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Court of Criminal Appeal 13 August 2021

Turnbull v Office of Environment and Heritage

[2021] NSWCCA 190

Public order & justice offences

Citation: Turnbull v Office of Environment and Heritage [2021] NSWCCA 190
Court: Court of Criminal Appeal, NSW
Date: 13 August 2021
Judges: Hoeben CJ at CL, Harrison J, Button J (joint decision)

Background

The applicant was a landholder in north-western New South Wales who faced allegations of unlawfully clearing native vegetation on his property contrary to the Native Vegetation Act 2003 (NSW). The Office of Environment and Heritage (the respondent) commenced civil proceedings against him in the Land and Environment Court in September 2014, alleging he had cleared 506 hectares without authorisation. The applicant's position in those civil proceedings was that he had cleared no more than 29.4 hectares, and on legal advice he made admissions in open court to clearing that lesser area.

Before the civil proceedings concluded, the respondent commenced a criminal prosecution against the applicant in the criminal jurisdiction of the same court, filing a summons in March 2016. The respondent proposed to rely in the criminal trial on the admissions the applicant had made while defending the civil proceedings. Critically, no steps had been taken during the civil litigation to seek any undertaking or protective mechanism preventing the respondent from using those admissions in a subsequent criminal prosecution.

The applicant applied to Duggan J for pre-trial orders excluding his civil admissions from the criminal proceedings, and separately sought a temporary stay until the respondent's legal team was replaced. Duggan J dismissed both applications. The applicant then sought leave to appeal to the Court of Criminal Appeal from that interlocutory decision.

  • Whether the admissions made by the applicant in civil proceedings could be used against him in a subsequent criminal prosecution brought by the same party, without breaching the accusatorial principle (the prosecution must prove its case without compelled assistance from the accused).
  • Whether the primary judge erred in declining to exclude those admissions from the criminal proceedings.
  • Whether the primary judge erred in declining to order that the respondent's legal team be replaced as a condition of the criminal proceedings continuing.

Decision

Button J (with whom Hoeben CJ at CL and Harrison J agreed) granted leave to appeal but dismissed the appeal. The Court accepted the importance of the accusatorial principle, but held that the circumstances here did not warrant excluding the admissions or interfering with the respondent's legal team.

The Court emphasised several features distinguishing this case from those in which courts have excluded evidence or granted more radical relief. The admissions were made voluntarily, on legal advice from counsel, and in open court. No application had been made at any stage during the civil proceedings for any protective mechanism, such as an undertaking from the respondent not to use the material in criminal proceedings. The applicant had relied on expert evidence in choosing to admit to a lesser degree of clearing, and his counsel had considered it necessary to put that evidence forward to defend the civil claim on its merits.

Button J also noted that the accusatorial principle is most potent where the accused has been compelled to provide incriminating material, which was not the case here. The admissions arose from a forensic choice made in adversarial civil litigation. The Court further observed that no lack of good faith on the part of the respondent was established. There was no suggestion of misconduct in commencing the civil proceedings first, and the case was expressly contrasted with decisions such as Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, where radical relief had been granted in response to established unlawful conduct by a prosecuting authority.

On the practical question of restraining use of the admissions, Button J observed that such restraint would be very difficult to implement in circumstances where the admissions had been made in open court. The Court was also cautious about extending the approach taken in cases such as Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 to a new factual setting, noting the absence of any other decision extending that line of authority in equivalent circumstances.

Orders Made

  • Leave to appeal out of time granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The accusatorial principle, which prevents the prosecution from relying on compelled self-incrimination, does not automatically require exclusion of admissions made voluntarily and on legal advice in civil proceedings, even where the same party later prosecutes the maker of those admissions in criminal proceedings.
  • Admissions made in open court during civil litigation, without any protective mechanism sought at the time, can remain available to the same party acting as prosecutor in subsequent criminal proceedings arising from the same facts.
  • In dismissing the appeal, the Court of Criminal Appeal drew a clear distinction between voluntary admissions made as a forensic choice in adversarial litigation and admissions extracted through compulsory process, treating the former as falling outside the core protection of the accusatorial principle.
  • The absence of bad faith or unlawful conduct on the part of the prosecuting authority was a significant factor. The Court contrasted the outcome with cases such as Strickland, where systemic misconduct by state actors had warranted extraordinary relief.
  • Practical difficulty in implementing a restraint on the use of material already aired in open court was identified as a further reason against granting the exclusion order, reinforcing the importance of seeking protective mechanisms at the time civil admissions are made.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 90
- Native Vegetation Act 2003 (NSW), ss 12, 38, 41
- Land and Environment Court Act 1979 (NSW) (Class 4 and Class 5 provisions)

Cases:
- Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
- Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97
- Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66
- Chief Executive, Office of Environment and Heritage v Turnbull [2019] NSWLEC 125
- Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull (No 4) [2020] NSWLEC 124
- Holloway v R [2015] NSWCCA 207
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- Peters & Heffernan v R (1995) 83 A Crim R 142
- R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8
- Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53