Police Service Board v Morris & Martin

The relevant facts are not in contest. On 15 December 1977 the respondents had been on a tour of duty in a police car in the Fitzroy area. They had submitted, as they were required to do, mobile patrol sheets or running sheets which were supposed to record events that occurred during the performance of their duties. The police authorities suspected that some entries in these running sheets were incorrect. For one thing, the information on the sheets did not correspond with information on tapes recorded by the police radio centre, according to which the respondents' police car had been called on numerous occasions over a period of four hours but did not respond to the calls. Complaints having been made against the respondents, Inspector Holliday interviewed Sergeant Martin on 14 March 1978 and Senior Constable Morris on 21 March 1978. In each case Inspector Holliday informed the respondent that he intended to question him in relation to the performance of his duties on the afternoon of 15 December and that the matters to which the questions related were of an administrative or disciplinary nature and did not involve any criminal charges. Each respondent asserted a right to refuse to answer questions and did not answer certain of them, although Inspector Holliday required him to do so. It is unnecessary to detail the interviews at length, but two examples may be given to illustrate the nature of the questions asked. Inspector Holliday, after referring to the transcript of the tapes of the police radio centre, said to Sergeant Martin:

Between 1816 hours and 2211 hours on that day the car that you were in charge of was called on numerous occasions and the operator received no answer covering a period of time of approximately four hours. What do you say in answer to that? Sergeant Martin replied: On my advice from the Police Association I have nothing further to say. Later Inspector Holliday said: According to your duty return during your tour of duty that afternoon on 15 December last you have indicated that at 1755 hours you checked the Gasometer Hotel in Alexander Parade, Collingwood, and spoke to the licensee Mr. Kerscher. Is that correct? Sergeant Martin replied: I am not going to answer your questions. Similar questions were put to Senior Constable Morris and he too did not answer them.

Regulation 95A(7) of the Police Regulations (which was then in force but which has now been replaced by reg. 402(g) of the Police Regulations 1979 Vict.) provided inter alia that "no member of the Force shall - (7) disobey any lawful order written or otherwise". It was not contested that the respondents disobeyed the orders of Inspector Holliday. There can be no doubt that, speaking generally, it is lawful for a senior officer of police to order a subordinate member of the force to answer questions as to what occurred when the latter was performing, or should have been performing, his duties as a police officer. However, it was submitted on behalf of the respondents that in the present case the object of the questions was to determine whether or not the respondents had committed disciplinary offences and that the respondents were not bound to answer the questions since they had a tendency to expose them to the penalties for which the Police Regulation Act provides. If it be accepted that the respondents were privileged from answering the questions it does not matter whether one concludes that the orders of Inspector Holliday were unlawful in the sense that the respondents were not required to obey them, or expresses the matter by saying that the privilege gave the respondents an excuse for failing to answer. The former view was taken by Starke J., and is supported by Crafter v. Kelly [1] ; the latter view was preferred by Marks J. and appears to derive some support from Reg. v. Travers [2] . Since on either view the respondents must succeed, the substantial questions that now fall for decision are whether the rule of the common law that a party is not bound to answer any question which might tend to expose him to the risk of a criminal conviction or the imposition of a penalty is capable of application to a case such as the present and if so whether it has been excluded by the Act or regulations.

1. [1941] S.A.S.R. 237, at pp. 242, 245. 2. [1958] S.R. (N.S.W.) 85, at p. 107.

By s. 88(1) of the Police Regulation Act it is provided as follows:

(a) guilty of any breach of the regulations made under this Act;

(c) negligent or careless in the discharge of his duties;

(d) inefficient or incompetent and such inefficiency or incompetence arises from causes within his own control; or

(e) guilty of any disgraceful or improper conduct -

shall be guilty of an offence. When a member is charged with an offence under s. 88(1) the Chief Commissioner may refer the charge to an officer not below the rank of chief superintendent or hear the charge himself or refer the charge to the Police Discipline Board: s. 88(2). If the charge is found to be proved, the disciplinary action that may be taken increases in severity according to whether the charge was heard by an officer to whom the charge had been referred, by the Chief Commissioner himself, or by the Police Discipline Board: s. 88(3), (4), (5). The Police Discipline Board may (inter alia) reprimand the offending member, impose a penalty of not more than $500, reduce the member in rank or dismiss the member from the force: s. 88(5).

There is an obvious distinction between criminal offences and breaches of discipline and it is necessary to insist upon that distinction for some purposes: see, e.g., Reg. v. White; Ex parte Byrnes [3] . Nevertheless, although the penalties provided by s. 88 are disciplinary penalties, they are nonetheless penalties, and it is old law, confirmed by modern authority, that a person cannot be compelled to answer a question whenever the answer would tend to expose him to "any kind of punishment" - "anything in the nature of a penalty": see Phillipps and Arnold, A Treatise on the Law of Evidence, 10th ed. (1852), vol. 2, p. 487; Greenleaf on Evidence, 11th ed. (1863), vol. 1, p. 621; Bray on Discovery (1885), p. 313; In re Westinghouse Uranium Contract [4] (a statement not challenged on appeal [5] ) and Pyneboard Pty. Ltd. v. Trade Practices Commission [6] . Moreover, it is now accepted that the privilege is capable of application in non-judicial proceedings: Pyneboard Pty. Ltd. v. Trade Practices Commission [7] ; Sorby v. The Commonwealth [8] . It was submitted by the Solicitor-General on behalf of the appellants that the relationship between the Crown and the members of the police force is deemed to be that of master and servant (see s. 13(3) of the Police Regulation Act) and that the privilege has no relevance to proceedings to elicit disclosure by an employee to the employer of the actions of the employee in the course of the employment. However that may be, answers given by a member of the police force which tend to show the commission by him of an offence against s. 88(1) might tend to render that member liable to the penalties provided by s. 88 and not merely to civil sanctions for breach of contract. It is right to start with the assumption that the rule which confers the privilege is capable of applying to a statutory provision which requires members of the police force to answer questions tending to show the commission by them of disciplinary offences.

1. (1963) 109 C.L.R. 665, at p. 670. 2. [1978] A.C. 547, at pp. 563-564. 3. [1978] A.C., at pp. 612, 627, 632, 647. 4. (1983) 152 C.L.R. 328. 5. (1983) 152 C.L.R., at p. 340. 6. (1983) 152 C.L.R., at p. 309.

The question that then arises is whether either the Police Regulation Act or the Police Regulations reveals clearly either by express words or necessary implication that the intention of the legislature was that the privilege should not be available in relation to reg. 95A(7). The provisions of the Act itself are relevant only in so far as they show that the provision now directly in question (reg. 95A(7)) is part of a statutory scheme which provides for the regulation and control of a police force - a body upon whose efficiency and probity the State must depend for the security of the lives and property of its citizens and a body which can operate effectively only under proper discipline. "In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve": Pyneboard Pty. Ltd. v. Trade Practices Commission [9] . Regulation 95A(7) is not a provision which itself authorizes the holding of an interrogation or expressly confers a power to require answers to be given to questions. 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. 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 to 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. This view is supported by the fact that if it were possible to claim the privilege, a difficulty would arise as to when and by whom it should be decided whether the claim was properly made. We are not concerned with the question whether privilege could be claimed once the hearing of a charge had been commenced under s. 88(3), (4), or (5), but with the question whether, when a police officer orders a subordinate to supply information concerning the manner in which he carried out his duties, the subordinate may object to obeying the order. The difficulty that would arise if the privilege could be claimed in this case is that which was pointed out by Mason A.C.J., Wilson and Dawson JJ. in Pyneboard Pty. Ltd. v. Trade Practices Commission [10] : "There is in addition the problem of deciding whether it is for the authority requiring the answer, production of documents or the provision of information, or the court in subsequent proceedings by way of prosecution for an offence to decide whether the claim for privilege is correctly made. It is difficult to suppose that the determination is to be left to an unqualified person. And there are practical problems in leaving the determination of the correctness of the claim for privilege to a court in proceedings by way of prosecution for the offence of refusing to answer questions, provide information or produce documents." If the decision whether the claim for privilege was correctly made in a case arising under reg. 95A(7) was left to the police officer who had given the order requiring the answer, the determination of the question would be made by an unqualified person. The same would be true if the decision had to be made by a police officer to whom the charge had been referred under s. 88(2) or by the Chief Commissioner. The position would be different if the charge were heard by the Police Discipline Board, a tribunal one member of which is a stipendiary magistrate, but there would remain the practical problem that the correctness of the claim would fall for decision only on the hearing of a charge. These considerations support the view that to allow the privilege would be incongruous in the present case.

1. (1983) 152 C.L.R., at p. 341. 2. (1983) 152 C.L.R., at p. 340.

It may be a matter for debate whether the discipline of the police force would be seriously impaired if a police officer had the right to remain silent when ordered to give a report on the manner in which he had carried out his duties. However, an order to answer questions of that kind is plainly lawful and the character and object of the regulation provide a sufficient indication that it was not intended that an officer to whom such an order was given could object to obey it on the ground that his answer might expose him to penalties for breach of his duty.

For these reasons I would in each case allow the appeal, set aside the order of the Full Court and in lieu thereof discharge the order nisi. In accordance with the condition imposed on the grant of special leave, the appellants should pay the costs of each appeal and the order as to costs made by the Full Court of the Supreme Court should not be disturbed.

There are two issues to be resolved here. First, is the privilege against self-incrimination excluded, expressly or by necessary implication, by the Police Regulation Act 1958 Vict. ("the Act") or the Police Regulations 1957 Vict. ("the Regulations")? Secondly, if it is not so excluded, does it extend to exposure to disciplinary proceedings?

Is the Privilege Excluded by the Act or the Regulations?

For centuries the privilege against self-incrimination has been recognized in English and Australian jurisprudence as an important safeguard of the freedom and dignity of the individual. It is included in the International Bill of Human Rights (see The International Covenant on Civil and Political Rights, Pt III, Art. 14(3)(g)) and is constitutionally entrenched in some countries: see, e.g., United States Constitution, Fifth Amendment.

The common law is that no one need answer questions. Parliament can require persons to answer questions, but an Act will not be interpreted as requiring a person to incriminate himself or herself unless it does so by express words or necessary implication, i.e., by unmistakable language. Therefore a mere requirement to answer questions is not enough to displace the privilege.

The relevant provision was reg. 95A(7) which stated that "No member of the Force shall disobey any lawful order written or otherwise." The Supreme Court of Victoria (Starke and Marks JJ., Crockett J. dissenting) found no express words or necessary implication excluding the privilege. I agree. Obviously there are no express words which do so. The argument for implication was the desirability of such an implication in the interests of efficient administration of the police force. Whatever weight is given to such argument, any implication arising from it is not a necessary implication. If the Victorian Parliament wishes to exclude the privilege against self-incrimination, it may do so, but, in my opinion, it has not done so.

Does the Privilege Extend to Exposure to Disciplinary Proceedings?

The exposure against which the privilege protects is self-exposure to criminal process. I adhere to what I said in Pyneboard v. Trade Practices Commission [11] that the privilege does not extend to self-exposure to non-criminal process. If the members were asked a question the answer to which would tend to expose them to criminal proceedings they would be entitled to object to answering on the ground of self-incrimination and failure to answer on that ground would not constitute a breach of reg. 95A(7).

Here, the two members who refused to answer the questions put to them did so on the basis that they might be charged with disciplinary matters if they answered. At no point did they suggest any fear of criminal prosecution and the interviewer said repeatedly that the questions did not relate to criminal matters but only to matters of a disciplinary nature. It is only if the penalties for breaches of discipline under the Act can be characterized as criminal in nature that the privilege would apply.

Section 88(3), (4) and (5) of the Act sets out the various penalties that can be imposed on a member should a charge under s. 88(1) be proved or admitted. These are, (i) placing the member on a good behaviour bond, (ii) reprimand, (iii) a monetary penalty, (iv) reduction in rank or (v) dismissal from the force.

Despite the serious nature of some of the penalties, the offences are not criminal. They amount only to breaches of a disciplinary code, dealt with administratively and not judicially: see Reg. v. White; Ex parte Byrnes [12] ; Attorney-General (Vict.) v. Riach [13] . Riach was a similar case to this. A public servant called before a Board of Inquiry refused to answer questions on the basis that such answers might tend to expose him to penalties under the Public Service Act. Kaye J. held that determinations by the Board of Inquiry were not criminal prosecutions and the penalties imposed were not criminal penalties. I agree. The same reasoning should be applied here. The privilege against self-incrimination was not excluded but it was not applicable.

We have had the advantage of reading the reasons for judgment prepared by the Chief Justice. The facts in each case and the issues they raise are set out in that judgment and we have no need to repeat them.

As his Honour explained, two questions of substance now fall for decision. The first is whether the rule of the common law that a party is not bound to answer any question which might tend to expose him to the risk of a criminal conviction or the imposition of a penalty is capable of application to a case such as the present. The Chief Justice referred to the two recent decisions of this Court - Pyneboard Pty. Ltd. v. Trade Practices Commission [14] and Sorby v. The Commonwealth [15] - which establish that the privilege is capable of application in non-judicial proceedings. He rejected the submission that the relationship between the Crown and the members of the police force was such as to deny any room for the operation of the principle in relation to the interrogation for disciplinary purposes of a police officer by his superior touching the performance of his duty. We agree with his Honour in answering this first question in the affirmative. The privilege is inherently capable of applying to a statutory provision which requires members of the police force to answer questions tending to show the commission by them of disciplinary offences.

1. (1983) 152 C.L.R. 328. 2. (1983) 152 C.L.R. 281.

The second question that arises is whether either the Police Regulation Act 1958 Vict. as amended ("the Act") or the Police Regulations 1957 Vict. ("the Regulations") reveals clearly either by express words or by necessary implication a legislative intention that the privilege should not be available to a member of the force who is ordered to answer questions relating to the performance of his duties. The respondents, having declined to answer those questions, were each charged before the Police Discipline Board and found guilty of an offence under reg. 95A(7) of the Regulations. That regulation (which was then in force but which has now been replaced by reg. 402(g) of the Police Regulations 1979 Vict.) provided inter alia that "No member of the Force shall - (7) disobey any lawful order written or otherwise." It is accepted that each respondent disobeyed the order of Inspector Holliday to answer the questions he put to them. The question is whether it was open to them to decline to answer the questions on the ground that to do so might incriminate them.

There is nothing in the Act or the Regulations which deals expressly with the rights of a member of the force when interrogated in circumstances such as these. There is no mention of anything directly relating to the privilege. In such a case, the rule is that the privilege is available unless consideration of the language and character of the relevant provision, set in the context of the purpose which the Act and the Regulations are designed to achieve, yields unequivocally the conclusion that the legislature intended to exclude it: cf. Pyneboard [16] .

In arguing for the exclusion of the privilege the learned Solicitor-General of Victoria stressed the importance to the community of an efficient and well-disciplined police force. It is an hierarchical institution the efficiency of which depends upon the faithful performance of duty by every member including obedience to any lawful order: see ss. 13 and 14 of the Act, and the form of Oath set out in the Second Schedule.

We think that these matters are of significance in determining the nature of the Act and the Regulations made under it, as well as the purpose which both were designed to achieve. In Pyneboard [17] , it was pointed out that the privilege against self-incrimination will impliedly be excluded if the obligation to provide answers is expressed in general terms and it appears from the character and purpose of the provision in question that the obligation was not intended to be subject to any qualification. It is essential to bear in mind that the Act and Regulations here are dealing with a disciplined force, the members of which voluntarily undertake the curtailment of freedoms which they would otherwise enjoy. It is in that context that it may be necessary to draw the implication that the privilege is excluded by a provision designed to further the effectiveness of an organization based upon obedience to command. To admit of exceptions, such as the privilege against self-incrimination, without the possibility of having regard to the circumstances in which they might have to be applied, may be alien to the nature and purposes of the organization which the legislation seeks to regulate.

Regulation 95A(7) is expressed in very broad terms and is capable of application to a wide range of circumstances. Its application would most often be found in the ordinary day-to-day administration of the force in meeting the demands that are made upon it, for example, in the instructions issued daily by an officer in charge of a suburban police station to those under his command in response to the need of the local community for their services. No question relating to the privilege would arise in such circumstances. Each of the present cases invokes the regulation much more indirectly. The facts in relation to Sergeant Martin are that on 14 March 1978 he was summoned to the Internal Investigations Bureau of the Victoria Police Force to be interviewed by Inspector Holliday in the presence of another inspector about the conduct by him of his duties on 15 December 1977. The interview opened with Inspector Holliday saying to Sergeant Martin: "We've had a complaint lodged against you which I intend to interview you about." Sergeant Martin then indicated that when the Inspector had explained the complaint to him he would decide whether he wished to answer any questions. Inspector Holliday responded to this by saying that no civilians were involved, the inquiry was purely a departmental one concerning disciplinary matters and therefore, "I require you to answer my questions." An interview along similar lines occurred with Senior Constable Morris on 21 March 1978.

Section 130(1) empowers the Governor in Council to make regulations for or with respect to, inter alia,

(dg) any matter necessary or expedient to promote the efficiency of the force or to promote the efficient discharge of duties by any member or any class of members of the force;

Regulation 95A in its application to a case such as the present is clearly relevant to the efficiency of the force and, as the Chief Justice has observed, its breadth is such as to admit of no qualification. Inspector Holliday's questions were lawful. In our opinion, the respondents were obliged to obey the direction to answer them. It is not to the point that Inspector Holliday may have sufficient evidence aliunde to proceed against the respondents for a disciplinary offence related to the performance of their duties on 15 December 1977. He was entitled to think, in the context of a purely departmental investigation, that the efficient government of the force required the respondents to be open and frank in explaining their behaviour and that he had the authority to order them to answer his questions. If the privilege were to be extended to them, it would also have to be extended to members of the force in circumstances where there was reason to suspect misconduct in the performance of their duties but no proof. If in such circumstances a member was entitled to and did claim the privilege, the suspicion would thereby be heightened without any action being open to those responsible for the government of the force. 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 that the member would be obliged to answer the questions put to him whether or not those answers would tend to incriminate him. 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. The Police (Discipline) Regulations 1977 (U.K.) prescribe a detailed procedure for disciplinary investigations. The relevant aspect of that procedure is summarized in Halsbury's Laws of England, 4th ed., vol. 36, par. 274 as follows:

The investigating officer must, as soon as is practicable, without prejudicing his or any other investigation of the matter, in writing inform the member subject to investigation of the report, allegation or complaint, informing him that he may (but is not obliged to) make a written or oral statement concerning the matter to the investigating officer, but warning him that such a statement may be used in subsequent disciplinary proceedings. However, as we have already emphasized, the view that we have expressed is derived from the construction of the Act and the Regulations in Victoria.

We would add that these are not cases where we would draw any support for the conclusion to which we have come from the fact that if the privilege were available to be taken the question whether it was properly taken was to be determined in the first instance by an unqualified person. We would not have regarded an experienced senior member of a police force as an unqualified person and, in any event, such a consideration must seldom be determinative.

In Pyneboard Pty. Ltd. v. Trade Practices Commission [18] and in Sorby v. The Commonwealth [19] a majority of the Court held that the privilege against self-incrimination is capable of applying to non-judicial proceedings and of qualifying an obligation to answer questions asked outside judicial proceedings in exercise of a statutory power. Whether an obligation arising under a particular statute is qualified by the privilege depends on the intention of the legislature - an intention that is likely to be uncertainly perceived if the statute does not make an express provision. This is such a case. I agree that the factors referred to by the Chief Justice tend to show that reg. 95A(7) of the Police Regulations 1957 Vict. intends to exclude the privilege and to leave without qualification the obligation cast on a subordinate police officer to obey an order by a superior officer to answer a question asked of the subordinate as to his activities whilst on duty. I need not repeat what I said recently in Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs [20] about the factors that generally weigh in favour of excluding the privilege, but I would refer to a further factor which seems to me to be significant in the present case. That factor is the impairment of discipline in the police force if a police officer may claim the privilege when ordered to give information about his activities whilst on duty.

1. (1983) 152 C.L.R. 328. 2. (1983) 152 C.L.R. 281. 3. Ante, p. 385.

The Victoria Police, like other Police Forces in Australia, is a force governed by legislation which Crockett J. in the Full Court appropriately described in these terms:

The legislation is designed to regulate and control the activities of what is a disciplined force in such a way as to achieve an effective and efficient organisation in which the members are to perform their duties in conformity with a code so as to afford protection to the community and allow the disciplining of members who breach that code. The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. It cannot be thought that the Police Regulations intend a police officer to be able to cloak with his silence activities that are prejudicial to the achievement of these purposes. To permit, under a claim of privilege, a subordinate officer to refuse to give an account of his activities whilst on duty when an account is required by his superior officer would subvert the discipline of the police force.

In United States v. Field [21] , the late Judge Jerome Frank, in what Harlan J. described as "a spirited defense of the privilege" (Garrity v. New Jersey [22] ), held in dissent that a police officer was entitled to privilege against self-incrimination when called to testify in judicial proceedings but he acknowledged that the exercise of the privilege was inconsistent with the police officer's duty. His Honour added his own emphasis to his citation [23] of Christal v. Police Commission of San Francisco [24] :

Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them. 1. (1951) 193 F. (2d) 92, at p. 105. 2. (1967) 385 U.S. 493, at p. 509n [17 Law Ed. (2d) 562, at pp. 572-573]. 3. (1951) 193 F. (2d), at p. 106. 4. (1939) 92 P. (2d) 416, at p. 419.

It is not necessary to determine whether, in the law of this country, the claiming of the privilege by a police officer is inconsistent with his duty to testify in judicial proceedings. That raises considerations not relevant to this case. However, the cases cited (and others collected in 44 A.L.R. (2d) 796 s4[a]) illustrate the incompatibility of a claim of privilege with the duty of a police officer to reveal information acquired in the course of his duty. We are not here concerned with a constitutional right to refuse to answer questions. We are concerned to determine whether the general duty of a police officer to obey the lawful order of a superior to answer questions about his activities whilst on duty is consistent with a right to refuse to answer questions on the grounds that the answer may tend to incriminate him. In my opinion, the discipline of a police force demands that answers be given fully and frankly to a superior officer who so orders. It follows that the privilege must be taken to be impliedly excluded from application to an order given under reg. 95A(7) of the Police Regulations to answer questions seeking information about a police officer's activities whilst on duty. That view is consistent with the decision in Attorney-General (Vict.) v. Riach [25] , although the reasons given by Kaye J. in that case require reconsideration in the light of the judgments in Pyneboard and Sorby .