McAndrew (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 590 | Case summary

District Court of NSW|2020-09-07

Introduction

The defendant has pleaded not guilty to two alternative charges brought pursuant to s 32 Work Health and Safety Act 2011 (the Act).
On the first day of trial the defendant has applied for a permanent stay of the proceedings or an order disqualifying the lawyers briefed by the prosecution from continuing to act in the proceedings on the basis of a breach of the companion principle. The defendant contends that by being required to participate in a recorded s 171 interview on 6 November 2016 that he has disclosed information that would have the effect of limiting the defences available to him and that this information has been communicated to other Inspectors who are witnesses in the case and/or who interviewed lay witnesses in the case and to the lawyers representing the prosecution.
The prosecution's response is to point to other sources of information available to it and that the information provided through those sources is similar to the information provided by the defendant in the s 171 interview, such that there is no demonstrable unfairness to the defendant.
There may be another occasion in the course of the trial where I need to further consider or reconsider the extent of a relevant person's power to disclose information provided to them under compulsion pursuant to s 271 of the Act, but the present application relates to what the regulator, exercising its function as a prosecutor, knew and not whether those matters are admissible as evidence in the trial.

Relevant law

The companion rule is not engaged where a witness the subject of a compulsory interview has not, at the time of the interview, been charged with an offence: R v IBAC (2016) 256 CLR 459 at [43]-[46], [68]-[70] and [73]-[75].
With regard to a similar provision (s 37 Independent Commission Against Corruption Act 1988), the CCA held that evidence obtained under compulsion could not be tendered in evidence, but the use of such material by prosecutors was not prohibited: Macdonald v R (2016) 93 NSWLR 736 at [98].
The Court has the power to stay proceedings to prevent an abuse of process and to ensure a fair trial, but the fact of a compulsory examination is not enough and there must be evidence of prejudice in the circumstances of the particular case: X7 v The Queen [2014] NSWCCA 273 [109]-[111].
In order to obtain a permanent stay of criminal proceedings, it is necessary to show that an exercise of power has been attended with a defect in process which is so profound as to offend the integrity and functions of the court: Strickland v CDPP [2018] HCA 53 at [106], [172]-[173] and [292].
The power is discretionary and will only be used to stay criminal proceedings in the most exceptional circumstances: Barton v The Queen (1980) 147 CLR 75 at 116: Jago v District Court (NSW) (1989) 168 CLR 23 at 31 per Mason CJ, at 75 per Gaudron J.
The phrase 'abuse of process' encapsulates all cases in which the processes and procedures of the court may be used as instruments of injustice or unfairness: Walton v Gardiner (1993) 177 CLR 378 at 393. The question the Court must answer is whether, in all the circumstances, the continuation of proceedings would involve unacceptable injustice or unfairness: Walton at 392.
Fairness or unfairness defies analytical judgment and involves a large content of intuitive judgment: Jago at 57. The onus is on the applicant to show that the disadvantage or prejudice that they will suffer is unacceptable to the extent that a trial would be unfair: Barron v Attorney-General (1987) 10 NSWLR 215.
In determining the question of whether to grant a permanent stay the Court must balance the interests of the accused, the public interest of the community that those charged with serious criminal offences are bought to trial and those guilty are convicted, and the need to maintain public confidence in the administration of justice: Walton at 395-6; Jago at 33 per Mason CJ, and at 49-50 per Brennan J.
Other steps, short of a permanent stay may be justified in an appropriate case: Lee v The Queen (2014) 253 CLR 455. This can include a temporary stay and until the prosecution briefs new lawyers, who do not have any knowledge of the compulsorily acquired material: R v Seller (2015) 89 NSWLR 155 at [147]-[149].
It is common ground that the interview conducted with the defendant on 6 November 2016 was conducted pursuant to s 171 of the Act and that the warning provided for by s 173 of the Act was given by Inspector Tull to the defendant in the course of the s 171 interview.
Section 172 of the Act provides (1) A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty. (2) However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.
Section 271 of the Act relevantly provides: (1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7). (2) The person must not do any of the following: (a) disclose to anyone else: (i) the information, or (ii) the contents of or information contained in the document, (b) give access to the document to anyone else, (c) use the information or document for any purpose. Maximum penalty: (a) in the case of an individual - $10,000, or (b) in the case of a body corporate - $50,000. (3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document: (a) about a person, with the person's consent, or (b) that is necessary for the exercise of a power or function under this Act, or (c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use: (i) is necessary for administering, or monitoring or enforcing compliance with, this Act, or (ii) is necessary for the administration or enforcement of another Act prescribed by the regulations, or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or (iv) is necessary for the recognition of authorisations under a corresponding WHS law, or (v) is required for the exercise of a power or function under a corresponding WHS law, or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or (e) that is required or authorised under a law, or (f) to a Minister. …

Consideration

I am of the view that the defendant has not established the kind of prejudice required to be demonstrated to warrant a permanent stay of the proceedings for the reasons that follow.
First, the defendant was not under compulsion when he spoke to Inspector Orr on 6 November 2016. Whilst there may be a question as to the admissibility of the Inspector's evidence on this point that does not detract from the fact that the defendant provided the information to the regulator and that the regulator could use the information to investigate the matter and potentially to pursue charges against the defendant.
Second, the defendant was not under compulsion when he spoke to Senior Constable Hicks. The same comments apply as to the admissibility of the police statement. The regulator obtained the defendant's statement by exercise of the power contained in s 155 of the Act. No complaint by the defendant has been made about that and I do not think that one could be sustained. Accordingly, the information provided by the defendant to the police was available to the regulator to be used in its investigation and to potentially pursue charges against the defendant.
Third, the defendant has made a forensic choice to admit some of the matters that are contained in the s 171 interview, most notably that he was the owner of the hoist and conducting an undertaking at the mineral claim.
Fourth, taken in combination the matters voluntarily disclosed by the defendant to Inspector Orr, Senior Constable Hicks and to the Court establish all of the relevant matters that were traversed by the defendant in the s 171 interview. I am satisfied that the relevant matters came into the knowledge of the regulator independently of the s 171 interview and that the information was provided voluntarily by the defendant to Inspector Orr and Senior Constable Hicks.
Fifth, by the time that the lawyers for the prosecution were briefed to appear, the information that was provided by the defendant in the s 171 interview was available to the regulator as an admission by the defendant from alternate sources. This had the effect of limiting the defences available to the defendant as much as the content of the s 171 interview. The authorities to which I have referred dealt with cases in which information has come into the knowledge of the regulator only as a result of the compulsory interview, and accordingly can be distinguished.

Orders

The defendant's notice of motion is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2020

McAndrew (NSW Department of Planning and Environment) v Cummings

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