Sankey v Whitlam
142 CLR 121 ALR 505
(Judgment by: JACOBS J)
Between: SANKEY
And: WHITLAM
Judges:
Gibbs ACJ.
Stephen J.
Mason J.
Jacobs J.Aickin J.
Subject References:
Criminal Law
Evidence
Declaration
Judgment date: 9 November 1978
Sydney
Judgment by:
JACOBS J
I agree that no offence is disclosed by the allegations in the first count of the information. As to the production of the documents claimed to be the subject of Crown privilege, I am of the opinion that the learned magistrate ought not to order production of any of these documents until it is determined whether the allegations in the second count of the information to which the documents are said to be material constitute a criminal offence. Both this question and the question whether documents of the kind under review ought to be produced to a court are unprecedented. The former question and to some extent the latter question raise matters which go to the root of our system of responsible government under a constitutional monarchy. Executive Councillors are not only responsible to Parliament but they, and not the Crown or its representative, are criminally responsible for their substantive acts. It does not matter that the acts are purportedly done by authority and in the name of the Crown. But it is a different question whether Executive Councillors are not only responsible under the criminal law for what they do but also may be responsible not only to the Parliament but also under the criminal law for the act of agreeing among themselves to give advice to the Crown in the federal Executive Council in relation to an act not itself criminal. This question must in my opinion first be determined. Otherwise there is a risk that documents of a kind not ordinarily allowed to be produced in a court will be so produced for no legal purpose and this situation should in my opinion be avoided .