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NSW Food Authority v Chau-Ngoc (No 2) [2026] NSWSC 349 | Case summary | Zoe

NSWNSWSC

NSW Food Authority v Chau-Ngoc (No 2)

[2026] NSWSC 349

Supreme Court of NSW|2026-04-10|Before: Roberts J

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-04-10

Before

Roberts J

Catchwords

CRIMINAL PROCEDURE — Summary proceedings — Voir dire —
Admissibility of evidence — Record of interview under
the Food Act 2003
(NSW) EVIDENCE — Discretions — Exclusion of evidence

Source

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Catchwords

CRIMINAL PROCEDURE — Summary proceedings — Voir dire —Admissibility of evidence — Record of interview underthe Food Act 2003(NSW) EVIDENCE — Discretions — Exclusion of evidence— Admissions — Application under s 90 of the Evidence Act 1995 (NSW)— Record of interview — Where the stated purpose of the interviewwas for investigations into a company —Where evidence given by a directoron the company’s behalf is used in criminal proceedings against thedirector as an individual

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: NSW Food Authority v Chau-Ngoc (No 2) [2026] NSWSC 349

Hearing dates: 7-8 April 2026

Date of orders: 10 April 2026

Decision date: 10 April 2026

Jurisdiction: Common Law

Before: Roberts J

Decision: The record of interview between Alan Edwards, authorised officer under the Food Act 2003 (NSW), and David Chau-Ngoc on 15 November 2023 is excluded pursuant to s 90 of the Evidence Act 1995 (NSW).

Mr Edwards’ evidence in chief was principally concerned with confirmation and some explanation of the correspondence in Exhibit 1. In cross-examination, Mr Edwards said that there had been “significant interaction” between himself and Inside Out following the initial receipt of the complaint from NSW Health. He advised the company that the product as labelled posed “a serious risk” and “it was necessary to conduct a recall to ensure consumers did not suffer illness as a result”. Whilst the recall was the company’s decision, had they not conducted the recall, there could have been an order issued by the CEO of the Food Authority. The company was “very cooperative” with directions and requests of the Authority. The recall took place in February 2023.
In November 2023, Mr Edwards left a telephone message for the defendant, followed by the email with attached letter of 3 November 2023, arranging the interview with the defendant. Mr Edwards agreed that the letter of 3 November 2023 conveyed a request or intention to interview the recipient on behalf of the company and not as an individual. He accepted that despite the letter stating that findings would be discussed, he had not yet made investigation findings. He accepted that there was no information contained in the email dated 7 November 2023 (see at [12]) to suggest attending the interview was optional.
With respect to the portion of the 7 November email commencing “It is important that”, Mr Edwards said that it was only applicable to the documents he sought, and not to his request for an interview. He believed the warning to be in accordance with s 40 of the Food Act. His intention in including it was to ensure the recipient was aware that “they mustn’t provide false and misleading information”. However, the information or direction contained in those paragraphs was sourced from a pro forma or precedent supplied by the NSW Food Authority and was not written by him (hereafter, the “pro forma warning”).
As set out at [15] above, Mr Edwards spoke with the defendant over telephone on 8 November 2023. Mr Edwards’ contemporaneous notes of the conversation record the defendant asking “about [the] process”. In oral evidence, Mr Edwards confirmed this “process” to be the “interview process”. The following exchange occurred during cross-examination:

The defendant clarified “technical debrief” to mean a “debrief on the administrative or the procedural process that happened as part of the recall”, and “perhaps even providing feedback to the Food Authority about how a recall event was run”.
When he read the letter of 3 November 2023, the defendant believed that it was mandatory for the company to attend the interview. This belief was confirmed when he received the email of 7 November containing the pro forma warning. His “eyes [get] drawn to the dollar signs… my interpretation is that we had to attend. The company had to attend”. He feared that if there was no attendance at the interview, Inside Out could have received a financial penalty, or their license as a food manufacturer could have been revoked. The defendant also believed that he was being invited to the interview to speak on behalf of the company, and not in an individual capacity. The Food Authority requested that the person attending the interview hold “operational knowledge” and as the Chief Operating Officer of the company, he was the most appropriate person to attend. He did not know that he could be criminally prosecuted as a result of the interview.
The defendant gave evidence that, during the phone call he had with Mr Edwards, he was “trying to understand the purpose” of the interview. He “asked if it was a normal process in terms of closing out an incident”. Following the conversation, the defendant continued to understand that the interview was a “debrief” to “close off the recall process” and “to perhaps improve [the Food Authority’s] internal processes”. He acknowledged that neither he nor Mr Edwards used the word “debrief”. He did not understand the purpose of the interview to be for a criminal investigation. He accepted in cross-examination that he was informed in the 3 November 2023 letter that the interview would concern in part the appropriate enforcement action for any non-compliance with the Food Standards Code and the Food Act. After consultation with the CEO of Inside Out, he understood a fine against the company to be a potential enforcement action.
The defendant denied that any concerns arose for him that the interview had changed to something different from a “debrief”. The first time the defendant was told by Mr Edwards in the interview “you don’t have to answer any questions that I raise with you” and “any answers that you do provide can be used in relation to the company, and also a director”, he “wasn’t thinking much” and was focused on giving the Authority “the information that they need to close off the investigation”. He maintained that the cautions did not cause him to think he may be exposed to criminal prosecution, nor did he form the view that legal advice may be necessary. The defendant further explained:

The defendant gave evidence that his desire to comply with the Authority was at least in part due to the recognition that Inside Out may face adverse consequences from the Authority as the grantor of the company’s licence.
The defendant was taken to the portion of the 3 November letter in which Mr Edwards explained that [one] purpose of the interview would be to “provide an opportunity” for Inside Out to put to the Authority considerations relevant to the appropriate enforcement action to be taken. While the defendant accepted that this was not framed in mandatory terms, he understood he was being provided with “an opportunity to articulate something” while being “mandated” to attend the interview.
Further, when pressed on whether being informed by Mr Edward during the interview, that the interview would concern compliance with the Food Standards Code and the Food Act was consistent with the interview being a technical debrief, the defendant said that such language had been used consistently by the Authority throughout their dealings. As such, his view that the interview was a “technical debrief” did not change.
The defendant was taken in cross-examination to the total of six occasions during the record of interview that a form of caution was administered to him. The defendant disagreed that the cautions given throughout the interview must have been a “red flag” to the defendant that the interview was not merely a debrief. The defendant stated that “[his] mind [was] on helping the Food Authority” and that: “My mind is not on these legal nuances. My mind is trying to think about the technical details and how to answer them for this food authority so that they can close off the investigation”.
The prosecutor brought to the defendant’s attention that Mr Edwards had, cautioned the defendant that “you don’t have to answer this question, and any answers that you do give can and will be used in respect of any considered prosecution but enforcement action”. When asked whether he knew the meaning of “prosecution”, the defendant said he “never had an accurate understanding” of its meaning within a legal context.
The defendant accepted the prosecutor’s proposition that he was giving answers during the interview “by way of free choice”. The following exchange occurred in cross-examination:

On behalf of the defendant, Mr Shume submitted that by the time of his attendance at the interview on 15 November 2023, the defendant understood that the interview was compulsory, and that the person attending had to be authorised to speak on behalf of the company. At no time prior to the interview commencing was the defendant told that he could decline to attend the interview or refuse to answer questions. Nor was he told that the answers he gave could be used against him in his individual capacity. Against that background, the defendant submitted that none of the warnings given thereafter in the interview could (or did) adequately correct the misconceptions held by the defendant. Mr Shume submitted that the defendant’s evidence accepting that he chose to continue with the interview, must be viewed in light of the position as he (the defendant) understood it to be. In that context, the admissions made should not be regarded as voluntary.
The defendant submitted that the failure of the Authority to clearly communicate to the defendant that he was being interviewed in an individual capacity with respect to potential criminal charges and that his participation at the interview was not mandatory, was “wholly unacceptable”. Mr Shume on behalf of the defendant made clear that there was no allegation of personal impropriety on the part of Mr Edwards. Rather, his criticisms were directed toward the “gross unfairness” he alleged was involved in the conduct of the Authority viewed objectively. In all of the circumstances, the defendant submitted it would be unfair to admit the evidence.
The prosecutor submitted that the evidence established that Mr Edwards sought to invoke compulsory powers only in respect of the production of documents, and not with respect to participation in an interview. Mr English fairly acknowledged that aspects of the correspondence sent by the Authority to the defendant were ambiguous but observed that the defendant’s assertion that he was compelled to answer questions during the interview was incorrect. Despite this, and whatever the state of understanding held by the defendant prior to the interview, the submission of the prosecutor was that it was corrected by the repeated cautions given during the interview. The prosecutor submitted that the Court would find, contrary to some aspects of the defendant’s oral evidence, that the defendant had the capacity to (and did in fact) understand the cautions issued during the interview, and having done so, he made a voluntary choice to continue answering questions. The prosecutor submitted that there was no positive obligation upon Mr Edwards on behalf of the Authority, to advise the defendant prior to the interview commencing that he was being interviewed in his individual capacity, and that the interview was voluntary. Nor was the caution given required to include express reference to the fact that there was a prospect that answers he gave may be used against him personally in respect of a criminal charge.

The product recall following a consumer health complaint in January and February 2023 was a significant event. A member of the public had suffered a serious illness and it was alleged or suspected that involved products of the defendant [1] which were incorrectly labelled in respect of the storage conditions. In investigating the incident and initiating the recall process, Mr Edwards was exercising powers and responsibilities under the Food Act directed at ensuring public safety. The company was cooperative with the process and complied with what was required of it by the Authority. It was the defendant’s first experience dealing with the Authority and with a product recall. The defendant held a degree in engineering and a certificate in finance, and was the COO and a director of the company, with oversight of a number of areas of its operations. The evidence was to the effect that the company CEO consulted a lawyer during the recall process, but the defendant had not directly sought legal advice. Nevertheless, he had by then some experience in dealing with the Authority and with Mr Edwards on its behalf.
In November 2023, the contact resumed as set out above. Dealing first with the period of time between 3 November 2023 and the interview date, I find that the defendant believed that the interview request related to the company and that he believed his attendance on behalf of the company was compulsory.
There is no dispute about the first point. Mr Edwards accepted that the correspondence advised the recipient that the interview concerned the company. That was his intention, as it was not until after he had reviewed the documents provided, that he decided to interview the defendant in his individual capacity as director as well as interviewing him on behalf of the company. Mr Edwards agreed that he did not provide any information to the defendant prior to the interview which informed him that he would also be interviewed in an individual capacity.
As to the second point, it was Mr Edwards’ evidence that he did not intend to, nor did he in fact, exercise any compulsory powers with respect to the interview. It was his evidence that provision of the documents was compulsory, but attendance at the interview was voluntary. Some slight support for this distinction may be found upon a very close reading of the correspondence, accompanied by an understanding of the applicable legislation. Mr English pointed out that the fact that Mr Edwards did not give a warning about compliance and instead gave a caution in the record of interview is consistent with this position. I accept that Mr Edwards was not invoking a power to compel the defendant to participate in the interview. However, I cannot accept the contention that this distinction was apparent from the correspondence. The tone and content of the correspondence was to the opposite effect. The letter of 3 November 2023 dealt with the documents and the interview as related matters, using similar language with respect to each: Mr Edwards wrote “to arrange” an interview, and “to request” the provision of documents and information prior to that interview. The defendant’s understanding that the interview was not optional was first formed upon receipt of the letter of 3 November 2023. It was confirmed when he read and received the pro forma warning about s 40 compliance in the 7 November email. In addition, and importantly, when the defendant made enquiries of Mr Edwards during a telephone call about whether it was “normal” to conduct such an interview, Mr Edwards did not take the opportunity to inform the defendant that his participation in the interview was voluntary. I accept that the defendant believed that his participation in the interview on behalf of the company was compulsory. I further find that his belief was reasonable.
The inclusion of the pro forma warning in the 7 November email assumed some importance. The relevant portion is extracted again for convenience:

Although Mr Edwards did not write the pro forma, his asserted purpose in including it was to make clear that it would be an offence to supply false or misleading information. It did not have that effect.
It was acknowledged on behalf of the Authority that it could not identify a statutory source for what is contained in the second and third paragraphs of the extract. That is, there was not at the time (nor is there now) any provision in the Food Act which abrogated the privilege against self-incrimination in the way stated in the second paragraph nor set out a procedure for taking an objection in the way described in the third paragraph (cf for example s 68 of the Australian Securities and Investments Commission Act 2001 (Cth)). It was fairly conceded by Mr English on behalf of the Authority that the advice contained in the email was “legally wrong”. [2]
That acceptance was appropriate. It is settled principle that the privilege against self-incrimination is not abrogated except by clear statutory words or necessary implication: X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [24], [86]-[87], [142], [158] (“X7”); Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [32]. In X7, French CJ and Crennan J described the right to silence and the common law privilege against self-incrimination as “closely related but not coextensive” rights (at [40]). It may be that in circumstances in which Mr Edwards was not purporting to exercise any compulsory power with respect to the conduct of the interview, that it is more apt to speak of the defendant’s right to silence, than his privilege against self-incrimination. In either case, it cannot be doubted that the defendant’s right not to incriminate himself is a fundamental right of long standing and one which is a feature of the accusatorial nature of the criminal trial process (X7 at [44]-[47] per French CJ and Crennan J; [97]-[105] per Hayne and Bell JJ).
Mr Edwards could not recall precisely when he made the decision that he would investigate the defendant in his individual capacity, but it was at some time after his review of the documents he had received, and before the interview commenced. He did not tell the defendant that he had made this decision.
On 15 November 2023 when the defendant attended for the interview with Mr Edwards and the second officer of the Authority, the Authority knew that the defendant was being investigated for the commission of a criminal offence in an individual capacity. The defendant did not know this. The Authority knew that it was not exercising compulsory powers to interview the defendant, and that therefore the defendant’s participation in the interview was voluntary, both in his capacity as representative of the company, and in his individual capacity. The defendant did not know this. To the contrary, as I have already found, he reasonably believed that he was compelled “on pain of punishment” [3] to answer questions on behalf of the company.
It was submitted on behalf of the Authority that the caution administered to the defendant was adequate, both in content and timing, to convey to the defendant both of those matters that he did not know when he attended for the interview. By analogy with statutory requirements for a police caution, Mr English submitted that no more was required than what was said to the defendant, namely that he did not have to answer any questions if he did not wish to; and that his answers could be used against him. Mr English submitted on behalf of the Authority that Mr Edwards was under no obligation to “clarify the scope” of the investigation prior to the interview, but that even if he were, the omission was rectified during the interview. [4]
On behalf of the Authority, Mr English submitted that the Court would reject the defendant’s claim that he failed to meaningfully understand what he was being told when he was cautioned. It was submitted that in light of the defendant’s education and professional experience, his prior dealings with the Authority, and the way the cautions were expressed, I would not accept that the defendant did not understand that he did not have to answer questions, and that if he chose to do so, his answers could be used against him personally. The submission was made that the defendant’s insistence that he believed at all times that the interview was merely a “debrief” was a “reconstruction”.
Some aspects of the defendant’s evidence on this topic were a little difficult to reconcile. The defendant’s claim that he considered the interview to be a technical or administrative “debrief” did not sit entirely easily with his evidence that he also anticipated the company may receive a fine by way of enforcement action. Similarly, on the one hand he gave evidence that he understood the initial caution to mean that he did not have to answer questions where he had insufficient technical knowledge, and on the other, found the caution “bizarre” and accepted that he had to some extent disregarded the caution as it was inconsistent with his earlier understanding. He did not seek to clarify the inconsistency during the interview. On his behalf, Mr Shume pointed out that the defendant is not legally qualified, and whilst educated in engineering and finance, he is inexperienced in matters involving legal regulation. The fact that he had not sought legal advice prior to the interview is explained by the fact that he did not know he was in jeopardy. The effect of the defendant’s evidence was to accept that he would likely have complied with the requests of the Authority whether or not the company was legally compelled to do so. It was clear that he not only believed it was mandatory, but also in the best commercial interests of his company to cooperate, as he had done during the recall process. The detail and apparent candour with which the defendant responded to questions during the interview was consistent with this attitude of cooperation. It was also consistent with his evidence that at no time did he appreciate that he personally was exposed to threat of criminal prosecution. Taking all matters into account, I do accept the defendant’s explanation that he was focused upon providing what the Authority required of the company, and it was in that context that he responded (or failed to respond) to the cautions.
The Authority submitted that in all of the circumstances, I should find that the defendant having been clearly told he did not have to answer questions if he did not want to, the defendant’s admissions were voluntary (in the sense that they were made in an exercise of his free choice to speak or to remain silent: The King v Lee (1950) 82 CLR 133; [1950] HCA 25 at 149). Mr English fairly accepted that the question of voluntariness imports the concept of whether the defendant had a true understanding of the choice he was making.
I find that the caution was adequate to convey, in words that the defendant understood, that it was his choice whether to answer the questions put to him. It was not surprising that the defendant found this “bizarre”, given his belief, engendered by the correspondence he had received from the Authority, that his participation was compulsory. The defendant’s decision not to seek clarification may have been imprudent, but his explanation for why he did not do so is capable of acceptance. The defendant considered not only that he was required to cooperate, but that it was in the interests of the company for him to assist the Authority, and that is what he was there to do. His decision to continue answering questions on behalf of the company was therefore voluntary.
The cautions were inadequate in a second important respect. They did not adequately convey to the defendant that they were directed to him in his individual capacity, nor that he was in jeopardy of criminal prosecution. The references to answers being used against “the company or a director” or “the company and yourself” “in a court of law” must be viewed in light of the earlier conduct of the Authority. It may be accepted, as was submitted by Mr English, that the cautions became “clearer” as the interview progressed. [5] However, I do not agree that the indirect references to a “brief of evidence” or to “enforcement” or even “prosecution” that came later in the interview clearly communicated to a person in the defendant’s position that the questioning was in respect of potential criminal charges against the defendant personally. In all of the circumstances, the Authority ought to have informed the defendant, in clear terms, that he was being interviewed in his individual capacity, and that he was not compelled to participate in the interview. I find that the defendant did not understand that his answers to questions in the interview may be used against him in his individual capacity as a defendant to a criminal charge.
The defendant had a privilege against self-incrimination which the company did not enjoy (Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 504; [1993] HCA 74; s 187 Evidence Act.) [6] By its conduct, the Authority elided its exercise of powers with respect to the company with its criminal investigation into the defendant, in a way which obscured the fact that it had done so. The defendant’s freedom to choose to speak to the Authority was thereby impugned (Swaff**ield at [91]). I am satisfied that having regard to the circumstances in which the admissions were made, it would be unfair to the defendant to admit the evidence, and I thereby exercise my discretion to exclude the evidence.