Director-General, NSW Department of Industry & Investment v Mato Investments Pty Ltd & Ors

Defendants' submissions 7Mato and Mr Bennett are separately represented. The submissions by Mato's counsel in relation to the global objections to the ROI were largely adopted by Mr Bennett's counsel. 8The first global objection made to the entire ROI is that Mr James Lawrence Coomes, a potential defendant, attended the interview with Mr Bennett and was present throughout. He is described at the outset of the interview as a friend of Mr Bennett. He is identified by Mr Bennett as being the project manager appointed by Mato in the course of the interview and his role was discussed (ROI at par 167 - 174). Mr Bennett was asked questions which concerned Mr Coomes' role as project manager. 9Mr Coomes was a potential defendant at the time of the interview and was present throughout. At the meeting on 25 October 2007 at Kunanadgee where Mr Potter met Mr Bennett and others, Mr Coomes was identified as the project manager who was sick. Notes of persons with possible involvement including Mr Coomes identified as the project manager who was sick are in MFI 2 and notes of the meeting identifying Mr Coomes as the project manager are in MFI 4. That Mr Coomes was the project manager was known to Mr Potter at the time of the interview on 12 November 2007. 10The Court should infer that the presence of Mr Coomes impinged on Mr Bennett's ability to speak freely. The Court needs to consider whether it is likely that had Mr Coomes not been present, Mr Bennett would have said something different and that there was the possibility of a different answer or answers to the questions posed. The Court cannot be satisfied that the answer given would be the same if Mr Coomes had not been there. These circumstances were unfair and unfairly prejudicial to Mato and to Mr Bennett personally. These circumstances also suggest the evidence was obtained improperly. 11The second global objection made to the whole ROI was that the reference by Mr Bennett on numerous occasions to "we" is misleading and ambiguous given the presence of Mr Coomes which means that it is unclear whether "we" refers to Mato and Mr Bennett and/or Mr Coomes. 12Brennan CJ in Swaffield at [22] - [24] identifies the relevant common law principles to consider in relation to improperly obtained evidence which require the Court to balance public policy considerations concerning the administration of justice with principles of fairness. These common law principles were held to apply in relation to s 138 of the Evidence Act in Em . 13Public policy considerations in the proper administration of justice must be protected and conducting an ROI where Mr Bennett was representing both a corporate defendant and himself personally when a potential defendant was present was improper and unfair. This procedure was highly irregular. 14Alternatively, Mato's counsel submits that large parts of the ROI should be struck out under the principles in Plevac at 579 - 581, particularly principles 2, 6, 7, 9 and 11. Many of the questions about the meeting on site on 25 October 2007 (including questions at par 105, 108, 131, 132, 139 and 140) are hearsay assertions made to Mr Bennett of what was said on that occasion and should not be allowed, relying on principle 11 in Plevac and s 59 of the Evidence Act. The questioning at par 149 - 169 is persistent and applies undue pressure to Mr Bennett in breach of principle 2 in Plevac . Questions at par 187 - 188 breach principle 11 as there is a hearsay assertion and no admission of what was put. Questions at par 279 - 280 do not satisfy principle 6 as no admission is being made. Questions at par 287 - 288 do not satisfy principle 7 as the answer given is not capable of being regarded as an admission and is therefore irrelevant. Generally the admissions sought are hearsay and cannot be relied upon: s 59 Evidence Act.

Prosecutor's submissions 15The principles in Plevac are embraced and apply so that none of the ROI should be struck out. The ROI must be considered in its entirety and at the outset clearly identifies who is attending, for what reason, that Mr Bennett was attending for himself personally and on behalf of Mato, whether he wishes to communicate with a friend or wishes to have a lawyer present and he is properly cautioned. At the end he has the opportunity to make a further statement and agrees that there has been no coercion or inducement in providing his answers. The interview lasted for one hour and fifty minutes. His responses at par 43 - 44 of the ROI of how he was authorised by the company to appear show that he gave thought to attending the interview. The ROI was conducted in accordance with principle 1 in Plevac . The conduct of the ROI was orthodox, including putting formally to the interviewee what he said on an earlier occasion, 25 October 2007. The whole context of the interview suggests no unfairness or impropriety. 16In relation to the global objections made, that answers are provided in terms of "we" is clearly a reference to the fact that Mr Bennet is answering on behalf of himself and Mato. No inference arises from the interview that Mr Coomes is included in "we". In any event, ambiguity alone is not a reason that evidence of an admission is not admissible. 17In relation to the attendance of Mr Coomes, it can be inferred that he attended at the request of Mr Bennett. The unusual situation was brought about by Mr Bennett. Mr Coomes is described as a friend at the outset of the interview. He is identified in the course of the interview as the project manager. Mr Bennett's ROI was the first conducted by law enforcement officers from the prosecuting department. Later knowledge which lead to Mr Coomes being charged as another defendant cannot be imputed to Mr Potter at the time of this interview. While his presence was unusual and possibly undesirable, given these circumstances and the fair manner in which the interview was conducted there can be no suggestion of impropriety on the part of the investigating officers as a result of his attendance. Nor was there any unfair prejudice or unfairness. The principles in Swaffield which are relevant to s 138 do not apply as there is no impropriety. There is no reason to constrain law enforcement practices here. 18In relation to the objections made to parts of the ROI based on the principles in Plevac , principles 5 and 6 apply to much of the ROI as the answers to questions are admissions or are capable of being regarded as an admission. The word "admission" has a wide definition as found in the dictionary to the Evidence Act. Principles 7 and 8 should be read together as principle 8 recognises the necessity for questions which set the scene. Principle 9 has less relevance here where there is no jury. It is premature to rely on principle 11 in relation to matters which the Crown cannot prove as the affidavit of Mr Potter is yet to be read. There is no prohibition on putting hearsay assertions where the answer is capable of amounting to an admission, see questions at par 105, 106 and 107. All of the questions in the interview were relevant to the issue of whether snags in the river or woody debris had been removed, how and by whom and were clearly relevant to the charges in the summons. The hearsay rule does not apply to admissions: s 81 Evidence Act. 19The Defendants bear the onus of proof on the balance of probabilities and have not met that onus of establishing that Mr Potter had any suspicion that Mr Coomes was a possible defendant at the time of the ROI.

Finding 20I note that the wording of s 90 suggests ("the court may"), and the authorities in Stephen Odgers, Uniform Evidence Law , 9th ed (2010) Lawbook Co at [1.3.5760] confirm, that the Court has a broad discretion under s 90 as to whether evidence should be admitted or refused. Section 137 contains mandatory language ("the court must") and the authorities discussed at [1.3.14740] of Odgers suggest that the Court must exclude evidence if its probative value is outweighed by the alleged danger to a defendant. At 745 of Odgers R v SJRC [2007] NSWCCA 142 is referred to as holding that the power in s 137 is not appropriate to be used simply because the evidence is "ambiguous". 21Considering firstly the global objections of the Defendants to the ROI, the onus of establishing on the balance of probabilities unfairness and unfair prejudice in relation to s 90 and s 137 falls on the Defendants. The Defendants' objections to the ROI in relation to Mr Coomes being present throughout are being determined before any evidence of the Prosecutor or the Defendants, if any, is read. The Court has before it the ROI, MFI 2 being a note of Mr Potter made at a meeting on site on 25 October 2007 referred to in the ROI, and notes of what occurred at that meeting in MFI 4. The Defendants' submissions of unfairness and unfair prejudice were based in part on the Court being asked to infer certain matters from the ROI because it was known that Mr Coomes was the project manager at the meeting on 25 October 2007. He is identified in MFI 2 as being sick on that day. Particulars in relation to the allegation that Mr Coomes was a project manager for Mato were relied on by the Defendants (MFI 3) because the Prosecutor relied at (xxii)(c) on his presence at the ROI with Mr Bennett where Mr Coomes did not demur when he was so described. That does not advance the Defendants' case as that fact alone does not demonstrate unfairness or unfair prejudice. 22The submission was made that I should infer that Mr Bennett may have answered as he did because, firstly, Mr Coomes was present and secondly, he had been sick possibly during the period of the offences. It was also put that the inference should be drawn that there was the possibility that Mr Bennett might have given different answers if Mr Coomes had not been present. The material in the ROI and MFIs 2, 3 and 4 provide no assistance to the Defendants in establishing any relevant evidence to support such inferences. 23I agree with the Prosecutor that the presence of Mr Coomes was unusual and probably also undesirable. All of the circumstances of the ROI should be considered as identified in the Prosecutor's submissions outlined above in par 15 above. Given that Mr Coomes attended voluntarily, I infer at the request of Mr Bennett, there is no word from Mr Coomes during the ROI, he played no role whatsoever and none of Mr Bennett's responses suggest that he was in any way affected in the giving of his answers by the presence of Mr Coomes so that no unfairness or unfair prejudice arises. That Mr Coomes later became a defendant cannot be knowledge imputed to Mr Potter at the time of this interview on 12 November 2007, the first ROI held after the on-site meeting on 25 October 2007. Mr Coomes was not interviewed until 12 December 2007. There is no basis for suggesting that there was any unfairness or unfair prejudice to Mr Bennett in these circumstances. 24The second basis for the global objection was that "we" used on numerous occasions by Mr Bennett in his responses to the questions in the ROI was ambiguous because it was not clear if this was a reference to Mato, Mr Bennett and/or Mr Coomes. I do not agree that any ambiguity arises when the questions the subject of the criticism are considered. These refer to Mato and to Mr Bennett personally on numerous occasions. When considered in the context of the question posed there can be no suggestion that Mr Bennett's answers were intended to include Mr Coomes when he refers to "we". 25No authority has been provided by the Defendants of any similar circumstance and it was submitted that none were found suggesting that having two possible defendants at a ROI was not usual practice. That may well be the case and the practice is probably not desirable but whether the particular circumstances resulted in unfairness or unfair prejudice must be considered. The mere fact of the presence of Mr Coomes does not alone result in that finding. The Defendants have not discharged the onus upon them of establishing unfairness or undue pressure in relation to the global objections to the ROI. 26In relation to s 138 the threshold issue arises of whether the evidence sought to be relied on was improperly obtained. The circumstances referred to in s 138(2) do not arise here. The Defendants bear the onus on the balance of probabilities of establishing that the evidence was improperly obtained. The submission made was that the presence at the ROI of Mr Coomes, who is later identified by the Prosecutor as a defendant, was improper. That he was known to Mr Potter as the project manager before the ROI on 12 November 2007 is said to compound the problem. The public policy question is whether a suspect should be asked questions about a criminal matter in front of another person of interest. For the reasons given above at par 23 in relation to s 90 and s 137, the presence of Mr Coomes alone does not suggest impropriety in the conduct of the ROI. Section 138 does not therefore apply. 27The circumstances of this case are far removed from cases such as Swaffield and Em which were concerned with police entrapment of defendants and whether evidence improperly obtained could be relied upon. (I note for completeness that Em was appealed to the High Court Em v R [2007] HCA 46 ; ( 2007) 232 CLR 67 but the consideration of these principles was not overturned). The public policy principle identified in those cases concerning the importance of upholding the administration of justice as a factor to consider regardless of whether there is unfairness to a particular defendant arose in far more serious circumstances in those cases. 28Turning to the submissions of Mato's counsel that parts of the ROI should be struck out, the criticisms of questions at par 149 - 169 on the basis that these were persistent, sustained or amounted to undue pressure (principle 2 in Plevac ) simply cannot be maintained when the questions and answers are considered. The questioning appears entirely orthodox and relevant to the issues the subject of the charges. The overall circumstances of the ROI were referred to by the Prosecutor (par 15 above) including the duration of the interview about which there is nothing unusual, and in light of this criticism has no basis. 29In relation to the criticism of a number of questions (at par 105, 108, 131, 132, 139 and 140) concerning assertions made to Mr Bennett of what he said on 25 October 2007 on the basis that these were hearsay, s 81 specifically provides that the hearsay rule does not apply to admissions. Principles 5, 6, 7 and 8 in Plevac apply to support the form of the questions posed. The definition of admission in the Evidence Act is broad and many of the answers criticised by the Defendants can be characterised as admissions within that description. This criticism has no basis. 30In relation to questions at par 187 and par 188, I agree with the Prosecutor's submission that principle 11 in Plevac does not apply to strike these out. The answer is capable of amounting to an admission of the matter asserted in the question. 31In relation to questions at par 279 and par 280, I agree with the Prosecutor's submission that principle 6 does not apply, the answer is capable of being regarded as an admission. This criticism has no basis. 32In relation to questions at par 287 and par 288, principles 7 and 8 in Plevac must be read together and when applied to this question and answer I agree with the Prosecutor that these are capable of amounting to an admission. This criticism has no basis. 33The Defendants' objections to the ROI of Mr Bennett dated 12 November 2007 are not sustained and the ROI in whole or part is not struck out.

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