Consideration in relation to interference
137 In Caltex, a corporation was charged in the Land and Environment Court with certain offences, a number of them being under the Clean Waters Act 1970 (NSW). Several weeks before the charges were to be heard, Caltex was served with two notices requiring the production of identical documents. The first notice was pursuant to s 29(2)(a) of the Clean Waters Act which empowered an authorised officer to require the occupier of certain premises to produce to that authorised officer documents relating to the discharge from the premises of pollutants into the waters. The second notice was a notice to produce in accordance with the rules of the Land and Environment Court. The sole purpose of the notices was to obtain evidence and information for use against Caltex in the prosecutions.
138 The proceedings did not involve the federal separation of powers. The majority held that s 29(2)(a) could be used to obtain evidence against the corporation even though the notice had been issued after the commencement of the prosecutions and for the purpose of obtaining evidence and information for use in those prosecutions. The dissenting judges, Deane, Dawson and Gaudron JJ, would have upheld the privilege.
139 Mason CJ and Toohey J, in a joint judgment, at 503 reasoned that it did not follow from the fact the privilege against self-incrimination protected individuals from being compelled to produce incriminating books and documents that it was an essential element in the accusatorial system of justice, or that its unavailability in this respect in relation to corporations would compromise that system. Their Honours said that the fundamental principle that the onus of proof beyond reasonable doubt rested on the Crown would remain unimpaired, as would the companion rule that an accused person could not be required to testify to the commission of the offence charged. In so saying, their Honours were addressing a justification of Gleeson CJ, with whom Mahoney JA and McLelland J agreed, in the New South Wales Court of Criminal Appeal in Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 at 127 for the privilege against self-incrimination applying to corporations. Gleeson CJ had said that the privilege ought to be seen as serving three main purposes: first, it was an aspect of individual privacy and dignity; second, it assisted to hold a proper balance between the powers of the State and the rights and interests of citizens, including "corporate citizens". The third purpose was expressed as follows:
The third purpose to which I refer is that the privilege is a significant element maintaining the integrity of our accusatorial system of criminal justice, which obliges the Crown to make out a case before an accused must answer. It is closely related to, although not co-extensive with, the right to silence: cf Petty v The Queen (1991) 65 ALJR 625; 102 ALR 129. It constitutes a part of what we accept as "due process": cf Adler v District Court of New South Wales (1990) 19 NSWLR 317 at 345-353 per Priestley JA. In those two last respects the rationale of the privilege is just as applicable to corporations as to individual persons.
140 Mason CJ and Toohey J also said, at 504, that in the case of corporations, their books and documents constituted the best evidence of their business transactions and activities. It made no sense at all to make the privilege available to a corporation in respect of those books and documents when officers of the corporation were bound to testify against the corporation unless they were able to claim the privilege personally. Their Honours said: "Oral evidence given by an officer of a corporation is that of the witness, not that of the corporation."
141 Brennan J said, at 512-513, that the particular immunity which the privilege was designed to confer was an immunity from an obligation to testify as to one's own guilt. That was an immunity that was irrelevant to a corporation, for a corporation could not be a witness. A corporation could be obliged in court proceedings to give discovery and to produce documents but the obligation to swear or affirm an affidavit or to produce documents was performed on behalf of the corporation by an officer or agent: the obligation was not - indeed, could not be - performed by the corporation personally.
142 McHugh J, at 550-552, considered what his Honour referred to as the most powerful reason for allowing a corporation to claim the privilege, that reason being that the privilege against self-incrimination was a natural, although not a necessary, consequence of the adversary system. His Honour said that in the end, the case for extending the privilege to a corporation must rest mainly, if not wholly, on the effect on the adversary system if the privilege was not available to a corporation. Denial of the privilege against self-incrimination to a corporation would undermine its position in the adversary system, his Honour said. At 556, having said that it was difficult to see how the administration of justice, even under the adversary system of criminal justice, could be advanced by allowing a corporation to refuse to produce documents on subpoena simply because the documents tended to incriminate the corporation, McHugh J said that the public interest in the production of relevant evidence in civil and criminal proceedings outweighed the detriments associated with refusing to allow corporations to claim the privilege. His Honour held, therefore, the corporation could not claim the privilege against self-incrimination.
143 In our opinion, subject to the question of any operation of s 87(1)(b) of the Evidence Act, Caltex 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.
144 In Nutricia, criminal proceedings had already been instituted by the NSW Food Authority against the respondent company alleging contraventions of the Food Act 2003 (NSW). Pursuant to s 37 of that Act, the Food Authority issued six notices on the respondent to provide information and documents. Each notice contained a detailed set of questions, characterised as interrogatories. The primary judge had set aside two of the six notices but refused to set aside the other four. The basis of the primary judge's decision was that the four notices not set aside expressly or impliedly stated that any material produced would not be used in relation to the existing charges. On a case stated to the New South Wales Court of Criminal Appeal, Spigelman CJ, with whom Hidden and Latham JJ agreed, answered "No" to each of the seven questions asking whether the primary judge erred in law in various respects.
145 At [136], Spigelman CJ, for the Court, said it was sufficient for present purposes to conclude that the administration of detailed interrogatories for the purpose of proving elements of an offence the subject of extant charges was such a significant impingement upon the integrity of the courts that Parliament should not be understood to intend that a statutory power could be so deployed in the absence of a clear statement to that effect.
146 At [152], Spigelman CJ said:
The self-incrimination immunity should now be regarded as one manifestation of a broader principle and the broader principle may have other manifestations which are available to corporations. The process of historical development was identified in the dissenting judgment of Deane J, Dawson J and Gaudron J in Environment Protection Authority v Caltex Refining Co, in a manner which is not affected by their Honour's conclusion that the self-incrimination immunity is available to a corporation.
Spigelman CJ cited that dissenting judgment at 527 and 534-535.
147 At [155], Spigelman CJ said
The accusatory system is, in my opinion, a fundamental element of our traditional method of determining criminal guilt. A public authority which formally alleges criminal conduct by a person must prove it. As recognised in the reasons of Mason CJ and Toohey J [at 503 and 507-508] and the observations of Deane J, Dawson J and Gaudron J [at 527], the accusatory system is not co-extensive with the privilege against self-incrimination. It is derived, as many other aspects of our criminal procedure are derived, from the recognition of the imbalance of power between the State and its citizens. That imbalance extends to corporations.
148 At [156], Spigelman CJ said that the reasoning of Mason CJ and Toohey J in Caltex at 503-504 was concerned with the difficulties which arose for the proof of breach of regulatory statutes and was directed to production of documents, not to the compelling of answers to questions. As their Honours and Brennan J indicated at 502-503 and 516-517, the latter raised very different considerations. It constituted a qualitatively more significant impingement upon the accusatory system. Brennan J also emphasised the significance of the actual commencement of proceedings. Also noted by Spigelman CJ was the reference to the "fundamental principle … that an accused cannot be required to testify to the commission of the offence charged" in the reasons of Mason CJ and Toohey J at 503 and the confinement of their qualification of the accusatory system to "the production of documents" at 503-504.
149 At [160]-[161], Spigelman CJ said:
…The formal presentation of a charge is a critical step in the criminal justice process. As I have indicated above, a prosecuting authority must be taken to assert that, at that point, it is able to establish guilt beyond reasonable doubt. From that point the accusatory nature of our criminal process should be given full effect and, in that regard, would lead to the same conclusion as the application of the doctrine of contempt.
Accordingly, Parliament should be taken not to have intended to impinge upon the accusatory nature of our system of criminal justice, after charges are lain, in the absence of express words or necessary intendment. However, the legislative scheme under consideration creates a regulatory system where such an intention can be inferred with respect to pre-charge investigation.
150 It may therefore be accepted that rights involved in the accusatorial system of criminal justice are not limited to the right against self-incrimination and that, so far as a corporation is concerned, it is one thing to require the corporation to produce to the prosecuting authority existing documents but it would be another thing to compel the corporation to answer questions. We would add that those questions would need to be answered by the proper officer of the corporation. Nevertheless, an issue remains whether requiring Captain Lomas to answer questions at the inquest would be compelling the appellant corporation to answer questions.
151 It is now appropriate to consider later High Court authority of X7, Lee v No 1, Lee No 2 and Strickland.
152 X7 concerned an individual under questioning by the Australian Crime Commission (ACC). The setting therefore attracted federal separation of powers concepts. The individual had been charged with three indictable Commonwealth offences. The High Court held, by a 3-2 majority, that the Australian Crime Commission Act 2002 (Cth) (ACC Act) did not authorise an examiner appointed under s 46B(1) of the ACC Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence. French CJ and Crennan J said, at [6], that the expression "subject matter of the offence" in the relevant question in the stated case was treated as including examination of the circumstances of the offence with which a person had been charged, which questions could establish that the person had committed a crime, or disclose defences upon which the person might rely at trial. The ACC Act provided that if the person being examined claimed that the answer to a question asked, or the production of a document or thing sought, might tend to incriminate that person, or make him or her liable to a penalty, subject to some exceptions, the answer given, or the document or thing produced, was not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty.
153 The main majority judgment was given by Hayne and Bell JJ. Their Honours held, at [70], that the relevant provisions of the ACC Act should not be construed as authorising the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge. Their Honours continued, at [70]-[71]:
Permitting the Executive to ask, and requiring an accused person to answer, questions about the subject matter of a pending charge would alter the process of criminal justice to a marked degree, whether or not the answers given by the accused are admissible at trial or kept secret from those investigating or prosecuting the pending charge.
Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.
(Original emphasis.)
154 The observation which was critical to the question of statutory construction was made at [85]:
… permitting the Executive to ask, and compelling answers to, questions about the subject matter of a pending charge (regardless of what use may be made of those answers at the trial of an accused person) fundamentally alters the process of criminal justice.
155 As to the secrecy of the compulsory examination, their Honours said, at [124]:
Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.
(Original emphasis.)
156 Kiefel J agreed, at [162], with the reasons of Hayne and Bell JJ. Her Honour gave short concurring reasons.
157 X7 concerned an individual and said nothing directly about the position of a corporation. There is no reason to doubt that the approach of the majority would apply to a corporation.
158 Lee No 1 concerned s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) which empowered the Supreme Court to make an order for the examination on oath of the affected person or another person before the Court concerning the affairs of the affected person, including the nature and location of any property in which that person had an interest. Affected person was defined to include a person proposed to be subject to certain kinds of confiscation orders. Two persons were charged with various criminal offences and after they were charged the Crime Commission applied to have them examined before the court pursuant to s 31D(1)(a) of the CAR Act.
159 Section 13A(1) of the CAR Act provided that a person being examined was not excused from answering any question or from producing any document on the ground that the answer or production might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty.
160 The case did not concern any issue of federal separation of powers.
161 X7 was distinguished by the majority, comprising French CJ, Crennan, Gageler and Keane JJ. Hayne, Kiefel and Bell JJ dissenting.
162 French CJ held, at [56], that as a matter of necessary intendment the power to order an examination would extend to orders of the kind made by the Court of Appeal in that case. His Honour held, at [55], that one of the determinative matters supporting this conclusion was that the objects of the CAR Act expressly contemplated its application to persons facing criminal charges. It was also significant that the power to make an order for an examination was conferred on the Supreme Court, as was the conferring of the examination power itself on the Court.
163 Crennan J held, at [144], that the relevant provisions of the CAR Act clearly and unambiguously showed that the privilege against self-incrimination was abrogated, irrespective of whether or not an examinee had been charged with a criminal offence.
164 Gageler and Keane JJ observed, at [333], that the terms in which the power was conferred by s 31D(1)(a) of the CAR Act drew no distinction between circumstances where criminal proceedings had and had not been commenced and held that this was deliberate. It was an aspect of a carefully integrated and elaborate legislative design. At [335], their Honours said:
The power conferred by s 31D(1)(a) does not authorise the making or implementation of an examination order where to do so would give rise to a real risk of interference with the administration of justice including by interfering with the right of the person to be examined (or any other person) to a fair trial. For reasons already given, however, the making of such an order does not give rise to a real risk of interference with the administration of justice by reason only that the subject matter of the examination will overlap with the subject matter of criminal proceedings that have commenced but that have not been completed.
165 Lee No 2 concerned the publication to members of the New South Wales Police Force and to officers of the Director of Public Prosecutions of evidence given by the appellants, individuals, before the New South Wales Crime Commission. In a unanimous judgment, the High Court held that the trial of the appellants on various drug and firearms offences miscarried as a result of the DPP's possession and possible use of that evidence.
166 At [32]-[33], the Court said:
Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that "no attempt to whittle it down can be entertained" albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.
(Footnotes omitted.)
167 The Court said, at [34]:
The purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who might be charged with offences. It supported the maintenance of the system of criminal justice referred to in X7 and the trial for which that system provides, in which the prosecution has a defined role and the accused does not. The protective purpose of s 13(9) would usually require that the Commission quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the Commission to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not met in the present case, with the consequence that the appellants' trial differed in a fundamental respect from that which our criminal justice system seeks to provide.
168 In our opinion, the chief importance of this judgment for present purposes is the unanimous restatement of principle at [32]-[33], which we have set out at [166] above.
169 In Strickland, Kiefel CJ, Bell, Keane, Nettle and Edelman JJ (Gageler and Gordon JJ, dissenting) allowed an appeal from the Court of Appeal of the Supreme Court of Victoria which had allowed appeals from orders of the primary judge permanently staying prosecutions of the appellants for offences contrary to the Criminal Code (Cth) and, in some cases, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic). The appellants were compulsorily examined by the ACC in 2010 prior to being charged with those offences. The principal issue in each appeal was whether the ACC acted so much in disregard of the requirements of Div 2 of Pt II of the ACC Act, and therefore in unlawful violation of each appellant's common law right to silence, that the prosecutions should be stayed.
170 At [74], the plurality, Kiefel CJ, Bell, Nettle JJ, held that since the examinations of the appellants were not held for the purposes of a special ACC investigation, there being no ACC investigation on foot, but rather for an extraneous, unlawful purpose of assisting the AFP to compel the appellants to give answers to questions about offences of which they were suspected and had declined to be interviewed, the examinations were unlawful. It was next held, at [75], that the prosecution derived the forensic advantage of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial. The appellants suffered a corresponding forensic disadvantage. Their Honours said, at [76]:
As Hayne and Bell JJ observed in X7 (No 1) in relation to an unlawful compulsory examination conducted post charge, even if the answers given at a compulsory examination are kept secret, and so cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers after being charged fundamentally alters the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial and adversarial trial in the courtroom. The examinee can no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial …
(Footnotes and quotation omitted.)
171 The crucial issue in this appeal is whether the requirement by the Coroner that Captain Lomas give evidence at the inquest, at a time before the appellant's criminal trial on its plea of not guilty has concluded, entitles it to any relief.
172 If Captain Lomas were to give evidence in terms of his earlier statement, that evidence will be capable of being tendered by the prosecution against the appellant as an admission by it by force of s 87(1)(b) of the Evidence Act. Moreover, if Captain Lomas is compelled to go into the witness box at the inquest, he will reveal either what his evidence will be, and so will commit himself to a version of events from which he could not credibly depart at the trial, or that he is not presently prepared to give evidence because his answers may tend to incriminate him by reason of the potential that he might be charged as an accessory to the appellant's commission of the offences alleged. In the latter case, it remains possible that the Coroner might require him to answer questions because her Honour might determine under s 51B(4) of the Coroners Act that his evidence would not tend to prove that he had committed an offence.
173 Three important principles of our system of criminal justice bear on whether Captain Lomas can, or should, be compelled to give evidence at the inquest. The principles relevant here, as discussed above, are the following: first, before being charged, the appellant, as a corporation, had no right or privilege to refuse to produce documents or other physical evidence on the ground that to do so might tend to incriminate it (of course, as an artificial person, it could not give any oral evidence); secondly, the use of compulsory procedures under a law in a way that is unjustifiably oppressive on a party to a court proceeding can amount to conduct that is an abuse of the latter court's process, or a contempt; thirdly, the exercise of compulsory powers in administrative proceedings can amount to an abuse of process that a superior court of record, such as this Court, can stay, as Mason CJ, Deane and Dawson JJ explained in Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-396, see too at 393; cf Strickland at [170]-[172] per Keane J. In addition we take into account that the principle of legality applies to the construction of legislation, such as the powers in the Coroners Act that enable evidence to be taken by the Coroner under compulsion.
174 Of course, there can be no property in a witness who is not a party to a court proceeding. Nonetheless, speaking generally, the law recognises that the conduct and evidence of certain individuals will be treated as the conduct of an artificial person, such as a corporation, not simply because provisions such as s 87(1)(b) of the Evidence Act so provide, but because in acting in his or her role, the individual is, as Mason CJ, Wilson and Toohey JJ aptly described it, "the embodiment of the company": Hamilton v Whitehead [1988] HCA 65; 166 CLR 121 at 130, coining what Lord Reid had said in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170 (see Hamilton at 127).
175 By the time of the hearing of the appeal, the Coroner had made clear that she intended to compel Captain Lomas to give evidence when the inquest resumed. Her Honour incorrectly found in her reasons of 12 April 2018 (at [12(g)]) that the appellant had failed to identify how it was disadvantaged by the continuation of the inquest: cf Strickland at [75]-[77], [81] per Kiefel CJ, Bell and Nettle JJ.
176 Those circumstances enlivened the general supervisory jurisdiction of this Court, as a superior court of record, to ensure that justice is administered and not impeded in lower tribunals, as explained by Dixon CJ, Fullagar, Kitto and Taylor JJ in John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 at 363; applied in Grassby v The Queen [1989] HCA 45; 168 CLR 1 at 17 per Dawson J with whom Mason CJ, Brennan, Deane and Toohey JJ agreed. As a matter of practical reality, if Captain Lomas were required to give evidence to the Coroner before the completion of the criminal trial, that requirement would have a tendency to interfere with the due course of justice in that trial for the reasons we have explained: cf McRae at 370.
177 It is common ground in the present case that in the ACT Coroners Act there is no clear statutory exclusion of a corporation's rights to decide the course it wishes to adopt in defence of a criminal charge and to put the Crown to proof without advancing any form of positive defence.
178 It is also clear, in our opinion, that once criminal charges are laid against a corporation, a separate executive inquiry may not, by means of interrogatories, seek to compel that corporation to assist the executive inquiry by answering questions on matters which relate to those criminal charges or, it may be said, for the purposes of those criminal proceedings. One example is Nutricia, which we have considered above and which was accepted before us by each side as being correct. Thus, in relation to the inquest, the Coroner could not act, under s 43 of the ACT Coroners Act, to require the appellant, which has been charged with criminal offences, to produce a relevant document or other thing to the Coroner where that document or other thing related to the criminal charges. That is because if the Coroner did so, she would be interfering with the administration of justice in the criminal proceeding, even though the appellant could be required in the criminal proceeding to produce the document or other thing: Caltex.
179 Captain Lomas has not been charged so no questions such as those considered in X7 arise in relation to him. Also, he is entitled to invoke, if appropriate, the privilege against self-incrimination in the inquest. Under s 51B of the ACT Coroners Act, if he objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove he had committed an offence, then the Coroner must decide whether or not there are reasonable grounds for the objection. If the Coroner decides that there are no such grounds, Captain Lomas need not give the evidence unless required by the Coroner to do so under s 51B(4). Thereafter there are certain protections for him but these exist only in respect of proceedings in an ACT Court: see ACT Coroners Act s 51B(7).
180 It is not a ground of objection that a witness, such as Captain Lomas, considers that his answers may incriminate the appellant (as opposed to himself) and he (as opposed to his employer) has no statutory basis for objecting to give evidence on that ground.
181 It is a potential distraction to consider the state of affairs only in relation to the unavailability of self-incrimination privilege to the appellant as a corporation. It would be easy to do so where criminal proceedings had not been commenced against the corporation in question. Once criminal proceedings have been commenced, as here, the relevant perspective is the accusatorial system of criminal justice and the fundamental principle that the onus is on the prosecution to prove its case. If Captain Lomas were charged either with the same offences as the appellant or as an accessory to the appellant, he could not give evidence for the prosecution or be compelled to do so himself in the inquest or criminal trial: cf Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 565 [51]-[52] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; see too at 585-587 [114]-[117] per Heydon J, and s 17(2) of the ACT Evidence Act.
182 Kiefel CJ, Bell and Nettle JJ in Strickland at [95] said that the fundamental principle of the accusatorial process is that "it is for the prosecution to prove the guilt of an accused person". They said that the companion rule to that principle is that an accused person cannot be compelled to testify to the commission of a charged offence. Their Honours continued:
… the process for the investigation, prosecution and trial of an indictable Commonwealth offence is entirely accusatorial …. subject to statute, an accused is not to be called upon to answer an allegation of wrongdoing until presented with particulars of the evidence on which it is proposed to rely in proof of a charge and then only to enter a plea of guilty or not guilty when and if charged.
183 In our opinion, subject to what we consider in the following paragraphs, what has been referred to as the companion rule, that an accused person cannot be required to testify, is not engaged as, unlike the position with interrogatories, the prosecution is not seeking to compel the person charged with the crime (namely the appellant) to assist in the discharge of the prosecution's onus of proof.
184 Does s 87 of the ACT Evidence Act have the effect that the appellant corporation is being so compelled? The provision is discussed briefly at [35635] of Heydon J D, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017), where the learned author states that the provision, particularly so far as s 87(1)(b) is concerned, widens the common law. At common law an employee's admission was only admissible if the employee had authority to speak; it was not enough that the matter spoken about was within the scope of employment. Cross reference was made to Fraser Henleins Pty Ltd v Cody [1945] HCA 49; 70 CLR 100. The provisions of s 87(1)(b) altered the common law which Mason CJ and Toohey J said in Caltex at 504 was that "[o]ral evidence given by an officer of a corporation is that of the witness, not that of the corporation" (footnotes omitted).
185 Applying s 87(1)(b) prospectively to the present circumstances, anything said by Captain Lomas in giving evidence before the Coroner could be tendered against the appellant as an admission by it in the court hearing the criminal proceedings. For the purpose of determining whether such a previous representation by Captain Lomas was also taken to be an admission by the appellant, the court hearing the criminal proceedings would admit the representation if it was reasonably open to find that, when the representation was made, Captain Lomas was an employee of the appellant and what he said in evidence before the Coroner related to a matter within the scope of his employment. By s 87(2) the hearsay rule would not apply to what Captain Lomas had said that tended to prove that he was an employee of the appellant or as to the scope of his employment.
186 Does the fundamental principle that it is the prosecution which must prove the guilt of an accused person beyond reasonable doubt yield a different conclusion? Would permitting evidence by Captain Lomas in the inquest which tended to incriminate the appellant in relation to the charges against it constitute a whittling down of the fundamental principle that the onus of proof is on the prosecution to prove its case?
187 The consequence of the Coroner requiring Captain Lomas to give evidence will be to reveal matters about whether he will, or may, give evidence for the appellant at the trial and, possibly, what that evidence is. All of those matters are not now known to the CDPP or the Commonwealth (AAD), as the co-accused, and neither can compel the appellant to reveal them. That is because of the appellant's common law right to decide how to meet the case that the prosecution must prove beyond reasonable doubt, without the prosecution or co-accused having any entitlement to know, beyond the appellant's plea of not guilty, how it will defend the charge. That is so, even if it knows (but the prosecution or co-accused do not) that, for example, Captain Lomas will not give evidence for it because of a concern about his own potential exposure or for some other reason.
188 Thus, the Coroner's use of her compulsory powers has the real potential of forcing the appellant's hand prematurely, before the time in the criminal trial when the prosecution has closed its case. A second, but separate, aspect of the potential forcing of the appellant's hand is the role of the Commonwealth (AAD), as its co-accused in the criminal trial, urging the Coroner to overrule the appellant's objection to her requiring Captain Lomas to give evidence at the inquest before the trial, when knowledge of his evidence would be likely to assist it, as co-accused, in its own defence of the charges.
189 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, the appellant's position as an accused corporation in the criminal proceedings would be altered fundamentally: Strickland at [77]-[81]. That is because s 87(1)(b) of the ACT Evidence Act would make his evidence admissible, not merely as evidence of a witness of fact, but as evidence of an admission by the appellant itself. We therefore conclude that the primary judge erred in this respect, particularly in his reasons at [117], [120] and [137]: see [76]-[78] above.