R v IBAC [2016] HCA 8 –High Court considers the companion rule, the privilege against self-incrimination and whether an anti-corruption agency examine persons who may be charged with a criminal offence

In the case of ICAC v Cuneen [2014] HCA 14 the High Court examined the powers of the Independent Commission Against Corruption (ICAC), causing intense media and legal scrutiny of the powers of ICAC and other anti-corruption agencies. In 2016 the High Court has turned its focus to ICAC’s Victorian equivalent, the Independent Broad-based Anti-corruption Commission (IBAC). In R v IBAC [2016] HCA 8 (R v IBAC), the High Court examined the question of whether IBAC could summon two police officers who had allegedly committed assault and who may be charged with the offence to give evidence before IBAC about the same matters. The decision is important in that it reaffirms the principles of the privilege against self-incrimination, is an example of how statute can abrogate common law rights, and indicates how other anti-corruption agencies with similar statutory regimes (such as ICAC) should approach such situations.

Before reading this blog post I recommend you read my blog post detailing the main differences between ICAC and IBAC.

Facts

Victoria Police commenced “Operations Ross” on 20 March 2015 to investigate alleged incidents at Ballarat police station which may have involved human rights violations in respect of women. One particular incident to be investigated was whether police officers assaulted a woman in a cell on 15 January 2015. IBAC decided to investigate the matter using its powers to investigate serious police personnel misconduct and issued summons to the police officers on 1 April 2015 to give evidence in public examination of their knowledge of matters in Operations Ross. The police officers were suspended from duty on 2 April 2015 on the basis they were reasonably believed to have committed the offence, but were not charged at that point in time. The police sought to challenge the power of IBAC to publicly examine persons on the same matter for which they are likely to be charged with an offence.

Two legal questions before the High Court

1.       Does the “Companion Rule” extend to situations where a person has not yet been charged with an offence?

2.       Does s.144 of the IBAC Act apply to persons not yet charged with an offence?

Road to the High Court

On 10 April 2015 the police wrote to the IBAC Commissioner and submitted that they could not be compelled to give evidence. The IBAC Commissioner rejected the submissions on 15 April 2015. On 16 April the police commenced judicial review proceedings in the Supreme Court of Victoria seeking orders preventing IBAC from examining the police officers. Justice Riordan rejected the argument holding that as the appellants had not yet been charged with an offence the process of criminal justice had not commenced and the entitlement to protection from self-incrimination was not yet operative. The police were also unsuccessful before the Court of Appeal, where their Honours held the IBAC Act “intended that the persons, who might be examined, include persons who might have been implicated in that conduct”. 

High Court decision

The High Court unanimously dismissed the appeal and held:

1.       The “Companion Rule” does not extend to situations where a person has not yet been charge with an offence; and

2.       Section 144 of the IBAC Act applies to all persons issued with a witness summons, including persons not yet charged with a criminal offence.

French CJ, Kiefel J, Bell J, Keane J, Nettle J, and Gaudron J gave reasons in a joint judgment and Gageler J wrote separate reasons.

High Court’s legal analysis

1.       The “companion rule”

The fundamental principle of the common law in criminal proceedings is that the prosecution must prove the guilt of the accused person. The companion rule is derived from this fundamental principle and was enunciated by the High Court in Lee v The Queen (2014) 253 CLR 455:

“The companion rule to the fundamental principle is that an accused cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.”

The authorities make it clear that the operation of the companion rule is dependent on the judicial process having been engaged by a person being charged with but not yet tried for a criminal offence. In R v IBAC, the appellants asserted as one of their submissions that the police under investigation could not be summoned to give evidence before IBAC as it would breach the companion rule. The High Court held in the present case the companion rule is not engaged as the appellants have not been charged and no prosecution is pending ([48]). The High Court refused to extend the operation of the companion rule to situations where a person had not yet been charged for the following reasons:

1.       The rationale behind the authorities for the companion rule is to protect the forensic balance between prosecution and accused in the judicial process as it has evolved at common law – this rationale does not extend to persons who have not yet been charged ([48]).

2.       Extending the companion rule in this instance would be contrary to the objects of the IBAC Act which include identifying, investigating and exposing police personnel misconduct (s.8 IBAC Act), and applying the companion rule in anticipation of commencement of criminal proceedings would frustrate the ability of IBAC to carry out this object ([51]).

3.       The appellants failed to clearly enunciate the extent to which the companion rule should be extended, varying their submissions from “persons reasonably believed to have committed a criminal offence” to “a person the specific subject of an investigation” to “a person reasonably suspected of having committed a criminal offence” ([49]).

4.       If the companion rule was extended to protect persons reasonably suspected of having committed a criminal offence, there is uncertainty as to who is to hold the suspicion, especially where different persons having access to different bodies of information may have different views on the issue ([50]).

Gageler J gave similar reasons to the joint judgment, concluding that the extension of the companion rule in this situation frustrates a clear object of the legislation which is “the identification, investigation and exposure of serious corrupt conduct and police personnel misconduct” ([74]) and ([77]).

His Honour also noted a number of issues not considered in the joint judgment did not consider. First Gageler J noted the importance of considering Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Victoria’s Charter), and in particular how the companion rule interacts with s.25(2)(k) which contains the right of a person charged with a criminal offence “not to be compelled to testify against himself or herself to confess guilt”. His Honour did not answer the question as it had not been explored in argument. Second, Gageler J noted that no attention had been given to the detailed statement of compatibility provided to Victorian Parliament when the IBAC Bill was debated. The statement of compatibility usefully explained that the abrogation of an individual’s right against self-incrimination was justified in this instance “to assist the IBAC in its functions as a truth-seeking body that is able to undertake full and proper investigations”. Neither the appellants nor respondents considered the statement of compatibility in argument.

2.       Self-incrimination and section 144 of the IBAC Act

Ordinarily a person is entitled to claim the privilege against self-incrimination where a person’s answer is likely to incriminate them. This privilege is based on the fundamental principle that the prosecution must prove the guilt of the accused and that an accused has the right to remain silent. The High Court referred to Sorby v The Commonwealth (1983) 152 CLR 281 where Gibbs CJ referred to R v Boyles (1861) 1 B&S 311 in enunciating when the privilege against self-incrimination is enlivened:

“to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the person is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer”.

The common law privilege can be curtailed by statute. In R v IBAC, the High Court held that the IBAC Act clearly intended to abrogate the common law privilege against self-incrimination, as the broad purpose of Pt 6 of the IBAC Act is to obtain material not presently available to advance the objective of maintaining public confidence in the police force ([55]), and such information would likely include information that may be self-incriminating. Further, s.144 clearly abrogates the privilege.

Section 144 provides that a witness is not excused from answering a question, giving information or producing a document when summoned on the ground the answer, information or document might tend to incriminate the person (s.144(1)). However, while this information must be given by a witness summoned by IBAC, the self-incriminating information cannot be used against the witness in judicial proceedings (subject to a few limitations) (s.144(2)).

The appellants argued that s.144 does not apply to persons yet to be charged with a criminal offence. The High Court rejected this argument, as the section read with the evident purpose of the IBAC Act points to an intention that s.144 applied to all witnesses summoned including witnesses who have not yet been charged with an offence, as objective of maintaining public confidence in the police force may include obtaining information that is self-incriminating. 

Gageler J gave similar reasons to the joint judgment noting:

·         The IBAC Act clearly manifests the intention that a person summoned and examined might be a person whose criminal police personnel misconduct is the subject matter of the investigation; and

·         The use of the word “a person” in s.144 clearly contemplates any witness summoned cannot be excused from providing information on the grounds of self-incrimination.

Implications and lessons to learn

The case reaffirmed that the companion principle only applies to persons charged with a criminal offence. It is also a useful example of how the common law privilege against self-incrimination can be abrogated by statute. ICAC’s statute contains a similar provision to s.144 of the IBAC Act which abrogates the common law privilege against self-incrimination but provides this information can only be used for the purposes of the investigation concerned (s.26 ICAC Act), so R v IBAC indicates how the High Court would decide a similar case in the NSW jurisdiction.

In R v IBAC the High Court also reaffirmed IBAC’s clear powers to summon any person for examination. ICAC’s statute contains similar provisions, so the decision may have some value in reaffirming ICAC’s powers to summon any person for examination.  

Importantly for those practising working with Victorian statute, Gageler J’s reasons provide useful reminders to ensure you consider Victoria’s Charter and statement of compatability in your submissions and argument, as it may be helpful for interpretation purposes, and some judges find these arguments particularly persuasive.