Nugent v Ian Stewart (Commissioner of Police) & Anor

[2017] HCATrans 53

[2017] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B58 of 2016

B e t w e e n -

KERRY NUGENT

Applicant

and

IAN STEWART (COMMISSIONER OF POLICE)

First Respondent

ACTING INSPECTOR IAN THOMPSON

Second Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 10 MARCH 2017, AT 9.47 AM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC:   May it please the Court, I appear with my learned friend, MR A.D. SCOTT, for the applicant.  (instructed by Queensland Police Union Legal Group)

MR J.M. HORTON, QC:   May it please the Court, I appear with my learned friend, MS A.J. STOKER, for the respondent.  (instructed by the Queensland Police Service)

KEANE J:   Mr Sofronoff.

MR SOFRONOFF:   Your Honours, in the decision of this Court in Police Service Board v Morris, Justices Wilson and Dawson at page 410 concluded from their reading of the statute in that case that:

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 –

they took that view because, they said:

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.

In the United Kingdom the comparable legislation is quite different.  It may reflect a different view of what the efficiency of a police force requires.

Then they spoke about that – they referred to a passage in which the obligation to give answers is subject to the continued existence of the right to claim privilege.  Their Honours went on:

However, as we have already emphasized, the view that we have expressed is derived from the construction of the Act –

Justice Brennan came to the same view – I will not refer to the passages – but emphatically basing his conclusion upon his view that the discipline of a police force demands that answers be given fully and frankly.  The submission was made below and before the primary judge that the statute in Queensland is different because there are two statutes.  There are two statutes because that was the outcome of the famous commission of inquiry chaired by Mr Fitzgerald.  The consequence was that the statute governing police directly was amended so that police had a reduced role in discipline; reduced so that disciplinary - acts giving rise to the disciplinary jurisdiction were limited to those that did not involve criminal conduct. 

A year or two after that was done, the Criminal Justice Act was enacted conferring exclusive power upon the Commission created by that Act to consider misconduct by police that involved criminal acts or acts warranting dismissal.  The result of that combination of Acts is as we have explained it in our written outline.  The Court of Appeal took a different view.  Justice Morrison at paragraph [81] of his reasons at page 44 of the application book said:

for reasons which appear below I am unable to accept the contention by senior counsel for Mr Nugent, that they must be read together –

that the Acts must be read together as one statutory scheme and he went on to give reasons.  Relevantly, the two reasons were these - paragraph [85]:

The differences are also seen in the differing objects of the two statutes.

Then in subparagraph (a) his Honour referred to objects which are expressed in section 1.3(a)(i), (iii) and (iv) which direct the Commission to work towards objects concerning the efficiency and impartiality of the criminal justice system and the problem of organised and major crime.  But his Honour did not refer to subparagraphs (v) and (vi), which objects are to investigate misconduct, to hear discipline charges relating to misconduct.  Nor did his Honour refer to section 2.20(2)(e) which prescribes as a function of the Criminal Justice Commission the investigation of:

misconduct by members of the Police Force -

So, that is, in our respectful submission, an error on his Honour’s part which led to his conclusion in paragraph [87] that:

Whilst there is some similarity in –

the two Acts:

there is no sign that each was intended to be read together.  It would have been a simple thing for the legislature to have provided that, if it were intended.

One of the consequences, as his Honour himself adverted to, was in paragraph [88], in the third line, that the officer’s right in answering questions:

might be different depending on whether the questioning was conducted under one Act as opposed to the other.

That raises the question, of course, why should their rights be different in one case rather than the other if the questioning would reveal by admission a criminal act giving rise to criminal liability.  Putting that to one side, it raises an important difference which is attention which is irreconcilable and it is this.  Your Honours will see at paragraph [90] on page 46 in the last sentence that it was conceded that:

answers given as a result of the Commissioner’s direction to answer would be inadmissible –

No doubt that was based upon the proposition that section 10 of the Criminal Law Amendment Act 1894 makes a statement inadmissible if it has been induced by threats or promises, but the problem is that in two New South Wales Court of Appeal decisions, one of which is referred to by President McMurdo at paragraph [16] - R v Travers - it was held that the statement incriminating a policeman given as a result of compulsion to answer and which incriminates the policeman is admissible at a subsequent criminal trial of the police officer. 

It was said that that the rationale against admitting involuntary statements did not apply because it was said that that rationale was based in the unreliability of statements made under duress or in response to a promise, the obvious practical rationale for not relying upon them, but that an obligation to tell the truth, whether in court or under compulsion in response to a direction, is not infected by the same unreliability.

Now, we would argue that is wrong because the implicit threat is if you do not answer we will dismiss you for breach of discipline in not answering.  But, leaving that aside, the result is that under the ratio of Travers, which was affirmed in DPP (NSW) v Alderman (1998) 45 NSWLR 526, a unanimous decision of the Court of Appeal of New South Wales, the result is that if you are asked questions and you incriminate yourself in front of a police officer investigating the matter, as a disciplinary affair, your answers are admissible in a criminal trial. If you are asked the same questions at the Commission, they are not admissible; you have to answer but they are not admissible.

KEANE J:   Can I just ask - do you resile from the concession?

MR SOFRONOFF:   Yes.

KEANE J:   So the concession on which the Court of Appeal proceeded, you submit was wrongly made?

MR SOFRONOFF:   Yes, and, indeed, President McMurdo doubted it.  That is why she referred to Travers.  So it troubled her.

KEANE J:   Mr Sofronoff, insofar as the issue you present is based on this notion of the statutory bifurcation of responsibilities, that is a peculiarly Queensland problem?

MR SOFRONOFF:   It is, but the problem raised by Morris and by the decision of the Court of Appeal is not.

KEANE J:   But the first step in the argument is that there is a problem because of the bifurcation.  That is the first step.

MR SOFRONOFF:   Correct.

KEANE J:   To the extent that that is a problem, it is a peculiarly Queensland problem.  It has been addressed by the highest court in Queensland.  To the extent that the resolution of the problem by the highest court in Queensland is problematic, the solution is obviously within the power of the Queensland Parliament.

MR SOFRONOFF:   Yes.

KEANE J:   So why is that an issue that this Court would take up, bearing in mind that you have to win on this issue – this issue has to be resolved to open the door for you, as it were?

MR SOFRONOFF:   We would say two things, your Honour.  Firstly, in direct answer to the – assuming it is just a Queensland issue – it is a big issue for Queensland because it affects all police officers who might become the subject of discipline.  While it is true that Parliament can amend any Queensland statute that the Executive considers unsatisfactory, here my client is not in a position to advocate that.  It would be different if I was appearing for the State ‑ ‑ ‑

KEANE J:   The Police Union might take a different view of that.

MR SOFRONOFF:   Well, that is quite right.  Politically, they are entitled to agitate, but there would be great force in the consideration that your Honour put to me if I was appearing for the State complaining about the interpretation of a statute.  But I am appearing for a citizen complaining about the interpretation of a statute, and a citizen who is in a very special position because of his membership of the police force, in common with several thousand other members who are affected.  So the first matter is that it is a matter that affects the discipline of the police force and police officers in Queensland.  That should be enough to justify special leave being granted.

KEANE J:   In relation to this question of discipline, the way you formulate the issue in paragraph 4 of your application, at page 59 of the application book, you say the question is:

Whether the scope of the power of the Commissioner of Police to issue directions under s.4.9 of the Act extends to require the applicant to answer a question about whether he had committed a offence.

Your client did not answer.  So there is no question about the use of anything he said being deployed against him in a criminal trial.  The issue really is, is it not, whether his non‑compliance with section 4.9 gives rise to the occasion for discipline under the disciplinary provisions that you have referred to.  How does that work?  Does the circumstance that to answer would incriminate him or might incriminate him, does that circumstance affect the proper construction of 4.9?  In other words, should we read it as an obligation to comply with directions, save where to do so might incriminate him?

MR SOFRONOFF:   Could I proceed in small steps.  The question is whether the power of the Commissioner to issue directions extends to a power to direct a police officer or police officers in general to answer questions despite their tendency to incriminate the person giving the answer.  So that is the legal question of construction of section 4.9.

KEANE J:   To make it a legal question that actually has some bite, do we not need to focus on the consequences of that?

MR SOFRONOFF:   Yes, and the consequence of his refusal to answer, assuming there was an obligation to answer, is that he is liable to be disciplined, including one would think by dismissal.

KEANE J:   Yes.

EDELMAN J:   Except in circumstances here where there was a large legal question, which has been litigated to the highest court in Queensland.

MR SOFRONOFF:   That would be in mitigation.

EDELMAN J:   Yes.

MR SOFRONOFF:   In mitigation but not excuse.

EDELMAN J:   Yes.

MR SOFRONOFF:   So the consequence - I am not sure I understand what your Honour Justice Keane is putting to me but the consequences for him are ‑ ‑ ‑

KEANE J:   It is that - this is not a case like X7 or the other cases that are referred to in the argument about the use that can be made of a statement extracted from a constable.  The question is what are the consequences of the constable’s refusal to answer and I understand that it is accepted that subject to the point you are raising he was obliged to answer because that was his duty.

MR SOFRONOFF:   If this application or the appeal fails, then he may be asked again and, being compelled to answer, he might – I do not know; I have not considered the matter – choose to answer and the answer might incriminate him.

EDELMAN J:  Then there might be an issue about the scope of section 10.

MR SOFRONOFF:   There might be an issue about that but the anterior question upon which all of that depends is whether there is an obligation to answer because the Commissioner has the right to give a direction compelling an answer notwithstanding the privilege.

KEANE J:   The immediate question is whether he is liable to discipline by reason of his refusal to answer.

MR SOFRONOFF:   Yes. 

KEANE J:   You rightly refer to the possibility that that discipline may involve dismissal.

MR SOFRONOFF:   Yes. 

KEANE J:   So the situation that presents itself is that a constable sworn to uphold the law and to prosecute crime and to assist his superiors in doing so, because of the circumstances in which he finds himself, refuses a direction to do that and having refused to do that then says, “My refusal carries no consequences – must carry no consequences for my further membership of the force”.

MR SOFRONOFF:   No.  No, your Honour.  There are two immediate consequences – two immediate consequences that can follow the choice of the authorities.  The first is that he might be suspended under section 6.1 of the Police Service Administration Act while the investigation is conducted in the usual way that is used when investigating criminal matters.  The second is that the matter should be referred to the CCC, which then has powers to compel answers to unearth the truth.

KEANE J:   So, if the matter did go further after today, one way of dealing with it, one way whereby the authorities might deal with it, which could give rise to no complaint from your client, would be if the CCC ‑ ‑ ‑

MR SOFRONOFF:   That is right.  But then there would be a protection against the use of that material in criminal proceedings against him.

KEANE J:   Quite.  But looking at the matter as it presents to us, the only consequence to your client is the disciplinary consequence of not answering it.

MR SOFRONOFF:   I would not say – could I remove the word “only”?

KEANE J:   Well, the only immediate consequence ‑ ‑ ‑

MR SOFRONOFF:   The single consequence is that ‑ and that is quite serious, obviously – but the legal question that gives rise to that is one that is going to affect ‑ ‑ ‑

KEANE J:   That is your three‑minute warning.

MR SOFRONOFF:   Yes.  The legal question that this gives rise to is one that is going to affect everybody in the future who is in the same position, so it is not just him.  If it were just him, we would not be here advocating that there is a point of law general ‑ ‑ ‑

KEANE J:   Well, the people it may affect are those police officers who decline to perform their duty because their circumstances are such that they apprehend that by doing their duty they would disclose that they are a criminal.

MR SOFRONOFF:   Your Honour is begging the question:  is it the duty?

KEANE J:   No, no one is doubting section 4.9 operates according to its tenor.  Your argument seems to be, or needs to be, so it seems to me, that 4.9 cannot operate according to its tenor because there is this implied exception in the case of police officers whose circumstances are such that to perform what is prima facie their duty could only do so by incriminating themselves.

MR SOFRONOFF:   No, your Honour.  Our argument is that there is a right on the part of everybody not to answer questions if they choose not to if the answer might tend to incriminate the answerer.  The question is whether section 4(1) overrides that.  Your Honour is putting it to me in the obverse.  When your Honour puts it to me “it is his duty to answer”, that begs the question whether it is his duty to answer.  Your Honour puts it to me that the normal tenor of the provision is that he should answer.  That raises the question whether general provisions which require answers do or do not override entrenched common law rights.  Respectfully, those two propositions that your Honour puts to me assume the answer against me and then, if one does that, of course there is no case.

In our respectful submission, particularly because of the nature of the statutory regime under which the authorities can choose to proceed against a person like my client and people in that position in the future, there is just no problem, but they wish to proceed here where they would be, on the authority of the New South Wales cases, at liberty to use the answer against him.

Could I briefly, in the time available, say that the case is important generally because although Queensland’s statutory scheme is unique, there are general provisions in the other States in which the other statutes are different in each case, and the question is whether, almost as a matter of common law, Morris stands as authority for the proposition that police are special and that a general power to give directions overrides the common law rights.  Could I ask your Honours to note, as we have said in the submissions, the defence force itself, which is the most par excellence disciplined armed force in the country, is not subject to such a requirement.

KEANE J:   Thanks, Mr Sofronoff.  Yes, Mr Horton.

MR HORTON:   Could we first address your Honours on the bifurcation question between the two statutes, the Police Service Administration Act and the CCC Act and, second, deal with the point about the use of the information, namely in criminal proceedings and so forth and the concession, and, third, if there is time, the point about the peculiar, by which we mean singular or unique, application of the necessary intended principle in the case of a police force. 

Your Honours should have an extract from the Crime and Corruption Act, the current Act, but the sections relevant are the same as at 2015.  The thrust of the applicant’s argument seems to be that with the creation of the CJC, now the CCC, there was a division of roles – a clear delineation of roles where criminal matters would, in effect, end up with the CCC and disciplinary matters would remain with the Commissioner. 

We cavil with that proposition for these reasons.  If your Honours would turn to the extracts, section 37 is the notification provision.  There is a duty on the Commissioner to notify the CCC.  In section 40, the Commission issues directions about what should and should not be notified.  In section 42, the Police Commissioner has to “expeditiously assess” anything that comes to him by way of complaint.  In section 42(4), the Commissioner can refer off to the Commission but vice versa, in section 46(2)(b), it can come back.  That is, the Commission can refer to the Commissioner of Police, being a public official, to be dealt with by the public official, subject to the Commission’s monitoring role.  So the CCC gives the monitoring role but the Commissioner is to deal with the matter and “deal with”, you will see from the final page of the extract ‑ ‑ ‑

EDELMAN J:   So the effect of that is that if a constable refuses to answer questions the matter can be referred to the Commission and then the questions can be put and they can be referred straight back.

MR HORTON:   That is right.  That is one option.  Another option is that, ordinarily in the middle of the interview, which would be a disciplinary one, if the interview transgressed into areas likely to involve criminal omissions and so forth, the interview must be done under the Police Powers and Responsibilities Act with those protections. 

Now, that then invokes a prohibition against, in effect, asking questions under compulsion, which really ties back to section 10. To the extent these matters are criminal, those matters under section 10 will be inadmissible ultimately but also under the Police Powers and Responsibilities Act unable to be compelled – the answers are unable to be compelled.  So, one would have to refer it across to the Commission in order to have the compulsive power.

The point we wish to make as well is that the Police Commissioner does have the power, where referred to him by the Commission, to gather evidence for prosecution for offences, and that comes with the definition of “dealt with” or “deal with” on the last page of the extract.  Your Honours will see that terminology is used in section 46(2)(b). 

This scheme is not foreshadowing the Police Commissioner with merely disciplinary functions and a commission, the CCC, with criminal ones, or perhaps with everything but specifically criminal – it is contemplating a sharing of those two roles.  So, even reading the schemes together in these provisions where there is…..section, one still does not see a deprivation, if you like, of the Commissioner’s old, historical, traditional role of doing everything. 

The system has its own protections.  Your Honours will have seen from the direction contained in the complaint and resolution procedures policy, which is the source of it - it is quoted below at page 11 of the appeal record.  The direction:

is NOT intended to apply to complaints that involve, or are likely to involve, allegations of criminal offences. 

In that case, a criminal record of interview in compliance with the Police Powers and Responsibilities Act must be attempted. That is the bifurcation point, your Honours. We briefly address the concession made by Mr Nugent. We say, with respect, it was properly made, and we would make the same concession; that is, section 10 will operate to preclude the admission of any of this in criminal proceedings.

KEANE J:   Do you submit that Travers is wrong?

MR HORTON: No. No, we do not. We just say in the context of this regime section 10 but…..at the terms of this direction. The terms of this direction are specifically excluded – criminal matters. That is the uniqueness here. It is not a statutory provision - obviously it is in the policy, but the command, if you like, to use the language of these cases ‑ ‑ ‑

KEANE J:   So you would say that this is different from Travers because here it would permit the authorities to speak with a forked tongue to allow it to be used?

MR HORTON:   Well, with respect, we put it the opposite way.  We would say to speak clearly and upfront:  “You are directed to do this but, if we transgress into criminal matters, separate procedures have to follow”.  It is a separate Act, the Police Powers and Responsibilities Act – upfront, and that comes with all your protections that you should have in a criminal matter, or you might be referred off to the CCC, in which case it is game on, so to speak.  So, not a forked tongue, but an advice early on about where this may – well, the avenues that this may proceed to.

Can we briefly then address just finally the point about the peculiar application.  By that we mean the singular or special application of the necessary intended principle here.  There has emerged from these cases – Morris is one of them – in effect a substantive principle of general law that where there is a police force the commander of it ought to be able to compel from those who administer the powers a full account of what they did.

EDELMAN J:   That cannot be a general principle.  It has to depend upon the statutory context and background of particular statutes.

MR HORTON:   Yes, and so the principles in Morris were picked up in this legislation, in the framing of the Commissioner’s prescribed responsibility, in section 4.8.  So it is the section before the directions provision that says the Commissioner’s prescribed responsibility.  It is at page 66, your Honours, of the application book:

4.8 Commissioner’s responsibility

(1)      The commissioner is responsible for the efficient and proper administration, management and functioning of the police service in accordance with the law.

That picks up, we say, very much the principles in Morris.  Justice Mullins found below in the Court of Appeal – I will not take your Honours to it, but at reasons [131] application book 55 – the Queensland regime had embraced the character and discipline of the force as dealt with in Morris, which is why we place so much reliance on Morris.  It is not simply that it deals with a police force because, of course, there it was simply a disciplinary matter, but because the principles in Morris, articulated so long ago, have been taken up by the legislature here, enshrined in the Commissioner’s responsibility, the other side of which is the commands the Commissioner can give in 4.9 because your Honours will see that:

In discharging the prescribed responsibility –

That prescribed responsibility, despite it being an Act passed just one year after the CJC Act, to go back to our first point, is still cast in untrammelled terms.  If it please the Court, they are our submissions.

KEANE J:   Thanks, Mr Horton.  Yes, Mr Sofronoff.

MR SOFRONOFF:   Your Honours, in our respectful submission, the submissions of the respondent make it clear that this is a matter that deserves the attention of the Court because the way in which the decision of the Court of Appeal is going to be construed and, indeed, a way in which it is capable of reading it is the way in which it has been put by the respondents in the subtitle to the passage beginning at page 95 of the application book, “Common law principles”.

Indeed, in the Court of Appeal here, in Baff and in Justin - decisions referred to by their Honours in the Court of Appeal, and, indeed, in submissions, Morris, although it did not deal directly with privilege against self‑incrimination rather than privilege against penalty, has been regarded as a case that authoritatively concludes the question raised by the issues in this case – authoritatively not dependent upon the nature of the statutory regime, it seems.

EDELMAN J:   So is the Court of Appeal’s decision to be understood as saying anything different from – that section 4.8 is to be read against the background of decisions such as Morris?

MR SOFRONOFF:   No, but the decision of Morris has been used as though it provides an imprimatur for the conclusion in every case.  There is a passage in Justice Morrison’s reasons where he said - paragraph [121], your Honours, the second and third sentences.  The trouble with Morris ‑ ‑ ‑

KEANE J:   That is certainly true as to a majority of the justices in the case.

MR SOFRONOFF:   That is right.  As your Honour is aware, a lot has happened in respect of the characterisation of the privilege since Morris was decided.  That can be seen, if your Honours were to look at the early -Alderman, the New South Wales case I mentioned, or Travers, which spoke in terms in passages of the privilege as having only the status at some point in its history of a rule of evidence, which of course it is not any more.  In our respectful submission, this raises an important question of general importance about one facet pertaining to that important doctrine.

KEANE J:   Thanks, Mr Sofronoff.

The proposed appeal would not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  The application is refused with costs.

AT 10.20 AM THE MATTER WAS CONCLUDED