Sorby v Commonwealth

[1983] HCA 10

High Court of Australia|1981-06-25|Before: Dawson JJ

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Court

High Court of Australia

Decision date

1981-06-25

Before

Dawson JJ

Source

Original judgment source is linked above.

Judgment (110 paragraphs)

[1]

For the reasons that I have given in relation to the effect of the Royal Commissions Act 1902 Cth I am of the opinion that neither the provisions of s. 9(2)(ii) nor those of s. 14(2) provide a sufficiently clear indication of an intention to render unavailable the privilege against self-incrimination. Indeed the argument that the privilege has not been abrogated is if anything stronger in relation to the Queensland statute, because s. 10(4) recognizes that a witness may have a reasonable excuse for refusing to answer a question. In The Royal Commission re a Brisbane Hotel [No. 2] [46] I held that the Commissions of Inquiry Act had not taken away the privilege against self-incrimination. I remain of that opinion. 1. [1964] Q.W.N. 29.

[2]

I may sum up my conclusions on this aspect of the case as follows. Before 1 February 1983 a person appearing as a witness before a Royal Commission, whether established under letters patent issued by the Governor-General or under letters patent issued by the Governor of Queensland, was entitled to refuse to answer any question on the ground that it might tend to incriminate him. It does not appear from the statement of claim what questions (if any) the plaintiffs did in fact answer in September and October 1982. In any case no cause of action has been shown by the allegations in the statement of claim in respect of anything done before 1 February 1983. Since that date, the Royal Commissions Act obliges any person appearing as a witness before a Royal Commission acting under Commonwealth letters patent to answer any question relevant to the inquiry that he is required to answer by a member of the Commission notwithstanding that the answer might tend to incriminate him, and if the plaintiffs are now asked questions which are put by the Royal Commissioner under the powers conferred on him by the Royal Commissions Act they cannot lawfully refuse to answer them. However, the Queensland law has not been changed and the plaintiffs are entitled to refuse to answer any questions put to them by the Royal Commissioner acting under the powers conferred on him by the Commissions of Inquiry Act on the ground that the answer to such questions may tend to incriminate them.

[3]

The second main issue in the case concerns the question whether the search and seizure of the plaintiffs' property was lawful, and whether the Commissioner was entitled to take possession of the goods and documents seized, and to retain them and to make copies of such as are documents. The warrants under which the search and seizure was effected are before the Court, and they appear in form to satisfy the requirements of the statutory provisions under which they were respectively issued, viz. s. 10 of the Crimes Act 1914 Cth, as amended, s. 679 of the Criminal Code Q. and s. 131A of the Health Act 1937 Q., as amended. It was not suggested that the conditions which are laid down in those sections as necessary to be satisfied before warrants may be issued were not fulfilled. Most of the warrants are indorsed with a direction by a justice that the property seized by virtue of the warrant be retained by the Royal Commission until such time as its investigations are completed. Nothing was made of the fact that some of the warrants bear no indorsement; for all that appears nothing may have been seized under the warrants that are not indorsed. The directions appear to have been given under, or by analogy to, s. 682 of the Criminal Code, which requires a person seizing anything under the Code to carry it forthwith before a justice, who, "may cause the thing so seized or taken to be detained in such custody as he may direct, taking reasonable care for its preservation, until the conclusion of any investigation that may be held with respect to it; and, if any person is committed for trial for any offence committed with respect to the thing so seized or taken, or committed under such circumstances that the thing so seized or taken is likely to afford evidence at the trial, he may cause it to be further detained in like manner for the purpose of being produced in evidence at such trial". Things seized under s. 131A of the Health Act 1937 Q., as amended, may, under s. 130M(3) of that Act, be retained for a period of twelve months unless it is sooner established to the satisfaction of the Attorney-General that at the time of seizure and retention no offence against any provision of that Act in relation to that thing had been committed (in which case the thing shall be returned to the person from whom it was seized) or within that period proceedings for an offence against that Act in relation to that thing, or, in which that thing may be used as evidence, have been instituted (in which case the thing shall be retained until the final determination or other disposal of those proceedings). Section 10 of the Crimes Act 1914 Cth, as amended, makes no express provision as to the retention of things seized.

[21]

It would seem to us to follow from James v. Robinson that the possibility, or even the strong probability, that a witness called to testify before a Royal Commission will be charged with an offence provides an unlikely basis for a finding of contempt against the Commission in the event that the witness is questioned about matters which are relevant to the offence. He may never be charged. Indeed, any other approach would effectively prevent some Royal Commissions from fulfilling their task. This could be so in the present case, where the terms of reference require the Commissioner to investigate whether a particular person has been engaged in activities which involve contravention of the laws of the Commonwealth or of Queensland. The fact-finding activities of Royal Commissions are often a necessary aid to the executive, the Parliament and the public in bringing to light serious mischiefs which require a remedy, and in some instances an urgent remedy. It would impose a severe restriction on the capacity of the executive and of Parliament to introduce prompt reforms if Commissions were compelled to postpone the examination of witnesses with respect to their possible involvement in criminal offences until such time, if ever, as their criminal liability has been finally determined by the courts. In Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [53] , Gibbs C.J. contemplated that such a postponement would occur in the event of the actual institution of a criminal prosecution in the course of the inquiry. It is unnecessary to pursue this topic because a conclusive answer to the submission is that s. 6A in any event does not attempt to restrict the power of federal courts or courts exercising federal jurisdiction to punish for contempt. The fact that s. 6A(3) preserves the privilege only for a person who has been charged with an offence, but not for a person who has not been charged, would not preclude a court from restraining the Commissioner from examining a witness as to his Commission of an offence if in the particular circumstances of the case that examination amounts to a contempt. 1. (1963) 109 C.L.R. 593, at p. 606. 2. [1927] 1 K.B. 845, at p. 851. 3. [1903] 2 K.B. 432. 4. [1903] 2 K.B., at p. 438. 5. (1963) 109 C.L.R., at p. 607. 6. Ante, p. 25.

[82]

the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for (emphasis added). In a proceeding which is not presided over by a judge, how may a claim of privilege be disposed of? Is a witness obliged under a statute expressed in unqualified terms to answer each relevant question? Napier J. (as he then was) perceived the problem in Crafter v. Kelly [1] , where the Supreme Court held the privilege might be claimed by a person summoned under a statute that imposed an obligation, unqualified in terms, to give evidence although the statute provided no machinery for determining the validity of the claim. Napier J. said [2] : It must be clearly understood that we are not called upon to express any opinion upon the power of the director to insist upon an answer, if he sees no reasonable ground for apprehending danger to the witness. I have no doubt that the validity of the objection must be determined, in the first instance, by the board or person conducting the inquiry. That is, in my opinion, implied in the power to "examine witnesses on oath" (sec. 39 (1) (b)), but it may be debatable whether that determination is final, or subject to review by the Court of summary jurisdiction. With respect, I do not find this solution satisfying. The measure of the testimonial obligation cannot be ascertained by the administrative decision of the person presiding over the non-judicial tribunal unless the statute, either expressly or impliedly, empowers him to do so; and if he is empowered to do so, a court entertaining a prosecution for breach of the statutory obligation cannot hold the obligation to be larger than he held it to be. 1. (1882) 20 Ch.D. 294. 2. [1939] 2 K.B. 395, at pp. 403-404. 3. [1942] 2 K.B. 253, at p. 257. 4. [1941] S.A.S.R. 237. 5. [1941] S.A.S.R., at p. 249.