Express law No. 287

Background

While the case is of broad significance to regulators and law enforcement agencies, the issue arose in the somewhat different context of a coronial inquest.

Helicopter Resources provided services to the Commonwealth in the Australian Antarctic Territory. In the course of that work one of its pilots was killed in an accident. An inquest into his death was commenced in the ACT Coroner’s Court. The Commonwealth and Helicopter Resources were then charged with work health and safety offences relating to the accident.

In the coronial inquest, a dispute arose as to whether Helicopter Resources’ Chief Pilot (Captain Lomas) should be subpoenaed to be cross-examined about issues relevant to the accident. Helicopter Resources resisted this on the basis that he was its ‘guiding mind’ and his answers would reveal matters central to its defence of the prosecution. The Chief Coroner held that this did not prevent the subpoena and cross-examination.

Helicopter Resources challenged the Coroner’s decision in the Federal Court. It argued that calling Captain Lomas would be contrary to the accusatorial system of justice because it would arm the prosecution and the Commonwealth (as co-accused) with information about Helicopter Resources’ defence and with admissions which could be tendered against it in the prosecution under s 87(1)(b) of the Evidence Act 2011 (ACT) (Evidence Act). Bromwich J rejected this argument on the basis that Captain Lomas, not Helicopter Resources, was being compelled to give evidence, and he was in no different position from any other witness.

Helicopter Resources then successfully appealed to the Full Court of the Federal Court. The Full Court held that to subpoena Captain Lomas would fundamentally change Helicopter Resources’ position as an accused in the prosecution because s 87(1)(b) of the Evidence Act would make his evidence as admissible as an admission by Helicopter Resources itself.

Reasoning of the High Court

The High Court unanimously rejected the Full Court’s view that s 87(1)(b) of the Evidence Act had the effect that compulsory examination of an employee would be contrary to the fundamental principle that an accused cannot be required to assist the Crown to prove its case. This was so even if the employee in question may be of central importance to the employer’s defence or its ‘guiding mind’.

The following aspects of the plurality judgment (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon JJ) are important.

First, the accusatorial system of criminal justice is concerned with the position of the accused, not potential witnesses. Pre-trial examination of witnesses, including executive officers, has long been permitted and does not engage the general rule that an accused cannot be required to assist the prosecution.

Second, s 87(1)(b) of the Evidence Act does not have the practical result that, where an employee is compulsorily examined, the accused employer is in effect compelled to give evidence or otherwise assist the Crown in proving its case. All that s 87(1)(b) does is create a rule that an employee’s representations as to matters within the scope of their employment may be treated as admissions against the employer. That attribution under s 87(1)(b) can occur whether the representation is made by the employee under compulsion, or voluntarily.

Third, the accusatorial system does not require that an accused employer be free to prevent statements of an employee from being used as evidence against that employer. Any contract purporting to restrict an employee from cooperating with authorities in this respect would be unenforceable as contrary to public policy with the result that an employer could not exercise its contractual employer powers to purportedly direct their employee to not cooperate.

Finally, if a compulsory investigative procedure is sufficiently authorised by statute, it may be invoked even if the result would fundamentally alter the ability of an accused employer to defend criminal charges laid against them. In this respect, the Full Court’s reliance on Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 93 ALJR 1 was misplaced, as Strickland was concerned with gross unlawfulness in the interrogation of persons who were about to be charged with offences, not the examination of potential third party witnesses.

The High Court declined to rule upon the broader question whether the compulsory examination of a potential witness other than the accused could ever be a contempt, by improperly interfering with the administration of criminal justice.

Implications

This decision provides certainty to regulators and law enforcement agencies that s 87(1)(b) of the Evidence Act does not have the effect that the use of compulsory powers to examine employees of entities against whom criminal proceedings have been or may be commenced is contrary to the accusatorial system of criminal justice.

For example, even if a company has been charged with criminal offences, a senior employee of the company may still be compelled to give information relevant to those offences under a compulsory notice. And the company could not prevent the employee from assisting the agency with its investigations on the basis of the parallel criminal proceedings.

The plurality’s reasoning has broad application as s 87(1)(b) of the Evidence Act is in essentially the same form across those jurisdictions that have adopted the uniform Evidence Act (the Commonwealth, NSW, Victoria, Northern Territory and Tasmania).

The High Court appeal involved a high level of coordination within the Commonwealth. It showed how whole-of-Commonwealth issues can arise in surprising contexts – here, where a subpoena issued to a witness in a coronial inquest raised a legal issue with major implications for regulators and law enforcement agencies across the Commonwealth – and how a strong cooperative approach taken by multiple agencies working together as one Commonwealth can assist in achieving important outcomes to the everyday functioning of those agencies.

Another interesting aspect of this case is that it was brought to test the correctness of the Full Federal Court’s legal conclusions, but in circumstances where it was clear that the prosecution would have concluded before the High Court appeal was finalised. The plurality considered it appropriate to correct the error in a decision below, even in circumstances where the underlying context of the controversy had been resolved.

Text of the decision is available at: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/16.html

Paul Vermeesch and Jacqui Fumberger (AGS) acted for the Commonwealth in seeking special leave to appeal from the Full Court’s decision, and on appeal to the High Court.

The Solicitor-General of the Commonwealth appeared with Tim Begbie of AGS and Julia Watson of the Victorian Bar.