Justin v Commissioner of Police

[1991] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al6 of 1991

B e t w e e n -

GARRY ALLAN JUSTIN

Applicant

and

COMMISSIONER OF POLICE

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

TOOHEY J

Justin 1 4/9/91

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 4 SEPTEMBER 1991, AT 12.07 PM

Copyright in the High Court of Australia

MR M. DAVID, QC: If the Court pleases, I appear with

MS C.M. BRANSON, for the applicant. (instructed by

McGee & Associates)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with

MR M.A. STEVENS, for the respondent. (instructed

by the Crown Solicitor for South Australia

BRENNAN J: Yes, Mr David.

MR DAVID: If the Court pleases, the present application

involves the consideration of regulation 27 of The

Police Regulations 1982, South Australia, a

regulation which is, for all intents and purposes,

indistinguishable from the regulation considered by

this Court in the Police Service Board v Morris,

156 CLR 397.

The point upon which special leave is sought

is whether the decision of this Court in Morris 1

case compels a finding that regulation 27(l)(a)

validly discloses an intention to exclude the

common law privilege against self-incrimination in

the following circumstances that are apposite to
this case.

Firstly, in a situation where an inspector of police after an investigation forms the view that a

police officer should be charged with an offence
against the general criminal law, in fact, two
offences - forgery and supplying amphetamines to

another person.

Secondly, that police officer, having been

questioned about these alleged criminal offences

and having declined to answer questions on the
ground of self-incrimination, is advised that he

will be so charged, even though he is not charged

at that time. A little later during the same

period of the interview that same police officer is

then directed pursuant to regulation 27(l)(a) to	answer questions calculated to secure admissions
with respect to such a charge.
If the Court pleases, the more detailed facts are set out in the application book at page 3 but, very briefly - and it was by way originally of case
stated from the Police Disciplinary Tribunal in relation to this question - the police officer in
question was questioned about matters concerning
criminal allegations. He declined to answer those
questions. A decision was made that criminal
charges would be laid, and he was told that. He
was then asked a number of questions regarding
disciplinary matters pursuant to the regulation
that I have mentioned. He answered those questions

Justin 2 4/9/91

but during that questioning he was then asked a

number of questions regarding the previous, or

similar and, in fact, the same questions as the

previous questions that were asked about criminal

offences, or alleged criminal offences, which he,

having taken legal advice, declined to answer.	So,
he was asked those questions on two occasions.

Firstly, "I am now investigating matters of

criminal allegations." Then, "I am now

investigating matters of disciplinary behaviour",

but during that questioning he was asked matters in

relation to criminal allegations. It was those

questions that he declined to answer and declining

to answer those questions was the subject of the

charge under the regulation which I have just

mentioned. That questioning is set out on pages 5

and 6 of the application book.

BRENNAN J:  Now, there are two possible issues, are there

not? One is, what is the proper construction of the regulation, and on that, Police Service Board v

Morris, is the difficulty that you have to

overcome, and the second is, whether or not, on the

true construction of the regulation, it applies to

the circumstances of the present case.

MR DAVID	Yes, if Your Honour pleases.
BRENNAN J:	Now,  the first may be a question for special

leave.	The second would be very difficult to
support	as a special leave proposition, I should
think.

MR DAVID In a sense, with respect, the first question

merges into the second because it would be my

argument that Morris' case is distinguished

because, in my submission, Morris' case is really,

with respect, confined to matters of disciplinary

matters.	The questions that were asked in Morris'
case were purely disciplinary matters and they
showed no breaches of the criminal law.	It is the

ambit of Morris' case which, in my submission, is

the special leave point. Does Morris' case, on an interpretation of that section which is equivalent
to our section whether the regulation abrogates the

right against self-incrimination, reach into the

general criminal law?

BRENNAN J: Well, that was a matter of construction of the

regulation and you have to distinguish the present
regulation from the regulation considered in

Morris' case.

MR DAVID With respect, we do not seek to do that. We

concede that they are, for all intents and

purposes, similar. What we do seek is that the

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Full Court of South Australia said they were

totally bound by Morris' case. It is my

submission - and we would seek to argue - that

Morris' case does not necessarily say that on an

interpretation of a similar regulation that the

right to self-incrimination is abrogated in

relation to allegations in a criminal nature as

distinct from allegations of a disciplinary nature

and it is that distinction which, in my submission,

is the basis for special leave.

BRENNAN J:  I rather thought that Morris' case proceeded on

the footing that there was no distinction between a
penalty and a crime for the purposes of

construction of that regulation.

MR DAVID I agree with that, if Your Honour pleases, but

Morris' case also, in my submission, very much confined itself to the fact and, indeed, the

questioning in Morris' case was on the basis that

this is a disciplinary matter not a criminal

matter, and the basis of the interpretation of the

regulation in Morris' case was on the basis of,

when police officers join the police force it is a

matter of police discipline that - this regulation
makes it clear that they are bound to answer

certain questions in relation to disciplinary

matters. It is my submission that that

interpretation cannot be made in relation to

questions about the general criminal law and it is

that matter upon which special leave is sought.

It is my submission that it is of importance

in a fairly widespread sense for this reason.

Firstly, we are talking about the ambit of Morris'

case and the important matter of whether the rather

drastic step of the abrogation of the right against
self-incrimination in relation to criminal matters
can be inferred. Secondly, there is similar
legislation in five States, but particularly in

three States where the legislation is almost

identical - that is South Australia, Victoria and

New South Wales. Thirdly, it involves, of course, important questions as to the rights of police

officers when they are alleged to have committed

criminal offences while on duty and whether the

privilege exists to police officers - - -

DEANE J: But, Mr David, the problem, and I must confess it

seems to me your only problem in obtaining leave,

is whether or not the case is squarely covered by

Morris. Could I point you to page 407, the second

paragraph in the joint judgment of Justices Wilson

and Dawson and to page 413 in the judgment of

Justice Brennan. The way they have put it, it

seems to me to squarely cover this kind of case and

I really do not see how you could take out this

Justin 4 4/9/91

kind of case without affecting the whole approach

that is contained in those passages. I am not

inviting you to agree with what I am saying, I was

just wondering if there is anything you would like

to say that can demonstrate the falsity of what I

am saying.

MR DAVID Yes. Could I answer the question by going to

some other passages - indeed, it is not really an

answer, I suppose.

If the Court pleases, could I go firstly to

page 401 - that is the decision of

Chief Justice Gibbs - at about line 16. I hope I

am not being too factual but right from the start

in Morris' case it is said in relation to the

questions asked in the recitation of the facts:

In each case Inspector Holliday informed the respondent that he intended to question him in

relation to the performance of his duties on
the afternoon of 15 December and that the

matters to which the questions related were of

an administrative or disciplinary nature and

did not involve any criminal charges.

Now, that was the factual vehicle that Morris

proceeded upon which was very much a matter of,

this is not a criminal matter, these are

administrative matters, and at page 405 in the

judgment of the Chief Justice in the penultimate

paragraph His Honour said:

It may be a matter for debate whether the

discipline of the police force would be
seriously impaired if a police officer had the

right to remain silent when ordered to give a

report on the manner in which he had carried

out his duties. However, an order to answer
questions of that kind is plainly lawful and

the character and object of the regulation

provide a sufficient indication that it was

not intended that an officer to whom such an

order was given could object to obey it on the

ground that his answer might expose him to

penalties for breach of his duty.

In my submission, there is an emphasis there in relation to the nature of the regulation and the nature of the order itself as distinct from breaches of the criminal law. I go also to

page 409 in the joint judgment of Justices Wilson
and Dawson, the first full paragraph, if the Court

pleases:

It is essential to bear in mind that the Act

and Regulations here are dealing with a

Justin 4/9/91

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.

In my submission, once again, in the context of

matters of discipline and obedience as distinct

from alleged breaches of the criminal law.

TOOHEY J:  Mr David, if the police officer is being

questioned, as he is here, I take it is not in

issue that the questions he was directed to answer

went to the performance of his duties? I do not

suggest that they may not have gone to other things

as well, but as a starting point they went to the

performance of his duties.

MR DAVID Well, if Your Honour pleases, they are questions

which involved his behaviour while he was on duty,

yes.

TOOHEY J:  Well, that sounds like a fairly semantic

distinction, does it not?

MR DAVID:  The difference being that the answers would

provide evidence - if they were the right answers,

of course - in relation to a criminal charge.

TOOHEY J:  Yes, I understand that, but speaking as a

starting point, the questions seem to relate to the

performance of the officer's duties.

MR DAVID It is very difficult question to answer. I

suppose I could answer it semi-flippantly by saying

if an officer murdered someone on duty, that goes

to the question of his duties. It was not
something that went to a duty which is, in a sense,
specifically talked about in the Act and, in fact,

the proof of the pudding was in the eating in this case. He was not charged with any breach of duty.

He was, in fact, charged with criminal offences.

TOOHEY J:  Well, is the proposition that if the question

directed at the police officer may produce an

answer which is likely to incriminate that police

officer in the event of him being charged with a

criminal offence as opposed to a disciplinary

Justin 6 4/9/91

offence, then the privilege against

self-incrimination is not excluded by the

regulations?

MR DAVID	Exactly.
TOOHEY J:	Even though the questions may relate to matters

touching upon the police officer's performance of

his duties.

MR DAVID Yes. And, of course, a criminal charge would,

in a sense, cover the field. I mean, one would

imagine that the person was guilty of a criminal

charge that somehow would be picked up in a lesser

sense in the regulations themselves.

BRENNAN J:	Mr David, that rather stands on its head, the reasoning in Morris' case, because the respondent
in Morris' case was intent on arguing that the
privilege against self-incrimination applied to a
case where the only incrimination was incrimination of a departmental offence. In other words, the first step in the argument was, there is an
exception to this obligation to obey and it is an
exception which extends to privilege against self- incrimination of criminal offences. The next step was to say, and that privilege extends to privilege
against incrimination of departmental or
disciplinary matters, and the Court was intent on
showing that there was no relevant distinction to
be drawn between crime and discipline.

Your proposition is, because the Court was

able to consider the question of construction in

Morris' case on the footing that there was no

distinction between crime and discipline, in this

case we should assume that the whole reasoning in

Morris' case was based on discipline alone. That

is rather putting it inversely to the way in which

it was approached, is it not?

MR DAVID: Yes. My submission is - perhaps I did not go

through those steps as I should but - Morris' case

deals, and only seems to deal, with matters of

departmental breaches when one interprets that

section.

BRENNAN J:	One could never have got to departmental breaches unless one had passed by the stage of
dealing ~ith incrimination in the stricter sense.
That is the difficulty, it seems to me, that you
face.

MR DAVID: Yes. If the Court pleases, my answer to that

would be that Morris' case itself was really a

matter of the construction of that regulation, pure

and simple. And, in the construction of that

Justin 7 4/9/91

regulation they were looking for inferences and

clear indications that the right to

self-incrimination should be abrogated, whether it

should be abrogated or not and, in my submission,

the reasoning of those parts that I have read out

shows it was in very much the context that it is

abrogated in this qualified sense rather than in

the broader sense. That is my proposition, if

Your Honour pleases.

If the Court pleases, another matter of a

answers - and I think this has been

factual nature which I would wish to put to the course, the

touched upon by Your Honour Justice Toohey - that

were sought in relation to the questions that are
the subject of that regulation, of course, could

really only be of use in relation to a criminal

offence in relation to this case. As I have said,

he was, in fact, charged with two criminal offences

and told he was going to be charged with two

criminal offences. It is not as if that

information could be used to provide evidence for

departmental breaches as well and as, I suppose, a

matter of history he was acquitted of both charges

by jury and then the matter came up before the

Police Disciplinary Board. That is the matter upon which special lave is sought, if the Court pleases.

BRENNAN J: Yes, Mr Solicitor. The question to which you

might direct your attention is whether the present

case is covered by Morris' case.

MR DOYLE:  Yes. If Your Honours please, in our submission,

we would refer first of all just to one portion of

the judgment that was not alluded to - that is in

Police Service Board v Morris, (1985) 156 CLR 397

at 404, in the judgment of the Chief Justice

Sir Harry Gibbs. About three-quarters of the way

down the page His Honour said:

With great respect I would regard the matter

differently; 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

inte.nded to be subject to any unexpressed

qualification.

And so, my learned friend read from the facing

page, page 405, which might, on one view, in

isolation suggest the tenure of the judgment was
rather more limited but, in my submission, the

lead-in to that portion on page 405 makes it

Justin 4/9/91

reasonably clear that the Chief Justice was

expressing himself more broadly.

In our submission, it is relatively clear

reading the judgments that they are expressed quite

generally and, in our submission, when one looks at

the reasoning and thinks about what lay behind

those judgments, one would not readily draw the

distinction which my learned friend seeks to draw

because, in essence, the reasoning was the

importance of orders in the structure of command,
or the way in which the police force operates; the

importance of the public being able to have confidence in the probity of the force and,

therefore, the importance of the ability of the Commissioner to investigate matters effectively

when they are alleged against police officers and,

then a third matter, the practical problems - and

this may only be another side of the coin - which

would arise if the privilege is available because

if a police officer can claim the privilege then,
of course, it would not seem to matter what was in
the questioner's mind, even if the questioner was

thinking purely of a disciplinary matter, the

person being questioned obviously may have a

different perspective and may claim the privilege

and then one wonders, "Well now, what happens?".

I will not take the Court, obviously at this

stage, to the detail of the regulations but a
police officer, for instance, can be suspended only
if charges are laid and if the refusal to answer
questions means that there is no basis for the

laying of charges, then what happens? If charges

are laid and the policeman is suspended, then the

effective resolution of the matter will still be

deferred until the criminal charges are disposed

of, if they eventuate, so that one can then return

to the disciplinary matter. So, in one way or

another, in our submission, in an extreme case the

Commissioner of Police might be unable permanently

to investigate a matter effectively. In the less

extreme case he may have to wait until the criminal
charges were disposed of. In our submission, those

practical consequences in the manner in which a

police force operates do support the rather general
proposition that the obligation to obey orders is

not, in fact, subject to any unexpressed

qualification.

DEANE J: It is relevant to note, Mr Solicitor, that the

general statements in the four majority judgments

are quite inconsistent with the basis of

Justice Murphy's dissenting judgment which makes it

unlikely that those general statements were made

through inadvertence.

Justin	9	4/9/91
MR DOYLE:	Yes.	And, as already has been mentioned by the

Court, when one looks at the reasoning it does seem

to really proceed, there are no unexpressed

qualifications to the duty to obey and, therefore,

you cannot establish this particular qualification

and so, in our submission, there really is no real

doubt as to the applicability of Police Service

Board v Morris.

I should add, it is odd in a way that the

portions of the regulation that are quoted in some of the judgments have dotted out certain words but

we have looked at the Victorian regulation and the

missing words are almost identical, if not

identical, to the words in the South Australian regulation which are - perhaps I might read the

Victorian one. The Victorian one was:

No member of the Force shall .....

(8) neglect, or without good and sufficient

cause, omit, promptly and diligently, to

attend -

et cetera. And, in the judgments in the

Commonwealth Law Reports, those words "without good

and sufficient cause" are dotted out. So, when one

looks at them as a matter of wording, they are as

close as may be when one actually compares the

texts. The South Australian one is that an offence

is committed where the employee:

disobeys or without good and sufficient cause

omits to carry out -

and so, in our submission, the terms of the

regulation are identical and the basis of the

reasoning of the court is clear. Unless there is any other matter, I do not think at this stage, I

could usefully take it any further. If the Court

pleases.

BRENNAN J: Yes, Mr David?
MR DAVID:	No.
BRENNAN J:	The present case is, in our view, governed by

the decision of this Court in Police Service Board

v Morris, (1985) 156 CLR 397. That being so, this

case is not an appropriate case in which to grant

special leave to appeal. Special leave to appeal

is accordingly refused.

MR DOYLE:	I make application for costs.
BRENNAN J:	Do you have anything to say on that, Mr David?

Justin 10 4/9/91

MR DAVID:  No, I have nothing to say.

BRENNAN J: It is refused with costs.

AT 12.38 PM THE MATTER WAS ADJOURNED SINE DIE

Justin 11 4/9/91