Wyong Shire Council v Hughes

The defendant applies by notice of motion to set aside a subpoena for production served upon him by the prosecutor.

The principal proceedings is a summons issued by the prosecutor alleging that the defendant committed an offence against s 5 of the Environmental Offences & Penalties Act 1989 in that he did without lawful authority negligently dispose of waste in a manner which is likely to harm the environment.

The subpoena requires the defendant to produce " all records of the names and addresses of employees and subcontractors engaged by the defendant during 1997 and who drove utilities or trucks at the direction of the defendant, including payment records to those employees and subcontractors ".

Mr J Johnson, appearing for the defendant, submits that the subpoena should be set aside on the ground that it infringes the privilege against self-incrimination. He refers to the statement of the rule in Cross On Evidence , Australian Edition, Butterworths, paras [25065] and [25075]. Mr Johnson also relies upon the application of the rule to pre-trial procedures as explained by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings (1997) 41 NSWLR 277 and by Hunt CJ at CL in Director of Public Prosecutions v Kane (10 September 1997, unreported).

Mr S M Berveling, appearing for the prosecutor, submits that ss 191 and 212 of the Protection of the Environment Operations Act 1997 operate to authorise the prosecutor to require the production of self-incriminatory documents and thus negate the privilege against self-incrimination.

The privilege against self-incrimination is a principle of the common law. It is explained by the authors of Cross as follows: [25065]. No one is bound to answer any question or produce any document if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction for a crime. ....

[25075]. The privilege is available to all persons whether their capacity be that of a party to a proceeding in a court or that of a mere witness. The question may arise in the course of pre-trial procedures such as discovery or interrogatories, the production of documents for inspection or the making of an Anton Pillar order or a Mareva injunction ... It may arise upon the return of a subpoena ducus tecum, or it may, of course, arise at trial.

In Telstra Corporation v Australis Media Holdings , McLelland CJ in Eq considered a claim for legal professional privilege. Although that is a different kind of privilege to the privilege against self-incrimination, there seems to me to be no difference in principle to their application. McLelland CJ in Eq held that client legal privilege applies to ancillary processes such as the production of documents in response to subpoenas. His Honour explained the reason for so concluding as follows (at 279-280): If principles of client legal privilege (as I think it should now be called) applicable to the adducing of evidence were to differ from those applicable to ancillary processes, the consequences would be anomalous, conducive to confusion and disorder in the preparations for and conduct of proceedings, and verging on the absurd. The adducing of evidence at a hearing and ancillary processes are functionally linked. Moreover, both may occur at the same time and place. For example, production of a document during a hearing under a subpoena or notice to produce may be resisted on the ground of client legal privilege - it would be anomalous if different principles of client legal privilege governed the production of the document on the one hand, and the adducing of the document in evidence on the other. ... A claim for client legal privilege in respect of a subpoenaed (or discovered) document might itself be the subject of a pre-trial hearing in which evidence is adduced, as in fact occurred on the present application before me. If different principles of client legal privilege were applied to the question of the production of the document on the one hand, and the adducing of evidence in the application on the other, in situations of this kind, quite impractical consequences could ensue.

In Director of Public Prosecutions v Kane , Hunt CJ at CL expressly agreed with the decision of McLelland CJ in Eq in Telstra Corporation . Moreover, Hunt CJ at CL saw no difference in the application of the principle to subpoenas to produce documents and notices to produce. As is noted in Cross , the question may arise in the course of pre-trial procedures.

Although both Telstra Corporation v Australis Media Holdings and Director of Public Prosecutions v Kane involved claims in ancillary proceedings for legal professional privilege, I see no reason in principle why a claim for privilege against self-incrimination should not also apply to ancillary proceedings such as a subpoena to produce documents or a notice to produce.

It remains to consider Mr Berveling's reliance upon ss 191 and 212 of the Protection of the Environment Operations Act. Section 191 is as follows:

191 (1) The EPA may, by notice in writing given to a person, require the person to furnish to it such information or records (or both) as it requires by the notice in connection with any matter relating to its responsibilities for functions under this Act.

(2) This section is not limited to matters in respect of which the EPA is the appropriate regulators authority.

Section 212 is as follows: 212 .(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 Chapter 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.

A person is not excused from a requirement under this Chapter 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 Chapter is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Chapter) 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 Chapter is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person. ...

Although subsection 212(3) refers to the privilege against self-incrimination, Mr Berveling relies in particular on subsection 212(4) as an express statutory provision which, he submits, negatives the privilege.

Sections 191 and 212 are found in Chapter 7 of the Protection of the Environment Operations Act. The several subsections of s 212 refer to " a requirement under this Chapter " to furnish information. The requirement relied upon by Mr Berveling is that which is referred to in s 191, being in this case a requirement to furnish such records as the prosecutor requires " in connection with any matter relating to its responsibilities under this Act ".

I have noted that the summons charges the defendant with an offence against s 5 of the Environmental Offences & Penalties Act. There is nothing in Chapter 7 of the Protection of the Environment Operations Act which enables the prosecutor to require the production of records relating to its responsibilities under another Act. That is to say, ss 191 and 212 on their face plainly apply only to functions under that Act. Mr Berveling has not referred to or relied upon any other enabling provision. Accordingly, Mr Berveling cannot rely upon these two provisions to support the subpoena.

Moreover, I do not think that the subpoena answers the description of a notice under s 191 nor a requirement under Chapter 7 of the Protection of the Environment Operations Act. The subpoena is an order of the Court requiring the production of the documents specified therein to the Court. It is not a notice given by an regulatory authority requiring the person to furnish to it information or records. The provisions of the Protection of the Environment Operations Act upon which Mr Berveling relies have no application in this case.

In my opinion the claim for privilege against self-incrimination should be upheld. As the authorities to which I have referred plainly show, the privilege applies to pre-trial procedures such as the production of documents in answer to a subpoena or a notice to produce.

The formal orders are: 1. The subpoena for production issued on 16 November 1999 and served on the defendant is set aside.

2. The prosecutor must pay the costs of the notice of motion.

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