In Gamage v Riashi, the NSW Court of Appeal upheld a challenge regarding the Independent Commission Against Corruption's (ICAC) power to commence criminal proceedings, finding that the ICAC and its officers lacked the authority to institute prosecutions for offences arising from its investigations into corrupt conduct. The decision underscores the statutory limits of ICAC's prosecutorial powers and reinforces the distinction between its investigatory and prosecutorial functions. The decision has significant implications in relation to the powers of officers of the ICAC to commence criminal prosecutions. More broadly, the decision reinforces the principle that statutory bodies must operate strictly within the powers conferred by their enabling legislation.
Background
The respondent (an officer of the ICAC), issued 13 court attendance notices (CANs) against the applicant, alleging offences. One was later withdrawn. Of the remaining 12 CANs, 9 involved offences under the Crimes Act 1900 (NSW) (Crimes Act) and related to conduct which had been the subject of an investigation by the ICAC. The other 3 CANs involved offences under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).
The applicant sought to vacate the hearing of the charges on numerous grounds, with one reason being to challenge the jurisdiction of the Local Court of NSW, based on the asserted lack of power the respondent had to commence criminal proceedings. The Local Court of NSW and, on appeal, the Supreme Court of NSW, rejected the applicant's challenge.
The only issue before the NSW Court of Appeal was whether the respondent had the power to issue the CANs. The respondent claimed his authority derived from the 'common informer' provision in section 14 of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act), which allows 'any person' to institute criminal proceedings under an Act, unless the right to institute the proceeding is expressly conferred by that Act on a specified person or class of person.
NSW Court of Appeal decision
Basten AJA (with whom Leeming JA and Griffiths AJA agreed) held that the applicant's application raised issues of public importance which had remained unresolved and accordingly granted leave to appeal. Basten AJA undertook a detailed examination of the ICAC Act, and made the following findings in allowing the appeal in part:
- as none of the CANs had been validly signed by a Registrar of the Local Court of NSW, the respondent could only have validly commenced the proceedings as a 'public officer' under section 173 of the Criminal Procedure Act in accordance with the general power contained in section 14. The respondent fell within the definition of a public officer in section 3(1) of that Act if he was an officer of a body declared by the regulations to be a public body for the purposes of section 3(1)(f) and 'acting in an official capacity'. The ICAC was declared to be a public body for that purpose in 2004
- the respondent was 'acting in an official capacity' only if it was within the powers and functions of the ICAC to prosecute for offences. The presumption that a public officer acts in an official capacity (in section 3(3) of the Act) is one of fact, not of law, and does not operate where the functions of the declared public body do not extend to the institution of criminal proceedings
- the ICAC Act does not expressly confer a function or power of prosecuting criminal proceedings on the ICAC. The principal functions of the ICAC are to investigate, communicate, and take steps to limit opportunities for corrupt conduct. Sections 13(4) and 74B, precluding the ICAC including in a report a finding of guilt or a statement 'recommending prosecution', or even forming an opinion as to such matters, are inconsistent with the ICAC having an implied power to institute a prosecution itself
- section 19 of the ICAC Act, providing for incidental powers of the ICAC, does not provide further means for carrying into effect its functions, where the means have been identified in detail and are subject to carefully drafted constraints. Instituting a criminal prosecution is neither necessary, nor reasonably incidental to the functions of investigation and report. The extrinsic material supports the conclusion that the ICAC does not have the power to prosecute for corrupt conduct.
- in purportedly instituting the prosecutions of the respondent for offences arising from ICAC's investigations into corrupt conduct, the respondent was not lawfully acting as a 'public officer'. The issue of the CANs for the Crimes Act offences was invalid.
- however, offences created by the ICAC Act are protective of the integrity of the investigative process of the ICAC. Steps taken to protect the integrity of its own investigation fall within the scope of the incidental powers conferred by section 19(1) of the ICAC Act, as necessary for or reasonably incidental, to the exercise of its functions. The issue of the CANs alleging breaches of the ICAC Act was valid.
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