Relevant cases concerning police officers relied on by the Commissioner
95In Travers the appellant, a police officer, was suspected of criminal offence, taking a bribe. Superintendent Clifton ordered him to furnish a report. Section 14 of the Police Regulation Act (1899-1955) prescribed that any member of the police force who refused to obey any lawful order, or is guilty of any other misconduct or neglect, shall be guilty of an offence. The appellant furnished a report which was tendered in evidence against him in criminal proceedings. He was convicted. It was argued on appeal that the report was wrongly admitted because it was not a voluntary confession since he was obliged to answe the questions asked of him.
96A case was stated to the Court of Criminal Appeal. The relevant question for present purposes, to which the Court answered yes, was:
Whether the report made by the appellant to Superintendent Clifton in the circumstances in which it was obtained, is admissible in evidence in this appeal in the case for the respondent?
97The appellant argued that any order that might otherwise be a lawful order would become unlawful if it required an answer which might deprive a person of the common law privilege against self-incrimination. The Court, Street CJ, Owen and Manning JJ, rejected the argument in the following terms at 106-107:
The answer to this contention lies in the fact that the law requires that a member of the police force shall obey a lawful order. It is not to the point to suggest that the order may become unlawful because in answering it the person to whom it is addressed might incriminate himself. We think that in requiring the answer to be given it is necessarily intended, in the absence of any indication to the contrary, that any right which the person addressed might have had to refrain from incriminating himself should be taken away. Moreover, the submission confuses the notion that a person may excuse himself from what would otherwise be a disobedience to an order which he may decline to answer and the lawfulness of the order itself. The lawfulness of the order cannot be judged according to the nature of the answer given. If the answer would incriminate the person addressed, it may possibly be that in some circumstances he might properly decline to answer but no such question arises in this case.
The appellant did in fact answer without protest. We think the order was a perfectly lawful one and the contention made on behalf of the appellant cannot be sustained.
Accordingly, we are of opinion that the report made by the appellant to Superintendent Clifton on the occasion in question was properly admitted in evidence on the appeal.
[Emphasis added.]
98Although the first italicised portion provides some support for the Commissioner's contention that the Court found that the privilege against self-incrimination was abrogated by the general words of the statute, the second italicised portion makes clear that the Court expressly reserved the question whether he might not have objected to providing the report at the time on the ground that his answer might incriminate him. Accordingly the question that falls for determination in this case was not decided by Travers.
99The Court in Travers also emphasised that the privilege against self-incrimination is separate from the rule excluding involuntary confessions, although the privilege and the rule frequently arise for consideration in the same context. The distinction was explained in the following terms at 105:
In our view the law is correctly stated in Wigmore on Evidence 3rd ed (1940), Vol 8, par. 2266 at p 387. The author points out that the rule excluding untrustworthy confessions and the rule giving a privilege against compulsory testimonial self-incrimination are some times not kept plainly apart. He goes on to say that the history of the two principles is wide apart, differing by one hundred years in origin and derived through separate lines of precedents. He adds that the privilege, fully established by 1680, had sufficed for both classes of cases, there would have been no need in 1780 for creating the distinct rule about confessions.
The privilege granted to any person to decline to answer incriminative questions is no more than the grant by the person concerned, of a right. . .
If a person rightly claims the privilege but is nonetheless compelled to answer, his answers are not admissible in any other proceedings because his right to silence has been infringed. Kempley v The King, [1944] A.L.R at 253 per Starke J.
100The Commissioner also relied on Commissioner of Police v Justin, a decision of the Full Court of South Australia. This case bears some factual similarities to the instant case. Senior Constable First Grade Justin was ordered to answer questions by Inspector Lusty who was investigating certain allegations against Justin in relation to which criminal charges were likely to be laid. After Justin declined to answer a number of such questions, Inspector Lusty later purported to commence a further interview with Justin in relation to disciplinary matters rather than criminal proceedings. Justin refused to answer questions during this interview on the basis that matters that were likely to form the subject of criminal charges were involved.
101Regulation 27 of the Police Regulations 1982 (SA) made it an offence for an employee of the Police Force to disobey any lawful order given to him by a member of the Police Force senior to him. The question arose whether a direction by a superior officer to answer questions was a lawful order requiring obedience under that regulation notwithstanding that the answers to the questions might tend to incriminate the officer being questioned in relation to criminal offences alleged to have been committed in relation to his duties as a police officer.
102The Police Disciplinary Tribunal pursuant to s 43 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) stated a case to the Full Court of the Supreme Court in South Australia, which held that the wording of the regulation had the effect of excluding the common law privilege against self-incrimination. A direction to answer was a lawful order notwithstanding that the answer might tend to incriminate. The Court purported to apply Morris and found that there was no distinction between a tendency to incriminate in respect of a disciplinary offence and a tendency to incriminate in respect of a criminal offence.
103The questions relevant to the instant case that were referred to the Court were answered as follows:
Q1: Did the employee have a common law right to refuse to answer questions the subject of charges before the Tribunal?
A: The common law right is excluded in its application to the questions the subject of the charges before the Tribunal, by the provisions of reg 27(1) of the Police Regulations.
Q2: Is the Tribunal bound by the decision in Police Service Board v Morris and, if yes, to what extent?
A: Yes. The effect of Public Service Board v Morris in its application to the present case is that the common law right to refuse to answer questions on the ground of self-incrimination is excluded in relation to the questions which are the subject of the charges before the Tribunal.
104The difficulty with Commissioner of Police v Justin is that although the Court purported to apply Morris, Morris did not decide the question that arose in Commissioner of Police v Justin. Whether the privilege against self-incrimination, in the sense of privilege against exposure to criminal prosecution, was excluded by the statute did not fall for determination in Morris. The only relevant privilege that arose in Morris was the privilege against exposure to civil penalty. As the cases referred to above illustrate, this is the way Morris has been understood and referred to by the High Court in subsequent cases.
105Moreover it does not appear from the reasons in Commissioner of Police v Justin that the Court appreciated that it was extending what was decided in Morris by applying what the High Court decided with respect to the abrogation of the privilege against exposure to civil penalty to the privilege against self-incrimination, of the privilege against exposure to criminal prosecution. For these reasons I do not consider Commissioner of Police v Justin to be persuasive and I decline to follow it.
106The Commissioner also relied on Chambers v Woolley (1996) 6 Tas R 41, a decision of Underwood J of the Tasmanian Supreme Court. Underwood J referred to Morris as having decided that the relevant statute excluded the privilege against self-incrimination and referred to Commissioner of Police v Justin. It must be assumed, having regard to what was decided in Morris, that his Honour was using the term "privilege against self-incrimination" as either synonymous with, or including, "privilege against exposure to a civil penalty". In any event, these statements were obiter since the case concerned whether a police officer was obliged to disclose the name of an informant and no question of self-incrimination arose.
107The Commissioner also referred to Anderson v Sullivan (1997) 78 FCR 380 in which Finn J decided that the Commissioner of the Australian Federal Police could direct a member of the force to provide a urine sample in circumstances of reasonable suspicion of drug use. As his Honour observed at 396, the issue to be determined in that case was whether there was power to give such a direction, as opposed to Morris and Commissioner of Police v Justin where the issue was whether there was a lawful excuse for disobeying an otherwise lawful direction. Accordingly, the following observations at 395-396 are obiter:
It is not open to question that, both under the AFP (Discipline) Regulations, reg 5(1) and at common law, a member of the AFP is required to obey a lawful direction. Equally it is clear, notwithstanding counsel for the applicant's valiant argument to the contrary, that a regulation of the type found in reg 5 does not admit of a refusal to comply with a direction on the ground of possible self-incrimination: see eg Police Service Board v Morris, above; Commissioner of Police v Justin (1991) 55 SASR 547; see also Chambers v Woolley (1996) 6 Tas R 41.
108That the effect of the privilege against self-incrimination was not considered by his Honour appears in the following statement at 397:
I should, perhaps, add to the above that, for the reasons I earlier gave in relation to reg 5, I take no account for present purposes of that freedom embodied in the privilege against self-incrimination.