Bannister & Ors v D-G Department of Corrective Services [2002] QSC 469

[1] The applicants are three corrective services officers who were facing charges of assault occasioning bodily harm in relation to an alleged assault of an ex-prisoner outside a night-club on 15 March 2002. At the time of the hearing of their application in this court, committal proceedings were part heard. I have since been informed that all three have been committed for trial on charges of common assault. Each has been asked to respond (or "show cause") to an investigation report by the Ethical Standards Unit (the ESU) of the Department of Corrective Services into the same incident. Mr Spedding has also been charged with another offence involving an alleged assault upon other corrective services officers, to one of whom he is said to have made some admissions in relation to the first assault incident. Accordingly, he has also been asked to respond to the second allegation of assault. Here, the applicants seek an order that the respondent be restrained from proceeding with disciplinary action against them in respect of the alleged assault of the ex-prisoner until criminal proceedings against them have been concluded.

[2] It is necessary to set out the history of the matter in a little more detail. In March 2002, the ESU was advised of the allegations in relation to the assault of the ex-prisoner, but refrained from taking further action pending the police investigation. On 28 May 2002, Criminal Investigation Branch officers invited all three applicants to be interviewed in relation to the criminal charges. Each declined to be interviewed, although it is said in the Queensland Police Service court brief that "all three defendants have supplied police with written statements in relation to the matter". Nothing in the affidavits relied on here deals with those written statements, and their content, if indeed they exist, is not known.

[3] The ESU investigation then proceeded. A number of witnesses was interviewed in its course. Mr McGhie and Mr Bannister, although declining to be interviewed, provided statements. Mr McGhie's statement gives an account of his contact with the ex-prisoner at the night-club where he encountered him, including a version of the incident outside the night-club in which he portrays the ex-prisoner as the aggressor in relation to Mr Spedding, and describes having himself kicked the

ex-prisoner in self-defence. Mr Bannister also gives an account of contact with the ex-prisoner inside the night-club and of the events outside, in which he describes giving assistance to restrain the ex-prisoner, who, he says, had assaulted Mr Spedding.

[4] The ESU report was completed in June 2002. It set out the evidence gathered, and included a finding on the balance of probabilities that the three applicants had attacked the ex-prisoner, causing him bodily harm, and that their conduct constituted misconduct as defined in s 87 of the Public Service Act 1996.

[5] On 5 July 2002 each of the applicants was advised by Ms Davidson, Executive Director Custodial Operations, that there were grounds for possible disciplinary action against him in respect of the alleged attack, and, in Mr Spedding's case , in respect of the alleged assault of corrective services officers. In each case the material under consideration (the investigation report and the accompanying memorandum) was identified, and each applicant was requested to provide in writing within 14 days any further submissions to

"allow the department to consider all of the relevant facts and any pertinent circumstances which may alter the outcome of this process."

[6] The time period for provision of submissions was, in the event, extended to 20 September 2002. In that period, Mr Spedding forwarded a response in which he addressed the witness statements obtained by the ESU and gave an account of the incident with the ex-prisoner consistent with his having acted in self-defence. The other applicants have not responded to the "show cause" notices sent to them. Attempts by all three applicants to secure the intervention of the Queensland Industrial Relations Commission and the Public Service Commissioner have failed.

[7] Mr McGhie has been suspended from duty on full pay since shortly after the alleged assault. Mr Spedding and Mr Bannister remain at work, but on rosters designed to ensure that they are not in contact with inmates or each other.

[8] Part 6 of the Public Service Act 1996 deals with disciplinary action against public service officers. In the present case the grounds for discipline relied on by the respondent are misconduct (s 87(1)(b)) and contravention of the Department of Corrective Services code of conduct (s 87(1)(f)). Section 88 provides a range of powers, from termination of employment, through penalties such as a fine, to reprimand. Section 90, headed "Procedure for Disciplinary Action", requires only that the employing authority "comply with the Act, any relevant directive of the commissioner, and the principles of natural justice".

[9] Counsel for the applicants, Mr Martin SC, accepted that there was no entitlement as of right to a restraining order; rather, what was entailed was an exercise of discretion taking account of all relevant factors. An applicant who seeks to have the court exercise its discretion in his favour must show a real prospect of substantial prejudice.[1]

[10] There is a substantial body of authority dealing with applications for stay of civil proceedings pending determination of criminal charges. Generally speaking, courts have been disinclined to preclude any plaintiff from having his action tried by reason of criminal charges pending against the defendant, but there is, of course, a balancing exercise involved. In McMahon v Gould[2] Wootten J set out a series of guidelines relevant to such cases;

"(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 10);

(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);

(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson v Bhetcha at 905);

(d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) The court's task of one of "the balancing of justice between the parties" (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905);

(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905);

(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's right of silence", and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904).... ;

(h) However, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904-5).

(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905);

(j) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings (ibid at 905);

(ii) the proximity of the criminal hearing (ibid at 905);

(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid at 905)

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton);

(v) whether the defendant has already disclosed his defence to the allegations (Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 736);

(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735-6);

(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;

(l) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed (Beecee Group v Barton).

Those guidelines have been followed on many occasions[3].

[11] On the McMahon v Gould guidelines, it does not seem that the loss of the right to silence could of itself warrant intervention. Mr Martin argued, however, that the approach was different in relation where disciplinary action was involved. He relied heavily on this dictum of McHugh JA in Herron v McGregor[4]: "No doubt it is only proper that, while criminal proceedings are pending, disciplinary proceedings should not be brought on for hearing". It is to be noted that McHugh JA was there dealing with the explanation advanced for delay in disciplinary proceedings where it was argued that that delay was oppressive. He went on to say that the Medical Board in that case could have taken some steps such as suspension of a practitioner while criminal proceedings were pending, without proceeding to a full hearing.

[12] In Edelsten v Richmond[5] Hope JA summarised those principles which could be gleaned from authority as to protection of a right to silence where inquiries or disciplinary proceedings were on foot. He referred first to a line of authority for the proposition that an individual should not be compelled to give self-incriminating answers where criminal proceedings were outstanding. Next he considered the situation where no coercive power existed, referring to views that it was undesirable that disciplinary proceedings should be dealt with while criminal proceedings were pending, and the "possibly stronger" view of McHugh JA as to the propriety of desisting from disciplinary proceedings. He noted that the latter view did not appear to have been based on any power to compel witnesses to give incriminating answers. Notwithstanding, his Honour observed, the comment of McHugh JA did not deny the existence of a discretion; which involved:

"a balancing of the public interest in the investigation of the complaint with a public interest in the observance of the right to silence. This involves among other things a consideration of the nature and gravity of the complaint and of the criminal charge, and of the circumstance that while the medical practitioner cannot be required to give a self-incriminating answer, he may be embarrassed in his defence to the complaint if he does not do so, and, if he does give evidence, he may be prejudiced in relation to the criminal proceedings."[6]

The right to silence and privilege against self-incrimination

[13] At the heart of Mr Martin's submissions was the need to preserve the applicants' right to silence. It was not suggested that there was any real risk of prejudice to the criminal trials by way of possible fabrication of evidence by prosecution witnesses, or interference with defence witnesses; nor was it likely that an internal disciplinary hearing would lead to any publicity capable of affecting any criminal trial. Rather, Mr Martin said, at issue was the applicants' entitlement to preservation of their right to silence, and their privilege against self-incrimination; the status of which as a right was, he submitted, made clear by the decision of the High Court in Reid v Howard[7]. But although that decision reinforces the importance of the privilege, it is concerned with its preservation against abrogation by court order. As is there observed_,_ "The privilege against self-incrimination may be abridged by statute or waived"[8]. What is contemplated in the present case is that the applicants make for themselves the decision as to whether they will waive the privilege by choosing to offer explanations.

[14] The right to silence is, of course, of broader compass than the privilege against

self-incrimination; it is an entitlement to decline to answer questions in a criminal investigation or proceeding regardless of whether the answers to them would or would not have a tendency to incriminate. Inevitably, any response by the applicants to the disciplinary charges entails surrender of the right, at least to the extent of the response. It is also possible that the applicants in responding to the allegations in the disciplinary proceedings will find it necessary to forfeit not only their right to silence, but also, for the purposes of the response, their privilege against self-incrimination. Although it is not obvious that one would seek to answer a disciplinary charge by providing incriminating material, it is not inconceivable that the applicants might choose, for example, to admit some aspects of the alleged misconduct while offering a mitigating explanation.

The factors relevant to the exercise of discretion here

[15] Notwithstanding the respondent's assurances of confidentiality, I accept that there are prospects of disadvantage to the applicants in making statements about the events. The police know of the investigation, and there is a possibility that the respondent's files in relation to the matter, including any statements by the applicants, will be sought on subpoena. Although one would anticipate that any confessional parts of their statements would be excluded under s 10 of the Criminal Law Amendment Act 1894 or in the exercise of discretion, there remains the distinct possibility of their being used to advance the investigative process.

[16] In McMahon v Gould Wootten J considered the reasons for preserving the right to silence, listing:

"Unfair pressure on a suspect in custody; the discouragement of improper police methods; the inducement of unreliable evidence; the absence of satisfactory methods of recording statements; the lack of time for reflection or of opportunity to take legal advice; the abhorrence of forcing a man to convict himself ... and the maintenance of dignity and humanity in criminal trials ... because of the possibility that an innocent man forced into the box may give an impression of guilt through being stupid, slow, overawed or simply nervous, he should have the choice of whether he gives evidence or not, without the risk of adverse comment."[9]

Of those reasons, it is difficult to identify any which apply here, when it is not proposed that the applicants be interviewed or be required to answer any particular questions, let alone give evidence on oath. Wootten J also nominated some results of the exercise of the right to silence which could not be regarded as legitimate reasons for maintaining its primacy:

"These include the opportunity it may give the accused to remain silent til the end of the evidence against him at the trial, and then produce a fabricated story perfectly tailored to meet that evidence. They include the possibility of depriving the prosecution of any opportunity to check the accused's story and obtain evidence to refute it before the trial is over."

[17] Thus the prospect of the applicants' versions in the disciplinary process being checked and evidence obtained to refute them should not, if Wootten J's view is to be accepted, excite the concern of the court. But it is conceivable that what is contained in the statements may enable the prosecuting authorities to embark on a new line of inquiry. The possibility of use against the applicants, on their trial, of evidence derived from their statements in the disciplinary proceedings is a proper consideration in the exercise of the discretion.

[18] On the other hand, it is of considerable significance, firstly, that the applicants retain the choice as to whether to respond at all; and secondly, that if they do respond they may do so as they see fit. The respondent has not sought to exercise any control over the matters to be addressed by, for example, requiring answers to specific questions. The applicants are in a position therefore, to frame their answers as they will.

[19] In Cameron's Unit Services v Whelpton[10] Wilcox J considered the position of an accused person who had to choose between mounting a defence to a civil action and maintaining his right of silence in relation to criminal proceedings:

"The "right of silence" is a right which a person has in relation to present or anticipated criminal proceedings. As a matter of everyday experience, suspects or accused persons waive the right by giving an explanation of their conduct during the course of interrogation by police or other investigating authorities or in evidence at their trial. No doubt the right is often waived incautiously or through ignorance, but it is also deliberately waived by informed persons who take the view that waiver will best serve their interests overall. The conflicts of interest which give rise to waiver already exist; the law does not step in to prevent those conflicts or to deny the ability to waive the right. The existence of a civil action which an accused person may wish to defend provides simply another example of a conflict of interest between maintaining silence and disclosing the substance of the defence in the criminal proceedings. I see no basis for the view that the court should intervene to relieve against this particular conflict, when it does not relieve against others. "

[20] As Wilcox J points out in Cameron's Unit Services, while there may be a conflict of interest - between providing an adequate answer to the disciplinary charges and maintaining silence for the purpose of the criminal charges - such conflicts often arise; the choice as to how to resolve the conflict here is left with the applicants.

[21] As to the submissions based on the dicta in Herron v McGregor, it is to be noted that in the present circumstances there is no suggestion of any formal hearing; the applicants are simply invited to respond by way of submission to the investigative report. That is, in my view, some way from what was under discussion in Herron v McGregor: a hearing, on complaint of misconduct, conducted in a disciplinary tribunal taking evidence on oath. And it is possible, I think, to read too much into a comment made in the course of canvassing competing arguments.

[22] The criminal charges which the applicants face, while not trivial, are by no means among the more serious in the criminal calendar. Although Mr Martin says that the respondent has suggested no greater disadvantage to it from the suspension of the disciplinary proceedings than "operational difficulties" (in that two officers are unavailable for a full range of duties while the third is on full pay but performing no duties) there is, I think, a greater concern: the importance of the disciplinary proceedings themselves in maintaining "integrity and appropriate standards of conduct for public service employees"[11]. Expeditious resolution of the issue of misconduct and the associated question of the applicants' suitability as corrective services officers is inherently desirable. It is not merely a matter of administrative convenience.

[23] Finally, there is a good deal of force in the respondent's point that the applicants have not to date exercised their right to silence, each having provided written material in response to the disciplinary charges. While I accept entirely Mr Martin's submission that that step does not amount to some permanent waiver of privilege against self-incrimination, the fact that each applicant has already offered what seems to be a fairly full account of events must necessarily bear on the potential for prejudice from further submissions (if, indeed, any are needed). If it were likely to be of benefit to the prosecution to have a version from the applicants in advance of trial, that benefit is already available.

[24] There is no significant risk of prejudice to the applicants' criminal trial from the disciplinary proceedings going forward. That the applicants must choose whether to give up their right to silence by responding, and possibly whether to waive privilege, with the disadvantage that may flow from doing so, does not, in all the circumstances I have set out, warrant the exercise of discretion in their favour.

[1] Black & White Cab Co. Pty Limited [1984] 2 Qd R 484 at 487; Dwyer v National Companies and Securities Commission & Ors (1988) 13 ACLR 716.

[2] (1982) 7 ACLR 202 at 206.

[3] See eg. Black & White Cab Co Pty Limited [1984] 2 Qd R 484; Cameron's Unit Services v Whelpton [1984] FCA 406; (1984) 4 FCR 428; Federal Commissioner of Taxation v Ahern (1986) 17 ATR 535; Australian Securities Commission v Kavanagh (1993) 12 ACSR 69.

[4] (1986) 6 NSWLR 246 at 266.

[5] (1987) 11 NSWLR 51 at 58-59.

[7] (1995) 184 CLR 1

[9] McMahon v Gould (1982) 7 ACLR 202 at 207-208.

[10] [1984] FCA 406; (1984) 4 FCR 428 at p 434.

[11] S 4 Public Service Act 1996; see also McManus v Scott-Charlton [1996] 148 ALR 625 at 632.