The Police Service Board v Morris (1984 - 1985) 56 CLR 397; Commissioner of Police v Justin (1991) 55 SASR 547, applied.

UNDERWOOD J At the relevant time the respondent was a superintendent of police and the applicant was a constable stationed in the Bureau of Criminal Intelligence. In the course of his duties on 29 July 1994, the respondent ordered the applicant to tell him the name of one of his informants. The applicant refused to do so and in result was charged with a breach of the Police Regulations 1974, reg47(1)(a) which relevantly provides:

"Any member or cadet who commits any of the following acts

or omissions is guilty of an offence and is liable on

summary conviction to a fine not exceeding 0.4 penalty unit:

(a) 'insubordination', that is to say if he

(i) refuses to carry out any lawful direction or order of

a senior officer."

2. The charge was determined in a court of petty sessions on 5 April 1994. It was found proved but dismissed under the Probation of Offenders Act 1973, s7(1). This motion seeks a review of the finding that the complaint was proved.

3. The question for resolution is whether the learned magistrate correctly held that it was lawful for the respondent to require the applicant to disclose the name of his informant.

4. Deputy Commissioner Richard McCreadie had complained to the Commissioner of Police that somebody had been examining his "departmental office telephone charge records" without his authority. The Commissioner of Police assigned the respondent to conduct an investigation. The respondent's job was to find out who had gained unauthorised access to the records and why. In the course of that investigation, the respondent came across some information in two police information sheets that appeared to him to have possible relevance to his inquiry.

5. Information sheets are forms on which police officers record sundry information as they learn it concerning criminals and crimes. All these sheets are collated and analysed. It may be that various pieces of intelligence from different sources, so recorded, can be put together and provide the police with fruitful material to combat crime. One of the two relevant information sheets had been compiled by the applicant and the other by another constable. The information sheet submitted by the applicant concerned the activities of a well known criminal and contained a line "Richard means a lot always talking to Richard". This intelligence had been supplied to the applicant by a person who had been an informer of his for a number of years. The evidence in the court below was that this informant would only give information to the applicant and would not discuss his information with anyone else. Other information then in the possession of the respondent raised the possibility that the Richard referred to by the informant was Deputy Commissioner Richard McCreadie and that by inference, there was some connection between him and the known criminal identified in the information sheet.

6. The information sheet submitted by the other constable referred to the same known criminal and contained information that there had been a telephone call to the known criminal's office by a man claiming to be Mr McCreadie. The respondent interviewed the other constable and then interviewed the applicant. By this time, the respondent had found out that a senior police officer had made the unauthorised examination of Deputy Commissioner Richard McCreadie's telephone call charge records. This officer told the respondent that his reasons for doing so included a "belief of a possible connection between the Deputy Commissioner and the person who was the subject of the two information sheets". The respondent told the learned magistrate in the court below that he considered it necessary to try to find out if there was such a connection and if there was, to find the reason for it.

7. I should interpolate here that on the material before me, there is no suggestion that at the end of the investigation it was shown that Deputy Commissioner Richard McCreadie had been involved in any improper conduct or associations.

8. The respondent interviewed the applicant three times about this matter. No direct order to disclose the identity of the applicant's informant was pursued until the last occasion. On the second occasion the applicant gave the following considered reasons for refusing to name his informant:

"Statement of G P CHAMBERS, Detective Constable No 1074.

Following a direction to disclose the source of information

in relation to certain aspects of a BCI probe, Probe

Deceive, and the advice that the information was required to

enable Superintendent WOOLLEY to assess how reliable the

informant was I would like to make the following

observations.

I have real concerns as to the safety of my informant should

the informant's name be released. I have no control over

where this information may be released to once having given

it under the direction to do so.

This matter conflicts with the Constable's oath that I have

sworn to protect life and property as I believe that should

I release this information then the informant would be in

danger of retribution for having trusted me with the

information in the first place.

The informant has been a reliable informant of mine for a

number of years and the informant gives me information on

the basis and understanding that at no time would I disclose

the informant's identity.

During the time that I have been dealing with this informant

I have always found the information to be of good quality.

The information is given purely to assist law enforcement

and is not given for reward.

A substantial amount of the information disclosed by this

informant has been of a drug related nature.

I have been protected by Section 72 of the Poisons Act 1971

from disclosing the name of my informant in both courts of

summary jurisdiction (and) in the Criminal Court.

In 20 years police service I have not been asked by any

court to disclose the identity of an informant.

If I were to disclose the name of this informant then this

source of information will be lost to me and the Department

forever.

Associated with this would be a flow-on effect that would

prejudice other informants giving information as their

identities would become known or available for general

publication.

I am aware from discussions with my source that this person

is not prepared to talk to any other police officer in

relation to these matters and the source has not authorised

me to disclose the source's identity.

I am at a loss to see how by revealing my source that this

would in any way assist in assessing that person's

reliability.

The source's record of past information stands by itself and

it is testimony for its veracity and accuracy.

The Admiralty Coding that I have placed on the relevant

Information Sheets accurately assesses the source's

reliability.

Out of genuine concern for the safety and welfare of my

informant I must respectfully decline to reveal the source

of my information.

Also influencing my decision is the fact that I will lose

all credibility when attempting to deal with any future

source of information.

A police officer is only as good as his sources of

information.

I have never had an informant suffer any retribution in the

past and do not intend to let that happen in the future."

9. On 29 July 1994 the following exchange took place between the applicant and the respondent:

"WOOLLEY For the furtherance of the investigation the

Commissioner and I are undertaking, assisted by the Director

of Public Prosecutions, the name of the person who told you

as reported on page 2 of 3 on the 4th of October 1993, that

'Richard means a lot always talking to Richard' is still

required for the purpose of this investigation. Are you

prepared to tell me the name of the person who told you

that?

CHAMBERS No, for the reasons outlined on a number of

occasions, I still hold those reasons, I'm not prepared to

divulge the name of that informant.

WOOLLEY Well you say you are not prepared to?

CHAMBERS No.

WOOLLEY Well I ask you tell me the name of the person who

told you 'Richard means a lot always talking to Richard'.

CHAMBERS I don't know how many times I've got to say it, but

I'm not prepared to give that name.

WOOLLEY Well I direct you to tell me the name of the person

who told you in the context of what is contained in this

information sheet, that 'Richard means a lot always talking

to Richard'.

CHAMBERS And I respectfully decline.

WOOLLEY Finally, I order you to tell me the name of the

informant whom you say in this information sheet said,

'Richard means a lot always talking to Richard'.

CHAMBERS And again I must respectfully decline."

10. The motion to review contains the following grounds:

"1 The Learned Magistrate erred in law by holding that

'whether disclosure is necessary is not to be determined by

the subordinate officer of whom the requirement is made'.

2 The Learned Magistrate erred in law by holding that 'the

direction given by the Respondent to the Applicant was a

lawful direction'.

3 The Learned Magistrate erred in law by failing to hold

that the informants rights were to be taken into account

when considering the lawfulness of the Respondents

direction.

4 The Learned Magistrate erred in law by holding the

informants identity was not protected by the common law and

non disclosure rule.

5 The Learned Magistrate erred in law in holding that the

complaint was proved by the Respondent."

11. Ground 5 is not a ground at all. Ground 1 is a reference to something the learned magistrate said with respect to the Police Standing Orders. The remaining grounds together amount to the proposition that error occurred in the learned magistrate holding that it was lawful for the respondent to order the applicant to disclose the name of his informant and consequently, the failure to obey that order amounted to insubordination and a breach of the regulation. Grounds 2, 3 and 4 of the motion to review assert that the respondent's order was unlawful because it was:

1 contrary to public policy;

2 contrary to Police Standing Orders;

3 contrary to the rights of the informant.

12. In both criminal and civil proceedings, it has long been established that police officers cannot be compelled to disclose the identity of their informants. See Marks v Beyfus (1890) 25 QBD 494; R v Lewes Justices: ex parte Secretary of State for Home Development (1973) AC 388; D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) AC 171. The privilege is absolute and will only be put to one side in criminal cases where it is established that not to do so will be detrimental to the proper conduct of the defence case. See Cain v Glass (No 2) (1985) 3 NSWLR 230. The rule against disclosure extends to inquiries and proceedings before statutory tribunals. See R v Lewes Justices: ex parte Secretary of State for Home Development (supra); Signorotto v Nicholson [1982] VicRp 40; (1982) VR 413.

13. All of this the learned magistrate correctly found to be the law. His Worship set out the following passage from Signorotto's case at 417:

"... there is a strong and long established rule of the

common law, based upon paramount considerations of public

policy, which at the very least requires that in any legal

proceedings or analogous inquisitorial proceedings a

policeman cannot be required, indeed cannot be permitted, to

divulge the identity of a paid police informer who has given

the policeman information received in his character as a

policeman and as part of his duties in upholding the law."

14. I accept the submission of counsel for the applicant, that "lawful question" as enacted in reg47(1)(a) has the meaning ascribed it in Crafter v Kelly (1941) SASR 237. In that case Angas Parsons J held at 242:

"The expression 'lawful question', in my view, connotes one

which calls for an answer according to law, one that the

witness is compellable to answering according to the

established usage of the law".

15. As Napier J pointed out in the same case at 243, "lawful question" could simply mean one that was permitted, ie, one that can be asked without infraction of the law. But in a statutory context of penal sanction for failure to answer a lawful question, the expression must mean a question to which the answer is legally compellable. Crafter v Kelly was referred to with approval by Fullagher J in Signorotto's case and the reasoning in the former case applied to the expression "without lawful excuse" in the latter. His Honour said at 417:

"In my view, the expression 'lawful excuse' in s 16(b) of

the Evidence Act 1958 is used in the sense of excuse

'supported by the law', and a person is permitted to refuse

to answer (and is thus not compellable to answer) where he

produces an excuse which the law recognises as a valid

excuse".

See also R v Travers (1958) SR(NSW) 85 at 107.

16. However, I do not accept counsel for the applicant's submission that Signorotto's case is indistinguishable from the present matter. It clearly is. The issue in Signorotto was whether the plaintiff "had lawful excuse" within the meaning of the Evidence Act 1958 (Vic), s16 for not disclosing the identity of his informant. Fullagar J held that he did have lawful excuse. The question was asked of the plaintiff while he was giving evidence to a board of inquiry. The relevant provisions of the Evidence Act applied to proceedings before a board of inquiry. At the time the question was asked, the proceedings were being held in camera. Fullagar J was apparently pressed with the submission that the common law rule did not apply if the hearing was in camera. His Honour traced the common law with respect to the privilege and its extension to hearings by boards of inquiry and held, at 422, that it was immaterial whether the hearing was in camera or in public. But, as Fullagar J pointed out in a passage in his judgment at 423, (cited by the learned magistrate in his reasons for judgment) the common law rule protecting disclosure of the identity of an informant applies to legal proceedings and not the executive:

"In my opinion the rule of the common law, WHICH OF COURSE

RELATES TO LEGAL PROCEEDINGS AND NOT TO ACTS OF THE

EXECUTIVE, is that the identity of a police informer may not

be disclosed in proceedings, except where the tribunal is of

the opinion that non-disclosure is calculated to lead to the

wrongful conviction in the proceedings of a person on trial

before the tribunal for an alleged crime. I am further of

opinion that the reference to 'lawful excuse' in s16 of the

Evidence Act operates to apply that rule in toto to any

board of enquiry, whether or not conducted in camera and

irrespective of what the scope or apparent importance of the

board's enquiry may be, and whether or not the application

of the statutorily available excuse may in the case of a

particular executive enquiry operate to abort it." (Emphasis

added.)

17. In the present matter the relevant question was asked by a senior police officer of a junior police officer in the course of the former conducting an investigation into a complaint that had been made. It was not asked in the course of any legal proceedings.

18. The Police Service Board v Morris (1984 - [1985] HCA 9; 1985) 156 CLR 397 concerned the refusal of a police officer to answer questions put to him by a senior officer investigating a complaint against that police officer for misconduct. The refusal to answer was based on a claim of privilege, viz, an answer might incriminate the police officer. The refusal to answer led to a hearing before a police disciplinary board and the questions for the High Court were whether there had been disobedience to a lawful order and, if so, whether the privilege against self incrimination had been excluded by the relevant legislation.

19. The privilege against self-incrimination is well known and well established. However, unlike the privilege attaching to disclosure of an informant's identity, privilege against self-incrimination extends to non judicial proceedings as well as judicial proceedings. In Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 Mason J (as he then was) Wilson and Dawson JJ said at 309:

"We reject the submission that the privilege is merely a

rule of evidence applicable in judicial proceedings and that

it cannot be claimed in an executive inquiry. We adhere to

the conclusion expressed in Pyneboard (reported in the same

volume at 328) that the privilege against self-incrimination

is inherently capable of applying in non-judicial

proceedings."

20. In Morris, the relevant statute provided that, "Every member of the force who is guilty of a breach of the Regulations made under this Act shall be guilty of an offence" and the relevant regulation provided, "No member of the force shall disobey ... any lawful order written or otherwise." By a 4 - 1 majority the court held that the statutory provisions impliedly excluded the well established common law privilege. Gibbs J said at 404:

"The regulation applies to orders of a variety of kinds and

in many if not most cases in which the disobedience of a

lawful order is alleged, the privilege against giving

answers which might tend to incriminate or expose to penalty

could not have any possible relevance. Starke J (a member

of the court from which the appeal was brought) regarded the

fact that the words of the regulation are of the widest

possible description and apply to lawful orders of every

kind as indicating that it is improbable that the

legislature ever turned its mind to the principle of

self-incrimination when framing its provisions. With great

respect I would regard the matter differently; it seems to

me that the character of the regulation, which is primarily

designed to secure the obedience to orders rather than the

compel the answering of questions, indicates both that the

application of the privilege would be inappropriate and that

the obligation to obey lawful orders is not intended to be

subject to any unexpressed qualification."

Wilson and Dawson JJ took the same view at 409 - 410 as did Brennan J at 412. Murphy J was in dissent.

21. No relevant distinction can be drawn between the words of the legislation in Morris and the Police Regulations (Tas), reg47(1)(a) and the reasoning of the majority in that case is applicable to the present matter. Morris was applied by the Full Court of South Australia in Commissioner of Police v Justin (1991) 55 SASR 547.

22. The privilege that protects a police informer's identity was not available to the applicant because the order to answer was not given in the course of a legal proceeding and because it has been excluded by the terms of the Police Regulations, reg47(1)(a).

23. Counsel for the applicant submitted in the court below and on this appeal, that the respondent's order was contrary to Standing Orders and thus, not lawful. Authority for the Police Commissioner to make Standing Orders is the Police Regulations, reg9(2)(a). Tendered in evidence on the hearing of the complaint was Standing Order 303.101:

"303.101 CONFIDENTIALITY: (1) Members shall not talk

about or disclose to anyone the source of their information

or the identity of their informants, nor shall they state

names of informants in reports. However, it may be

necessary for them in the interests of justice or for other

good reasons to disclose the names of informants to a senior

officer.

(2) Should a member be asked in court to disclose the

identity of an informant, he shall respectfully decline on

the ground that it would be contrary to policy and not in

the interests of public safety. He shall, however, obey any

decision of the court."

24. The meaning of this order is a little difficult to ascertain. "Informants" are not defined at least, not in the material tendered in evidence in the court below. Prima facie, all persons who give information to the police, including complainants and witnesses are informants. Read literally, the first part of Standing Order 303.101 is a prohibition against every police officer disclosing to anyone the source of any information received in the course of duty. I doubt if that was intended. However, it is unnecessary to consider the extent of the meaning of the first part of Order 303.101 because whatever it means, there is a proviso relating to disclosure of names of informants. The proviso is that it may be necessary either "in the interests of justice" or "for other good reasons" (sic) to disclose the name of an informant to a senior officer. Clearly, in my view, a perfectly good reason for the applicant to disclose the name of his informant is that he has been ordered to do just that by a superintendent of police. Thus, the respondent's order was lawful in the sense that compliance with it would not be a breach of Standing Order 303.101.

25. A great deal of time was occupied in the court below with argument and evidence about whether it was in the interests of justice to disclose the name of the informant. The learned magistrate said with respect to that:

"I agree with the complainant's submission that '... whether

disclosure is necessary is not to be determined by the

subordinate officer of whom the requirement is made'."

That observation led to ground 1 of the motion to review. There is no substance in this ground as was ultimately conceded by counsel for the applicant on the hearing of the motion. Whether disclosure of the identity of an informant would constitute a breach of Standing Order 303.101 or whether such disclosure would be "in the interests of justice", would be a matter for determination by the tribunal of fact charged with the task of determining if there had been a breach of the Standing Order.

26. I found this argument a little difficult to follow. As I understand it, counsel for the applicant's submission was to the effect that the informant would be able to obtain an order from this Court restraining the respondent from ordering the applicant to disclose his name. Thus, it was submitted the respondent's order to do so was not lawful. Counsel for the applicant relied upon G v Day (1982) 1 NSWLR 24. In that case, an informant to the Australian Securities Commission gave confidential information to officers of the Commission and sought an injunction to prevent a newspaper disclosing his identity and the information. The injunction was granted. Yeldam J applied the principles applicable to the protection of trade secrets learned by employees (Lord Ashburton v Pape (1913) 2 Ch 469) and to the protection of the national interests (Commonwealth of Australia v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 32 ALR 485). Assuming, but certainly not deciding, that G v Day is authority for the proposition that this Court COULD grant the informant an injunction preventing the media from disclosing his identity, there is no reason to suppose that an injunction would be granted restraining the respondent, who was the applicant's senior officer in the police force, from demanding an answer to his question. In any event, the short answer to the applicant's submission on this point is that until an injunction is granted, the order to disclose the name of the informant was perfectly lawful.

27. None of the grounds in the motion to review are made out and it is dismissed.