I have today, the third day of hearing of these Class 5 proceedings, heard argument regarding a legal issue raised by the defendant this morning pursuant to which the defendant submits that certain evidence proposed to be adduced and certain witnesses to be called (and the evidence of one witness already received) by the prosecutor should be excluded from evidence by operation of s 138 of the Evidence Act 1995 (NSW) ('Evidence Act'). Section 138 operates to allow the exclusion of evidence if it has been obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law.
As I shall briefly explain, senior counsel for the prosecutor and the defendant are both of the opinion that, despite detailed oral submissions having been heard today, the legal issue is such as to warrant their further consideration and preparation of written submissions. For the reasons that follow, I consider it appropriate that the matter be adjourned in order to allow the parties to be heard more fully on this discrete issue.
On 27 February 2015, Mr John David Chia, the defendant in these proceedings, was compulsorily questioned by Ms Wendy Miller and Mr Tony McCormack of Ku-ring-gai Council ('Council') in respect of 74 trees which were felled on and near a property owned by the defendant. The defendant objected to that interview on the grounds that he did not wish to incriminate himself. The felling of the trees in question, and the defendant's alleged criminal liability for it, is the subject of the proceedings.
On 29 July 2016, Mr Phillip Myles, a private investigator retained by Council, interviewed Mr Craig Edgar, a witness who has already given evidence in these proceedings. It is the contention of the defendant that Mr Myles had been given a copy of the transcript of the defendant's interview with Ms Miller and Mr McCormack and impermissibly used that material to forewarn a material witness of the defendant's likely position in the circumstance of proceedings being brought against him. The defendant for the first time today submits that this was contrary to law such that the evidence should be excluded.
Mr Myles subsequently interviewed Mr Jesse Draeger and Mr James McKenzie. The prosecutor intends to call both Mr Draeger and Mr McKenzie, but the defendant contends that, in the course of conducting his interview, Mr Myles improperly used information gained from the interview with Mr Chia and that Mr Draeger and Mr McKenzie should therefore be prevented from giving evidence.
Mr Edgar was questioned pursuant to what was then s 119K of the Environmental Planning and Assessment Act 1979 (NSW) ('EP&A Act'). As at 29 July 2016, s 119K provided:
119K Power of investigation officers to require answers and record evidence
(1) An investigation officer may require a person to answer questions in relation to a matter connected with an investigation purpose if the officer suspects on reasonable grounds:
(a) that it is necessary to require information about the matter for that purpose, and
(b) that the person has knowledge of the matter.
(2) The investigation authority may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.
(3) An investigation officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(4) The place and time at which a person may be required to attend is to be:
(a) a place or time nominated by the person, or
(b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the investigation officer that is reasonable in the circumstances.
(5) An investigation officer may exercise a power under this section whether or not a power of entry is being or has been exercised.
Also of relevance is s 119S of the EP&A Act which provided:
119S Provisions relating to requirements to furnish records or information or answer questions
(1) Warning to be given on each occasion
A person is not guilty of an offence of failing to comply with a requirement under this Division to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse
A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made
However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:
(a) the person objected at the time to doing so on the ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
(4) Records admissible
Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.
(5) Further information
Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground:
(a) that the record or information had to be furnished or the answer had to be given, or
(b) that the record or information furnished or answer given might incriminate the person.
It is established by Lee v The Queen (2014) 253 CLR 455 ('Lee v The Queen') that it is a fundamental principle of a fair criminal trial that the prosecutor not have advance warning of the defendant's case in a criminal proceeding. The defendant's right to silence or right not to self-incriminate is a key element of a fair trial. However, as observed by the High Court in Lee v The Queen, the right is susceptible to being overcome by the clear words of the legislature.
It is a key question in the present application whether s 119S(5) provides sufficiently clear words that the evidence obtained by way of the compulsory interview of Mr Chia is admissible.
The defendant relies on Lee v The Queen and R v Seller; R v McCarthy [2015] NSWCCA 76 to submit that to allow the prosecutor to place reliance on the evidence of Mr Edgar, Mr Draeger, and Mr McKenzie would constitute a miscarriage of justice such that the evidence should be excluded by the operation of s 138 of the Evidence Act.
The prosecutor accepts that the right against self-incrimination is fundamental, but submits by reference to Lee v NSW Crime Commission (2013) 251 CLR 196 that it is susceptible to being overcome by the clear words of the legislature. In the circumstances, it claims that the evidence impugned by the defendant is admissible by the operation of s 119S(5). The prosecutor also submits that if the evidence were to be ruled inadmissible, it anticipates the only possible resolutions of the proceedings would be a permanent stay or a directed acquittal.
This question is significant and, in this Court, somewhat novel. In the circumstances, it has been suggested that the Court would be assisted by written submissions on this separate question. Senior counsel for both parties have indicated that submissions could be received by 12pm on Friday 20 April 2018.
The matter was set down for five days of this week, but it has been obvious for a few days that the matter will not be completed in that time. Whilst I have some reluctance about a direction which would necessitate the Court not sitting on days which would otherwise be available, I consider in the circumstances that it would be inappropriate, and indeed the parties do not ask, for the Court to hear further evidence in the light of the fact that the preliminary question has not been determined.
In the circumstances, and having particular regard to the fact that the question was only raised this morning, I intend to stand the matter over to Monday 23 April at 10am when it will be my intention to hear the further submissions and hopefully to decide the matter relatively quickly. It would appear appropriate that on the next date all that should happen is the handing down of my determination and reasons on the discrete question. Further directions in relation to the ongoing conduct of the matter can then be given. While the delay in the further conduct of these criminal proceedings is unfortunate, it seems in the circumstances to be inevitable.
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Orders
The Court orders that:
1. The parties are to prepare written submissions in respect of the discrete evidentiary question raised today by the defendant and provide them to my associate by 12pm Friday 20 April 2018.
2. The matter is stood over until Monday 23 April 2018.
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Decision last updated: 22 May 2018