McGee v Gilchrist-Humphrey

Case [2005] SASC 254

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application)

MCGEE v GILCHRIST-HUMPHREY

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Sulan)

12 July 2005

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION

The plaintiff was summoned to appear before a commission of inquiry exercising powers under the Royal Commissions Act 1917 - the defendant was represented at the commission of inquiry and proposed to question the plaintiff - in anticipation of questions to be put at the commission the plaintiff sought a declaration from the Full Court that the Royal Commissions Act 1917 does not abrogate the common law privilege against self-incrimination - consideration of s 9 of the Royal Commissions Act 1917 and whether it limits the Court's jurisdiction in relation to a commission of inquiry - consideration and application of the principles of statutory abrogation of common law rights and privileges - consideration of whether construction of a statute should be in accordance with Australia's obligations under an international treaty or convention to which Australia is a party when ratification of that treaty occurred after the enactment of the statute in question.

Royal Commissions Act 1917 s 3, s 7, s 9, s 10, s 11, s 13, s 14, s 16, s 16B, s 26; Supreme Court Act 1935 s 31, s 49(1); Criminal Law Consolidation Act 1935 s 241; Crown Proceedings Act 1992 s 9(2); Supreme Court Rules 1987 r 63.02; Mining Act 1906 (NSW), referred to.
Sorby v The Commonwealth (1983) 152 CLR 281, applied.
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Plaintiff S157 v The Commonwealth (2003) 211 CLR 476, discussed.
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385; Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421; Douglass v Lewis (1982) 30 SASR 50; Jumbunna Coalmine No Liability v Victorian Coalminers Association (1908) 6 CLR 309; Polites v The Commonwealth & Anor (1945) 70 CLR 60; Chu Kheng Lim & Ors v Minister for Immigration (1992) 176 CLR 1; Kartinyeri & Ors v The Commonwealth (1998) 195 CLR 337; Al-Kateb v Godwin & Ors (2004) 208 ALR 124; Yager v R (1977) 139 CLR 28; Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273; Kruger & Ors v The Commonwealth (1996-1997) 190 CLR 1; Coleman v Power & Ors (2004) 209 ALR 182, considered.

MCGEE v GILCHRIST-HUMPHREY
[2005] SASC 254

Full Court:  Doyle CJ, Perry and Sulan JJ

  1. DOYLE CJ:          The plaintiff, Craig McGee, has been summoned to appear to answer questions and to produce documents before a commission of inquiry exercising powers under the Royal Commissions Act 1917 (SA) (“the Act”). He has issued proceedings claiming a declaration that the provisions of the Act do not abrogate the common…

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McGee v Gilchrist-Humphrey [2005] SASC 254
Case
[2005] SASC 254
Decision Date

CaseChat Overview and Summary

In McGee v Gilchrist-Humphrey, the plaintiff sought a declaration from the Court that the Royal Commissions Act 1917 (SA) does not abrogate the common law privilege against self-incrimination. The plaintiff anticipated being summoned to appear before a commission of inquiry exercising powers under the Act and was concerned that questions posed at the inquiry might expose him to the risk of self-incrimination. The case involved the interpretation of section 9 of the Royal Commissions Act 1917 and whether it limited the Court's jurisdiction in relation to a commission of inquiry.

The Court had to determine if the Royal Commissions Act 1917 abrogated the common law privilege against self-incrimination. This required consideration of the principles of statutory abrogation of common law rights and privileges. The Court also considered whether the construction of the statute should be in accordance with Australia's obligations under an international treaty or convention to which Australia is a party, even if the ratification of that treaty occurred after the enactment of the statute in question.

The Court found that the Royal Commissions Act 1917 did not abrogate the common law privilege against self-incrimination. The Court reasoned that the Act did not contain any express words or necessary implication indicating that Parliament intended to abrogate the privilege. The Court also noted that the provisions of the Act warrant consideration by Parliament due to their antiquated nature and potential ambiguity. The Court concluded that Craig McGee, the plaintiff, was entitled to make a claim that answering a question might incriminate him if required to answer a question by the commission. The Court further determined that the making of a declaration was not contrary to section 9 of the Act and was an appropriate case for the Court to exercise its jurisdiction.

In summary, the Court granted the declaration sought by the plaintiff, confirming that the Royal Commissions Act 1917 does not abrogate the common law privilege against self-incrimination. The Court emphasized the importance of the privilege and the need for clarity in the powers conferred by the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

My reasons for joining in that order are set out below.Facts On 30 November 2003 Eugene McGee, the brother of the plaintiff, was driving a motor car on the Kapunda to Gawler Road. He ran down a cyclist, Mr Humphrey, from behind. Mr Humphrey was killed. Eugene McGee failed to stop or to render any assistance to Mr Humphrey. Only after some hours had passed did Eugene McGee inform the police of his whereabouts. In April 2005, following a trial in the District Court, Eugene McGee was acquitted of a charge of causing death by driving in a manner dangerous to the public but he was convicted of the lesser offence of driving without due care. Eugene McGee had pleaded guilty to a charge of failing to stop and to give assistance. He was sentenced by the trial Judge on 28 April 2005. Certain aspects of the police investigation of the offences committed by Mr McGee, and of his sentencing, attracted a lot of public comment. On 5 May 2005 the Governor appointed Mr James QC as a commissioner to enquire into specified aspects of the police investigation, and into certain aspects of the conduct of the trial and sentencing proceedings by the prosecutor. The appointment of Mr James attracts the powers conferred by the Act: see s 3 of the Act. Evidence led before Mr James suggests that Eugene McGee telephoned Craig McGee shortly after the collision; that Craig McGee drove to a place where he met Eugene McGee; that Craig McGee then drove Eugene McGee to Adelaide, from where Eugene McGee later contacted the Police. The evidence raises the question of whether Craig McGee might have helped Eugene McGee evade police in the hours after the collision. It is clear that Craig McGee will be asked questions about the part he played in events following the death of Mr Humphrey. Craig McGee wishes to refuse to answer certain questions, assuming they are put, on the ground that to answer those questions might expose him to the risk of self-incrimination of an offence such as the offence of impeding the investigation of an offence, or assisting an offender to escape apprehension: see s 241 of the Criminal Law Consolidation Act 1935 (SA). In the course of submissions, Mr James has indicated that he is likely to require Craig McGee to answer questions although his answers might incriminate him. He has indicated that in his opinion the Act abrogates the privilege against self-incrimination. In that context Craig McGee brought the present proceedings against Mrs Gilchrist-Humphrey, the widow of Mr Humphrey. Her counsel before Mr James said that he wishes to ask questions, the answer to which might incriminate Craig McGee. Mr James has not been joined as a defendant in the proceedings. In my opinion it would have been preferable were he to be joined. The proceedings raise the extent of the powers conferred on him by the Act. Only he may require a witness to answer a question: s 10(b) of the Act. However, it is clear that Mr James is aware of the proceedings. He has not applied to be joined. The Attorney-General intervened in exercise of the power conferred by s 9(2) of the Crown Proceedings Act 1992 (SA). The Solicitor-General, appearing for the Attorney-General, put submissions in support of the view expressed by the Commissioner. The Court also heard counsel for each of the South Australian Bar Association and Law Society of South Australia as amicus curiae. They put submissions supporting the submissions of Mr McNamara QC, counsel for Craig McGee.Does s 9 of the Act prevent the Court from deciding the case?

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PERRY J
I have considered the relevant legislative provisions one by one. In the end it is necessary to consider the relevant provisions of the Act taken together, and in the context of the Act as a whole. Doing so I am not satisfied that a necessary implication arises that Parliament intended to abrogate the common law privilege against self-incrimination. Indeed, the only pointer in that direction is s 16, and there are a number of other aspects of the Act which suggest otherwise.Conclusion For those reasons I am satisfied that the Act does not abrogate the common law privilege against self-incrimination. Craig McGee is entitled, if directed by the commission to answer a question, to make a claim that to answer the question might incriminate him. If the commission is satisfied that the claim is well made, it does not have power to require him to answer the question. It is appropriate to add that the provisions of the Act warrant consideration by Parliament. In a number of respects the provisions give rise to questions and issues which could easily be settled by Parliament. The Act has a somewhat antiquated air to it, appearing to be a patchwork of provisions borrowed from similar legislation elsewhere in Australia. In recent times the Act has not been much used in South Australia. But the Act confers significant and quite wide-ranging powers on a commission, and it is in the public interest that the powers of a commission of inquiry should be clear. I invite the attention of the Government to the state of the Act. I concurred in the order of the Court pronounced on 17 June 2005. I agree with the reasons of Doyle CJ for the making of the order. I add some comments of my own. I have considered the question whether the conclusion that the Royal Commission Act 1917 (SA) (“the Act”)does not remove or abrogate the common law privilege against self-incrimination, is supported by the application of the principle that in cases of ambiguity, the court should favour the construction of a statute which accords with Australia’s obligations under an international treaty or convention to which Australia is a party. The principle has been clearly established by a number of decisions of the High Court. In Jumbunna Coalmine No Liability v Victorian Coalminers Association,[1] O’Connor J observed:… every statute is to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or established rules of international law.[2][1] (1908) 6 CLR 309 at 363.[2] Citing Maxwell on Statutes (3rd edition) page 200. In Polites v The Commonwealth and Anor,[3] Latham CJ, Dixon and Williams JJ in separate judgments affirmed the principle in similar terms.[4][3] (1945) 70 CLR 60.[4] Ibid at 68-9, 77 and 80-1. In Chu Kheng Lim and Ors v Minister for Immigration,[5] Brennan, Deane and Dawson JJ in their joint judgment said:We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute, which accords with the obligations of Australia under an international treaty. [Footnote omitted][5] (1992) 176 CLR 1 at 38.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

I am satisfied that the making of a declaration as claimed is not contrary to s 9. As I have said, the jurisdiction of this Court to make a declaration will be excluded only if Parliament has clearly indicated, by express words or necessary implication, an intention to exclude that jurisdiction. Considering s 9 in its context, I treat s 9 as protecting decisions of the Commissioner from being reversed or set aside and proceedings by the Commissioner from being restrained. I do not find any reason to treat s 9 as preventing the Court from deciding by means of a declaration the extent of the power to question a witness conferred on the commission by the Act.Is this an appropriate case for a declaration? The question raised by the proceedings is not hypothetical. It is a live question. Craig McGee has been summoned, and it is evident that he will be asked questions, the answer to which might expose him to the risk of self-incrimination. Unless persuaded otherwise, the Commissioner will require Craig McGee to answer such questions. If Craig McGee refuses to answer such questions, Mr James might well exercise the powers conferred by s 11 of the Act and either fine or imprison Craig McGee. Apart from the significance of the point from Craig McGee’s point of view, the effect of the provisions of the Act on the common law privilege against self-incrimination is a significant issue, involving the public interests as well as the interest of the immediate parties. The fact that Craig McGee might be imprisoned should he refuse to answer a question, relying on the privilege against self-incrimination, would ordinarily be sufficient to make it appropriate for this Court to determine whether the privilege against self-incrimination is a valid basis for refusing to answer a question. Whether there is any appeal against a decision by Mr James to imprison Craig McGee is unclear: see s 11(1) and s 26 of the Act. If there is no right of appeal against an order for imprisonment, that is an added reason for this Court exercising its jurisdiction, if it is open to it to do so. As Walsh J said in Forster v Jododex at 428, referring to the power of the mining warden:… [I]f his decisions were immune from any review by means of any of the prerogative writs, that might be a ground for concluding, in some cases, that the Supreme Court ought to intervene by means of a declaration before the warden had given a decision, in order to ensure that the matter should not be finally determined in a manner which was not according to law. I am satisfied that this is an appropriate case in which to exercise the wide power that the Court has to entertain an application to it for the making of a declaration: see s 31 of the Supreme Court Act 1935 (SA), r 63.02 of the Supreme Court Rules 1987 and Forster v Jododex.Does the Act abrogate the privilege against self-incrimination? The privilege against self-incrimination is an important common law principle or immunity. A statute will not be construed as abrogating the privilege unless it is clear that Parliament intends to do so. As Mason, Wilson and Dawson JJ said in Sorby v The Commonwealth (1983) 152 CLR 281 at 309:The privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pars 113-116; Pyneboard; Crafter v Kelly [1941] SASR 237 at 242.See also Gibbs CJ at 288-289; Murphy J at 311; Brennan J (dissenting) at 316.