Appeal dismissed: Difficult to avoid public IBAC probe

Litigation Update


R & Anor v. Independent Broad-Based Anti-Corruption Commissioner

On Thursday 17 March 2016, the High Court dismissed an appeal against a decision of the Victorian Court of Appeal relating to the powers of the Independent Broad-based Anti-corruption Commission (IBAC). Pursuant to section 115 of the Independent Broad-based Anti-Corruption Act 2011 (Vic) (the IBAC Act), IBAC was seeking to hold a public examination of two police officers accused of assaulting a woman in custody and who potentially face criminal charges in respect of this incident (the appellants). This is the first time the function of IBAC has been tested before the High Court.

The Victorian Court of Appeal earlier held that the IBAC Act permitted the examination of the appellants regarding facts that were also relevant to an on-going criminal investigation. In the High Court, the appellants argued that the IBAC Act did not contain any express words or necessary intendment that abrogated the privilege against self-incrimination or the companion rule that would permit IBAC to proceed with the public examination of the appellants. (The companion rule provides that a prosecutor cannot compel an accused to assist in discharging the prosecution's onus of proof.)

The joint judges of the High Court rejected the appellants' contention that the IBAC Act does not authorise an examination of an examinee, or the giving of answers, that might incriminate an examinee where there are reasonable grounds to suspect the person might be guilty of an offence. They noted that the companion rule was not engaged because the appellants had not been charged. The High Court declined to extend the operation of the companion rule to cover this situation. The High Court agreed with the reasoning of the Victorian Court of Appeal that the IBAC Act manifests an unmistakable legislative intention that an examinee might be a person whose conduct is the subject matter of the investigation.

The High Court also held that section 144 of the IBAC Act abrogates the privilege against self-incrimination in the context of public examinations in IBAC investigations. The consequence of this finding is that a person examined before IBAC in the course of an investigation is not immune from answering a question, even if the answer to that question might tend to incriminate them for a criminal offence. The person's answer to that question can be used by the IBAC for the purpose of the investigation but the answer cannot be admitted against the person in any prosecution for that offence.

This judgment highlights that even if a person's conduct may result in them being charged with an offence, they may still be compelled to assist IBAC in an investigation relating to that conduct. IBAC will rely on this decision when addressing any application by witnesses to be excused from giving evidence at public examinations in similar circumstances.