Sorby v Commonwealth [1983] HCA 10

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan and Dawson JJ. Sorby v Commonwealth [1983] HCA 10

ORDER

1. That the demurrer of the Commonwealth be allowed.

2. That the demurrer of the Attorney-General for Queensland be allowed in respect of pars. 6, 6(a), 7 and 8 and claims C and D, of the statement of claim, and that otherwise the demurrer be overruled.

3. That the plaintiffs pay to the Commonwealth the costs of the demurrer.

4. That there be no order as to the costs of the demurrer by the Attorney-General for Queensland.

Cur. adv. vult.

The following written judgments were delivered:—

March 18 Gibbs C.J.

This case raises for decision important questions in relation to the conduct of an inquiry which is being conducted by a Royal Commissioner who has been appointed by letters patent issued in substantially the same terms by the Administrator of the Government of the Commonwealth and the Governor of the State of Queensland. The questions concern the power of the Commissioner, acting under either Commission, to compel a witness to answer questions in respect of which the witness has claimed privilege against self-incrimination, and the power of the Commissioner to take into his possession, retain and use, and, in the case of documents, to copy, things which have been seized under search warrant from the homes of their owners.

The case comes before the Court by way of demurrer. The facts alleged in the amended statement of claim, which for the purposes of the demurrer must be accepted as correct, and appearing from the documents which must be read with the statement of claim, are as follows. On 25 June 1981, the Governor-General of the Commonwealth and the Governor of the State of Queensland each issued letters patent appointing the Honourable Donald Gerard Stewart, a judge of the Supreme Court of New South Wales, to inquire into, inter alia, whether one, Terrence John Clark, was engaged in activities involving contravention of the laws of the Commonwealth and of the State of Queensland respectively, and in particular laws relating to the importation, exportation or possession of drugs, and as to the identity of persons associated with the said Terrence John Clark and the extent and nature of the activities and methods of operation of the said Terrence John Clark and his associates. The Royal Commissioner, purporting to act pursuant to each of the letters patent, on 2 September 1982, called the second plaintiff to give evidence and, over objection, declined to warn him that questions put to him need not be answered on the ground that they might incriminate him. On 21 October 1982 the Royal Commissioner, again purporting to act pursuant to each of the letters patent, called both of the plaintiffs as witnesses, and, over objection, declined to allow either plaintiff to refuse to answer questions on the ground that they might incriminate him, and directed and compelled each plaintiff to answer questions asked of him without regard to the tendency of such questions to incriminate him. On 12 October 1982 the homes of the plaintiffs and their families were searched by officers of the Australian customs service and the Queensland police force "together with members of the Queensland police force seconded to act as officers of the Royal Commission". The searches were made under warrants issued under either s. 10 of theCrimes Act 1914 Cth, as amended, s. 679 of the Criminal Code Q. or s. 131A of the Health Act 1937 Q., as amended. As a result of these searches various things were seized and given into the custody of the Royal Commissioner, who has retained possession of some of the things seized, and who claims to be entitled to use them, or to make copies of such as are documents, for the purposes of his inquiries as Royal Commissioner. The Royal Commissioner now intends to compel the attendance before him and the examination on oath of the plaintiffs in respect of matters concerning the search and seizure of their property and concerning matters which, either alone or in combination with other matters, may incriminate the plaintiffs. It should be observed that it is not alleged that either plaintiff has been charged with any criminal offence, still less that any criminal proceedings are pending against either plaintiff.