Swift v The Queen B23/1999 [2000] HCATrans 396 (22 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 1999

B e t w e e n -

JOHN EDWARD SWIFT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 11.38 AM

Copyright in the High Court of Australia

MR W.J. CUTHBERT: If the Court pleases, I appear for the applicant. (instructed by Witheriff Nyst Lawyers)

MR M.J. BYRNE, QC: I appear for the respondent, if the Court pleases. (instructed by the Director of Public Prosecutions (Queensland))

KIRBY J: Yes, Mr Cuthbert.

MR CUTHBERT: If the Court pleases, the basis of the application for special leave in this case, the reasons are set out on pages 236 to 237 and in the outline of argument reference is made at 234 lines 10 to 20 of the investigative powers of the CJC and the Misconduct Division and that is further followed at page 235 at line 6:

both Evans and the CJC acted beyond the powers.....

it is not a function of the CJC to test the virtue of otherwise honest police officers in an attempt to uncover police corruption -

Perhaps an encapsulating phrase that seems to have arisen lately is this case involves "integrity testing" by the CJC or the Misconduct Division of the CJC because prior to the course of events that are set out in the outline of the factual background at pages 228 and at 229, there is nothing at all to suggest any misconduct whatsoever on the part of this particular police officer, the applicant, or any allegation of misconduct against the applicant.

The point was argued and dealt with in the Court of Appeal in this fashion, and I take the Court to page 206 of the book, line 25:

it was submitted that none of these provisions empowers the Criminal Justice Commission or its Official Misconduct Division to carry out an investigation of suspected misconduct unless there is a suspicion that a known person has engaged in -

that misconduct:

It therefore did not apply to this case, the appellant not being under suspicion.....notwithstanding the existence of a reasonable suspicion that a member or members of the police force at the Gold Coast - - -

Now, the court interpreted suspected misconduct by members of the police force at line 9:

is capable of including, and should be construed so as to include a reasonable suspicion of misconduct by one or more members of the police service notwithstanding that no specific police officer can be identified -

It is my submission, your Honours, that that cannot extend, for instance, to the whole of the police service in Queensland. It could extend to a known police officer or to at least an identified body of police officers in a particular station dealing with a particular aspect, but merely that there was some suspicion, a reasonable suspicion, that some members of the police force at the Gold Coast could not encompass, in my submission, a right on the part of the CJC to integrity test, if I can use that term, the whole of the force in order to attempt by what is conceded to be an illegal act by a paid contractor, their own paid contractor, Mr Evans, inducing the acceptance of a bribe that he offers after having made extravagant promises that he would pay whatever it takes and making insistent demands that he be brought into contact with a police officer, and finally this formerly completely worthy police officer succumbs to temptation. Now that, in my submission, is not the purpose for which the Criminal Justice Commission or its Misconduct Division was constituted.

KIRBY J: That might well be so. I make no comment on that but the fact is that it only arises in this application in challenge to a discretionary decision of the trial judge to admit certain evidence. Now, one can have the kind of argument that you are addressing to us at trial but the judge considered the applicable principles and resolved to allow the evidence to be admitted.

What you have to overcome is, first of all, his decision in that respect and then the decision of the Court of Appeal to affirm it and we are not sitting here as a commission to discipline the CJC of Queensland. We are simply looking at whether or not in this case error has been shown in the decision of the primary judge, error has been shown in the decision of the Court of Appeal, that has led to some injustice to your client. The problem for you is that the Court has explored quite recently in Ridgeway and in Swaffield and Pavic the principles that are to be applied in this case and this simply looks to me to be another instance of the application of those principles.

MR CUTHBERT: If the principles had been correctly applied, your Honour, in my submission, there would have been no miscarriage of justice.

KIRBY J: So, it boils down to the fact that it has established principles, clearly acknowledged but wrongly applied in the particular case.

MR CUTHBERT: Wrongly applied in the particular case.

KIRBY J: That does not look to be the kind of matter that would ordinarily attract the attention of this Court. I mean, I have looked at the summaries of the matters that came out and I can understand the point of argument that you wish to raise and how that is handled is committed by our law to individual trial judges. I would hope that one would not get to a point that police officers are deliberately and without just cause inveigled into corrupt action. That, I would think, would be contrary to the operation of the law. But when one reads actually what occurred and the way your client with apparent readiness jumped into the fray and then continued in the fray with apparent enthusiasm, it does not seem to be a case that calls out for attention on the basis that perhaps a serious injustice has occurred here.

MR CUTHBERT: Your Honour, I am aware that I am faced with the appeal against a discretionary exercise by the trial judge and that was echoed by the Court of Appeal itself saying that indeed, if it was exercising its discretion afresh, it would have done so in precisely the same way.

I rely upon that they have misconceived the rules in Ridgeway but further than that, your Honour, this does raise the question which has been alluded to in Ridgeway and other cases but has never come so blankly before this Court, and that is the use of what is tantamount to integrity testing of a large number of police officers in the Gold Coast.

KIRBY J: That is a matter to be raised at the trial in opposition to the admission of the evidence. It does not seem to me to be - because we are not here as a super investigator of the CJC or like bodies. That is not our function.

MR CUTHBERT: What I am submitting to the Court is that this issue of integrity testing is an important issue not only in Queensland but throughout Australia and has not been fully considered by this Court, and this is an appropriate vehicle for the matter to come before the High Court and therein lies the basis of the reasons for granting special leave in this case.

KIRBY J: Yes. We have read and considered the submissions. Is there anything else that you want to put to us, Mr Cuthbert?

MR CUTHBERT: I have nothing further, your Honour.

KIRBY J: The Court does not need your assistance, Mr Byrne.

Ultimately, this application challenges a discretionary decision of the trial judge who refused to exercise his discretion to exclude evidence at the trial of the applicant. The applicable principles are well established. They were recently considered by this Court in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 and The Queen v Swaffield and Pavic (1997) 192 CLR 159. In light of the applicable principles, there is no sufficient reason to doubt the correctness of the conclusion of the Court of Appeal of Queensland to uphold the trial judge's decision. Nor do we consider that the Court should intervene to prevent a suggested miscarriage of justice. Special leave is accordingly refused.

Call the sixth application.

AT 11.51 AM THE MATTER WAS CONCLUDED