Inspector Carmody v Luke Tsougranis - [2002] NSWIRComm 282 - NSWIRComm 1999 case summary — Zoe

NSWNSWIRComm

Inspector Carmody v Luke Tsougranis

[2002] NSWIRComm 282

Industrial Relations Commission (NSW)|1999-03-23|Before: Haylen J, Bainton J, Hunter J, Ms P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1999-03-23

Before

Haylen J, Bainton J, Hunter J, Ms P

Source

Original judgment source is linked above.

Judgment (83 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Carmody v Luke Tsougranis [2002] NSWIRComm 282 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Carmody) PARTIES : DEFENDANT: Luke Tsougranis FILE NUMBER: IRC 4365, 4366, 4367 and 4368 of 2000 CORAM: Haylen J Occupational Health and Safety Act, 1983 - s 16 and s 17 - witnesses charged under the Act in relation to same workplace accident - witnesses seek to exercise privilege against self-incrimination - operation of s 128 Evidence Act - whether privilege waived - whether s 128 Evidence Act operates as a code displacing common law principles of waiver - whether "interests of justice" require the evidence to be given - principles considered. CATCHWORDS : Evidence - prosecutions under Occupational Health and Safety Act 1983 - witnesses charged under Act in relation to same workplace accident - witnesses seek to exercise privilege against self-incrimination - operation of s 128 Evidence Act - whether privilege waived - whether s 128 Evidence Act operates as a code displaying common law principles of waiver - whether "interests of justice" require the evidence to be given - principles considered. LEGISLATION CITED : Evidence Act s 9 s 56 s 122 s 128(2) s 128(3) s 128(5) s 128(6) s 128(7) s 135 Abigroup Ltd v Akins (1997) 42 NSWLR 623 at 638-639 per Bainton J Accident Insurance Mutual Holdings Ltd v McFadden and anor (1993) 31 NSWLR 412 AMP General Insurance Ltd v Prasad [1999] NSW SC 252 (23 March 1999) Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 480 Bax Global (Australia) Pty Ltd v Evans & ors (1999) 47 NSWLR 538 Benecke v National Australia Bank (1993) 35 NSWLR 110 Brebner v Perry [1961] SASR 177 at 180 British Coal Corpopration v Dennis Rye Ltd and anor. (No 2) [1988] 1 W.L.R 1113 BTR Engineering (Australia) Ltd v Patterson (1990) 20 NSWLR 724 at 727) Haynes v C I & D Manufacturing Pty Ltd and anor (1995) 60 IR 149, at 156-9 Coleman v Shell Company of Australia Ltd (1943) 45 SR (NSW) at 34 Goldberg v Ng (1995) 185 CLR 83 Goddard v Nationwide Building Society [1987] QB 670 Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 CASES CITED : Lake Cumberline Pty Ltd and ors v Effem Foods Pty Ltd (1994) 126 ALR 58 at 62). Mann v Carnell (1999) 201 CLR 1 Marriage of Atkinson (1997) 136 FLR 347 at 378 Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation (1997) 42 NSWLR 351 at 392F Quinn v Leathem (1901) AC 495 at 506 Reid v Howard (1995) 184 CLR 1 Smith v The Queen (1991) 25 NSWLR 1 at 9 Sorby v The Commonwealth (1983) 152 CLR 281 Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (unreported, NSW SC, 3 March 1997, Hunter J Telstra Corporation v Australis Media Holdings (No 2) (1997) 49 NSWLR 346 and 349B Triplex Safety Glass Co v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403 Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207 WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch and Haulage Co Pty Ltd (2000) 102 IR 40 at [46]

[15]

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.

[31]

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.

[35]

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.

[37]

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".

[38]

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.

[44]

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.

[47]

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. …

[50]

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.

[53]

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.

[58]

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.

[67]

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.

[68]

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.

[76]

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.

[77]

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.

[78]

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.

[79]

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.

[80]

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.