Supreme Court New South Wales

• Medium Neutral Citation: Baff v New South Wales Commissioner of Police [2013] NSWSC 1205
• Hearing dates: 28 August 2013
• Decision date: 30 August 2013
• Before: Adamson J

Decision

(1) Declare that the plaintiff was entitled, in the exercise of his privilege against self-incrimination, to refuse to answer questions asked of him by the defendant concerning the circumstances described in:

(a) the direction given in the 26 July 2011 Interview;

(b) the 11 September 2012 Notice;

(c) the 30 January 2013 Notice; and

(d) the 11 February 2013 Notice.

(2) Declare that any order directing the plaintiff to answer questions concerning the incident on 30/31 May 2011 is not a lawful order in circumstances where the plaintiff has claimed the privilege against self-incrimination.

(3) Unless a different order is sought within seven days of the date hereof, order the defendant to pay the plaintiff's costs of the proceedings.

• Catchwords: EVIDENCE- privilege against self incrimination- distinct from privilege against exposure to civil penalties- not abrogated by Police Act 1990 or Police Regulations 2008; STATUTORY INTERPRETATION- exclusion of basic rights requires irresistible clearness
• Legislation Cited: - Australian Crime Commission Act 2002 (Cth); - Crimes Act 1900 (NSW), s 35; - International Covenant on Civil and Political Rights 1966, art 14(3)(g); - Interpretation Act 1987 (NSW), s 34(3); - Police Act 1990 (NSW), s 121, s 122, s 122(1)(a), s 122(1)(c), s 122(1)(d)(i), s 126, s 127, s 127(2)(b), s 130, s 139, s 145, s 148, s 170, s 173, s 173(4), s 173(9), s 178, s 180 s 181D, s 201, s 207, s 219; - Police (Complaints and Disciplinary Proceedings) Act 1985 (SA); - Police Regulation Act 1899-1955 (NSW), s 14; - Police Regulation Act 1958 (Vic), s 88(1); - Police Regulations 2008 (NSW), cl 8; - Police Regulations 1982 (SA), r 27; - Police Regulations 1957 (Vic), r 95A(7)
• Cases Cited: - Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; - Anderson v Sullivan (1997) 78 FCR 380; - Australian Securities and Investment Commission v Mining Projects Group Limited [2007] FCA 1620; 164 FCR 32; - Azzopardi v The Queen [2001] HCA 25; 205 CLR 50; - Chambers v Woolley (1996) 6 Tas R 41; - Commissioner of Police v Justin (1991) 55 SASR 547; - Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451; - Electrolux Home Products Pty Limited v Australian Workers' Union [2004] HCA 40; 221 CLR 309; - Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209; - Healthcare Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323; - Mortimer v Brown [1970] HCA 4; 122 CLR 493; - New South Wales v Fahy [2007] HCA 20; 232 CLR 486; - Petty v The Queen [1991] HCA 34; 173 CLR 95; - Police Service Board v Morris [1985] HCA 9; 156 CLR 397; - Potter v Minahan [1908] HCA 63; 7 CLR 277; - R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1; - R v Scott (1856) Dears & B 47 [169 ER 909]; - R v Secretary of State for the Home Department; Ex parte Simm [2000] 2 AC 115; - R v Travers (1958) SR (NSW) 85; - Re Davis [1947] HCA 53; 75 CLR 409; - Re Veron; ex parte Law Society of New South Wales [1966] 1 NSWLR 511; - Reid v Howard [1995] HCA 40; 184 CLR 1; - Rich v Australian Securities Investment Commission [2004] HCA 42; 220 CLR 129; - The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543; - The Queen v White; ex parte Byrnes [1963] HCA 58; 109 CLR 665; - Woon v The Queen [1964] HCA 23; 109 CLR 529; - X7 v Australian Crime Commission [2013] HCA 29; 298 ALR 570
• Texts Cited: Cross on Evidence (9th Australian edition)
• Category: Principal judgment
• Parties: Errol Wayne Baff (Plaintiff); New South Wales Commissioner of Police (Defendant)
• Representation: Counsel: WG Roser SC and SA Goodman (Plaintiff); P Bodor QC and M Seck (Defendant); Solicitors: Walter Madden Jenkins (Plaintiff); Office of General Counsel, New South Wales Police Force (Defendant)
• File Number(s): 2013/80418
• Publication restriction: Nil

Judgment

Introduction

1 The plaintiff, Errol Baff, is a police officer. The defendant, the New South Wales Commissioner of Police (the Commissioner), directed him to answer questions about an incident in May 2011 when, in the course of the plaintiff's duties, his gun discharged and injured a woman, Ms Kirby. The plaintiff refused to answer questions about the incident and claimed the protection of the common law privilege against self-incrimination. The Commissioner directed the plaintiff on a number of occasions to take part in an interview and contended that the privilege against self-incrimination had been abrogated by necessary implication in s 201 of the Police Act 1990 (NSW) (the Act) and clause 8 of the Police Regulations 2008 (NSW) (the Regulations). The plaintiff continued to claim the privilege and refused to answer questions relating to this incident.

2 By summons filed on 15 March 2013, the plaintiff sought declarations that none of the directions made to him by the Commissioner was a lawful order for the purposes of clause 8 of the Police Regulation and s 201 of the Act. The summons has since been amended by consent to seek two orders. The principal order sought is:

A declaration that the plaintiff was entitled, in the exercise of his privilege against self-incrimination, to refuse to answer questions asked of him by the defendant concerning the circumstances described in:

(a) the direction given in the 26 July 2011 Interview;

(b) the 11 September 2012 Notice;

(c) the 30 January 2013 Notice; and

(d) the 11 February 2013 Notice.

3 The plaintiff also seeks an order in the alternative that the Commissioner be required to provide particulars.

4 The principal issue in the proceedings is whether the privilege against self-incrimination, which would be available to the plaintiff under the common law, has been abrogated.

The nature of the privilege claimed by the plaintiff

5 At the outset it is necessary to identify what is meant by the privilege against self-incrimination and the right to silence. The right to silence has been described by Lord Mustill in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 30-31 as referring to "a disparate group of immunities, which differ in nature, origin, incidence and importance": see also Azzopardi v The Queen (2001) 205 CLR 50 (Azzopardi) at [160] per McHugh J and X7 v Australian Crime Commission [2013] HCA 29; 298 ALR 570 (X7) at [40] per French CJ and Crennan J.

6 Given the diversity of the immunities, and the policies underlying them, it is not enough to ask simply of any statute whether Parliament can have intended to abolish the longstanding right to silence. The essential starting point is to identify which particular immunity or right covered by the expression is being invoked in the relevant provisions: X7 at [40] per French CJ and Crennan J; R v Director of Serious Fraud Office at 31.

7 The immunities referred to by Lord Mustill at 30-31 of R v Director of Serious Fraud Office are:

(1) a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies;

(2) a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them;

(3) a specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind;

(4) a specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock;

(5) a specific immunity possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority;

(6) a specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.

8 The plaintiff submitted that (1)-(3) were relevant. He accepted that (1) had been abrogated by the Act and Regulations but contended that (2) had not been abrogated in so far as the incriminating answers relate to exposure to criminal prosecution and that (3) had not been abrogated at all. The Commissioner submitted that (2) applied and had been abrogated. He initially submitted that (3) did not apply because the plaintiff was no longer exposed to criminal prosecution but ultimately conceded, correctly in my view, that the plaintiff remained exposed to criminal prosecution and accepted that (3) applied. He submitted that (3) had been abrogated.

9 Of these immunities, I consider (3) to be of principal relevance to the instant case. The plaintiff is a person who remains under suspicion of criminal responsibility and remains exposed to criminal prosecution. The issue is whether he is required to answer questions asked by a person in authority. The privilege described in (2) may also be relevant, in so far as it incorporates exposure to criminal prosecution since the answers to questions put to the plaintiff may tend to incriminate him. I shall refer to (2), in that narrow sense, and (3) compendiously as the privilege against self-incrimination.

10 The relevant privilege was described in Petty v The Queen [1991] HCA 34; 173 CLR 95 in the following terms at 99 per Mason CJ, Deane, Toohey and McHugh JJ:

A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless.

Background facts

The incident that led to the shooting

11 The plaintiff attached to his submissions a detailed schedule of facts said to be material to the shooting. I do not consider it to be necessary to refer to this schedule.

12 It is sufficient to say that there was an argument on 30 May 2011 that involved physical violence between Ms Kirby and Mr Taylor which was observed by two nearby cleaners who reported the dispute to police. The message that was sent to police was that there was a possible domestic dispute and that the woman was armed with a knife or similar weapon.

13 The police attended the scene of the dispute and spoke to Mr Taylor and Ms Kirby. In the course of the discussion police were told that Mr Taylor's vehicle had broken down. The plaintiff also attended the scene. Subsequently a police officer observed a parked truck with a trailer of vehicles on it. He recognised Mr Taylor and Ms Kirby in the vicinity from the previous incident. The officer contacted Coffs Harbour Police Station because he suspected that they intended to steal a vehicle from the trailer.

14 The driver of the truck, who was asleep in the cabin, woke when he heard a noise from the trailer to discover that one of the cars was missing. He reported the suspected theft to police. Police realised that the couple who were suspected of stealing the car had been involved in the earlier incident.

15 In the early hours of 31 May 2011 the plaintiff and one of his colleagues found the missing vehicle near the trailer with Ms Kirby and Mr Taylor inside. In the course of the altercation between police and the couple, the plaintiff's gun went off and Ms Kirby was injured. Those, other than the plaintiff, who were present have been interviewed and provided statements.

16 The relevance of these facts is that the plaintiff is exposed to the risk of criminal prosecution because a bullet from the gun in his control injured Ms Kirby.

The investigation of the incident with reference to applicable laws and guidelines

17 Shortly after the shooting, Assistant Commissioner York declared the shooting a "Critical Incident". Under the Critical Incident Guidelines, a "Critical Incident" is defined as a death or serious injury to a person arising out of the actions of police officers in the execution of their duties. A Critical Incident Investigation is an internal police investigation. Its purposes include: addressing any wrongful conduct; the welfare of police officers; and to give consideration to improvements to NSW Police Force policy or guidelines to avoid recurrences of similar incidents in the future.

18 By report dated 28 June 2011, Detective Sergeant Saad notified a complaint against the plaintiff under s 127(2)(b) for the purposes of Part 8A of the Act, which deals with the investigation of complaints about the conduct of police officers.

19 On 26 July 2011, Detective Sergeant Saad sought to conduct an interview with the plaintiff. The interview was recorded. There were two parts to the interview. At the commencement of the first part of the interview, which was described as a criminal interview, the plaintiff was given a criminal caution as a result of which he declined to take any further part in the interview. Detective Sergeant Saad then directed the plaintiff pursuant to Part 8A of the Act to answer questions in relation to the incident. The plaintiff again refused to answer questions and relied on his privilege against self-incrimination.

20 On 27 July 2011, Detective Inspector Cullen, the Northern Region Professional Standards Manager, submitted a "Triage Form" identifying Ms Kirby as a complainant. Two issues were identified on the form: reckless infliction of grievous bodily harm contrary to s 35 of the Crimes Act 1900 and unreasonable use of force by firearm discharge. The Ombudsman was also notified on the basis that the incident involved potential criminal conduct which, if substantiated, could result in referral to the Internal Review Panel under s 173 of the Act or to the Commissioner's Advisory Panel under s 181D of the Act.

21 Under cover of letter dated 23 February 2012 the Police sent a brief of evidence to the Director of Public Prosecutions (DPP). On 24 May 2012 the DPP informed the Police that he declined to prosecute the plaintiff since the evidence was insufficient.

22 On 11 September 2012, Detective Sergeant Frost directed the plaintiff, in writing, to participate in a "departmental directed interview" for the purpose of a "non-criminal investigation" (the 11 September 2012 Notice). The notice read in part:

"You are required to attend Coffs Harbour Police Station to take part in an interview regarding a non-criminal investigation. I will be asking directed questions relating to Probationary Brad Graham and yourself stopping a Black Kia Four Wheel Drive vehicle outside xxxxxx Coffs Harbour about 12.40 am, 31 May 2011. As a result of the vehicle stop, you approached the driver's side front door of the vehicle, where Georgia Kirby was seated as the driver. During the confrontation a police firearm was discharged, causing serious injury to Kirby.

I will also be asking you questions about your length of service in the NSW Police Force, as well as your yearly training schedule and attendance.

This will be a department directed interview. Advice has already been received from the Director of Public Prosecutions that they are not recommending charges.

Failure to answer questions is a breach of the NSW Police Force code of conduct and as a result you may be sanctioned for not answering questions."

23 On 13 September 2012 the plaintiff requested a copy of the brief of evidence before responding to the direction. Under cover of letter dated 29 September 2012 the police sent to the plaintiff a brief of evidence collated during the critical incident investigation that included witness statements, records of interview and medical records relating to Ms Kirby's injuries.

24 By letter dated 7 November 2012 the plaintiff's solicitors informed the police that he would not participate in any interview in which he would be asked about the incident.

25 By letter dated 30 January 2013 (the 30 January 2013 Notice) Detective Sergeant Saad wrote to the plaintiff, relevantly in the following terms:

"You are required to attend to take part in an interview regarding a non-criminal investigation into an allegation of:

1. Unreasonable use of force

2 Disobey reasonable direction."

26 Enclosed with the letter were two packages: a "Support Package for police officers interviewed in relation to a complaint" (Support Package) and Guidelines for NSW Police Force employees providing support during police complaint investigations (the Guidelines).

27 By letters dated 5 and 7 February 2013 the plaintiff's solicitors wrote to Detective Sergeant Saad, seeking particulars of any allegations made against him "so that the issues at any interview of the allegations are clearly defined". No particulars were supplied.

28 By letter dated 11 February 2013 (the 11 February 2013 Notice) Detective Sergeant Saad made another written direction, which was relevantly in the following terms:

"In accordance with s 201 of the Police Act 1990 and cl. 8 of the Police Regulation 2008 your client, Constable Errol Baff is directed to attend Coffs Harbour Police Station on 18 February 2013 at 11 am for a non-criminal departmental interview.

Your client was involved in the incident on 31 May 2011 occurring outside xxxxxx Coffs Harbour about 12.40 am, where Ms Georgia Kirby was wounded by the discharge of your client's police issue firearm. The purpose of this departmental interview is to investigate the factual circumstances surround the discharge of the firearm and for your client to answer questions about the performance of his duties.

I note your office was served with a brief of evidence concerning this event on 28 September 2012.

In relation to the issue of disobeying a reasonable direction I have attached the transcript of the record of interview with your client conducted at Coffs Harbour Police Station on 26 July 2011.

If your client declines to attend this interview it may result in further disciplinary action."

29 By letter dated 14 February 2013 the plaintiff's solicitors foreshadowed that the plaintiff would commence these proceedings regarding the directions and requested that the interview not proceed.

30 By email dated 12 March 2013 Detective Sergeant Saad wrote to the plaintiff's solicitors asking whether proceedings had been commenced. He also wrote:

"Does it remain the case that your client Errol BAFF does not wish to take part in a directed interview pursuant [to] Clause 8 of Police Regulation 2008 in relation to the critical incident outside xxxxxx Coffs Harbour on 31 May 2011.

In the event that your client's position remains the same I propose to make adverse findings in respect of your client, Errol BAFF for "Unreasonable use of force" and "Disobey reasonable direction"."

31 By letter in response, also dated 12 March 2013, the plaintiff's solicitors informed Detective Sergeant Saad that proceedings would be commenced and alleged that it would be unreasonable of him to finalise the matter in those circumstances.

32 No departmental action has been taken against the plaintiff in relation to the incident.

33 Although the Commissioner submitted that it was unlikely that the plaintiff would ever be prosecuted in connection with what occurred in May 2011, it is common ground that the plaintiff has no immunity from prosecution. The availability of the privilege does not depend on an assessment of the chance that the holder of the privilege will actually be charged or prosecuted.

Relevant legislative framework

34 Part 8A of the Act deals with complaints against police officers. Section 121 defines "investigating authority" as including the Commissioner. By s 122, Part 8A applies to a complaint that alleges or indicates conduct of a police officer that constitutes an offence (s 122(1)(a)); conduct of a police officer that constitutes unlawful conduct (s 122(1)(c)); and conduct of a police officer that, although not unlawful, is unreasonable (s 122(1)(d)(i)). Section 126 provides that any person may make a complaint about a police officer. Section 127 makes provision for the making of a complaint. Section 130 provides for complaints received by police to be forwarded to the Commissioner, and by the Commissioner to the Ombudsman.

35 Division 5 of Part 8A makes provision for investigation of complaints by the Commissioner. Section 139 requires the Commissioner to decide whether the complaint needs to be investigated. Section 145 requires the police officer or officers carrying out an investigation to do so in a way that is both effective and timely and to have regard to any matters specified by the Commissioner or Ombudsman.

36 Section 148 provides for proceedings to be commenced in circumstances where sufficient evidence exists to warrant prosecution. Such proceedings may only be commenced against another police officer with the approval of the Commissioner.

37 Section 170 of the Act relevantly provides that a document brought into existence for the purposes of Part 8A is not admissible in evidence in any proceedings other than proceedings that concern the conduct of police officers and that are dealt with by the Commissioner, by the Industrial Relations Commission or by this Court in the exercise of its jurisdiction to review administrative action.

38 Part 9 of the Act provides for management of conduct within the NSW Police Force. Section 173 provides that the Commissioner may order action to be taken with respect to a police officer's misconduct or unsatisfactory performance, including reduction of the officer's rank or grade or seniority and deferral of a salary increment. The Commissioner may order such action whether or not the misconduct or unsatisfactory performance has been the subject of complaint under Part 8A and whether or not the police officer has been prosecuted or convicted for an offence in relation to the misconduct or unsatisfactory performance: s 173(4).

39 Section 173(9) limits the rights of appeal from, or review of, action order by the Commissioner.

40 Division 1A provides for review of an order of the Commissioner by the Industrial Relations Commission. Section 178 provides that the Commission is not bound by the rules of evidence. Section 180 provides relevantly:

Matters relating to evidence

(1) Section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act applies to and in respect of a witness giving evidence before the Commission in proceedings under this Division in the same way as it applies to and in respect of a witness giving evidence in proceedings before a court, and so applies as if a reference in that section to a court were a reference to the Commission.

(2) Subject to section 178, nothing in this Division limits or otherwise affects the admissibility as evidence in proceedings under this Division of any transcript of the proceedings of any other court or tribunal.

41 Section 181D of the Act provides for summary removal of police officers in whom the Commissioner does not have confidence, having regard to the police officer's competence, integrity, performance or conduct.

42 Section 201 of the Act, which is contained in Part 10, provides:

Neglect of duty etc

A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence.

Maximum penalty: 20 penalty units.

43 Section 207 of the Act provides that proceedings for an offence under the Act or Regulations may be dealt with summarily before the Local Court.

44 Section 219 of the Act provides for a regulation-making power.

45 Clause 8 of the Regulations provides:

Performance of duties by police officers

(1) Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them.

(2) In particular, a police officer is required:

(a) to serve wherever the officer is duly directed, and

(b) to perform such police duty as may be duly directed, whether or not during the officer's rostered hours of duty.

The Administrative Framework

46 Police officers, including the plaintiff, take an oath or affirmation of service upon appointment by which they either swear or declare and affirm that:

". . . while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law."

47 After taking the oath or affirmation of service, police officers are required to sign a document in which they represent:

"I understand that my signature, if given below, represents complete agreement with each of the statements set out above."

48 Clause 9 of the document stated:

"I have read and fully understood the NSW Police 'Code of Conduct and Ethics' and will comply with the NSW Police 'Code of Conduct and Ethics'";

49 Clause 5 of the NSW Police 'Code of Conduct and Ethics' provided:

"An employee of NSW Police must comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction."

50 As a matter of policy and practice, investigations into the conduct of police officers are categorised as either "criminal" or "non-criminal". There are protocols governing when criminal investigations must be undertaken. The Commissioner, when conducting a "criminal interview", cautions the police officer and accepts that the privilege against self-incrimination applies. When a so-called "non-criminal interview" is taking place, the Commissioner does not caution the police officer and does not regard the police officer as entitled to assert the privilege against self-incrimination as a reason for not answering questions, even though the answers to those questions might expose the police officer to criminal prosecution.

The issues for determination

51 The principal question is whether, as a result of the combined effect of s 201 of the Act and cl 8 of the Regulations, the plaintiff's common law privilege against self-incrimination was abrogated, thereby obliging him to answer the questions put to him.

52 There are subsidiary questions to be determined which include: whether the plaintiff has irrevocably relinquished his privilege against self-incrimination by taking an affirmation of office as a police officer or signing an undertaking to abide by the Code of Ethics and whether the administrative demarcation between "criminal interview" and "non-criminal interview" has any relevant legal effect.

The arguments of the parties, the proper construction of s 201 of the Act and cl 8 of the Regulations and the disposition of the hearing

A summary of the parties' submissions

53 The plaintiff submitted that there was no clear intention of Parliament to abrogate the privilege against self-incrimination in s 201 of the Act or cl 8 of the Regulations. He contended that it had not been expressly abrogated and it ought not be found to have been abrogated by necessary implication.

54 He contended that it is a fundamental right of all citizens, including police officers, who might be suspected of having committed a criminal offence to exercise the right to silence and to be protected from self-incrimination. He relied on statements of principle most recently enunciated by the High Court in X7 in support of the proposition that the protection is not simply a rule of evidence but a basic and substantive common law right.

55 The plaintiff also referred to Article 14(3)(g) of the International Covenant of 1966 on Civil and Political Rights (ICCPR) which states:

"in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

. . .

(g) Not to be compelled to testify against himself or to confess guilt."

56 The plaintiff relied on the need for "irresistible clearness" before the right was found to be abrogated by a statue and referred to Potter v Minahan [1908] HCA 63; 7 CLR 277 at 304 where O'Connor J said:

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness (United States v Fisher 6 US 358 at 390 (1805)); and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used."

57 The Commissioner accepted that the common law privilege against self-incrimination had not been expressly abrogated but contended that it had been abrogated by the Act and Regulations by necessary implication.

58 The Commissioner relied on R v Travers (1958) SR (NSW) 85 (Travers) and Police Service Board v Morris [1985] HCA 9; 156 CLR 397 (Morris) and the following cases in which Morris has been applied in other Australian jurisdictions: Commissioner of Police v Justin (1991) 55 SASR 547; Chambers v Woolley (1996) 6 Tas R 41 and Anderson v Sullivan (1997) 78 FCR 380.

59 Although the Commissioner initially submitted that I was bound by authority to refuse the relief sought in the summons, he accepted in the course of argument that Morris was solely concerned with the privilege against exposure to a civil penalty and not the privilege against self-incrimination in so far as it related to exposure to criminal prosecution. He accepted that, in so far as what the High Court said in Morris can be read as applying to the latter privilege, those remarks were obiter. He did, however, submit that the privilege against self-incrimination and the privilege against exposure to civil penalty "merged" in the circumstances of the instant case.

60 The Commissioner submitted, in the alternative, that the privilege against self-incrimination had been irrevocably relinquished by the plaintiff, at least for the term of his office, by reason of the following:

(1) The plaintiff's taking the Affirmation of Service on 13 January 2007;

(2) The agreement that comprised:

(a) The signing of the document dated 15 January 2007 by which he represented

"I understand that my signature, if given below, represents complete agreement with each of the statements set out above."

which included clause 9, which provided:

"I have read and fully understood the NSW Police 'Code of Conduct and Ethics' and will comply with the NSW Police 'Code of Conduct and Ethics'"; and

(b) Clause 5 of the NSW Police 'Code of Conduct and Ethics' which provided:

"An employee of NSW Police must comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction."

61 The Commissioner accepted that the division between "criminal" and "non-criminal" interviews was an administrative one and did not have any statutory force. Nonetheless he submitted that a police officer was entitled to exercise the privilege against self-incrimination only in the course of a "criminal interview" and that the privilege was no longer available to the police officer in a "non-criminal interview", whether such interview is a complaint interview or otherwise.

62 The Commissioner submitted that any answers given by the police officer in a "non-criminal interview" would be given under compulsion and would therefore not, if incriminating, amount to voluntary admissions. The Commissioner contended that the police officer was protected since his incriminating answers could not, on that basis, be tendered against him in the course of a criminal prosecution.

63 The Commissioner also relied on the following statement in the Support Package:

"Police can be directed but not forced to participate in a complaint interview. Refusal may however result in managerial action. Clause 8(1) of the Police Regulation states that "police officers are to promptly obey all lawful orders from those in authority over them."

The proper construction of the Act

64 Section 201 of the Act and cl 8 of the Regulations are set out above. They are in general terms. The only reference to the privilege against self-incrimination in the Act appears in s 180 which concerns a review against an order by the Commissioner in the Industrial Relations Commission and does not bear on the question to be determined.

65 The correct approach to statutory construction was enunciated in the following three seminal passages.

66 In Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb) Gleeson CJ articulated the fundamental principle of statutory interpretation in the context of whether indefinite administrative detention was authorised by Parliament, notwithstanding the common law right to personal liberty. Although Gleeson CJ was in the minority in Al-Kateb, there is no doubt about the correctness of the statement of principle, nor about its application to the question whether the privilege against self-incrimination has been abrogated by statute. His Honour said at [19]:

Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". [Footnotes omitted.]

67 In Electrolux Home Products Pty Limited v Australian Workers' Union [2004] HCA 40; 221 CLR 309 Gleeson CJ said at [20]-[21]:

[20] In Coco v The Queen, Mason CJ, Brennan, Gaudron and McHugh JJ said:

"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." (footnote omitted)

[21] The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law" without expressing its intention with "irresistible clearness". In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law. [Footnotes omitted.]

68 The reason for the requirement that Parliament make its intention clear when removing a fundamental right appears from the following statement in R v Secretary of State for the Home Department; Ex parte Simm [2000] 2 AC 115 at 131 per Lord Hoffman:

"Parliament can, if it chooses, legislate contrary to fundamental principles of human rights ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."

[Footnotes omitted.]

The decision in Morris

69 Because of the Commissioner's reliance on Morris it is necessary to consider it in some detail. In Morris the respondents, both police officers, had been on a tour of duty in a police car. There was a suspicion that the running sheets which were supposed to record events that occurred during the performance of their duties were incorrect. A police inspector required them to attend an interview and to answer questions. They were informed that the questions were of an administrative or disciplinary nature and did not involve any criminal charges. Each respondent refused to answer. Regulation 95A(7) of the Police Regulations 1957 (Vic) provided, in substance, that no member of the police force shall disobey any lawful order. The respondents were charged with disobeying a lawful order. The charges were heard by the Police Discipline Board and found proved. Appeals to the Police Service Board were dismissed. The Full Court of the Supreme Court of Victoria set aside the decision of the Police Discipline Board and the Police Service Board and dismissed the charge. The Police Service Board and the inspector appealed to the High Court. The High Court, in four separate judgments, unanimously allowed the appeals.

70 Gibbs CJ identified the substantial questions as being whether the common law rule that a party is not bound to answer any question that might tend to expose him to the risk of criminal conviction or the imposition of a civil penalty is capable of application and, if so, whether it has been excluded by the Act or regulations. Gibbs CJ summarised the regulatory framework at 402-403 as follows:

By s.88(1) of the Police Regulation Act it is provided as follows:

"Every member of the force who is -

(a) guilty of any breach of the regulations made under

this Act;

(b) guilty of any misconduct;

(c) negligent or careless in the discharge of his duties;

(d) inefficient or incompetent and such inefficiency or incompetence arises from causes within his own control; or

(e) guilty of any disgraceful or improper conduct -

shall be guilty of an offence."

When a member is charged with an offence under s.88(1) the Chief Commissioner may refer the charge to an officer not below the rank of chief superintendent or hear the charge himself or refer the charge to the Police Discipline Board: s.88(2). If the charge is found to be proved, the disciplinary action that may be taken increases in severity according to whether the charge was heard by an officer to whom the charge had been referred, by the Chief Commissioner himself, or by the Police Discipline Board: s.88(3), (4), (5). The Police Discipline Board may (inter alia) reprimand the offending member, impose a penalty of not more than $500, reduce the member in rank or dismiss the member from the force: s.88(5).

71 Gibbs CJ cited The Queen v White; ex parte Byrnes [1963] HCA 58; 109 CLR 665, in which it was held that the Appeal Board that considered allegations of misconduct by a public servant which led to disciplinary action was not exercising the judicial power of the Commonwealth. Although the word "offence" was referred to in the relevant legislation, it was used in the context of misconduct, rather than criminal conduct. Gibbs CJ said in Morris at 403:

There is an obvious distinction between criminal offences and breaches of discipline and it is necessary to insist upon that distinction for some purposes - see, e.g., Reg. v. White; Ex parte Byrnes [1963] HCA 58; 109 CLR 665 at 670.

72 Gibbs CJ found that answers given by a police officer which tend to show the commission by him of an offence against s 88(1) might tend to render him liable to the penalties provided by s 88 and that therefore the privilege against civil penalties was at least capable of applying unless it had been excluded by necessary implication. Gibbs CJ, found that the privilege either did not apply or had been excluded and said at 404:

". . . it seems to me that the character of the regulation, which is primarily designed to secure the obedience to orders rather than to compel the answering of questions, indicates both that the application of the privilege would be inappropriate and that the obligation to obey lawful orders is not intended to be subject to any unexpressed qualification. This view is supported by the fact that if it were possible to claim the privilege, a difficulty would arise as to when and by whom it should be decided whether the claim was properly made."

73 Murphy J allowed the appeal on the basis that the privilege protected was self-exposure to criminal process. His Honour found that the privilege against self-incrimination was not excluded but was not applicable because the police officers were not exposed to criminal process but only to civil penalties.

74 Wilson and Dawson JJ held that the privilege was inherently capable of applying to disciplinary proceedings but that it had been excluded by necessary implication. They accepted the appellants' submission that it was important to the community to have an efficient and well-disciplined police force, which was hierarchical and depended on the performance of duty, including obedience to any lawful order. Wilson and Dawson JJ said at 409-410:

It is essential to bear in mind that the Act and Regulations here are dealing with a disciplined force, the members of which voluntarily undertake the curtailment of freedoms which they would otherwise enjoy. It is in that context that it may be necessary to draw the implication that the privilege is excluded by a provision designed to further the effectiveness of an organization based upon obedience to command. To admit of exceptions, such as the privilege against self-incrimination, without the possibility of having regard to the circumstances in which they might have to be applied, may be alien to the nature and purposes of the organization which the legislation seeks to regulate.

. . .

He [the inspector] was entitled to think, in the context of a purely departmental investigation, that the efficient government of the force required the respondents to be open and frank in explaining their behaviour and that he had the authority to order them to answer his questions . . . The legislature must have intended that any cause for suspicion touching a member's performance of his duties could be the subject of interrogation by a superior officer and that the member would be obliged to answer the questions put to him whether or not those answers would tend to incriminate him. With all respect to those who take a different view, we would have thought that the efficiency of the force demands this and the loyalty promised by every member when he takes the oath prescribed by the Act reinforces it.

75 Brennan J considered, for similar reasons to those given by Wilson and Dawson JJ that the privilege was excluded by necessary implication.

76 The expression "privilege against self-incrimination", unless defined by reference to any one of more of the privileges identified by Lord Mustill in the list set out above, is as apt to be as redolent with ambiguity as the expression "right to silence". Indeed in Cross on Evidence (9th Australian edition), the section entitled "Privilege against Self-incrimination" states the rule at [25065] in terms which include both the privilege against exposure to criminal prosecution and the privilege against exposure to a civil penalty:

"No one is bound to answer any question or produce any document if the answer of the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction for a crime."

77 Although there are statements in Morris in which the distinction between the privileges is not expressed, and the expression "privilege against self-incrimination" is used to cover more than one privilege, the facts in Morris made relevant only the privilege against exposure to civil penalties since no question of exposure to criminal liability arose in that case. The references in the judgments in Morris to the privilege against self-incrimination, are not, in my view, necessarily to be construed as applying to the privilege against exposure to criminal prosecution.

78 Morris is authority for the proposition that the privilege against exposure to civil penalties is excluded by necessary implication by a provision requiring a police officer to obey orders. It makes no authoritative determination whether the privilege against exposure to criminal prosecution is also excluded. The question whether Parliament has excluded a privilege either expressly or by necessary implication must be addressed by reference to the specific privilege concerned.

High Court decisions after Morris

79 The relationship, and distinction, between the privilege against self-incrimination and the privilege against exposure to penalties were considered in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 (Daniels), although the case itself turned on legal professional privilege. Gleeson, Gaudron, Gummow and Hayne JJ said at [13]:

That privilege [against exposure to penalties] is one of a trilogy of privileges that bear some similarity with the privilege against incrimination. The other two are the privilege against exposure to forfeiture and the privilege against exposure to ecclesiastical censure. The privilege against exposure to penalties and that against exposure to forfeiture had their origins in the rules of equity relating to discovery, but it is clear, as noted by Mason ACJ, Wilson and Dawson JJ in Pyneboard, that the privilege against exposure to penalties has long been recognised by the common law and is no longer simply a rule of equity relating to discovery.

[Footnotes omitted.]

80 The plurality said at [31] that the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it but that there was little or no reason why the privilege ought be recognised outside judicial proceedings.

81 This is another point of distinction between the privilege against exposure to penalties which had its origin in equity and the privilege against self-incrimination, in the narrow sense in which I have used it above, which is of general application, is not limited to judicial proceedings and is available to all persons who are under suspicion of criminal responsibility.

82 The privilege against exposure to penalties was considered by the High Court in Rich v Australian Securities Investment Commission [2004] HCA 42; 220 CLR 129 (Rich). In Rich, it was common ground that the privilege against exposure to penalties had not been abrogated by statute. Accordingly the question for determination was whether the privilege applied and its content. The effect of the privilege in Rich was held to be that the appellants were not obliged to give discovery of documents in proceedings for a civil penalty. Morris was referred to at [28] where the Court said that it was at least assumed in that case that exposure to dismissal from the police force amounted to exposure to a civil penalty.

83 In New South Wales v Fahy [2007] HCA 20; 232 CLR 486 (Fahy), Gummow and Hayne JJ identified the creation of a hierarchical and disciplined police force as a purpose of the Act. This purpose formed part of the basis on which Gibbs CJ and Wilson and Dawson JJ found the privilege to have been abrogated by necessary implication in Morris. Fahy, which concerned the obligation to provide a safe system of work for police officers, does not advance what was decided in Morris.

84 The privilege against self-incrimination was considered by the High Court in X7. The plaintiff was arrested by officers of the Australian Federal Police, charged with three indictable offences, and taken into custody. While in custody, the plaintiff was served with a summons under the Australian Crime Commission Act 2002 (Cth) (the ACC Act) to appear and give evidence before an examiner of the Australian Crime Commission (the ACC). In response to the summons, the plaintiff attended a compulsory examination before an examiner at which he was asked, and answered, questions relating to the subject matter of the offences with which he was charged. During the next day of the examination, the plaintiff declined to answer questions concerning the subject matter of the offences when directed to do so by the examiner.

85 The plaintiff commenced proceedings in the High Court seeking declarative and injunctive relief against the ACC, its officers and examiners. The following questions were reserved on a case stated to the Full Court of the High Court:

(1) Does Div 2 of Pt II of the ACC Act empower an examiner to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged?

(2) If the first question is answered affirmatively, is Div 2 of Pt II of the ACC Act invalid to that extent as contrary to Ch III of the Constitution?

86 The majority, Hayne and Bell JJ, with whom Kiefel J agreed, answered "no" to the first question, which rendered the second question inapplicable.

87 After referring to the rule of construction enunciated by O'Connor J in Potter v Minahan set out above, Hayne and Bell JJ said, at [87]:

This rule of construction has found most frequent application in this court with respect to legislation which may affect rights. In that context, it has come to be referred to as a "principle of legality". But the rule is not confined to legislation which may affect rights. It is engaged in the present case because of the effects which the asserted construction of the ACC Act provisions authorising compulsory examination would have not only on the rights, privileges and immunities of a person charged with an indictable Commonwealth offence, but also on a defining characteristic of the criminal justice system. In particular, it would alter to a marked degree the accusatorial nature of the criminal justice system. To hold that the general words of the relevant provisions of the ACC Act authorise compulsory examination of a person charged with an indictable Commonwealth offence about the subject matter of the offence charged would thus depart in a marked degree from the "general system of law".

[Footnotes omitted.]

88 They also said, at [105]:

"The notion of an accused person's "right to silence" encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial."

89 X7 reinforces the importance of the privilege against self-incrimination, which is necessarily separate and distinct from the privilege against civil penalties.

Consideration of Morris and the privilege against self-incrimination in disciplinary cases

90 In Healthcare Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 (Wingate) the privilege against self-incrimination arose in an appeal from orders made by the Medical Tribunal against a medical practitioner who had been found to be in possession of child pornography and was subsequently convicted for such possession. After referring to Re Davis [1947] HCA 53; 75 CLR 409 and Re Veron; ex parte Law Society of New South Wales [1966] 1 NSWLR 511 at 515, Basten JA, with whom Harrison J agreed, said that none of the examples cited involved any suggestion that the obligation of candour overrides the privilege against self-incrimination. However it was not necessary in Wingate for the Court of Appeal to decide whether the privilege against self-incrimination was overridden either expressly or by necessary implication by the Medical Practice Act since the medical practitioner answered the delegate's questions voluntarily.

91 Morris was referred to in Wingate but only for the proposition that Gibbs CJ accepted that the privilege might apply in relation to a penalty imposed in disciplinary proceedings against a police officer.

92 Whether the privilege against self-incrimination had been abrogated or was available to a legal practitioner in disciplinary proceedings was considered but not determined in Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 (Power). It did not need to be decided because the facts of Power were such that, even had the disciplinary proceedings been a criminal trial, inferences from proved facts could more safely be drawn because the opponent, Power, elected not to give an explanation in terms of additional facts peculiarly within his knowledge or any evidence of such facts. These facts related to what he had done with the F drive, which contained images of child pornography and was the foundation of the allegation that he had engaged in conduct tending to pervert the course of justice by disposing of it.

93 Power was one of those rare and exceptional cases referred to at [60]-[68] in Azzopardi. The Court of Appeal considered that the opponent's position could not have been more advantageous in a criminal trial than it was in disciplinary proceedings and therefore did not need to determine whether the privilege had been abrogated. Hodgson JA, with whom Harrison J agreed, said:

[22] If this had been a criminal trial, then in my opinion what the High Court said in Azzopardi would have meant that a jury could have been told that inferences from proved facts could more safely be drawn because the opponent elected not to give any explanation in terms of additional facts peculiarly within his

knowledge or any evidence of such facts. In my opinion, if such Jones v Dunkel reasoning is available to a jury in a criminal trial, it must a fortiori be available to a court in civil proceedings such as the present. That would be so, even if these civil proceedings are regarded as proceedings for a civil penalty.

. . .

[28] . . . Furthermore, the reasons said to justify his not giving evidence have to be considered alongside the obligation of candour discussed in cases such as Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511, Coe and NSW

Bar Association v Meakes. In my opinion, this obligation of candour should not be overridden by a right to silence to any greater extent than is strictly required by that right.

94 The careful consideration given by the Court of Appeal to the effect of the privilege against self-incrimination on the duty of candour owed by legal practitioners to their professional organisation, the Bar Association, and to this Court is a further indication that the distinction between the privilege against self-incrimination, in the sense of exposure to criminial prosecution, and the privilege against exposure to a civil penalty ought not be ellided. The abrogation of one privilege, against exposure to a civil penalty, does not, without more, lead to the abrogation of the other, more substantive, privilege against self-incrimination.

Relevant cases concerning police officers relied on by the Commissioner

95 In Travers the appellant, a police officer, was suspected of criminal offence, taking a bribe. Superintendent Clifton ordered him to furnish a report. Section 14 of the Police Regulation Act (1899-1955) prescribed that any member of the police force who refused to obey any lawful order, or is guilty of any other misconduct or neglect, shall be guilty of an offence. The appellant furnished a report which was tendered in evidence against him in criminal proceedings. He was convicted. It was argued on appeal that the report was wrongly admitted because it was not a voluntary confession since he was obliged to answe the questions asked of him.

96 A case was stated to the Court of Criminal Appeal. The relevant question for present purposes, to which the Court answered yes, was:

Whether the report made by the appellant to Superintendent Clifton in the circumstances in which it was obtained, is admissible in evidence in this appeal in the case for the respondent?

97 The appellant argued that any order that might otherwise be a lawful order would become unlawful if it required an answer which might deprive a person of the common law privilege against self-incrimination. The Court, Street CJ, Owen and Manning JJ, rejected the argument in the following terms at 106-107:

The answer to this contention lies in the fact that the law requires that a member of the police force shall obey a lawful order. It is not to the point to suggest that the order may become unlawful because in answering it the person to whom it is addressed might incriminate himself. We think that in requiring the answer to be given it is necessarily intended, in the absence of any indication to the contrary, that any right which the person addressed might have had to refrain from incriminating himself should be taken away. Moreover, the submission confuses the notion that a person may excuse himself from what would otherwise be a disobedience to an order which he may decline to answer and the lawfulness of the order itself. The lawfulness of the order cannot be judged according to the nature of the answer given. If the answer would incriminate the person addressed, it may possibly be that in some circumstances he might properly decline to answer but no such question arises in this case.

The appellant did in fact answer without protest. We think the order was a perfectly lawful one and the contention made on behalf of the appellant cannot be sustained.

Accordingly, we are of opinion that the report made by the appellant to Superintendent Clifton on the occasion in question was properly admitted in evidence on the appeal.

[Emphasis added.]

98 Although the first italicised portion provides some support for the Commissioner's contention that the Court found that the privilege against self-incrimination was abrogated by the general words of the statute, the second italicised portion makes clear that the Court expressly reserved the question whether he might not have objected to providing the report at the time on the ground that his answer might incriminate him. Accordingly the question that falls for determination in this case was not decided by Travers.

99 The Court in Travers also emphasised that the privilege against self-incrimination is separate from the rule excluding involuntary confessions, although the privilege and the rule frequently arise for consideration in the same context. The distinction was explained in the following terms at 105:

In our view the law is correctly stated in Wigmore on Evidence 3rd ed (1940), Vol 8, par. 2266 at p 387. The author points out that the rule excluding untrustworthy confessions and the rule giving a privilege against compulsory testimonial self-incrimination are some times not kept plainly apart. He goes on to say that the history of the two principles is wide apart, differing by one hundred years in origin and derived through separate lines of precedents. He adds that the privilege, fully established by 1680, had sufficed for both classes of cases, there would have been no need in 1780 for creating the distinct rule about confessions.

The privilege granted to any person to decline to answer incriminative questions is no more than the grant by the person concerned, of a right. . .

If a person rightly claims the privilege but is nonetheless compelled to answer, his answers are not admissible in any other proceedings because his right to silence has been infringed. Kempley v The King, [1944] A.L.R at 253 per Starke J.

100 The Commissioner also relied on Commissioner of Police v Justin, a decision of the Full Court of South Australia. This case bears some factual similarities to the instant case. Senior Constable First Grade Justin was ordered to answer questions by Inspector Lusty who was investigating certain allegations against Justin in relation to which criminal charges were likely to be laid. After Justin declined to answer a number of such questions, Inspector Lusty later purported to commence a further interview with Justin in relation to disciplinary matters rather than criminal proceedings. Justin refused to answer questions during this interview on the basis that matters that were likely to form the subject of criminal charges were involved.

101 Regulation 27 of the Police Regulations 1982 (SA) made it an offence for an employee of the Police Force to disobey any lawful order given to him by a member of the Police Force senior to him. The question arose whether a direction by a superior officer to answer questions was a lawful order requiring obedience under that regulation notwithstanding that the answers to the questions might tend to incriminate the officer being questioned in relation to criminal offences alleged to have been committed in relation to his duties as a police officer.

102 The Police Disciplinary Tribunal pursuant to s 43 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) stated a case to the Full Court of the Supreme Court in South Australia, which held that the wording of the regulation had the effect of excluding the common law privilege against self-incrimination. A direction to answer was a lawful order notwithstanding that the answer might tend to incriminate. The Court purported to apply Morris and found that there was no distinction between a tendency to incriminate in respect of a disciplinary offence and a tendency to incriminate in respect of a criminal offence.

103 The questions relevant to the instant case that were referred to the Court were answered as follows:

Q1: Did the employee have a common law right to refuse to answer questions the subject of charges before the Tribunal?

A: The common law right is excluded in its application to the questions the subject of the charges before the Tribunal, by the provisions of reg 27(1) of the Police Regulations.

Q2: Is the Tribunal bound by the decision in Police Service Board v Morris and, if yes, to what extent?

A: Yes. The effect of Public Service Board v Morris in its application to the present case is that the common law right to refuse to answer questions on the ground of self-incrimination is excluded in relation to the questions which are the subject of the charges before the Tribunal.

104 The difficulty with Commissioner of Police v Justin is that although the Court purported to apply Morris, Morris did not decide the question that arose in Commissioner of Police v Justin. Whether the privilege against self-incrimination, in the sense of privilege against exposure to criminal prosecution, was excluded by the statute did not fall for determination in Morris. The only relevant privilege that arose in Morris was the privilege against exposure to civil penalty. As the cases referred to above illustrate, this is the way Morris has been understood and referred to by the High Court in subsequent cases.

105 Moreover it does not appear from the reasons in Commissioner of Police v Justin that the Court appreciated that it was extending what was decided in Morris by applying what the High Court decided with respect to the abrogation of the privilege against exposure to civil penalty to the privilege against self-incrimination, of the privilege against exposure to criminal prosecution. For these reasons I do not consider Commissioner of Police v Justin to be persuasive and I decline to follow it.

106 The Commissioner also relied on Chambers v Woolley (1996) 6 Tas R 41, a decision of Underwood J of the Tasmanian Supreme Court. Underwood J referred to Morris as having decided that the relevant statute excluded the privilege against self-incrimination and referred to Commissioner of Police v Justin. It must be assumed, having regard to what was decided in Morris, that his Honour was using the term "privilege against self-incrimination" as either synonymous with, or including, "privilege against exposure to a civil penalty". In any event, these statements were obiter since the case concerned whether a police officer was obliged to disclose the name of an informant and no question of self-incrimination arose.

107 The Commissioner also referred to Anderson v Sullivan (1997) 78 FCR 380 in which Finn J decided that the Commissioner of the Australian Federal Police could direct a member of the force to provide a urine sample in circumstances of reasonable suspicion of drug use. As his Honour observed at 396, the issue to be determined in that case was whether there was power to give such a direction, as opposed to Morris and Commissioner of Police v Justin where the issue was whether there was a lawful excuse for disobeying an otherwise lawful direction. Accordingly, the following observations at 395-396 are obiter:

It is not open to question that, both under the AFP (Discipline) Regulations, reg 5(1) and at common law, a member of the AFP is required to obey a lawful direction. Equally it is clear, notwithstanding counsel for the applicant's valiant argument to the contrary, that a regulation of the type found in reg 5 does not admit of a refusal to comply with a direction on the ground of possible self-incrimination: see eg Police Service Board v Morris, above; Commissioner of Police v Justin (1991) 55 SASR 547; see also Chambers v Woolley (1996) 6 Tas R 41.

108 That the effect of the privilege against self-incrimination was not considered by his Honour appears in the following statement at 397:

I should, perhaps, add to the above that, for the reasons I earlier gave in relation to reg 5, I take no account for present purposes of that freedom embodied in the privilege against self-incrimination.

Conclusion on whether the privilege against self-incrimination has been abrogated by the Act or Regulations

109 For the reasons given above, I do not consider that the High Court in Morris decided the question to be determined in the instant case. I do not consider that the Court in Commissioner of Police v Justin did other than apply what it, in my view mistakenly, understood to be the ratio decidendi of Morris. The other authorities relied upon by the Commissioner are distinguishable for the reasons set out.

110 I reject the Commissioner's submission that the privileges have "merged" in the instant case. In my view his submission is not only inconsistent with the authorities referred to above which serve to emphasise the distinctions between the privileges but it also fails to heed Lord Mustill's warning in R v Serious Fraud Office at 31 as follows:

Each of immunities is of great importance, but the fact that they are all important and that they are all concerned with the protection of citizens against the abuse of powers by those investigating crimes makes it easy to assume that they are all different ways of expressing the same principle, whereas in fact they are not. In particular it is necessary to keep distinct the motives which have caused them to become embedded in English law: otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities commonly grouped under the title of a "right to silence."

111 The relevant common law privilege is available as a substantive right to persons such as the plaintiff who are suspected of, but have not been charged with, a criminal offence, from being compelled to answer questions the answers to which may incriminate them, and from being compelled to answer questions by persons in authority on the relevant subject matter. The plaintiff is suspected of a criminal offence; he has not been charged. The Commissioner, or his delegate, who has directed him to attend an interview, is both a police officer and a person in authority.

112 I discern neither in the Act nor the Regulations any indication that Parliament has directed its attention to the privilege against self-incrimination, much less consciously decided on its curtailment or abrogation. Nor, in my view, does the need for a disciplined and hierarchical police force, of itself necessarily require the abrogation of the privilege. Indeed it might be thought that those who enforce the law ought also have the benefit of one of its most significant protections, although this is a matter for Parliament and not for me to decide.

113 For completeness, I note that there are examples where the privilege against self-incrimination has been found to have been abrogated by necessary implication even though the words requiring questions to be answered are in general terms. However such cases tend to arise in connection with bankruptcy or company liquidation where the interests of creditors and shareholders have historically been regarded of sufficient importance to warrant abrogation of the privilege: see Allsop J's comprehensive analysis of the history and authorities in Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 at [80]- [168], including R v Scott (1856) Dears & B 47 [169 ER 909] and Mortimer v Brown [1970] HCA 4; 122 CLR 493; and X7 at [28] per French CJ and Crennan J.

114 In my view, the privilege against self-incrimination has not been abrogated by the Act or the Regulations. Indeed, I do not consider there to be anything approaching the threshold of irresistible clarity to abrogate the privilege.

Consequences of the privilege for the plaintiff

115 The effect of this conclusion is that the plaintiff is not obliged to answer questions put to him at an interview convened to ask him about the incident in May 2011. The Commissioner, or relevant superior officer, is entitled to direct the plaintiff to attend the interview and is entitled to ask him questions. However, once the privilege is claimed, the Commissioner or his delegate is not entitled to direct the plaintiff to answer any question in respect of which privilege has been claimed. Once the plaintiff claims the right not to answer any questions at all relating to the incident, the Commissioner or his delegate are not entitled to require the plaintiff to answer any question, whether or not the particular answer would tend to incriminate him. This conclusion follows from the broad nature of privilege (3) in Lord Mustill's list, from the law as stated in R v Petty and also from Woon v The Queen [1964] HCA 23; 109 CLR 529 where it was held that the applicant's selective answers could amount to a consciousness of guilt.

116 The plaintiff's assertion of the privilege does not prevent the Commissioner taking action on the basis of the evidence he has been able to collect from other sources in relation to the incident. The Commissioner is not, however, entitled take any action against the plaintiff by reason of his refusal to answer questions about the incident since his refusal amounts to the exercise of a right which has not been abrogated. Any order or direction requiring him to answer such questions would not be a lawful order. Nor is the Commissioner entitled to draw inferences adverse to the plaintiff by reason of his exercise of the privilege.

Whether the privilege has been abrogated by the affirmation of office or the terms of employment

117 The Commissioner also submitted, as set out above, that the plaintiff had voluntarily relinquished his privilege against self-incrimination when he undertook to obey all lawful orders. He argued that as the Commissioner was lawfully entitled to ask questions of the plaintiff relating to the incident, the plaintiff was legally obliged to answer them, since he had undertaken to do so.

118 I reject the Commissioner's analysis. Although he or his delegate are entitled to ask the plaintiff any question, the Commissioner is not entitled to direct the plaintiff to answer a question once the privilege has been claimed. On the basis of my construction of the Act and Regulations, the plaintiff has available to him the privilege against self-incrimination. Once it is claimed, any order directing him to answer would not be a lawful order since it would amount to a breach of the privilege. Since the plaintiff has undertaken only to obey lawful orders, he would not be in breach of the order or his undertaking, if he refused to answer a question once he had claimed the privilege.

119 The Commissioner's argument raised further questions, including whether the privilege against self-incrimination can be waived by agreement, in circumstances where the privilege has not been abrogated by statute. The Commissioner's submission would appear to be at odds with the following broad statement of principle in Reid v Howard [1995] HCA 40; 184 CLR 1 at 14 per Toohey, Gaudron, McHugh and Gummow JJ:

There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application - a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against "the peril and possibility of being convicted as a criminal". [Footnotes omitted.]

120 Whether the privilege against self-incrimination can be waived by agreement was considered but not determined by Finkelstein J in Australian Securities and Investment Commission v Mining Projects Group Limited [2007] FCA 1620; 164 FCR 32 at [19]-[23] where his Honour summarised the competing statements of principle in authorities and texts.

121 However, it is not necessary for me to address this question in light of my findings that the plaintiff's obligation is confined to obedience to lawful orders and that an order requiring him to answer a question relating to the shooting incident in May 2011 in the face of his claim of the privilege against self-incrimination is not a lawful order.

The Commissioner's submission about the relevance of the administrative framework and other submissions not elsewhere addressed

122 Because of the repeated emphasis placed by the Commissioner on the epithet he attached to the various interviews that the plaintiff was directed to attend, it is necessary to record my findings on their effectiveness.

123 As is apparent from what I have said above, the availability of the privilege does not depend on the purpose for which questions are asked. Rather, it is available, relevantly, whenever someone who is suspected of a criminal offence is asked questions by a police officer or person in authority. Accordingly, it is not to the point that the delegate might have directed the interview for the Commissioner's own internal processes to ascertain how future incidents of inappropriate use of firearms might best be prevented. Whether an interview was described as criminal or non-criminal has no effect on the availability of the privilege.

124 As appears from the facts recited above, the Commissioner was liaising with the DPP about whether there was sufficient evidence for the plaintiff to be charged for a significant time after the criminal interview had ceased. In any event neither the classification of the interview, nor the views formed by the Commissioner or the DPP as to whether there was sufficient evidence to warrant prosecution, affects the fact that the plaintiff remained, and remains, exposed to the risk of criminal prosecution.

125 For completeness, I should address the Commissioner's argument that there was no infringement of the plaintiff's privilege against self-incrimination in circumstances where the record of interview obtained under Part 8A of the Act could not be used in evidence against him in any criminal prosecution. The Commissioner relied on s 170 of the Act, which limits the admissibility of documents brought into existence under Part 8A, and the rule that only voluntary confessions are admissible.

126 There are two answers to this submission. First, it confuses the privilege against self-incrimination with the rule requiring confessions to be voluntary as a condition of admissibility (see the extract from Travers set out above). Secondly, and more importantly, it involves a misunderstanding of the nature and extent of the privilege, which is infringed by any requirement that a person suspected of a crime answer questions relating to the relevant circumstances even where the answers cannot be used directly as evidence in any trial: Reid v Howard. In X7, Hayne and Bell JJ (with whom Kiefel J agreed) said at [71]:

Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.

127 Both parties submitted that what was contained in the Guidelines and the Support Package showed how the Commissioner interpreted the Act and Regulations and were relevant as an aid to statutory construction. The Commissioner confirmed that these documents were policy documents that had no statutory force or provenance and had been internally prepared. In light of this confirmation I do not consider that it is appropriate to use them as an aid to construction having regard to s 34(3) of the Interpretation Act 1987.

Relief claimed

128 The proceedings concerned not only the plaintiff's entitlement to refuse to answer questions asked of him by the Commissioner or his delegate, but also the lawfulness of orders directing him to answer questions. In these circumstances I propose to incorporate my reasons as to the second matter in a declaration in order to dispose of these proceedings.

129 Since the order that the Commissioner provide particulars is sought only in the alternative, it is not necessary for me to consider the claim for relief since I am prepared to make declarations in accordance with the plaintiff's principal claim for relief.

Orders

130 I make the following orders and declarations:

(1) Declare that the plaintiff was entitled, in the exercise of his privilege against self-incrimination, to refuse to answer questions asked of him by the defendant concerning the circumstances described in:

(a) the direction given in the 26 July 2011 Interview;

(b) the 11 September 2012 Notice;

(c) the 30 January 2013 Notice; and

(d) the 11 February 2013 Notice.

(2) Declare that any order directing the plaintiff to answer questions concerning the incident on 30/31 May 2011 is not a lawful order in circumstances where the plaintiff has claimed the privilege against self-incrimination.

(3) Unless a different order is sought within seven days of the date hereof, order the defendant to pay the plaintiff's costs of the proceedings.

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Decision last updated: 30 August 2013