appeal in R v Vos (2011) 223 A Crim R 316, dealing with analogous legislation (the Police Integrity Commission Act 1996 (NSW) – the PIC Act). However, in my view, that reading is fallacious. I return to this topic at [79] below. 9. Many of the grounds, and of the submissions in support of the grounds, took a contested view of the facts or of the law as the starting point for the particular allegation of apprehension of bias. In effect, those grounds and submissions invite the Court to delve into the merits of the factual and legal issues to which they referred. That is not the function of this Court exercising the power of judicial review. Findings as to the facts, including findings as to who to believe and why, and what inferences to draw from facts found proved, are for the tribunal of fact – in this case, the Commission, acting though the Commissioner. Equally, resolution of the disputes of law that were raised is a matter for the Commissioner. To the extent that resolution of a complaint made in the grounds requires this Court to take a view, one way or another, as to what the facts might be or as to what the legal characterisation of facts might be, it is beyond the province of judicial review. 10. Finally, in terms of general comments on the flawed articulation of Mr McCloy's case, the summons makes no attempt to specify: 1. the possible findings, or classes of finding, in respect of which, it is said, the Commissioner's mind is closed against the possibility of argument; and 2. the rational (or any) link between the conduct complained of and those possible findings, or classes of finding. 1. The first matter is of some considerable significance in Mr McCloy's case. The investigation has not concluded. The Commission is yet to report. Mr McCloy seeks what is in effect quia timet relief that would prevent it from reporting, at least while the Commissioner presides over the investigation. 2. As was correctly submitted for the Attorney-General, there is no dispute as to the basic facts as to the making of the payments that were said to have been corrupt. Mr McCloy accepted, in the course of his evidence in the public inquiry, that he had made the payments in question. The matters that remain to be decided include the characterisation of the payments. 3. Characterisation of the payments might involve the following matters: 1. Mr McCloy's intention, or state of mind, in making them; 2. the intention, or state of mind, of each of the recipients in receiving them; 3. Mr McCloy's knowledge of the legality of the payments; and 4. the knowledge of each of the recipients as to the legality of the payments. 1. That listed is not intended to be either definitive (that is why I said "might") or exhaustive. It is, ultimately, a matter for the Commissioner as to what matters she thinks are relevant, in circumstances where, as I have said, there does not appear to be any factual dispute about the making of the payments in question. 2. Whether or not those payments involve corrupt conduct, and whether or not they involve any other matter that ought be the subject of report, is entirely a matter for the Commissioner. Equally, it is entirely a matter for the Commissioner, as to how she evaluates those payments and the circumstances in which they were made, and as to what matters she takes into account in formulating whatever conclusions she reaches, and recommendations she makes. 3. Mr McCloy made no complaint of apprehension of bias during the public inquiry. Nor did he do so in his written submissions provided at the conclusion of the hearing. He has chosen to wait until after all evidence had been completed, and submissions had been exchanged. So far as I know he has not applied for the hearing to be reopened, or for any further witness to be called for examination or cross-examination (or for anyone who has given evidence to be recalled for those purposes). In those circumstances, the Attorney-General submitted, Mr McCloy had waived his right to object. 4. For present purposes, the failure to articulate at all, let alone in any adequate and comprehensible way, either the findings that might be affected by the alleged apprehended bias, or the way in which the matters complained of could rationally effect a consideration of those findings, makes it very difficult to grant quia timet relief. Approach to resolution of the issues 1. In dealing with Mr McCloy's complaints, I shall start by setting out my understanding of the principles relating to apprehension of bias, where the decision-maker is an inquisitorial body having the powers that the Commission possesses, and the functions that the Commission is charged to perform. I shall then turn to the legislative scheme. Then, before turning to some of the grounds in some detail, I shall deal with the Vos fallacy. 2. I do not propose to deal in detail with each and every paragraph of the grounds. To undertake that task would require an inordinate amount of time, with no consequential benefit in explaining, or facilitating an understanding of, the decision to which I have come. 3. I propose, instead, to deal with particular groups of complaints, including those relating to the Commissioner's speech to the Bar Association, the "case theory" complaints, a "Practice Direction" issued by the Commission, and other relatively discrete issues. I do not propose to trawl through all the remaining grounds, particularly in so far as they make complaints based on particular passages in the evidence of particular witnesses. My reasons for not doing so are stated in greater detail at [263] and following below. 4. Finally, I shall consider in some detail the course and conduct of the public examination of Mr McCloy. It will become apparent that there is nothing in that examination to suggest that he was treated unfairly. He was given, and took, every opportunity to tell his own story in his own words. Apprehended bias: the relevant principles 1. The test for apprehension of bias, in the case of judicial officers, was stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] of the plurality judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ): The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 1. That is the test asserted by Mr McCloy in his summons; see at [3] of the grounds, where it is asserted that: Cumulatively, the grounds set out below lead to the conclusion that a fair-minded observer might reasonably apprehend that the Commissioner might not bring an impartial and unprejudiced mind to the resolution of the questions of what findings to make in and what action to take consequent upon Operation Spicer. 1. However, the Commission is not a court, and the Commissioner is now not, nor in conducting the public hearing was she acting as, a judicial officer. Thus, as the plurality (Kiefel, Bell, Keane and Nettle JJ) said in Isbester v Knox City Council (2015) 89 ALJR 609 at [22], [23] (omitting citations): [22] It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different. [23] How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision. 1. Gageler J agreed with the plurality, and for reasons essentially similar to those the plurality gave. However, his Honour suggested at [59] that the process of analysis involved not two steps (as suggested by the plurality in Ebner at [8]), but three (omitting citations): Whether or not it might be useful to state the test in that alternative form, the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects. The first is that it is an "objective test of possibility, as distinct from probability". The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way. 1. As was submitted for the Attorney-General, and as Mr McCloy appeared to accept, application of the test to the Commission, and to the Commissioner, must take into account the relevant features of the ICAC Act. I turn to that topic in the next section of these reasons. 2. In Duncan v Ipp (2013) 304 ALR 359, the Court of Appeal of this State considered the application of the "apprehension of bias" test in a case involving the Commission. Bathurst CJ (with whom Barrett JA agreed) said at [146]: The manner in which the test is to be applied was set out by the High Court in Ebner at in the passage which I have cited above; see also Michael Wilson & Partners. Translated into the present case, this involves consideration of whether the matters raised by the applicant have a logical connection with the feared deviation by the Commissioner from the course of determining the issues raised in the inquiry on the merits, by virtue of pre-judgment. Pre-judgment in the present case means having a closed mind, in the sense of not being open to persuasion by any additional evidence or submissions from the parties, that the grant of the licence the subject of the inquiry was procured by corruption involving the then Minister for Mines and that the applicant and his associates were beneficiaries of that conduct (the corrupt conduct): McGovern v Ku-ring-gai Council; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]-[72]. 1. Ward JA wrote to similar effect at [221], [222]: [221] It is not disputed that what was required was that the applicant firmly establish that a fair-minded lay observer, having regard to the conduct identified by the applicant, might reasonably apprehend that the Commissioner might have a closed mind or might not be open to persuasion on the relevant issue or issues for determination by the Commissioner. [222] While the "double might" test for apprehended bias does not require that prejudgment (or a closed mind) be the inevitable conclusion that a fair-minded lay observer might reasonably reach, it does require that there be a logical or rational connection between the matter that is said might reasonably give rise to an apprehension of bias in the mind of such an observer and the matter in respect of which it is apprehended that the decision-maker might be biased. 1. In determining whether there is a reasonable apprehension of bias, it is not appropriate to start with the Ebner analysis and then modify the outcome of that analysis to accommodate the particular statutory regime. As Spigelman CJ said in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at [6], the relevant statutory scheme "must be part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach". 2. Basten JA made a similar point at [115], noting also the possibility that error might follow from restating "the test applicable to judicial officers in a materially different context". 3. As is apparent from what Bathurst CJ said in Duncan at [146], the question is whether the Commissioner's mind might reasonably be thought to be closed on the key question: namely, has Mr McCloy engaged in corrupt conduct? In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Gaudron and McHugh JJ said at 100 that: … what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. 1. Of course, the question is one to be dealt with on the balance of probabilities. Nonetheless, it is established by high authority "that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties": see Dixon CJ, Williams, Webb and Fullagar JJ in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116. Their Honours continued: The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. 1. Those remarks are of particular significance where, as here, a plaintiff relies on apprehension of bias to forestall the completion of an investigation by the making of a report. Keane CJ, Lander and Foster JJ said as much in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 279 ALR 468 at [55]: It will usually be difficult for a party to make a sufficient case to forestall the making of a decision on the ground of apprehended bias. That is because of the expectation that the decision-maker will decide fairly on the basis of the evidence. The difficulty which confronts a litigant who seeks to invoke a reasonable apprehension of bias in order to forestall the making of a decision by a decision-maker appointed by parliament to make that decision is illustrated and explained by the decision of the High Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] ALR 461 (Ex parte Melbourne Stevedoring Company) where the point was made that the existence of a preconceived opinion on the matters in issue is not inconsistent with the making of an unbiased decision on the evidence. 1. That consideration is relevant to the present case, because of Mr McCloy's reliance on the "case theory" supposedly entertained by the Commissioner and by Counsel assisting. It is not enough that they should have had a case theory based on investigations undertaken by the Commission (including, in this case, the results of compulsory examinations conducted before the public inquiry). What must be shown is a reasonable apprehension that the case theory was so firmly entrenched in their minds that, by the time of the conclusion of the public inquiry, there existed a reasonable basis for thinking that the Commissioner could not consider on their merits the further evidence given (in the public inquiry) and the submissions put to her, and reach a conclusion, on the essential point, irrespective of the case theory. 2. It is necessary to say a little about the characteristics of the fair-minded reasonable observer by reference to whose supposed mental processees the test of apprehended bias is considered. Basten JA (with whom Hodgson and Bell JJA agreed) said in Lee v Cha [2008] NSWCA 13 at [43] that "the reference to such a person is no more than the personification of an objective test". In these reasons, I shall use the expression "the observer" to denote the fictitious person whose supposed reactions and thought processes are said to govern the analysis. 3. The observer is understood to be a lay person, not a lawyer. However, the observer is taken to be aware of the way in which (in this case) the Commission undertakes its inquiries, and to be aware, in general terms at least, of the various powers that the Commission has to obtain evidence before conducting a public hearing. 4. Further, because the test requires a conclusion that there is a reasonable basis for thinking that the Commissioner has a fixed mind, not open to evidence or argument, the assessment is to be undertaken having regard to all relevant matters, including (so far as the observer might be thought to have access to it) all relevant material before the Commission. In particular, the observer's hypothetical view must be one capable of being formed at the conclusion of the hearing, and (perhaps) taking into account the way in which Counsel assisting and Counsel for the various persons involved approached the matter in the course of their written submissions. 5. The necessity to undertake the analysis at the end of the investigation is important in this case, because Mr McCloy's evidence was given towards and at the end of the public inquiry. Of all the complaints made as to matters occurring in the course of the public inquiry, four only relate specifically to Mr McCloy's evidence: three complaints as to matters that occurred during his evidence on 14 August 2014, and one as to a matter that occurred during his evidence on 12 September 2014. 6. To jump ahead for a moment: a rational consideration of the transcript of the whole of Mr McCloy's evidence, which puts the matters complained of into their proper context, shows that he was treated with scrupulous fairness by the Commissioner, and given every opportunity by her to state his position. The observer would be aware of those matters, and would take them into account in considering whether, as a result of all the matters on which Mr McCloy relies in his summons, the reasonable apprehension of bias exists. 7. Counsel's submissions are in a somewhat different category, because they are the subject of a suppression order under s 112 of the ICAC Act. Accordingly the observer, as a member of the public, would not have access to them, and could not take them into account in deciding whether or not, overall, there is a reasonable basis to apprehend bias. Nonetheless, the parties agreed that the submissions should be put before me, and that I could have regard to them. (They are now the subject of a non-publication order under s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).) 8. Adopting the view that the observer is a personification of the legal test, and that the legal test is one to be applied by (in this case) a judge of this Court, it seems to me that the judge, in applying that test, should be able to take into account relevant material even if it is not available to members of the public. It would be anomalous if material could not be used, even though it might provide a most cogent basis for dispelling an apprehension of bias that might otherwise arise, simply because it is not publically available. 9. In the result, I have not found it necessary to refer to the submissions put to the Commission. Thus, no problem arises of how to explain a view based on material that is the subject of a suppression order. 10. I note, before moving to the legislative scheme, that the parties regaled me with citations from authorities ranging far beyond those to which I have referred. I intend no discourtesy either to the parties or to the judges whose decisions were relied upon by failing to mention all the cases cited. I see no point in burdening these lengthy reasons with additional references to authority, in circumstances where the essential principles, as I understand them, emerge from those to which I have referred already. Relevant provisions of the ICAC Act 1. Section 2A sets out the principal objects of the Act. I set it out: 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. 1. The Commission is established by s 4; the appointment of the Commissioner is authorised by s 5; and s 6 authorises the appointment of Assistant Commissioners. 2. Corrupt conduct is defined in s 7, by reference to ss 8 and 9. It is not necessary to set out those definitions. There was a question as to whether the conduct alleged against Mr McCloy could amount to corrupt conduct. That question focused on the requirement that the conduct amount to a criminal offence (s 9(1)(a)), and that it could involve bribery (s 8(2)(b)). In my view, that question is one for the Commissioner to resolve. If the Court were to go into the merits of the matter, it would be travelling well beyond the proper limits of judicial review. 3. Section 13 sets out the principal functions of the Commission. There are many. The parties referred to s 13(1)(a)–(e); s 13(2)(a); s 13(3); s 13(3A); and s 13(4). I set out those provisions to which the parties referred: 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) to investigate any matter referred to the Commission by both Houses of Parliament, (c) to communicate to appropriate authorities the results of its investigations, (d) to examine the laws governing, and the practices and procedures of, public authorities and public officials, in order to facilitate the discovery of corrupt conduct and to secure the revision of methods of work or procedures which, in the opinion of the Commission, may be conducive to corrupt conduct, (e) to instruct, advise and assist any public authority, public official or other person (on the request of the authority, official or person) on ways in which corrupt conduct may be eliminated and the integrity and good repute of public administration promoted, … (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… … (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 or 74BA 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). 1. Section 74BA (referred to in s 13(4), and introduced by the Independent Commission Against Corruption Amendment Act 2015 (NSW) with effect from 28 September 2015) provides, relevantly, that the Commission must not report on what it thinks is corrupt conduct "unless the conduct is serious corrupt conduct". 2. Section 17 deals with matters of evidence and procedure: 17 Evidence and procedure (1) The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate. (2) The Commission shall exercise its functions with as little formality and technicality as is possible, and, in particular, the Commission shall accept written submissions as far as is possible and compulsory examinations and public inquiries shall be conducted with as little emphasis on an adversarial approach as is possible. (3) Despite subsection (1), section 127 (Religious confessions) of the Evidence Act 1995 applies to any compulsory examination or public inquiry before the Commission. 1. The Commission has wide powers to obtain information, to obtain documents, and to enter public premises (see ss 21, 22 and 23). It also has power to procure the issue of search warrants, and to cause them to be executed (ss 40 and following). It is not necessary to set out those provisions. 2. I should note, although the parties I think did not refer to it, that s 20A deals with the topic of "preliminary investigations". It provides that the Commission may conduct a preliminary examination for purposes including to decide whether to conduct more a complete investigation. It is obvious that, should the Commission exercise its powers under s 20A, the outcome will be the formation of an opinion that further investigation is, or is not, warranted. 3. Section 30 deals with compulsory examinations, and s 31 with public inquiries. I set out those sections: 30 Compulsory examinations (1) For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a compulsory examination. (2) A compulsory examination is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner. (3) A person required to attend a compulsory examination is entitled to be informed, before or at the commencement of the compulsory examination, of the nature of the allegation or complaint being investigated. (4) A failure to comply with subsection (3) does not invalidate or otherwise affect the compulsory examination. (5) A compulsory examination is to be conducted in private. Note : Section 17 (2) requires the Commission to conduct compulsory examinations with as little emphasis on an adversarial approach as possible. (6) The Commission may (but is not required to) advise a person required to attend a compulsory examination of any findings it has made or opinions it has formed as a result of the compulsory examination. 31 Public inquiries (1) For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry. (2) Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commission is to consider the following: (a) the benefit of exposing to the public, and making it aware, of corrupt conduct, (b) the seriousness of the allegation or complaint being investigated, (c) any risk of undue prejudice to a person's reputation (including prejudice that might arise from not holding an inquiry), (d) whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned. (3) An Assistant Commissioner may determine to conduct a public inquiry only with the concurrence of the Commissioner. However, concurrence is not required if the Commissioner would or might have a conflict of interest in relation to the inquiry. Note : Powers of the Commission under this Division may be delegated to an Assistant Commissioner under section 107 (5) (e). (4) A public inquiry is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner. (5) At a public inquiry, the person presiding must announce the general scope and purpose of the inquiry. (6) A person required to attend a public inquiry is entitled to be informed of the general scope and purpose of the public inquiry and the nature of the allegation or complaint being investigated before or at the time the person is required to appear at the inquiry. (7) A failure to comply with subsection (6) does not invalidate or otherwise affect the public inquiry. (8) A public inquiry is to be held in public. (9) Despite subsection (8), the Commission may decide to hold part of the inquiry in private if it considers this to be in the public interest. (10) Without limiting subsection (9), the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or an Australian legal practitioner representing such a person, as well as to a closing submission by an Australian legal practitioner assisting the Commission as counsel. Note : Section 17 (2) requires the Commission to conduct public inquiries with as little emphasis on an adversarial approach as possible. 1. By s33, a person giving evidence in a compulsory examination or public inquiry may have legal representation if so authorised by the Commission. By s 34, both Counsel assisting the Commission and persons authorised to appear for a witness may examine and cross-examine: 34 Examination and cross-examination (1) An Australian legal practitioner appointed by the Commission to assist it, or a person or a person's Australian legal practitioner authorised to appear at a compulsory examination or public inquiry, may, with the leave of the Commission, examine or cross-examine any witness on any matter that the Commission considers relevant. (2) Any witness so examined or cross-examined has the same protection and is subject to the same liabilities as if examined by the Commissioner or an Assistant Commissioner. 1. I interpose to note that the appointment of Counsel assisting is authorised by s 106; it is not necessary to set out that section. 2. Section 35 gives the Commission power to summon a person to appear at a compulsory examination or public inquiry, to give evidence, to produce documents, or both. 3. Section 37 abrogates among other things the privilege against self-incrimination. However, s 38 provides some protection: 37 Privilege as regards answers, documents etc (1) A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not entitled to refuse: (a) to be sworn or to make an affirmation, or (b) to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a compulsory examination or public inquiry, or (c) to produce any document or other thing in the witness's custody or control which the witness is required by the summons or by the person presiding to produce. (2) A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground. (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 or section 114A (5)) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings. (4) Nothing in this section makes inadmissible: (a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or (b) any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or (c) any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing. (5) Where: (a) an Australian legal practitioner or other person is required to answer a question or produce a document or other thing at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by the Commissioner under section 35 (4A), and (b) the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between an Australian legal practitioner (in his or her capacity as an Australian legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a compulsory examination or public inquiry before the Commission, the Australian legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so. 1. Section 53(1) authorises the Commission to refer matters to other bodies: 53 Referral of matter (1) The Commission may, before or after investigating a matter (whether or not the investigation is completed, and whether or not the Commission has made any findings), refer the matter for investigation or other action to any person or body considered by the Commission to be appropriate in the circumstances. 1. Sections 74, 74A and 74B deal with reports: 74 Reports on referred matters etc (1) The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation. (2) The Commission shall prepare reports in relation to a matter referred to the Commission by both Houses of Parliament, as directed by those Houses. (3) The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public inquiry, unless the Houses of Parliament have given different directions under subsection (2). (4) The Commission shall furnish reports prepared under this section to the Presiding Officer of each House of Parliament. (7) A report required under this section shall be furnished as soon as possible after the Commission has concluded its involvement in the matter. (8) The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest, except as regards a matter referred to the Commission by both Houses of Parliament. 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. 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. 1. I have set out at [62] the substance of s 74BA. 2. In short, the Commission is established for very important public purposes. In recognition of that, and to enable it to serve those purposes, it is given very strong powers of investigation and examination. It is entitled (and in some circumstances required) to report upon its investigations. And it may refer matters to other bodies, including the Director of Public Prosecutions, if it thinks such a step warranted. 3. Apart from those general observations, it is clear from the scheme of the ICAC Act as a whole, and specifically from ss 20A and 30(6), that the Commission may form opinions, and (at least, under s 30(6)) make findings, before its investigations are complete. And it is equally clear that if the Commission does either of those things, it is not necessarily bound to inform the examinee of that opinion or those findings. 4. The ICAC Act contains provisions relevant to the provision of natural justice. Those provisions include ss 30(3) and 31(5), (6). However (and contrary to many of the submissions put by various counsel to the Commissioner in the course of the Operation Spicer public hearing), the Commission is not obliged to limit its inquiries to the matters notified under one or other of those subsections. Nor is it required to give fresh "particulars" each time the inquiry takes a new turn. It is required to provide a measure of natural justice. 5. In at least the great majority of cases, the requirements of natural justice, in so far as they give people potentially affected the right to test or call evidence and make submissions, will be served by the recalling of witnesses who have already given evidence, the calling of further witnesses who may give relevant evidence, and the opportunity to make submissions (or further submissions). See Glynn v Independent Commission Against Corruption (1990) 20 ALD 214, cited in Duncan v Independent Commission Against Corruption (2014) 311 ALR 750 at [214]. 6. Further (and again contrary to submissions put by various Counsel to the Commissioner in the course of the hearing), the nature of the investigative process is such that it is not necessary for advance disclosure of possibly contradictory material to be given to witnesses before they give evidence. To require otherwise would undermine an essential feature of the power to investigate that the ICAC Act gives. See Aristodemou v Temby (Grove J, 14 December 1989, unreported; BC8901329). The decision in R v Vos 1. As I have noted, the grounds and submissions relied heavily on what was said to be established by the decision of the Court of Criminal Appeal in R v Vos (2011) 223 A Crim R 316, for the purpose of demonstrating that, as a matter of law, questions asked by Counsel assisting must be taken to have been questions asked by the Commissioner. 2. The respondent in Vos was a police officer. He was charged with a number of offences, including some eight of giving false evidence to a hearing before the Police Integrity Commission (PIC Commission), contrary to s 107 of the PIC Act. The primary judge stayed the proceedings. She did so because the person asking the questions, whom the Commissioner of the PI Commission (the PI Commissioner) had given leave to appear, was not a legal practitioner. In those circumstances, the primary judge concluded, the proceedings in the PI Commission were a nullity and the evidence given in it could not provide a proper foundation for the offences charged. 3. The Court of Criminal Appeal upheld the appeal from the decision of the primary judge. The reasons for that decision were given by McClellan CJ at CL, with whom Hidden and Johnson JJ agreed. 4. McClellan CJ at CL considered the relevant provisions of the PIC Act. It is clear that the drafters of the PIC Act took as their model the ICAC Act, particularly in relation to investigations and private and public hearings. Specifically, the PIC Act contains provisions that were, if not identical to, at least materially not distinguishable from ss 17, 20 and 20A of the ICAC. It also contains similar powers to obtain information, documents and the like. 5. The PIC Act provides for public and private hearings, although those provisions are somewhat different to ss 30 and 31 of the ICAC Act. That having been said, however, the provisions of the PIC Act relating to legal representation (s 35) are substantially the same as the equivalent provisions of the ICAC Act (s 33). 6. Section 37 of the PIC Act corresponds to s 34 of the ICAC Act. However, it splits up s 34(1) of the ICAC Act into two separate subsections. Nothing seems to me to turn on this. Section 37(2) of the PIC Act is identical to s 34(2) of the ICAC Act. 7. Section 38 of the PIC Act gives the PI Commission power to summon witnesses and take evidence. It is at least substantially the same as s 35 of the ICAC Act. 8. The difficulty that arose in Vos, as perceived by the primary judge, was that the PIC Act gave no power to the PIC Commissioner (or the PI Commission) to appoint anyone other than a legal practitioner to assist the Commission. However, as I have noted, the person who conducted the questioning of the respondent did so pursuant to leave given by the PI Commissioner. 9. McClellan CJ at CL said at [35] that it was significant that a hearing could be conducted by a Commissioner or Assistant Commissioner without the assistance of Counsel assisting. In those circumstances, his Honour said, the Commissioner or Assistant Commissioner could ask questions, and could require answers. 10. At [36], his Honour noted, among other things, that where the questions were asked not by the Commissioner or Assistant Commissioner but by Counsel assisting, "nevertheless each question is asked with the authority of the Commissioner". In the present case, his Honour said, although the questions were asked by someone "who could not have been authorised to ask them, they were nevertheless questions sanctioned by the Commissioner, who it may be presumed allowed them to be asked and required them to be answered in furtherance of the investigation". 11. Then, at [37], his Honour referred to a question's being "deemed to be a question put to the witness by the Commissioner…". I set out [37]: This analysis is apparent from the terms of the Act. Although s 37(2) provides for the Commission to be assisted by a legal practitioner who may examine or cross examine a witness and s 37(3) provides protection to a witness who is examined or cross examined by that practitioner, s 40 makes plain that any question asked is asked with the authority of the Commissioner or other person presiding at a hearing (s 40(1)(b)). The Act does not otherwise provide for an obligation on a witness to answer questions of counsel assisting or any other person. Accordingly, it may be inferred that even when counsel assisting has been appointed whether a question is actually asked by that person or by the Commissioner the question will be deemed to be a question put to the witness by the Commissioner or Assistant Commissioner. 1. The facts in Vos are materially distinguishable from the facts in the present case. In Vos, the questions were asked by a person whom the PI Commission had no statutory warrant to appoint to assist it. Thus, he could not have been authorised by the PIC Act to ask questions. It was therefore necessary to find, as McClellan CJ at CL did, that the questions were asked by the authority of the Commissioner, if the charges were to get off the ground. It is in that context that his Honour used the language of "deeming". 2. In the present case, the questions, the subject of complaints in the grounds, were asked by Counsel assisting the Commission – usually, Senior Counsel assisting. It was open to the Commission to appoint Counsel assisting: see s 106 of the ICAC Act. And it was open to the Commission, through the Commissioner, to give leave to Counsel assisting to examine and cross-examine witnesses (just as it was open to the Commission, acting through the Commissioner, to give the same leave to other Counsel who had been given leave to appear): see s 34(1). 3. The ICAC Act makes it clear that a person who is asked questions must answer them. Section 35(1) empowers the Commissioner to summon a person to give evidence. There is not much point in having the power to summon a person to give evidence, unless the person is required to give it. That, no doubt, is why s 37(1)(b) effectively requires a witness summoned to attend at a hearing to answer questions relevant to the investigation put by the Commissioner or other person presiding. 4. Likewise, one might think, there is little point in giving Counsel (whether assisting, or given leave to appear for a witness or affected person) to examine or cross-examine, unless the witness is required to answer Counsel's questions. Both examination and cross-examination contain within them the concept of question and answer. The examiner or cross-examiner asks a question. The witness answers it. And so the evidence is given. That, in my view, is what is contemplated by s 34(1) of the ICAC Act. 5. Where the questions are asked by Counsel given leave to appear, s 34(2) is engaged. That section provides that the witness "has the same protection and is subject to the same liabilities as if examined by the Commissioner…". That must mean, among other things, that the questions asked by Counsel are asked with the force of s 37(1)(b) behind them. 6. In other words, where the person asking the question is a legal practitioner granted leave to appear, the ICAC Act itself provides, both expressly and by necessary implication, that the witness must answer the questions asked by that practitioner. There is no need to resort to the concept of "the authority of the Commissioner" or to the process of "deeming" to achieve this result. 7. Finally, in this context, s 34(2) of the ICAC Act itself clearly recognises a distinction between, on the one hand, a witness examined or cross-examined by a legal practitioner and, on the other, a witness examined by the Commissioner. The distinction explicitly recognised in that sub-section is to my mind quite inconsistent with the proposition that questions asked by Counsel are deemed to be asked by the Commissioner. (I should mention that, when pressed, Senior Counsel for Mr McCloy acknowledged that his submission extended not only to Counsel assisting, but also to other Counsel given leave to appear.) 8. It follows, in my view, that the material distinction between the facts in Vos and the facts in this case make it unnecessary in this case to resort to the analysis undertaken by McClellan J at CL in Vos. I am not for a moment to be taken as suggesting that I disagree with his Honour's analysis on the facts of that case. I am suggesting no more than that the analysis is irrelevant in this case, because the ICAC Act covers the situation, as I have said, both expressly and by necessary implication. 9. In my view, reliance on the decision in Vos, for the purposes asserted in the grounds and the submissions, is misplaced. The Commissioner's speech to the Bar Association: grounds [4] to [8C] 1. On 24 February 2014, the Commissioner gave a speech to members of the New South Wales Bar Association. The speech was given as part of a seminar for barristers. The specific target audience was recently admitted barristers. The Commissioner was discussing the way in which techniques of cross-examination might be applied in inquisitorial proceedings: particularly by Counsel retained as Counsel assisting. 2. Against that background, grounds [4] and [5] assert the following: 4. On 24 February 2014, the Commissioner gave a speech to members of the New South Wales Bar Association, a recording of which was subsequently published on the Internet, in which the Commissioner stated: a. "inquisitorial litigation is fantastic… you are not confined by the rules of evidence. You have a free kick. You can go anywhere you want to go. And it is a lot of fun"; b. for Counsel Assisting, questioning witnesses during public inquiries is "like pulling wings off butterflies" because "you have actually worked out what you want to get of the witness" and "you know exactly what you expect that witness to say"; c. "the thing about the role of counsel assisting in ICAC is that you are actually part of a team"; and d. it "is much more difficult for counsel who are representing the relevant witness and it's a very very limited role for those counsel". 5. From the statements set out at paragraph 4 above and the conduct summarised below, a fair-minded observer might reasonably infer that the Commissioner had opinions and intentions to the following effect: a. that the Commission's and Counsel Assisting's obligations of fairness towards witnesses and persons of interest had no qualities or standards akin to those which apply in judicial processes, in spite of the gravity of the potential consequences of the Commission's exercise of power, and in spite of the applicability of the Barristers Rules as then in force to the conduct of Counsel Assisting; b. that advocates representing witnesses and persons of interest ought rightly to be confined to a much more limited role than Counsel Assisting; c. that the Commissioner and Counsel Assisting would during a public inquiry be jointly pursuing a preconceived agenda; d. that it was proper for the Commission to have already determined what findings of fact would be established through the public examination of witnesses, prior to any public hearing occurring; e. that any opportunity to be heard, by way of submissions or questioning of witnesses, which is provided to witnesses or persons of interest should be provided perfunctorily and disingenuously, such that it would never be capable of having any real effect on the findings the Commission ultimately makes; f. that the Commission's so-called public hearings have and should have the character of a show trial, in that they are not intended to and do not affect the Commission's predetermined ultimate findings; g. that it was proper and desirable for the Commission in its public hearings to be seen to be causing pain and harm to witnesses appearing before it; and h. that each of the matters described at subparagraphs (a) to (e) above are features of the Commission's processes which give the Commissioner personal joy, glee and satisfaction. 1. There is no doubt that, in the course of her speech, the Commissioner made the remarks attributed to her at [4]. However, in my view, there is also no doubt that the observer, acting reasonably, could not draw from what the Commissioner said, in the context in which it was said, any of the inferences set out at [5]. 2. The first point, leaving aside the Commissioner's recommendation of the delights of inquisitorial litigation, is that Counsel (whether assisting, or appearing for witnesses) are not constrained by the rules of evidence. That is made clear by s 17(1) of the ICAC Act. 3. Whilst the Commissioner's observation that Counsel "have a free kick", if taken out of context, could be seen to indicate a view that there were no constraints upon Counsel conducting examinations or cross-examinations, no reasonable observer, looking at the whole of what was said, could come to that view. There is nothing whatsoever in the Commissioner's speech to suggest that normal rules as to relevance, and the constraints imposed by considerations of fairness and under the Barristers' Rules, do not apply. 4. There are two other points relevant to the "free kick" comment. One is that, for the reason given at [109] below, Counsel assisting will generally have a very good idea of what a truthful answer to a question should be. The other is that, because Counsel assisting are not advocates for a party as in adversarial litigation, there is no risk to their "client's" case from an unexpected answer, or from an answer to an injudicious question. There is not the "one question too many" risk that frequently confronts Counsel in adversarial litigation. 5. Whether or not the observer would understand the points made in the previous paragraph may be a matter of debate. However, a judge whose task it is to inhabit the fictitious mind of that observer, and to apply that observer's fictitious thought process, cannot but be aware – perhaps, as to the second, all too aware – of them. 6. Likewise, the comment that "[y]ou can go anywhere…" is correct, in that, within the broad confines of an investigation, Counsel assisting are free to pursue whatever leads are available in the material amassed by the Commission in the course of its investigation. Further, where evidence indicates that the subject-matter of the investigation ought properly to be expanded (as frequently happens, and as indeed happened in Operation Spicer), it is proper for Counsel to pursue that expanded area of inquiry. Again, nothing in what the Commissioner said could reasonably be taken by the observer to indicate that Counsel were utterly unconstrained, or that witnesses should not have a reasonable opportunity of answering material put to them. 7. Whether or not the role of Counsel assisting "is a lot of fun" is a matter of judgment. Enjoyment, like beauty (and many other matters including, on occasion, truth) is very much a matter in the eye of the beholder. I can conceive that some people might think it "fun" to slave day and night over volumes of material to prepare a detailed and searching examination, and then to undertake that examination. Others might not. 8. The expression "pulling wings of butterflies", taken out of context, could be taken to indicate some sort of sadistic enjoyment in the process of examination (either as the examiner, or as the Commissioner observing it). But in context, what the Commissioner was saying was plain. She was saying that, as I have just indicated, Counsel assisting with usually have a great deal of material to work with. 9. In the ordinary way, before a public hearing is conducted, the Commission will have amassed a substantial body of evidence dealing with the subject of (and, in the Commission's view, justifying the holding of) the public inquiry. Counsel assisting, if properly prepared, will have got across that material. It will include not only the transcripts of compulsory examinations, but also, in many cases, the fruits of searches, telephone intercepts, seizure of documents and the like. In many cases, that material will indicate very clearly "what you expect that witness to say", because it will point out very clearly what it was that the witness did, relevant to the subject-matter of the inquiry. 10. If the witness accepts it (as Mr McCloy accepted that he made the payments in question) then the examination may move on. If the witness does not accept it, Counsel assisting has every right to use the material to seek to controvert the evidence of the witness. And in many cases, it might well be thought, the material amassed by the Commission in its earlier investigations (including, in particular, telephone messages and intercepts, documents created when it was not thought there would be any inquiry, and the like) might be a reliable source of controversion. 11. Viewed objectively, the material available to Counsel assisting will normally make the examination of reluctant or untruthful witnesses far easier than is the case in civil litigation, where all too often Counsel do not have the wealth of material, inconsistent with the evidence given in court, with which to confront the witness and challenge his or her testimony. 12. Passing over para (c) for the moment, it was equally correct to say that "it is much more difficult for Counsel who are representing the relevant witness". That is self-evidently true, because in the ordinary way those Counsel will not have had much (if any) prior access to the material, perhaps inconsistent with the evidence given by the witness, with which the witness is confronted and by which he or she is sought to be contradicted. The concealed availability and surprise deployment of that material is, as Grove J pointed out in Aristodemou at BC13, an important weapon in the Commission's arsenal. 13. I return to para (c). It was correct to say that Counsel assisting "is part of a team". The team comprises, quite often, senior and junior counsel, the Commission's solicitor, and investigative staff employed or retained by the Commission. That does not seem to me to be in any way sinister. 14. Turning to the inferences set out at [5], it is correct to say that the obligations of fairness are not identical with those observed (or which ought to be observed) "in judicial processes". However, the disparity between the two is a necessary consequence of the legislative scheme. The ICAC Act prescribes certain measures of procedural fairness (see, for example, ss 30(4) and 31(5), (6)). It is apparent that the legislature made an informed judgment that some greater standard of procedural fairness (or more detailed right to know what material the Commission had amassed) might be inconsistent with the proper and effective conduct of the Commission's activities. 15. There is simply nothing in what the Commissioner said to suggest that Counsel assisting were not subject to relevant requirements of the Barrister's Rules, to the extent that they applied (or were capable of application) to public inquiries conducted by the Commission. 16. It is obvious that advocates for witnesses and persons of interest have a more limited role than Counsel assisting. That is hardly surprising. I have pointed out why this is so. 17. As to paras (c) and (d), it seems to me to be essential that the Commission should have formed a tentative view that the activities, the subject of the investigation, might amount to serious corrupt conduct (compare s 74BA of the ICAC Act). If it could not form such a tentative view, there would be no justification for the expense, both in terms of money and in terms of reputation, of conducting the public inquiry. It simply does not follow from anything the Commissioner said that there was some "predetermined agenda" of such force that "the Commission [had] already determined what findings of fact would be established… prior to any public hearing occurring". With the greatest of respect to the drafters of the summons, that gloss on the Commissioner's speech is not only unavailable on a fair reading, it is an improper distortion of her words. 18. The same may be said of para (e). Nor is there anything to suggest, in the present case, that the questioning of the witnesses (including, of particular relevance, Mr McCloy) was perfunctory or disingenuous. 19. As to para (f), the expression "show trial" was bandied about during the hearing. Again, that is an unavailable and irresponsible gloss on the Commissioner's speech. 20. Paragraphs (g) and (h) seemed to be intended to do no more than insult the Commissioner. There is no foundation for them in anything she said to the Bar Association. 21. In my view, nothing in the Commissioner's speech to the Bar Association, viewed in the context of both the whole speech and the circumstances in which it was given, could rationally cause the observer to draw any of the inferences suggested. Nothing in that speech is capable of suggesting any immutable commitment to a predetermined conclusion. 22. Equally fatally, neither the grounds nor the submissions in support of them sought to trace any logical connection between the matters that were complained of in those grounds and findings that the Commissioner was yet to make. There is no articulation of how, it might reasonably be thought, the matters complained of could demonstrate, as a real possibility, that the Commissioner might not bring an open and independent mind to the resolution of those questions. The case theory: grounds [9] to [48] 1. The complaint made in these grounds is that witnesses were treated differentially, according to whether their evidence was expected to conform to the "case theory already formulated by Counsel Assisting", or to be inconsistent with or adverse to that case theory. That proposition is said to be supported by an analysis of the evidence given by some seven witnesses, as covered in grounds [11] to [48]. It is also asserted (ground [10]) that the Commissioner did not "admonish, disclaim or otherwise discourage" conduct by Counsel Assisting that was said to be motivated by, or a manifestation of adherence to, the case theory. 2. As I have pointed out already, there are two problems with this, even before one comes to the facts. The first is that the "case theory already formulated by Counsel Assisting and the Commissioner" is not identified in the grounds. The second is that there is, of necessity (absent identification of the case theory), no demonstration of any, let alone any logical, connection between the supposed pursuit at all costs of that case theory and the unbiased resolution of the questions, as to Mr McCloy, that the Commissioner is yet to decide. 3. As to ground [10], there are two fundamental problems. The first is that, as I shall show, there was no such "conduct… engaged in by Counsel Assisting". The second, and perhaps more basic, point is that neither the grounds nor the submissions in support of them identify why it is that the Commissioner should have sought to restrict the pursuit, by Counsel Assisting, of topics of inquiry apparently relevant to the investigation by "admonishing, disclaiming, or otherwise discouraging" the lines of examination referred to in the grounds dealing with the seven individual witnesses. 4. I propose to examine in detail the complaints made in respect of the various witnesses referred to in these grounds. All of those witnesses gave evidence before Mr McCloy did so. None of them appears to have given evidence involving Mr McCloy. 5. I take that approach because, as I said at [33] above, I do not propose to examine each and every one of the grounds in any detail. However, I do accept that at least some of the grounds should be considered in some detail, for the purpose of making good the more general propositions that I set out at [263] and following below. It seems to me that the first group of allegations, relating to the case theory and the way that witnesses were examined in relation to that supposed case theory, is an appropriate vehicle for that task. 6. I note that in one of the authorities relied upon in the submissions for Mr McCloy, a similar approach was taken. See Keating v Morris [2005] QSC 243. In that case, Moynihan J considered a challenge to what his Honour called "the Bundaberg Hospital Inquiry". The challenge was based, as his Honour noted at [32], "on common law rules of procedural fairness which require a fair hearing for those likely to be adversely affected by a decision, report or recommendation and impartiality on the part of an inquirer". 7. At [52], Moynihan J said: It is not feasible to deal exhaustively with the detail and implication of each of the numerous occasions or occurrences relied on by the applicants to make out their case of apparent bias. I will refer to a number of illustrative occasions, some of more significance than others but each contributing, with the evidence overall, to the whole picture. 1. I accept that Moynihan J concluded that the plaintiff had demonstrated apprehended bias. I reach the opposite conclusion in this case. Nonetheless, to my mind, exactly the same considerations apply in this case. Mr Gunasinghe 1. The summons misstates the position in saying that Mr Gunasinghe was treated "with open aggression" by Counsel assisting or by the Commissioner. I have viewed the video recording of his evidence. There is no display of aggression, although – particularly in relation to a manifest inconsistency between his testimony in the public hearing and his earlier testimony in the private examination – he was pressed closely. 2. Whether or not Mr Gunasinghe "attempted to provide a correct statement of his evidence" is a question for the Commissioner to decide. This Court cannot and should not decide whether it is his evidence in the private interview or his flatly inconsistent evidence in the public inquiry (both under oath) that is correct. What is quite clear, and the observer would readily appreciate, is that both accounts cannot stand together. 3. The transcript and the video recording both make it clear that Mr Gunasinghe's evidence on the relevant topic came as a surprise to everyone but him. He was given, without solicitation by him or by the very experienced Queen's Counsel who appeared for him, a short adjournment to consider his position. When he was recalled (not "immediately", as asserted in the grounds) his evidence was directly challenged. That challenge included the replay of a recording of his evidence in the private interview. 4. Mr Gunasinghe sought to suggest that he was under pressure during the private interview. Accepting (as he said) that he had been given no prior knowledge of it, the fact is that he did not object to being interviewed (although he was told, quite clearly, that it was voluntary and that he could choose not to answer questions). He did not seek to stop the interview. He did not complain that he was being put under pressure to answer questions. He continued to answer questions until the questioner had finished. 5. From the recording of the interview, there is no visible trace that Mr Gunasinghe felt himself under pressure. His demeanour did not appear to be that of a man who was being harassed, or pressured. The questioning was in no way aggressive. The observer, who heard Mr Gunasinghe protest (in the public inquiry) that his earlier interview had been conducted under pressure, could well have thought that this evidence was: 1. inconsistent with observations of the recording of the interview; and 2. a last-minute attempt, in the witness box, to explain away the inconsistencies between his two accounts. 1. Perhaps the Commissioner should not have said that it was "an insult, … an insult to this Commission for you to sit there and maintain with a straight face that that was all done under pressure". Nonetheless, that was an entirely understandable reaction to what the observer might have thought was a ludicrous suggestion coming from the witness. 2. A judge is not bound to sit and listen to nonsensical evidence from a witness without expressing a view. Indeed, it may be desirable that the judge should express a view. See Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 at 571; see also Maxwell P (with whom Chernov and Nettle JJA agreed) in Anderson v National Australia Bank [2007] VSCA 172 at [81]. No higher standard can or should be expected of a Commissioner conducting an inquisitorial investigation. 3. Finally, I note that this is one of the very many grounds in the summons where the witness (and the evidence that he gave) had nothing whatsoever to do with Mr McCloy. Nor (as is the case throughout the grounds, and for that matter the submissions put in support of them) has any attempt been made to demonstrate a logical connection between the matter complained of and the findings required to be made, in respect of which, it is suggested, the Commissioner might have a closed mind. I do not propose to repeat these points, but they are relevant, and should be read as applying, to virtually all the complaints made in the grounds. Ms McKay and Mr Tinkler 1. The extracts from the evidence of Ms McKay and Mr Tinkler referred to in the grounds are taken out of context. It started when the solicitor appearing for Mr Tinkler asked Ms McKay (then a Labor member of Parliament for the seat of Newcastle) about approaches she had made to Mr Tinkler regarding sponsorship for a football team known as the Newcastle Knights. In the course of that, the solicitor asked a question which misstated (I have no doubt, innocently), the effect of this aspect of Ms McKay's evidence. 2. The Commissioner intervened. The debate between them was brief. The solicitor accepted that he had not put the correct question. He reformulated it, and his cross-examination continued. 3. There is nothing in the transcript or the recording to suggest anything other than that this was an incident of the kind that frequently happens in litigation (and, no doubt, in commissions of inquiry) where a legal representative for a party puts a question to a witness which innocently but significantly misstates an earlier aspect of the evidence of that witness. The observer would think that in those circumstances, it was entirely appropriate for the Commissioner to intervene, in the interests of fairness. 4. When, later, Mr Tinkler gave evidence, he said that Ms McKay had raised with him the question of financial support for her campaign. Senior Counsel assisting objected, noting that it was a "serious allegation". He submitted that it was an allegation that Mr Tinkler's lawyer had not put to Ms McKay. 5. When it was pointed out to the lawyer that the allegation might not have been put to Ms McKay, he withdrew the question. I note, in passing, that the Commissioner did not flatly say that it had not been put. She said that she did not recall its having been put. The lawyer did not attempt to show her, as clearly enough her comment invited, that it had been put. Accordingly, he withdrew the question. 6. The observer would think that it was unfair to seek to elicit evidence of that kind from Mr Tinkler when the allegation had not been put to Ms McKay. The question asked of Mr Tinkler invited him to give an answer that, if accepted, would suggest that Ms McKay had committed a criminal offence. 7. In any event, the matter did not end there. Ms McKay was recalled. The relevant material was put to her. Mr Tinkler was then recalled. The matter was raised with him. That was done through Senior Counsel assisting: the observer might think, quite appropriately. 8. The observer would also have been aware that when Counsel representing Ms McKay questioned Mr Tinkler, he elicited an answer which said that Ms McKay "never directly asked me for cash". The observer might have thought that this was entirely consistent with Ms McKay's evidence. The observer might also think that it was inconsistent with the thrust of the question put to Mr Tinkler by his legal representative, which elicited the objection and the Commissioner's intervention on the ground of fairness when Mr Tinkler was first giving evidence. 9. Before I leave this topic, I should note two things about the summons. Both relate to [28] of the grounds. 10. First, it is asserted "that the rules of evidence including the rule in Browne v Dunn did not apply in the public inquiry". It is of course correct that "the rules or practice of evidence" do not bind the Commission (see s 17(1) of the ICAC Act). The Commission's own Practice Direction stated at [14] that the rule in Browne v Dunn did not apply except as set out in [15] to [18]. At [15], the Practice Direction states that the rule in Browne v Dunn applies "[i]f the Commission is to be invited to disbelieve a witness"; in those circumstances, "the material grounds upon which it is said that the evidence should be disbelieved should be put to the witness so that the witness may have an opportunity to offer an explanation". 11. Given the complaints made about the Practice Direction elsewhere in the grounds, it is, to put it mildly, passing strange that the drafter apparently overlooked the provisions to which I have referred when drafting [28]. 12. The second matter is that it is asserted at [28] that when Mr Tinkler was recalled, "the Commissioner herself put to Mr Tinkler" a certain proposition. That is incorrect. The video recording shows quite clearly that it was Senior Counsel assisting who put those questions. It could hardly be suggested that it was beyond the province of Senior Counsel assisting to challenge those aspects of Mr Tinkler's evidence. 13. Finally, this is another ground of complaint where the Court is being invited to decide which of two witnesses should be believed. That is inappropriate in judicial review proceedings. Mr di Girolamo 1. In the passage of evidence referred to in the relevant grounds ([30] to [37]), Mr Nicholas di Girolamo was being questioned about an exchange of SMS messages that he had had with another witness: a Mr Timothy Koelma, whose activities lay at the heart of this aspect of the inquiry. One message recorded that Mr Koelma "spoke to Mike; he is happy to make a call … Mike is talking to someone relevant tomorrow morning…". 2. Mr di Girolamo was asked some questions about the message (to which he had replied). He said that he did not think that the "Mike" was Mr Gallacher, but that "it may well be… the Shadow Treasurer at the time". That person was Mr Michael Baird; now the Premier of this State. 3. A little later, Senior Counsel assisting (the questioning of Mr di Girolamo was being conducted by Junior Counsel assisting) intervened to make it clear, contrary to what was apparently happening in "the Twitter verse [sic]", that the "Mike" referred to was not Mr Baird "the Premier". He said, "if people are suggesting it was Mr Baird it's not". The Commissioner responded that, "we just need to, we just need to disabuse anybody who's listening that it is traceable to Mike Baird; quite the contrary". 4. Senior Counsel for Mr Gallacher did not object to any of this. At one stage, he appeared to have an open mind as to which "Mike" might have been mentioned. However, when Senior Counsel for Mr Gallacher examined Mr di Girolamo, he specifically made it clear "to the witness and to the Commission there is no suggestion of any wrong-doing or badness concerning discussions between" Mr di Girolamo and Mr Baird. 5. The matters complained of are said to be consistent with the case theory supposedly held by the Commissioner and Counsel assisting. I have to say that I simply do not understand how those matters could be consistent with any case theory that might include, as an element, an irremediable bias against Liberal Party ministers, members of Parliament, or officials. On the contrary, as it seems to me, everyone was being scrupulous to make it clear that there was no suggestion that an innocent "Mike" had been engaged in any of the matters on which Mr di Girolamo was questioned. 6. Nor do I understand how it could have been inappropriate in any way for Senior Counsel assisting to intervene, as quickly as possible, to correct the misapprehension that had developed from Mr di Girolamo's speculation as to the identity of the "Mike", or for the Commissioner to facilitate that course. 7. In my view, the observer would have thought, in the circumstances, that both Senior Counsel assisting and the Commissioner were acting with scrupulous fairness, to protect the reputation of a third party. Mr Carter 1. The complaint made (grounds [38] to [41]) has two elements. One refers to Senior Counsel assisting stating, when Mr Ray Carter gave evidence, that Mr Carter had "come clean". It is difficult to see what was wrong with that characterisation, given that Mr Carter had told one story (under affirmation) in his private examination and, as it turned out, a different and inconsistent story in the public inquiry. 2. In between those two events, Senior Counsel assisting had opened, in respect of this witness, by putting that his evidence in his private examination, "was false… [and] must have been deliberately false". The observer might well have thought that the evidence given by Mr Carter in his private examination (which was put up on the screen in the course of the opening) was directly inconsistent with documentary and other testimonial evidence. 3. Certainly, Mr Carter appears to have thought so. When given the opportunity to tell his story in the public inquiry, he gave a different version of events which: 1. was inconsistent with what he had earlier said; but 2. was consistent with the other evidence to which I have referred. 1. Mr Carter was represented by Counsel at the public inquiry. His Counsel did not object to the way in which Senior Counsel assisting approached the examination of Mr Carter. Nor did he seek to lead evidence from Mr Carter to suggest that Mr Carter had done anything other than "come clean". 2. The submissions for the Attorney-General describe this aspect of Mr McCloy's case as "a furphy". I agree. The observer would also agree. 3. The next element of the complaint in respect of Mr Carter relates to the indication given by Senior Counsel for Mr Chris Hartcher (Mr Carter had worked as an electoral officer for Mr Hartcher for many years) that he wanted to question Mr Carter for about an hour. It is said that the Commissioner responded in a way which to the observer might suggest exasperation. 4. Again, this takes the matter complained of out of context. Mr Carter had been in the witness box for more than two hours. He had health problems, which had been noted – there is no need to recount them. The Commissioner observed that his attention appeared to have been deteriorating. It is obvious that, after 4 o'clock, she might well have been surprised at a suggestion (if this were what Senior Counsel had intended to suggest) that the hearing should persist for another hour or so. 5. In any event, the observer would think, "so what?". I say that because, the next day Mr Carter gave further evidence. His was cross-examined over some 60 pages of the transcript, covering a period of 2½ hours. Cross-examination by Senior Counsel for Mr Hartcher occupied the bulk of that time. There is no suggestion that the cross-examination of Mr Carter was cut off or truncated at any point. 6. When the episode is put into context, the complaint can be seen to be misconceived. The observer would think it entirely reasonable that a witness with health problems, the results of which were apparently beginning to manifest themselves, should be spared a further hour of cross-examination on one day, on the basis that he could be cross-examined the following day. The observer would also think that there was no unfairness in this. Finally the observer would note that no complaint is made about any unfairness (impinging on Mr Hartcher or his Senior Counsel) in respect of that cross-examination the following day. Mr Webber 1. The complaint (grounds [42] to [44]) is that the Commissioner admonished Mr Darren Webber for a non-responsive answer, in circumstances where the answer was relevant to something he had said. The relevant material is taken out of context. When it is put into context, the Commissioner's comment, the subject of complaint, is seen to be entirely appropriate. 2. At the time in question, Mr Webber had worked, apparently on a casual basis, for members of Parliament including Mr Gallacher. He was asked about the date when he stopped so working. It appears that both he and Senior Counsel assisting were a little confused as to when precisely this was. 3. Mr Webber was questioned as to a business of which he was a co-owner called Webbbson [sic] Electro Technology Experts. It was suggested that Mr Webber had used this business to render false invoices, with a view to disguising, as legitimate business expenses, payments that were in fact made as political donations from prohibited donors. Mr Webber suggested that the invoices were rendered for work done, and prepared "for the purposes of lodging tax returns and legitimately paying tax…". 4. Mr Webber was then shown his diary. It was suggested to him that when he had a work commitment, he recorded it. No doubt, it was going to be put to him that there were no entries relevant to work the subject of the impugned invoices. When Mr Webber was invited to look at the diary, it being noted that it included appointments, work commitments, and the like, Mr Webber "just happen[ed] to open it up on August at the time when I was working for Mike Gallacher". He continued, "um, weren't you suggesting that I finished the ATS [Gallacher] work in February earlier in these proceedings?". 5. Senior Counsel assisting admitted defeat, "well you've trumped me there" but said, "let's just press on…". Mr Webber agreed, "okay". 6. It was at this point that the Commissioner intervened. She said to Mr Webber that she would, "really, … really advise you just to answer the question". She pointed out that if, "you start volunteering information we don't know where it's going to go". She asked, "so can we stick to the question": good advice to any witness. Mr Webber agreed to do so. 7. Mr Webber was represented by Counsel. His counsel did not intervene or protest, or suggest that the answer was in fact responsive. (He was wise not to do so, because plainly it was not.) 8. In my view, it is clear that the Commissioner was seeking to keep Mr Webber's evidence on track. In my view, the observer would have thought so. Equally, the observer would have thought, Mr Webber's non-responsive answer came at an important stage of his evidence, and could have been an attempt to deflect Senior Counsel assisting. After all, the examination had moved on for some 25 pages from the point when there was the confusion as to when Mr Webber ceased to work for members of Parliament. In the intervening pages, he was questioned about the payments and invoices to which I have referred. At no point did the questioning return to the topic that had been raised some 25 pages earlier. 9. The point sought to be made – that the Commissioner suggested that the evidence Mr Webber was expected to give "was only the evidence which Counsel Assisting wanted him to give" – is ludicrous. The Commissioner made it clear that she expected Mr Webber to attend to the questions asked of him, and to answer them in terms. That cannot be inappropriate. Nor could the observer think it so. Mr Hartcher 1. Mr Hartcher was, at the time he gave evidence, a senior Minister of the Crown for this State, and clearly a person of considerable influence in the affairs of the Liberal Party in at least the Central Coast region. One of the matters examined in Operation Spicer was the extent of Mr Hartcher's involvement in activities that, on the evidence adduced before the Commission, might reasonably thought to have been undertaken to circumvent the Election Funding, Expenditures and Disclosures Act 1981 (NSW) – the EFED Act (in particular, in so far as it relates to donations from developers) through the use of sham structures and transactions. 2. Mr Hartcher was represented by Senior Counsel. It is, I think, fair to say that his was among the most heated and confrontational evidence given in the Operation Spicer public hearing. 3. Certainly, it is clear that Mr Hartcher (not unnaturally) deeply resented being involved in the investigation, and deeply resented having to give evidence. Mr Hartcher and Senior Counsel assisting – both, it seems, men of a strong and independent cast of mind – appeared, perhaps intentionally, to aggravate each other. Between their conflicts and the numerous interventions of Senior Counsel appearing for Mr Hartcher, the Commissioner had a very difficult job in controlling this phase of the public hearing. 4. The particular complaints in this section of the grounds relate to two aspects of Mr Hartcher's evidence. In each case, the material complained of (in grounds [45] and [47]) is taken out of context. In each case, when the material is put into context, the inference that is said to be available disappears. 5. As to the first complaint: Mr Hartcher was being questioned at some length about arrangements that had been put in place between Mr di Girolamo and Mr Koelma. It was put to Mr Hartcher that he had been "involved" in the negotiations between those two men. 6. Mr Hartcher seems to have taken what might be thought to be an unduly narrow view of the meaning of the expression "involved in". This became apparent when the Commissioner intervened. Mr Hartcher accepted that, in the sense put by the Commissioner, he was "involved in" the relevant negotiations. 7. I should note two things. The first is that no objection was taken to the Commissioner's intervention, although Senior Counsel for Mr Hartcher had been, one might say, extremely proactive in intervening whenever the opportunity offered (and on many occasions when it did not). The second point, no doubt explaining the first, is that the Commissioner's use of the expression "involved in" – the meaning that she gave to it – was no more than a plain English approach to the connotation of those words. 8. The questioning continued. Mr Hartcher and Senior Counsel assisting appeared to disagree on almost every proposition put to Mr Hartcher. One matter that Senior Counsel put was that Mr Hartcher had been "involved in organising for [a company's] payments right there at its inception". Mr Hartcher denied this. Senior Counsel assisting said, "well, I'll just make a submission about it". He was about to move on when Senior Counsel for Mr Hartcher intervened. 9. The thrust of the complaint put by Senior Counsel for Mr Hartcher was that there was, "no reason for my learned friend… to say, "I will make a submission about it"." The Commissioner pointed out that there was a reason: namely, to ensure that Mr Hartcher knew that Senior Counsel considered his evidence to be untrue, and proposed to put a submission to this effect. One might think that this was a relatively straightforward application of the rule in Browne v Dunn, in circumstances covered by the Commission's Practice Direction (see at [148] above). 10. The Commissioner asked if, "can we please, can we please just move on". Senior Counsel for Mr Hartcher declined to do so, and persisted in arguing his point, despite the Commissioner's ruling. I have to say that in my view, Senior Counsel for Mr Hartcher was taking an untenable point to absurd extremes, in the face of a clear and appropriate ruling given by the Commissioner, for reasons that she briefly explained. In my opinion, the observer would come to the same conclusion. 11. The gloss put on this material by ground [46] is at best misconceived, and at worst mischievous. That paragraph suggests that "a fair minded observer would infer that the Commissioner assumed that the public questioning of witnesses was not an exercise in ascertaining the truth to be approached objectively, but was rather an exercise in putting persons on notice of prospective findings and giving them "the opportunity to respond"". 12. Mr Hartcher had been given every opportunity to explain his position. It was not necessary for Senior Counsel assisting to go all over that ground again. Nor did Senior Counsel for Mr Hartcher object (if that is the correct way to characterise his intervention) on the basis that Mr Hartcher had been denied the opportunity to tell his story in full. 13. The next complaint made, in relation to Mr Hartcher (in this section of the grounds), arises out of the same passage of evidence. Senior Counsel for Mr Hartcher continued to protest, despite the Commissioner's making it perfectly clear that she wanted the matter to proceed (so far as she could make herself clear over the interruptions of Senior Counsel for Mr Hartcher). The point finally emerged as, "… it's not asking him [Mr Hartcher] a question which gives him an opportunity to deal with it when he [Senior Counsel assisting] makes comments". 14. The Commissioner replied, "… he's [Mr Hartcher has] been given a lot of opportunities. Most recently his answers have been entirely unrestrained. So let's just keep going shall we". 15. The complaint made at [48] is that the "fair-minded observer would infer that the Commissioner expected that any responses to be made to prospective adverse findings would or should be "restrained"." That is, in my view, an gross distortion of what had actually happened, and been said. 16. The complaint made by Senior Counsel for Mr Hartcher was that Mr Hartcher had not been given an opportunity to respond to the "comment", which (as the Commissioner said) had been made to ensure that Mr Hartcher was aware that a submission might be made that this passage of his evidence was untrue. The Commissioner was pointing out, perhaps with a touch of irony, that Mr Hartcher had not, in the course of his earlier evidence, felt himself to be constrained by the question and answer format of his examination. Her observation was entirely accurate. One might think that Mr Hartcher did not perceive any need for there to be a logical or responsive connection between questions put to him and "answers" given by him. 17. The overwhelming impression that I get from this passage of the transcript (confirmed by the video recording) is that Mr Hartcher took any opportunity available to him to give his view of the general subject-matter on which he was being questioned; and that he did so whether or not his answer was responsive to the particular question asked. To my mind, the Commissioner's observation was correct. The observer, having listened to all of Mr Hartcher's evidence, would think the same. 18. No "fair-minded observer", who had sat through the whole of Mr Hartcher's evidence in the public hearing, could have thought that the Commissioner was suggesting that it was appropriate for witnesses to "restrain" their responses to a warning that unfavourable submissions might be made. On the contrary, the Commissioner was pointing out, correctly, that if Mr Hartcher had felt the need to respond, his recent unrestrained responses might suggest that he would take the opportunity to do so. 19. Mr Hartcher features in other grounds ([99] to [103] and [139] to [156]). They are among the grounds that I do not propose to examine in detail, for the reasons I give at [263] and following below. The only reason for mentioning them at this point is that when one examines the transcript from which, acontextually, the various passages are plucked, it is pellucidly clear that Mr Hartcher and Senior Counsel assisting did indeed, as the Commissioner put it, set each other off (in that context, the Commissioner pointed out, entirely appropriately, that, "I think everybody needs to take a backwards step".) The Practice Direction 1. Grounds [49] to [52] complain that the Commissioner "sought to enforce the Practice Direction" on specified occasions, "to impose… a procedural disadvantage on [the witnesses] where such a disadvantage would favour maintenance of the case theory…". The witnesses said to have been thus disadvantaged were Mr Tony Bandle, Mr Tinkler and a Mr Lusted. The Practice Direction 1. The relevant provisions of the Practice Direction are [7] to [13]: 7. Subject to the control of the Commission, counsel assisting will determine which witnesses are called and the order in which those witnesses are called and examined. It may be necessary to call some witnesses to give evidence on more than one occasion. 8. The Commission may decide to receive the evidence of a witness orally or by statement. The Commission will decide whether to require a witness giving evidence by statement to attend for examination or cross-examination. 9. Persons required to give evidence will be provided with appropriate notice of the time the Commission will call upon their summons to attend and give evidence. Witnesses with a particular period of unavailability are required to give notice of that unavailability to the Commission at the earliest possible opportunity. 10. The Commission will regularly publish on its website a list of witnesses proposed to be called each week of the public inquiry. 11. All witnesses will be called to give evidence by counsel assisting, and then examined by counsel assisting. If there is more than one counsel assisting the Commission there may be circumstances in which the witnesses might be examined by more than one of the counsel assisting the Commission. The witness may then be cross-examined by or on behalf of any person considered by the Commission to have sufficient interest to do so. The witness may then be examined by his or her own legal representative. Counsel assisting may re-examine. Duplication and repetition must be avoided. 12. In determining whether a person has sufficient interest to cross-examine a witness, the Commission may call upon the cross-examiner to: a. Identify the purpose of the cross-examination, b. Set out the issues to be canvassed, c. State whether a contrary affirmative case is to be made, and if so the details of that case. 13. The Commission may: a. Limit the particular topics or issues upon which a party can examine or cross-examine; b. Impose time limits upon examination or cross examination. 1. The Practice Direction was, no doubt, promulgated to assist the Commission in obeying the command of s 17(2) of the ICAC Act. It is also relevant to bear in mind, in considering the application of the Practice Direction, the Commission's power to permit cross-examination "on any matter that [it] considers relevant" (s 34(1)). 2. I accept that the application of the relevant paragraphs of the Practice Direction involves a value judgment to be made in each individual case. However, provided that the Practice Direction is not applied in a blanket fashion to limit, without individual consideration, every attempt to cross-examine that does or might not involve putting a "positive case", it does not seem to me to be inappropriate for the Commissioner to bear in mind the requirements of the Practice Direction in considering whether, and if so to what extent, to permit Counsel for a particular witness or interested party to cross-examine a particular witness. 3. There are passages in the transcript that suggest that Counsel assisting appeared to regard the Practice Direction – in particular at [12(c)] – as providing a universal and immutable limit on cross-examination. However, in none of the rulings that are challenged (to the extent that, on a proper reading of the transcript, there was a ruling based on the "positive case" direction) does it appear that the Commissioner took so inflexible a view. 4. The grounds at [50] refer to "rulings" made in the course of the cross-examination of each of Messrs Bandle, Tinkler and Lusted. Mr Bandle 1. Mr Bandle was a trustee of an entity known as the Free Enterprise Foundation. The activities of that Foundation appear to have included the provision of donations to the Liberal Party (and, it was said, its coalition partner the National Party). 2. Senior Counsel appearing for Senator Arthur Sinodinos cross-examined Mr Bandle. He asked Mr Bandle: [D]uring the 31 years that you have been one of the trustees… have you ever made any sort of agreement with any person that you would exercise your discretion in some particular way at that, at a particular time or at any particular time in the future? 1. Senior Counsel assisting objected, on the basis that the question did not relate to a "positive case" to be made out on behalf of Senator Sinodinos. Senior Counsel for Senator Sinodinos said: The positive case… that Senator Sinodinos puts on this is the facts that have emerged during this witnesses [sic] examination and that have been stated in the opening [which] do not amount in any way, shape, or form on any sensible understanding of the law to any sort of illegality. … 1. The Commissioner said that this was not a positive case. She and Senior Counsel for Senator Sinodinos debated the nature of a positive case. The debate then moved to whether the Practice Direction was a fetter on the Commission's powers and directions under the ICAC Act. 2. The debate continued for several pages of transcript. Senior Counsel for Senator Sinodinos said that he "just [had] to test… where the line is". He continued to do so, without being interrupted, for a number of pages. 3. The short point is that although the Commissioner and Senior Counsel for Senator Sinodinos were at odds as to what was required to demonstrate, and thus to put to a witness, a "positive case", the Commissioner did not prevent Senior Counsel from continuing his cross-examination, apparently along the lines that he required. That cross-examination continued for about 9 transcript pages. Although there were objections and interruptions, there was no ruling, in the course of that cross-examination, preventing it from continuing on the basis of the Practice Direction. Mr Tinkler 1. As to Mr Tinkler, the objection and ruling related to the matter referred to at [142] above: the question asking him whether Ms McKay had solicited a donation from him. As I have recounted, that question was rejected because, as the Commissioner (correctly) recalled, the allegation had not been put to Ms McKay. Then, again as I have recounted, Ms McKay was recalled; the allegation was put to her; Mr Tinkler was recalled; and the question was put to him. Mr Lusted 1. As to Mr Lusted: it is correct to say that, during his cross-examination by Senior Counsel for Mr Hartcher, Senior Counsel assisting objected, citing the Practice Direction. However, after extended argument, the objection was withdrawn and the question was put and answered. Conclusion 1. I simply do not understand how the argument based on the passages in the evidence of Mr Tinkler and Mr Lusted can be sustained. Indeed, I do not understand how it could responsibly have been put. As to Mr Tinkler: it was clearly a "positive case" question. Ultimately, the matter was ventilated, appropriately, by being put to both witnesses. As to Mr Lusted: there was no ruling based on the "positive case" direction. On the contrary, the objection was withdrawn and the question was put and answered. 2. The position is not really more complex in respect of Mr Bandle. It is clear that the Commissioner and Senior Counsel for Senator Sinodinos were at odds as to what constituted a "positive case". However, what is equally clear is that the Commissioner did not, by any ruling based on the "positive case" direction, prevent Senior Counsel for the Senator from pursuing his cross-examination. Matters said to have been put without a proper basis 1. The next group of grounds ([53] to [78G]) relate to "matters put to witnesses or in submissions without a proper factual or legal basis". Grounds [53] to [67] relate to Mr McCloy. I set out extensively at [273] to [324] below the way in which his evidence flowed. 2. As will be seen, there was no relevant unfairness, nor appearance of pre-judgment. Thus, I will not now deal with grounds [53] to [67]. 3. Many of the complaints in grounds [53] to [78G], and the submissions based on them, involve tendentious readings of the relevant passages of transcript. More fundamentally, they canvass matters that the Commissioner is required to decide. It seems to me to be self-evident that if it is said that something was put without a proper factual or legal basis, the party affected by it would make a submission to that effect, and that the Commissioner would be required to rule upon it. 4. For those reasons, and the reasons given at [263] to [272] below, I do not propose to deal with these grounds. "Matter for submissions" 1. This group of allegations (grounds [79] to [80B]) appears to be related to the "Practice Direction" grounds of complaint ([49] to [52], dealt with at [196] to [211] above). 2. The grounds at [79] identify some eight passages of the transcript where, it is said, "the Commissioner discouraged or refused to permit questioning by Counsel acting for various interested persons, or overruled objections to questions from Counsel Assisting, on the basis that such questions were merely on "matters for submissions"". 3. The first passage relied upon relates to an incident where Counsel assisting objected on the "matter for submissions" ground, but withdrew the objection – after the usual extensive debate. The question was asked and answered: something that would not be apparent to the reader of this ground. 4. The second passage relied upon relates to the debate between Senior Counsel for Senator Sinodinos and the Commissioner as to what constituted a "positive case". I have dealt with this already. And as I have noted, after that debate concluded (without a ruling, contrary to the submission put for Mr McCloy), Senior Counsel for the Senator was permitted to continue his cross-examination without any relevant interruption. 5. The third passage refers to a passage of evidence where, although the Commissioner said that the subject matter of the question was "a matter for submissions", in fact, ultimately, she accepted that the question was relevant. It was answered accordingly. 6. The fourth passage comes from the examination of Mr Hartcher. It does not relate to an objection to any question. In any event, the point that Senior Counsel for Mr Hartcher raised was accepted by the Commissioner and Senior Counsel assisting proceeded accordingly. 7. The fifth passage relied upon is taken out of context. When the relevant passage of transcript is examined in context, it seems tolerably clear that the Commissioner's intervention (and the objection of Counsel assisting) was based on the fact that Senior Counsel for Mr Gallacher had cut off the witness and did not permit her to complete her answer to his previous question. The previous question had put to the witness that she had given three (by implication, different) versions of a particular conversation. She commenced to answer, but got no further than saying "I" before Senior Counsel asked "which one is it". That was manifestly unfair because, apart from cutting off the answer, it assumed that the witness would have accepted the proposition that there were indeed three different versions. 8. In the subsequent debate, Senior Counsel for Mr Gallacher maintained that the transcript would show that there were three different versions. It was this that, the Commissioner said, could be made the subject of submissions. Significantly, Senior Counsel accepted this point and moved on. 9. The sixth passage concerns a debate over a question which in effect asked a witness whether evidence that he had given on a particular date was either false or inaccurate. The debate was not as to whether this was a matter for submissions. It was, rather, that in fairness to the witness, the particular passage or passages of evidence said to be false or inaccurate should be specified. It seems to me, and I have no doubt it would seem to the observer, that this was no more than a requirement that a question be put fairly. 10. The background to the seventh matter relied upon is that Senior Counsel assisting had asked a question of Mr Gallacher which assumed a particular construction of a particular provision of the EFED Act. Senior Counsel for Mr Gallacher objected, on the basis that Senior Counsel assisting had misunderstood, or misconstrued (or had not read), the particular provision. In that context, the Commissioner pointed out, understandably enough, that if the answer to the question did not provide anything relevant in terms of contravention of the EFED Act, that would indeed be "a matter for submissions". 11. Perhaps more significantly, the topic was not left at large. The Commissioner reframed the question (in terms that accommodated the objection taken by Senior Counsel for Mr Gallacher). No objection was taken to the reframed question. Mr Gallacher answered it. His examination proceeded. 12. The eighth and final passage relied upon takes the Commissioner's statement out of context. When the full context (including all of what she then said) is considered, it is obvious that the particular line of questioning was not cut off or discouraged. 13. Accepting that the question is to be judged from the perspective of the observer, having the attributes that I have ascribed to that mythical person, the various instances given at [79] of the grounds do not suggest anything other than that the Commissioner: 1. was trying to ensure that legitimate topics were properly explored in a way that was fair to the witnesses; and 2. in doing so, was attempting to proceed with as little formality and technicality as possible. 1. In my view, it would not be open to the observer, considering the matters rationally and in context, to derive from them even a tentative conclusion that the Commissioner's mind was made up, beyond the point of persuasion by evidence or argument. 2. Ground [80A] asserts, based on the first three matters referred to in ground [79], that the Commissioner and Counsel assisting conducted the inquiry on a mistaken view of the requirements of s 96I of the EFED Act. Up until 31 December 2015, s 96I created an offence where a person acted contrary to Division 4A of Part 6 knowing that it was unlawful so to act. From 1 January 2015, there was an offence if the person doing the act knew of the facts that made the act unlawful. 3. It is not at all clear to me how this could possibly amount to an indication of bias (and in this, it does not stand alone among the grounds). However, so far as Mr McCloy is concerned, it was specifically put to him, in respect of each donation that he made, that he knew he was acting unlawfully when he made it. Neither ground [80A] nor ground [80B], nor the submissions put in support of them, explain how ground [80A] could be tenable, given the form of the specific questions put to Mr McCloy. Supposed indications of political bias 1. Grounds [81] to [90] suggest that: 1. statements made and questions asked by Counsel assisting were indicative of political bias, namely bias against the Liberal Party and its members; and 2. because the Commissioner failed to admonish Counsel assisting for making those statements or asking those questions, it might reasonably be inferred that she shared this bias. 1. The first and obvious point to make is that Operation Spicer was connected to, and effectively heard in tandem with, Operation Credo. Operation Credo concerned very serious allegations of corrupt and illegal conduct made against Labor politicians (including former Ministers of the Crown): Mr Obeid, Mr Tripodi and Mr Kelly. 2. Further, the scope of the Operation Spicer investigation was extended in August 2014. That was done to permit investigation of the conduct of Mr Tripodi and another Labor politician and former Minister, Mr Eric Roozendaal. 3. Finally (at the preliminary level), the scope of Operation Spicer was expanded again, in September 2014, to examine among other things suggestions that Mr Tripodi (I repeat, a Labor politician and former Minister) had sought to undermine Ms McKay (then the sitting Labor member for the seat of Newcastle, and a candidate for re-election). 4. These grounds embody the Vos fallacy. That is, they attribute the statements made and questions asked by Counsel assisting to the Commissioner. To that extent, the complaints must fail, for the reasons I have given. 5. Further, no basis is shown for the proposition that the Commissioner was under some duty to admonish Counsel assisting. To the extent that Counsel assisting made statements in the course of their opening (or other) addresses, the question is really whether what was opened has been made out by the evidence. And to the extent that the matters relied upon arose in the course of questioning, it is relevant to consider whether Counsel representing the particular witness took objection (none did). 6. Closer examination of these complaints would require detailed analysis of many pages of transcript. To my mind, that is not justified. Even if the passages relied upon showed some indication of the political sympathies of Counsel assisting (and I am not to be taken as thinking that they do), there is no basis on which the observer could rationally apprehend that: 1. the Commissioner might share those hypothetical sympathies; and 2. as a result, might be incapable of bringing an unbiased and open mind to a consideration of the facts and submissions. 1. There is simply no basis on which the hypothetical sympathies of Counsel assisting could be imputed to the Commissioner. I have said why this is so. In so far as the argument is based on the Vos fallacy it is, self-evidently, fallacious. And in so far as the argument depends on the existence of some duty to admonish, there is simply no such duty. Supposed lack of even-handed treatment 1. Grounds [91] to [165] involve tendentious assertions about acontextual snippets of evidence given by various people. For the reasons I give at [263] to [272] below, I do not propose to deal with those grounds. Supposed appearance of personal interest 1. Grounds [166] and [167] refer to an article in the Australian Financial Review (AFR) published on 25 July 2014. That article was accompanied by a photograph of Senior Counsel assisting, seated in the corner of a boxing ring. In the body of the article, various comments were attributed to Senior Counsel assisting. The hearing before me proceeded on the basis that words attributed to him in direct speech (i.e., enclosed by quotation marks) should be taken to have been said by him to the journalist concerned. 2. The article is also the subject of grounds [89] to [90]. In those grounds, reference is made to one comment attributed to Senior Counsel assisting, "I have never known anybody to kick and scratch more than the bloody Liberal Party". That is said (in ground [89A]) to lead to the reasonable conclusion that Senior Counsel assisting was hostile to the Liberal Party, its members and associates, and that the Commissioner was of a like mind. Ground [90] asserted that the Commissioner had never admonished Senior Counsel assisting for what was said by him. 3. The complaints at [166] range a little more widely. They refer to various things said by Senior Counsel assisting in the course of the interview, as a result of which, it is said ([167]) that Senior Counsel assisting was aggrandising himself and demonising the persons and institutions who were the subject of the investigation. 4. If I may say so, these complaints are no more than a beat-up. It may or may not have been wise for Senior Counsel assisting to agree to be interviewed by a journalist in the course of the Operation Spicer public inquiry. It may or may not have been wise for him to pose for the photograph that was published. It may or may not have been wise for him to say what he did as set out in that article. 5. However, nothing in the material referred to in the grounds, or in the submissions put in support of these grounds (and I am referring to both aspects of the complaints arising out of the article) demonstrates any possible basis for ascribing to the Commissioner any of the comments made by Senior Counsel assisting. More importantly, there is no basis shown in the grounds or in the submissions to ascribe to the Commissioner the views that, it is said, could be imputed to Senior Counsel assisting based on his remarks. 6. The AFR article was raised in the course of the public hearings. Senior Counsel assisting referred to it, in particular to his attribution of "certain negative characteristics to the Liberal party". He said: I wish publicly to withdraw the remark. It was not intended to apply to the Liberal party as an organisation, and I expressed myself carelessly in that respect. I wish to make it clear that throughout Operation Credo and Operation Spicer the Liberal party has in fact cooperated fully with the Commission and its investigators. 1. A little later, and after submissions from Senior Counsel for Mr Gallacher and Mr Hartcher, the Commissioner referred to the article and said that what Senior Counsel assisting had apparently said as to the Liberal party: …[W]as a comment that Counsel assisting made in the exercise of his discretion, the Commission simply had no input to that, it was a personal comment that Counsel made and one that he felt personally and professional obliged to withdraw. … the Commission had no role to play in either the interview that Counsel assisting gave or the comments that appeared therein. 1. It has not been suggested (nor could it be, with any semblance of propriety) that the comments made by the Commissioner were disingenuous or dissembling; that they did not correctly reflect both what had happened and her attitude to it. None of the grounds that depend on the AFR article make any reference to what the Commissioner said. Nor is there any reference to what Senior Counsel assisting said, withdrawing his comment. Nor are those matters referred to in the written submissions relating to these grounds. 2. The submissions do call in aid the Barristers' Rules. Whether or not the conduct of Senior Counsel assisting involved any breach of the relevant rules is irrelevant. What is relevant is what the observer would make of both the comments and the statements made concerning them in the course of the public hearing, as summarised above. 3. In my view, the observer would accept that the statements made, by the Commissioner were truthful. Indeed, in my view, any other view of those statements would be irrational. Thus, and regardless of what the observer might think about Senior Counsel assisting, the simple fact that the Commissioner had publicly and clearly disassociated herself from his comments would dispel any possible apprehension of bias that might have lingered had the Commissioner not acted as she did. 4. Further, in and any event, it is my view that the observer would understand the explanation given by Senior Counsel assisting, and his clear public retraction of the particular comment in relation to "the bloody Liberal party". 5. In my view, those grounds are both misconceived and mischievous. They should not have been raised. Obligations of Counsel assisting under the Barristers' Rules. 1. These grounds ([170] to [172]) raise an issue as to the extent to which the obligations cast on prosecutors by the relevant rules (75, 76, 82, 84, 85 and 94) apply to Counsel assisting the Commission in an inquiry. 2. Whether or not those rules apply is irrelevant. If they do, and if Counsel assisting breached them in any way (and I am not to be taken as suggesting, let alone finding, that there was any breach) there are other remedies available. The question is whether anything in the grounds, or in the submissions made in support of them, is capable of creating a reasonable apprehension of bias on the part of the Commissioner. 3. It is not possible to discern any relevant connection between the conduct that is the subject of these grounds and the Commissioner, such that the conduct could be said rationally to lead to a suggestion that the Commissioner might not bring an open and impartial mind to her evaluation of the evidence and the submissions. 4. That is enough to dispose of these grounds. But there is another and more fundamental reason why they must fail. 5. The underlying premise appears to be that Senior Counsel assisting put questions to Mr Gallacher without any reasonable basis for doing so. There was an extended debate between Senior Counsel for Mr Gallacher and the Commissioner in respect of these questions. It is obvious from the transcript that there is a hotly contested question as to whether the matters put to Mr Gallacher were correct. It follows that there is an equally hot contest as to whether there was any proper basis for putting those matters. If the Court were to decide the substance of this complaint, it would be required to investigate, and arrive at a firm view on the proper conclusion to be drawn from, the facts in question. That, as I have said repeatedly, is beyond the province of judicial review. It is a matter for the Commissioner. Unfair access to documents; unfair scheduling of witnesses 1. The complaints in these grounds ([173] to [193]) appear to assume that the procedures in the Commission should be the same as the procedures currently adopted in courts of law. Thus, they appear to assume that a witness called to give evidence in a public examination is entitled to have prior notice of the matters to be put to him or her, and of the documents on which he or she is likely to be examined. That underlying assumption is fallacious. 2. The Commission is an investigative body. The procedures that it adopts should be structured, consistently with the relevant provisions of the ICAC Act, so as to enable it to discharge its investigative function with the greatest efficiency. One important weapon that it has is the ability to examine witnesses without their being given some opportunity, based on knowledge of the matters to be covered or the documents to be deployed, to concoct a story. See Grove J in Aristodemou (at BC 8901329 at 11); and see also Hunt CJ at CL in Donaldson (at BC 9507330 at 12-13, 16-17). 3. The requirements of natural justice, within the confines of the ICAC Act, are met sufficiently if the witness is given an adequate opportunity to put forward his or her story, to cross-examine (where appropriate) witnesses who implicate him or her in corrupt conduct, and to put submissions on the whole of the evidence. Nothing more is required. 4. In any event, none of the matters complained of, said to demonstrate unfair and prejudicial treatment, relates to Mr McCloy. All relate to the examination of witnesses who gave evidence before he was called. Even if there were some relevant unfairness (that is, unfairness outside the scope afforded to the Commission by the relevant provisions of the ICAC Act) in the way that some previous witnesses had been treated (and I am not suggesting, let alone finding, that there was), it is impossible to see how this could raise any reasonable apprehension of bias in the case of Mr McCloy, when he makes no complaint of such treatment in his own examination. 5. There is no rational basis shown, by the grounds or in the submissions, upon which the observer could draw some link between the alleged treatment of those other witnesses (I say "alleged" because the extracts from the transcript are again acontextual and misleading) and the treatment of Mr McCloy, so as to ground a reasonable suspicion that the Commissioner might not bring an open and impartial mind to the evaluation of all the evidence concerning Mr McCloy, and the submissions put in respect of it. Remainder of allegations in the grounds 1. It will be apparent from what I have said that there are a number of repeated problems, or fallacies, that are manifested throughout the grounds that I have dealt with, and the submissions put in support of them. Those problems and fallacies are not limited to the grounds that I have examined. They affect, to a greater or lesser extent, all the grounds. Thus, I do not propose to deal in any detail with the remainder of the complaints alleged in the grounds. There are several reasons for this. 2. First, in every case, the matter complained of is quoted selectively and out of context. In every case, when the matter is placed in context, the characterisation put upon the material is seen to be unsustainable. In some cases, this is because the characterisation in the grounds is simply wrong. In other cases, it is because the context removes the sting which might otherwise be perceived. 3. It is regrettable that the drafting approach taken involves what appears to be selective quotation, devoid of context, which produces a most misleading impression. It is even more regrettable that in some cases, the characterisation of the material is, as I have said, shown to be incorrect when the material is placed in context. 4. Second, in most cases, the material complained of has no relationship to the allegations made against Mr McCloy. In those cases, the failure to articulate any logical connection between the material complained of and the findings that are to be made in respect of the allegations against Mr McCloy is critical. In those cases, there is no point in examining the "merits" of the matters complained of, for the purpose of showing they have none. Even if the complaints were a correct characterisation of what happened, the failure to link them to the findings that are to be made means that they go nowhere. 5. Third, it is necessary to bear in mind that the witnesses whose evidence has been combed over were represented, quite often by Senior Counsel of experience and ability; Senior Counsel who might be thought not at all backward in taking whatever steps they regarded as appropriate and proper to protect their client's interests. Yet in many cases, no objection was taken at the time to the material of which complaint is now made. Specifically, although in many cases it is sought to characterise the material complained of as demonstrating unfairness or bias, no objection on that ground was taken. It is not difficult to infer that, to those involved in the hearing at the time, the material now complained of was not perceived to bear the complexion that is now sought to be put upon it. 6. Fourth, in many cases, resolution of the complaints would require this Court to go to, and decide upon, the merits of the point sought to be made. That is because the point sought to be made in many cases assumes a particular view of the facts, or of the relevant legal principles. As I have now said several times, it is not the function of this Court to descend into and make decisions upon the merits of the various allegations made against particular witnesses. That is the function of the Commissioner. Yet it is only if this Court were to usurp the Commissioner's function that many of the points sought to be made in the grounds could be resolved in favour of Mr McCloy. 7. Fifth, some of the grounds make allegations of actual bias. That is not the basis on which relief is sought. Accordingly, those allegations should not have been made, and should not be dealt with. The case for Mr McCloy has only ever been one of reasonable apprehension of bias. He should not be permitted, particularly in submissions, to go further. 8. Sixth, many of the matters complained of are based on the "Vos fallacy": the attribution of what was said by Senior Counsel assisting to the Commissioner, with the suggested consequence that it represented the Commissioner's actual views. For the reasons I have given, that is a false argument, based on a misreading of the decision in Vos. 9. Seventh, and by way of summary overall, the approach taken in the drafting of the grounds, involving combing through the transcript and the selective extraction, in a way that, devoid of context, is misleading, would require many many pages of reasons if a full examination were to be undertaken. The submissions for the Attorney-General, which respond in detail to the allegations in the grounds, are almost 200 pages long. Most of those pages are concerned with placing into context, for the purpose of rebutting, the points sought to be made in the grounds. 10. In my view, for all the reasons just indicated, it is not an appropriate use of the Court's time and resources to undertake that task. Although this is important litigation, it is nonetheless civil litigation. Section 56 of the Civil Procedure Act 2005 (NSW) applies. Bearing in mind the matters to which I have referred, the overlapping reasons for which these remaining grounds must fail make it pointless to descend into the detail of each and every one of them. The evidence of Mr McCloy 1. As I have said, Mr McCloy gave evidence on two occasions: 14 August and 12 September 2014. On each occasion, he was represented (by leave of the Commission) by Senior Counsel. 2. The first topic covered in Mr McCloy's evidence (after formalities) concerned the circumstances in which he was asked to, and did, donate $10,000 to Mr Tim Owen (then a Liberal candidate, and subsequently the member, for the seat of Newcastle). 3. Messrs McCloy and Owen had not met before the donation was made. They arranged (or an arrangement was made for them) to meet in Hunter Street, Newcastle. They introduced themselves, went to Mr McCloy's car, and without further ado, Mr McCloy handed over an envelope which proved to contain $10,000.00 in cash. Mr McCloy was asked how he came to do that. He gave an answer which could be described as less than responsive, but in which he explained, in detail and his own words, his reason for making the donation. 4. The complaint made in the summons is that the payment to Mr Owen could not amount to bribery at common law, because Mr Owen was not, at the time the payment was made, a public official (ground [55]). 5. As I understand the submission put in support of this ground, it is that the Commissioner should have rejected the question, because the payment in question could not amount to a bribe. I do not agree. It is by no means clear-cut that a payment can only be a bribe if the recipient of it is a public official at the time it was made. Put conversely, it might seem strange that there is no bribery when a payment is made to a person who is not when the payment is made a public official, but who has at least reasonable prospects of becoming one shortly thereafter. 6. In any event, the question is one for the Commissioner to deal with. It can hardly be suggested that she is not equipped, by reason of her training and experience, to decide that question. 7. The ground and submission invite the Court to rule on the matter. That again involves a departure from the proper limits of judicial review. It is an invitation to the Court to descend into the merits of the particular dispute. 8. The summons also suggests (ground [54]) that it might appear that there was no serious challenge to the explanation that Mr McCloy gave for making the payment to Mr Owen. Again, whether or not that is so is a matter for the Commissioner (who, I might add, has had the benefit – and burden – of hearing and reading, and no doubt re-reading, all the evidence). It is for the Commissioner to decide what to make of the explanation, and of such submissions as may have been put in respect of it. 9. The questioning of Mr McCloy continued to explore the circumstances in which he came to meet, and give $10,000.00 in cash to, Mr Owen. It was suggested, apparently on the basis of "telephone traffic", that the meeting might have been organised by or through Mr Michael Gallacher, then a Liberal member of Parliament for a seat on the Central Coast or in the Hunter Region, and a Minister of the Crown for this State. No complaint is made about that aspect of Mr McCloy's evidence. He was given every opportunity to say what he could about the matters put to him, and indeed about Mr Owen's evidence on the topic of the donation. 10. Mr McCloy was then asked about a cash payment he had made to a Mr Thompson (who I think may have been an intermediary for another candidate), and about a cash payment that he had made to a Mr Andrew Cornwell, who was the Liberal candidate, and subsequently member, for the seat of Charlestown. No complaint is made as to any aspect of this evidence. Again, Mr McCloy was given every opportunity to say what he wanted to say in relation to the matters asked of him. His evidence went so far as to accept that he had caused a company controlled by him to make a donation to the Liberal Party through the mechanism of paying "a false invoice". 11. Mr McCloy was then asked about other donations that he had made, including to a Mr Garry Edwards, the Liberal candidate, and subsequently member, for the seat of Swansea. It was in the course of giving this evidence that Mr McCloy volunteered, "I feel like a walking ATM some days". 12. Mr McCloy was then asked about donations he had made, or might have made, to other people. In the course of this, he was questioned by reference to what he had said in his compulsory examination. It was put to him, firmly but fairly, that what he had then said was different to the evidence he was giving in the public hearing. No complaint is made of this; and in any event, two things may be said. The first is that there was a proper basis for putting the questions. The second is that whether there is a difference, and if so the significance of that difference, is a matter for the Commissioner. 13. I should mention that in the course of cross-examination based on the suggested differences between his earlier evidence (compulsory examination) and present evidence (public inquiry), the Commissioner intervened to bring his mind back to the point, and to give him an opportunity, in an open-ended way, to deal with the question that was put to him. Mr McCloy took advantage of the opportunity thus offered. 14. The questions then returned to the topic of Mr McCloy's donation to Mr Owen. Mr McCloy suggested that there was some doubt in his mind. The Commissioner then gave him an opportunity, "as a matter of fairness" to explain himself. He took this opportunity. 15. At one stage, Senior Counsel assisting spoke over Mr McCloy. There was an objection (not by Senior Counsel for Mr McCloy, but by Counsel for another witness, a Mr Hilton Grugeon), "let him answer the question". The Commissioner intervened, "perhaps, perhaps let him answer the first question". Senior Counsel assisting apologised. The Commissioner took Mr McCloy back to the first question, and he was given an opportunity to answer it. He took the opportunity. 16. The questioning then turned to Mr McCloy's understanding of the restrictions on political donations by property developers. The relevant prohibitions were and are contained in the EFED Act, in particular at Division 4A of Part 6, s 96GAA and following. It is not necessary to go to the detail. 17. Mr McCloy was asked whether he had declared the donation to Mr Owen's campaign. He said that, "the recipient's got that obligation". It was put to him that he was wrong, and appeared to concede this. He was asked whether, as Lord Mayor of Newcastle, he would have made such a mistake. It is at this point that he was twice referred to as "Mayor McCloy", and once as "Mr Mayor". That is the subject of complaint (grounds [158], [159]). It is suggested that this was no more than a sarcastic attempt to insult and aggravate Mr McCloy. 18. I accept that the reasonable observer may have thought that the references to Mr McCloy as "Mr Mayor" or "Mayor McCloy" were somewhat sarcastic. I accept, further, that the observer might think it passing strange that a businessman of Mr McCloy's experience and obvious ability, who was a man with a very keen interest in politics, and who had held office as Lord Mayor of the City of Newcastle, was completely ignorant of at least the substance or effect of the relevant provisions of the EFED Act. In my view, the observer could very well think that the questions were no more than an advocate's way of making the obvious point, that one would expect a person with Mr McCloy's experience, abilities and political background to have at least a rudimentary understanding of the substance and effect of the electoral funding laws. 19. At this point in the summons (i.e., ground [158]), complaint is also made of references to Mr McCloy's motor vehicle. I do not think that the reference to his car was irrelevant; but in any event, the way that it is characterised in the summons is incorrect and, as a result, misleading. I note that in fact it was Mr McCloy who first mentioned the make of his car. 20. Mr Owen had thought that he met Mr McCloy in a car, but could not recall whose. Senior Counsel assisting inquired whether it was Mr McCloy's "flash car" (without mentioning the make), in an attempt to jog Mr Owen's memory. Likewise, in questioning Mr Cornwell, Senior Counsel assisting was asked whether the meeting was in "a flash car". Mr Cornwell said, "I believe it was his Bentley". 21. In my view, the observer would think that the references that Senior Counsel assisting had made to the "flash" qualities of Mr McCloy's car were made for the legitimate purpose of jogging the memory of the witnesses whose meetings, for the purpose of receiving Mr McCloy's donations, took place in that car. And as I have noted, Senior Counsel assisting refrained from identifying the make of the car in question. 22. Mr McCloy was then asked whether he was a property developer. His descriptions of himself and his companies' businesses, taken from his website, were put to him. He was then asked whether he "still maintain[ed] that [he] could legitimately donate", either in person or through a company, to a political campaign. He started to answer, and was cut off. He said that he would answer, "my way if I can". The Commissioner gave him permission to do so. Mr McCloy took advantage of the opportunity thus offered to him. 23. Mr McCloy was then asked further questions about his companies' development activities, including in areas that were within the various state seats, the candidates for which had been assisted by his donations. Again, he was given every opportunity to answer the questions in his own way. 24. I should note at this point that the only objection taken to the way in which Mr McCloy was questioned was that to which I have referred at [287]. On that occasion, as I noted, the Commissioner intervened to permit Mr McCloy to answer the question. 25. The evidence then turned to Mr McCloy's dealings with a Mr Alan Robinson. He was a Councillor for the City of Newcastle, who it seems voted regularly with Mr McCloy's "Group" or "Block". Mr McCloy was asked in effect whether he had paid for Mr Robinson's electoral expenses. In the course of this, Mr McCloy was cut off. The Commissioner intervened (without objection from Mr McCloy's Senior Counsel) telling Senior Counsel assisting to, "just let him finish". Again, Mr McCloy took advantage of that. 26. When Senior Counsel assisting replied with some degree of asperity to an answer given by Mr McCloy again the Commissioner intervened to give Mr McCloy the full opportunity that obviously he wanted to answer the questions in his own way. 27. The passage of Mr McCloy's evidence concerning Mr Robinson is the subject of complaint in the summons (ground [160]). The complaint is that the matters were put "without prior notice". The force of that complaint may be judged by the fact that no objection was taken to the questioning at the time, although as I have said Mr McCloy was then represented by Senior Counsel. 28. It is also said, by reference to documents that are not in evidence, that the matters put to Mr McCloy concerning Mr Robinson were not correct. Whether or not they were correct, and whether or not the documents in question have anything to do with the matter, are for the Commissioner to decide. Again, it would be outside the province of judicial review for this Court to decide the merits of the contentions that are now put. 29. The course of questioning of Mr McCloy then travelled back to Mr Edwards, and from there again to Mr McCloy's occupation, suggested to be that of "a property developer". He was directly challenged on this. His response was, that there are "two senses of property developer". There was then a somewhat heated exchange, in the course of which (for the first time) Senior Counsel appearing for Mr McCloy did object. The Commissioner intervened, and asked Mr McCloy to explain what the "two senses" were. He took the opportunity. The Commissioner asked him further questions to draw out the significance, in his mind, of the distinctions. 30. So far from demonstrating bias, prejudgment or unfavourable treatment, this section of the transcript shows very clearly that the Commissioner was concerned for Mr McCloy to have every opportunity to explain himself in his own words. 31. Mr McCloy was then asked about a bundle of documents that he had produced, apparently for the benefit of the media. They included a poem by "Mother Therese" or "Mother Theresa". He was asked some rather pointless questions about this. Senior Counsel assisting commented "oh, it's just rubbish". He was reprimanded by the Commissioner, and apologised. The Commissioner gave Mr McCloy the opportunity to explain what was in his mind the significance of the poem; indeed, she did so in a way that might have been thought helpful to him. 32. Mr McCloy was then asked whether he had had a meeting with Mr Owen when Mr Owen "was due to give evidence in a private session". After two questions, Senior Counsel assisting apologised and said, "I better let you tell your own story". Mr McCloy took the opportunity. 33. In the course of this passage of evidence (and perhaps not unsurprisingly, given the subject-matter) there was an outbreak of strife at the bar table. Senior Counsel (not for Mr McCloy, but for Mr Gallacher) objected to Mr McCloy's being cut off. I might say that the reasonable bystander could think that the answer that was cut off was entirely non-responsive; but that is a matter for the Commissioner. The Commissioner intervened. She asked everyone to, "please just settle down". With order restored, Senior Counsel assisting apologised to Mr McCloy and asked Mr McCloy to, "go on", as did the Commissioner. Mr McCloy took that opportunity. 34. Mr McCloy was then asked further questions, including about his knowledge as to the legality of the donations that he had made. There was an objection when Senior Counsel assisting cut off an answer. Senior Counsel assisting apologised. Mr McCloy completed his answer. The evidence continued. 35. Thereafter, once Senior Counsel assisting concluded his examination, Senior Counsel for Mr McCloy was given the opportunity to, and did, ask questions of Mr McCloy. 36. The first tranche of Mr McCloy's evidence then ended. The overwhelming impression that it leaves is that the Commissioner strove to ensure that Mr McCloy was given every opportunity to answer questions in his own way, and from time to time intervened both to rebuke Senior Counsel assisting and to assist Mr McCloy to return to the topic from which he had been distracted. 37. To my mind, the reasonable observer would think that although the examination of Mr McCloy could be described, in many places, as "robust", it was not unfair. And that observer would certainly think that the Commissioner had intervened where appropriate to ensure that appropriate standards of fairness were maintained, and that Mr McCloy had a proper opportunity to tell his own story in his own way. 38. I turn to the second tranche of evidence given by Mr McCloy. He was asked questions about "funds" that he had paid "into [Mr] Craig Baumann's 2007 election campaign". Mr Baumann had been for many years, a Councillor on the Port Stephens Shire Council. From March 2007 until March 2015, he was a Liberal member of Parliament for the State seat of Port Stephens. He moved to the crossbenches on 12 September 2014. 39. Mr McCloy accepted that the payments in question appeared to have been effected through the creation of sham documents "to suggest that you were actually doing business with" a company controlled by Mr Baumann. He could not remember why that was done. He said, "that was the method that, that it got into his account, I would have paid that for his election campaign, there's no doubt about it". 40. Mr McCloy was then asked a number of questions as to the ability of Mr Baumann (presumably, in his capacity as a Councillor) to make favourable decisions in respect of the rezoning of a property owned by one of Mr McCloy's companies in the Port Stephens Shire. He was asked whether this could provide a financial benefit. He gave a lengthy, and essentially non-responsive, answer. He was then asked to look at an exhibit, which apparently comprised a bundle of newspaper clippings. He was asked whether various matters alleged in that material were correct. 41. It was put to Mr McCloy, and he accepted, that he had not made any declaration, pursuant to the EFED Act, for the money paid for Mr Baumann's election campaign. He was asked whether he knew he was required to make a declaration, and gave a reply that was cut off. He was then asked why it wasn't done. He gave an answer, to the effect that he did not like being named as a political donor, "and it was a way I believed to get around that". 42. Mr McCloy was then asked, having regard to Mr Baumann's positions, "what are we supposed to make of it… it looks as though you, a powerful businessman, were making secret donations to a powerful politician…, don't you agree?" He gave an answer that was non-responsive. However, when pressed, he accepted the proposition put to him, "it does look like that". 43. It was then put to Mr McCloy that, "you could make a lot of money, don't you see that?". He gave an answer which was non-responsive. Although he was interrupted in this, he continued to give the answer that he wanted. 44. It was then put to Mr McCloy, "that you're actually buying Baumann, buying Craig Baumann and a favourable decision". His response was that Mr Baumann could not give a favourable decision. 45. The Commissioner then put to Mr McCloy that the question had been framed "in terms of the appearance… in terms of the appearance at this arrangement". He appeared to accept that the appearance could exist. However, he repeated his proposition, that Mr Baumann could not make the decision in his own right. 46. It is to be noted that at no stage during this passage of Mr McCloy's evidence was any objection taken by Senior Counsel appearing for him, who was present on 12 September 2014. 47. Counsel for Mr Baumann then asked questions of Mr McCloy, as did Counsel for Mr Grugeon (another property developer, who also had interests in land in the Port Stephens Shire area). 48. Senior Counsel for Mr McCloy was asked whether he wished to ask any questions. He replied, "no questions, thanks". There was no examination in reply. Mr McCloy stood down. 49. There is nothing in this section of Mr McCloy's evidence that could rationally give to the observer any reason to think, that Mr McCloy had been unfairly treated, or that he had been refused the opportunity to tell his own story in his own words. Nor is any suggestion to the contrary put in the summons. 50. The only complaint made in relation to this aspect of Mr McCloy's evidence (grounds [64] to [69]) is based not on the evidence of Mr McCloy, but on the evidence of Mr Baumann, who immediately preceded Mr McCloy in the witness box. The complaint relates to the way in which Senior Counsel assisting put the bundle of newspaper clippings before Mr Baumann, and referred to the headlines. It must be said that some of the headlines, and some of the material in the articles, were of a sensational nature. 51. Nonetheless, as it seems to me, this was a legitimate topic to explore. The fact that Mr McCloy had made, but not (as required) declared, donations to Mr Baumann was not disputed. Mr McCloy accepted those matters. It was legitimate in my view to ask why a sham structure had been put in place to disguise the making of the donations. And it was legitimate to explore the topic of whether there was a corrupt purpose underlying them. 52. In truth, that is all that was done. The extent to which the headlines and contents of the articles were read aloud, in the course of Mr Baumann's examination, was both limited and appropriate. Orders 1. I order that the further amended summons be dismissed with costs. 2. I direct that the exhibits be returned. ********** 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 December 2015