R v IBAC [2016] HCA 8 –High Court considers the companion rule, the privilege against self-incrimination and whether an anti-corruption agency examine persons who may be charged with a criminal offence

In the case of ICAC v Cuneen [2014] HCA 14 the High Court examined the powers of the Independent Commission Against Corruption (ICAC), causing intense media and legal scrutiny of the powers of ICAC and other anti-corruption agencies. In 2016 the High Court has turned its focus to ICAC’s Victorian equivalent, the Independent Broad-based Anti-corruption Commission (IBAC). In R v IBAC [2016] HCA 8 (R v IBAC), the High Court examined the question of whether IBAC could summon two police officers who had allegedly committed assault and who may be charged with the offence to give evidence before IBAC about the same matters. The decision is important in that it reaffirms the principles of the privilege against self-incrimination, is an example of how statute can abrogate common law rights, and indicates how other anti-corruption agencies with similar statutory regimes (such as ICAC) should approach such situations.

Before reading this blog post I recommend you read my blog post detailing the main differences between ICAC and IBAC.

Facts

Victoria Police commenced “Operations Ross” on 20 March 2015 to investigate alleged incidents at Ballarat police station which may have involved human rights violations in respect of women. One particular incident to be investigated was whether police officers assaulted a woman in a cell on 15 January 2015. IBAC decided to investigate the matter using its powers to investigate serious police personnel misconduct and issued summons to the police officers on 1 April 2015 to give evidence in public examination of their knowledge of matters in Operations Ross. The police officers were suspended from duty on 2 April 2015 on the basis they were reasonably believed to have committed the offence, but were not charged at that point in time. The police sought to challenge the power of IBAC to publicly examine persons on the same matter for which they are likely to be charged with an offence.

Two legal questions before the High Court

1.       Does the “Companion Rule” extend to situations where a person has not yet been charged with an offence?

2.       Does s.144 of the IBAC Act apply to persons not yet charged with an offence?

Road to the High Court

On 10 April 2015 the police wrote to the IBAC Commissioner and submitted that they could not be compelled to give evidence. The IBAC Commissioner rejected the submissions on 15 April 2015. On 16 April the police commenced judicial review proceedings in the Supreme Court of Victoria seeking orders preventing IBAC from examining the police officers. Justice Riordan rejected the argument holding that as the appellants had not yet been charged with an offence the process of criminal justice had not commenced and the entitlement to protection from self-incrimination was not yet operative. The police were also unsuccessful before the Court of Appeal, where their Honours held the IBAC Act “intended that the persons, who might be examined, include persons who might have been implicated in that conduct”. 

High Court decision

The High Court unanimously dismissed the appeal and held:

1.       The “Companion Rule” does not extend to situations where a person has not yet been charge with an offence; and

2.       Section 144 of the IBAC Act applies to all persons issued with a witness summons, including persons not yet charged with a criminal offence.

French CJ, Kiefel J, Bell J, Keane J, Nettle J, and Gaudron J gave reasons in a joint judgment and Gageler J wrote separate reasons.

High Court’s legal analysis

1.       The “companion rule”

The fundamental principle of the common law in criminal proceedings is that the prosecution must prove the guilt of the accused person. The companion rule is derived from this fundamental principle and was enunciated by the High Court in Lee v The Queen (2014) 253 CLR 455:

“The companion rule to the fundamental principle is that an accused cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.”

The authorities make it clear that the operation of the companion rule is dependent on the judicial process having been engaged by a person being charged with but not yet tried for a criminal offence. In R v IBAC, the appellants asserted as one of their submissions that the police under investigation could not be summoned to give evidence before IBAC as it would breach the companion rule. The High Court held in the present case the companion rule is not engaged as the appellants have not been charged and no prosecution is pending ([48]). The High Court refused to extend the operation of the companion rule to situations where a person had not yet been charged for the following reasons:

1.       The rationale behind the authorities for the companion rule is to protect the forensic balance between prosecution and accused in the judicial process as it has evolved at common law – this rationale does not extend to persons who have not yet been charged ([48]).

2.       Extending the companion rule in this instance would be contrary to the objects of the IBAC Act which include identifying, investigating and exposing police personnel misconduct (s.8 IBAC Act), and applying the companion rule in anticipation of commencement of criminal proceedings would frustrate the ability of IBAC to carry out this object ([51]).

3.       The appellants failed to clearly enunciate the extent to which the companion rule should be extended, varying their submissions from “persons reasonably believed to have committed a criminal offence” to “a person the specific subject of an investigation” to “a person reasonably suspected of having committed a criminal offence” ([49]).

4.       If the companion rule was extended to protect persons reasonably suspected of having committed a criminal offence, there is uncertainty as to who is to hold the suspicion, especially where different persons having access to different bodies of information may have different views on the issue ([50]).

Gageler J gave similar reasons to the joint judgment, concluding that the extension of the companion rule in this situation frustrates a clear object of the legislation which is “the identification, investigation and exposure of serious corrupt conduct and police personnel misconduct” ([74]) and ([77]).

His Honour also noted a number of issues not considered in the joint judgment did not consider. First Gageler J noted the importance of considering Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Victoria’s Charter), and in particular how the companion rule interacts with s.25(2)(k) which contains the right of a person charged with a criminal offence “not to be compelled to testify against himself or herself to confess guilt”. His Honour did not answer the question as it had not been explored in argument. Second, Gageler J noted that no attention had been given to the detailed statement of compatibility provided to Victorian Parliament when the IBAC Bill was debated. The statement of compatibility usefully explained that the abrogation of an individual’s right against self-incrimination was justified in this instance “to assist the IBAC in its functions as a truth-seeking body that is able to undertake full and proper investigations”. Neither the appellants nor respondents considered the statement of compatibility in argument.

2.       Self-incrimination and section 144 of the IBAC Act

Ordinarily a person is entitled to claim the privilege against self-incrimination where a person’s answer is likely to incriminate them. This privilege is based on the fundamental principle that the prosecution must prove the guilt of the accused and that an accused has the right to remain silent. The High Court referred to Sorby v The Commonwealth (1983) 152 CLR 281 where Gibbs CJ referred to R v Boyles (1861) 1 B&S 311 in enunciating when the privilege against self-incrimination is enlivened:

“to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the person is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer”.

The common law privilege can be curtailed by statute. In R v IBAC, the High Court held that the IBAC Act clearly intended to abrogate the common law privilege against self-incrimination, as the broad purpose of Pt 6 of the IBAC Act is to obtain material not presently available to advance the objective of maintaining public confidence in the police force ([55]), and such information would likely include information that may be self-incriminating. Further, s.144 clearly abrogates the privilege.

Section 144 provides that a witness is not excused from answering a question, giving information or producing a document when summoned on the ground the answer, information or document might tend to incriminate the person (s.144(1)). However, while this information must be given by a witness summoned by IBAC, the self-incriminating information cannot be used against the witness in judicial proceedings (subject to a few limitations) (s.144(2)).

The appellants argued that s.144 does not apply to persons yet to be charged with a criminal offence. The High Court rejected this argument, as the section read with the evident purpose of the IBAC Act points to an intention that s.144 applied to all witnesses summoned including witnesses who have not yet been charged with an offence, as objective of maintaining public confidence in the police force may include obtaining information that is self-incriminating. 

Gageler J gave similar reasons to the joint judgment noting:

·         The IBAC Act clearly manifests the intention that a person summoned and examined might be a person whose criminal police personnel misconduct is the subject matter of the investigation; and

·         The use of the word “a person” in s.144 clearly contemplates any witness summoned cannot be excused from providing information on the grounds of self-incrimination.

Implications and lessons to learn

The case reaffirmed that the companion principle only applies to persons charged with a criminal offence. It is also a useful example of how the common law privilege against self-incrimination can be abrogated by statute. ICAC’s statute contains a similar provision to s.144 of the IBAC Act which abrogates the common law privilege against self-incrimination but provides this information can only be used for the purposes of the investigation concerned (s.26 ICAC Act), so R v IBAC indicates how the High Court would decide a similar case in the NSW jurisdiction.

In R v IBAC the High Court also reaffirmed IBAC’s clear powers to summon any person for examination. ICAC’s statute contains similar provisions, so the decision may have some value in reaffirming ICAC’s powers to summon any person for examination.  

Importantly for those practising working with Victorian statute, Gageler J’s reasons provide useful reminders to ensure you consider Victoria’s Charter and statement of compatability in your submissions and argument, as it may be helpful for interpretation purposes, and some judges find these arguments particularly persuasive.

Police v Dunstall [2015] HCA 26 – High Court makes it more difficult for drink drivers to challenge breath analysis reading

In Police v Dunstall, the High Court unanimously decided that the “general fairness discretion” did not apply to prevent the police admitting breath analysis evidence where the defendant’s blood sample was unable to be tested. Mr Dunstall’s blood sample was not able to be tested, as the doctor conducting the test did not draw enough blood for the sample. It was due to no fault of the police and no fault of Mr Dunstall that the blood sample was unable to be tested. The decision limits the ability for drink driver defendants to challenge breath analysis evidence.

The drink driving offence in South Australia

1.       The offence is contained in s47B(1)(a) of the Road Traffic Act 1961 (SA)
t is an offence to drive a motor vehicle with the prescribed concentration of alcohol present in your blood (0.05g or more alcohol in 100 millimetres of blood). The offence is punishable by a fine and a mandatory disqualification from holding a driver’s licence for a period of time which varies depending on whether it is the person’s 1^st, 2^nd or 3^rd drink driving offence and whether the offence is Category 1, 2 or 3:

                Category 1: 0.05 – 0.07g of alcohol in 100 millilitres of blood

                Category 2: 0.08 – 0.14g of alcohol in 100 millilitres of blood

                Category 3: 0.15g of alcohol or more in 100 millilitres of blood 

2.       Initial testing
A police officer can require a driver to undertake an alcotest (s47E(1)(a)). If an alcotest indicates the prescribed concentration of alcohol may be present in the person, a police officer can require the person to undertake a breath analysis test (s47E(2ab). The alcotest and breath analysis reading is designed to provide a relatively accurate correlation with alcohol concentration in the blood.

3.       Further testing at police station
If an alcotest reading comes up as “positive”, it is common for a driver to be taken to a police station to receive a breath analysis.

Section 47K(1) creates a presumption that the breath analysis reading corresponded to the blood alcohol level at the time of the reading. It is also presumed that the concentration of alcohol at the time of breath analysis performed within two hours of driving was the concentration of alcohol at the time of driving (s47K(1ab)).

 4.       Election to have a blood test 

The presumption that the breath analysis reading correlates with blood alcohol level can only be rebutted using evidence based on an analysis of the defendant’s blood that was taken in accordance with the prescribed procedures (s47K(1a)). In practice, this requires the defendant to adduce evidence based on the results of analysis of the blood sample.

After a “positive” breath analysis reading has been made, the police must give the person an oral warning to the effect that if the person wants to have a blood test, they will have to make their own arrangements, follow the correct procedures, and use the special blood test kit. A written warning to the similar effect must also be provided. There is not a “statutory right” to a blood test, however, the police must provide an approved blood test kit if requested by the defendant.

There are 19 procedures for taking the blood sample set out in Regulation 11 of the Road Traffic (Miscellaneous) Regulations 1999 (SA).

The facts

Mr Dunstall was subjected to an alcotest, which returned a positive result. A breath analysis test at the police station returned a result of 0.155 grams of alcohol per 100 millimetres of blood. This reading is high and is a Category 3 reading. Mr Dunstall was given the blood test warning and elected to have a blood test. Police drove Mr Dinstall to Noarlunga Hospital where blood samples were taken by a doctor.

Regulation 11(c) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) requires each container in the blood collection kit to contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood. There must be at least two containers in the sample. One of the samples is provided to the police who pass the sample on to Forensic Science SA, who provide a certificate of analysis to the police and the defendant. When Mr Dunstall’s sample was sent for analysis, the sample could not be used because the blood was denatured, as an insufficient quantity of blood had been collected.

The legal question
Mr Dunstall could not access the “blood test defence”, as the blood sample used was not able to be analysed or tested. He argued that the police should not be able to admit the breath analysis evidence, as this would lead to an unfair trial.

The legal question:

If the breath analysis evidence was able to be used in the trial, would this result in an unfair trial given the inability to analyse the blood sample results?

More specifically:
Is there a common law discretion to exclude lawfully obtained, probative, non-confessional evidence unaffected by impropriety or risk of prejudice misuse where admission would render trial of accused unfair?

The lower courts
In the Magistrates Court, Magistrate Dixon exercised the “general unfairness discretion” to prevent the police admitting the breath analysis evidence.  Justice Kelly of the Supreme Court of South Australia agreed with Magistrate Dixon, as if the breath analysis evidence was admitted Mr Dunstall would be “effectively placed in the same position as if no blood sample had ever been taken”. The Full Court of the Supreme Court unanimously acknowledged the existence of an unfairness discretion and by majority said it had been open to Magistrate Dixon to exclude breath analysis evidence using the “general unfairness discretion”. In the dissent, cited by the High Court, Chief Justice Kourakis analysed the legislative scheme, particularly the fact the legislative scheme does not confer a procedural right to adduce evidence of blood sample analysis, in deciding it was not open to use the “general unfairness discretion”.

French CJ, Kiefel , Bell, Gageler, and Keane JJ:

The High Court analysed the rules for exclusion of evidence in a criminal proceedings, including:

1.       R v Lee (1950) 82 CLR 133 at 159 (“Lee Discretion”) – fairness discretion to exclude evidence of confessional statements in a criminal proceeding;

2.       R v Christie [1914] AC 545 (“Christie Discretion”) – court’s ability to exclude evidence where the probative value of the evidence is outweighed by the risk of prejudice to the defendant;

3.       Bunning v Cross (1978) 141 CLR 54 (“Bunning v Cross Discretion”) – court’s ability to exclude evidence where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authority.    

Mr Dunstall’s case did not come under any of these exclusionary rules. The High Court then looked at whether a “general unfairness discretion” would apply. In South Australia, the “general fairness discretion” has been discussed in a number of cases, including R v Lobban (2000) 77 SASR 24 where the Full Court of the Supreme Court stated the general unfairness discretion permits the court to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the accused in the sense that it would make the trial of the accused an unfair trial. The discretion was not applied in that case, so it was unnecessary for the ambit of the discretion to be discussed.

The majority undertook a strict analysis of the statutory scheme. The legislative scheme provides the prosecution with an aid for proof and closely confines the circumstances in which rebuttal evidence may be adduced. The defendant can only admit the evidence of the blood test results if these procedures are complied with. The regime limits the evidence the defendant can use to rebut the breath analysis evidence.

While it was not necessary to decide the ambit of the “general unfairness discretion”, the majority indicated it involves a test of fairness that requires the court to balance the interests of the defendant and those of the community.

Nettle J:

Justice Nettle’s judgment included further comments on the unfairness discretion, highlighting that each case will turn on its facts. The facts in Mr Dunstall’s case show that s47K(1a) does not confer any procedural or substantive right on the respondent but limits the evidence which the respondent can use to rebut the breath analysis evidence. It was unknown what the blood test results would have shown – they could have correlated with the police evidence. Mr Dunstall had to show that the loss of evidence would constitute an unacceptable risk of injustice or fairness. It was not sufficient to show it could have that effect.

Justice Nettle indicated the general unfairness discretion exists to ensure a fair trial according to the law as the law may be effected by statutory modification – it “does not exist to give effect to idiosyncratic notions of “fair play” or “whether the forensic contest is an even one””.

Outcome

The High Court unanimously decided the general unfairness discretion does not apply to Mr Dunstall. The case was remitted for further hearing before the Magistrates Court.

The decision significantly confines the ability of drink drivers to challenge the breath analysis reading. This confinement aligns with the intention of the statute in South Australia.

A discretion to exclude police evidence may be exercised where:

·         failure to obtain blood sample was due to police misconduct – ie the failure to make the proper warning to the defendant or the failure to provide the defendant with an approved blood test kit on request (Bunning v Cross discretion);

·         the statutory defence is made out under s47K(8) where the defendant proves the kit was delivered unopened to the medical practitioner and the medical practitioner gives evidence that because of a deficiency in the kit he or she was unable to comply with the prescribed procedures.

Practical considerations for defendants:

·         be aware of blood collection procedures and your ability to have a blood test to ensure correct steps are taken;

·         avoid Noarlunga Hospital when having blood samples taken – avoid emergency departments generally if you can, as a drink driving blood test will not be prioritized over true emergencies and you may find yourself outside the regulatory timeframe to have the blood test taken.

Your client tells you they are “guilty” but wants to plead “not guilty”. What should you do?

This is the classic case in criminal law of potential conflict between your duty to the court and your duty to your client. I initially thought you would have to advise your client they must plead guilty or cease representing the client. But this is the wrong answer. Your client can still plead “not guilty”, you will just have to be careful not to mislead the court. The starting point is to know the substance of your duty to the court and your duty to your client.

Duty to the court

Section 33 of the Legal Profession Act 2004 (NSW) describes admitted lawyers as officers of the Supreme Court. At your admission ceremony you make an oath or affirmation that you will conduct yourself honestly as an officer of the court. Your duty to the court is enlivened from this moment forward. Rule 3.1 of the NSW Professional Conduct and Practice Rules 2013 also states “A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty”.

What the duty constitutes was a mess of ad-hoc judge made law until 1998 when Justice Ipp wrote an article titled “Lawyers’ Duties to the Court” published in the Law Quarterly Review. In the article, Justice Ipp clearly identified four broad categories of a lawyer’s duty to the court:

1.       A general duty of disclosure owed to the court;

2.       A general duty not the abuse the court’s process;

3.       A general duty not to corrupt the administration of justice; and

4.       A general duty to conduct cases efficiently and expeditiously.

The most important component of the duty to the court for our purposes is that lawyers must not mislead the court.

Duty to your client

I am not going to go thoroughly through all the duties a lawyer owes their client. If you would like a thorough guide I recommend G E Dal Pont’s Lawyers’ Professional Responsibility (5^th ed, Thomson Reuters, 2013). The main duties are as follows:

1.       Duty to be competent;

2.       Duty of loyalty and trust;

3.       Duty of confidentiality;

4.       Duty to promote quality and client care (communication with client); and

5.       Duty to promote access to justice.

The duty of confidentiality requires you to keep conversations between yourself and your client confidential, even in court. If the judge suspects you know your client is guilty, and asks you directly, an appropriate answer that does not breach your duty of confidentiality towards your client would be “my client instructs me that he wishes to plead not guilty”. If the judge probes you further, you could say “it would be a breach of confidentiality to my client to further answer your question”. Criminal judges are used to dealing with these situations and should recognise the professional difficulty you are in reconciling your duty to the court and duty to your client.

Conflict between the two duties

As a lawyer you will have many duties. Sometimes these duties will be conflicting. However, it is well established that in the event of a conflict between your duty to the court and other duties, your duty to the court is to prevail (Gianarelli v Wraith (1988) 165 CLR 543, 555-6, 572 (‘Gianarelli’)). In Gianarelli (at 556), Mason CJ identified that a lawyer’s duty to the court and duty to the client are not just in competition, but can come into full collision, and may require a lawyer to “‘act in a variety of ways to the possible disadvantage of his client … the duty to the court is paramount even if the client gives instructions to the contrary.”

In the leading British case, Rondel v Worsley [1969] 1 AC 191 (at 227), Lord Reid described the overriding duty to the court as follows:

‘[A]s an officer of the court concerned in the administration of justice [a legal practitioner] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.’

What to tell your client when they tell you they are “guilty” but want to plead “not guilty”

For criminal defence lawyers, the duties do not have to collide if you carefully manage the matter and advise your client. The following steps must be taken:

1.       Inform your client that you have a duty to the court and that you cannot mislead the court;

2.       Explain that you also have a number of duties to them as your client, including a duty of confidentiality; and

3.       Explain the ways in which the two duties may conflict at court and the ramifications.

The ramifications you must notify your client of are numerous;

1.       The manner in which you can conduct your client’s case will be severely limited so that the court is not mislead, as you will not be able to set up a case inconsistent with the confession;

2.       You will not be able to suggest another person committed the offence;

3.       You will not be able to call evidence in support of an alibi for the accused if it is inconsistent with the confession made to you;

4.       You will not be able to allow your client to deny the truth of the prosecution case in any respect inconsistent with you client’s confession of guilty to you; and

5.       Your best case will probably be to assert that the evidence on the whole does not prove beyond reasonable doubt your client is guilty of the offence. Case theories that rely merely on asserting the evidence is not sufficient are generally weak case theories.

Conclusion

You can represent a client who wants to plead “not guilty” even where the client has told you they are “guilty”. Professional rules may in fact dictate that you must continue to represent the client, particularly if there is limited time before court for your client to find alternative representation. If you are a junior lawyer caught in this situation, while the steps discussed above may be useful, it is important that you discuss options with counsel or seek the assistance of a more senior lawyer to guide you. It is not just your client’s freedom on the line, but your professional future too. 

Legal action against Belle Gibson – is there a cause of action that would succeed?

Introduction

You would have heard of Belle Gibson, the charismatic cancer survivor behind The Whole Pantry app, Instagram account and book which were launched with immense success in 2014. The wellness empire was based on Belle Gibson’s alleged cancer story of abandoning chemotherapy and radiotherapy in 2009 and curing herself through natural healing processes. She further reported the cancer had returned in 2014 to her liver, brain, spleen and uterus. Belle Gibson was also revered for her supposed donations to charity including $300,000 she said had been donated to a number of charities from the income of sales. In early 2015 Belle Gibson’s story was exposed as a web of lies, and she admitted in an April 2015 interview that none of it was true. She had never had cancer. She only donated about $7,000 of the purported $300,000 to charity. There has been bitter public outrage ever since. While scathing criticisms have been written of Belle Gibson all over the internet, no one seems to have seriously contemplated if legal action would even be successful. In this article I consider the criminal and civil causes of action that may be available and why they are unlikely to provide the public with satisfaction. While Belle Gibson is a resident of Victoria, I will consider NSW law, as this is what I am familiar with.

CRIMINAL

Belle Gibson’s case is not the first

This is not the first case of an individual falsely claiming they have cancer to obtain financial benefit from the public. There have been many before, including:

1.       Angie Emma Walsh

As a 36 year old, Walsh convinced people in Victor Harbour and Adelaide she had thyroid cancer and acute myeloid leukaemia, raising $10,000 for herself. In 2013 the Magistrate’s Court convicted Walsh of fraud and sentenced her to six months imprisonment suspended on condition of a $500, 18 month good behaviour bond. In the process of sentencing, Magistrate McGrath considered the seriousness of the offence to be significant given Walsh completed high school and university, was a capable person, and exposed her daughter to potential life without her through her lies.

2.       Vanessa Barry

Vanessa Barry lied about having a brain tumour, and through creating fake medical documents and holding a fundraiser, raised over $20,000. She later spent this on clothes and shoes. In May 2014 Barry pleaded guilty to obtaining property by deception but was sentenced without conviction due to her prior good behaviour and mental health. She received a 9 month community corrections order under a mental health assessment.

3.       Elizabeth Edmunds

In April 2014 Elizabeth “Elle” Edmunds claimed to have ovarian cancer. By September 2014 she claimed it had spread to her lungs. Edmunds raised $2,500 through social media exposure until her partner revealed on Facebook that Edmunds was a fraud. The NSW police showed a willingness to take action and Edmunds was charged with fraud in April 2015. Edmunds is yet to appear before the Local Court.

Belle Gibson’s case is far more complex than those described above. She created a far more comprehensive fake public and literary identity and created a wellness App and recipe book that consumers inspired relied upon. While Angie Walsh and Vanessa Barry appear to have gotten a light non-custodial sentence, this may not be the case for fraud of Belle Gibson’s size.

What is the relevant criminal offence?

The two most relevant offences under the Crimes Act 1900 (NSW) are:

1.       Fraud simpliciter – maximum penalty 10 years 

“192E Fraud

(1) A person who, by any deception, dishonestly:

(a) obtains property belonging to another, or

(b) obtains any financial advantage or causes any financial disadvantage,

is guilty of the offence of fraud.”

2.       Intention to defraud by false or misleading statement – maximum penalty 5 years

“192G Intention to defraud by false or misleading statement

A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of:

(a) obtaining property belonging to another, or

(b) obtaining a financial advantage or causing a financial disadvantage,

is guilty of an offence.”

Pending appropriate evidence, Belle Gibson’s fraud appears to satisfy the elements of both s192E and s192G. The prosecution would attempt to prosecute under s192E given the larger maximum penalty, but in the process of plea bargaining may settle on s192G in exchange for a guilty plea. If the elements of the offence are all there, then where is the problem in convicting Belle Gibson?

Potential problems:

1.       Discretion of prosecutorial authorities

There is no indication Victoria Police, who has the jurisdiction to undertake the investigation into Belle Gibson as she is a resident of Victoria, is investigating the matter or instigating criminal proceedings. The public cannot control which matters the police decide to prosecute. Even if the police manage to gather admissible evidence for each element of the offence and there is a reasonable chance a jury will convict, there are a number of discretionary factors police prosecutors and the DPP can take into account in deciding whether or not to prosecute, including:

·         whether the alleged offence is a matter of public concern

·         prevalence of the alleged offence and need for personal and general deterrence

·         the likely length and expense of a trial

·         the likely outcome in the event of a finding of guilty, looking at the sentencing options available; and

·         whether proceedings would be unduly harsh or oppressive.

For example, if a consumer affairs body initiates proceedings which result in what is perceived to be sufficient punishment and deterrence, commencing criminal proceedings may be unduly harsh.

2.       Mental health

S192E and s192G offences are to be tried summarily unless the prosecution elects otherwise (Schedule 1 Criminal Procedure Act 1986 (NSW)).  Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) can therefore apply (see also s31). Section 32 provides a procedure for Magistrate’s dealing with a defendant suffering a mental illness. If it appears to the Magistrate the Defendant is suffering from a mental illness but is not a mentally ill person, the Magistrate can:

a.       Adjourn proceedings, grant the defendant bail or make any other appropriate orders; and

b.      Dismiss the charge and discharge the defendant into the care of a responsible person or require the defendant attend a person or place for assessment and/or treatment of their mental condition.

There have been claims that Belle Gibson’s mental health is unstable. In particular, Elle magazine had this to say about what happened when they published an article on Belle Gibson:

"When the December issue came out, we had a ton of positive feedback from both long-time and new supporters of Gibson. And then we got this anonymous email:

It has come to my attention that you have published a story about a girl I have known my whole life. Her name is Belle Gibson, creator of "The Whole Pantry" app + book. And a so called "Terminal cancer patient" Unfortunately, there are a few things you might need to know before you consider publishing more about this woman. She's a compulsive liar. In fact, she got so tangled in her own web of lies living in Brisbane, she moved to Melbourne to start a new life of lies – "the cancer lie" this time. For one – This girl isn't 26 years old.

She was born in 1991, class of 08, Wynnum High School in Queensland. My younger brother was in her form class. Secondly, she never had/nor does she have currently any form of cancer (Where's the proof?) I've known Belle since her childhood (and am close with her mother) and she has always had a problem with fabricating stories from nothing on a regular basis. It's one thing to act as if she can cure "her cancer" by eating organic (which simply isn't true) but to give false hope to people who are ACTUALLY fighting cancer is nothing short of evil. You MUST be aware of this before you publish stories about this woman. She is selling her fake sob story in order to profit from her app + book sales. She is a wolf in sheep's clothing & a master manipulator.

Sincerely, Sick of seeing her lies published :)”

If Belle Gibson claims the protection of s32, she could like Vanessa Barry, avoid a prison sentence if the Magistrate believes it would be more appropriate to deal with her fraud through the s32 process.

CIVIL

It was reported in March 2015 that Consumer Affairs Victoria is investigating the nature of the fundraising appeals, including details of beneficiaries and net proceeds given.  There is no indication a Consumer Affairs body is investigating the fraud and misleading conduct behind Belle Gibson’s fraud. An investigation does not mean a prosecution would occur. If a consumer affairs body did decide to prosecute, which cause of action could it rely upon?

Misleading and deceptive conduct

Section 18 of Schedule 2 to the Competition and Consumer Act provides:

“18   Misleading or deceptive conduct

(1)  A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)  Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).”

Belle Gibson’s business in selling the App and recipe book would come under the broad concept of “trade and commerce” described in Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 (at 167) and Larmer v Power Machinery Pty Ltd (1977) 29 FLR 490 at 493. The “conduct” which was misleading and deceptive would be numerous announcements across her App, in her cook book and through media outlets that she was a cancer survivor who had healed herself through natural methods including her diet. Her fake identity was so comprehensive and calculated it would pass the threshold of deception required. A breach of s18 can result in a variety of remedies including injunctions, damages, and compensatory orders.

Who can bring action under the Competition and Consumer Act?

No consumer affairs bodies have brought civil action against Belle Gibson to date. The ACCC usually only have the resources to prosecute cases of national importance and are unlikely to prosecute Belle Gibson. Consumer Affairs Victoria has instigated an investigation, but this is unlikely to proceed to civil prosecution. Individuals can take action under the Competition and Consumer Act and class action is also possible. Section 236(2) creates a 6 year limitation period. However, the real issue is establishing damages. A consumer may have spent a few dollars on the App and the recipe book, but on an individual level there is a real feeling of betrayal and outrage at being deceived rather than any real loss.

Ancillary liability

The Competition and Consumer Act 2010 (Cth) provides for the possibility of suing third parties who were “knowingly concerned” in the breach (s75B). However, the relevant third parties claim to not have been in the know and took action as soon as they became aware of the fraud. The Australian publishers of the cook book Lantern Books (Penguin) never asked for evidence about Bell Gibson’s medical condition. They claim they published the recipe book “in good faith” and withdrew it from bookstores and publishing as soon as the story came out and Belle Gibson failed to respond to their requests satisfactorily. Similarly, Apple, who was responsible for publishing the App, removed the App from Australian and US App stores and soon after, removed the App from the Apple Watch. It is unlikely the publishers could be held ancillary liable in this situation.

Conclusion

While the elements for a criminal conviction for fraud and a civil conviction of misleading and deceptive conduct exist, the legal outcome of such cases is likely to be unsatisfactory for the outraged public. If criminal action is taken by a prosecutorial body, it is unlikely Belle Gibson will go to prison as she may come under s32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). While Belle Gibson may be ordered to pay damages if civil action is taken by a consumer affairs body, it is very unlikely a consumer affairs body will take the case on. Individuals taking civil action under the Competition and Consumer Act 2010 (Cth) will face the difficult hurdle of establishing their loss. In the end though, it may not even matter. Belle Gibson created her alternative reality to feed her desire for public sympathy and attention. The emergence of the truth is perhaps a greater punishment for Gibson than anything the criminal or civil legal system can offer. There is probably nothing worse for a person who is addicted to public approval to be the subject of public hate.

ICAC v CUNNEEN [2015] HCA 14 – GOING BEYOND THE POLITICS

Introduction

The recent High Court case of the Independent Commission Against Corruption v Margaret Cunneen & Ors [2015] HCA 14 has been heavily criticised by journalists, politicians and some members of the legal profession for taking an alleged “narrow” approach to “corrupt conduct” and reigning in ICAC’s powers. These critics claim that the court should have taken a broad approach to interpretation as this would have produced a more useful political outcome. In this article I argue that the High Court’s legal reasoning is correct. Instead of starting from a desired political outcome, I analyse the High Court’s reasoning using the principles of statutory interpretation. While I found one of Gageler J’s reasons in the dissent compelling, I found the majority’s reasoning could still stand on other pillars of reasoning.

Background to the case

ICAC began an investigation into Margaret Cunneen, Deputy Crown Prosecutor of NSW. The alleged conduct was that Cunneen gave her son’s girlfriend certain legal advice when she had a car accident to avoid having a breath test. The alleged advice was that her son’s girlfriend should pretend having chest pains. Cunneen commenced action on two main grounds:

1.       That the allegations did not constitute “corrupt conduct” and the investigation was therefore beyond ICAC’s powers; and

2.       That ICAC provide reasons for its decision to commence an investigation.

Cunneen was unsuccessful before the primary judge on both points. ICAC is not required to disclose reasons for its decision to commence an investigation as section 111 of the ICAC Act entitled “secrecy” provides that ICAC is not required to produce documents or divulge information in court. Cunneen appealed on both point (1) and point (2).

In Cuneen v ICAC [2014] NSWCA 421 the Court of Appeal (Bathurst CJ, Basten JA, and Ward JA) affirmed the primary judge’s reasoning for ICAC not having to provide reasons for its decision to commence an investigation. However, Cunneen was successful before the New South Wales Court of Appeal on point (1). While the reasons between judges differed, the Court of Appeal held that the investigation was beyond ICAC’s powers because the alleged conduct was not “corrupt conduct”. ICAC applied for leave to appeal to the High Court.

Key sections of the ICAC Act

One of the functions of ICAC is to investigate corrupt conduct (s13 ICAC Act). “Corrupt conduct” is defined in sections 7 to 11 in Part 3 of the ICAC Act. In particular, section 8 describes the general nature of corrupt conduct. Section 8(1) and section 8(2) are the focus of the case. Section 8 establishes five main categories of “corrupt conduct”:

1.       Conduct adversely affecting directly or indirectly the honest or impartial exercise of official functions (s8(1));

2.       Dishonest exercise of official functions (s8(1));

3.       Breach of public trust (s8(1));

4.        Misuse of information acquired in the course of official functions (s8(1)); and

5.       Conduct that adversely affects, or that could adversely affect directly or indirectly the exercise of official functions by any public official, such conduct including perverting the course of justice (s8(2)).

For ICAC to be successful in the High Court, it would have to successfully argue that Cunneen’s alleged conduct fitted in one of these categories of “corrupt conduct”. ICAC argued for what I have labelled as Category 5 (italicised above). The interpretive question the High Court faced was specifically concerned with the meaning of s8(2), in particular the interpretation of the phrase “adversely affect”.

Section 2A of the ICAC Act is also important, as it states the principal objects of the ICAC Act and is referred to by the High Court in the course of interpreting section 8. I have pasted section 2A in full:

The principal objects of this Act are:

(a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body:

(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and

(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and

(b) to confer on the Commission special powers to inquire into allegations of corruption.

What was the legal question before the High Court?

The majority phrased the question as:

“what is meant by the expression "adversely affects, or that could adversely affect ... the exercise of official functions by any public official" in the definition of "corrupt conduct" in s 8(2)” ([1]).

Gageler J also focuses on this question in his dissent, but framed the question more broadly, as “whether ICAC has power to investigate an allegation of criminal conduct having the potential to impede or impair the exercise of an official function by a public official in a manner involving no wrongdoing on the part of that public official” ([73]).

More specifically, the High Court was choosing between two possible alternative meanings of “adversely affect” in s8(2):

1.       Narrower meaning: Adversely affect or could adversely affect the probity of the exercise of an official function by a public official;

2.       Broader meaning: Adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case ([2]).

What was the High Court’s answer?

The High Court ruled 4-1 that ICAC had no power to investigate those affairs as the alleged behaviour did not fall into the definition of “corrupt conduct”, specifically the definition in s8(2). The majority (French CJ, Hayne J, Kiefel J and Nettle J) delivered a joint judgment. Gageler J dissented.

The majority found that the narrower meaning was the correct interpretation. This resulted in the alleged conduct not being within the ambit of “corrupt conduct” and ICAC having no power to investigate the matter. In his dissent, Gageler J argued for the broader meaning of “adversely affect”.

Did the majority’s reasoning correctly follow the principle of statutory interpretation?

The modern purposive approach to statutory interpretation was clarified in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. Project Blue Sky requires the text being interpreted to be considered in light of its context and purpose. Section 33 of the Interpretation Act 1987 (NSW) requires that a construction promoting the purpose or object of the Act to be preferred to a construction that would not promote that purpose or object.  I go through the majority’s reasoning under the headings “Text”, “Context” and “Purpose” to show how sound the majority’s reasoning is. I also incorporate the dissenting judgment into my comments.

Text

The Project Bluesky approach requires interpretative analysis to start with the text to identify the plain and ordinary meaning. The ordinary meaning rarely ends up being the legal meaning, but it serves as a starting point for analysis.

The majority do cover this initial step, but do not identify an ordinary meaning. Instead they say “adversely affects” is a “protean expression capable of a number of meanings according to the context in which it appears” ([56] and [60]). They assert the meaning should be “adversely affect” as understood by public administration in the context of corruption (see discussion below). This is in contrast to Gageler J’s dissent and ICAC’s submissions that “adversely affect” has an ordinary meaning, being the broader meaning described above. Even if this is so, the Project Bluesky approach does not allow one to stop there. The ordinary meaning is merely the starting point and must be considered in context and in light of the statutory purpose.

Where Gageler J in his dissent really departs from the majority is the authority he relies on to support his interpretation. His argument is essentially that the plain and ordinary meaning of “adversely affects” is the broader meaning and that this should not be departed from unless there is a clear reason to do so (contrast with the modern Project Bluesky approach requires context and purpose to be considered in all cases). Gageler J relies on the case of PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 where it is stated “it is "of fundamental importance" that the language of the definition is accorded its "natural and ordinary meaning unless some other course is clearly required", and that "limitations and qualifications are not read into" the definition unless "clearly required by its terms or its context". We don’t need to go into the dissent too much, but I would just like to make two points:

1.       PMT Partners was decided in 1995, before 1998 when Project Bluesky clarified the modern purposive approach to interpretation that context and purpose must always be considered;

2.       Even the PMT Partners approach appears to allow for context and purpose to be taken into account. Something that Gageler J does not appear to do in his dissent. While Gageler J does analyse the context of section 8, he does not link it back to the ordinary meaning of the text and does not contemplate the influence of this context on changing the ordinary meaning ([81] – [82]).

Context

This requires the text being interpreted to be read in the context of the rest of the Act. The Act is concerned with the integrity of public administration. This context informs the meaning of “adversely affects”. As the majority point out, the narrower meaning is consistent with the ordinary understanding of corruption in public administration, while the broader meaning is inconsistent with this understanding, as it would enable ICAC to exercise its “extraordinary coercive powers” well beyond the ordinary understanding of corruption and public administration ([3]). Public law principles also come into play here, where the judiciary generally take a more limited approach when dealing with coercive powers limiting the rights of individuals.

Considering the text in context with the rest of the Act can involve reconciling provisions within the Act. The majority cite the Project Bluesky approach to reconiliation:

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'.”

In particular, they emphasise achieving a result that maintains the unity of all the statutory provisions ([31]).

This approach becomes important when the majority start analysing the words “adversely affect” with the rest of section 8, particularly s8(1). To reconcile the subsections, s8(2) becomes a two pronged test, as it takes on some of the characteristics of s8(1) (see [45] onwards). Conduct will be “corrupt conduct” for the purposes of s8(2) where:

1.       The conduct in question “could involve” any of the matters in 8(2) (a)-(y); and

2.       The conduct adversely affects or could adversely affect the probity of the exercise of an official function in one of the ways listed in s 8(1)(b)-(d).

The High Court argue that this construction, and the more narrow use of the words “adversely affect” is favourable, as it is consonant with the language in s2A and s9 and embraces offences which could affect the integrity of public administration and excludes those which could not.

Context can sometimes involve consideration of extrinsic material. Section 34 of the Interpretation Act 1987 (NSW) permits extrinsic material to be used in interpretation for two uses:

1.       To confirm the meaning is the ordinary meaning conveyed by the text; and

2.       To determine the meaning of the provision where the provision is ambiguous or obscure OR if the ordinary meaning leads to a result that is manifestly absurd or unreasonable. 

There is a war of words between the majority and the dissent on extrinsic material. The majority use the Explanatory Note to argue that ICAC was not intended to operate as a general crime commission and therefore the narrow interpretation is correct ([54] and [67]). Gageler goes into much more detail in the legislative history and convincingly argues that the majority is mislead in its reliance on this. While I believe Gageler J is correct here, the use of extrinsic material is not a major pillar of the majority’s reasoning, and the rest of the majority’s reasoning is still sound.

Purpose 

The ICAC Act has an “objects section” in section 2A (pasted above). The Objects section can be used to identify the purpose of the Act, but if this purpose conflicts with a more specific purpose identified elsewhere in the statute, this more specific purpose is to prevail (Russo v Aiello (2003) 215 CLR 643 at 645). The ICAC Act is relatively small, and no conflicting purposes are identified. The High Court can therefore rely on the legislative purpose as stated in the objects section.

The majority point out that the narrower meaning of “adversely affect” is consistent with the objects in s2A and that the broader meaning is inconsistent with these objects ([3]). The Act is directed to investigate, expose and prevent corruption affecting public authorities. It is therefore not likely it was intended to reach to a broad array of crimes having nothing to do with corruption in public administration apart from a direct/indirect effect conceivably had on the efficaciousness of public officials ([53]).

Conclusion

I hope I have demonstrated that the High Court majority had no choice. Once they had applied the principles of statutory interpretation, the legal meaning of “adversely affect” was clearly the narrower meaning. While to some commentators this may have lead to an unsatisfactory result politically, with ICAC’s powers potentially limited, this is not a concern of the High Court. In the traditional view of the separation of powers, if the public have an issue with legislation as it stands, such as the ICAC Act, they need to lobby the parliament for change through the usual processes. It is not the High Court’s role to be concerned with political outcomes.

There has been a lot of fear mongering that parliament could never get its act together to increase the investigative powers of ICAC by expanding the definition of corrupt conduct. I am not convinced by these arguments. Who do you think made the ICAC Act in the first place? While the political mood of parliament may change, there is no reason why the legislature, which managed to pass an Act establishing ICAC could not amend the Act.