The applicant had been subjected to an investigation into alleged corrupt conduct by the Crime and Corruption Commission. He brought an application for orders to, in effect, regulate or stop further investigation by the CCC and orders requiring the CCC to direct that the applicant not be prosecuted. Davis J dismissed the application on two grounds. First, there is no jurisdiction to make orders under s 332 Crime and Corruption Act 2001 (CCC Act) once an investigation is complete. Second, there were overwhelming discretionary reasons why such orders should not be made.
21 March 2019
The applicant applied under s 332 of the CCC Act for injunctive relief against the Crime and Corruption Commission (CCC). . The applicant sought various orders that fell into two categories. First, orders to regulate or stop the investigation into AB and the applicant. Second, orders to prevent the prosecution of the applicant. , .
The application arose out of an investigation by the CCC into the alleged corrupt conduct of “AB”, including dealings between AB and the applicant. . A police officer had sworn that he held a reasonable suspicion the applicant had committed the offence of official corruption and intended to charge the applicant, pending resolution of this proceeding. There were no further investigations planned into the activities of the applicant. .
The first issue was whether s 332 of the CCC Act gave jurisdiction to make the orders sought. As His Honour explained, ss 332 and 334 concern “investigations” of complaints and assume the existence of an ongoing investigation. –, . The applicant’s legal representatives argued that the investigation was ongoing and the CCC was still dealing with the complaint of corruption. . That argument was rejected. .
His Honour also observed that, although the court generally has jurisdiction to review decisions made in the course of a criminal investigation, such relief is discretionary. . In the present circumstances, discretionary considerations pointed inevitably towards the refusal of relief. His Honour considered that any impact of the conduct of the investigation under the CCC Act upon criminal proceedings brought against the applicant would be a matter for the assessment of the court in which those criminal proceedings were brought. .
His Honour then turned to the second category of relief where the applicant sought orders to prevent the prosecution of the applicant. The applicant’s assumption was that the CCC will charge the applicant with criminal offences and seek to do that by directing a police officer to do so. –. By s 255(3), a police officer who is seconded to the CCC is subject to the “direction and control of the CCC”. However, his Honour explained it does not follow that a police officer seconded to the CCC must, under the direction of the CCC, charge a person. . A police officer who receives such a direction retains the responsibility of exercising their powers lawfully. It is the police officer who must form the “reasonable suspicion” before issuing a notice to appear. If the police officer forms the requisite suspicion, they exercise their powers under the PPRA and it is therefore the police officer, not the CCC, who will charge the applicant. .
Whether the CCC can, as a matter of law, lawfully direct police officers not to exercise those powers was not determined by Davis J because there were overwhelming discretionary reasons why the court would not direct the CCC in those or similar terms. . His Honour found that, in effect, the applicant was seeking a judicial review of a decision to prosecute, which had not yet been made. . His Honour noted that decisions by the executive [i.e. the police] to prosecute are generally not reviewable. . As noted above, if the applicant were charged, he could seek various remedies in the criminal proceedings including a stay. –.
Justice Davis also noted that s 174 of the CCC Act provides that persons seconded retain all powers of his or her office. The applicant was seeking an order requiring a body exercising executive powers to give directions to police officers effectively suspending those powers. Such a jurisdiction is not vested in the court by s 332. –.
The application was dismissed. .
K Gover of Counsel