Former Transport Department officer Michael William King is facing charges of failing to act honestly as a public servant after he was investigated by ICAC.
But key evidence has been ruled inadmissible in court after magistrate David McLeod found warrants issued directly by the ICAC Commissioner were invalid.
In a separate decision, McLeod has reportedly ruled search warrants issued by Supreme Court Justice Greg Parker at the request of an ICAC investigator were also invalid.
Lander reflected on the rulings last week under questioning at a parliamentary inquiry – and again two days later on ABC Radio, when he said he was “confident the DPP will appeal” and would be “astonished” if it did not.
The DPP lodged an appeal in the Supreme Court on Wednesday to the ruling relating to warrants issued directly by Lander.
The Commissioner told parliament he “did not agree” with McLeod’s ruling, arguing if it was upheld “the consequence of that will be that all warrants issued by me and by the Supreme Court are invalid, which would be an extraordinary result”.
He said while the Supreme Court could separate the two decisions, “it would be difficult [to do so] on [McLeod’s] reasoning”.
“He is a magistrate… and he is at the lowest level of the judicial process – shouldn’t we wait to see what the Supreme Court says?” Lander said.
Today, McLeod told the Magistrates Court he would hear submissions on whether the entire proceedings should be stayed as a result of Lander’s comments.
“It’s important to state that the public confidence in the administration of justice comes through due process, and the defendant in any trial must be confident about the integrity of the process,” McLeod told the court.
He said Lander’s comments appeared to “challenge the court’s rulings”.
“This trial, the result of an ICAC investigation, is still of course underway [and] is accordingly sub judice,” he said.
“The Commissioner is reported as expressing his confidence to a parliamentary committee that an appeal in this matter is forthcoming, and expressing his view that would be upheld.”
King’s lawyer, Michael Abbott QC, argued that “these proceedings should be stayed as an abuse of the court”.
“It gets worse… in his remarks before the parliament, [Lander] referred to your Honour as occupying ‘the lowest leg of the judicial process’ and made remarks about prospects of an appeal,” he said.
“It’s clear the whole flavour of what he’s saying… was ‘it will all go away when we get an appeal in the Supreme Court’ – that’s an extraordinary position to take.”
Abbott said the public comments represented “this sort of implied threat” that all warrants would be invalid “if the Supreme Court doesn’t do a job”.
“It smacks in essence of a threat to this court’s jurisdiction – and indeed to the judicial process,” he said.
“Referring to your Honour [McLeod] as ‘the lowest leg of the judicial process’ is, in my respectful submission, insulting to your Honour.
“These proceedings should be stayed because of an abuse of these proceedings… constituted by the ICAC Commissioner’s remarks and conduct.”
Abbott suggested Lander’s claim that the ruling would impact on all Supreme Court warrants was “just plain wrong”.
McLeod will consider written submissions from defence and prosecution and make a determination next month.
Lander’s comments also appeared to prompt a response from Chief Justice Chris Kourakis, with a statement via a spokesperson posted on the Courts website last week.
“There has been some recent public commentary over a ruling made in the Magistrates Court on the validity of warrants issued by, or on the request of, the Independent Commissioner Against Corruption,” the statement said.
“The Magistrates Court is one of the three Courts of Record of general jurisdiction in this state [and] its decisions are binding unless and until a successful appeal is brought against them in the Supreme Court.
“The judicial officers of this state must independently determine legal disputes only on the evidence brought before them, on the submissions made by the parties in court, and according to the law as they determine it to be.”
InDaily has sought comment from Lander.
InDaily asked the DPP’s office whether it intended to appeal McLeod’s ruling with respect to the warrants issued by Justice Parker, and was advised that “no decision will be made as to an appeal with respect to the Supreme Court warrants until all relevant arguments and rulings with respect to those warrants have occurred [which] is not yet the case”.
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