Citation: McAndrew (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 590
Court: District Court of New South Wales
Date: 9 September 2020
Judge: Scotting DCJ
Background
The defendant faced two alternative charges under s 32 of the Work Health and Safety Act 2011 (WHS Act) arising from a fatal incident at a mineral claim near Grawin. On 4 November 2016, a worker was killed when he was struck by a steel bucket attached to a hoist that fell into a mine shaft. The prosecution alleged the defendant owned the hoist and had prior knowledge of its tendency to malfunction.
On 6 November 2016, inspectors conducted a compulsory recorded interview with the defendant under s 171 of the WHS Act. Under that provision, a person is required to answer questions and cannot rely on the privilege against self-incrimination. In the interview, the defendant made a series of disclosures about his ownership of the hoist, his knowledge of its recurring mechanical faults, and the deceased's safety habits.
On the first day of trial, the defendant applied for a permanent stay of proceedings, or alternatively an order disqualifying the prosecution's lawyers from continuing. His argument was that information obtained under compulsion in the s 171 interview had been communicated to other inspectors and to the prosecution lawyers, thereby limiting the defences available to him. This is known as a breach of the "companion principle," which restricts the use that can be made of information obtained under statutory compulsion.
Legal Issues
- Whether the disclosure of compulsorily acquired material from the s 171 interview to other inspectors and prosecution lawyers constituted a breach of the companion principle.
- Whether that breach, if established, caused sufficient prejudice to warrant a permanent stay of the criminal proceedings.
- Whether, as an alternative remedy, the prosecution lawyers should be disqualified from acting in the proceedings.
Decision
Scotting DCJ found that the companion principle was engaged by the s 171 interview, since the defendant was legally compelled to answer questions without the protection of the privilege against self-incrimination. However, the application failed because the relevant information had reached the regulator through independent, voluntary sources before and after the compulsory interview.
Before the formal interview, the defendant had spoken informally to Inspector Orr at the mine site and voluntarily disclosed substantial detail about the hoist's mechanical faults and the circumstances of the incident. That conversation occurred before the inspector had formed a belief that the defendant had committed any offence, and it was entirely voluntary. Similarly, in March 2017, the defendant provided a statement to a police officer for coronial proceedings, again without any compulsion under the WHS Act, in which he repeated much of the same information.
The court found that, taken together, those voluntary disclosures covered all the material matters traversed in the compulsory interview. Critically, by the time prosecution lawyers were briefed, the regulator already possessed the relevant information from independent sources as admissions made freely by the defendant. The authorities cited by the defendant concerned cases where compelled information was the only route by which the regulator obtained knowledge, a circumstance that did not arise here.
The court also noted that the defendant had made a forensic choice, in the proceedings, to admit certain matters contained in the s 171 interview, including ownership of the hoist. This further weakened the claim that the companion principle breach had caused the specific prejudice required to justify a stay.
Orders Made
- The defendant's notice of motion was dismissed.
Key Takeaways
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A permanent stay for breach of the companion principle requires the defendant to demonstrate that the information obtained under statutory compulsion has caused actual and demonstrable unfairness, not merely that it was communicated to investigators or lawyers.
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Where identical information has been obtained by the regulator from independent, voluntary sources, the court will not treat the compulsory interview as the operative cause of any limitation on the defendant's available defences.
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The District Court confirmed that the companion principle applies to s 171 WHS Act interviews, since those provisions exclude the privilege against self-incrimination, but the principle is not a blanket prohibition on prosecution whenever a compulsory interview has taken place.
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Voluntary pre-interview statements made to investigators, before a suspicion of offending has crystallised, can constitute independent sources sufficient to break the causal link between the compelled disclosure and any claimed prejudice.
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In dismissing the motion, the court also left open for later determination a separate and distinct question: whether material from the s 171 interview would be admissible as evidence during the trial itself, under s 271 of the WHS Act.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 32, 155, 156, 171, 172, 173, 271
- Independent Commission Against Corruption Act 1988 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Barron v Attorney-General (1987) 10 NSWLR 215
- Barton v The Queen (1980) 147 CLR 75
- Jago v District Court (NSW) (1989) 168 CLR 23
- Lee v The Queen (2014) 253 CLR 455
- Macdonald v R (2016) 93 NSWLR 736
- R v IBAC (2016) 256 CLR 459
- R v Seller (2015) 89 NSWLR 155
- Strickland v CDPP [2018] HCA 53
- Walton v Gardiner (1993) 177 CLR 378
- X7 v The Queen [2014] NSWCCA 273