Inspector Carmody v Luke Tsougranis

HEARING DATES: 08/30/2002; 09/02/2002; 09/06/2002; 10/15/2002 DATE OF JUDGMENT: 10/24/2002

PROSECUTOR: Ms P Lowson of counsel SOLICITORS: Ms R Sutton Moray & Agnew

DEFENDANT: Mr D Sibtain of counsel SOLICITORS: Ms K Levi Gadens LEGAL REPRESENTATIVES: INTERVENOR: Mr Michael Papaianni Ms E Glover of counsel SOLICITORS: Mr D Glinatsis Yandell Wright Stell

INTERVENOR: Mr Carl Hamilton Mr G Warburton of counsel SOLICITORS: Stephen Bottrill Solicitors and Attorneys

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: HAYLEN J 24 October 2002 Matter Nos. IRC 4365, 4366, 4367 and 4368 of 2000 Inspector Carmody v Luke Tsougranis Prosecutions under ss 16(1), 16(2), 17(1)(a) of the Occupational Health and Safety Act 1983 INTERLOCUTORY JUDGMENT [2002] NSWIRComm 282 1 The defendant has been charged with offences under ss 16(1), 16(2) and 17(1)(a) of the Occupational Health and Safety Act 1983. At all material times he was a self employed structural engineer.

2 The defendant has pleaded not guilty to all charges and the hearing of the prosecution case is substantially part heard.

3 The prosecutions arise out of building work involved in renovating a domestic dwelling in Bourke Street, Redfern in 1998. It is alleged that in or around mid-1998 the defendant was engaged by the owner of the premises to provide structural engineering advice, directions and drawings for use by persons for the conduct of the building works involving renovations to the existing structure and the addition of a new structure at the premises. The charges allege that on the rear northern boundary of the premises there stood a free standing double brick wall which was: (i) not fully bonded into the cross-wall at the rear of the front section of the premises which it abutted; and (ii) was not a party wall fully bonded into cross-walls of the adjoining premises. 4 Prior to 3 December 1998, it is alleged that works were carried out by Mr Papaianni and Mr Hamilton as builders, together with their employee Mr Zaronias, pursuant to the builders' contract with the owner and with reliance on the structural engineering advice, directions and drawings provided by the defendant. In various ways the charges allege that, in the provision of the structural details and advice, the defendant: (a) had not investigated the depth of the base or structural integrity of the footing of the wall;

(b) had not made a detailed assessment of the structural integrity of the wall itself;

(c) had not provided any requirements in his design to provide appropriate temporary support for the wall. It is also alleged that at all material times on and prior to 3 September 1998 the defendant had failed to instruct the owner or the builders to ensure the wall was laterally braced or otherwise supported to ensure that it was not at risk of toppling prior to any of the works being conducted. On 3 December 1998, Mr Zaronias sustained fatal injuries and Mr Papaianni sustained serious injuries when the rear northern boundary wall toppled and fell on them.

5 A point has been reached in the proceedings where counsel for the prosecutor has called Mr Papaianni to give evidence and has indicated that she also proposes to call Mr Hamilton to give evidence concerning the events leading to the collapse of the wall at the Redfern premises.

6 Originally, the prosecuting authority had commenced proceedings against the owner of the premises who had obtained an owner/builder's permit to perform the renovation work at the site, the present defendant and the two builders, Mr Papaianni and Mr Hamilton. The owner pleaded guilty to the offences with which he was charged and that case has been determined: the owner has given evidence in these proceedings without incident. The case concerning the defendant together with the prosecutions against Mr Papaianni and Mr Hamilton were to proceed together. However, the prosecution did not oppose an application made on behalf of Mr Hamilton to await the determination of the proceedings against the present defendant. Mr Papaianni's case was called at the same time as the present defendant's but on that occasion he appeared without legal representation having apparently obtained preliminary advice but then deciding to instruct new legal representatives. On that basis, Mr Papaianni's case was stood over to be dealt with at another time when his new legal advisers were available, having had an opportunity to consider the terms of the prosecution brief. The prosecution against the defendant thereupon proceeded. I observed during the discussion that arose in this matter that the Court relied on the prosecution to ensure that cases involving a number of parties but arising out of the same incident should be heard together unless there was some appropriate ground made out for separate trials, bearing in mind the comments made by the Full Court of the Commission in Court Session in WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch and Haulage Co Pty Ltd (2000) 102 IR 40 at [46].

7 When the prosecutor called Mr Papaianni, the Court was reminded that he was the subject of a prosecution arising from the same incident and in those circumstances the prosecutor sought the issuing of a certificate under the provisions of s 128 of the Evidence Act. Shortly after that matter was raised, counsel for Mr Papaianni sought leave to appear to protect his interests in relation to the outstanding prosecution and in order to make a claim for privilege against self-incrimination. Leave to appear was granted limited to the issue of the application of s 128 to Mr Papaianni's evidence and the circumstances in which a certificate might be granted. In the course of announcing her appearance, counsel for Mr Papaianni indicated that, apart from claiming privilege against self-incrimination in relation to questions as they arose, in addition, she might "request a certificate to be issued to protect Mr Papaianni". Section 128 of the Evidence Act provides as follows: 128 Privilege in respect of self-incrimination in other proceedings (NSW Act only) (1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country; or (b) is liable to a civil penalty. (2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness: (a) that he or she need not give the evidence; and (b) that, if he or she gives the evidence, the court will give a certificate under this section; and (c) of the effect of such a certificate. (3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence. (4) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled; and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (5) If the court is satisfied that: (a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and (b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and (c) the interests of justice require that the witness give the evidence; the court may require the witness to give the evidence. (6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence. (7) In any proceeding in an Australian court: (a) evidence given by a person in respect of which a certificate under this section has been given; and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence; cannot be used against the person. However, this does not apply to a criminal proceedings in respect of the falsity of the evidence. Note: This subsection differs from subsection 128(7) of the Commonwealth Act. The Commonwealth provision refers to an Australian Court instead of a NSW Court. (8) In a criminal proceedings, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act or thing of which is a fact in issue; or (b) has a state of mind the existence of which is a fact in issue. (9) A reference in this section to doing an act includes a reference to failing to act.

8 Another complication immediately arose when it became apparent that Mr Papaianni's case remained in my list and was listed for further directions in the following week. Counsel confirmed that a plea of not guilty would be maintained in relation to those proceedings against Mr Papaianni. I subsequently took steps to raise the matter with the President and was able to inform the parties at the further hearing of the matter that Mr Papaianni's prosecution would be re-allocated for the purposes of conducting the trial. A further issue had arisen in Mr Papaianni's case, namely, the filing of a notice of motion seeking to set aside or alternatively permanently stay the prosecution on the basis that it constituted an abuse of process. I was informed that the hearing of that motion may well involve the canvassing of issues which would make it desirable for that motion to be also heard by another judge. The re-allocation made by the President encompassed the hearing and determination of the notice of motion as well as the conduct of the trial. Because of concerns I raised during discussion with counsel, counsel for the prosecutor in this case, who had also been briefed to prosecute the case against Mr Papaianni, subsequently announced that, in the circumstances, that brief had been returned in order to isolate any evidence called in this matter under compulsion.

9 The initial debate concerning Mr Papaianni's evidence centered around s 128(2) and (5), it being then unclear what course would be adopted by Mr Papaianni if his objection to giving evidence was held to be reasonable. It was in the context of s 128(5) being a relevant consideration that counsel for the prosecutor was asked to indicate why the evidence of Mr Papaianni was important for the purposes of the case against the defendant and in particular whether the evidence was necessary to establish or assist in establishing an element of each offence. The Court was informed that Mr Papaianni was called as part of the prosecution's case essentially to avoid any inference being drawn from his non-attendance or the failure to call him when he was a person involved in the building work. He was on site on the day in question and had contact with the defendant but it was apprehended none of Mr Papaianni's evidence was directly linked to the prosecution against the defendant because the various necessary links were effectively covered by other evidence, including evidence already called from the owner/builder. Counsel for the prosecutor stated that she could not guarantee that each individual piece of evidence could meet the test of being required "in the interests of justice".

10 This response by counsel for the prosecutor immediately raised the question whether such evidence from Mr Papaianni was required "in the interests of justice". If the matter was left there the Court indicated that while Mr Papaianni had reasonable grounds for objecting to the giving of evidence he would not be required to give the evidence pursuant to the provisions of s 128(5). That led the Court to consider whether or not the proper course would be for the prosecution against the present defendant being adjourned and not resuming until the cases against Mr Papaianni and Mr Hamilton had been finalised. That course also commended itself because there were then indications that the present defendant, Mr Tsougranis, would not be called by the prosecutor to give evidence in the other two prosecution cases.

11 Following that discussion, Mr Papaianni commenced to give evidence. A number of questions dealing with the background to the building work undertaken on the premises were asked without objection but, when the questions began to deal with actions taken by Mr Papaianni in relation to the digging of a trench beside the wall which had fallen, his counsel commenced to take, question by question, objections based on the privilege against self-incrimination. I upheld those objections but, during the course of dealing with them, counsel for Mr Papaianni again raised the question of the issuing of a certificate. At this point, counsel for the defendant Mr Tsougranis rose to make it clear that, when it came to cross-examination, he proposed to pursue a line of questioning which would involve asking the witness about the work he performed on the site and especially the work performed in digging the trenches in front of the wall that collapsed. Counsel for the defendant made it clear that the purpose of that line of questioning was to establish that responsibility for the collapse of the wall lay elsewhere than with his client Mr Tsougranis.

12 In light of these developments, I adjourned the proceedings to the following morning with a view to resuming argument on the application of s 128 and whether or not it would be appropriate in the circumstances to adjourn the case against Mr Tsougranis until the prosecution cases against Mr Papaianni and Mr Hamilton had been determined. For that purpose, arrangements were made through counsel for the prosecutor to notify the legal representatives of Mr Hamilton so that they could appear on the next morning if they were so advised. When the matter resumed, both Mr Papaianni and Mr Hamilton were represented by counsel and both were heard on the question of the appropriateness of an adjournment and the manner in which s 128 might be applied in the present proceedings.

13 After further argument, the following positions of the parties emerged in relation to s 128: (i) the prosecutor sought to call the evidence of Mr Papaianni and Mr Hamilton, accepting that they had reasonable grounds to object to giving certain evidence of their activities at the work site and that, in those circumstances, if necessary, they should be required to give evidence with the protection of a certificate pursuant to s 128(5); (ii) counsel for Mr Hamilton indicated that his instructions were that Mr Hamilton would raise an objection to the giving of evidence based on the privilege against self-incrimination but would, pursuant to s 128(2), elect to give evidence effectively protected by the Court's certificate given under s 128(3);

(iii) counsel for Mr Papaianni said that she had instructions that her client would continue to take the objection to giving evidence based on the privilege against self-incrimination, would not be prepared to give that evidence in order that a certificate under s 128(3) would be issued by the Court, and would object to giving evidence and submit that it was not in the interests of justice that he be required to give that evidence. A direction should not be given nor a certificate issued pursuant to the provisions of s 128(5) and s 128(6).

14 Counsel for Mr Tsougranis accepted that the options were not easy of resolution but opposed an adjournment primarily because his client had not been able to secure professional insurance in light of this litigation and related civil litigation and therefore had been unable to fully pursue his career and practice as an engineer. Counsel for the prosecutor opposed an adjournment because of the advanced state of the proceedings, the fact that the accident had occurred in 1998 and that it was therefore appropriate to conclude the present proceedings. Counsel also raised the prospect that, despite the best efforts of the Court and the parties, a similar dilemma may arise in the prosecutions of Mr Papaianni and Mr Hamilton: further, it could not be assured that Mr Tsougranis would not be called in Mr Hamilton's case as different counsel had been briefed in that matter.

15 Counsel for Mr Hamilton opposed the adjournment because he alleged his client was a small player in this incident and it was preferable for the major players, the owner/builder and the engineer, to be dealt with first. He was in difficulty when asked to indicate the prejudice to his client should Mr Tsougranis' case be adjourned. Counsel for Mr Papaianni did not oppose an adjournment.

16 Mr Tsougranis gave evidence, on the voir dire, limited to the difficulties he had experienced in being unable to secure professional indemnity insurance and the effect that had on his business. It appeared that he had been insured with HIH and, although securing other coverage after the collapse of HIH, he had more recently been informed that these proceedings and associated civil proceedings were an impediment to him securing professional indemnity insurance. He had submitted a number of proposals through brokers but all had been rejected. It was not totally clear from his evidence whether the present state of the insurance market had an influence on his inability to secure coverage, but I accept his evidence that a substantial reason for his failure to secure such coverage appeared to be the current prosecution and associated civil proceedings. This meant that his business activities had been substantially reduced: there were regular clients from whom he was no longer able to obtain work because it was a condition of their work that he had appropriate coverage. It was his view, which I accept as being reasonably based, that he would not be able to secure employment professionally because his employer would also have to add him to his insurance cover and the same issue would arise. The matter was further complicated by the fact that the related civil litigation involved action taken by the widow of the deceased who was killed at the work site by the falling wall. Those proceedings had been stayed while the present proceedings in this Court were on foot. Another complicating factor was that there were cross-claims between Mr Tsougranis, Mr Papaianni and Mr Hamilton, and all of these civil proceedings awaited the conclusion of prosecution action taken by the WorkCover Authority. In these circumstances I do not believe it is appropriate to adjourn the proceedings. It becomes necessary, therefore, to consider the application of s 128 of the Evidence Act.

17 In the course of submissions, it was put that, because s 128(2) commenced with the words "subject to sub-section (5) …", the granting of a certificate under sub-section (2) required a consideration of the steps contemplated in sub-section 5, and in particular required the Court to consider the "interests of justice" in deciding whether or not a certificate should be granted. It was submitted that, if that was not the case there was no purpose in sub-section (2) being "subject to sub-section (5)". I am unable to accept that construction. In my view, s 128 moves logically from the point of a witness establishing reasonable grounds for the objection to an election that, nevertheless, the evidence will be given in accordance with the provisions of sub-section (2) or, if the witness maintains the objection and declines to give the evidence then the Court is to consider the matters in sub-section (5), including whether or not the interests of justice require the witness to give the evidence. This seems to be the construction adopted by Tamberlin J in Versace v Monte [2001] FCA 1572, 6 November 2001. The presence of the words "subject to sub-section 5" in s 128(2) does no more than direct attention to the fact that other steps are available if the witness does not elect to give the evidence objected to under the protection of a certificate issued under s 128(3). The presence of those words in s 128(2) does not require the Court to consider the "interests of justice" where an election is made to give the evidence - that issue only arises where the Court is considering whether or not to require the evidence to be given, even though it may tend to incriminate the witness (apart from the protection of the certificate caused to be given under sub-section 6).

18 Applying that approach to the evidence of Mr Hamilton, should his instructions remain as indicated by his counsel, it appears no party suggests other than that there are reasonable grounds for him to object to giving evidence in light of the, as yet, undetermined prosecution of him in relation to the same accident. Should the circumstances remain the same, the Court would hold, quite independently of the views of the parties who have been heard on these issues, that reasonable grounds for the objection have been established. In those circumstances, Mr Hamilton would elect to give his evidence under the protection of a certificate as required by s 128(3). An issue has arisen, late in the proceedings, as to whether or not Mr Hamilton (and also Mr Papaianni) has waived the benefit of the privilege against self-incrimination, inter alia, because of evidence given in the workers compensation proceedings. I will return to this issue later in the judgment.

19 Different considerations attend the position of Mr Papaianni. His counsel has argued that a particular difficulty arises should Mr Papaianni be successful in his motion seeking a permanent stay or dismissal of the prosecution case against him. It is suggested that the prosecution may seek to meet this situation by taking steps, not specified in the argument, which may lead to him being charged under another section of the Occupational Health and Safety Act. It is accepted by both the prosecutor and Mr Papaianni's counsel that the time limit set by s 49 has expired and that no new proceedings could be commenced against Mr Papaianni in relation to the 1998 accident: the concern is simply broadly expressed that, in some way (presumably by way of amendment) the present charge might be continued in relation to Mr Papaianni but by reference to a different capacity rather than the capacity in which he is currently charged. This submission is speculative at best and it is difficult to establish how real is the possibility of such an eventuality. The prejudice to Mr Papaianni is suggested to flow from the fact that, if he is required to give evidence pursuant to s 128(5), the objections taken on his behalf to certain parts of the evidence would be taken bearing in mind the present prosecution as particularised and not some new and, as yet, unknown formulation of it. Counsel is, however, in no different position in relation to a client who is yet to be charged yet claims the privilege against self-incrimination - assessments have to be made about the tendency of the evidence to incrimate. The protection is in the legislation: either the evidence will not be required or, if required, will be subject to a certificate under s 128(6).

20 What then are the interests of justice which would require Mr Papaianni to give this evidence? I have earlier recorded that the prosecutor indicated that Mr Papaianni was primarily called in these proceedings in order to avoid any adverse inference arising by him not being called. It was accepted that his evidence did not go to an essential element of the offences charged against Mr Tsougranis and that there was other evidence which the prosecution relied upon in order to make out those charges. During the course of argument, however, counsel for the prosecutor modified these submissions, although accepting that in substance the position remained as earlier outlined. The point was made that the evidence of Mr Papaianni and Mr Hamilton would be direct evidence and would go to the issue of the receipt of the structural plans by them, although that has been proved and would be proved in other ways. There was a convenience in adducing that evidence from these witnesses. It was a different way of proving different aspects of the case. While the evidence was not required to establish an essential element of the prosecution case, the prosecution had to keep in mind any possible defence that might be raised: in that context, there may be evidence that Mr Hamilton and Mr Papaianni could give that may be used by the prosecution to rebut a defence that might "otherwise be raised". Lastly, it was suggested that, although the prosecution only had a small number of areas to pursue with Mr Papaianni, it could not discount the possibility that, in re-examination, as a result of matters put to Mr Papaianni in cross-examination by counsel for Mr Tsougranis, the prosecution might have to go to new areas arising directly from that cross-examination: these matters could be important elements in establishing the prosecution case or rebutting the defence case.

21 The strength of this submission is difficult to evaluate. It presumes that the prosecution examination in-chief will be limited by a proper objection based upon the privilege against self-incrimination. It then seems to proceed on the basis that, in cross-examination, evidence will be elicited which goes to matters in issue in the prosecution case against Mr Tsougranis which would then need to be pursued in re-examination by the prosecutor. This approach seems to presume that the cross-examination would take place in circumstances where the objection against self-incrimination would be removed or in some way diminished. How this might occur was not explained in the submission. Perhaps this submission is directed to the undesirability of the position where the prosecution cannot make out a case for having the evidence required in the interests of justice, but where the defence can make out such a case: the assumption being that the prosecution would not be permitted to engage in questioning in the field covered by the privilege, but that the defence would. In my view, s 128(5) does not operate in that way. If any party makes out a case requiring the evidence to be given in the interests of justice, then all parties will be permitted to ask questions on the subject which would otherwise be covered by the privilege.

22 Ultimately, the Court is left in the position where the prosecution does not suggest that the evidence of Mr Papaianni is necessary to establish an essential element of the offence but that there might be other developments which could bring about such a position. Bearing in mind the importance of the privilege against self-incrimination, I do not see that the interests of justice require him to give the evidence on this basis. As was pointed out in argument, these issues are not to be decided on the basis of convenience but involve the abrogation of a very important right established by the common law which the legislature has seen fit to modify in the special circumstances nominated in s 128 of the Evidence Act. On the basis of the prosecution's submission, I am not satisfied that the interests of justice require Mr Papaianni to give that evidence. 23 Counsel for Mr Tsougranis approaches the matter differently. He submits that it is essential to the defence that he be able, through Mr Papaianni and Mr Hamilton, to elicit evidence establishing a causal connection in relation to the collapse of the wall at the building site which would point to the culpability of others - clearly the builders, Mr Papaianni and Mr Hamilton. In my view, this submission is based on a misconception. The defence is not required to prove that Mr Tsougranis was not responsible for the accident or the risks to safety demonstrated by its occurrence, nor is it required to prove that others were responsible. The prosecution must make out its case to the criminal standard, and s 53 permits defences which may be established on the balance of probabilities. In addition, counsel for Mr Tsougranis does not suggest that any defence which may be available can only be established (or established to a significant degree) by the evidence of Mr Papaianni and/or Mr Hamilton. There has been extensive evidence by Inspector Carmody, including evidence in relation to work undertaken on the site. Evidence has been given by the owner/builder Mr Agapiou and Mr Clement, a plumber who performed work on 1 and 3 September. There may yet be other evidence from people who worked on the site and who are able to describe the nature and extent of excavation work undertaken adjacent to the wall which collapsed. Counsel for the defendant did not descend into the details of the evidence which was required from these two witnesses in order to enable him to make out a defence: there was no indication of the basis of a defence, apart from the general indication that it would be shown that others, presumably the builders, were responsible for the collapse of the wall. The basis of that contention was not attempted to be established. It stands as an assertion - at best, a mere possibility. Further, the fact (if proved) that the builders were the direct cause of the wall collapsing by the manner in which they excavated adjacent to the wall does not mean that the defendant could bear no responsibility for the risk to safety which is alleged. The cases abound with examples of work undertaken by a number of people resulting in a workplace accident where, in various ways and in different capacities, they may all have contributed to the risk to health and safety identified. This point is underlined by a consideration of the particulars of the allegations in each of the four charges against the defendant. In their context, each charge relies upon the defendant supplying advice and drawings for use by the builders in the renovation work. It is alleged that, in providing that advice and the drawings, the defendant failed to investigate the depth of the line or the structural integrity of the wall footing; provided no detailed assessment of the structural integrity of the wall; failed to provide appropriate temporary support for the wall; and failed to instruct the owner or the builders so as to ensure that the wall was laterally braced or otherwise supported so that it could not fall. The charges, so particularised, appear to stand apart from the work actually performed on the site. As is appropriate, the charges focus upon the risk to safety rather than the accident (see Haynes v C I & D Manufacturing Pty Ltd and anor (1995) 60 IR 149 at 156-9). This is the case that the defendant has to meet.

24 It is also appropriate to give consideration to the importance of the privilege against self-incrimination described in Sorby v The Commonwealth (1983) 152 CLR 281, as "deeply ingrained in the common law" by Mason J, Wilson and Dawson JJ (at 309) and by Gibbs CJ as reflecting "a cardinal principle" (at 294).

There are other considerations. Where the evidence of Mr Papaianni is resisted vigorously by his counsel, it may be assumed that it is evidence which will be grudgingly given if required by the Court. In the Annotated Commonwealth Evidence Act, 1st ed (1995) the author, at page 227, stated: The Act itself gives no guidance as to the meaning of "interests of justice" in s 128(5)(c). However, Mr Justice Smith, in a paper presented by him, made the following comments: As to what are 'the interests of justice', some help may be gained from a consideration of the principles that guided the proposal. Other policy issues arise. An important matter to bear in mind is that a person compelled to give evidence may, for his or her own physical safety, or to minimise his or her role, commit perjury or be less than frank. It cannot be assumed that forcing a person to give such evidence will aid the accurate fact-finding of the court and thus the interests of justice. Any decision under s 128 will require careful consideration … While it is usually in the interests of justice to review all available evidence, it may not be in the interests of justice to review evidence that may be unreliable and it may not be in the interests of justice for the legal system to be seen to operate in an unduly harsh manner upon witnesses. The propensity for a person confronted with allegations of an offence to minimise his or her culpability is well recognised and has been the subject of research (see, for example " R" v New South Wales Commission for Children and Young People [2002] NSWIRComm 101 at [80] et seq; [136] et seq), albeit in relation to sexual offences .

25 In AMP General Insurance Ltd v Prasad [1999] NSWSC 252 (23 March 1999) Hamilton J, in considering s 128, noted a submission that the evidence would be put in the hands of the very organisation that had complained to the police, leading to the prosecution. Also, documents could accidentally be transmitted and come into the hands of people they were not intended for - an accused would face difficulty in demonstrating that some steps or advantage may have been gained by the prosecuting authority in the conduct of a prosecution. While his Honour accepted the substance of these points, they were regarded as remote possibilities in relation to the accused person in that case. In the present case, the prosecuting authority, through its representatives, will receive the evidence of Mr Papaianni under compulsion prior to his prosecution being heard and determined. While counsel for the prosecutor, quite properly, has returned her brief in that matter in order to isolate the use or publication of the evidence, others may be involved and be in a position, even inadvertently, of coming into possession of that evidence. Court orders restricting access to the transcript can attempt to address the issue and may be effective to a degree - but no such system is iron clad in providing protection for the witness directed to give evidence.

26 During argument, attention was drawn to the judgment of Austin J in Bax Global (Australia) Pty Ltd v Evans & ors (1999) 47 NSWLR 538. His Honour came to consider the terms of s 128 of the Evidence Act in circumstances where Mareva orders together with a disclosure order were sought in the Equity Division of the Supreme Court. His Honour noted that the High Court in Reid v Howard (1995) 184 CLR 1 had held that, although the privilege against self-incrimination may be abridged by statute or waived, it was otherwise without any real exception - the privilege was not to be modified or abrogated in favour of some different protection by judicial decision. His Honour noted that the judgment did not prevent the court from making disclosure orders ancillary to Mareva orders but established that, in the absence of a statutory modification or waiver, the defendant may object to compliance with the orders by invoking the privilege. In particular, reliance was placed upon the following passage in his Honour's judgment: [30] Sub-section (5) is thus a statutory provision which abridges the privilege against self-incrimination which the High Court had held to be absolute in Reid v Howard. Where it applies, it subjects the privilege to the exercise of judicial discretion. What is envisaged, however, is not that the Court will make elaborate orders creating a special protection regime in substitution for the privilege, as Powell J in the Court of Appeal had done in Reid v Howard; rather, the Court simply decides whether to require the witness to give evidence and if it does so, it must issue a certificate which gives the witness the statutory protection set out in Section 128(7). The scheme of Section 128 implies that the statutory protection is sufficient for the witness whose privilege is over-ridden unless there are special grounds to apprehend some prejudice not adequately addressed by the statute. In this sense Section 128 overcomes the effect of the High Court's decision in Reid v Howard: sees Odgers, Uniform Evidence Act Law (1998) 3rd Ed, LBC Sydney at 414 . This last comment appears to be a reference to the following passage in the 3rd edition of Odgers: Given that, under Section 128(7), evidence given by a person in respect of which a certificate under Section 128 has been given (and evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence) cannot be used against the person, it is likely that courts will, in many cases, conclude that "the interests of justice" will require that the witness give the evidence … While the danger that perjured or unreliable testimony will be given is not to be underestimated, the public interest in requiring the evidence to be given will often be substantial (see Atkinson v Atkinson & Atlas Investments Ltd (unrep FamCt, FC EA 16 of 996, 16/1/97). For example, it has been held that a defendant in civil proceedings should be required to disclose their assets and be given a certificate in relation to anticipated fraud and criminal proceedings, in order to prevent the assets being 'spirited away' (HMP Industries Pty Ltd v Graham (unrep, SC NSW, Young J, 2728 of 1996, 17/7/96). Thus, this provision is likely to overcome the decision of the High Court in Reid v Howard … His Honour's focus appears to be on the latter part of this passage and its relevance for the matters he was dealing with, namely Mareva and disclosure orders. These comments, however, are not to be taken as suggesting that s 128 has set aside the "ingrained" and "fundamental" nature of the privilege against self-incrimination: it is no more than a reference to the statutory scheme which allows the Court to require the evidence to be given with the protection of a certificate so that for other proceedings the privilege against self-incrimination is preserved.

27 With respect to his Honour, I am unable to agree that the scheme of s 128 establishes sufficient protection for the witness so that, almost as a matter of course, the witness will be required to give the evidence because of the protection provided by the certificate unless there are "special grounds to apprehend some prejudice not adequately addressed by the statute". There is nothing in the provisions of s 128, in my view, that requires the witness to establish some "special grounds" to defeat an application that the witness should be required to give the evidence under s 128(5). Indeed, Odgers' commentary states that the onus is on the party arguing that the "interests of justice" require the witness to give the evidence (para 1.3.13160). The nature of the privilege is so well established in the common law that very clear words would be required to bring about a diminution of the privilege. I cannot find such terms in the provisions of s 128. There will be circumstances where the evidence is required in the interests of justice such as confronted the court in AMP General Insurance v Prasad, where Hamilton J noted that, in cases of misappropriation, to attempt to find and trace the funds before the trail becomes cold was a real consideration - the trail would certainly have become cold if it could not be pursued until after the termination of criminal proceedings at first instance and perhaps upon appeal. In other cases, statutory provisions at the heart of proceedings may require the evidence to be given: see the judgment of Lindenmayer J in Marriage of Atkinson (1997) 136 FLR 347 at 378 where attention was drawn to the provisions of s 79 of the Family Law Act and the importance of accurate information as to the financial circumstances of the parties. In those circumstances, it was held that the interests of justice demanded that the husband give evidence about his financial resources and the quantum of his income.

28 The judgment of the majority of the Court of Appeal in Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207 demonstrates that the statutory scheme provided by s 128 of the Evidence Act has not diminished the importance of the privilege against self-incrimination. In that case, the majority held that an order for disclosure in aid of a Mareva injunction which was inconsistent with the privilege against self-incrimination should not be made: a party against whom such an order had been made, where the privilege against self-incrimination would be infringed by compliance with it, was entitled to have that order set aside. In that case, the Bank had argued that the principles and practice which have been developed in relation to subpoenae and orders for discovery and interrogatories should be imported into other contexts and in particular should be applied in relation to orders for disclosure of assets made ancillary to Mareva injunctions. Fitzgerald JA, in dealing with this submission, stated at [22]: However, the unqualified adoption of such an approach would fail to give effect to the fundamental importance of the privilege against self-incrimination and the breadth of its operation, as explained by the High Court in Reid v Howard (1995) 184 CLR 1, which is discussed below . In that discussion, his Honour noted that the majority judgment in Reid ( Toohey J, Gaudron J, McHugh J and Gummow J) emphasised that the privilege against incrimination was not simply a rule of evidence but a basic substantive common law right which operated so that a person could not be compelled to answer any question or to produce any document or thing, as to do so "may bring him into the peril and possibility of being convicted as a criminal". The majority judgment cited Triplex Safety Glass Co v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403: The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without "real exception".

29 Fitzgerald JA, at [37], expressly agreed with the following statement of Gibbs CJ in Sorby v The Commonwealth (at 294-295): If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt … . it is true that in some cases the legislature may consider that it can only achieve the intended purpose of the statute by limiting or abrogating the privilege against self-incrimination, but, as I have said, if the legislature intends to render the privilege unavailable it must manifest clearly its intention to do so. 30 A relevant consideration in the present matter is the fact that the prosecution and defence in a prosecution brought pursuant to the provisions of the Occupational Health and Safety Act 1983 seek the Court to require the evidence from Mr Papaianni in circumstances where the prosecuting authority itself also has commenced proceedings against him in relation to the same incident. These are not the same circumstances as often face the courts when dealing with Mareva and disclosure orders, where the disclosure order might operate to expose the witness in a way not necessarily connected with the litigation in which the orders are made. The same comment may be made in relation to the full and frank statement of property interests in family law matters. In my view, requiring Mr Papaianni to give evidence in these proceedings is in a different category and raises general concerns about diminishing the effectiveness of the protection of the privilege. Bearing in mind what I regard as the inadequately explained basis pressed on behalf of Mr Tsougranis for having Mr Papaianni give his evidence, and also having consideration for the importance of the privilege, and my view that s 128 does not establish a regime whereby prima facie a witness will be required to give the evidence because of the protection of the certificate, I am unable to conclude the interests of justice require Mr Papaianni to give the evidence. Indeed, if Mr Hamilton gives his evidence with the protection of a certificate pursuant to s 128(3) it is doubtful that the additional evidence of Mr Papaianni would be required even for the purposes of a s 53 defence. I note this matter because I have been told that the prosecution brief supplied in all these cases contains exactly the same material and contains statements made by both Mr Papaianni and Mr Hamilton during the course of the investigation of the accident by inspectors of the WorkCover Authority. It is in all of those circumstances that I am unable to conclude that the interests of justice require Mr Papaianni to give evidence pursuant to s 128(5) of the Evidence Act in these proceedings.

31 During the course of the extensive debate on the proper application of s 128 of the Evidence Act, counsel for the prosecutor informed the Court that information had been received overnight which raised the question of whether or not Mr Papaianni and Mr Hamilton had waived their privilege against self-incrimination by giving sworn evidence in related Compensation Court proceedings arising out of the same incident. Although the prosecutor ultimately did not press the issue of waiver, counsel for Mr Tsougranis did press the issue. Two issues appear to have arisen: firstly, Mr Papaianni had been questioned on two occasions by Inspector Carmody, informed that pursuant to s 31N of the Occupational Health and Safety Act, he was required to provide answers but could, under s 31(n), avail himself of the privilege against self-incrimination but Mr Papaianni had been willing to participate in and provide answers for the purposes of a record of interview; secondly, in the proceedings in the Compensation Court, there was no record on the transcript that the privilege against self-incrimination had been raised on behalf of Mr Papaianni and Mr Papaianni answered all questions put to him in those proceedings. The situation in relation to Mr Hamilton was said to be slightly different. Mr Hamilton had declined to answer questions which may have incriminated him when a record of interview was conducted by Inspector Carmody. Mr Hamilton had also given evidence in the Compensation Court proceedings but his counsel in these proceedings was aware that an objection had been taken to requiring him to give that evidence: because other counsel had appeared in the Compensation Court, the exact terms of that objection had not been able to be established and were not recorded in the transcript.

32 Issues then arose as to what extent, if at all, Mr Papaianni and Mr Hamilton had waived their privilege against self-incrimination. A further issue raised by counsel on behalf of Mr Hamilton was that s 128 was a code and encompassed all aspects of the privilege including its waiver. The thrust of this submission was that there could never be any waiver of the privilege against self-incrimination after the introduction of s 128 of the Evidence Act. In this context, the only consideration would be whether the extent of prior publication affected the ability of the witness to maintain the privilege.

33 Counsel for Mr Tsougranis rejected the proposition that s 128 of the Evidence Act acted as a code such that there could no longer be a waiver of the privilege against self-incrimination. Counsel pointed out that s 128 did not expressly deal with the loss of the privilege and therefore could not be said to cover the field. The provisions of s 9 were relied upon - there was no express removal of the principle of waiver in the Evidence Act, nor in s 128, nor was it removed as a result of necessary intendment. Section 9 of the Evidence Act provides as follows: 9. Application of common law and equity [NSW Act only]

(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceedings to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment. (2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following: (a) admission or use of evidence or reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgement, decree, order or sentence of a court, (b) the operation of a legal or evidential presumption that is not inconsistent with this Act, (c) a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.

34 On its proper construction, counsel for the defendant argued, s 128 dealt only with the claim for privilege and how it was to be dealt with under the statutory regime. There was nothing in the Evidence Act which suggested that the privilege against self-incrimination could never be waived. Further, s 128 only operated when the objection was taken relying on the privilege against self-incrimination. That was the only topic dealt with (including what flowed from such an objection if made out) in the scheme laid down by s 128.

35 Counsel for Mr Hamilton relied on s 56 as well as s 9. Section 56 provides as follows: 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. Counsel relied on the introduction to Odgers "Uniform Evidence Law" Fifth Edition (Thomson Law Book Co.). It was pointed out that in paragraph 1.1.40 the learned author had noted that neither the Commonwealth nor the New South Wales Act was technically a code and that a number of topics sometimes associated with the law of evidence were not dealt with by the Acts. The following is then stated at page lvi: Further, the Act is not a "code" in the technical sense since it does not affect the operation of other legislation or (consistent) common law and equitable rules of evidence (see s 8 in the Commonwealth Act and s 9 in the New South Wales Act). Nevertheless, much existing statute law dealing with the rules of evidence has been abrogated and, to a significant extent, the Act "covers the field" in a number of areas. Most significantly, it appears that Chapter 3 of the Act constitutes a code for the rules relating to the admissibility of evidence, in the sense that common law rules relating to the admissibility of evidence are abrogated. This conclusion flows primarily from the terms of Section 56(1), described as the "pivotal provision" by McLelland CJ in Eq (see Telstra Corporation v Australis Media Holdings (No 2) (1997) 49 NSWLR 346 at 349B, which provides: Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. If the evidence is "relevant" in accordance with the very general definition in s 55, and not excluded by any provision in the Act, the effect of s 56(1) is that it "is admissible in the proceeding". Any common law rule of admissibility which would render such evidence inadmissible would be inconsistent with the Act. Consequently, the effect of s 8 in the Commonwealth Act, and s 9 in the New South Wales Act, would be that such a common law rule would have no legal effect … . Similarly, any evidence rendered inadmissible by the Act could not be saved by common law rule to the contrary. While common law principles of admissibility may assist in determination of questions of relevance and discretionary exclusion, they are no longer binding legal rules. This analysis was adopted by McLelland CJ in Eq in respect of the rules relating to client legal privilege in Part 3.10 of Chapter 3 ("legal professional privilege" under the common law): see Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 at 349-350. There is no reason why it should not apply equally to all common law rules of admissibility. … . Thus, it has been held that the common law rules relating to settlement negotiations privilege (see s 131) have been superseded by the Act: see Brook v Patterson (1995) 58 FCR 293; Bruinsma v Menczer (1995) 40 NSWLR 716; Sparnon v Appand (1996) 68 FCR 322 at 325. On the other hand, there are judicial observations, which appear to be at odds with this approach. Thus, obiter statements have been made that Part 3.10 of the Act is not a "code". (Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation (1997) 42 NSWLR 351 at 392F per Smart J; see also DPP v Kane (1997) 140 FLR 468; Abigroup Ltd v Akins (1997) 42 NSWLR 623 at 638-639 per Bainton J). Similar statements have been made in other contexts. The question plainly requires authoritative resolution. Nevertheless, whatever the result, as Justice Smith has stated: In a practical sense, the Act will operate as a code. Thus, in dealing with evidentiary problems in the relevant courts, it will be necessary to look to the statute for the answer. It will not be relevant to look to the common law and prior statute law (and in cases interpreting those statutes) unless the previous law has not been changed, or to do so would assist to understand the changes that have been made or terminology employed. The experience of the US Federal Rules [of Evidence] suggests that the Act will become a "pocket bible", and the law, therefore, more accessible.

36 It was submitted that the approach of McClelland CJ in Eq in the Telstra case, although dealing with the waiver of client legal privilege, also applied to the waiver of the privilege against self incrimination: simply, the approach was if the evidence was relevant then it is admissible.

37 The submission continued that the new legislative scheme took into account prior disclosures in the exercise of the Court's discretion under s 128(5) or in the exercise of a residual discretion .

38 In dealing with this issue, it is important to understand precisely what has been decided by the cases relied on in support of the argument that s 128 is a code which excludes the common law principles of waiver. Much of the argument in support of this proposition relied upon the commentary in Odgers and the judgment of McLelland CJ in Eq in Telstra v Australis Media Holdings (No 2). In the Telstra case, his Honour was dealing with the extensive provisions of s 122 of the Evidence Act dealing specifically with the loss of client legal privilege: sub-section 2 provided that the division did not prevent the adducing of evidence if a client or party had knowingly and voluntarily disclosed to another person the substance of the evidence in circumstances specified. There is no like provision found in s 128. Further, his Honour specifically avoided deciding whether or not the Evidence Act 1995 was or was not to be described, in a "technically accurate way", as a code (at 349). Indeed, in Abigroup Ltd v Aikens, Bainton J emphasised the point that his Honour's judgment did not require or even encourage a view that the Evidence Act is now a code in the sense that, save where it repeats common law rules, it displaces them (at 638). At this point, it is appropriate to be reminded of the statement of Lord Halsbury in Quinn v Leathem (1901) AC 495 at 506: A case is only an authority for what had actually been decided. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. This statement was approved by Jordan CJ in Coleman v Shell Company of Australia Ltd (1943) 45 SR (NSW) at 34. 39 Having found it unnecessary to decide whether or not the Evidence Act constituted a code, McLelland CJ in Eq decided the issues by reference to the specific provisions of s 122 dealing with client legal privilege. His Honour was not making a general comment about all other privileges, including the privilege against self-incrimination, nor was he commenting upon the operation of the Evidence Act on all classes of privilege. There is much to be said in support of the approach of Smart A-JA, in dissent in the particular case, about the Act operating as a code in Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation (1997) 42 NSWLR 351 at 392F: It is necessary to say a little about Pt 3.10 of the Evidence Act 1995 dealing with client legal privilege. I do not regard this Part as a code but it did make some significant amendments to the common law and over-ruled it in part. The exercise now required is to marry the statute and the common law, but remembering that the statute is the dominant partner whenever there is a conflict or an anomalous result. The Act, in some respects, broadens the privilege given by the common law. …

40 Returning to the provisions of s 9(1), in my view the argument that s 128 operates as a code such as to abolish the principle or rule of the common law in relation to waiver of the privilege against self-incrimination so that s 128 alone governs the matter is not sustainable. Section 9 expressly states that the Act does not affect the operation of a principle or rule of the common law in relation to evidence in a proceeding to which the Act applies: "… except so far as this Act provides otherwise expressly or by necessary intendment". There is no express provision: none has been suggested. I am unable to discern an operation for s 128, as argued for, which leads to the principle of waiver being subsumed as a "necessary intendment". Section 128 does not deal with the issue of waiver of the privilege such as s 122 deals with the waiver of client legal privilege. Section 128 begins with a witness objecting to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed a offence against or arising under an Australian law or a law of a foreign country or is liable to a civil penalty. While it is undoubtedly true that, if the Court comes to the operation of s 128(5) and whether or not the interests of justice require that the witness give the evidence, it will obviously be relevant that there has been a prior publication and the extent of that publication of evidence which is now objected to. Section 128(2) requires the Court to be satisfied that there are "reasonable grounds" for the objection: again, prior publication and the circumstances of it will be relevant to that consideration. However, it is not necessary for the operation of s 128 that the principles of the common law regarding waiver be replaced by the provisions of s 128.

41 It is therefore necessary to consider whether or not there has been waiver by either Mr Hamilton or Mr Papaianni in the giving of statements to the WorkCover Authority or in their evidence in the Compensation Court. In this regard, it is appropriate to commence with a consideration of the principles applying to the concept of waiver.

42 During argument, considerable attention was paid to the judgment of the Court of Appeal in Accident Insurance Mutual Holdings Ltd v McFadden and anor (1993) 31 NSWLR 412. In that case, the members of the court divided as to the proper treatment of two written statements made by a witness, who himself had been charged with a criminal offence, and, who had claimed the privilege against self-incrimination in declining to answer questions either identifying the statements as his or giving evidence in relation to the contents of the statements. In the District Court the claim to privilege was upheld and the court rejected the tender of the two statements. On appeal, it was said that, by the earlier written statements, the witness had lost the entitlement to immunity or that he waived immunity or, further, that he had not made the claim bona fide for his own protection and thus could not have the benefit of the privilege. In his judgment, Kirby P noted that statutes would be construed, unless their language was clear, to prevent an infringement of the privilege against self-incrimination or permit it to be diminished. In relation to waiver, his Honour stated: 8. The privilege against self-incrimination may be waived in certain circumstances. In this respect it accords with other privileges. This much is clear law: see, eg, J H Wigmore, Evidence in Trials at Common Law (1961) Boston, Little, Brown & Co, Vol 8 at 453ff and BTR Engineering (Australia) Ltd v Patterson (1990) 20 NSWLR 724 at 727). The presence of a privileged document in the hands of a third party does not necessarily destroy the privilege. The question remains whether the party entitled to the privilege has actually waived it: see Kennedy v Lyell (1883) 23 Ch D 387; Trade Practices Commission v Sterling (1979) 36 FLR 244; Hartogen Energy Ltd (In Liq) v Australian Gaslight Co (1992) 109 ALR 177; cf Giannarelli v Wraith [No 2] (1991) 171 CLR 592 at 604. The extent of possible waiver is, however, disputed. The respondents asserted, with the support of Wigmore, that it was available in two cases only, being the two mentioned by that author, viz, by contract or other binding pledge before trial and by voluntarily testifying in the case. I do not consider that this states the common law of Australia. It is conceptually unsatisfactory. It appears to be inconsistent with the passage of Lord Barker in LC East India Co v Atkins (1719) 1 Str 168 at 176; 93 ER 452 at 457 where it was pointed out that what was involved is "only a privilege not an actual right". It is also incompatible with reasoning of the High Court of Australia in analogous cases: see, eg Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 480. Nevertheless, as with any waiver, it is necessary to define with some precision what is waived. It will be rare that a person is taken to have waived all rights and privilege in respect of any prosecution for an offence arising out of circumstances only generally defined. The point of difficulty will be presented by the definition of the subject matter of the waiver. This will require assessment of the reasonable interpretation to be placed upon the conduct of the witness said to amount to the waiver.

43 In applying these principles, Kirby P held that the primary judge was correct in upholding the claim for privilege in respect of the demand for further testimony noting that, while the witness may have been fixed with the written statements which he had already signed, he was not however obliged to go beyond those statements to provide an elaborated oral testimony which could be used in later criminal proceedings or could afford the prosecuting authorities evidentiary leads with which to enlarge the prospects of obtaining his conviction out of his own mouth. His Honour continued: The giving of a written statement (whether to police or to an insurance investigator) on the general subject matter of certain criminal activities does not forever waive the privilege against self-incrimination in respect of other crimes which may arise from the oral elaboration of the written document. Of course, what is involved raises a question of degree. Each question put must be judged by reference to the matters already admitted and the waiver already expressed. But because of the prosecution for a wide range of offences which this witness potentially faced and the great latitude normally allowed to a witness to be protected from self-incrimination, I consider the course adopted by (his Honour) was proper. (at 424).

44 Earlier, Kirby P had noted that, while the court must protect the privilege, it must also make sure that the rule was not abused but applied where its invocation was justified. He stated that the proper procedure in a claim for privilege was to object to each question as it was asked (Ex parte Reynolds; re Reynolds (1882) 20 Ch D 294; Brebner v Perry [1961] SASR 177 at 180. His Honour said that it was not proper to refuse to be sworn or to decline to answer any questions at all or to claim a global protection under the privilege. Such a refusal may amount to a contempt of court (see Smith v The Queen (1991) 25 NSWLR 1 at 9). His Honour accepted that a point would be reached in questioning where it would be unnecessary to persist with an entire cross-examination which was clearly futile because of the invocation of the privilege against self-incrimination. It would be pointless to demand a tedious repetition of questions, rebuffed every time by a claim for privilege which is upheld.

45 In a separate judgment, Clarke JA stated that the appellant had placed a great deal of reliance upon the decision of Giles J in BTR Engineering. In that case, a person who had provided a statutory declaration and a statement in connection with proceedings between third parties, claimed privilege against self-incrimination when requested to adopt their contents in the proceedings. Giles J held that the claim of privilege against self-incrimination should be rejected because, in providing the statutory declaration and the statement to a third party without qualification, any entitlement to claim privilege on the subsequent occasion had been waived. Giles J referred to the dictum of the Chief Justice in Attorney-General for the Northern Territory v Maurice (at 480), to the effect that the privilege there in question (legal professional privilege) could be waived "like every other privilege properly so called". Clarke JA accepted that a person can waive the privilege to decline to answer the question on the grounds that the answer might have an tendency to incriminate him but it was unclear whether a person could impliedly waive the right to decline to answer. He noted that, in the judgments of Mason J and Brennan J in the Attorney-General for the Northern Territory v Maurice, the implied waiver occurred when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege was not to be able to abuse it by using it to create an inaccurate perception of the protected communication. Clarke JA said that it may be that a similar principle applies in relation to privilege against self-incrimination but, apart from the judgment in BTR, there were no cases which supported that view and in any event it did not arise in the case he was considering. His Honour then stated: In Phipson on Evidence, 14th ed (1990) at 540, the following statement appears: … witnesses have also, in a few cases, been held disentitled to the privilege of refusing to answer in respect of penalties or forfeiture, but not of crime, by their own contract or conduct.

The clear thrust of this statement is that conduct of the witness will not disentitle him or her from answering the question which may tend to expose the witness to conviction for a crime. Wigmore on the other hand, (Wigmore, Evidence in Trials at Common Law (1961), Vol 8, par 2275 at 453) says that it has never been doubted that the privilege against self-incrimination, like all privileges, is waivable. The text goes on to say (at 454): There are two possible ways of waiving: (a) by contract or by other binding pledge before trial, or (b) by voluntarily testifying in the case. The second alternative is discussed in para 2276 (at 256-457) where it is said: The witness who is not the accused in a criminal trial - the ordinary witness - may waive his privilege; this is conceded. He waives it by exercising his option of answering; this is conceded. Thus, the only inquiry can be whether, by answering as to fact x, he waived it for fact y. The answer is yes, provided the facts are sufficiently related. The clear case is that in which fact y is but a detail implying no further self-incrimination - none in addition to that already volunteered by the disclosure of fact x. A more difficult case is that in which fact x and y are interdependent parts of a whole fact forming a single relevant topic. If it is patent at the time of the disclosure of fact x that any distortion caused by that disclosure can be discovered and corrected only by the acquisition of information as to fact y, then it is reasonable to hold that the witness's voluntary disclosure of part is a waiver as to the related parts. This is so at least if the witness is aware of his rights, the part voluntarily disclosed is self-incriminating, and the distortion created by partial disclosure would incurably prejudice the interests of someone other than the Government in its pursuit of the witness .

46 Clarke JA was of the view that the witness had not waived his rights by making the earlier statements. He regarded the views expressed in Phipson as weighing against waiver of the privilege and, while much was to be said for the views expressed by Wigmore, there needed to be a distortion or unfairness in the making of the earlier statements without further elaboration before the privilege would be waived. His Honour continued: All that is put in support of the waiver is the making of the earlier statement. In principle it would seem to me that conduct could not constitute a waiver of a right to decline to provide self-incriminating answers to questions put during the course of a trial. If it were otherwise it would mean that persons who had made admissions to the police could be taken to have waived the right to remain silent. This has never been suggested and, if correct, it would constitute an enormous infringement of an ancient and fundamental right of all citizens. For these reasons I am of the opinion that his Honour was correct to decline to hold that the witness had waived his privilege. I should add that Wigmore (in par 2276) makes it clear that the views expressed therein are not accepted in England. Later in the footnote (at 461-462) the following appears: The English view, supra, was supported by Cooley J, [I]f he does testify, he is at liberty to stop at any point he choses, and it must be left to the jury to give a statement, which if he declines to make a full one, such weight as under the circumstances they think it entitled to … Cooley, Constitutional Limitations, at 317 (second ed 1871).

47 In dealing with the issue of whether or not a claim for privilege was bona fide, Clarke JA stated (at 433): Any witness who gives sworn evidence admitting to his guilt of a crime is exposing himself to jeopardy unless he has already been dealt with for that crime, he has been pardoned or there are other similar circumstances. The fact that he might have earlier admitted the crime in a signed statement, which he may or may not wish to disavow, cannot mean, in my view, that there is no additional prejudice in giving sworn testimony to like effect: Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 574.

48 In his separate dissenting judgment, Meagher JA agreed with the approach of Giles J in BTR which he regarded as setting out the legal position "admirably". His Honour, at p 438, continued: The only relevant question then becomes whether the privilege was waived in the present case. The question must be answered in the affirmative. The witness's conduct was set out in careful detail, in documents wholly or partly in his own handwriting. Knowing the purpose for which the information was sought, he handed the documents containing the information to the appellant insurer. If that does not constitute a waiver, it is difficult to imagine what could.

49 The Australian edition of "Cross on Evidence" at [25020] states that, in general, a failure to claim privilege does not amount to a waiver (Lake Cumberline Pty Ltd and ors v Effem Foods Pty Ltd (1994) 126 ALR 58 at 62). However, McNicol, "Law of Privilege" Law Book Co. Limited, (1992) states that at common law, if the witness has not claimed the privilege (and presumably the judge has not warned the witness of this right), the witness has no alternative but to suffer the consequences; retrospectivity of protection is unavailable (R v Coote (1873) L. R. 4P.C 599; A.L.R.C., report No 26 (1985) Vol 1, para 464, page 258). Those consequences will usually be that the incriminating answers will later be admissible in subsequent criminal proceedings (R v Sloggett (1856) Dears 656; 169 E.I. 855; R v Coote; R v Clyne (1985) 2 NSWLR 740; R v Zion [1986] V.R. 609). The learned author continues: Cases such as R v Coote and R v Clyne indicate the vital importance of the claim being made to privilege at the relevant time. In short, if a claim is not made, the privilege is deemed to have been waived, the answers given are deemed to be voluntary and will therefore be admissible in later criminal proceedings. In R v Clyne, the accused was convicted of offences under the Banking (Foreign Exchange) Regulation. At his trial a transcript was admitted of the accused's cross-examination in early bankruptcy proceedings. On the appeal to the New South Wales Court of Criminal Appeal it was held that this evidence was properly received. Street CJ in referring to the old case of R v Coote, at page 747, stated: It is plain on the authority of this decision of the Privy Council that evidence given by a witness is ordinarily admissible, albeit that it may be incriminating, unless he has claimed privilege on the grounds of avoiding self-incrimination and been denied that privilege by the presiding judicial officer. The mere fact that a witness in the witness box is ordinarily obliged to answer the questions does not of itself make those answers involuntary in the sense that it is relevant if those answers are later sought to be used against the witness in criminal proceedings. This commentary appears to deal only with evidence given in court.

50 A different circumstance was dealt with by Tamberlin J in Versace v Monte, where his Honour stated: … I do not consider that there has been a waiver by Mr Monte of the privilege against self-incrimination in this matter by reason of statements made to the media and in other communications by him over the past few years. I am not satisfied there is any precise or detailed specific reference on oath of Mr Monte in relation to these matters which is capable of giving rise to a waiver. [13] (emphasis added) His Honour made that statement in the context of considering the terms of s 128(2) of the Evidence Act where the applicants had submitted that there were no reasonable grounds for the objection in view of previous disclosures apparently made by Mr Monte in articles published in Australian papers.

51 If the matter is approached on the basis of applying general principle and consistent with the operation of s 122, the privilege will be lost in relation to the part disclosed and connected communications. An issue may arise as to whether the witness knowingly and voluntarily disclosed the substance of the evidence. Similarly, applying common law tests, the issue may be as to whether it is fair or inconsistent to allow the privilege to be maintained as discussed in Mann v Carnell (1999) 201 CLR 1. Carnell dealt with legal professional privilege and at [29] the majority of the court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) noted that at common law legal professional privilege may be waived expressly or impliedly. There was implied waiver if the conduct was inconsistent with the maintenance of the confidentiality. The waiver, however, may not reflect the subjective intention of the party who lost the privilege (for example Benecke v National Australia Bank (1993) 35 NSWLR 110 where the intentional act was inconsistent with maintenance of the confidentiality). The majority continued: What brings about the waiver is the inconsistency, with the courts, where necessary informed by considerations of fairness, perceived, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. The court did note that voluntary disclosure to a third party did not necessarily amount to waiver of privilege. The court also referred to Goldberg v Ng (1995) 185 CLR 83. In that case, Deane, Dawson and Gaudron JJ, at 96, stated that an imputed waiver need not completely destroy the privilege - by express waiver, it can be limited so that it applies in relation to particular persons, materials or purposes.

52 It is of interest that in Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (unreported, NSW SC, 3 March 1997, Hunter J), dealing with the operation of s 122, it was held that s 135 and the discretion in the court to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, may permit considerations of fairness to be taken into account under the common law when deciding whether the privilege is lost. This would require it to be demonstrated that the evidence was damaging to the accused's case in some unacceptable way including, for example, by giving the evidence more weight than it should have.

53 From this rather conflicting line of authorities, what may be said to be the principles governing a claim that there has been waiver of the privilege against self-incrimination? Counsel for Mr Tsougranis relied on the judgments of Giles J in BTR , a judgment which Meagher JA in McFadden accepted as setting out the legal position "admirably". In BTR, Giles J looked at English case law suggesting that any disclosure resulted in the loss of privilege and, in particular, considered the South Australian judgment in Brebner v Perry . In that case, a witness statement had been made to the prosecutor by a person who had been involved in the same offence and no claim for privilege had been made. It was held that, when that person was called to give evidence in the prosecution of others, his claim for privilege against self-incrimination was not made bona fide but was, in effect, made to stop other parties getting that testimony which was necessary for the purposes of justice. The point appeared to have been taken for the benefit of the defendant. Giles J, in the circumstances, was of the view that Brebner v Perry was not really a case about waiver. That approach, however, appears to have been central to the conclusion that his Honour reached in relation to the claim for privilege.

54 In McFadden, Kirby P treated the judgment in BTR as a lack of bona fides case (at p 422, [6]). He regarded it as a dubious principle, the preferable course being to look at the objective tendency of questions to expose the witness to the risk of criminal prosecution. His Honour did cite Brebner v Perry, but only as laying down the proper procedure, namely, that there should be an objection taken to each question as it was asked rather than making a global objection. While Kirby J thought that the limitation on the loss of the privilege against self-incrimination referred to in Wigmore went too far, his Honour did conclude that statements made outside of court were not enough to lose the privilege (at 424). His Honour did not give consideration to the limitations referred to in Phipson as referred to by Clarke JA. Ultimately, Kirby P spoke of "further testimony" elaborating on what had already been said by the witness as not being permissible when objection was taken. The witness was "fixed" with what he had said but the giving of a written statement did not forever waive the privilege. In his Honour's view, these matters raised questions of degree and, one would infer, assessment: the court was to judge each question by reference to the matters already admitted and the waiver already expressed.

55 Clarke JA (at 430) referred to the judgment of Giles J in BTR and the fact that the privilege against self-incrimination could be waived like every other privilege. His Honour then cited Phipson (at 431E) for the proposition that witnesses had been held disentitled to the privilege by their own contract or conduct, but not in relation to a crime. This was described as a "clear statement". His Honour then noted that Wigmore stated that there were two possible ways of waiving the privilege against self-incrimination: (a) by a contract or other binding pledge before trial, or (b) by voluntarily testifying in the case. In his Honour's view, earlier statements made by the witness were not sufficient to lose the privilege and he doubted the correctness of Brebner v Perry.

56 In Versace v Monte, Tamberlin J (at [9]) stated that the principles relating to waiver of the privilege against self-incrimination were set out in McFadden. His Honour referred to that case being based upon the "fundamental nature and breadth of the principles at common law against obliging a person to incriminate himself or herself by their own sworn evidence". In that case, his Honour held that there was no waiver involved where the witness had made various press statements.

57 In light of this review of the authorities, there is much to be said for the approach of Smart A-JA in Newcastle Wallsend Coal (at 392) that what is now required is to marry the statute and the common law, remembering that the statute is the dominant partner wherever there is conflict or anomalies result. In many respects, this is similar to the approach of Kirby P in McFadden.

58 Bearing in mind the fundamental nature of the privilege against self-incrimination and the strong statements of Phipson and Wigmore as referred to in McFadden, there is also much to be said for the overall approach of Clarke JA in that case. Applying that approach to the present proceedings, I am not prepared to treat the statements made by the witnesses to Inspector Carmody as waiving their privilege against self-incrimination but it is a matter to be considered as each question is asked and objected to in the course of the evidence. In my view, this approach conforms with the provisions of s 128 which may well have left the complexity of the debate as outlined in McFadden to be dealt with in the way that Smart A-JA has identified. 59 Having debated the applicable principles, counsel for Mr Hamilton and Mr Papaianni sought an adjournment to establish precisely what objections had been taken in the Compensation Court proceedings, and, in Mr Papaianni's case, to provide evidence as to his participation in those proceedings. On the resumed hearing, the following positions were established: (a) Mr Hamilton had participated in a Record of Interview with Inspector Carmody on 14 September 1998. The Record of Interview records that Mr Carmody introduced himself as an Inspector appointed under the Act and he informed Mr Hamilton that he was going to ask him questions in relation to the accident at 730 Bourke Street, Redfern on 3 September 1998. Inspector Carmody told Mr Hamilton that his questions "must be answered and may be used in a court of law". Mr Hamilton was asked if he understood the statements just made by Inspector Carmody and he relied "Yes": Inspector Carmody also told Mr Hamilton that, under s 31N of the Act, he must answer Inspector Carmody's questions but that he could claim privilege against self-incrimination and that claim would be noted. He was also told that the claim could be made now or at any time during the interview. Mr Hamilton said he understood that caution and confirmed that he did wish to make a claim for privilege at the commencement of the Record of Interview; (b) On 19 March 2001, the Compensation Court commenced hearing an application made by the widow of Mr Zaronias who was killed in the accident at the Bourke Street building site. Amongst the respondents to the proceedings were Mr Hamilton and Mr Papaianni. Mr Hamilton was represented by counsel. During the course of the hearing, counsel for the applicant in those proceedings tendered the "statement" of Mr Hamilton dated 14 September 1998 which was entered into evidence without objection and, in particular, without objection from counsel for Mr Hamilton. The "statement" of Mr Hamilton was, in fact, the Record of Interview conducted by Inspector Carmody in which Mr Hamilton had claimed privilege against self-incrimination. The transcript of these proceedings was before this Court on the voir dire. That transcript contained no reference and no discussion about Mr Hamilton's claim in the Record of Interview of the privilege against self-incrimination; (c) Mr Hamilton was not called and did not give evidence in the Compensation Court proceedings.

60 In relation to Mr Papaianni, on the resumed hearing, the following matters were established: (a) on 7 October 1998, Inspector Carmody conducted a Record of Interview with Mr Papaianni in relation to the accident occurring at 730 Bourke Street, Redfern on 3 September 1998. Inspector Carmody commenced that interview by introducing himself as an Inspector appointed under the Act and informing Mr Papaianni that he was going to ask questions in relation to that accident. Inspector Carmody stated that the questions must be answered "… and may be used in a court of law". Inspector Carmody asked Mr Papaianni if he understood that statement, to which Mr Papaianni replied "Yes". Inspector Carmody then stated that under s 31N of the Act Mr Papaianni must answer his questions but that under s 31(n) Mr Papaianni could claim privilege against self-incrimination and that he would note the claim. Inspector Carmody then said: "You may claim now or at any time during the interview. Do you understand this caution?" Mr Papaianni replied "Yes" and in answer to Inspector Corody's next question as to whether he wished to make the claim now, replied "No". This interview had been arranged by prior appointment but Mr Papaianni had no legal representative present during the course of the interview with Inspector Carmody; (b) on 30 June 1999, a second Record of Interview was conducted with Mr Papaianni by Inspector Carmody relating to this accident. On this occasion Mr Papaianni had a legal representative present and claimed the privilege against self-incrimination before answering any of the Inspector's questions; (c) on 15 July 1999, Mr Papaianni attended a Coroner's Inquest into the accident at the Bourke Street building site. He was subpoenaed to give evidence on that occasion and again was legally represented. His legal representative claimed the privilege against self-incrimination on Mr Papaianni's behalf: he was not required to give evidence in those proceedings; (d) on 19 March 2001, Mr Papaianni was present at the Compensation Court for the hearing of the application made by Mr Zaronias' widow. Mr Papaianni was a respondent to the proceedings and, at the hearing, an appearance was entered for Mr Papaianni, apparently by a legal secretary from a firm of solicitors. It was expected that sometime later in the day a solicitor from that firm would appear for Mr Papaianni and that indeed did incur after the lunch adjournment. The curious circumstances of that appearance were demonstrated in the transcript when the solicitor announced his appearance saying: I think what you read was perhaps the best way I can describe it. Mr Papaianni and I have been through the matters a number of times and in his case would be a submission to the court's orders there is no - subpoenae or witnessed by one of the respondents - that will be his capacity and role here today, and I do not anticipate playing any active role in the proceedings. Hopefully, that remains the case. It appears that an "Answer" had not been filed on behalf of Mr Papaianni in the Compensation Court proceedings. Mr Papaianni had been also subpoenaed to give evidence at the hearing, apparently on a subpoena obtained by WorkCover. Mr Papaianni's solicitor appears to have made no other contribution on the record other than that which is set out above. During the course of the morning, while Mr Papaianni was sitting in court, but in the absence of his solicitor, the Record of Interview conducted by Inspector Carmody on 7 October 1998 was tendered without objection.

61 Mr Papaianni gave evidence on the voir dire regarding his Record of Interview with Inspector Carmody on 7 October 1998, the subsequent Record of Interview, his appearance at the Inquest and his evidence in the Compensation Court proceedings. Mr Papaianni stated that he came to Australia when he was seven or eight years old having been born in Italy. Although he only spoke Italian when he arrived, by 1975 he had completed the HSC having completed English studies at Level 3. He had undertaken a private course in computer programming for a period of six months and had worked as a programmer for approximately two years. Mr Papaianni then started work as a bricklayer's labourer and then completed a builder's certificate course part-time at Sydney TAFE. For approximately three years he left the building industry and worked in a café but had been working for himself for approximately twelve years in the building industry. Mr Papaianni said that he had no legal training or qualifications and he had no experience in the area of occupational health and safety: he had never read the Occupational Health and Safety Act.

62 During the Record of Interview with Inspector Carmody on 7 October 1998, Mr Papaianni accepted, in general terms, the opening statements made by Inspector Carmody drawing his attention to the provisions of s 31N, his obligation to answer questions, the fact that the answers could be used in a court of law and that he could claim the privilege against self-incrimination. Although he told Inspector Carmody he understood what had been said to him, Mr Papaianni stated that he did not know what "making a claim for privilege" was so he did not make such a claim. He accepted in cross-examination that he did not ask the Inspector to explain the term "claim for privilege", although in his other endeavours he would ask to have matters explained to him which he did not understand. He pointed out that, when the interview was arranged with Inspector Carmody, he believed that the purpose was to gather facts for the Inquest - he was more concerned to make sure that he had answered the Inspector's questions correctly than bothering about the introductory statements made by the Inspector about his obligation to answer questions and the making of a claim for privilege. Mr Papaianni said that during this interview with the Inspector he was not provided with a copy of the Occupational Health and Safety Act nor did Inspector Carmody read him the terms of s 31 of the Act. He could not recall Inspector Carmody inviting him to have a legal representative present during the interview. He had no understanding of what was provided by s 31(n) of the Act and he did not know what would be the ramifications of participating in the interview because he though it was just a matter of gathering information for the Coroner's Inquest. He said that, during the interview on 7 October 1998, the Inspector did not explain that the answers he would give during that interview could be used against him in subsequent court proceedings.

63 Mr Papaianni said that he personally did not and he gave no instructions to anyone to file a Notice of Appearance or an Answer on his behalf in the Compensation Court proceedings. He confirmed that he attended the March 2001 Compensation Court hearing because he was subpoenaed to attend. The solicitor who had appeared in the afternoon was someone he had asked for advice and to give him "some pointers". He had not given instructions to the solicitor to attend - "the legal secretary was actually his legal secretary and she just came along with me just to help me through the day". Mr Papaianni was not sure what was happening in the proceedings and what the parties were talking about and what documents they were handling. In particular, he said he was not aware that his Record of Interview with Inspector Carmody of 7 October 1998 had been tendered in the Compensation Court proceedings. He had not been provided with an opportunity to address the Compensation Court in relation to his statement of 7 October 1998 and he had no discussions with anyone about the tendering of his Record of Interview. He had not objected to the tender of the Record of Interview because he did not "know the legal side of things". While he was present in the Compensation Court, Mr Papaianni did not recall anyone advising the judge that there was a pending prosecution against him.

64 Mr Papaianni said he gave oral evidence in the Compensation Court during the afternoon of 19 March 2001 and while his solicitor was present in court. He had not really given his solicitor any instructions. During the time he was giving evidence, he was not informed by anybody that he had the right to claim privilege in respect to any answers he may provide on the grounds that they may incriminate him, nor was he given such a warning whilst giving his evidence. While he was giving his evidence, he had no recollection of anybody at the bar table informing the judge that there was a pending prosecution against him initiated by WorkCover.

65 In cross-examination, Mr Papaianni said that he was allowed to read the questions asked of him by Inspector Carmody including the caution but said he had never received advice from anybody telling him what the ramifications of answering the questions might be. He was told to answer the questions and he answered them to the best of his ability. He said he was not an expert in relation to these matters and that this was the first time he had been involved and had been interviewed by WorkCover. Although he had an understanding of what was meant by the word "incrimination" and the phrase "tend to incrimate you", he did not consider himself a criminal nor in his view did he do "anything to incriminate himself". He was asked to read the statement to make sure that everything was answered correctly and he did so. He was more concerned about questions relating to the accident and to make sure that the answers he gave were correct. He understood that the answers he gave could be used in a court of law but thought they were to be used as fact gathering for the Coronial Inquest - that was his understanding or his assumption. While he understood "to a point" what the word "incrimination" meant, he did not understand what claiming privilege meant. It was just one question which he answered. It was not discussed at length - it was simply one question which he answered and the interview "moved on".

66 Mr Papaianni had spoken to his solicitor when he had been subpoenaed to give evidence in the Compensation Court proceedings and did so to obtain "some advice". He could not at that time afford legal representation and the solicitor had appeared "as a favour to me". He had spent his money on being legally represented in the Coroner's Inquest and, when it came to the Compensation Court proceedings, he was using the solicitor for "a bit of advice from time to time" and "that is as far as it went".

67 Mr Papaianni accepted that, prior to the commencement of the Record of Interview with Inspector Carmody, there had been some general conversation but he had no recollection of its detail. He did not recall Inspector Carmody saying that one of the possible outcomes of the investigation could be a prosecution because of breaches of the Occupational Health and Safety legislation, although it was possible he did say that. He did not recall the Inspector saying that one of the persons who could be charged was Mr Papaianni.

68 At the resumed hearing, counsel for Mr Hamilton relied upon the judgment of the Court of Appeal in British Coal Corporation v Dennis Rye Ltd and anor. (No 2) [1988] 1 W.L.R 1113. In that case, the plaintiff had brought an action claiming, inter alia, the return of monies said to be overpaid, damages for fraudulent or negligent misrepresentation and conspiracy to defraud. Documents which had been created for the purposes of the civil proceedings were handed to police to assist with their investigation, as a result of which criminal charges were brought against, inter alia, the defendant. In accordance with the Attorney-General's guidelines on the disclosure of information to the defence, the documents were supplied to the defendants by the police prior to the criminal trial and in the course of the trial the judge ordered the plaintiff to disclose to the defendants further documents relevant to the criminal proceedings. All the documents disclosed in the course of the trial had been created for the purpose of the civil proceedings. The defendants were acquitted in the criminal trial whereupon the plaintiff applied in the civil proceedings for the return of all documents. Ultimately, the defendants were ordered to deliver up to the plaintiff all of the documents and copies etc, and an injunction was made restraining the defendants from making any use of the documents for the purposes of pleading, cross-examination or otherwise for the purposes of the civil proceedings or any other proceedings between the plaintiff and the defendants. The defendants appealed on the ground that the plaintiff's privilege had been lost because the documents had properly come into the defendants' possession with the approval or acquiescence of the plaintiff, or in circumstances where the plaintiff ought to have foreseen that they would be disclosed to them pursuant to the Attorney-General's guidelines and the plaintiff had failed expressly to reserve its privilege. The Court of Appeal dismissed the appeal, holding that all the documents had been protected since their creation by the plaintiff's legal professional privilege, and that the plaintiff's actions in making them available for the limited purposes of assisting in the conduct of a criminal investigation and of a criminal trial did not constitute any waiver of that privilege for the purposes of the civil proceedings.

69 Speaking for the Court of Appeal, Neill LJ, at 1121-1122, stated: The issue is whether this privilege has been waived or is otherwise no longer available to the plaintiff. Thus, it is said on behalf of the defendants that the privilege has been lost because these copy documents have come into their hands quite properly and in circumstances in which the plaintiff either gave its approval or acquiescence .. . where the plaintiff ought to have foreseen that by making the documents available to the police copies might reach the defendants in accordance with the practice authorised by the Attorney-General's guidelines. It is further argued that if the plaintiff had wished to preserve its privilege it should have declined to make any document available in the criminal proceedings, except pursuant to an order of the court, and even then only on the basis that it expressly reserved its privilege. In my opinion this part of the case can be dealt with quite shortly. The documents, when they came into existence, were plainly protected by legal professional privilege of the kind to which I have referred. The privilege was a privilege from discovery and the action for which they were prepared, that is, the present action. Has anything happened which has caused that privilege to be waived or otherwise lost? In my judgment the answer to this question is plainly "No". Let it be assumed that all the documents have come into the possession of the defendants with the implied consent of the plaintiff and that it could be established that they would have supplied the Category B documents even without an order of the court. Nevertheless, it is clear that the plaintiff made the documents available for a limited purpose only, namely to assist in the conduct first of a criminal investigation and then of a criminal trial. This action of the plaintiff, looked at objectively as it must be, cannot be construed as a waiver of any rights available to them in the present civil action for the purpose of which the privilege exists. In two recent cases in this Court, Goddard v Nationwide Building Society [1987] QB 670, and Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027, consideration has been given to the circumstances in which privilege may be lost, where a privileged document has come into the hands of the other party by inadvertence or by chance. It is clear that it is necessary to examine the facts in each case, and that in the words of Nourse L.J. in Goddard v Nationwide Building Society [1987] QB 670, 685: The right of the party who desires the protection to invoke the equitable jurisdiction does not in any way depend on the conduct of the third party into whose possession the record of the confidential communication has come. It is also clear that even where a document has been disclosed by inadvertence or has actually been inspected, the court may in certain circumstance intervene by the grant of an injunction to protect the privilege: see Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1982] 1 W.L.R. 1027, 1044-1046, per Slade L.J. It is not necessary however, to examine this residual discretion in this case. In my judgment, the action of the plaintiff in making documents available for the purpose of the criminal trial did not constitute a waiver of the privilege to which it was entitled in the present civil proceedings. Its action in regard to both the Category A and the Category B documents was in accordance with its duty to assist in the conduct of the criminal proceedings, and could not properly be construed as an express or implied waiver of its rights in its own civil litigation. Indeed, it would in my view be contrary to public policy if the plaintiff's action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise be available to it in the civil litigating for which the cloak was designed.

70 Some reference needs to be made to the judgment of Slade L.J in the Guinness case, briefly referred to by Neill L.J. in the passage extracted from British Coal Corporation. It was accepted by Slade LJ that care had to be taken by parties to litigation in the preparation of their lists of documents, and no less great care was to be taken in offering inspection of the documents disclosed. Where a party to litigation, in the usual case, sees a particular document referred to in the other side's list without privilege being claimed and is subsequently permitted to inspect that document, that party is fully entitled to assume that any privilege which might otherwise have been claimed before it has been waived. Slade LJ however, expressed a reservation: he did not think that, after inspection had taken place in the course of discovery, the court was inevitably and invariably powerless to intervene by way of injunction in the exercise of the equitable jurisdiction as exemplified by cases such as Ashburton v Pape [1913] 2 Ch. 469, CA; Goddard v National Building Society [1986] 3 W.L.R. 734 and English and American Insurance Co Ltd v Herbert Smith and Co (987)137 N.L.J. 148. As an example, it was not doubted that the court would be prepared to intervene where one party to litigation had obtained inspection of a privileged document by fraud, albeit in what purported to be the normal course of discovery. While that was not the position in the case before the Court of Appeal, it was inferred from the nature of the document and the circumstances of its categorisation that the defendant's solicitors would have realised that it was a document mistakenly made available for inspection and would have realised that, as soon as the plaintiff's solicitors became aware of the mistake, they would wish to claim privilege for the document. It was said that, where one party seeks to take advantage of an obvious mistake on the part of the other party of which he was aware, it was appropriate for the court to protect the privilege in exercising its equitable jurisdiction in the field of discovery; in this manner justice would be best served. Apart from an obvious mistake there may be other exceptions to the general rule that normally a document disclosed results in the loss of privilege: it was not necessary to determine the field of exceptions in the present case.

CONCLUSION 71 In relation to Mr Hamilton, I am of the view that, for the purposes of his claim to the privilege against self-incrimination in the present proceedings, there has been no waiver of that privilege by the tender of the Record of Interview in the Compensation Court proceedings. In reaching this conclusion I have been influenced by the following matters: (a) at the times of his interviews with Inspector Carmody, Mr Hamilton claimed the benefit of the privilege against self-incrimination. It seems apparent from this approach that Mr Hamilton was not prepared to volunteer any information in relation to the WorkCover investigation of the accident without protecting his position in relation to any possible prosecution against him under the Act; (b) this position was not altered by the mere tender of his Record of Interview in the Compensation Court proceedings. This action did not amount to "actual" waiver as described by Kirby P in McFadden, nor was it voluntary testimony as described by Wigmore. Further, if waiver is to be decided on the reasonable interpretation to be placed upon the conduct said to amount to waiver, then the approach in Goldberg v Ng and in British Coal Corporation has relevance: the use of the Record of Interview in the Compensation Court proceedings was a use limited to the purposes of that case - it did not amount to a waiver of the privilege for the purposes of criminal proceedings; (c) there is no overall unfairness to either the prosecution or the defendant, Mr Tsougranis, in permitting Mr Hamilton to avail himself of the privilege. The use of the Record of interview in the Compensation Court proceedings has not resulted in an abuse of the privilege: neither the Court nor any interested party has been misled or given an inaccurate perception of the incident at the building site because the Record of Interview, and only one of them, was tendered in the Compensation Court. Properly approached there is no such inconsistency between the conduct of Mr Hamilton (and on his behalf) and the maintenance of the privilege as would require the privilege to be considered as waived.

72 The circumstances surrounding the Record of Interview and its use are somewhat more complex in Mr Papaianni's case. Despite these complexities, I have formed the view that Mr Papaianni has not, in any relevant sense, waived his privilege against self-incrimination in relation to the giving of evidence in these proceedings. In reaching this conclusion I have been influenced by the following matters: (a) although Mr Papaianni declined to exercise his privilege when interviewed by Inspector Carmody, I am not satisfied that he fully understood his entitlement to the privilege, nor did he fully understand the purpose of the interview. I should state immediately that I do not consider Mr Papaianni's level of understanding was brought about in any way by poor English skills - he had completed English to the HSC level and has successfully undertaken further study, including study at TAFE. He had operated his own business, undoubtedly with the professional assistance of accountants and others, and appeared to be a reasonably well informed person during the course of giving his evidence. However, I accept his evidence that in participating in the interview with Inspector Carmody he was under the impression that the interview was part of fact finding for the purposes of the Coroner's Inquest. The warning given by the Inspector, as recorded in the typed version of the interview, did not state that the answers would be used in Court against Mr Papaianni - the warning simply stated that answers could be used in Court. It is understandable that Mr Papaianni took this as a reference to the Coroner's Inquest and nothing more; (b) to the extent that knowledge and voluntariness are considerations in determining whether there has been a waiver of the privilege (as, for instance, in s 122 of the Evidence Act, relating to client legal privilege), I do not consider that, by participating in this interview with Inspector Carmody, Mr Papaianni in any way knowingly or voluntarily waived his privilege against self-incrimination for all purposes. Mr Papaianni understood that he was obliged to answer the Inspector's questions. He had not been involved in any WorkCover investigation before. He participated in the interview without the assistance of legal representation and it does not appear that this possibility was canvassed when the interview was arranged by the Inspector; as Clarke JA pointed out in McFadden, there is still prejudice and room for the privilege to operate even where there is a written statement admitting a crime; (c) the majority in McFadden accepted that merely by giving a statement to investigators, the right to the privilege is not waived. In Versace v Monte , the making of public statements was not considered as operating as a waiver of the privilege. In my view the same approach is open to statements made to WorkCover Inspectors unless the circumstances demonstrate a clear and informed election to waive the privilege - that does not describe the circumstances when Mr Papaianni spoke to the Inspector on 7 October 1998; (d) in June and July 1999, with the assistance of legal representation, Mr Papaianni claimed the benefit of the privilege, firstly in relation to another interview with Inspector Carmody and secondly, when subpoenaed to give evidence at the Coroner's Inquest. These events confirm my view that when fully apprised of his right to the privilege, Mr Papaianni took the benefit of the privilege. I also note the authorities which suggest that a mere failure to claim the privilege, particularly at an interview, will not lead to the loss of the privilege. (e) the tender of Mr Papaianni's Record of Interview in the Compensation Court proceedings occurred while he was present but unrepresented. I accept Mr Papaianni's evidence that he was unaware of the detail of the proceedings whilst he was present and did not know that the Record of Interview was tendered. Even if he was aware of the tender and failed to take objection, in my view the approach in Goldberg v Ng and in British Coal Corporation would apply to limit any waiver to the purposes of those compensation proceedings. Justice and the importance of the privilege would demand nothing less. This approach also applies to the evidence Mr Papaianni gave in the Compensation Court - evidence which counsel for Mr Tsougranis accepted as being of little value to the present proceedings; (f) as with Mr Hamilton, I do not regard the disclosures made by Mr Papaianni as resulting in some overall unfairness or incurable prejudice to the prosecution or to Mr Tsougranis - I do not repeat the considerations set out in paragraph [71(c)] but adopt them in relation to Mr Papaianni.

73 In addition to the abovementioned matters, in relation to both Mr Hamilton and Mr Papaianni, I would follow the approach of Hunter J in Tallglen and apply s 135 of the Evidence Act to refuse the admission of each Record of Interview and the transcript of evidence given in the Compensation Court. In my view, the admission of that evidence in the circumstances in which it was obtained, would unfairly prejudice both witnesses.

74 In light of the conclusions I have reached, the provisions of s 128 are available to both Mr Hamilton and Mr Papaianni - neither have waived their privilege against self-incrimination in these criminal proceedings. Mr Hamilton will elect to given evidence after a ruling that he has reasonable grounds for his objection to giving evidence and will receive a Certificate in accordance with the provisions of s 128(3). Mr Papaianni has established that he has reasonable grounds for his objection to giving evidence. He will not be required to give evidence in accordance with the provisions of s 128(5) and (6) of the Evidence Act. I accept that the objections taken by Mr Papaianni will be raised on a question by question basis, but the current state of the evidence does not warrant a direction under s 128(5).

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