State of Tasmania v Johnston

[2009] HCATrans 330

[2009] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H9 of 2009

B e t w e e n -

THE STATE OF TASMANIA

Applicant

and

JOHN JOHNSTON

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2009, AT 9.28 AM

Copyright in the High Court of Australia

MR J.W.K. BURNSIDE, QC:   May it please the Court, I appear for the applicant.  (instructed by Director of Public Prosecutions (Tas))

MR P.W. TREE, SC:   May it please the Court, I appear with MR R.A. BROWNE,  for the respondent.  (instructed by FitzGerald & Browne)

CRENNAN J:   Yes, Mr Burnside.

MR BURNSIDE:  If the Court please, this case raises three questions of public importance. First, is whether police are under a common law duty to keep secret information they obtain in the course of their duties if disclosure of that information may prejudice an ongoing investigation. The significance of the question, of course, is that if the answer is yes, breach of that duty would bring into play the statutory offences concerning disclosure of confidential information. In the particular case, section 110 of the Criminal Code (Tas), but more generally similar questions arise under section 70 of the Crimes Act (Cth).

CRENNAN J:   Are there any authorities to which you wish to take us in terms of evidencing the fact that there is a common law duty?

MR BURNSIDE:   Your Honour, there are cases we have mentioned in the written outline, but there is surprisingly little authority on the point and we would say no authority directly on the point.  The existence of a common law duty of that general sort was referred to by Justice Nettle in Marks, especially at paragraphs 35 and 36, but the question did not arise in this way at all.  Likewise, Chief Justice Warren in Zierk.  Her Honour held that the common law may impose a duty of secrecy in particular factual circumstances, but again, the question did not arise in this context.

CRENNAN J:   Directly.

MR BURNSIDE:   We are not aware of any case in which the question arises in this precise form.  In other cases where it has been touched on, such as, for example, Kessing and Goreng-Goreng it seems to have been assumed without being argued.  If special leave is not granted in this case then the judgment below which, in our submission, was wrong will stand as the only authority directly on the point.

The second question which arises, in our submission, is whether statutory obligations of secrecy or confidentiality arising under what can generally be called statutory codes of conduct, are capable of imposing a duty of secrecy, which if breached, will engage the statutory provisions, such as section 110 of the Criminal Code (Tas) or section 70 of the Crimes Act (Cth).

His Honour below held that, whilst there may be a code of conduct which explicitly imposes a duty of secrecy, he said that that duty would result in disciplinary offences if breached, but he did not think that it was such a duty as would attract criminal sanctions in the event under section 110.

CRENNAN J:   That statutory code of conduct is an analogy and an imperfect one would be barristers’ rules and so on, would it not?  It is in relation to professional duties.

MR BURNSIDE:   Well, it might, but then the question would be in a particular case let it be supposed there is a barrister acting as a public servant and let it be supposed that the barrister does something which is inconsistent with his or her obligations of confidence.  Then a question would arise under section 70 of the Crimes Act (Cth), for example – a question would arise whether the breach was a breach of a duty by virtue of office or a breach of a duty which arose otherwise.  That is not a question which arises here because the respondent was the Commissioner of Police and there can be no question but that if he had an obligation of secrecy it was an obligation which arose by virtue of the statutory code of conduct, which operates.  One does not need to go too far beyond the facts for that question to arise and for it to be important.

KIEFEL J:   The obligation under each of section 42 and section 9, respectively subsections (4) and (7), is to maintain appropriate confidentiality.  How do you derive a duty that is capable of founding a criminal offence out of those words?

MR BURNSIDE:   It will depend on the particular facts of the case.  The question will be whether ‑ ‑ ‑

KIEFEL J:   When you say that, that is almost as if to say then that the section might create a duty, or it might not.

MR BURNSIDE:   Yes.  The question is whether it is capable of giving rise to a duty.  Now, it has to be remembered that this case comes up from an application for a stay in which the judge was obliged to take the Crown case at its highest.  If it came up on particular facts down, well that would be a different matter altogether.  But what his Honour’s finding has to stand for is this, that no matter what the circumstance of the disclosure there was, nevertheless, no breach of an obligation of confidentiality.

Now, in our submission, the statutory code of conduct is capable of giving rise to an obligation of secrecy which answers the description “duty to keep secret”, used in section 110 of the Criminal Code, although, it is true whether the obligation arises in particular circumstances will depend on the facts of that case.

BELL J:   Was not the trial judge’s conclusion that on the Crown case, taken at its highest, the prosecution was foredoomed to fail?

MR BURNSIDE:   Yes.

BELL J:   It is not as though he was viewing the matter in a vacuum, so he was looking at a circumstance in which accepting, on the Crown case, the Commissioner of Police and relevantly the Director‑General of the Department of Police and Emergency Services or however it is characterised, had reported the fact of the investigation to his responsible Minister in circumstances in which he had had a request concerning the subject matter and had also conveyed the like information to the Premier.  Now, it is in those circumstances that his Honour’s assessment of the issues – including the ultimate issue that this prosecution was one foredoomed to fail, was made surely?

MR BURNSIDE:   The facts that his Honour had to take into account were first, that the Premier did not know that he was the subject of an investigation; second, that the respondent as Commissioner of Police told the Premier of the fact of the investigation in circumstances where, on the Crown’s case at its highest, that disclosure would be inimical to the investigation which was on foot.

BELL J:   Can I just take up that latter part with you?  In some portions of your submissions it seems as though the premise is that in all circumstances a disclosure to a person who is the subject of an investigation is inimical to the investigation.  That seems to me a very large proposition.

MR BURNSIDE:   It is not intended to be as large as that, but just that in particular circumstances the time at which a suspect is told that an investigation is on foot may well have a bearing on whether or not a particular disclosure is a breach of a duty of secrecy.

BELL J:   But whether at common law or under the respective codes of conduct it is necessary to establish a duty?

MR BURNSIDE:  Yes, and, in our submission, on the question of the common law duty we say it arises as an incident of the more general duties which are widely recognised. His Honour below seemed to say, “Well, if there is not an explicit recognised freestanding duty of secrecy then section 110 has nothing to operate on”. In our submission, that is wrong. We particularised it by reference to the more general obligations of police officers and as being a necessary incident of it and that is what is found in a different context in Marks and in Zierk.

When the statutory duty is in question then one has to look at the content of the statutory obligation and then the question will arise in particular cases whether the obligation of confidentiality is engaged on the particular facts.  Of course, suspects generally have to know at some time that they are being investigated, unless the investigation goes nowhere.  But the question of timing is crucial and taking the Crown’s case at its highest, as his Honour had to, it is our submission that the premature disclosure to the Premier was a disclosure which breached his obligations of confidentiality arising under the Police Service Act.

CRENNAN J:   What is your third point of public importance, Mr Burnside?

MR BURNSIDE:  The third question is the question of the ability or entitlement of the Commissioner to authorise a disclosure, which is not otherwise appropriate and here, with respect, his Honour’s reasoning is not easy to follow. He did say that of course an authorised disclosure will not breach the Code. That is understandable. He said that the Commissioner would generally be the person who is ultimately capable of granting or withholding authority for particular disclosures. So much can be accepted. He went on to say that therefore, if the Commissioner discloses anything it must be with his own authority and, therefore, outside the reach of section 110.

KIEFEL J:   Perhaps it stands as no more than saying that there was no duty not to disclose and to authorise yourself is a strange concept.  It might be slightly artificial.

MR BURNSIDE:   It is, but that is the way his Honour dealt with it.  Now, in our submission, whether or not it is appropriate to disclose in particular circumstances will be a matter of objective judgment.  If a junior officer is authorised to disclose in circumstances where the disclosure was not appropriate, well then that would provide a good defence in any event, absent collusion.  However, if the person who has the power to authorise disclosure does so in circumstances where the disclosure is objectively inappropriate then, in our submission, it cannot be a defence that he had the legal authority to authorise others to make the disclosure.  So that is the third question that arises.

CRENNAN J:   I do not want to take you off your track, but at the application book, page 57, in the respondent’s summary of argument in the first paragraph there is a suggestion made that a:

concession that the disclosure by the respondent to the Police Minister was lawful.

I wanted to ask you firstly, whether you agreed that it was an apparent concession and whether that has an impact in relation to the second count?

MR BURNSIDE:   The answer is no and no and we dealt with it in paragraph 5 of the reply submissions at page 74.  We focused on the disclosure to the Premier because that was more plainly improper.  But it is interesting to see that in the judgment there was a reference to things said by the respondent when he was interviewed by police about these matters and what he said in relation to his telling the Police Minister was that he believed that other people understood their obligations, which carries with it the suggestion that he thought that telling them would not mean that the information got to the Premier.

But it is in one sense a side issue, because the primary case is that the obligation of secrecy arose in his capacity as a police officer and that obligation was breached.  He has a separate duty of confidentiality in his capacity as a member of the public service and it was in his capacity as Secretary of the Department and, therefore, a public servant, that he spoke to the Minister.  So it is interesting, but not really central to the case and would not change the content of any of the questions.

BELL J:   Nonetheless, you maintain that for the Director‑General of Police and Emergency Management to report to his Minister the state of an investigation in response to a ministerial inquiry was, in the circumstances, a breach of duty.

MR BURNSIDE:   It would be a breach of duty unless he coupled it with precautions to make sure that the information did not get through to the suspect, which in the circumstances of the case, looked fairly likely given that he is speaking to a Minister who may well speak to the Premier.

BELL J:   This notion that there is some presumption that it is a breach of duty for a police officer to draw to the attention of the suspect the fact that he or she is the subject of investigation, I must say seems to me difficult to make good.  One might think it is a standard investigative technique.

MR BURNSIDE:   It all depends on the timing, your Honour, because if a person knows prematurely that they are the subject of an investigation then it seems to be recognised in the authorities that that person might then collude with others who can help cover the story, dispose of evidence, any number of possibilities.

KIEFEL J:   But in saying that it is a question of timing really implies that it is a question of judgment.  It is really hard to get a duty out of a question of judgment and I think that is what his Honour meant when he referred to the discretionary aspect of the consideration.

MR BURNSIDE:   In our submission, it was not accurate to refer to it as a discretionary consideration.  It may involve evaluation and it may be that the ‑ ‑ ‑

KIEFEL J:   I took his Honour to mean that.

MR BURNSIDE:   Yes.  In our submission, if that is so then his Honour was still wrong because he had to take the Crown case at its highest.  Now, it could be that at trial a jury did not agree that it was premature to disclose these matters to the Premier.  On the other hand, the matter I mentioned earlier when the respondent said that he believed those he spoke to would understand their obligations, carries with it the inference that he thought that it was a premature disclosure.  But that is a matter which, in our submission, cannot be taken into account for present purposes because his Honour had to deal with this on the Crown case at its highest.

KIEFEL J:   But to say that it is a Crown case at its highest means that at its highest he might have been guilty of an error of judgment.  You have to make good the proposition that there was a duty at law.

MR BURNSIDE:   No, on the Crown case at its highest it may be that he plainly knew that the disclosure was inappropriate and that he, therefore, had an obligation to keep it confidential.

KIEFEL J:   So you get an offence by reference to his state of mind?

MR BURNSIDE:   No, if it was objectively unreasonable, then his state of mind would not matter.  It was objectively inappropriate.  But that is a question for the trial and, in our submission, given the various ways in which police investigations can take place it would be a surprising thing if there were never a duty to keep secret from a suspect the fact that the suspect was being investigated.  If that were not so, well then there would be no need for secret search warrants and all of the various other elements in the armoury of the police, by which they investigate facts before they tip their hand to the person under investigation.

KIEFEL J:   But the difficulty is though that there may clearly be situations where the person is subject to disciplinary proceedings, but that is

a long way from saying that there is a recognisable duty that gives rise to an offence under the criminal law.

MR BURNSIDE:   Well, your Honour, the same could be said in connection with the common law duty.  Yet in Zierk and in Marks it was accepted that in appropriate circumstances a common law duty would arise. Of course, it depends on the facts and it would depend on an evaluation of circumstances. Some cases will be clear and some not but, in our submission, his Honour was wrong to say that the codes of conduct cannot give rise to a duty which engages section 110. Unless there are other matters I can help with, those are our submissions.

CRENNAN J:   Thank you, Mr Burnside.  Yes, Mr Tree.

MR TREE:  Thank you, your Honours.  Your Honours, I wanted to commence by dealing with the authorisation question which is said to arise because we contend that that may assist your Honours in resolving this application for special leave because patently it raises no question of general importance that warrants a grant and yet it is one of the matters that would necessarily need to be considered by this Court in any appeal.

Now, we say that it does not arise or give rise to any questions of general importance because all that his Honour said was looking at the relevant Tasmanian legislation and the relevant police service manual that his Honour was of the view that the Commissioner could authorise himself to disclose information to, inter alia, the relevant Minister and the Premier.  Now, that necessarily, simply to state it in those terms indicates that it is necessarily a local consideration, the particular statute, the particular set of rules ‑ ‑ ‑

KIEFEL J:   Speaking for myself I do not think it is your strongest point and perhaps the difficulty with starting your submissions with this is that it may not be a stand alone point.  It may, properly understood, be no more than a reflection of his Honour’s conclusion that there was no relevant duty not to disclose.  The notion of authorising yourself just seems a little artificial, as I suggested to Mr Burnside.

MR TREE: It does. I accept that there is an element of solemn farce about standing at a mirror and authorising yourself to do something, although, of course, that is not necessarily the process that section 110 contemplates. It talks about the person to whom you are authorised to release the information or disclose the information. So, it looks at the relationship between the provider of information and the person to whom it is being provided, rather than some process.

KIEFEL J:   That might be a different question.  Speaking for myself I would be more interested to hear in relation to the common law.

MR TREE:   Yes, certainly, your Honour.  Your Honour, what we say in relation to that, and it was brought out strongly during the course of our friend’s submissions, is that necessarily this is a poor vehicle for the distillation of that point because of the particularly unusual and unique facts which underpin this.

You have – I was going to use the word “bizarre”, but of course in the modern world, I guess, very few things are bizarre nowadays.  But you have the most unusual scenario where you have someone who has provided police with information to assist in the course of an investigation into allegations that they raise who has, apparently it would seem, the reasonable inference from the relevant revelations in the newspaper, disclosed the existence of their statutory declaration, disclosed at least some of the substance of the contents of that statutory declaration, disclosed perhaps even the names of the persons who were conducting the investigation to the relevant reporter.

All of that is in the public domain.  You have not only that information in the public domain, but you have dramatic consequences that are occurring in Parliament involving Ministers misleading the House or at least being accused of doing so, so that this is, by no stretch of the imagination, the ordinary run‑of‑the‑mill disclosure by a police officer to a suspect.

Moreover, as was apparent from the course of my friend’s submissions, the particular circumstances of the disclosure by the Commissioner of Police, who wears the dual hats of being the Secretary of the relevant government department, is asked by his responsible Minister, in the context of reasonably anticipated questions being asked of him in the course of question time later that day, requests the provision of information – a most unusual set of circumstances that would not ordinarily prevail in a communication between suspect and the provider of information – requests information and then there is a provision of information in the form of a very formal way, by way of a question time brief and a briefing note.

All of these are necessarily particular facts which, even on my friend’s submissions this morning, are matters which are germane to whether or not the common law duty is, in fact, invoked in this particular set of circumstances.

CRENNAN J:   Is there any way we can tell from the papers precisely what was in the public domain?

MR TREE:   Not with a great degree of certainty.  We have placed before ‑ ‑ ‑

CRENNAN J:   Was the Premier’s identity in the public domain?

MR TREE:   Mr Lennon was the Premier at the time?

CRENNAN J:   Yes.

MR TREE:   Yes, of course, your Honour.

CRENNAN J:   But in the context of the allegations I mean, was that in the public domain?

MR TREE:   Not in the context of the Solicitor‑General allegations I do not think I can put that forward.  But in the context of the other allegation that formed part of Mr Burch’s statutory declaration, the inappropriate conduct in relation to the appointment of a magistrate, or the failure to appoint a magistrate, more precisely.

CRENNAN J:   That had been reported on, had it?

MR TREE:   Yes, there was a clear connection in relation to the Premier there.  So, although no doubt there is an interesting question to be decided some day by this Court as to what common law duties attach to a constable, the reality is this is not the right case for it because there are so many unusual and particularly unique facts which pertain to it.  They are directly relevant to the invocation of the duty on these particular facts.

But there is another point which we make in our written submissions which is that in any event, even if what I have just said is not accepted by your Honours, that the real nub of the question here is whether there was a stand alone common law duty sufficient to feed into section 110 of secrecy.

Now, I listened with interest to what your Honour Justice Kiefel said in relation to the transposition of the statutory duty of appropriate confidentiality into a duty of secrecy for the purpose of section 110, but, with the greatest respect, that also feeds or informs the scope of any common law duty because the common law duty is unlikely to be one of absolute secrecy. It is likely to be, we would say, cast in similar terms to that which is contained within the relevant statutes themselves, namely appropriate confidentiality.

So that in a sense one looks at the common law duty and then sees whether or not the way in which it is cast, the way in which it is expressed, is in a form which is susceptible of feeding section 110 with the duty, which then gives rise to potential criminal responsibility.

Now, what we say in relation to that is clearly there is no separate stand alone duty of secrecy on a constable in relation to information gathered during the course of an investigation.  What we say is that to the extent that there may be misconduct by a police officer in disclosing that information it arises by virtue of the breach of a separate duty, perhaps to investigate criminal offences.  I wanted to illustrate that by taking your Honours to page 46 of the application book where our friends have stated what they say is the special leave question.  This is paragraph 1.1 where your Honours will see it reads:

Are police officers under a common law duty to keep secret, information that they obtain in the course of their duties –

Now, I wanted to stop there for a moment to emphasise that that, of course, would be a stand alone separate duty of secrecy, which would apply to information obtained in the course of police officers’ duties.  But then look at how our friends phrased the question to make it more specific and, presumably, more defensible –

in circumstances where the disclosure of that information may prejudice an ongoing investigation?

What we say is that that is the example par excellence, where you have this recognised, clearly established duty on the police officers who undertake investigations, which if there is a breach of that by inappropriate disclosure, founds a breach of that duty.  But one does not then raise oneself up by the bootstraps and say, “Because that was a breach of the duty to investigate there necessarily was a stand alone duty, albeit derivative, to keep it secret”.

Now, the learned primary judge deals with this by reference to a number of simple illustrations during the course of his reasons and we respectfully submit that that is compelling, that you do not create a duty merely because a particular of the breach of another duty is this obligation of secrecy.  We say that that is really a complete answer to the proposition that is put forward by our friends.

Your Honours, I also wanted to spend just a few moments reminding your Honours of a question which I think the learned President raised and that is where does all of this leave the charge in relation to the Minister for Police ‑ ‑ ‑

CRENNAN J:   Second count.

MR TREE:   Yes, well in fact ‑ ‑ ‑

CRENNAN J:   I notice at application book 62 under paragraph 12 of your submissions, your second bullet point, you refer to this issue.  Mr Burnside has referred to paragraph 5 of his reply in answer, but what do you say on this issue?

MR TREE:   What we say is that there is no bright line between the first and second counts on the indictment and that seems to be what is assumed by our friends.  Can I invite your Honours to look at the indictment itself, the second count of the indictment - that is at page 3 of the papers - because although initially it refers to a disclosure to the Minister for Police it then goes on to refer to, presumably, by way of a further instance of criminal conduct, forwarding of that material to the Premier.  So that in fact the Premier is referred to in both counts of the indictment.

So that this is not a case where count two would be left stayed and count one would remain potentially viable for the purposes of a trial.  One has the most ungainly situation where presumably for – well, one has to say tactical reasons – because it is seen that the chances of prospects of special leave succeeding in relation to the disclosure of the Minister would be less, we have now halved one count of the indictment and it just makes it a particularly messy situation for this Court to be dealing with effectively a bifurcated indictment.  With the greatest respect that is a mess which this Court ought not willingly enter into.  It simply underlines the fact that this is not the right case. 

The other point we make in our submissions is that in any event the difference or the distinction to be drawn between the Minister and the Premier is just one of fact.  Now, my friends, in their submission, say well no it is not a question of factual grounds, but demonstratively it is.  The fact that the relevant Minister may not have been a suspect is just one matter of fact that distinguishes him from the Premier, although my friend says it was okay to explain it to the Minister, if you put appropriate safeguards to ensure that it did not go to the Premier.  So that there still is not any clear demarcation between the identity of the Minister and the Premier.

Your Honours, can I then turn to the question of statutory duty, which is perhaps a less significant aspect of our friend’s submissions and invite your Honours to consider the highly practical illustration which the learned primary judge gave to this, not by reference to section 110 of the Criminal Code, but by reference to section 115, which creates offences in relation to the failure to comply with duties attending to public officers.

His Honour made the point, which we say is a very cogent point to the interpretation of the two relevant provisions, that if section 110

potentially picks up a duty of confidentiality, either under the State Service Code of Conduct or the Police Code of Conduct, then there is no reason for distinguishing between that duty and duties to, for instance, be polite to people, to paraphrase the relevant duty under the State Service Code of Conduct.

So what we say is that his Honour’s reasoning is particularly cogent, but it simply renders the statutes unworkable to have duties which give rise to criminal liability being articulated in a code of conduct and then somehow or other magically transformed into criminal offences by virtue of section 110 or, as his Honour pointed out, section 115.

Your Honours, there is one final point that I wanted to raise and that is this. Although the common law duties’ question and, indeed, to an extent the statutory duties’ question might seem as though they have some question of significant importance for the public, the reality is that the recognition that there is either a common law duty or a stand alone statutory duty which then feeds into section 110 is not the last bulwark between police disclosing information willy‑nilly and not doing so because, of course, as you have seen, both public servants and in Tasmania police officers, are subject to a regulatory code which governs their behaviour and the circumstances in which they can release information.

This case is not about protecting that information because that is already done by the code.  This case is simply about elevating a failure to maintain appropriate confidentiality into a criminal offence.  Now, that is not, with the greatest respect, a matter of particular importance.  That is simply, if you like the icing on the cake as to what might be otherwise a breach of a code of conduct.  So that this case does not have that public importance component to it because the public is protected by the regulatory regimes which prevail, in relation to secrets anyway.  Those are our submissions, your Honours.

CRENNAN J:   Thank you.  Yes, Mr Burnside, anything in reply?

MR BURNSIDE:   Two matters.  Your Honour Justice Crennan asked how we find what was in the public domain.  It appears from application book 11 and 12 that the initial briefing note did not refer to the Solicitor‑General allegations.  The briefing note that was prepared for the Commissioner referred to two allegations, but did not identify the second of them.  It is clear that the appointment of a magistrate allegation had been in the public domain already.

CRENNAN J:   Yes.

MR BURNSIDE:   The revised briefing note revised by the respondent, which appears at application book 12, refers explicitly to the Solicitor‑General’s appointment allegation as being investigated and it would appear that that was the genesis of that matter first becoming public, but not until it had been communicated to the Premier.

The second matter is my learned friend says this is not a matter of general importance. Let it be supposed that the code of conduct has some force. In other words it is possible in circumstances to find a duty of confidentiality, a breach of which would be a disciplinary matter. In our submission that duty of secrecy, which can be found for the purposes of disciplinary proceedings, must also answer the description of a duty of secrecy referred to in section 110. There is no anomaly in the fact that something which is a disciplinary offence can also be a public offence, given the circumstance that the person involved holds a public office of importance and so on.

The third matter is the suggestion that there could be an offence of failing to be polite because the code of conduct requires politeness.  In our submission, that is best answered by the fact that under section 115 no such prosecution could be brought without the Attorney‑General’s permission and it is hard to imagine permission being given to such a prosecution.  If the Court pleases.

CRENNAN J:   Thank you, Mr Burnside.  We will leave the bench for a short period.

AT 10.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.07 AM:

CRENNAN J:   The Court is not persuaded that the applicant has sufficient prospects of success such as to warrant a grant of special leave to appeal.  Special leave is refused.

MR TREE:   Your Honour will note that in our submissions we did seek an order in relation to costs because of the unusual nature of this application, which I am instructed to press.

CRENNAN J:   Yes, we saw that, Mr Tree.  We are not inclined to accede to that application.

MR BURNSIDE:   If the Court pleases.

AT 10.07 AM THE MATTER WAS CONCLUDED