Cassell v The Queen S110/1999 [1999] HCATrans 487 (18 November 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S110 of 1999

B e t w e e n -

BARRY JOHN CASSELL

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 NOVEMBER 1999, AT 10.15 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI: If the Court pleases, I appear for the appellant in this matter. (instructed by Peter C. Prior & Co)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent. (instructed by S.E. O'Connor, Director of Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Papayanni.

MR PAPAYANNI: The point here is the question as to whether the presumption of regularity applies in this particular case. We put it that it is an important matter, even though it may be a small point in a criminal case because of the situation of the presumption of innocence in the first place and also that the presumption of regularity does not displace that in this particular criminal case.

GLEESON CJ: What is the fact that is in question?

MR PAPAYANNI: The question here is that there was no evidence of any delegation by the Commissioner that the Assistant Commissioner could hold the hearing. That is a substantial point. There is also no evidence of course that - the situation was at the start of this matter before the District Court judge that it was pointed out that strict proof was required of the hearing before the Commission. Section 87 of the Act which is set out - - -

GLEESON CJ: Yes, I understand that but I just wanted to isolate the fact or facts that you say should have been proved that were not proved.

MR PAPAYANNI: Well, we put a number of matters that should have been proved and, as we asked for strict proof, we said that the appointment of the Commissioner should have been proved.

GLEESON CJ: The appointment of Mr Temby?

MR PAPAYANNI: Yes, because he gave the scope of the investigation. We say also that the appointment of the Assistant Commissioner should have been strictly proved.

GLEESON CJ: Why do you use the adjective "strictly"?

MR PAPAYANNI: Well, the situation here - the Crown relies upon the situation that evidence was given in relation to this matter of the hearing and that - - -

GLEESON CJ: Well, evidence was given that Mr Roden was the Assistant Commissioner.

MR PAPAYANNI: Yes, and that he acted in this hearing.

GLEESON CJ: Yes.

MR PAPAYANNI: And that was considered to be sufficient in this particular case. It was similar to a case where, when you ask for strict proof in a criminal matter, say of a record of interview, then they call the policeman in that respect and they prove that, and it may be through an interpreter.

GLEESON CJ: But evidence that Mr Roden was the Assistant Commissioner was given without objection, and it is referred to on page 104 of the appeal.

MR PAPAYANNI: Yes, but that was given in the substance of a criminal trial where strict proof has been required of that and the situation was that it had to be connected up and it was not connected up. The simple situation, we say, in relation to a record of interview in a criminal trial, you have to start somewhere and so they wanted to give evidence. They had all the witnesses in relation to this matter as to the transcript and so on.

GLEESON CJ: But if a witness gets into the witness box and without objection says Mr Roden was the Assistant Commissioner, then what further proof of his appointment is necessary?

MR PAPAYANNI: Well, we ask that the strict proof should be given.

GLEESON CJ: Well, we ask when?

MR PAPAYANNI: Prior to the hearing of this - - -

KIRBY J: Is that letter available to us? Was that done by letter or by an oral request to the prosecutor?

MR PAPAYANNI: It was done orally and his Honour put it in the stated case.

GAUDRON J: But it does not matter, surely, whether you asked for strict proof or not. The question is, did it prove the fact that had to be proved?

MR PAPAYANNI: In our submission, it did not but it did not matter very much anyway, and that is not the main point of this argument. The main point of the argument is that the delegation to the Assistant Commissioner was not made by the Commissioner.

McHUGH J: But why does it the de facto officer's doctrine apply? This person was purporting to act as a Commissioner and why, in those circumstances, is that not sufficient? Whether or not he had been given a delegation depends on the internal affairs of the Commission.

MR PAPAYANNI: Yes, but see, the point about it is that the section makes provision for any number of - it does not say how many, it says "Commissioners" - and the main point about it is that the Commission acts through the Commissioner and section 4 - - -

McHUGH J: Well, I know, but you had a person who purported to act as Commissioner, and why is that not sufficient? In a New Zealand case, Re. Eldridge, the New Zealand Court of Appeal upheld the validity of a conviction and sentence imposed by a barrister after the Privy Council had held that he had been invalidly appointed as a judge, so he had no authority whatever to act in the proceedings.

MR PAPAYANNI: Well, they may not have taken the point beforehand.

McHUGH J: They certainly did.

GUMMOW J: They certainly did.

McHUGH J: They certainly did take the point.

MR PAPAYANNI: They did?

McHUGH J: They most certainly did. There are cases in this country, in Victoria - on two occasions the Victorian judges have upheld - on one occasion, upheld a conviction of a licensee and for the forfeiture of his licence, and refused to admit evidence that the Licensing Court was not properly constituted.

MR PAPAYANNI: Yes, well, of course, there is also - - -

KIRBY J: Is this a case of the de facto officer's doctrine, Mr Papayanni? The issue here, as I understand it, is a purely technical one. It is not whether Mr Roden was not properly appointed but purported to act as an appointee but whether the Crown or the prosecutor had failed to prove an essential ingredient in the criminal offence. That at least appears to me to be something different.

MR PAPAYANNI: The situation here is that the presumption of regularity - that there is an error on the face of the record because of the fact that there is a hiatus in the proof as to the delegation.

GLEESON CJ: But what precisely is the ingredient that you say the Crown should have proved that it failed to prove? What is the evidence it should have called that it failed to call?

MR PAPAYANNI: They should have proved a written delegation for this particular matter.

GLEESON CJ: Why did it have to be in writing?

MR PAPAYANNI: The Interpretation Act requires that it be in writing and that the particulars of the delegation - - -

GLEESON CJ: What is the statutory provision that refers to this delegation of which you are speaking?

MR PAPAYANNI: In section 107.

GLEESON CJ: Of the Independent Commission Against Corruption Act?

MR PAPAYANNI: Yes.

KIRBY J: Is it enough that the person who discharges the office be the Assistant Commissioner or must it be an Assistant Commissioner who has been authorised for the particular hearing to hear the matter?

MR PAPAYANNI: The section that deals with the hearing here says, "as determined by the Commissioner", and that is section 30.

KIRBY J: Now what is the section?

MR PAPAYANNI: Section 30. It says:

(1) For the purposes of an investigation, the Commission may hold hearings.

(2) A hearing shall be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.

Now, when you go back to section 4, then it says in section 4(3):

The functions of the Commission are exercisable by the Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, shall be taken to have been done by the Commission.

GLEESON CJ: Is that the fact you say was not proved? Do you say it was not proved that the Commissioner determined that this hearing should be conducted by an Assistant Commissioner?

MR PAPAYANNI: That is the first matter.

GLEESON CJ: Let us stick with that matter.

MR PAPAYANNI: Yes. Well, then, under section 4(4) the reference in this Act to:

a hearing before the Commission -

And that is section 87 says:

at a hearing before the Commission -

or a thing done or omitted by, to or in relation to the Commission includes a reference to a hearing before, or a thing done or omitted by, to or in relation to, the Commissioner or another officer of the Commission having authority in the circumstances.

So, the person who conducted the hearing had to have authority in the circumstances.

McHUGH J: That is not the point, is it? What had to be proved was a hearing before the Commission. Section 87 provides:

A person who, at a hearing before the Commission, gives evidence -

et cetera. So, the relevant fact in issue is whether there was a hearing before the Commission. Here the Commission purported to act. You say that there was no evidence that it was properly constituted. What I put to you is, quite apart from any presumption of regularity, why does not the de facto officer's doctrine apply?

MR PAPAYANNI: Because in this particular situation - - -

GUMMOW J: It is a quite separate doctrine to presumptions of regularity, it is a specific body of law and it is all discussed by Justice McHugh in the G.J. Coles Case (1987) 7 NSWLR 503 at 525, which we have not been referred to, but should have been.

KIRBY J: I hesitate to say it but I think that was a minority opinion of his Honour and that Justice Hope and I did not agree with it.

McHUGH J: I think they doubted but made no decision about the - - -

MR PAPAYANNI: The situation as I am putting it is this is a criminal trial. Now, one of the things that makes it very important about a criminal trial is that the onus is on the Crown and the presumption of regularity and the onus are not two separate matters. The onus remains with the Crown because of the presumption of innocence. If there is a gap in the evidence by the Crown, then the Crown has not proved their case and in a - - -

McHUGH J: Supposing somebody had gone into the witness box and said there was a hearing before the Commission. Now, that is sufficient evidence to support section 87, is it not?

MR PAPAYANNI: Well, I do not think that would satisfy it because it would have to be shown that - you see, the Commission acts through the Commissioner and if the Commissioner does not hold the Commission - if he has been holding the Commission it might be a different story.

KIRBY J: Where is the provision that says the Commission acts through the Commissioner?

MR PAPAYANNI: That is in section 4(3).

GAUDRON J: But section 30(2) expressly authorises a hearing to be conducted by an Assistant Commissioner so long as that is determined by the Commission.

MR PAPAYANNI: Determined by the Commission.

GAUDRON J: Now, what was the evidence in this case?

MR PAPAYANNI: The difficulty about that is that the Assistant Commissioner - the delegation under section 107 can only be given as to certain matters to an Assistant Commissioner. Now, it makes specific provision - the delegation, if it had been a general delegation, in our submission, would not have been sufficient because it would have to be determined by the Commission, in any case, that the particular Assistant Commissioner would conduct the hearing. If one looks at section 6 one sees that:

The Governor may, with the concurrence of the Commissioner, appoint one or more Assistant Commissioners for the Independent Commission Against Corruption.

Now, it does not mean - - -

KIRBY J: But where is the provision you told us of that requires that to be in writing? You said that was in the Interpretation Act, is that correct?

MR PAPAYANNI: Yes, that is correct.

KIRBY J: What is the section in the Interpretation Act?

MR PAPAYANNI: Section 49.

GLEESON CJ: Mr Papayanni, I am not clear at the moment what section 107 has to do with this case. That is a section concerning delegations of functions and the kind of functions that it talks about are set out in the section. We are here concerned, are we not, with section 30 and, in particular, section 30(2)?

MR PAPAYANNI: Well, then if one looks at section 107(5)(e), that deals there:

the powers of the Commission or the Commissioner under Division 3 of Part 4 at or in connection with a hearing, except the power to issue a warrant for the arrest of a person under section 36 -

and, of course, Division 3 of Part 4 is section 30 in the hearings. So you get the situation that in relation to section 107 that the delegation by the Commissioner can only be to an Assistant Commissioner and he can only delegate the powers of the Commission under (5)(e), except the power under section 36. So that then makes it nonsense, in our submission, because you are Assistant Commissioner, therefore, you have the powers to conduct a hearing because if the Assistant Commissioner had the power to conduct a hearing under Division 3, well, then he would also have the powers under section 36 to issue a warrant when a witness did not turn up, and he does not have that power and he cannot be given that power unless it is - it is only by the Commissioner that can issue a warrant if a witness does not turn up.

GLEESON CJ: But we are not concerned with the exercise of any of the powers, are we, except - we are not concerned with any of the exercise of the powers set out in section 31 and following, are we? It is not as though there was a challenge to Mr Roden's authorisation to somebody to give evidence or authorisation to a legal practitioner to appear or so forth.

MR PAPAYANNI: Well, we are not concerned with that directly, no, but we - - -

GLEESON CJ: All that we are concerned with is whether this was a hearing - - -

MR PAPAYANNI: That is a valid hearing, in our submission, and it was not - - -

KIRBY J: Your point, I take it, is that if Mr Roden is a stranger, it is not a hearing of the Commission.

MR PAPAYANNI: That is correct. If he is not Assistant Commissioner, he could not have - if he is only a member of the - - -

GLEESON CJ: But there was evidence that he was not a stranger.

MR PAPAYANNI: No, I understand that.

GLEESON CJ: There was evidence, given without objection, that he was Assistant Commissioner.

MR PAPAYANNI: Yes, but the reason why I point - - -

GLEESON CJ: So we can forget about Mr Roden being a stranger, just for a start, can we not?

MR PAPAYANNI: That is right, but you see under section 4, which we come back to all the time, is that the Commission can only act through the Commissioner or through someone authorised, in this case the Assistant Commissioner, who has been authorised to conduct a hearing. Now, he cannot be authorised to conduct a hearing and he cannot be a hearing before the Commission unless you get that authorisation.

GLEESON CJ: It is the determination that is in question, is it not?

MR PAPAYANNI: That is the first base. The first base: there has to be a determination by the Commissioner and once the Commissioner determines that an Assistant Commissioner - and we do not know how many there were - shall conduct a hearing, well, then it becomes then a hearing before the Commission if - - -

GLEESON CJ: Now, there is any room for inference to operate here? If we know as a fact that a person who was an Assistant Commissioner was conducting a hearing at the premises of the Independent Commission Against Corruption, it is a possibility that he was doing that without the knowledge or approval of the Commissioner, I suppose, but is it possible to infer that he was doing that pursuant to a determination of the Commissioner?

MR PAPAYANNI: Well, as I say, this is a criminal trial. It may be that the way the presumption of regularity applies in relation to certain Acts, but it does not apply in relation to in a number of cases where the situation is it has to be because of a recommendation or - - -

GLEESON CJ: Just at the moment I am not talking about any kind of presumption. I am talking about an inference of fact. Is that open?

MR PAPAYANNI: Well, you have to find some evidence upon which the Commissioner had made a determination.

GLEESON CJ: Well, can you infer from the fact that a person who has been proved to be the Assistant Commissioner was conducting a hearing that he was doing that pursuant to a determination by the Commissioner?

MR PAPAYANNI: No, I do not think you can. There is no evidence to suggest it and in the simple situation, as I say, where you have a person appointed under the presumption of regularity, in some cases you may lead evidence as in Brewer's Case, which the Crown has referred to. In that case the main decision was as to whether the person was a servant of the Crown at the particular time and they found that he was not a servant of the Crown, but they found that the canteen service was a government department and, therefore, the person who was in charge of the canteen service, he gave evidence that he appointed this person - Ritchie I think his name was - as a member of the canteen service and, therefore, he was in the service of the Crown, but you had evidence there to say the person had been appointed.

If you had evidence to say the person had been appointed by the Commissioner to conduct this hearing then perhaps you can go on from there, but there was no evidence of that kind. It was only evidence in this trial that the Assistant Commissioner was conducting a hearing. Unless he had the authority of the Commissioner, there was no hearing, in our submission. Of course, the simple situation is that why would they put in section 107 the fact that the function - and that is the hearing by the Commission - why would they put in section 107 that the Commissioner can delegate the powers under that section in relation to a hearing if there was no need to delegate anything.

GLEESON CJ: Does a determination under section 30(2) have to be in writing?

MR PAPAYANNI: It does not say so, but if, in fact, there had been a delegation neither commissioner, in relation to the particular trial, not a general one, you may be able to infer then that there had been a determination.

GLEESON CJ: Suppose Mr Temby had been going to conduct this hearing himself and he had been sick on the morning, could he have telephoned Assistant Commissioner Roden and said, "I am too ill to come into work today, you do the hearing"?

MR PAPAYANNI: That might then come under the schedule because if a commissioner is too ill or is absent for any reason then the Assistant Commissioner can act as the Commissioner. But there would have to be evidence that the Commissioner was ill before he could act as the Commissioner.

GLEESON CJ: Then suppose it was not a question of illness; suppose Mr Temby said, "I have got myself jammed. I have another commitment that I cannot avoid. Will you do the hearing?", would that constitute a determination under section 30?

MR PAPAYANNI: It may be if there was some evidence of that kind. But he would still have to delegate - be a delegation - either have a general delegation or a particular delegation in relation to a particular matter, investigation. Otherwise the Commission does not act. The Commission makes a report to Parliament and under that section the Commissioner cannot delegate to an Assistant Commissioner to report to Parliament. And, he cannot delegate to anyone a power to arrest somebody, and he cannot delegate under section 100 Part 10 in relation to a hearing, that is in relation to contempt. So if anybody appeared before the Assistant Commissioner, and there was a question of contempt, and the point was taken that the Assistant Commissioner - so the Assistant Commissioner acted, the point was taken that the Assistant Commissioner could not act because he did not have any delegation, and under the Act he could not have a delegation, then it would be a nullity. So you get the same situation in relation to it.

KIRBY J: Which is the schedule that you referred to?

MR PAPAYANNI: Schedule 1, the appointment of the Commissioner. At (2), it says:

The Governor may, from time to time, appoint a person to act in the office of the Commissioner or Assistant Commissioner during the illness or absence of the Commissioner or Assistant Commissioner, and the person, while so acting, has all the functions of the Commissioner or Assistant Commissioner and shall be taken to be the Commissioner or Assistant Commissioner.

So you have to be appointed by the Governor, really, in that situation. If he was not appointed by the Governor there would be no hearing.

GLEESON CJ: Is one of your submissions that it was also necessary to prove the appointment of Mr Temby?

MR PAPAYANNI: Yes.

GLEESON CJ: Who appointed Mr Temby?

MR PAPAYANNI: The Governor.

GLEESON CJ: Was it also necessary to prove the appointment of the Governor?

MR PAPAYANNI: No, he could have been appointed by some evidence - it is probably a gazettal notice or something of that kind. There was a situation where the Crown raised certain points and - - -

KIRBY J: Is there no principle of judicial notice that one can take notice of an appointment of a public officer like Mr Temby or an Assistant Commissioner?

MR PAPAYANNI: Well, the difficulty about that is that the Evidence Act does not make any specific provision in relation to that, and the Evidence - - -

GLEESON CJ: If a person is charged with perjury by giving false evidence on oath in proceedings before a judge, do you have to prove the validity of the appointment of the judge?

MR PAPAYANNI: Well, under section 23 of the Evidence Act, you could prove it by the clerk of the court. You see, in that case of S that I pointed out in my submissions, that was a Royal Commission and they tried to put in a certificate under section 23 of the Evidence Act, and section 23 of the Evidence Act only applies to judicial proceedings, and if it was before a judge, well, then under section 23 of the Evidence Act the clerk of the court could give - - -

KIRBY J: This is the old Evidence Act, is it?

MR PAPAYANNI: Yes, that is the 1898 Act.

KIRBY J: Is this still in force, this provision, or is this part of the new Evidence Act?

MR PAPAYANNI: Well, no, at this time I am talking about the 1898 Act.

KIRBY J: I see.

MR PAPAYANNI: Because that was the Act that applied in relation to these proceedings. Section 23 of the Evidence Act, it says:

(1) Where it is necessary to prove any of the following facts -

and it refers to "any person.....sentenced.....or.....ordered" by a judge, and:

(d) the pendency or existence at any time before any Court, Judge, justice, or other official person, of any suit, action, trial, proceeding, inquiry, charge, or matter, civil or criminal,

the evidence of such fact may be given by the production of a certificate under hand of -

and it also says the judge and the clerk of the court and the officer having a record.

So in relation to any - - -

GAUDRON J: No, but does that not say "other such person"? Did you not just read - when you read it, it said "court, judge or other such person", did it not?

MR PAPAYANNI: "Other official person". Then you - - -

GAUDRON J: Can I have the exact words again?

MR PAPAYANNI: I am sorry:

the pendency or existence at any time before any Court, Judge, justice or other official person of any suit, action, trial, proceeding, inquiry, charge, or matter, civil or criminal -

GAUDRON J: Now, did we not have an inquiry?

MR PAPAYANNI: No, but in Reg v S they held that that related to a judicial proceeding only and that - - -

GAUDRON J: Why? Why would it relate only to a judicial proceeding? I mean, I dare say that is what was held in that case but I do not see why the words of the section should be read down?

MR PAPAYANNI: Well I think it was ejustem generis, where: "Court, Judge, justice, or other official person" - - -

GAUDRON J: Yes.

MR PAPAYANNI: - - - and that was in relation to the "suit, action, trial" et cetera.

GAUDRON J: Why would it not include a Royal Commissioner?

MR PAPAYANNI: Well, they held that it did not, and that was there in Reg v S.

KIRBY J: Presumably, it was on the basis that the "judge, justice" and so on are in the judicial branch of government and the Royal Commissioner is acting in the executive branch.

MR PAPAYANNI: Yes, well, they would have to prove that in a Royal Commission, and the same situation in relation to that, that the section of the Royal Commissions Act says "at a hearing before a Commission" and they have to prove the letters patent in relation to the Royal Commissioner in order to prove that there is a hearing before the Commission. In the same way here, they would have to prove that the person conducting the hearing, as in a Royal Commission, there would be letters patent to some judge or someone of that kind, that he could conduct the hearing of the matter. In this particular case, well, then you would have to have some authorisation by the Commissioner who represents the Commission or acts for the Commission that he had made a determination that the Assistant Commissioner could conduct this particular hearing and that he had the necessary delegation under section 107.

KIRBY J: I suppose you can say that the section of the old Evidence Act is only written on a presumption of strictness in the proof of the elements of the crime of perjury and that it is designed to relieve against that in the case of judicial proceedings, and that that is the background of general law against which one would read the provisions of the Independent Commission of Corruption, and that is - - -

MR PAPAYANNI: Yes, well, that is pointed out in a case that I did not put in my list, but I have copies of it here, the case of Selby & Anor v Pennings & Anor which is in the Full Court of the Supreme Court of Western Australia, and that was heard on 26 August 1998, and I can make those available to your Honours. This covers the question, really, of all the authorities and - - -

KIRBY J: What is the point of the case?

MR PAPAYANNI: Well, it was a case of trespass and was a prosecution under Forest Management Regulations 1993 and there had to be a recommendation by the particular Minister before the land could become the Forestry Commission's land, and the recommendation was made as to only part of the land and the certificate was as to the whole of the land. But the principles in relation to that case were set out in relation to strictness and it went through a number of authorities in relation to it and talked about the presumption of the regularity and the fact that, on the face of the record, that sufficient if there was no evidence of the matter, and on page 10 of that judgment it refers to section 43 there of the Interpretation Act - in the second paragraph - that "the presumption applies in the absence of evidence to the contrary".

Now, we have a similar provision in our Evidence Act under section 45 but it only applies to instruments. It went on to say in relation to the fact that is the effect of section 43(3) that the presumption that all preliminary steps proceed into the making of a notice had been complied with and performed in the absence of evidence to the contrary. So the question then was as to evidence as to the contrary.

Then at about point 6 there:

The evidence provided by the terms of the notice is of course while the recommendation was for the classification of part of the land, the Minister classified all of the land. This is evidence which tends to contradict the proposition that the classification by the Minister was on the recommendation of the Commission, although it is not proof that the classification was not on the recommendation of the Commission. Does "evidence to the contrary" require sufficient evidence on which a court might rely to hold the notice to be invalid? Or merely to raise a doubt as to validity?

Then it refers to a case of Machirus v Police in New Zealand where those words "evidence to the contrary" was held to mean until the contrary was proved. And then it was referred to what was said:

"The language of section 122 [ie `evidence to the contrary'] is not apt to impose any burden of proof on a defendant, even on the balance of probabilities. Under the formulae in section 122 to displace the statutory `sufficient proof' it is enough if the defendant can point to evidence to the contrary, either in the evidence for the prosecution or in the evidence for the defence or both."

I would adopt this approach.

He goes on, on page 11 "evidence to the contrary there" and then he said in the last sentence of the first paragraph:

In the present case, a factor of paramount importance is that the presumption is sought to be applied in the course of a criminal prosecution.

There are diverging lines of authority as to whether the common law presumption of regularity applies at all in criminal proceedings. In Lucerne v Collins the defendant was charged with an offence under a local government ordinance -

and then it goes on to say what his Honour Mr Justice McClemens said:

"This was a criminal charge and whether the issue in a criminal case is big or small, it is still a criminal case and traditionally under our system the obligation of proving that case beyond a reasonable doubt is on the prosecution.....Even though this might be a small case the fact remains that the informant, an officer of the Main Roads Department, could have had access to the recommendation whereas a citizen does not have; and if it is elected to leave the proclamation dealing with two subject matters that arise in different ways in a form where a reference to the recommendation does not appear on the face of it, citizens shall not be compelled in effect to accept an onus which is put on them by having to take out subpoenas, get the attendance of officers, and take all other necessary steps to prove the lack of the recommendation."

Accordingly, McClemens J held.....that the presumption of regularity did not assist the prosecution.

and then it is said that:

Lucerne v Collins has been followed in New South Wales in R v Martin, LS v Director General of Family and Community Services and in Victoria by Murphy v Matlock.

and first the decisions of Hollobone v Foley in South Australia and Daire in South Australia which are the same effect.

Then it deals with Scott v Baker, and of course that was the case in relation to the breathalyser and so on, and the approval in relation to that. Then he goes on in relation to Dillon v The Queen and quotes from there:

"Their Lordships are of opinion that it was essential for the Crown to establish that the arrest and detention were lawful and that the omission to do so was fatal to the conviction of the defendant...The lawfulness of the detention was a necessary precondition for the offence of permitting escape, and it is well established that the courts will not presume the existence of facts which are central to an offence."

Then it quotes Schlieske v Federal Republic of Germany which is an extradition case which the quote there says:

There is no room for presumptions in favour of the executive where the liberty of the subject is concerned -

and that is quoting Dillon. Then it goes on in relation to the next paragraph and says:

I appreciate that the present case does not involve an offence concerning the liberty of the subject -

or in this case of ours it did because there was a penalty of five years imprisonment -

But the remarks quoted illustrate the fact that the application of the presumption of regularity is a flexible concept, and its application in criminal cases is restricted.

As I have mentioned, the authorities are not consistent. In Australia, the reasoning in cases such as Lucerne v Collins.....has not always been followed. There are several criminal cases in which the presumption has been applied -

and it refers to those.

And then it goes on to say:

I shall not attempt to reconcile the different authorities -

and then it says:

"Proof of the due exercise of delegated powers").

That was referred to in Griffin v Golding:

In my view, however, the reasoning of McClemens J in Lucerne v Collins as to the application of the common law presumption is persuasive and is consistent with the high English authority of Scott v Baker and Dillon v The Queen.

And then the next paragraph:

It seems to me that the authorities as a whole establish, generally, that where, in a criminal case, a challenge is made to the due performance of a condition essential to the validity of an administrative act on which the offence depends, there is a reluctance on the part of the courts to apply the presumption of regularity.

And then:

In the present case the validity of the notice was the subject of a direct challenge -

In this case the question as to whether there was - valid commission was in direct challenge and - - -

KIRBY J: You want, like a homing pigeon, to get in as quickly as possible the presumption of regularity because then you can invoke Dillon, but you were asked at the outset why would one not infer from the fact that there is a hearing; it is in the Independent Commission Against Corruption building; there is a person who is accepted to be the Assistant Commissioner and Mr Shand addresses him as "Commissioner" in the transcript which we have been provided with?

MR PAPAYANNI: Well, that part was not in evidence.

KIRBY J: I am sorry?

MR PAPAYANNI: That part which the Crown has annexed was not in evidence and was not part of the stated facts.

KIRBY J: All right. We will delete the last matter, but it is still - - -

MR PAPAYANNI: Well, I accept that anyway.

KIRBY J: - - - it is still the Assistant Commissioner who is sitting there. Why would not one be entitled to infer beyond reasonable doubt that this was a proceeding of the Commission, even though you had said you wanted strict proof of every ingredient of the offence without the actual formal proof of a delegation under the Act to the Assistant Commissioner for these particular proceedings?

MR PAPAYANNI: The difficulty about that presumption really is this, that if a statute lays down simple steps that are to be followed before the authority of the Commission can be invoked and one can ignore all those situations that are necessary precedent to a valid hearing, well, then why do we need to have it in the Act?

GLEESON CJ: But, Mr Papayanni, the offence was an offence under section 87.

MR PAPAYANNI: Yes.

GLEESON CJ: To make out the offence what had to be proved was that the evidence in question was given at a hearing before the Commission.

MR PAPAYANNI: That is correct, yes.

GLEESON CJ: When you go to section 30 it appears that for there to be a hearing before the Commission you need a hearing conducted either by the Commissioner or by an Assistant Commissioner as determined by the Commissioner. No question of exercise of any of the powers referred to elsewhere in Division 3 arises. It is just a question of whether it was determined by the Commissioner that this hearing should be conducted by an Assistant Commissioner. Well, now, why would you not infer - the only alternative being that Mr Roden was off on some kind of frolic of his own, and he was presumably hoping to get paid for doing what he was doing on this day, that it had been determined by the Commissioner that this hearing would be conducted by the Assistant Commissioner.

MR PAPAYANNI: Well, your Honour, Mr Roden, we cannot accept necessarily that all the steps necessary to some act had been carried out. You see the point about - - -

KIRBY J: I suppose the bottom line has to be that you say you put the Crown to the strict proof that one element in the offence is proof of the determination by the Commissioner that the Assistant Commissioner would conduct these proceedings; he may be the Assistant Commissioner; he may have authority, if he is given the determination and the delegation, but in a case where it is a criminal offence and you have asked for strict proof then it is an obligation of the prosecution to prove the ingredients and this was just one ingredient and they did not prove it.

MR PAPAYANNI: The fact is that the fact that they did not prove that there was a delegation does not say that he did not have the delegation.

KIRBY J: No, quite.

GLEESON CJ: What does the word "strict" add to the discussion? Mr Papayanni, a lot of things are proved beyond reasonable doubt at criminal trials by inference. Proof is not lax or other than strict because it proceeds by way of inference. If the inference was open and was properly drawn, that is strict proof, is it not?

MR PAPAYANNI: The difficulty about that is that if an indictment says that he stole the money from A and the evidence is that he stole the money from B, the Crown has not made out their case because it is one of the elements of proof in that indictment. Now, each of the elements in an indictment must be proved beyond reasonable doubt. Now, if a person can say, "Well, I'm the King of Siam and I order you to chop off his head" and they chop off his head and then you cannot show that he is not the King of Siam, well, then, obviously, he had authority to chop off the person's head. Now, if you prove he was insane, well, then, you prove that he did have authority to chop off his head.

GLEESON CJ: What we are looking at here is an inference drawn by Judge Downs that he recites on page 104 of the appeal book at line 25 and the question in the stated case was a question directed to whether that conclusion that he drew was erroneous. Did he err in holding that the evidence was sufficient to prove that fact that he found? That is the question we are addressing.

MR PAPAYANNI: Which one was that, your Honour?

GLEESON CJ: Question 5 in the stated case is related to the finding on page 104, line 25, and the question that the Court of Criminal Appeal was looking at was whether Judge Downs erred in holding that there was sufficient evidence to enable him to find that fact.

MR PAPAYANNI: Yes, but his Honour also said "and in absence of evidence to the contrary". Now, we say there was evidence to the contrary in the terms of Selby's Case because there was a gap in the evidence to show in the first place that there was no determination by the Commissioner that the person should hold it and the Commission, as I point out again, can only act through the Commissioner or some person authorised by him. The question here is it is a criminal trial and I was going to point out, as Justice Kirby referred to the strictness to be dealt with in relation to this type of matters is - and, in Selby's Case if one goes to - the question here was dealt with a case of Ousley and he gave a number of quotes in relation to that and that was that page - - -

KIRBY J: I have lost you, Mr Papayanni. What point are you making now?

MR PAPAYANNI: The strictness of the matter and it is a case of - page 22 about point 6. It said there as to strictness:

The reasons in Ousley are very supportive of the appellant's argument in this case. Although Ousley was concerned with listening devices, the reasoning is consistent with the strictness required where the criminal law affects the rights of citizens.

It refers to the case of Bugg and then it goes on to quote - - -

KIRBY J: There cannot be a better illustration of that than the recent decision of this Court in Byrnes v Hopwood where there was a failure to establish that the Director of Public Prosecutions had legal authority to bring an appeal, or, rather, it was established that - - -

MR PAPAYANNI: Well, Bugg was criticised in another situation. But, on pages 23 and 24 it refers to the fact there in about the fourth paragraph:

I add that many defendants do not have the know-how or the finance to mount a collateral challenge by way of prerogative writ or an action for a declaration in the Supreme Court. If persons are charged in Courts of Petty Sessions they should be allowed to defend in those Courts.

This was really on the question as to whether the court could take notice of - - -

KIRBY J: Where is this?

MR PAPAYANNI: This is on page 24.

KIRBY J: What line and whereabouts, approximately?

MR PAPAYANNI: About the third paragraph.

KIRBY J: Yes, I see.

MR PAPAYANNI:

I add that many defendants do not have the know-how and finance - - -

KIRBY J: Is this Justice Wallwork, is it?

MR PAPAYANNI: Yes, that is correct.

KIRBY J: He was counsel in Day's Case, I notice.

MR PAPAYANNI: Yes.

KIRBY J: He only gathered up Justice Brennan in that case.

MR PAPAYANNI: Day's Case generally was decided on the fact - the charge in Day's Case was lawful custody, and it was not lawful custody in such and such a prison, and the Court held that the calendar was sufficient proof of the lawful custody because it only had to be lawful custody of the Corrective Services Department. Mr Justice Brennan held that was not sufficient, he was the dissenting judgment, and said that the "presumption of regularity" could not apply to those proceedings.

McHUGH J: Mr Papayanni, your submissions seem to assume that there has been a delegation of functions whenever an Assistant Commissioner hears or conducts the hearing, but the statute draws a distinction between the Commissioner and the Assistant Commissioner, and the Commission. Under this statute is there anything wrong at all with the Commission, through the Commissioner, making a decision, making the report, and yet asking an Assistant Commissioner to take evidence of one witness or all witnesses?

MR PAPAYANNI: When you say making a report, you mean a report to Parliament?

McHUGH J: Yes, the final report or examination on the investigation is made by the Commission; presumably in many cases by the Commissioner, himself.

MR PAPAYANNI: The Commissioner controls it. It sets out in section 6 the functions of the Commission.

McHUGH J: Yes.

MR PAPAYANNI: But it does not set out anywhere the functions of the Assistant Commissioner.

McHUGH J: Exactly; because it is the Commission's functions. When the Commissioner determines an Assistant Commissioner shall conduct a hearing, that does not necessarily mean that the Commission has delegated to the Commissioner its functions. In other words, the hearing is an administrative instrument designed to help, assist, carry out one of the functions of the Commission which is, for example, to investigate complaints.

MR PAPAYANNI: Yes, well, if the Assistant Commissioner then says, "I will get a witness in because I want to satisfy myself as to something or other - - -

McHUGH J: That is because of section 35 of the Act gives the person presiding at the hearing the right to summon witnesses.

GLEESON CJ: The Commissioner might decide to reserve to herself the exercise of all these various functions and simply delegate to an Assistant Commissioner the task of presiding at a hearing and taking the evidence.

MR PAPAYANNI: The difficulty about that is that if a Commissioner gives a notice to somebody to appear before him and then he hears - - -

McHUGH J: Not the Commissioner.

MR PAPAYANNI: No, the Assistant Commissioner.

McHUGH J: No, it is the Commission, is it not?

KIRBY J: No, it is under 35(1), it must be "The Commissioner may summon". That is a point you made earlier.

MR PAPAYANNI: Yes. Some of the points here are that the Commissioner may do certain things.

GLEESON CJ: But there is no suggestion that Mr Roden, relevantly to this case, did any of those things.

MR PAPAYANNI: We do not know whether he did or not. I am not complaining about - - -

GLEESON CJ: The only thing that is relevant to this case is whether or not there was a hearing before the Commission, and that turns upon whether the Commissioner determined that the Assistant Commissioner would conduct the hearing.

MR PAPAYANNI: That is correct.

GLEESON CJ: It does not turn on any delegation under section 107.

MR PAPAYANNI: It does, in my submission, because he would have no power to conduct the hearing.

McHUGH J: Why not? It is the Commission. If the Commission through the Commissioner determines that an Assistant Commissioner shall determine the hearing, that is the end of the matter. But it is the Commission's hearing.

MR PAPAYANNI: No, not in my submission, because the situation is this: the Commissioner says, "Right, I will conduct a hearing. I've got powers to conduct the hearing and I've got all the powers that are necessary in relation to summoning a witness and so on. All right, I don't want to conduct this one" or "I'll conduct this one and an Assistant Commissioner can conduct this other one".

GLEESON CJ: What if the Commissioner says to herself, "I am not going to delegate any of these powers of summoning witnesses or making decisions of the various kinds. All I'm going to do is engage the services of an Assistant Commissioner to conduct the hearing".

MR PAPAYANNI: Yes, but what I am saying is this. The Commissioner says, "Right, I will conduct a hearing". He has all the powers. He may say then, "I will determine - this is a determination I make that an Assistant Commissioner will conduct a hearing but he has no powers to conduct a hearing under Division 3, so I will have to delegate to him all the powers to conduct a hearing", otherwise he has no powers.

McHUGH J: That is wrong, is it not, because - - -

MR PAPAYANNI: Well, it is not.

McHUGH J: Section 35(2) for a start gives the person presiding at the hearing a specific power to require a person appearing at the hearing to produce a document "or other things". So that is an independent power given to the person presiding at a hearing, which seems to indicate that without some other delegation of functions under 107, the person who presides at the hearing is not necessarily a person who exercises the power of the Commission other than conducting a hearing in accordance with section 30(2).

KIRBY J: I think you put the submission earlier, right or wrong, that where Parliament has intended the person presiding or another person other than the Commissioner to have the power, it has specified it and in the absence of the specification the powers that are said to belong to the Commissioner, belong to him and to him alone.

MR PAPAYANNI: See, the difficulty about that if, say, a member of the Commission conducts a hearing, would that be invalid, because the Commissioner says - - -

KIRBY J: An officer of the Commission.

MR PAPAYANNI: The Commissioner says, "Well, I've determined that Mr Smith can conduct a hearing". That accordingly would be quite all right, but it cannot be because only as an Assistant Commissioner. It does not mean because an Assistant Commissioner is appointed that he then has all the powers that the Commissioner has. If he is appointed as an Assistant Commissioner, there is nothing in the Act to say what powers he has.

KIRBY J: Do you say he needs a specific delegation, do you?

MR PAPAYANNI: That is correct.

KIRBY J: Which is the section that allows for that delegation?

MR PAPAYANNI: There is a general delegation or a particular delegation under section 107. Unless he gets that, he has no power because the Act does not give him any power.

GLEESON CJ: He has not purported to exercise any power. Mr Roden did not relevantly purport to exercise any power. He just conducted a hearing. The question is whether it was determined by the Commissioner that he should do so.

MR PAPAYANNI: That is correct. He can conduct as many hearings as he likes but, if he wants to conduct a hearing of the Commission, he must have the authority of the Commissioner by a determination and by a delegation to do that.

McHUGH J: No. You keep insisting that he cannot conduct the hearing without a 107 delegation. What the Chief Justice is putting to you and what I have put to you is that does not follow at all.

MR PAPAYANNI: It is a statutory situation and if he cannot - if the Assistant Commissioner has the powers in relation to a hearing - all the powers in relation to a hearing - well, then, he would be able to issue a warrant under section 36.

GLEESON CJ: A person conducting a hearing is not necessarily a decision maker of any kind.

MR PAPAYANNI: Yes, but if I just may finish that point. If he has power to conduct a hearing then he has power under section 36 to issue a warrant.

McHUGH J: No, he has not.

MR PAPAYANNI: Well, he has under it because - - -

McHUGH J: He has not because that power is given to the Commissioner.

MR PAPAYANNI: That is correct.

McHUGH J: And, if the person conducting the hearing wanted to exercise the section 36 power then, no doubt, that would require a delegation not under 107(1) but under 107(2) of the Act. So, you have got to distinguish between conducting the hearing and exercising powers or functions such as those contained in section 36 or 35,

MR PAPAYANNI: Well, as I say, why is section 107 there in the first place if it says - section 107(5) - all:

the powers of the Commission or the Commissioner under Division 3 of Part 4 -

why does it say that the:

function may be delegated only to an Assistant Commissioner -

if that is nugatory? You do not need that.

GLEESON CJ: Mr Papayanni, we know as a fact, I think, that from time to time barristers and perhaps other people go down and hear evidence, if I can use that neutral expression. Do they do that in the capacity of Assistant Commissioners? I have been looking through the Act to see what would apply to that situation.

MR PAPAYANNI: I have got no idea.

KIRBY J: There is a provision, is there not, about another officer having authority?

MR PAPAYANNI: Yes, but there is no provision in the - - -

KIRBY J: Would they be appointed an officer of the Commission for the time being?

MR PAPAYANNI: There is a provision in relation to assistants somewhere, I think.

GLEESON CJ: I have in the back of my mind, for example, that Ms McColl went down and inquired into some activity. I forget what the activity was, but, I do not know in what capacity she did that.

MR PAPAYANNI: Under 104(6), it says:

The Commission may engage any suitably qualified person to provide the Commission with services, information or advice.

Well, it may come within that.

McHUGH J: Yes, but, you see, if your argument was right there can never be a valid hearing by anybody other than a Commissioner or an Assistant Commissioner. So, you can never have - because section 30(2) only, in terms, refers to a Commissioner or Assistant Commissioner.

MR PAPAYANNI: That is correct, and, see, it is a hearing of the Commission. Now, there is nothing to stop the Assistant Commissioner or anybody else conducting a hearing or interviewing a witness or someone of that kind. In fact, as his Honour the Chief Justice says, there may be a situation where the Commissioner says, "Look, will you interview somebody in Western Australia?" or something of that kind to some barrister, and he interviews him - - -

GLEESON CJ: I remember, now, this was inquiry into mortuary employees.

MR PAPAYANNI: That is a dead issue, I would say. So, you get a situation where that would be of assistance to the Commissioner, but the person who lied in Western Australia who was interviewed by the barrister, or solicitor or whatever it was, you could not then charge him with lying or giving false evidence before the Commission because it would not be a hearing of the Commission. So, it is not to say that you cannot conduct the hearings by a Commissioner but in order to make it come within section 107, the "hearing" - "of the Commission" it means a valid hearing of the Commission, and that, in my submission, must be interpreted strictly and that makes it very clear.

I was going to read the rest of Selbey's Case in relation to the question of strictness and so on, and the onus is pointed out as being an onus that is on the Crown and the burden of proof being on the Crown to prove its case. Now, if they do not prove the determination of the Commissioner which is specifically provided in the Act, there is no point in having it in the Act.

McHUGH J: Yes, but before you come to this, could I just refer you to what I have just found. The Assistant Commissioner has got no power and cannot be given any power to arrest the person under section 36.

MR PAPAYANNI: The Assistant Commissioner?

McHUGH J: He cannot be, so when he can - - -

MR PAPAYANNI: No, and he has not got any power under section 100 either and the contempt.

McHUGH J: When he conducts a hearing, he has no power to issue a warrant for the arrest of a witness.

MR PAPAYANNI: Yes, but see, if we accept what your Honour says, if he conducts a hearing and issues a warrant for a person to appear before him, and then sends that person to gaol, well, then that is quite in order.

McHUGH J: I have not said that at all.

MR PAPAYANNI: Well, he is acting in the position of the person who is conducting the hearing at a Commission.

McHUGH J: Are you talking about the de facto officer's doctrine?

MR PAPAYANNI: Yes.

McHUGH J: Well, that is a case where the section itself specifically says that he shall have no power.

MR PAPAYANNI: You see, what I am putting is this: these presumptions - presumption of regularity depends on each individual case. You get a civil case, you say yes or no. You get a criminal case, and as in one case, the case I referred to, where there was evidence of the appointment of the person in the canteen service, well, then that is evidence on which you can infer that he was in the service of the Crown. But if you get no evidence at all from either Mr Roden or the Commissioner that any determination has been made, well, then there is no then hearing by the Commission because it makes specific provision that under section 4 - we have to ignore section 4 because we say the person who conducts the hearing has to be authorised by the Commissioner and if he is not authorised by the Commission, well that is okay.

McHUGH J: Yes, but in this particular case, the evidence is: Mr Roden was an Assistant Commissioner; he was presiding at a hearing in a hearing room of the Commission; he was conducting a hearing; and the Commission's reporting service provided the tape and the transcript; and we know that the master tapes were retained by the Commission. Now add those things together. The inference is overwhelming that there was a hearing before the Commission. Why is that not sufficient evidence to make a - - -

MR PAPAYANNI: Evidence is overwhelming that there was a hearing by the Assistant Commissioner.

GLEESON CJ: If something looks like a duck and quacks like a duck and flies like a duck, you do not need to rely on the presumption of regularity to conclude that it is a duck.

KIRBY J: But your point, as I understand it - - -

MR PAPAYANNI: Yes, but we have a goose here, I think.

KIRBY J: - - - is that this is a very particular statutory duck and it is only a duck that flies if it gets a determination by the Commissioner and that is an ingredient in the offence, has to be proved. I mean, we have been talking about it for an hour, but it is a very short point.

MR PAPAYANNI: Yes, it is, but the simple situation, as I say, it is a statutory duck but here we have a goose who is trying to act like a duck.

GLEESON CJ: I think we have a canard.

MR PAPAYANNI: Whether he is performing that way or not is doubtful, in my submission. But I cannot stress too much the fact that the point was taken, the presumption of innocence, the onus of proof, and that there was no evidence of the delegation or - - -

KIRBY J: And I suppose you could say it is matter that is readily susceptible to proof.

MR PAPAYANNI: That is correct, yes.

KIRBY J: I mean, it is not as if it is such a big thing or difficult to get the proof.

MR PAPAYANNI: And the fact that they had not endeavoured to prove it at any of the hearings - in one of the hearings in relation to one of the matters they proved that the person had, in fact, been authorised.

McHUGH J: Yes, but you have very skilfully attempted to divert the Court's attention from the real issue by concentrating on section 30(2). The real issue is was there evidence of a hearing before the Commission?

MR PAPAYANNI: No, I do not agree, your Honour.

McHUGH J: That is what section 87 says.

MR PAPAYANNI: I do not accept that, your Honour, because section 4 - - -

McHUGH J: Well you may not accept it. But do you accept the fact that that is what the issue is?

MR PAPAYANNI: No, I do not accept that. I think that there was a valid hearing before the Commission, and that relies upon section 4. Section 4 is so important in this Act because it says only with the authority of the Commissioner, and if you do not have the authority of the Commissioner there is not a valid hearing of the Commission. It is as simple as that. I would ask your Honours to read Selby. I do not want to go through it all, but it makes that point very strongly that, as I said, those matters in relation to the onus of proof and so on, and this is an important matter because it carries five years gaol, and a Supreme Court judge has said that people who commit offences under section 87 should go to gaol. That is why it is important, that the Act has to be interpreted strictly in relation to any criminal prosecution under section 87.

GLEESON CJ: What is the current state of these proceedings, Mr Papayanni? I have had some contact with them in the past but it is part-heard technically before Judge Downs, is it?

MR PAPAYANNI: That is right, and he is going to retire sometime, I think, and he wants it finished.

GLEESON CJ: Yes, I was thinking of that. He is retired, is he not?

MR PAPAYANNI: No, I do not think so.

KIRBY J: I thought he had retired. I thought he had ceremonies all over the State

MR PAPAYANNI: He may have.

KIRBY J: I am sure I have seen them in the press clippings, but perhaps he has not.

GLEESON CJ: He has retired?

MR PAPAYANNI: He is acting, I think.

GLEESON CJ: He is acting.

KIRBY J: What order do you actually seek, that the answer to that question be no?

MR PAPAYANNI: Yes.

KIRBY J: Yes.

MR PAPAYANNI: He did err in law in that respect, that it was a valid hearing of the Commission, and if the answer is yes - - -

KIRBY J: And that is then, is it, under the procedures, sent back to the District Court to make the final orders in accordance with the order which we would substitute if you were to succeed in the appeal for the order of the Court of Criminal Appeal?

MR PAPAYANNI: Yes, that is right.

KIRBY J: And the Court of Criminal Appeal does not enter the acquittal that what would follow from that answer and it is left to the District Court to do that.

MR PAPAYANNI: It goes back to the District Court. It goes straight back to the District Court from here.

GLEESON CJ: Can Judge Downs allow the Crown to re-open the case?

MR PAPAYANNI: We would oppose that, of course.

GLEESON CJ: But does he have power to do so?

MR PAPAYANNI: He has got power, I think, but should not exercise capriciously.

KIRBY J: Had he not reached a point of pronouncing his - - -

MR PAPAYANNI: It is the end of the Crown case and I put to him that we would be calling no evidence and that the submission was in relation to, in the first place, that there was no case to answer; and secondly, in relation to beyond reasonable doubt. So, on those circumstances, that I should not think he would allow the Crown to re-open the case, but that is a matter, of course, that would have to be looked into.

GLEESON CJ: Thank you, Mr Papayanni. Yes, Mr Blackmore.

MR BLACKMORE: Your Honours, I feel that the argument that the Crown raises in its written submissions has already been canvassed in front of the courts. I will not take a lot of time going through it here.

GLEESON CJ: Mr Blackmore, it may be the case I am about to mention has nothing whatever to do with this issue, but there was a case in the Court of Criminal Appeal in New South Wales some years ago about the validity of the appointment of Judge Saunders. Do you remember?

MR BLACKMORE: Yes, there was, yes.

GLEESON CJ: I had an interest in that because I signed his commission - - -

MR BLACKMORE: That is right, yes, your Honour.

GLEESON CJ: - - - it was in a different capacity and I was glad that it was held the Commission was not invalid, but did they discuss this issue or anything like that?

MR BLACKMORE: No. We looked at it and it was not relevant, we thought, to this and, very shortly, we disagree.

KIRBY J: Can I just ask: in your submissions I did not see you put the point with which the dialogue where Mr Papayanni began, that is that you do not get to the presumption of regularity, you simply draw an inference that the Commissioner determined, in accordance with the section, by reason of the collection of facts that Justice McHugh mentioned. Now, am I correct? I did not remember the Crown's case putting that argument. Your argument, as I understand it, was mainly that this was a case where you can infer from the statute that the Assistant Commissioner had the power and that as a fall back you relied on the presumption of regularity, but am I missing something or not?

MR BLACKMORE: No, no. We do, I think, in paragraph 14, perhaps not as expressly as I will now put it, but that the - perhaps it is in paragraph 13 actually. We say this about halfway down that paragraph: with regard to the determination made by the Commissioner there is no requirement for formality, for example, there is no requirement for the examination to be in writing.

KIRBY J: No, Mr Papayanni says there is something in the Interpretation Act that - - -

MR BLACKMORE: No, he says that in relation to delegation, with respect, not in relation to this determination and there is nothing in this Act or any other Act that I am aware of that would require this determination to be other than addressed in terms of - - -

GUMMOW J: What is the section of the Interpretation Act, do you know?

MR BLACKMORE: Section 49 I think he mentioned.

GUMMOW J: Section 49.

MR BLACKMORE: I do not have it with me, but that is the section he mentioned.

KIRBY J: If an accused, as it were, put the prosecution to the strict proof and even if it be an oral determination - that is the verb that is used - would you not have to prove that determination?

MR BLACKMORE: Well, I will answer that in two ways. The question in relation to strictness really is a non-entity, with respect. The Crown determines what evidence they prove in the case, not the accused, and if at the end of the case the Crown does not prove its case, it does not matter that it is strict or not strict.

KIRBY J: Yes, but often at the beginning of a case, in a case you say, "Well, this is not in issue. We do not dispute this. We agree with this or that."

MR BLACKMORE: Sometimes, sometimes.

KIRBY J: And that refines the matters that are real issues for the trial.

MR BLACKMORE: That is true. So, essentially, all that strictness relates to is what concessions will not be made and all we knew in this case is - - -

McHUGH J: But is it not still the case in New South Wales that an accused can only make admissions as to facts or issues on the advice of - is it not?

MR BLACKMORE: No, not under the present Evidence Act, as I understand it, but it was under the Crimes Act as it was then.

McHUGH J: Under the Crimes Act.

MR BLACKMORE: But I would have to check that, to be honest. It may still exist. It may still exist in those terms.

McHUGH J: Yes. Well, that is what I thought.

MR BLACKMORE: Yes, but coming back to this point. We rely upon an inference that the determination was made and we read the word "determination" simply as "decision". Was a decision made and the question is twofold really, that the section addresses two issues; not simply whether a determination was made that the Assistant Commissioner would hold the hearing, but whether there would be a hearing. That is the more significant determination made under that section because the section is in a part dealing with hearings. We submit that there is a clear inference available from the fact that there was a hearing that there had been a determination.

GUMMOW J: Well, that is section 30(1).

MR BLACKMORE: Yes, and, again, there was not any evidence to the contrary of that and it was a clear inference that the Assistant Commissioner was holding the hearing, there was direct evidence that he was holding the hearing and, therefore, also an inference available that he had been determined to hold the hearing. Now, I take your Honour's point that there was no express evidence of that determination and that is perhaps where the parties vary. We would simply submit this was a prima facie case submission. We rely on Doney in this Court, that even where evidence perhaps is weak or tenuous, it is sufficient if it shows a prima facie case.

GUMMOW J: What is that citation?

MR BLACKMORE: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 and in particular we are referring to pages 214 to 215. If I can direct your Honours' attention if you are going to the actual case, it is towards the bottom of the page, it is about point 8 or point 9 on the page:

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the -

tribunal of fact, in this case -

in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the -

tribunal of fact -

for its decision.

KIRBY J: But if it is an ingredient in the offence - and the word "determined", it seems, to me at least, to be a verb of a degree of formality, and properly so. You can have Assistant Commissioners but the conduct of a hearing is a serious enterprise and it can have serious consequences for the persons who are summoned before it and have to give evidence before it, therefore the use of the word "determined" and the requirement of the determination in the legislation seems to suggest some degree of formality, at least to my mind.

MR BLACKMORE: We have put the contra submission, with respect, and we say that simply the word can be read as "determination" and can be "decision", and the decision does not have to be in writing. It can be oral. It could be a decision made for ad hoc reasons, as I think your Honour the Chief Justice mentioned.

McHUGH J: But the issue under section 87, which is the offence, is whether there is a hearing of the Commission.

MR BLACKMORE: Indeed.

McHUGH J: Look at section 30. It says that the hearings are:

by the Commissioner or by an Assistant Commissioner as determined by the Commissioner.

Now, that is the underlying structure. That is not what you have to prove.

MR BLACKMORE: No.

McHUGH J: You have to prove that there was a hearing of the Commission.

MR BLACKMORE: Indeed.

McHUGH J: And if you have somebody who is an Assistant Commissioner in the position acting in the position, using the Commission's facilities, including its tape recording services, the master tapes in the possession - - -

MR BLACKMORE: Yes, all of those circumstantial pieces of evidence which lead to the conclusion that there was a hearing before the Commission. If validity is the only issue, then perhaps we have to come within this section as well. We say we do because there was clear evidence that it was the Assistant Commissioner.

KIRBY J: As I understand it, Mr Papayanni does not dispute that there was a hearing in the sense of something happened before the Commission. His argument, right or wrong, is a completely technical one and it is simply the failure to establish that this was a lawful hearing by a person determined to have the power to conduct it. But it is a bit like the Commonwealth Director of Public Prosecutions - a less meritorious point one could hardly conceive of.

MR BLACKMORE: With respect, in our submission it simply comes down to a determination on a question of fact as to whether or not there was a determination. We submit there was an inference available from all of the evidence. Such a determination took place and that therefore no further evidence was required to prove this particular element of the offence. I have addressed this at some length in the written submissions. Unless there is something specifically further I can help with.

GLEESON CJ: Thank you, Mr Blackmore. Yes, Mr Papayanni.

MR PAPAYANNI: Just on section 30. If the situation was that the determination refers to an investigation, the section would have read, "The Commissioner may determine whether there be a hearing in relation to an investigation, whether or not there would be one". It does not say that. It says:

A hearing shall be conducted by the Commissioner or by an Assistant Commissioner -

not full stop, as the Crown would suggest but as determined by the Commissioner. I might just add that section 49 does not apply, in my submission, unless there is an actual delegation because the section refers to the delegate. You cannot have a delegate under section 49 unless there has been a delegation, and so that section really does not apply. I was just pointing out that under that section, it requires the delegation to be in writing. But the section does not apply - - -

McHUGH J: I am sorry, I do not follow this. Section 49, is that the right section?

MR PAPAYANNI: Yes, of the Interpretation Act, because it refers to a delegate there and if there has not been any evidence of any delegation, the section does not apply to it.

KIRBY J: This does not seem to have any relevance whatever. The issue here is determination and the delegation is something that comes further down the track.

MR PAPAYANNI: Yes, your Honour. I know that. If the question of section 49 applies or not, our submission is that it does not apply.

GLEESON CJ: Just one small matter. You can commit an offence against section 87, can you not, even if an oath has not been administered?

MR PAPAYANNI: That is correct, yes. It is not mandatory but that is the section.

GLEESON CJ: Thank you. We will adjourn for a short time to consider the course we will take in this matter.

AT 11.35 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.36 AM:

GLEESON CJ: In this matter the order of the Court is that the appeal is dismissed. We will publish our reasons in due course.

AT 11.38 AM THE MATTER WAS ADJOURNED