Port Macquarie-Hastings Council v Waite

Mr Waite is Investigated by the Council

1. By early September 2017 the Council was investigating Mr Waite in respect of the alleged contraventions of the EPAA described above. Accordingly, on 7 September 2017 the Council issued Mr Waite (and his wife) with a Notice to Provide Information or Records Under Section 119J of the EPAA ("the s 119J Notice"). The s 119J Notice was issued by Mr Craig Henderson, an investigation officer appointed by the Council "for the purposes of the" EPAA. The s119J Notice stated that he was investigating the potentially unlawful "erection of cabins and facilities" on the land. From the terms of the s 119J Notice, the reference to "facilities" included a reference to the toilet block. The s 119J Notice required Mr Waite to produce the records and information specified under that Notice "to enable a council to exercise its functions under the EPA Act" by 5 pm on 22 September 2017.
2. "Note 3" to the s 119J Notice gave the following warning in relation to self‑incrimination: Warning - Self-incrimination and admissibility of records and information The fact that information and/or records required by this Notice might incriminate you or make you liable to a penalty does not excuse you from having to comply with this Notice. The fact that a record provided by you in compliance with this Notice might incriminate you does not make that record inadmissible in evidence against you in criminal proceedings. If you are a natural person (that is, an individual rather than, for example, a company or other incorporated body) you may object to providing information which is required by this Notice, on the ground that the information might incriminate you. You must still provide the information but it will not (except for an offence under s119M) be admissible in evidence against you in criminal proceedings if you make this objection. This warning is given for the purposes of s119S of the EPA Act.
3. The oral evidence of Mr Henderson on the voir dire was that up until 12 December 2017, he had delegated authority to enter the premises under s 118I of the EPAA, issued by Mr Craig Swift-McNair, the General Manager of the Council ("the delegated authority") (T81:3-4). Although undated, the evidence before the Court on the voir dire indicated that the authority was created on 15 October 2014, and was registered on 27 October 2014 (T80:44-81:1).
4. The terms of the delegated authority were as follows: The person whose name appears above is hereby authorised to enter any premises to make an inspection and for the purposes of the inspection open any ground, remove any flooring and take such measures as are necessary to ascertain the character and conditions of the premises, any pipe, sewer, drain, wire or fitting and require the opening, cutting into or pulling down of any work and take measurements, make surveys and take levels and for those purposes dig trenches, break up the soil and set up any posts, stakes or marks, take samples or photographs and require any person to answer questions or otherwise furnish information in connection with any inspection. [s118A and s118B] The power to enter does not extend to part of any premises being used for residential purposes except if entry is necessary for the purpose of inspecting work being carried out under a development consent (including a complying development certificate), or if an application for a building certificate has been made under section 149B in respect of premises used for residential purposes and entry is necessary for the purpose of inspecting the premises in order to issue a building certificate in accordance with sections 149A-149E.
5. The Council conceded that Mr Henderson held no delegated authority under the LGA (T215:19-20).
6. Sections 118A, 118B and 118I of the EPAA relevantly provided as follows: 118A Power of entry (1) For the purpose of enabling a council to exercise the council's functions, the council may authorise a person, in writing, to enter any premises. 118B Inspections and investigations For the purpose of enabling a council to exercise the council's functions, a person authorised to enter premises under this Division may: (a) inspect the premises and any article, matter or thing on the premises, and … (d) require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and (e) take samples or photographs in connection with any inspection. 118I Authority to enter premises (1) A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises. (2) The authority must be a written authority which is issued by the council and which: (a) states that it is issued under this Act, and (b) gives the name of the person to whom it is issued, and (c) describes the nature of the powers conferred and the source of the powers, and (d) states the date (if any) on which it expires, and (e) describes the kind of premises to which the power extends, and (f) in the case of a council, bears the signature of the general manager. (3) This section does not apply to a power conferred by a search warrant.
7. These provisions were repealed on 31 July 2015. However, it was not in dispute (at least for the purposes of the voir dire) that various savings and transitional arrangements (not provided to the Court) operated to preserve the delegation granted to Mr Henderson under s 118I of the EPAA.
8. An email exchange tendered on the voir dire revealed the following relevant chronology of events: 1. on 11 September 2017 at 11.46 am Mr Waite emailed Mr Henderson requesting more time to comply with the s 119J Notice, namely, until 20 October 2017; 2. no response had been provided by Mr Henderson as at 2.36 pm on 14 September 2017, despite Mr Waite making multiple attempts to contact Mr Henderson; 3. later that day (at 3.08 pm) Mr Henderson responded stating that 20 October 2017 was too long in light of the fact that "it appears that the Caravan Park continues to operate, potentially in contravention of the existing consent". An extension until 28 September 2017 was granted instead; 4. in response, that same day, Mr Waite asked for an extension until 10 October 2017 because his office clerk was away and would not be returning until 5 October 2017; 5. at 3.34 pm on 14 September 2017, Mr Henderson replied in the following terms (emphasis added): My main concerns are these; 1. The toilet block and cabins have been erected/installed without consent and appear to be connected to Council infrastructure without approval 2. There doesn't appear to be an approval to operate under the Local Government Act 1993 in place for the caravan park. 3. The caravan park appears to be operating every day, in breach of the conditions set out in the Development Consent Apart from the approval/planning matters that arise from the above concerns, there may be safety concerns with the operation of the caravan park given the unauthorised works, and no checks/assessment to ensure fire safety measures, amenities etc are in place for visitors. For these reasons I am trying to expedite my investigation. Accordingly, I require you to cease operation of the caravan park immediately so that we can address these issues. This way, you can have more time to provide the information in the notice without potentially continuing to operate a caravan park in breach of the law, or potentially place at risk visitors to the caravan park. Upon being pressed by the Court, counsel for the Council conceded that Mr Henderson had no lawful authority to issue the demand in the last paragraph of this email (T162:44-45); 1. the email from Mr Henderson understandably prompted a swift reply from Mr Waite the following morning, who responded to "suggest we have a meeting next week to discuss. Tuesday or Wednesday?. [sic] A planner should be present as well. Can that be organised"; 2. later on 15 September 2017 Mr Henderson agreed to a meeting but wanted it to take the form of a recorded interview. He proposed the following: We can meet at 2pm on Tuesday. We can either meet here, as I have booked a meeting room, or we can meet on site. If we meet on site I will want to look through the toilet block and the cabins, and take photos. In addition, as we are currently still investigating the matter detailed in the Notice, I would like the meeting to take the form of a record of interview. As such I would like to record the interview, and I will ask you some questions regarding the site. 1. Mr Waite responded on the same day, saying: That is fine. I would like a copy of the recording and I to have a list of questions. see you on Tuesday. 1. on 18 September 2017 Mr Henderson emailed Mr Waite to provide him with further details regarding the interview: Confirming Tuesday for our record of interview. As mentioned it will be a taped record of interview, where I will ask you some questions about the caravan park operating at Timbertown. The questions, and any answers you give will be recorded, and a written transcript of the interview will be made. You will be provided a copy of the recording and of the transcript as soon as practicable after they are made. You are welcome to bring a representative with you to observe the interview. Apart from myself, Development Assessment Planner Fiona Tierney will be present during the interview. I understand you have some specific planning questions relating to your Development Application lodged and your proposed new DA. Clint Tink will be available to talk to you at around 3pm. 1. the recorded interview took place on 19 September 2017 at 2.10 pm at the Council's chambers. Present were Mr Waite, Ms Waite, Mr Henderson, and another Council officer, Ms Fiona Tierney (misspelt in the ROI as "Tini"). The interview was approximately 1.15 hrs in duration, during which time 327 questions were asked. At the commencement and conclusion of the interview, the following formalities were observed and a caution given (Q/A 3-6 and 323-327, emphasis added): Q 3. Okay. Thanks for that. Do you agree prior to commencing this tape recorded interview I told you that we would record the interview today on the devices in front of us and that I'd give you an electronic copy of the recording as soon as possible afterwards? A I have agreed to that. Q 4. Yeah. And you also agree that I told you that a transcript or a typed out version of the conversation will be also - if its created - we'll also be providing a copy of that as soon as possible. A You did say that. Q 5. Yeah. Cool. Do you also agree that what I said to you we're going to talk about today was the caravan park or the operation of the caravan park at the land owned by you next to Timbertown? A Yes you did - you did say that. Q 6. Yeah. Okay. And also as I said before I'll caution you that you don't have to say or do anything here today but anything you do say or do can be recorded and may be used in evidence against you. Do you understand that? A Yes. Rightio. … Q 323. All right. Just to cover things quickly to finish off. Have the answers you have given been of your own free will? A Yeah. Q 324. Yeah. Has any threat or inducement been offered or made to you in order for you to give those answers? A What's that brown paper bag there? Q 325. No, no, no, no, no, nothing. A Right. Q 326. Rightio. So you'd agree that the time is now - according to my watch - anyway 18 minutes past 3.00. A Yeah. Q 327. All right. And we'll conclude the interview here. A Okay. Cool. Thank you. 1. on 29 September 2017 Mr Henderson emailed Mr Waite in the following terms: Further to our interview held on 19 September 2017, I am letting you know that we have engaged a transcription service to transcribe the interview. As soon as that is done I will get you a copy of the recording and the transcript. During the interview we discussed the information required to be provided under S119J Notice I had already issued you. In the interview you agreed to provide a list of events that have taken place at Timbertown that relate to the use of the camping ground. Please provide that information in your response. I have a message from Michelle Chapman to call her regarding your intention to lodge a new DA. I will give her a call today. 1. on 10 October 2017 Mr Henderson emailed Mr Waite and told him that the Council was still waiting on the transcript. He also warned Mr Waite that it was "an offence to fail to comply with the notice so I recommend you seek advice and consider carefully before declaring you have no more information to provide"; and 2. two days later, on 12 October 2017, Mr Waite emailed Mr Henderson and stated that, "Have out [sic] team together tomorrow to discuss current and future events, so will give thought to any additional info not In [sic] in the interview and send a response tomorrow afternoon."
9. In oral evidence on the voir dire Mr Waite repeatedly stated that he felt compelled to attend the interview on 19 September 2017, and that he felt obliged to answer the questions put to him (for example, T31:41-43, 34:30-34 and 55:34).
10. According to Mr Waite, he understood that the meeting that was to take place on 19 September 2017 was to discuss specific issues concerning water and sewerage (T43:34-37, 44:30 and 44:49). Mr Waite stated that he was not aware that the Council would seek to ask him questions more generally about any alleged breach of the consent with respect to the operation of the caravan park (T45:9, 58:38 and 60:3).
11. The Court was provided with a copy of the impugned audio recording of the ROI (together with the transcribed version of the ROI). Although it did not have the benefit of observing Mr Waite's demeanour, having listened to the audio recording it became apparent to the Court that: 1. Mr Waite was not, contrary to his oral evidence, overwhelmed or confused by the interview process. Where necessary, Mr Waite readily sought clarification of questions that he did not understand; 2. Mr Waite was not totally unfamiliar with the planning system in New South Wales. He had previously been involved in proceedings in this Court. He understood the concept of existing use rights and claimed to benefit from them; 3. Mr Waite was not merely a passive participant only answering questions put to him. In fact, Mr Waite did most of the talking during the interview. On several occasions it was Mr Waite who asked questions of the Council officers present; 4. Mr Waite was willing and enthusiastic in his responses during the interview. Several times he actively and forcefully sought to disclose information not requested by the Council. He was, at times, argumentative, if not threatening (for example, Q/A 316 "If I get some sort of infringement or fine because I've apparently done something wrong. I tell you that's going to open up a can of worms like you've never seen"); 5. Mr Waite understood the warning that he was not obliged to answer the questions put to him. For example, he refused to disclose to the Council who had constructed the cabins (Q/A 231-232 and 218); 6. Mr Waite was not tired by the end of the interview (he could "go on to 8 o'clock at night if you want me to": Q/A 316) and that upon its conclusion he was sufficiently satisfied by its outcome that he no longer wanted to speak to the Council's planner; and 7. to the extent that Mr Waite expressed frustration during the interview, this was because the Council did not appear willing to accept his version of events.
12. The audio version of the ROI partially undermined Mr Waite's claim that, at least once the interview commenced, he felt pressured or in some way compelled to answer the questions put to him. Whether he was obliged to agree to a formal recorded interview is, however, another matter, the significance of which is discussed further below.

Was a Warning in Respect of the Privilege Against Self-Incrimination Required to be Given by the Council Prior to the Commencement of the Interview?

1. The central question raised on the voir dire may be simply put, namely, was the Council required to warn Mr Waite that he could object to answering a question during the interview on the ground that it might incriminate him in order for the ROI to be admissible in evidence by operation of s 119S(3) of the EPAA?
2. Section s 119S of the EPAA relevantly mandates as follows: 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.
3. The provision is contained in Div 1C of the EPAA, which is concerned with "Investigative powers". It was not in contention that the Council was an "investigation authority" for the purpose of the s 119S and that Mr Henderson or Ms Tierney were "investigation officers" as those terms are defined in s 119A of the EPAA.
4. To the extent that there was some suggestion that Mr Henderson and Ms Tierney were not properly authorised to carry out the investigation by reason of an ambiguity in the date of the instrument delegating authority to them, this was either clarified by Mr Henderson's oral evidence or, in the case of Ms Tierney, not pursued. I therefore find to the requisite standard that at the relevant times, Mr Henderson and Ms Tierney were "investigation officers" for the purpose of Div 1C of the EPAA.
5. Section 119C sets out the purposes for which powers under Div 1C may be exercised: 119C Purposes for which powers under Division may be exercised (1) A departmental investigation officer may exercise powers under this Division for any of the following purposes: (a) enabling the Minister or the Secretary to exercise their functions under this Act, (b) determining whether there has been compliance with or a contravention of this Act, including any instrument, consent, approval or any other document or requirement issued or made under this Act, (c) obtaining information or records for purposes connected with the administration of this Act, (d) generally for administering this Act. (2) A council investigation officer may exercise powers under this Division for any of the following purposes: (a) enabling a council to exercise its functions under this Act, (b) at the request of the Commissioner of Fire and Rescue NSW, determining whether or not adequate provision for fire safety has been made in or in connection with a building. (3) Nothing in this Division affects any function under any other provision of this Act or under any other Act.
6. Subdivision 3 of Div 1C deals with the powers that investigation officers have to obtain information.
7. As referred to above, s 119J permits an investigation officer to require a person to furnish records and information. Section 119J(1) states that: 119J Requirement to provide information and records (1) An investigation officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the notice requires in connection with an investigation purpose.
8. Where a notice in writing has been given to a person, the warnings prescribed in s 119S must be given or the information or records cannot be used in evidence against that person in criminal proceedings.
9. The power of investigating officers to require answers to questions in relation to a matter that is being investigated is contained in s 119K of Div 1C: 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.
10. The recording of questions and answers is governed by s 119L: 119L Recording of evidence (1) An investigation officer may cause any questions and answers to questions given under this Division to be recorded if the officer has informed the person who is to be questioned that the record is to be made. (2) A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the investigation officer. (3) A copy of any such record must be provided by the investigation officer to the person who is questioned as soon as practicable after it is made. (4) A record may be made under this section despite the provisions of any other law.
11. Finally, a person who fails, absent reasonable cause, to comply with a requirement made of them by an investigating officer in accordance with Div 1C will be guilty of an offence pursuant to s 119M.

Issues for Determination on the Voir Dire

1. Having regard to this statutory framework, during the course of argument the following issues emerged for determination by the Court in respect of the central question identified above: 1. was Mr Waite "required" by s 119K(1) to attend and answer the Council's questions? If the answer was "yes", then the parties eventually agreed that, by reason of the failure of the Council to give the warning contained in s 119S(3)(b) of the EPAA (that no such warning was given was not in dispute), the ROI was inadmissible by reason of the operation of the chapeau to s 119S(3) of that Act and it was not necessary to determine whether the ROI ought to be excluded on some other discretionary basis, for example, pursuant to s 138 of the Evidence Act 1995, or the exclusions contained in ss 85 and 90 of that Act; and 2. if the answer to (a) was "no", then did: 1. Mr Henderson require statutory authorisation to conduct a recorded voluntary interview, and if so, did any such authorisation exist; and 2. ss 138, 90 or 85 of the Evidence Act operate to render the ROI inadmissible?

Use of the Preliminary Hearing Process Under s 247G of the Criminal Procedure Act

1. Argument of this preliminary evidentiary matter occured over three days. Given that the charges were set down to be heard for a total of four days, the failure of the parties to have the issue of the admissibility of the ROI heard as a preliminary matter under s 247G of the Criminal Procedure Act 1986 resulted in almost the entirety of the time allocated to hear the substantive proceedings being occupied by the voir dire, thereby necessitating the proceedings to be adjourned part-heard.
2. Such an approach is unsatisfactory and, in my view, contrary to the efficient administration of justice having regard to the desire to have criminal proceedings determined expeditiously and the proper utilisation of scarce Court resources.
3. Section 247G of the Criminal Procedure Act was enacted for precisely these types of applications (see especially, s 247G(2), 3(e) and (7)). Given the length and complexity of the argument on the voir dire, as soon as the issue had crystalised by the serving of the s 247K notice, it was incumbent upon the parties to apply to have the question of the admissibility of the ROI determined in advance of the commencement of the hearing. While there may be situations where it is forensically disadvantageous to make such an application, this was not one of them.

Was the Interview "Required" Pursuant to s 119K?

1. The principal factual inquiry during the voir dire was whether, especially given that it was Mr Waite who initially suggested the meeting on 19 September 2017, the answering of the questions put to him by Mr Henderson on that day was "required" for the purpose of s 119K(1) of the EPAA.
2. The Council submitted that properly construed, "required" denotes an element of compulsion and that as a matter of objective fact, and not, as agreed, Mr Waite's subjective belief as to the issue expressed post facto during oral evidence given on the voir dire, none was present.
3. The Council relied upon the following objective indicia to demonstrate that Mr Waite attended and participated in the interview voluntarily: 1. it was his suggestion that a "meeting" take place, and that he agreed to attend, a matter that he reiterated during the interview (Q/A 134); 2. the absence of any notice in writing given to Mr Waite under s 119K(3) of the EPAA to attend an interview at the Council's chambers (compared with the s 119J Notice that was served on him); 3. the absence of a warning given to Mr Waite under s 119S(1) of the EPAA; 4. the fact that a warning was given under s 139(1) of the Evidence Act, and not s 119S(3)(b) of the EPAA; and 5. the fulsome and willing manner in which Mr Waite answered the questions put to him during the interview, which was evident from audio recording.
4. By contrast, Mr Waite relied upon a Macquarie Dictionary (on-line ed) definition of the word "require" ("to call on authoritatively, order, or enjoin (a person, etc.) to do something") to submit that in all the circumstances there was the necessary element of compulsion sufficient for the interview to fall within the ambit of s 119K(1) of the EPAA. In particular, emphasis was placed on that fact that: 1. although the "meeting" was initially Mr Waite's idea, it was motivated by the unlawful demand made by the Council that he immediately cease the operation of the caravan park; 2. what followed on 19 September 2017 was not an informal "meeting" or discussion as proposed by Mr Waite, but a formal interview where he would be asked questions and his answers would be recorded and a written transcript would be produced. A "representative" could be brought to "observe the interview"; 3. at the interview, various formalities were observed including the giving of a warning pursuant to s 139 of the Evidence Act; 4. the requirements of ss 119L(1) and (2) of the EPAA regarding recording of evidence were complied with, suggesting the exercise of a Div 1C power; 5. the planner requested by Mr Waite to be present was not there and would not be available until after his questioning had concluded; 6. it was clear that during the interview the Council did not wish to engage in a discussion with Mr Waite as he had proposed, but sought instead to ask him specific questions on specific topics (see, for example, Q/A 28, 34 and 314). Documents shown to Mr Waite were marked for identification purposes: Q/A 14. When Mr Waite attempted to raise issues that he wanted to agitate (for example, whether or not he could claim the benefit of existing use rights: Q/A 25-28), he was told "that's not what we are here to talk about"; and 7. the above objective factors were consistent with Mr Waite's subjective belief, expressed repeatedly in cross-examination during the voir dire, that he felt that he had no option but to attend the interview and answer the questions put to him.
5. Mindful of the caution against statutory construction by recourse to dictionary definitions (Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 78 NSWLR 43 at [88]), the Macquarie Dictionary definition of the verb "require" was not dissimilar to that contained in the Oxford English Dictionary (on-line ed) of the verb, namely, "to demand (a thing) authoritatively or as a right; to demand, claim, or insist on having (something) from or of someone."
6. As identified by Mr Waite, what is common to both definitions is the notion of "authority", that is, a request or demand that is made with, or by someone in a position of, authority. When the word "require" is construed in the context of s 119K(1), and when s 119K is read as a whole, provided that the request for an interview came from someone acting in their capacity as an "investigating officer" (which Mr Henderson was) - that is, authoritatively - s 119K(1) encompasses a requirement for an interview where questions must be answered that falls short of the compulsory process envisaged by s 119K(3) (where a formal notice in writing is issued). In other words, it was not necessary for the Council to have given Mr Waite a notice in writing, similar to the s 119J Notice that he received to provide information or records, for his attendance at the interview to be "required" for the purpose of s 119K, and this therefore compelled the warning in s 119S(3)(b) to be given (see, by analogy, the reasoning in Southon v Beaumont [2008] NSWLEC; (2008) 69 NSWLR 716 at [40]-[41] and [61]).
7. I agree with the submissions of Mr Waite that s 119K gives rise to two types of interviews: an interview pursuant to s 119K(1) where no written notice is issued (all that is needed is the formation by the investigating officer of the mental state referred to in s 119K(1)); and an interview pursuant to s 119K(3) where written notice is given. The latter interview is expressly directed to specifying the location of the interview, whereas the former can occur at any time, in any location. Both, however, require the warning to be given in s 119S(3)(b).
8. Even if a written notice was required to enliven the exercise of the power in s 119K(1), and thereby engage the protections contained in s 119S, it is more than arguable that the emails from Mr Henderson of 15 and 18 September 2017 constituted such notice for the purpose of s 119K(3) of the EPAA. Neither the EPAA, nor any regulations made under it, specify the form of the written notice for the purpose of s 119K(3) (see by analogy Southon at [52] and [60]-[61]). The notice was permitted to be emailed to Mr Waite (see s 153(1)(c) of the EPAA). The emails of 15 and 18 September 2017 indicated, in the absence of Mr Waite agreeing to hold the meeting on site that: the meeting was to take place at the Council's chambers at 2 pm on 19 September 2017; Mr Henderson would ask Mr Waite questions about the site; the meeting would be in the form of the record of interview; the meeting would be recorded and transcribed; and that Mr Waite could have a representative present who could "observe" (only, it may be inferred) the interview. In my view, were it necessary for the Court to find, the emails constituted written notice for the purpose of s 119K(3) of the EPAA.
9. However, as explained above, it was not necessary for the Council to issue a written notice for power to be exercised under s 119K. All that was necessary was for the reasonable suspicion described in s 119K(1) to be formed. Were it necessary for a notice in writing to be issued in order for the power in s 119K(1) to be exercised, it may be presumed that the legislature would have expressly said so, as it did in s 119J(1) of the EPAA. If it were otherwise, the Council could seek to evade the protections afforded by s 119S of the EPAA by not issuing a written notice.
10. There being no suggestion by the Council that this state of mind was not attained - and plainly it was given the content of the emails on 15 and 18 September 2017 and the questions asked by Mr Henderson - the only issue to be determined was whether Mr Henderson "required" Mr Waite to answer questions.
11. In my view, he did. Notwithstanding that the initial idea to meet emanated from Mr Waite, the suggestion arose as a consequence of the unlawful demand by Mr Henderson to immediately cease operating the caravan park. In these circumstances, the voluntary nature of Mr Waite's offer and his attendance at the interview is highly questionable.
12. Irrespective of the fact that Mr Waite initially proposed the meeting, there is no doubt that between his suggestion on 15 September 2017 that such a meeting be held "to discuss" planning matters, and the recorded interview on 19 September 2017, the informal discussion transmogrified into a recorded interview where Mr Waite was "required" to answer questions for the purpose of s 119K(1) of the EPAA.
13. In addition to the matters relied upon by Mr Waite referred to earlier, the following facts are also persuasive in reaching the conclusion above as to the proper characterisation of the meeting on 19 September 2017: 1. first, the instruction that Mr Waite could bring a representative to "observe" the interview. This is consistent with the interview being conducted under Div 1C of the EPAA because, pursuant to s 119M(1), a person must not, without reasonable excuse, fail to comply with a requirement made of the person by an investigation officer. The implicit direction that the representative could not take part in the interview was consistent with this requirement being imposed on Mr Waite. If the interview was not being conducted under Div 1C, then Mr Waite could have brought anyone to the meeting who could have spoken on his behalf; and 2. second, the temporal proximity of the interview to the s 119J Notice, the latter of which was issued on 7 September 2019 pursuant to an exercise of power under Div 1C of the EPAA. Paragraph 2 of that Notice indicates that the Council was investigating Mr Waite in respect of a contravention of the EPAA (the erection of cabins and facilities on the land without consent). The provision of information and records pursuant to the s 119J Notice was discussed during the interview. On any objective view, it is highly unlikely, therefore, that when Mr Henderson stated that he wanted to ask Mr Waite questions in the form of a record of interview that he was not exercising power under s 119K to require answers, just as he exercised his power under s119J to require information or records. This is consistent with the content of the email correspondence between Mr Henderson and Mr Waite on 29 September 2017 and 10 and 12 October 2017, where reference is made to the s 119J Notice and the matters discussed during the interview.
14. The fact that during the interview Mr Waite enthusiastically, and at times robustly, answered the questions put to him does not, in my opinion, alter the character of the interview and remove it from the purview of s 119K. Nor did, in my opinion, the statement made by him at the end of the interview that the answers he had given were of his "own free will" (Q/A 323). Merely because during the course of the interview Mr Waite answered the questions asked of him or sought to raise matters not put to him, did not alter the fact that Mr Henderson was exercising his power to require him to answer the questions pursuant to Div 1C of the EPAA.

Was Mr Henderson Otherwise Permitted to Conduct a Voluntary Interview?

1. Another factor telling against the characterisation of the interview as an informal voluntary discussion falling outside the scope of s 119K was that Mr Henderson only held delegated authority under Div 1C of the EPAA, and not, as the Council conceded, the LGA. There is no evidence that he held any other delegated authority under the EPAA. The power he was exercising was conferred by Div 1C and that Division alone. As was identified in Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7 (at [47]-[48]) the source of the Council's power to investigate breaches of the EPAA is that Act and not the LGA. Reliance on s 23 of the LGA, or any other provision of that Act, does not assist the Council absent evidence of an instrument of delegation under the LGA (see ss 192, 355 and 377 of the LGA in this regard). Section 23 of the LGA provides that: 23 Supplementary, incidental and consequential functions A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.
2. Although there is no equivalent provision to s 23 of the LGA in the EPAA, the Council nonetheless submitted that no authority was needed for Mr Henderson to question Mr Waite "non-coercively" (relying on R v Naa [2009] NSWSC 851; (2009) 76 NSWLR 271 at [98] and [101], where it was accepted that there was a difference between the police engaging in a conversation during which questions were asked and the more formal interrogation or questioning of a suspect by a police officer. Only the latter required a caution under s 139 of the Evidence Act. See also R v Aspinall [2006] NZCA 459 at [14]-[17]).
3. This leaves open the question of whether Mr Henderson had the power to ask Mr Waite questions in a manner that fell outside Div 1C, that is, to conduct a wholly voluntary interview. The Council contended that such questioning was permissible as an ancillary function properly incidental to its statutorily conferred regulatory powers under either the EPAA or Ch 7 of the LGA. Alternatively it argued that "the power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them?" (Clough v Leahy [1904] HCA 38; (1905) 2 CLR 139 at 156-157 per Griffiths CJ). If not, according to the Council, absurdity would result. For example, council officers would not be permitted to stand outside a property and take photos of it because they would need to first enter those premises under s 119D, and second, they would be restricted to undertaking only the things prescribed by s 119F of the EPAA. In addition, the Council would never be able to rely upon representations made to it by persons making voluntary disclosures about regulatory matters and compliance during the course of a conversation.
4. Several immediate observations may be made about the Council's submission. First, a council is not the Crown and does not have the rights and status of the Crown (s 220(3) of the LGA). The Council's reliance on Clough v Leahy therefore does not assist it (see Williams v The Commonwealth [2012] HCA 23; (2012) 248 CLR 156 at [213]-[214] and see the remarks casting doubt of the correctness of Clough at [60]-[61] and [83] per French CJ, [150]-[153] per Gummow and Bell JJ, [197]-[223] per Hayne J, [511]-[516] per Crennan J, and [578]-[581] per Kiefel J).
5. Second, as Mr Waite noted, what is at issue in the present case is a formal recorded interview accompanied by a s 139 warning under the Evidence Act during the course of a criminal investigation, not a casual conversation or uninvited representation volunteered by him during the course of the exercise of a council officer's civil functions (for example, to assess a development application) under the EPAA.
6. Third, it has been opined by Bell J in Director of Public Prosecutions (on behalf of Watson) v Kaba [2014] VSC 52; (2014) 44 VR 526 that a government can only act when authorised to do so by the law, which includes engaging in making enquiries of persons or non-coercive questioning (at [55]‑[57] and [74]).
7. The issue is not, therefore, without some complexity, turning on the proper construction of the statutory powers and functions conferred upon a council officer under the EPAA. Given my conclusion above that the questioning of Mr Waite by Mr Henderson fell within the ambit of s 119K, and in the absence of comprehensive submissions from the parties on this issue (the matter was raised late on day three by the Court), I decline to resolve the controversy. It would, however, seem anathema that council officers could not, in the course of the exercise of their functions and powers, enter into voluntary dialogue with persons falling outside s 119K of Div 1C which resulted in evidence that was admissible in criminal proceedings.

Consequences of the Council's Failure to Give the Warning Against Self-Incrimination to Mr Waite

1. Because the ROI was a form of "required" questioning that fell within s 119K of the EPAA, the Council was required to give the warning in s 119S(3)(b). Its failure to do so, by dint of the operation of sub-section (3), renders it inadmissible. Section 119S(3)(b) mandates that any answer given by a natural person in compliance with a requirement under Div 1C is "not admissible in evidence against the person in criminal proceedings if…the person was not warned on that occasion that the person may object to…giving the answer on the ground that it might incriminate the person".
2. It is therefore strictly not necessary to determine whether the ROI ought to be excluded as improperly or illegally obtained evidence under s 138 of the Evidence Act, or some other exclusionary provision such as ss 85 or 90 of that Act.
3. The Council conceded that this result followed notwithstanding that Mr Waite was given a warning for the purposes of s 139(2) of the Evidence Act (the caution that a person does not have to say or do anything but anything the person does say or do may be used in evidence against them) (T155:3-5). This concession was correct. As Mr Waite submitted, the failure to give the warning in respect of his privilege against self-incrimination meant that he was not informed of his fundamental right to answer but maintain an objection based on self-incrimination. Rather the choice presented to him was to either say nothing and forgo the opportunity to potentially exculpate himself, or provide an answer and potentially incriminate himself. This was contrary to s 119S of the EPAA.

Exclusion of the ROI Pursuant to the Evidence Act

1. If, however, I am wrong about the characterisation of the interview, and assuming for present purposes that Mr Henderson was permitted to ask Mr Waite questions pursuant to some other statutory power, or did not require a power, should the ROI be excluded on some other discretionary basis?
2. Mr Waite put forward three additional bases for exclusion of the ROI under the Evidence Act: 1. first, pursuant to s 138(1) (the discretion to exclude illegally or improperly obtained evidence); 2. second, pursuant to s 90 (the discretion to exclude unfairly made admissions in criminal proceedings); and 3. third, pursuant to s 85 (the discretion to exclude unreliable admissions made by the accused in criminal proceedings).

Section 138 of the Evidence Act

1. Turning to the first basis, s 138 of the Evidence Act relevantly provides that: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
2. As discussed above, Mr Waite was given the warning referred to in s 139(2) of the Evidence Act. The question, therefore, is whether the evidence contained in the ROI was obtained improperly (that is, in addition to it being obtained illegally in contravention of s 119S(4) of the EPAA. As to the meaning of "contravention" in s 138 of the Evidence Act see Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 at [29]‑[30] per French CJ), first, as a consequence of the Council's failure to warn Mr Waite of his privilege against self-incrimination, and second, because of the circumstances leading up to the ROI, namely, the unlawful demand made by the Council that he cease operating the caravan park immediately so that the Council's concerns could be addressed.
3. The privilege of a person to refuse to answer any question at any time on the ground of self-incrimination, a common law right comprising what is referred to as "the right to silence", is a fundamental right (Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 527; Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [24], [266] and [318]; and X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at [24], [42]-[47] and [158]-[160]). It is not, however, immutable. Nevertheless, applying the principle of legality, the privilege can only be abrogated by clear and unambiguous legislative intent (Lee at [307]‑[318]; X7 at [24]; and R v Independent Broad-Based Anti-Corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459 at [40]). This is because, as was observed by Nettle J in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 (at [61], footnotes omitted): The fundamental principle of the criminal justice system that the onus of proof beyond reasonable doubt rests on the Crown, and its companion rule that the accused cannot be required to assist in proof of the offence charged, are now conceived of as expressions of the basic accusatorial nature of the criminal justice system.
4. The terms "improperly" and "impropriety" in s 138 of the Evidence Act are not defined. In Parker French CJ, after noting this definitional lacuna, described the "relevant ordinary meanings of "improper" to include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong"". But "mere failure to satisfy a condition necessary for the exercise of a statutory power" cannot "readily be characterised as "impropriety" although that word does cover a wider range of conduct than the word "contravention"" (at [29] and [30]).
5. In Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, Mason CJ, Deane and Dawson JJ stated that "circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement" (at 36).
6. The decision in Ridgeway was applied in Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612, where Basten JA opined that (at [22]‑[23]): 22 It is clear that s 138 varies the common law in a number of respects: see J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002) Australia, LexisNexis Butterworths, at 510. Nevertheless, s 9 of the Act states: "9 Application of common law and equity (1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment." Thus, in relation to s 138, there is no doubt that the statutory rule involves exclusion of evidence, where its terms are engaged, subject to a discretion to admit. The general law rule was framed in terms of a discretion to exclude. Secondly, s 138 is not in terms limited to unlawful or improper conduct on the part of law enforcement authorities. Each of these considerations may be relevant in determining what constitutes "impropriety" for the purposes of s 138 and invite caution in considering whether to apply general law principles without qualification. On the other hand, because the Act does not define the concept of impropriety, it is difficult to perceive any necessary intention on the part of the legislature to vary the principles collected in Ridgeway, derived from earlier Australian authority. Accordingly, those principles should be applied. 23 It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway (at 39) referred to offences being procured or induced.
7. The exercise of the discretion to exclude evidence under s 138 does not depend solely on the question of fairness to the accused, or even whether the accused was induced to commit the offence in question. Rather, it depends on considerations of ""high public policy" relating to the question of whether the effect of the illegality or impropriety on the administration of justice outweighs the legitimate public interest in the conviction of the guilty" (Gedeon v The Queen [2013] NSWCCA 257; (2013) 280 FLR 275 at [177]).
8. The accused must satisfy the Court that there is a casual connection (direct or indirect) between the impropriety and the obtaining of the impugned evidence (R v Dalley [2002] NSWCCA 284).
9. Notwithstanding the indeterminacy of the test for "impropriety", the fact that Mr Waite's attendance at the recorded interview was occasioned as a result of the unlawful demand that he immediately cease operating the caravan park was insufficient to render the ROI to have been "obtained improperly" for the purpose of s 138(1)(a) of the Evidence Act, as described in Robinson and Boral Resources. Although it can be readily inferred that Mr Waite understood that if he did not cooperate with the Council and participate in the formal interview the caravan park could cease operating forthwith, this did not render the answers given by him during the interview to have been improperly or illegally obtained, irrespective of the "impropriety" of the purported threat with respect to the continued operation of the caravan park.
10. Assuming, for the purpose of this argument (contrary to the conclusion arrived at above) that there was no statutory obligation to expressly remind Mr Waite of his privilege against self-incrimination, in circumstances where Mr Waite was cautioned as to his right to silence prior to the interview commencing, exercised that right on at least one occasion, was a willing participant in the interview (as described earlier in the judgment and as agreed to by him), and agreed that no inducement or threat was made to cause him to give the answers he gave during the interview, it is difficult to understand why the ROI should be rejected pursuant to s 138 of the Evidence Act (Cvetjovski v R [2019] NSWCCA 100 at [60]).
11. Even assuming that the unlawful demand to cease operating the caravan park immediately was operative in causing Mr Waite to attend the interview, it is clear from all the circumstances that once present Mr Waite freely and willingly participated in the interview and that his right to silence was not in any way impinged upon. In other words, even if the unlawful demand constituted "impropriety", there was an insufficient causal connection between it and the answers given by Mr Waite during the interview (Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 at [41]). As the High Court stated in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 79, "the nature of the illegality does not in this case affect the cogency of the evidence so obtained."
12. If, however, I am wrong in this regard, I would nevertheless conclude that the desirability of admitting the ROI, when consideration is given to the factors contained in s 138(3) of the Evidence Act, would outweigh the undesirability of admitting evidence that has been obtained in the way in which the ROI came about.
13. It is true that Mr Henderson is an experienced council officer and can be expected to know that the request to immediately cease operation of the caravan park was made without lawful authority. The impropriety was therefore deliberate, or at the very least reckless (s 138(3)(e)). Moreover, it would not have been difficult to obtain the evidence absent impropriety (s 138(3)(h) and Bunning v Cross at 79). Mr Henderson could easily have invited Mr Waite to attend an interview, and if Mr Waite refused, the Council could have issued a written notice to attend to answer questions pursuant to s 119K(3) of the EPAA.
14. But against this is the finding that the probative value and importance of the evidence contained in the ROI is high (s 138(3)(a) and (b) and the definition of the term "probative value" contained in the Dictionary to the Evidence Act, together with the elucidation of the meaning of that definition in IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [40], [45] and [47]-[49]). Furthermore, while the impropriety was intentional, Mr Henderson's conduct cannot be characterised as a sufficiently grave contravention of the law that would tend towards the exclusion of the ROI (s 138(3)(d) and R v Gallagher; R v Burridge [2015] NSWCCA 228 at [54]). In addition, the nature of the offences the subject of the charges cannot be described as "significant" (s 138(3)(c) and cf Gedeon at [226] and Bunning v Cross at 80), although equally the public interest in preventing the breach of the planning laws of this State cannot be ignored. Finally, given the caution administered to Mr Waite at the commencement of the interview, it cannot be concluded that, contrary to his submission, the impropriety was contrary to, or inconsistent with, a right of a person recognised by the 1966 International Covenant on Civil and Political Rights (s 138(3)(f)).
15. Accordingly, in my opinion, s 138 of the Evidence Act would not operate to exclude the admission of the ROI.

Sections 90 and 85 of the Evidence Act

1. In the alternative, Mr Waite argued that even if not improperly obtained pursuant to s 138 of the Evidence Act, to the extent that the ROI contained admissions, in light of the circumstances in which the admissions were made (namely, the unlawful email demand to immediately cease operating the caravan park and the absence of a warning with respect to his privilege against self-incrimination), the ROI ought to be excluded under s 90 of the Evidence Act.
2. Section 90 states as follows: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
3. Section 90 reflects a common law rule that evidence of an admission may be excluded by a trial judge if, having regard to the conduct of the investigating authority in obtaining it and all the circumstances of the case, it would be unfair to admit the evidence against the defendant (Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 at [52] and [108]). As the circumstances of each case will vary, so will the standards of behaviour required by the relevant investigating authority.
4. Mr Waite did not identify any particular admission or admissions contained in the ROI that ought to have been excluded by reason of the operation of s 90 of the Evidence Act. Rather, it was his submission that the entirety of the ROI ought to be excluded.
5. The matter was not fully argued by Mr Waite. In my view, notwithstanding the unlawful demand regarding the operation of the caravan park made by the Council, having been given the caution under s 139 of the Evidence Act, there was nothing unfair about the circumstances in which any admission that the Council may seek to rely upon in the ROI was made. There was, as the audio recording of the interview demonstrated, no confusion on the part of Mr Waite in answering the questions asked of him and he did not sound in any way intimidated during the interview. In other words, there was nothing unfair about the interview itself (as opposed to how it came about), or the often expansive answers given by Mr Waite once the interview had commenced. I would therefore decline to exclude the ROI pursuant to s 90 of the Evidence Act.
6. Finally, Mr Waite argued that if the ROI was not excluded pursuant to either ss 138 or 90 of the Evidence Act, it should be excluded under s 85 of that Act. That provision states that: 85 Criminal proceedings: reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned.
7. Again, Mr Waite did not identify the admission or admissions that he sought to exclude, instead arguing that the whole of the ROI ought not be admitted.
8. The difficulty with Mr Waite's reliance on s 85 is, however, that even taking into account any purported "threat" or "inducement" by the Council with respect to the shutting down of the caravan park (see s 85(3)(b)(ii) of the Evidence Act), having listened to the audio of the interview and having regard to its content and the circumstances surrounding Mr Waite's participation in it, it was highly unlikely that any such threat or inducement adversely affected the truth of any admissions made by Mr Waite in answering the questions asked of him, as is required by s 85 (s 85(2) and see Cvetjovski at [56]-[60]). Accordingly, s 85 would also not be available to exclude the ROI and any admissions made in it, notwithstanding the satisfaction of the criteria in s 85(1) of that Act.

Conclusion and Orders

1. The findings above are more than sufficient to dispose of the voir dire. The ruling of the Court therefore is that Mr Waite's ROI is inadmissible and his objection to the tender of it by the Council should be upheld. The exhibits on the voir dire are to be returned.

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: 09 October 2019