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Court of Criminal Appeal 5 August 2011

R v Vos

[2011] NSWCCA 172

Public order & justice offences
CRIMINAL S5F APPEAL PURPOSE OF ACT CONSIDERED HEARING NOT A NULLITY APPEAL ALLOWED ORDERS IN COURT BELOW QUASHED.

Citation: R v Vos [2011] NSWCCA 172
Court: Court of Criminal Appeal, NSW
Date: 5 August 2011
Judge(s): McClellan CJ at CL, Hidden J, Johnson J

Background

A police officer was charged on an eleven-count indictment. Counts 4 to 11 alleged breaches of s 107 of the Police Integrity Commission Act 1996 (NSW), which makes it an indictable offence for a person to give evidence at a Commission hearing that is, to that person's knowledge, false or misleading in a material particular.

The respondent successfully applied in the District Court for a permanent stay of counts 4 to 11. The primary judge found that the person granted leave to appear at the relevant Commission hearing was not a qualified Australian legal practitioner. On that basis, her Honour held the hearing was a nullity and that the evidence given within it could not ground a perjury-type charge.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912, which permits interlocutory appeals. A permanent stay qualifies as an interlocutory order for this purpose.

  • Whether a Police Integrity Commission hearing is rendered a nullity when the person granted leave to appear was not a qualified Australian legal practitioner under s 37 of the Act.
  • Whether evidence given at such a hearing could still constitute false or misleading evidence for the purposes of s 107 of the Act.
  • Whether the permanent stay of counts 4 to 11 should be quashed.

Decision

McClellan CJ at CL (with whom Hidden J and Johnson J agreed) allowed the appeal. The Court examined the structure and purpose of the Police Integrity Commission Act 1996 and concluded that the relevant provisions regulating appearances by legal practitioners are directed at the Commission's investigative function, not at the validity or constitution of hearings themselves.

The Court drew particular attention to s 40, which makes plain that any question asked at a hearing is put with the authority of the Commissioner or presiding officer, regardless of who physically poses it. Even where counsel assisting has been appointed, any question is deemed to have been asked by the Commissioner. This means the mechanism for extracting evidence from a witness remains anchored in the Commissioner's authority, not in the practitioner's.

Sections 12 and 37(2), the Court found, exist to allow the Commissioner to access the expertise of a qualified legal practitioner when conducting a hearing. The legislature's concern was to ensure that anyone filling this role had appropriate skills and training. However, this purpose does not extend so far as to make the validity of the entire hearing contingent on the practitioner's qualifications. The grant of leave to an unqualified person may have been irregular, but it did not render the hearing a nullity.

Because the hearing was not a nullity, the respondent's answers given under oath at that hearing remained capable of constituting false evidence for the purposes of s 107. The permanent stay therefore could not be sustained.

Orders Made

  • Appeal allowed.
  • Orders made in the District Court quashed.

Key Takeaways

  • The District Court erred in treating the Commission hearing as a nullity simply because the person granted leave to appear under s 37 was not a qualified Australian legal practitioner.
  • Under the Police Integrity Commission Act 1996, any question asked at a hearing carries the authority of the Commissioner or presiding officer under s 40(1)(b), regardless of who physically poses it, which preserves the integrity of evidence gathered at the hearing.
  • Provisions in ss 12 and 37(2) regulating the role of counsel assisting a Commission hearing go to the exercise of an ancillary function, not to the constitution or validity of the hearing itself.
  • A procedural irregularity of this kind does not automatically nullify proceedings; the question is whether Parliament intended non-compliance to void the relevant step, having regard to the purpose of the legislation.
  • Evidence given at a validly constituted Commission hearing remains capable of founding a charge under s 107 even where a person assisting the Commission lacked the required qualifications.

Legislation and Cases Referenced

Legislation
- Police Integrity Commission Act 1996 (NSW), particularly ss 3, 7, 8, 10, 12, 13, 15, 16, 17, 18, 20, 23, 24, 32, 33, 34, 35, 37, 38, 39, 40, 107
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Police Regulation Act 1958 (Vic)
- Administrative Decisions Tribunal Act 1997 (NSW)

Cases
- Attorney General of NSW v World Best Holdings Ltd (2005) 63 NSWLR 557
- Craig v The State of South Australia (1995) 184 CLR 163
- Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
- R v Ashby (2010) VSC 14; 25 VR 107
- R v Janceski (2005) 64 NSWLR 10
- R v King (2003) 59 NSWLR 472