R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8
Thursday 10 March 2016 @ 12.28 p.m. | Legal Research
The High Court has dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria, and held that the Independent Broad-based Anti-corruption Commission (IBAC) has the power to examine people who have not yet been charged, but may be, in matters relating to the subject under investigation. Six of the seven High Court justices wrote a joint opinion, with Gageler J writing separately, but concurring in the decision.
Facts of the Case
The case arose from an IBAC investigation into the Victorian Police, and in particular, an allegation that members of the police force assaulted a female in a cell at the Ballarat police station on 15 January 2015. There were also a number of other allegations made about incidents at the Ballarat police station that involved human rights violations of other women.
On 1 April 2015, IBAC issued witness summons to the two police officers who were the appellants in the High Court case. The summons required them to give evidence in a public examination. The appellants made written submissions to to IBAC that submitted that the appellants’ examinations be private, and, in the first appellant’s case, submitting that the first appellant could not be compelled to give evidence. The IBAC Commissioner rejected these submissions, and the appellants applied to the Supreme Court of Victoria for judicial review of this decision.
The Supreme Court
The appellants argued in the Supreme Court that:
“the IBAC Act could not be construed as permitting the compulsory examination of a person reasonably suspected of a crime because that "would effect a fundamental alteration to the process of criminal justice" by requiring that person to assist in his or her own prosecution.” [at 30]
However, this argument was rejected by the primary judge, who held that the process of criminal justice had not commenced as the appellants had not yet been charged with an offence.
The argument was also rejected by the Court of Appeal.
Decision
The High Court agreed with the Court of Appeal and dismissed the appeal. The majority upheld the argument that the appellants could not rely on the so-called “companion principle”, which the High Court defined in Lee v The Queen (2014) 253 CLR 455 at 467 as:
“The companion rule to the fundamental principle [that it is for the prosecution to prove the guilt of an accused person] is that an accused person 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 majority decision declined to extend this principle to the appellant’s situation, noting they had not been charged, and that:
“to reformulate the principle as the appellants urge would be to extend its operation beyond the rationale identified in the authorities, namely, the protection of the forensic balance between prosecution and accused in the judicial process as it has evolved in the common law.” [at 48]
In his concurring opinion, Gageler found that the appellant’s construction would effectively frustrate the object of the IBAC Act, saying:
“Legislation is sometimes harsh. It is rarely incoherent. It should not be reduced to incoherence by judicial construction.
… any common law principle or presumption of interpretation must surely have reached the limit of its operation where its application to read down legislation plain on its face would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or nonsensical . The appellants' invocation of the companion rule to read down the IBAC Act would do both. [at 76-77]”
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Sources:
R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8 & judgment summary
