R v Bell [2020] SADC 107 deals with allegations of inappropriate procedure by the South Australian Independent Commissioner Against Corruption (ICAC). It is of interest for people considering the operation of Australian anti-corruption agencies.
State MP Troy Bell was charged with 20 counts of theft and six counts of dishonestly dealing with documents allegedly committed between 2009 and 2013. His application for a stay of the proceedings on the basis they are an abuse of process is said to arise from the ICAC's referral of the matter to the state DPP rather than to the state police force (SAPOL), the ongoing effect of notations on summonses and non-communication directions and the involvement of the ICAC investigators in the criminal process after charges were laid.
The District Court holds that
The ICAC's referral of the matter direct to the DPP, and the provision of information and evidence to the DPP at that time, was contrary to the ICAC Act.
The matter should have been referred to the SAPOL for further investigation and prosecution.
The involvement of the ICAC investigators in the prosecution of the charges once laid was beyond the functions of the ICAC.
The failure to address notations on summonses and non-communication directions in a timely manner once charges were laid and the use by investigators of unexplained references to s 54 of the ICAC Act in emails when liaising with witnesses has resulted in at least a perception of forensic advantage to the prosecution and forensic disadvantage to the Applicant.
The actual prejudice is not such that there is no means of remedying the unfairness.
The circumstances are not such that allowing the prosecution to proceed would so much bring the administration of justice into disrepute that the prosecution should be stayed.
In 2018 the ABC reported
The trial for a South Australian MP accused of misappropriating more than $2 million of public funds will involve allegations of "money laundering", "document forging" and "outright thefts", the District Court has heard. Independent member for Mount Gambier Troy Bell pleaded not guilty to 20 counts of theft and six counts of dishonestly dealing with documents in June. The charges related to the time the former teacher spent running an independent learning centre in Mount Gambier between 2009 and 2013. He resigned from the Liberal Party in August last year, but continued as an independent MP. Mr Bell has strenuously denied any wrongdoing since being charged, and had previously said he looked forward to an opportunity to "clear his name". Prosecutor Mark Norman SC told the District Court Mr Bell's trial would be "extraordinarily complicated" and would likely run for up to three months. ..
The judgment states
The Applicant, Troy Stephen Bell, is charged with 20 counts of theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and six counts of aggravated dishonest dealings with documents contrary to s 140(4) of the CLCA. It is alleged the offending occurred between July 2009 and March 2013 at Mt Gambier.
He has made an application for an order that these criminal proceedings be permanently stayed on the basis they are an abuse of process. The final version of the application is the further amended application for directions dated 8 July 2020, which sets out five grounds for the stay. The grounds arise from the investigation of this matter by the Independent Commissioner Against Corruption (the ICAC). The general basis of the application is that the ICAC, having conducted an investigation, had no power to refer the matter directly to the Director of Public Prosecutions (SA) (the DPP). Instead, the matter should have been referred by the ICAC to the South Australian Police (SAPOL). The exercise of the ICAC’s powers of investigation was permissible insofar as it was for the purpose of assembling a brief of evidence to be referred to SAPOL for further investigation and prosecution, but not permissible for the purpose of assembling a brief of evidence for direct referral to the DPP. Further, it is said that the continuing involvement of the ICAC in the preparation of the matter for trial alongside the DPP (rather than SAPOL, who were not involved at any stage) was beyond his jurisdiction. The exercise of his powers after referral was unlawful. The result is that the Applicant cannot now receive a fair trial. The direct referral and the subsequent conduct has resulted in a fundamental alteration to the accusatorial process.
... In March 2014, the Office of Public Integrity (OPI) received a complaint which was assessed by the OPI as a matter raising a potential issue of misconduct in public administration. Under s 24(2)(b) of the ICAC Act, the matter was referred to the Department of Education and Child Development (DECD) for investigation.
On 12 November 2014, following receipt of an internal audit from the DECD, the matter was re‑assessed by the Deputy ICAC as raising potential issues of corruption in public administration. Under s 24(1)(a) of the Independent Commissioner Against Corruption Act 2012 (ICAC Act), the ICAC determined that the matter should be investigated by him. As part of that investigation, the ICAC exercised his power to examine three witnesses, Mr Shelton, Mr Fox and the Applicant’s wife, Mrs Michaela Bell. He also issued search warrants and obtained search warrants following application to the Supreme Court.
On 2 May 2017, the ICAC ‘referred’ the matter to the DPP.
On 9 August 2017, an Information was filed in the Magistrates Court in the Director’s name laying charges against the Applicant. On 18 June 2018, the Applicant was committed for trial from the Magistrates Court to the District Court.
On 9 October 2018, the Information was filed in the District Court. The Applicant was arraigned and pleaded not guilty. On 21 March 2019,[12] the trial date was listed to commence on 8 October 2019.
On 4 July 2019, the trial date was vacated because the Applicant’s counsel was unable to continue due to ill health. The Applicant briefed alternative counsel and the trial was re-listed to commence on 6 July 2020.
Statement of the grounds of the application for a permanent stay
Grounds 3 and 4 of the application focus upon the ICAC’s referral of the matter, and provision of information and evidence to the DPP in May 2017. The Applicant submits the ICAC had no power to refer a matter for prosecution directly to the DPP (ground 4), or to provide evidence and information directly to the DPP (ground 3). Such is said not to be authorised by s 7 or s 36 of the ICAC Act (ground 4) or s 54, s 56A or sch 2 cl 3 of the ICAC Act (ground 3).
Ground 4 is set out in the application as follows: The ICAC, having determined to conduct an investigation pursuant to section 24A(1)(a) of the Act, had available to him upon completion of his investigation the powers as contained in section 36(1) of the Act. That is, the ICAC was empowered to: 5.1 ‘refer a matter to the relevant law enforcement agency for further investigation and potential prosecution’; and, or 5.2 ‘refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible’.
The ICAC therefore had no power to refer this investigation directly to the Director of Public Prosecutions (SA) and thereafter retain conduct of it. The referral, and all actions subsequent, were beyond power and constitute an abuse of process justifying a stay.
Ground 3 is set out in the application as follows: Neither the ICAC nor an investigator appointed under the Act has jurisdiction to authorise the deployment of information obtained under search warrant, summonses to witnesses, compulsory examination or any other power under the Act beyond that prescribed in the Act, and in particular, for use or receipt as evidence in criminal proceedings not instituted under the ICAC Act.
In so far as sections 54, 56A and schedule 2 clause 3(13) and (4) refer to the disclosure and use of information in a criminal investigation or proceedings, they are limited to criminal proceedings under the ICAC Act. Section 36 does not authorise unrestricted use by or publication to any other person or to a court of law.
Ground 1 of the application focuses upon the conduct of the ICAC after the referral to the DPP in regard to three witnesses (Mr Shelton, Mr Fox and Mrs Bell who had been examined pursuant to s 29(1) of the ICAC Act prior to the referral) and in regard to another person (Mr Wheaton) who was the subject of an exercise of power to produce documents under s 29(2) of the ICAC Act after the referral. The contention is that the exercise of powers for the non‑communication of information and evidence in relation to those persons, which persisted for years (Mr Shelton, Mr Fox and Mrs Bell), or were made, after charges were laid (Mr Wheaton), has amounted to the prosecution having property in those witnesses.
Ground 1 is set out in the application as follows:
The Independent Commissioner Against Corruption (‘ICAC’), by exercising his powers under the Independent Commissioner Against Corruption Act 2012 (SA) (‘the Act’), to seize documents, summons and examine witnesses and thereafter direct each of the witnesses summonsed for examination not to speak with persons (including the accused and his solicitors) about their examination and its subject matter, has acted unlawfully (see grounds 2, 3, and 4) and interfered with the fundamental premise of the accusatorial system that there is no property in witnesses, such that the accused cannot receive a fair trial.
Ground 2 of the application combines the other four grounds and adds other aspects of the conduct of the ICAC to comprise the basis for a stay of the proceedings. It focuses upon conduct of the ICAC before referral to the DPP ([2.5] and [2.6] which comprise ground 5, [2.7]), conduct of the ICAC in referring the matter directly to the DPP ([2.10], [2.11], [2.13] which are grounds 3 and 4) and conduct of the ICAC following referral to the DPP ([2.1], [2.2], [2.3], [2.4], [2.8], [2.9] which is ground 1, [2.12]).
Ground 2 is set out in the application as follows:
2. The ICAC and his investigators, by;
2.1 purporting to use its powers to seize or otherwise compel the production of documents and things,
2.2 summonsing the witnesses, Robert Shelton and Peter Fox for compulsory examinations, requiring each of them to answer questions (including about seized or compulsorily acquired documents or things);
2.3 summonsing a witness, Michaela Bell, who was not compellable against the accused by virtue of section 21 of the Evidence Act 1929 (SA), and requiring her to answer questions;
2.4 converting the transcripts of compulsory examinations into a written statement of fact for use in a criminal proceeding when those transcripts and the evidence recorded in them were each inadmissible in a criminal proceeding;
2.5 obtaining, and purporting to execute, search warrants from the Honourable Justice Lovell which were General Warrants and illegal and void, and thereafter purporting to seize documents or things and require the assistance of persons in doing so under the purported power of the warrants;
2.6 issuing, and purporting to execute, search warrants which were General Warrants and illegal and void, and thereafter purporting to seize documents or things and require the assistance of persons in doing so under the purported power of the warrants;
2.7 obtaining notice of the accused’s proposed defence by telephone intercepts in breach of legal professional privilege and using that notice for the express purpose of obtaining evidence to negate the accused’s proposed defence;
2.8 purporting to prevent witnesses interviewed by investigators from disclosing any subject matter connected with the investigation, or their involvement in it, to anyone else save for those persons mentioned in section 54 of the Act, including the accused or his legal practitioners, by virtue of section 54 of the Act, both before and after the commencement of the prosecution by the laying of the Information;
2.9 purporting to prevent the witnesses Shelton, Michaela Bell and Fox from disclosing to the accused and/or his legal practitioners that each was the subject of a compulsory examination under the Act or to otherwise discuss the evidence they may potentially give, including evidence exculpatory of the accused, with the accused and/or his legal advisers;
2.10 disclosing evidence which is inadmissible against the accused to the Director of Public Prosecutions (‘DPP’) for the purposes of the DPP determining whether there was a prima facie case, reasonable prospects of conviction, and the public interest lay in prosecuting the accused, for the purpose of determining whether or not to lay criminal charges against the accused;
2.11 disclosing evidence and material obtained under the Act to the DPP for use in a criminal proceeding against the accused;
2.12 attending at proofings of prosecution witnesses by solicitors and counsel for the DPP; and 2.13 failing to refer the investigation to SA Police or a law enforcement agency within the meaning of the act for further investigation and potential prosecution, and instead referring a brief of evidence to the DDP in breach of section 36 of the Act;
has:
undermined the fairness of the accused’s trial such that the accused cannot now receive a fair trial; undermined the accusatorial system of criminal justice such that the accused cannot now receive a fair trial;
engaged in conduct in the investigation, both before and after the commencement of the within prosecution, which is vexatious, oppressive and unfair, and engaged in conduct in the investigation which brings the administration of justice into disrepute;
such that in all the circumstances the Information should be stayed as an abuse of process of this Honourable Court.
Ground 5 relates to search warrants issued prior to the referral to the DPP. Ground 5 is set out in the application as follows:
The search warrants issued on 28 April 2016 by the Honourable Justice Lovell and on 4 May 2017 by the ICAC were general warrants and were illegal and void.
The Court's Summary of findings is
One of the primary objects of the ICAC Act is to establish the ICAC with functions designed to further the identification and investigation of corruption in public administration. The primary object of the Commissioner is to investigate a matter raising a potential issue of corruption in public administration. A function of the ICAC is to identify corruption in public administration and then investigate it or refer the matter to SAPOL for investigation. The ICAC is invested with extraordinary powers to investigate corruption. Prosecution of an offence falling within the definition of corruption in public administration forms no part of the Commissioner’s functions. If a matter arising out of a corruption investigation is to be prosecuted in South Australia, then it must be referred by the ICAC to SAPOL via s 36(1)(a) of the ICAC Act.
Once referred, if the matter is to proceed to charges and trial, SAPOL is to have conduct of the matter, as would occur in the ordinary course when criminal proceedings are on foot. The functions and powers of the ICAC do not extend to the gathering of evidence for the purpose of those criminal proceedings. After referral, if the ICAC has cause to perform functions or exercise powers in respect of that particular matter, the ICAC must endeavour to avoid prejudice to the accused person.
The ICAC’s referral of this matter direct to the DPP in May 2017, with the provision of information and evidence at that time, was contrary to the ICAC Act. The matter should have been referred to SAPOL for further investigation and prosecution. The involvement of the ICAC investigators in the prosecution of the charges once laid (including serving the Applicant with the Information and Summons, purporting to restrict the ability of the Applicant to disclose matters, filing declarations and declaration delivery certificates in court, contacting witnesses and potential witnesses to obtain declarations, preparing witness statements from transcripts of examinations, exercising the s 29A power to inspect and take copies of financial records and exercising the s 29(2) power to require production of documents) was contrary to the ICAC Act.
The failure to address notations on summonses and non‑communication directions in a timely manner once charges were laid and the use by investigators of unexplained references to s 54 (confidentiality provision in the ICAC Act) in emails when liaising with witnesses or potential witnesses has resulted in actual, or at least a perception of, forensic advantage to the prosecution and forensic disadvantage to the Applicant.
The court does not condone conduct which is contrary to the ICAC Act. Nevertheless, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified.
The actual prejudice to the Applicant is not such that there is no other means of remedying the unfairness. Nor is this a case in which allowing the prosecution of the Applicant to proceed would so much bring the administration of justice into disrepute that the prosecution should be stayed.
