KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ. This is an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the operation of s 87(1)(b) of the Evidence Act 2011 (ACT). That provision relevantly entails that a representation by an employee of a party may be taken as an admission by the party if the representation relates to a matter within the scope of the employee's employment.
The principal question is whether the provision has the effect that invocation of an investigative power to compel an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence amounts to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case. For the reasons which follow, it does not. Thus, it is unnecessary to address the appellant's other appeal grounds.
Section 87(1)(b) of the Evidence Act
Section 87 of the Evidence Act provides as follows:
"Admissions made with authority
(1) For the purpose of deciding whether a previous representation made by a person is also taken to be an admission by a party, the court must admit the representation if it is reasonably open to find that -
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter in relation to which the representation was made; or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or 1 or more people including the party.
(2) For this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove -
(a) that the person had authority to make statements on behalf of someone else in relation to a matter; or
(b) that the person was an employee of someone else or had authority otherwise to act for someone else; or
(c) the scope of the person's employment or authority." (emphasis added)
The facts
The appellant ("the Commonwealth") engaged the first respondent ("Helicopter Resources") to provide helicopter services to the Commonwealth in connection with Commonwealth operations in the Australian Antarctic Territory. On 11 January 2016, Captain David Wood, a pilot employed by Helicopter Resources to provide some of those services, landed his helicopter at a point on the West Ice Shelf where, unbeknownst to him, a crevasse lay hidden by snow. After undertaking work on the ground, Captain Wood fell into the crevasse while attempting to reboard the helicopter and remained there for some hours. He died the following day from hypothermia.
By virtue of s 6 of the Australian Antarctic Territory Act 1954 (Cth), applicable laws of the Australian Capital Territory including the Coroners Act 1997 (ACT) apply in the Australian Antarctic Territory. Pursuant to the Coroners Act, on 19 September 2017 the Chief Coroner of the Australian Capital Territory commenced an inquest into the manner and cause of Captain Wood's death. The evidence before the Coroner included a statement by Helicopter Resources' Chief Pilot, Captain David Lomas, that was prepared for the purpose of the inquest.
By virtue of s 11 of the Work Health and Safety Act 2011 (Cth) ("the WHS Act"), the WHS Act extends to every external Territory, including the Australian Antarctic Territory. Under s 10 of the WHS Act, the Commonwealth is relevantly bound by, and may be liable for an offence against, the WHS Act. By information and summons laid on behalf of Comcare, the work health and safety regulator, in the Magistrates Court of the Australian Capital Territory on 20 December 2017, the Commonwealth (acting through the Department of the Environment and Energy) and Helicopter Resources were each charged as co-accused with three summary criminal offences against s 32 of the WHS Act.
The charges were apparently prosecuted by the Commonwealth Director of Public Prosecutions on instructions from Comcare. They alleged that failures to comply with the duty to ensure worker health and safety in three separate incidents had exposed workers to risks of serious injury or death. The second and third charges alleged breaches in relation to Captain Wood and another employee. The third charge arose directly out of the circumstances giving rise to Captain Wood's death.
As the Commonwealth and Helicopter Resources had different safety responsibilities in the Australian Antarctic Territory, they were likely to take different positions in both the coronial inquest and the criminal proceedings. By letter to the Coroner dated 31 January 2018, the Commonwealth requested that Captain Lomas be made available for cross-examination at the coronial inquest, on topics including Helicopter Resources' relationship with the Commonwealth in relation to responsibilities for risk identification and management.
Helicopter Resources applied to have the inquest adjourned, pursuant to s 36 or s 58(6) of the Coroners Act, pending the determination of the criminal proceedings. The Coroner refused that application and issued a subpoena for Captain Lomas to attend to give evidence pursuant to s 43 of the Coroners Act. Helicopter Resources then sought, but the Coroner refused, a direction that the examination of Captain Lomas not extend to matters arising in the criminal proceedings.
It is not in dispute that the matters on which it was proposed to cross-examine Captain Lomas at the coronial inquest were matters within the scope of his employment or authority within the meaning of s 87(1)(b) of the Evidence Act.
Proceedings at first instance
Helicopter Resources applied to the Federal Court for judicial review of the Coroner's decision to issue the subpoena. The basis of the application was that to compel Captain Lomas to give evidence at the coronial inquest on the proposed topics would prejudice Helicopter Resources in the criminal proceedings, and undermine the accusatorial nature of the criminal process, in two ways: first, by giving the Commonwealth, as co-accused, the forensic advantage of exploring the evidence that Captain Lomas might give if called in the criminal proceedings, which advantage would not be available under the ordinary rules of criminal procedure; and, secondly, by arming the prosecution with evidence and admissions, attributable to Helicopter Resources pursuant to s 87(1)(b) of the Evidence Act, which could be tendered in the criminal proceedings.
On 29 June 2018, the primary judge (Bromwich J) dismissed the application. His Honour reasoned that, although the accusatorial nature of criminal proceedings prevents the rights and privileges of an accused from being overridden without clear statutory authority, it was Captain Lomas, not Helicopter Resources, who was proposed to be examined at the coronial inquest, and Captain Lomas was in no "different position [from] any other witness who may be called at any inquest". It followed, in his Honour's view, that the forensic disadvantages identified by Helicopter Resources did not constitute an improper interference of the kind required by the authorities. Alternatively, Bromwich J held that, even if a real risk to the administration of criminal justice had been established, Helicopter Resources' application to stay the subpoena was premature as any interference may not eventuate.
Proceedings before the Full Court
Helicopter Resources appealed to the Full Court on the ground that the primary judge had erred in failing to hold that the compulsory cross-examination of Captain Lomas at the coronial inquest would constitute an impermissible interference with the administration of criminal justice. Helicopter Resources argued that it is a fundamental feature of the accusatorial system of criminal justice in Australia that neither the prosecution nor a co-accused is permitted a process of compulsory pre-trial examination of persons who may be summonsed to give evidence at trial, as part of either the prosecution or a co-accused's case.
The Full Court (Rares, McKerracher and Robertson JJ) did not accept that argument. Their Honours observed that the decision of this Court in Environment Protection Authority v Caltex Refining Co Pty Ltd "stands against the proposition that, of itself, the accusatorial nature of a criminal trial of a corporation means that an officer of the corporation may not be required to answer questions which tend to incriminate the corporation". Their Honours also observed that the so-called "companion rule" - "that an accused person cannot be required to testify" - "is not engaged [where] ... the prosecution is not seeking to compel the person charged with the crime ... to assist in the discharge of the prosecution's onus of proof".
But having so concluded, the Full Court then posed for themselves the question "Does s 87 of the ... Evidence Act have the effect that [Helicopter Resources] is being so compelled?", which their Honours answered as follows:
"In our opinion, the crucial and dispositive consideration in relation to the issue of interference is that if Captain Lomas were compelled to give evidence in the inquest, as a matter of practical reality, [Helicopter Resources'] position as an accused corporation in the criminal proceedings would be altered fundamentally. That is because s 87(1)(b) of the ... Evidence Act would make his evidence admissible, not merely as evidence of a witness of fact, but as evidence of an admission by [Helicopter Resources] itself."
No compulsion of the accused
The Full Court were correct not to accept the argument that compulsory pre-trial examination of a potential witness is inconsistent with the accusatorial system of criminal justice in Australia. Inquisitorial processes involving compulsory pre-trial examination by executive officers have formed part of English criminal procedure since the reign of Queen Mary, and the nineteenth century reforms which enshrined much that is fundamental to the accusatorial system of criminal justice, here as in England, retained compulsory pre-trial examination of witnesses, as distinct from the accused, in committal proceedings.
The Full Court were also correct in holding that the compulsory pre-trial examination of a potential witness does not engage the general rule that an accused cannot be required to assist the Crown in proof of its case. That rule has been identified as a companion to the fundamental principle that the burden is upon the Crown to prove the guilt of an accused beyond reasonable doubt. It applies to an accused, not a witness or potential witness other than the accused; and, self-evidently, the compulsory examination of a potential witness other than the accused does not in itself involve any compulsion of the accused to give evidence or otherwise to assist the Crown in proof of its case. Contrary to the Full Court's reasoning, however, that is so even where s 87(1)(b) of the Evidence Act has the effect that representations by the potential witness in the compulsory examination may be taken as admissions by the accused in the criminal proceedings.
Section 87(1)(b) of the Evidence Act departs from the common law primarily by extending the range of employees and agents whose representations may be treated as admissions against their employers or principals: from those having authority to make representations on the latter's behalf to those not so authorised but whose representations relate to a matter within the scope of their employment or authority. Thus, it may be accepted that, where an employee is compelled to give evidence about such matters, the employee is thereby compelled to give evidence that may be taken to be an admission by his or her employer. The provision does not, however, involve any "singular change" to the accusatorial system of criminal justice. To the contrary, the common law's "strict insistence upon the distinction between the agent's authority to act and his authority to speak concerning his action" was pilloried by Wigmore as making "a laughing-stock out of court methods", and, for similar reasons, Sir Rupert Cross considered it preferable to abandon the common law rule in favour of r 63(9) of the American Uniform Rules of Evidence as promulgated in 1953. Hence, as the Australian Law Reform Commission explained in the recommendation that spawned s 87(1)(b), the change which it effected was to improve the fairness of the adversary process:
"The primary argument for permitting an 'admission' by a third party to be proved against a party is based on the adversary nature of the trial system. It is fair to allow a party to be held responsible for an assertion made by a third party if that third party is an agent of the party acting under his authority. Thus, an admission made by a managing director should be admissible against the company, even if arguably unreliable, because he either had actual authority to make the admission or was put in a position where a reasonable observer would assume he had such authority. ... [I]t would seem that the best approach is to impose a requirement of authority to speak or a requirement that the statement relate to an area of personal responsibility." (emphasis added)
Certainly, s 87(1)(b) means that a previous representation made by an employee related to a matter within the scope of his or her employment and adverse to the interest of his or her employer in the outcome of the proceeding may be taken as an admission by the employer. And such attribution may occur even where the representation is made under compulsion of law, rather than volunteered by the employee. But the fact that an employee can be compelled to give evidence that may be treated as an admission against the employee's employer does not mean that the employer is thus compelled in effect to give evidence or otherwise to assist the Crown in proof of its case. Section 87(1)(b) does not require the employer to make the employee available on behalf of the employer or to authorise him or her to make admissions on the employer's behalf. Essentially, it does no more than create a rule that an employee's representations as to matters within the scope of the employee's employment may be treated as admissions against the employer. In the circumstances postulated, the obligation to give evidence is a personal obligation of the employee, and the consequences of the employee so giving evidence are ordained by s 87(1)(b) on the basis of the nature of the relationship between employee and employer that was voluntarily created by the employer.
Contrary to Helicopter Resources' submissions, there is nothing fundamental to the accusatorial system of criminal justice that requires that an accused employer be free to prevent statements of an employee from being used as evidence against the employer. And contrary to Helicopter Resources' submissions, it makes no difference that the employee in question may be of central importance to the employer's defence. An accused has no property in a witness or potential witness, even one who may be identified as the guiding mind of the accused or whose answers may be attributable to the accused. As Mason J explained in A v Hayden, the "interest in the enforcement of the criminal law" is "a fundamental head of public policy", and it implies "a powerful public interest in promoting and preserving the citizen's freedom to assist and co-operate with the authorities in the investigation and prosecution of crime". Thus, terms of employment and other contractual arrangements that purport to prohibit an employee from giving evidence in criminal proceedings, even as against his or her employer, are unenforceable as contrary to public policy.
Finally, the Full Court supported their decision with reference to the plurality's conclusion in Strickland (a pseudonym) v Director of Public Prosecutions (Cth) that the unlawful examination of accused persons about matters in relation to which they were likely to be charged would, as a matter of practical reality, fundamentally alter the position of those persons in subsequently instituted criminal proceedings. But the Full Court's reliance on that conclusion was misplaced. Strickland was concerned with grossly unlawful interrogation of persons who it was known or believed would shortly be charged with criminal offences. In holding that the administration of justice would be brought into disrepute unless the extraordinary remedy of a permanent stay of prosecution were granted, the plurality relied on that gross unlawfulness and the indeterminate element of incurable prejudice arising, as a matter of practical reality, from the widespread, uncontrolled dissemination of the examination product, including to federal prosecutors.
Strickland had nothing to do with the lawfulness of compulsory interrogation of potential third-party witnesses. In particular, the plurality in Strickland did not suggest, and the decision does not support, the notion that appears to have found favour with the Full Court that, because an otherwise lawful compulsory investigative procedure may result in a witness making representations that can be treated as an admission against an accused in subsequent criminal proceedings, the deployment of that procedure amounts, without more, to a breach of the companion rule or other interference with the accusatorial system of criminal justice. To the contrary, as this Court made clear in R v Independent Broad-Based Anti-Corruption Commissioner, if a compulsory investigative procedure is sufficiently authorised by statute, it may be invoked notwithstanding that, as a matter of practical reality, the result will fundamentally alter the ability of an accused to defend charges that may have been or may be laid against him or her.
Contempt
At first instance, Helicopter Resources' principal argument was that to compel Captain Lomas to give evidence at the coronial hearing, before the conclusion of the criminal proceedings, would constitute a contempt of court. The argument was based on a number of authorities in which the courts have considered whether the examination of a person while parallel criminal proceedings against the person are pending involves an improper interference with the due administration of criminal justice.
The primary judge rejected the argument. His Honour observed that the cases on which Helicopter Resources relied were all matters in which it was sought to compel an accused person to give evidence and none of them supported the broader proposition for which Helicopter Resources contended, that the compulsory examination of an employee of an accused person involves an improper interference with the due administration of justice. In turn, his Honour relied on a critical distinction between something that rises to the level of interference with criminal proceedings and the mere potential for an executive or quasi-executive inquiry to have an effect on the interests of the accused in criminal proceedings. As no improper interference was established, his Honour concluded that it was difficult to see how the compulsory examination could amount to contempt.
Before the Full Court, Helicopter Resources pressed its claim that the compulsory examination of Captain Lomas might amount to a contempt of court. But, as has been seen, the Full Court decided the matter on the narrower basis that, because s 87(1)(b) of the Evidence Act would make Captain Lomas' evidence before the Coroner admissible as evidence of an admission by Helicopter Resources, the effect of compelling Captain Lomas to give evidence was to compel Helicopter Resources to give evidence against itself.
When the Commonwealth's application for special leave to appeal from the Full Court's decision came on for hearing on 21 June 2019, it was anticipated that the criminal proceedings would be concluded before the appeal to this Court could be heard. Helicopter Resources thus opposed the application for special leave on the basis that, regardless of the outcome of the appeal, it would be devoid of practical utility. But Helicopter Resources otherwise expressed no interest in opposing the appeal, so long as the Commonwealth agreed to pay its costs of the appeal on a solicitor/client basis, much less an intention to defend the Full Court's orders on any basis other than that the Full Court were correct as to the effect of s 87(1)(b). In the result, special leave to appeal was granted on amended grounds that the Full Court erred as to the meaning and effect of s 87 of the Evidence Act, and thus as to the scope and effect of the accusatorial principle, by treating that provision as preventing an employee of a corporation from being compelled to provide evidence relevant to pending criminal charges against that corporation; and the grant of special leave was conditioned on the Commonwealth paying Helicopter Resources' solicitor/client costs of the appeal.
Subsequently, Helicopter Resources sought leave to file a notice of contention, out of time, to the effect that, if the Full Court were not correct in their construction of s 87, the Full Court's decision should be upheld on the basis that compelling Captain Lomas to give evidence at the coronial inquest would constitute a contempt of court by creating a real risk of interference with justice according to law. The Commonwealth opposed the application as inappropriate given the circumstances in which, and the basis on which, special leave to appeal was granted. In order, however, to decide whether it was appropriate to extend time for the filing of the notice of contention, counsel for Helicopter Resources was allowed to present full argument in support of the contention and the Commonwealth was heard in reply.
Having heard the argument, we are not disposed to grant the extension of time that is sought. As was anticipated at the time of granting special leave, the criminal proceedings have now concluded; and Helicopter Resources was acquitted of the offences with which it was charged. Consequently, any decision as to whether the issue of the subpoena for the compulsory examination of Captain Lomas was a contempt of court is no longer of interest to Helicopter Resources, and Helicopter Resources will suffer no prejudice if that question remains undetermined.
Moreover, whether an exercise of compulsory investigative powers creates a real risk of improper interference with criminal proceedings, and thus amounts to a contempt of court, turns on questions of fact and degree dependent on all the circumstances of the case. In the result, any determination of whether the subpoena issued to Captain Lomas amounted to a contempt of the criminal proceedings in this case would be unlikely to provide any meaningful guidance for the determination of the issue in another, different case. Possibly, it might assist in resolving the fundamental question of whether the compulsory examination of a potential witness other than an accused can ever amount to a contempt of court. But it would be more likely to generate a perception of certainty that would not be warranted. It cannot be foretold what circumstances might arise in other proceedings, and it would be inappropriate for this Court to conjecture as to hypothetical circumstances in which contempt might be established by the compulsory examination of a third party.
Conclusion
For these reasons, leave to file the notice of contention should be refused, and the appeal should be allowed. Orders 1 and 2(a) of the Full Court should be set aside, and, in their place, it should be ordered that the appeal to the Full Court be dismissed. In accordance with the conditions on the grant of special leave, the Commonwealth shall pay Helicopter Resources' reasonable costs on a solicitor/client basis.