Workcover v Leighton Contractors Pty Ltd and Lindores Crane & Rigging Pty Ltd

PROSECUTOR Mr J V Agius SC with Mr P M Skinner of counsel

SOLICITOR WorkCover Authority of New South Wales SYDNEY.

APPEARING FOR MR L A GILLESPIE Mr P M Hall QC

SOLICITOR Thompson Cooper Lawyers Pty Ltd SYDNEY.

LEGAL REPRESENTATIVES: FIRST DEFENDANT Mr S J Rushton SC with Mr M A Jones of counsel

SOLICITOR Corrs Chambers Westgarth SYDNEY.

SECOND DEFENDANT Mr R A Perry of counsel with Mr B K Cross of counsel

SOLICITOR McCullough Robertson BRISBANE.

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

DATE: 27 NOVEMBER 2003 Matter Nos. IRC232 and 233, 235 of 2000

WORKCOVER AUTHORITY OF NSW (INSPECTOR KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under ss 15(1) & 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSPECTOR KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under ss 16(1) & 49(4) of the Occupational Health and Safety Act 1983

Matter Nos IRC239, 240, 241, 242, 243, 245 and 248 of 2000

WORKCOVER AUTHORITY OF NSW (INSPECTOR KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecutions under ss 15(1) & 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSPECTOR KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecutions under ss 16(1) & 49(4) of the Occupational Health and Safety Act 1983

1 This interlocutory judgment concerns rulings given during the course of the trial, the effect of which was to decline to require a particular witness, Leonard Alan Gillespie, to give evidence in the prosecution's case. These are my reasons for those rulings.

2 Inspector Keenan, on behalf of the WorkCover Authority, has initiated prosecutions against Leighton Contractors Pty Limited ('Leighton') the building contractor engaged in the construction of a building at Tweed Heads in 1996, and the supplier of a tower crane for use during construction, Lindores Cranes and Rigging Pty Limited ('Lindores'). The prosecutions are brought under ss 15 and 16 of the Occupational Health and Safety Act 1983 ('the OHS Act'). They relate to circumstances in which the particular tower crane collapsed, killing instantly one employee of a concreting contractor and causing fatal injuries to another such employee. The relevant risks to safety alleged include risks to a number of other persons on site.

3 The prosecutor has also initiated four prosecutions of a supervisor employed by Lindores, Mr Gillespie. These prosecutions are brought under s 19A of the OHS Act and allege that on four different dates in 1996, including the day before and the day of the crane collapse, Mr Gillespie as an employee failed to take reasonable care for the health and safety of persons including the two deceased employees and a number of others. The charges and the particulars thereof raise the same or very similar factual circumstances as those which are raised by the prosecutions of Leighton and Lindores.

4 On the second day of the trial, then forecast to take some three to four weeks, the prosecutor called Mr Gillespie in its case against Leighton and Lindores. Mr Perry of counsel, appearing with Mr Cross of counsel for Lindores, informed the court, prior to Mr Gillespie being called, that he had been instructed to represent Mr Gillespie and had been informed that he would take an objection to giving evidence which might tend to incriminate him in the prosecutions of him personally. In relation to the first question posed to him concerning whether he had been involved in the commissioning of the crane he objected to giving evidence, claiming the privilege against self-incrimination. After being informed by the court, pursuant to the requirements of s128 of the Evidence Act 1995 that he was enabled by that section to give the evidence with a right then to receive the benefit of a protective certificate, he continued to decline to give any evidence.

5 The prosecution then sought, pursuant to s 128(5) of the Evidence Act that he be required to give the evidence in the interests of justice, and that to be provided with a certificate of the kind referred to in s 128.

6 Section 128 of the Evidence Act 1995 is in the following terms: 128 Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty. (2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness: (a) that he or she need not give the evidence, and

(b) that, if he or she gives the evidence, the court will give a certificate under this section, and

(c) of the effect of such a certificate. (3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.

(4) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (5) If the court is satisfied that: (a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and

(b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(c) the interests of justice require that the witness give the evidence, the court may require the witness to give the evidence. (6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.

(7) In any proceeding in a NSW court: (a) evidence given by a person in respect of which a certificate under this section has been given; and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence; cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue, or

(b) had a state of mind the existence of which is a fact in issue.

(9) A reference in this section to doing an act includes a reference to failing to act.

7 During the course of its investigations into the incident, WorkCover undertook an interview of Mr Gillespie in March 1997, pursuant to s 31M of the OHS Act. That section provides that in the circumstances described in it, the statement made by Mr Gillespie would not be admissible in evidence against him in criminal proceedings. It follows that the record of interview would be inadmissible in the proceedings taken out against him in the Chief Industrial Magistrate's Court relating to the circumstances relating to the commissioning, operation and collapse of the crane.

8 The question is whether or not that evidence or particular parts of it ought be required to be given in these proceedings. Mr Agius of senior counsel, appearing with Mr Skinner of counsel for the prosecutor, submitted that his evidence is germane to the prosecution case and that there is much evidence which it would seek to call from him which only he can give.

9 On the other hand, it was submitted on behalf of Mr Gillespie that the interests of justice would not permit him to be subjected to a requirement to give this evidence. The forensic advantage to be gained by the prosecutor in what would be, in effect, a dry run would be considerable and would very likely be to his prejudice in his defence. Mr Perry referred to the judgment of Gibbs CJ in Hammond v the Commonwealth per Gibbs J (1982) 152 CLR 188 at 198.5.

10 It was submitted that in this case the prosecutor, as the party arguing in favour of the requirement, must "satisfy the court that the evidence is required to meet the interests of justice". Strong reliance was placed on the entrenched position in the common law of the privilege against self-incrimination. The judgment of Haylen J in WorkCover v Tsougranis [2002] NSWIRComm 282, 24 October 2002, unreported, was relied on in that respect and also in its conclusion that "s 128 . . . . does not establish a regime whereby prima facie a witness will be required to give the evidence because of the protection of the certificate".

11 It was submitted for the Mr Gillespie, in the alternative, that the application for Mr Gillespie to be required to give evidence was premature given that the court had received evidence from three of a total of approximately 40 witnesses anticipated to be called in the case. It was not possible for the court to form any view at this stage with respect to the requirements of justice. In those circumstances, in the absence of a ruling in favour of Mr Gillespie, the matter ought be deferred until the completion of the prosecution's evidence, other than Mr Gillespie and then reconsidered.

12 Mr Rushton SC, appearing for Leighton with Mr Jones of counsel, emphasised that the evidence Mr Gillespie could give was a significant part of its defence to the WorkCover prosecution and that Leighton had come to the proceedings uninformed by the prosecutor about the fact that proceedings had been commenced against Mr Gillespie and were adjourned or stayed pending the outcome in these proceedings. It wanted the opportunity to cross-examine Mr Gillespie and if the court ruled that Mr Gillespie would not be required to give evidence, Leighton would apply for a stay of the proceedings against it on the basis that it could not obtain a fair trial.

13 After hearing argument on the matter I made the following ruling: Mr Gillespie is charged in separate proceedings with four alleged offences under the Occupational Health and Safety Act 1983 arising out of the circumstances which have given rise to the present proceedings. He claims the benefit of the privilege against self-incrimination and he has declined to give evidence on the ground that the evidence may tend to prove his having committed an offence. In these circumstances s 128 of the Evidence Act is applicable. I am not satisfied at this stage of the trial that I should, pursuant to s 128(5) of the Act, require Mr Gillespie to now give the evidence which the prosecution seeks from him. Whether his particular evidence is necessary to the prosecution's case seems to me to be a matter which can only be determined at a point in the trial, whether before or at the end of the prosecution's case I give no ruling. When the evidence of other relevant witnesses is in, the Court will be in a better position to assess whether the interests of justice require that he gives the evidence.

14 Subsequently, towards the end of the prosecutor's case, the application for a requirement by the court that Mr Gillespie give evidence was renewed. On this occasion Mr P M Hall QC appeared on behalf of Mr Gillespie.

15 Mr Hall took the approach of identifying the issues in the present proceedings and those in the four proceedings laid against Mr Gillespie. There is simply no question that, whilst the charges against him are raised under s 19(a) of the OHS Act, they cover very much the area, or a good part of it, raised in the charges against the present defendants.

16 Heavy reliance was placed by Mr Hall on the judgment of the High Court in Reid v Howard (1995) 184 CLR 1 which was concerned with the privilege against self-incrimination in the context of civil proceedings where orders were made requiring disclosure in relation to assets allegedly misappropriated from clients of a chartered accountant. The High Court gave primacy to the privilege against self-incrimination. The majority (Toohey, Gaudron, McHugh and Gummow JJ) said: There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application - a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 238 at 346, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against "the peril and possibility of being convicted as a criminal" ( Lamb v Munster (1882) 10 QBD 110 at 111).

17 However, the majority also stated: The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without "real exception".

18 Deane J stated: I agree with the other members of the Court that, for the reasons which they give, both Powell J and the Court of Appeal were correct in refusing to deny the benefit of the privilege against self-incrimination to a trustee (or other fiduciary) who is involved in civil litigation with a beneficiary. "The privilege against self-incrimination is deeply ingrained in the common law" ( Sorby v The Commonwealth (1983) 152 CLR 281 at 309, per Mason, Wilson and Dawson JJ). It reflects "a cardinal principle" ( Sorby v The Commonwealth (1983) 152 CLR 281 at 294, per Gibbs CJ) which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts.

19 Mr Hall also referred to the judgment of the High Court in Hammond v The Commonwealth of Australia & Ors.

20 While it is correct to observe, as did senior counsel for the prosecution, that Reid v Howard and Hammond v The Commonwealth were concerned with different legislation and quite different factual contexts, nevertheless, the High Court did expound the nature of the privilege and its significance in the law.

Conclusions 21 The question obviously arises on the argument whether s 128(5) may be treated as an abridgement by statute of the privilege. Before dealing with that question, it is convenient to note that in material respects the prosecutor is in a position to tender against Lindores Crane & Rigging the record of interview of Mr Gillespie: s 31M(3) of the OHS Act. Also, the prosecutor has indicated a willingness to tender, for the benefit of Leighton, a representation made by Mr Gillespie in that interview which would assist Leighton's case.

22 In Hammond, the relevant issue concerned the juxtaposition of the privilege against self-incrimination and the effect of s 6DD of the Royal Commissions Act 1902 (Cth), which provided that a statement or disclosure made by a person in the course of giving evidence before a Royal Commission was not admissible in evidence against that person in any civil or criminal proceedings, other than proceedings for an offence against the Royal Commission Act. Gibbs CJ, with whom Mason J and Murphy J relevantly agreed, said: It was common ground that if the plaintiff were again examined at the inquiry he would be bound to answer questions designed to establish that he committed the offence with which he is charged, and that his objection on the ground that his answers might incriminate him would not constitute a defence to a prosecution for failing to answer the questions. . . . . Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.

23 Brennan J observed: . . . for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice.

24 Deane J said: It seems fair to comment that the parallel non-judicial inquiry being conducted by the Commissioner is to no small extend following the general form of a criminal trial, shorn of some of the privileges and safeguards, such as absence of compellability of an accused as a witness and observance of the ordinary rules of evidence, which protect an accused on trial in a court of law. .... an inquisitorial inquiry of the type being conducted by the Commissioner into the very matters which constitute the basis of the criminal proceedings constitutes an interference with the due administration of criminal justice in his case.

25 Deane J also stated: It was submitted on behalf of the Commonwealth that it has not been shown that the inquiry by the Royal Commissions into the plaintiff's involvement in matters the subject of criminal proceedings involves any substantial risk of serious injustice or serious prejudice. That submission struck me as unattractive at the time when it was made. I have found that it deteriorates upon closer consideration. The pending criminal proceedings against the plaintiff are brought by the Commonwealth. The parallel inquisitorial inquiry into the subject matter of those proceedings is being conducted under the authority of the Commonwealth. As I have said, the conduct of that inquisitorial inquiry is to no small extent following the general form of a criminal trial shorn of some of the privileges and safeguards which protect an accused in such a trial. The plaintiff has been compelled to be sworn as a witness and has been subjected to questioning in the course of that inquiry. Indeed, his refusal to answer questions has led to his being charged, on the information of an officer of the Australian Federal Police, with an offence under the Royal Commissions Act 1902 (Cth). It is not, in my view, necessary to go beyond these things. In themselves, they constitute injustice and prejudice to the plaintiff.

26 Those observations seem to me to resound in the circumstances of the present matter, where Mr Gillespie is to be asked to give particular evidence relating to his own conduct as an element in the charges against Lindores and/or Leighton and it is the same conduct which is to be asserted against him in his own trial. I cannot conceive of a circumstance more likely to induce the court to decline to require the witness to give evidence on those matters, regardless of the provision of a s 128 certificate. In the course of argument, the impact of Mr Gillespie having made a s 31M statement was discussed. As Mr Hall put it, it is one thing for Mr Gillespie to have been asked questions by an investigating inspector and another to subject him to examination, and possibly cross-examination by leave, by experienced senior counsel. I find it impossible to avoid the conclusion that to subject Mr Gillespie to the requirement to give evidence would be to expose him to a risk of serious prejudice in his defence of the charges against him, by providing the prosecutor with a valuable forensic advantage.

27 In Bax Global (Australia) Pty Ltd v Evans & Ors (1999) 47 NSWLR 538, Austin J took the view that s 128(5) operated to abridge the privilege. His Honour said: The scheme of section 128 implies that the statutory protection is sufficient for the witness whose privilege is over-ridden unless there are special grounds to apprehend some prejudice not adequately addressed by the statute. In this sense section 128 overcomes the effect of the High Court's decision in Reid v Howard: see Odgers, Uniform Evidence Act Law (1998) 3rd ed., LBC Sydney at 414.

28 In Tsougranis, after setting out the relevant extract from Odgers, Haylen J differed from the view taken by Austin J, finding no relevant reference within the section itself or any other indication therefor in the statute. Haylen J said: With respect to his Honour, I am unable to agree that the scheme of s 128 establishes sufficient protection for the witness so that, almost as a matter of course, the witness will be required to give the evidence because of the protection provided by the certificate unless there are "special grounds to apprehend some prejudice not adequately addressed by the statute". There is nothing in the provisions of s 128, in my view, that requires the witness to establish some "special grounds" to defeat an application that the witness should be required to give the evidence under s 128(5). Indeed, Odgers' commentary states that the onus is on the party arguing that the "interests of justice" require the witness to give the evidence (para 1.3.13160). The nature of the privilege is so well established in the common law that very clear words would be required to bring about a diminution of the privilege. I cannot find such terms in the provisions of s 128. There will be circumstances where the evidence is required in the interests of justice such as confronted the court in AMP General Insurance v Prasad , where Hamilton J noted that, in cases of misappropriation, to attempt to find and trace the funds before the trail becomes cold was a real consideration - the trail would certainly have become cold if it could not be pursued until after the termination of criminal proceedings at first instance and perhaps upon appeal.

29 Somewhat curiously, I find myself more or less between those differing approaches. I find it difficult to see s 128(5) as being other than a limitation upon the right of a witness to the protection of the privilege against self-incrimination. The privilege would of course absolve the witness from the duty of answering any relevant questions. Under the section, a witness could be required to answer questions which would not be able to be used against him in any other relevant proceedings. To that extent, the privilege is defeated in the particular case, although it remains open to be claimed in a prosecution of the witness. What the section calls for is a balancing of the interests in the circumstances of the case.

30 However, whether s 128(5) is to be applied in a particular case against the interests of a witness seems to me to be a most vexed question. The interests of justice obviously cater not only for the interests of the witness but those of the prosecution. In this case, they seem to me to necessarily require a consideration also of the interests of Leighton and, to a lesser extent, of Lindores.

31 Leighton's position has been accommodated by the admission of those parts of the record of interview which assist Leighton.

32 So far as the prosecution's position is concerned, there are certain matters left upon which the prosecutor would seek to question Mr Gillespie. Those matters are so closely associated with the matters raised in the charges against Mr Gillespie that I consider the disadvantage to which he would be exposed outweighed the perceived needs of the prosecution to complete its case, to its satisfaction, against Lindores. In that respect, I took into account that there is now a substantial body of evidence before the court including a substantial part of Mr Gillespie's record of interview admitted, under s31M(3) of the OHS Act, against Lindores. I was not satisfied that the prosecutor had identified to a sufficiently high level that, in the interests of justice, Mr Gillespie should be compelled to give evidence in those respects.

33 Mr Hall sought an order that the prosecutor meet Mr Gillespie's costs and expenses with respect to defending his position in these proceedings. Some evidentiary material and argument was advanced in support of the proposition. That question was stood over to be further dealt with in the light of these reasons.

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