The History of Privilege against Self-Exposure to a Penalty
195 An examination of the history of penalty privilege reveals it to be a general privilege which developed in tandem with the development of the privilege against self-incrimination.
196 This can be seen from Sorby v The Commonwealth (1983) 152 CLR 281 at 317 - 319, in which Brennan J traced the historical development of the privilege against self-incrimination through the abolition of the Court of Star Chamber and the Court of High Commission in 1641 which had administered the ex officio oath. The abolition of those Courts was followed by the statutory prohibition of officials exercising spiritual or ecclesiastical power, authority or jurisdiction to administer an ex officio oath to any person which would oblige that person:
"... to confess or accuse himself or herself of any crime, offence, delinquency or misdemeanour, or any neglect, matter or thing, whereby or by reason whereof he or she shall or may be liable or exposed to any censure, pain, penalty or punishment whatsoever ...".
197 It was that statutory prohibition, Brennan J pointed out, which came to be applied by judges of the Common Law Courts to their own procedure. The privilege was also extended not only to protect accused at a criminal trial but also to protect persons obliged to give discovery in proceedings to recover a penalty or in other civil proceedings.
198 In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 547, McHugh J said that penalty privilege "was adopted by the Courts of Chancery from the courts of law". This view of the historical development of penalty privilege is not universally accepted. As the subsequent discussion reveals, another view is that the courts of law applied penalty privilege as developed by equity to deal with discovery. It is sufficient, to resolve the issue whether penalty privilege applies in the present case, to undertake an historical analysis of the principle to understand the manner in which it was applied both at law and in equity.
199 Wigmore on Evidence states:
"s2256. Penal Liability (1) Forfeiture.
Wherever, by way of forfeiture , a right of property is divested or a liability to pay money to another person is created, by way of a retribution for misconduct done or of a deterrent from misconduct apprehended, the effect is in spirit penal . The disclosure of such facts should therefore be protected by the privilege ... the judicial interpretation has always leaned to liberality - partly, perhaps, because of some early cases concerning the ecclesiastical courts, and occurring before the establishment of the common law privilege wherein was involved merely the struggle against the jurisdiction of those courts. It was partly, also, because of the time-honoured maxim of equitable practice never to aid a forfeiture, in consequence of which the boundary between relief and discovery remained confused, and the rule for the former (which was independent of criminality) tended to enlarge the limits of the privilege for the latter. Where the loss of a right is inflicted by statute, there is a greater semblance of penal policy ; the distinction was indeed once taken between 'a determination by the party himself and the determination by Act of Parliament' ... most of the precedents come down from the 1700s. They concern forfeitures of ecclesiastical livings dealt with in violation of the statute against simony , of property titles or other rights by virtue of statutory incapacity as a papist or as an alien , of public office by virtue of statutory incapacity or punishment, or various other interests under statutory prohibitions, and of estates prescribed in a will or deed to be divested by forfeiture as distinguished from conditional limitation ..." (underlining added)
"s2257:... (2) Penalty: Incidental criminality in a civil case.
The distinction between a penalty and a forfeiture is a shadowy one, though both are in essence contrasted with a civil liability. A penalty may be defined as a liability to pay money or to yield up a public privilege by way of punishment imposed by law.
(a) When the penalty lies in the yielding up of a privilege , a distinction therefore seems proper between inflicting a punishment and restraining the continued improper exercise of functions. The process of impeachment of an official seems to fall in the former class, but most other processes of removal or restraint (including disbarment ) would ordinarily come within the latter description....In any case the form of the proceeding is not decisive, for a proceeding essentially civil is sometimes conducted in the name of the state" (emphasis in original)[15]
200 The core principles were articulated in a series of cases decided by Lord Hardwicke LC in the mid-eighteenth century. In Smith v Read (1736) 1 Atk 527; 26 ER 332 Lord Hardwicke LC said:
"... [T]here is no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or anything in the nature of a penalty. Under the rule a man is not obliged to accuse himself , is implied, that he is not to discover a disability in himself; and there is no difference between a forfeiture of a thing vested, and a disability to take, inflicted as a penalty. ... The laws of bankrupts are not all penal laws, and in the case of aliens, bastards etc., there is a difference where the disability arises from the rules of law, and when it is imposed as a penalty ... where the legislature have intended discoveries of what is penal, they have put in clauses for that purpose ... " (emphasis supplied)
201 The antiquity of penalty privilege, however, can be seen from the transcript of the trial of Sir John Freind at the Old Bailey for high treason in 1696.[16] In response to Sir John Freind's question to a witness, Captain Porter, "whether you be a Roman Catholic or not?", the Solicitor-General asked that Captain Porter be acquainted with the danger that by declaring himself to be a Roman Catholic "he subjects himself to a very severe penalty." Lord Chief Justice Holt stated:
"No man is bound to answer any question that tends to make him accuse himself, or subject him to any penalties."
202 Lord Chief Justice Treby, Justice Nevill and Justice Rokeby were of the same opinion, with Justice Rokeby stating:
"... he is under no obligation to answer it, because it may tend to accuse himself of a crime for which he may be prosecuted, and likewise will subject him to other penalties, which the law cannot compel himself to subject himself to." [17]
203 The principle had also been applied in earlier civil cases in Monnins v Monnins (1673) 2 Chan. Rep. 68; 21 ER 618 (forfeiture of estate),[18] Bird v Hardwicke (1682) 1 Vern. 109; 23 ER 349 and Chauncey v Tahourden (1742) 2 Atk 392; 26 ER 637 (forfeiture of legacy on marriage without content).
204 Loss of office was clearly regarded by Lord Hardwicke as sufficiently penal to attract the privilege. In Honeywood v Selwin (1744) 3 Atk 276, 26 ER 961, he applied penalty privilege to deny discovery in circumstances which could expose the defendant to his seat in the House of Commons being declared void.
205 In Boteler v Allington (1746) 3 Atk 453 at 457 - 458, 26 ER 1061 at 1063 Lord Hardwicke expressed the rule in cases of forfeiture as being "that a defendant is not obliged by a discovery to subject himself to a forfeiture, or anything in the nature of a forfeiture." (emphasis in original) The plaintiff sought discovery of facts which would have assisted him to prove that a benefice held by the defendant should, according to the statute 21 Hen. 8, "be adjudged by the law to be void". In acceding to a demurrer to the bill of discovery, Lord Hardwicke LC rejected an argument that the Act did not specify a penalty but only avoided the benefice, saying:
"The Courts have made a great distinction between a determination by the party himself, and a determination by an act of parliament. Suppose the statute of 21 Hen. 8 had said, if he accepts a second living, the first shall be absolutely void; this would have been a penalty; but although the act of parliament does not say so in words, yet it amounts to just the same thing and therefore I think the defendant is not obliged to make a discovery, in order to preserve the rule of the court intire."
206 Lord Hardwicke LC cast further light on the law of penalties in two subsequent cases which emphasised that the Court was not concerned to take a narrow view of what constituted punishment for the purpose of penalty privilege. In Brownsword v Edwards (1751) 2 Ves Sen 243, 28 ER 157, discovery was denied in a case where discovery of a marriage would have subjected the defendant to punishment for incest in an ecclesiastical court. His Lordship said:
"The general rule is, that no one is bound to answer so as to subject himself to punishment, whether that punishment arises by the ecclesiastical law or the law of the land ... nor is it material what the nature of the punishment is . It is a punishment which must be performed or got rid of by commutation, which is like a fine."[19] (emphasis supplied)
207 In Harrison v Southcote & Moreland (1751) 2 Ves. 389 at 394, 28 ER 249 at 251 Lord Hardwicke LC referred to:
"The general rule is, that penal laws are not to be taken or construed by equity; and therefore no over-rigorous or strained construction is to be made in any court of justice much less of equity..."
208 He expressed his concern that if he allowed a plea objecting to discovery on the basis of exposure to a penalty, his ruling would defeat the operation of the Act of King William - "the statute of 1698-1699 ... which disabled papists from purchasing land".[20] Upon consideration, however, he observed:
"... yet the Court must not make such a determination, as will break in on former, or on that general rule established with great justice and tenderness in the law of England, that none shall be obliged to discover what may tend to subject him to a penalty, or that which is in the nature of penalty."[21]
209 Accordingly he refused to permit discovery directed to the question whether the person from whom the defendant had purchased his estate was a papist, which fact, if established, would have led to the forfeiture of his estate. He said:
"... a purchaser is not to be hurt by discovery of a matter, that will tend to forfeiture of his estate, or be a loss in consequence of a penal law ." (emphasis supplied)[22]
210 The entrenchment of penalty privilege was reflected in early nineteenth century cases. It was clearly established that penalty privilege extended not merely to discovery of documents or interrogatories which would directly expose the defendant to a penalty, but also to discovery which might form a link in the chain of proof. In Paxton v Douglas (1809) 16 Ves. 239, 33 ER 975; 19 Ves. 225, 34 ER 502, the defendant objected to answering interrogatories on the ground that the answers may criminate him and subject him to forfeiture under the East India Company's Bye-Laws. The forfeiture complained of was twofold: disability in the nature of discharge from the Company's employ and pecuniary penalties. Lord Eldon LC upheld the right of the defendant not to answer the interrogatories saying:
"In no stage of the proceedings in this Court can a party be compelled to answer any question, accuse himself, or anyone in a series of questions, that has a tendency to that effect: the rule in these cases being, that he is at liberty to protect himself against answering, not only the direct question, whether he did what was illegal, but every question, fairly appearing to be put with a view to drawing from him an answer, containing nothing to affect him, except as it is one link in a chain of proof that is to affect him ..." [23]
211 In the early nineteenth century, the breadth of the principle was seen in texts such as Maddock's A Treatise on the Principles and Practices of Chancery[24] which referred to the "general Rule that...no person can be compelled to give a Discovery that may subject him to a Prosecution for Felony...or to what may subject him to a penalty, and not merely what must; or any thing in the nature of a penalty or forfeiture of Interest". (emphasis in original).
212 In Orme v Crockford (1824) 13 Price 376 at 388-389; 147 ER 1022 at 1026, Alexander C.B.[25] allowed a general demurrer to a bill for discovery of money in aid of a qui tam action at law commenced by a common informer to recover treble the value of amounts won at play. In so doing he referred to the "most important right (of a person)...of protecting himself by refusing to answer, from the consequences of answering questions which might tend to charge him with a crime, or subject him to penalties, or forfeiture of estate contrary to the humane policy of the law".
213 In Green v Weaver (1827) 1 Sim. 402 at 430, 57 ER 630 at 640, Sir Anthony Hart V-C interpreted Lord Eldon LC's decision in Paxton v Douglas as meaning that "where the sole gist and object of the suit is to convict a man in a penalty, where there would be no other purpose but to have relief in a Court of Equity on the footing of penalty, that, as a Court of Equity does not relieve on penalty, it will not give incidental discovery." [26]
214 In Glynn v Houston (1836) 1 Keen 329 at 337, 48 ER 333 at 336 Lord Langdale MR emphasised that discovery would not be allowed where the defendant "...would be subject to penal consequences" irrespective of whether those consequences could arise "by indictment, information, impeachment or bill of pains and penalties".[27] He refused to permit discovery in aid of an action brought by the Plaintiff to recover damages for assault and false imprisonment because of the possibility the defendant could be the subject of a criminal charge.[28]
215 In Short v Mercier (1848) 2 De Ge & Sm 635, 64 ER 285 an objection to discovery on the basis that the answers would tend to subject the defendants to forfeitures and penalties imposed by the Stock-Jobbing Act (7 Geo.2.c.8) was allowed. The Act provided, in substance, that any stock-jobbing contracts were null and void and that all persons involved in the making of such contracts should forfeit and pay the sum of 500 pounds. On appeal, the Lord Chancellor, Lord Truro referred to penalty privilege as "[t]he principle of the law of England...that a man shall not be driven to give answers to matters that tend to criminate himself.[29]
216 In Phillipps & Arnold, Treatises on the Law of Evidence,[30] penalty privilege was broadly described as being a privilege "from answering a question, the answering of which might subject him to a penalty or forfeiture of any kind." (emphasis supplied)
217 The risk of loss of professional office was sufficiently penal to attract penalty privilege. In Nelme v Newton, noted as a footnote to Maccallum v Turton (1828) 2 Y. & J. 183, 148 ER 883 at 884, Lord Eldon LC upheld the disallowance of a bill for discovery of documents in partnership proceedings where the defendants objected to production on the basis that the defendants were exposed to the risk of being struck off the roll of notaries.[31]
218 In Scott v Miller (No 2) (1859) LJ. Ch 584, 70 ER 448, a defendant objected to a discovery order on the basis that the discovery would tend to show that he was liable to be struck off the roll and thereafter disabled from practising as an attorney or solicitor. Although the form of his answer was ruled to be insufficient to plead penalty privilege, Sir W Page Wood V-C, did not doubt that if the answer had been sufficient the defendant would be entitled to object to the discovery on the basis that disqualification from the roll of attorneys or solicitors would expose him to a penalty.
219 Contemporary texts in the late nineteenth century recognised penalty privilege as a principle of wide application.
220 In 1870, Daniell's Practice of the High Court of Chancery [32] described penalty privilege as:
"...a general rule that no one is bound to answer so as to subject himself to punishment in whatever manner that punishment may arise, or whatever may be the nature of that punishment: whether it arises by Ecclesiastical Law, or by the law of the land, or the laws of a foreign country. This rule is not confined to cases in which the discovery must necessarily subject the defendant of pains and penalties, but it extends to cases where it may do so...It results from the principle...that a defendant is not bound to make any discovery which may tend to show himself to have been guilty of any moral turpitude, which may lay him open to proceedings in the Ecclesiastical or other Courts."
221 The first English edition of Mr Justice Story's Commentaries on Equity Jurisprudence[33] described penalty privilege in broad terms which reflected Lord Hardwicke LC's proposition concerning self accusation, as well as emphasising that the inquiry focussed upon the nature of the proceedings in which the question arose. Story wrote:
"... the courts of equity will not allow discovery to aid the promotion or defence of any suit which is not purely of a civil nature. Thus, for example, they will not compel discovery in aid of a criminal prosecution; or of a penal action; or a suit in its nature partaking of such a character; or in a case involving moral turpitude; for it is against the genius of the common law to compel a party to accuse himself; and it is against the general principles of equity to aid in the enforcement of penalties or forfeitures."
222 A year later Bray was equally expansive, stating the principle in Principles and Practice of Discovery [34] in the following terms:
"A party is not compelled to give discovery which will expose him to the risk of any kind of punishment, whether it be by way of pains or penalties or forfeiture ... no one is bound to answer so as to subject himself to punishment in whatever manner that punishment may arise or whatever may be the nature of the punishment ... whether by indictment information impeachment or by bill of pains and penalties ... whether by way of criminal prosecution ... or by way of payment of a penalty or anything in the nature of a penalty ... loss by a penal law ... or by way of forfeiture or something in the nature of a forfeiture ... whether to be enforced in equity or at law ... whether a forfeiture of a thing vested or a disability to take inflicted as a penalty ...It is a well known rule applying both to the examination of witnesses...and to interrogatories of defendants in equity, that no person is compellable to answer any question which has a tendency to expose him to a criminal charge, penalty or forfeiture."
223 In Martin v Treacher (1886) 16 QBD 507 a common informer sued the defendant for penalties under the Public Health Act 1875 for acting as a member of a local board without being duly qualified. He sought to administer interrogatories to establish the fact that the defendant was not duly qualified. He argued that the rules for interrogatories in Order XXXI in force after the enactment of the Judicature Act provided no limitation upon discovery.
224 The interrogatories were disallowed on the basis that the proceedings were for the recovery of a penalty and that the pre-Judicature Act principles allowing demurrers to discovery in aid of penalties continued to apply. Lord Esher MR explained the principle whereby courts would not allow discovery in actions brought for penalties on the basis that "although the penalty is not in strict law a criminal penalty, yet the action is in the nature of a criminal charge against the defendant." Harking back to Star Chambers days, he characterised the case as being:
"...of a fishing character, the plaintiff first bringing his action and then seeking to obtain the necessary materials to support it by interrogating the defendant: and, the object of the action being to subject the defendant to a penalty in the nature of a criminal penalty, it would be monstrous that the plaintiff should be allowed to bring such an action on speculation, and, then admitting that he had not evidence to support it, to ask the defendant to supply such evidence out of his own mouth and so to criminate himself..."[35]
225 Lopes J articulated the principle in like terms, saying:
"...the true principle is...when an action is brought the sole object of which is to enforce penalties, interrogatories cannot be administered, because the action is in the nature of a criminal proceeding , and in such a proceeding it would be monstrous and contrary to the policy of the law to compel the defendant before the trial to make admissions which would incriminate himself and practically decide the action against him." (emphasis supplied)[36]
226 Echoing Story's proposition that penalty privilege would be applied in any suit which was not purely of a civil nature, Lindley L.J. underlined the fact that the plaintiff was not seeking to enforce "any civil rights apart from...penalties". He held that the "well established principles of discovery ... extends to statutory penalties such as those now sued for."[37]
227 In Jones v Jones (1889) 22 QBD 425 at 428 in an action for treble damages under an Act, it was held that the plaintiff was not entitled to an affidavit of documents on the basis of penalty privilege which Lord Coleridge CJ described as a "salutary rule based on the soundest principles". Lord Coleridge also dealt with the manner in which the equitable principle prohibiting discovery in penal actions was adopted by the Courts of Common Law, saying:
"Within my memory the power to compel discovery could only be exercised by the Court of Chancery. This was found highly inconvenient, and many years before the Judicature Acts the legislature conferred the power on the Courts of Common Law. In the exercise of the jurisdiction the rules of equity, though not absolutely binding, were accepted by the Courts of Common Law as their guide. In Pye v Butterfield 5 B. & S. 829; 34 L.J. (Q.B.) 17, a case in which the Court of Queens Bench after careful consideration refused to allow a plaintiff in ejectment to interrogate the defendant on the ground that his answers might subject him to forfeiture, Cockburn, C.J. expressed the solemn adhesion of the Court to the rules of equity on the subject of the application."[38]
228 The proposition that the question whether discovery should be given turned upon the nature of the action was affirmed in subsequent decisions. In T W Hobbs & Co v Hudson & Ors (1890) 25 QBD 232 at 233, Lord Esher M.R. applied Jones v Jones to hold that the question whether the plaintiff was entitled to administer interrogatories to the defendant in an action to recover double the value of goods fraudulently removed by one of the defendants turned on "whether this is a penal action." His Lordship observed that Martin v Treacher "was treated in the judgment of this Court as a penal action." Lindley L.J. was also of the view that the action was a penal one and, further, that the Act pursuant to which it was brought was "a penal statute".[39] Lopes L.J. was of the same view. [40]
229 In Earl of Mexborough v Whitwood Urban District Council (1897) 2 QB 111 at 114-115, Lord Esher MR described penalty privilege and the "similar rule" which applied to actions brought to enforce a forfeiture of an estate in land as being more than rules of procedure, and as being "well recognised rules which have existed from time immemorial." His Lordship elaborated upon his articulation of the basic principle in Martin v Treacher and emphasised that the privilege was not rooted in the privilege against self-incrimination, saying:
"It has been argued that the reason why the Courts will not assist the plaintiff in an action for a penalty is that it is a criminal action. But it is not. There is no such thing as a criminal action. An action for a penalty is a civil action just as much as an action for a forfeiture. The rule by which a witness is protected from being called on to answer questions which may tend to criminate himself is often referred to in connection with this subject, but it has really nothing to do with the two rules to which I have referred. In an action for a penalty there can be no question of the defendant's being called on to criminate himself."
230 Lord Esher appeared to confine the principle he had articulated in Martin v Treacher to discovery in an action for a penalty by a common informer. In R v Associated Northern Collieries (1910) 11 CLR 738 at 743-4 Isaacs J rejected any such limitation. He said the judgments in Mexborough did not support a distinction between common informer cases and actions for penalties brought at the suit of the Crown representing the community. Such a distinction, his Honour observed, would be inconsistent with "a vast current of authority and precedent", referring to Smith v Read and Harrison v Southcote.
231 In Redfern v Redfern [1891] P 139 at 147, Bowen L.J. described as "one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure."
232 In Re A Debtor [1910] 2 KB 59 at 65 - 66 the English Court of Appeal held that the petitioning creditor in a bankruptcy petition could not, before the hearing of the petition, obtain an order for interrogatories or discovery to prove the allegations in the petition. Fletcher Moulton L.J. (with whom Farwell, Buckley and Kennedy LL.J. agreed) referred to the principles by which discovery and interrogatories had been allowed in actions in the High Court as showing "that when the real issue is of a penal nature neither discovery nor interrogatories will be allowed." He described the bankruptcy order which the petitioner sought as being "in the highest degree penal in its consequences ... (and amounting) to loss of civil status carrying with it grave disqualifications...". Farwell L.J. agreed that "an adjudication of bankruptcy involves very grave disqualifications" imposed under s 32 of the Bankruptcy Act 1883. These disqualifications included the fact that a bankrupt could not sit in either House of Parliament or act as a justice of the peace, a mayor, a guardian of the poor or a select vestryman. Buckley L.J. agreed "on the ground that proceedings in bankruptcy are in the nature of penal proceedings in as much as they result or may result in the alteration of the debtor's status."
233 In Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 K.B. 395 at 403, Du Parcq L.J who delivered the judgment of the Court, after extracting the passage from Redfern v Redfern I have set out above, said:
"To the rule so stated there is no real exception, so far at least as discovery is concerned, and it is the paramount duty of the Court to uphold it."
234 The horrors of the Star Chamber which gave birth to penalty privilege have resonated well into the twentieth century. In the Court of Appeal's judgment in Re Westinghouse Uranium Contract [1978] AC 547 at 564 Lord Denning MR referred to the rationale of penalty privilege as being:
"No person should be compelled to expose himself to pains or penalties out of his mouth. If he is to be penalised for wrong doing, it should be proved against him by those who accuse him."
235 His Lordship's words echo the rationale for penalty privilege articulated by Lord Hardwicke LC.[41]
236 The nature of a "penalty" was considered in Coogans v MacDonald [1954] SLT 279, albeit not in the context of penalty privilege. In Coogans the High Court of Justiciary held that disqualification from holding or obtaining a driving licence under the Road Traffic Act 1930 was a penalty within the meaning of the Seventh Schedule to the Criminal Justice (Scotland) Act 1949. Accordingly, a statutory notice apprising the accused of his liability to such disqualification in the event of conviction was a condition precedent to the power of the Court to impose such disqualification. In the course of his judgment Lord Justice-General Cooper considered the meaning of the word "penalty" as used in the Seventh Schedule. He said:
"... I consider that the word 'penalty' falls to be read in a wide popular sense ... the late Mr Roberton Christie (The Encyclopaedia, Vol 11, page 204) said: 'Penalty in the broad sense may be defined as any suffering in person or property by way of forfeiture, deprivation or disability, imposed as a punishment by law or judicial authority in respect of ... an act prohibited by statute'. The Oxford Dictionary echoes the same wide conception by referring to 'a loss, disability or disadvantage of some kind ... fixed by law for some offence'. If ... that is the sense in which the Act for 1949 must be read, it necessarily follows that a disqualification from holding or applying for a licence imposed on conviction of an offence under the Road Traffic Act is a 'penalty' liability ... In every case the person against whom such an order is made must suffer at least a theoretical 'disability' ... and in the common case of a person who earns his living as a driver of motor vehicles, the disability is normally very grave, and is notoriously apprehended by many accused persons more keenly than a fine or even imprisonment. It is contrary to the letter and the spirit of the Act of 1949 that a person charged with a Road Traffic Act offence upon which disqualification may follow should be formally informed that he may be fined or imprisoned, but should not be informed that he may lose his driving licence."[42]
237 Lord Russell, who agreed in the Lord Justice-General's reasoning, also expressed the view that the word "penalty" in the Seventh Schedule "must reasonably be interpreted as including an order of Court disqualifying an accused person from holding or obtaining a licence to drive a motor vehicle."[43]