Citation: [2026] NSWSC 349
Court: Supreme Court of New South Wales
Date: 10 April 2026
Judge(s): Roberts J
Background
The defendant, a director and Chief Operating Officer of a company that manufactured and sold plant-based milk products, was charged with 10 offences under s 122(2) of the Food Act 2003 (NSW). The charges related to the company's sale of almond milk and oat milk products to Woolworths stores between October 2022 and January 2023. The products were allegedly mislabelled: their labels stated "Once opened, keep refrigerated and consume within 5 days," when the products in fact needed to be refrigerated at all times (below 5°C). The mislabelling was connected to a serious food safety incident in which a consumer was hospitalised with botulism poisoning.
The prosecution case relied significantly on a record of interview conducted on 15 November 2023 between an officer of the NSW Food Authority and the defendant. The interview had been arranged, on its face, as part of the Authority's investigation into the company. The defendant was invited to attend as a representative authorised to speak on the company's behalf. The prosecution sought to use answers given during that interview as admissions against the defendant in his personal capacity. The defendant applied to have the record of interview excluded under s 90 of the Evidence Act 1995 (NSW), which gives the court a discretion to refuse to admit evidence of an admission where, having regard to the circumstances, it would be unfair to the person who made the admission.
The admissibility ruling was treated as a threshold issue. Both parties agreed that the disputed evidence was of such significance to their respective cases that a ruling was necessary before the hearing could proceed further, and the voir dire occupied two of the four hearing days allocated.
Legal Issues
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Whether the record of interview should be excluded under s 90 of the Evidence Act 1995 (NSW) on the basis that it would be unfair to the defendant to admit evidence of admissions made during an interview that was arranged and presented as a corporate investigation interview.
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Whether the circumstances surrounding the interview — including the stated purpose, the compulsory powers invoked, the warnings given, and the failure to clearly advise the defendant that his answers could be used against him personally — rendered it unfair to admit the evidence.
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The significance of the interplay between the compulsory information-gathering powers under ss 37(1)(q), 40, and 42 of the Food Act 2003 (NSW) and the use immunity provisions, where the defendant was told answers could be used against the company but was not squarely told they might also be used against him individually in criminal proceedings.
Decision
Roberts J excluded the record of interview, exercising the discretion under s 90 of the Evidence Act to refuse to admit the evidence on grounds of unfairness.
The Court examined the full sequence of correspondence leading to the interview. The initial letter from the Authority's investigator stated that the interview's purpose was to "finalise the Department's investigation" into the company and invited the defendant to attend as a representative of the company authorised to speak on its behalf. The letter expressly noted that "any information may be used in legal proceedings against Inside Out" — that is, the company — but made no reference to the possibility that the information could be used in proceedings against the defendant personally. A subsequent email set out the compulsory nature of the obligation to answer questions (referencing ss 40 and 42 of the Food Act) and explained the right to object to answering on the grounds of self-incrimination. Critically, the email stated that the effect of making such an objection was that the answer "cannot be used against you personally in criminal proceedings" but "does not prevent any statement you make… being used in criminal proceedings against a company."
Roberts J found that the overall framing of the interview created an impression in the defendant's mind — reasonably held — that the investigation was directed at the company and that the defendant was participating in the capacity of a corporate representative. While the Authority's correspondence did technically set out the statutory protections regarding self-incrimination, the Court was not satisfied that the defendant was adequately put on notice that his answers might be deployed against him as an individual in criminal proceedings. The notice regarding the use immunity was, in context, more naturally read as reinforcing the message that the investigation concerned the company, not the defendant personally.
The Court considered the High Court authorities on fairness in the admission of confessional evidence, including R v Swaffield & Pavic and Lee v The Queen, as well as the principles regarding the use of compulsory powers and the privilege against self-incrimination discussed in X7 v Australian Crime Commission. Roberts J emphasised that the s 90 discretion requires a broad evaluative assessment of the circumstances in which the admissions were made, and that unfairness can arise not only from overt coercion or deception, but also from a combination of circumstances that, taken together, deprive a person of a fair opportunity to make an informed choice about what to say. Here, the compulsory nature of the obligation to answer, the framing of the interview as a corporate investigation, and the absence of any clear warning that the defendant's personal criminal liability was under consideration combined to make it unfair to admit the evidence.
The Court noted that this conclusion did not depend on any finding of deliberate impropriety by the Authority's investigator, but rather on the objective effect of the circumstances on the fairness of receiving the evidence.
Orders Made
- The record of interview dated 15 November 2023 was excluded from evidence in the proceedings against the defendant.
- The matter was stood over for further directions given the impact of the ruling on the conduct of the case.
Key Takeaways
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The Supreme Court held that when a regulatory authority interviews a company director as a corporate representative under compulsory powers, the use of that evidence against the director personally in criminal proceedings may be excluded as unfair under s 90 of the Evidence Act 1995 (NSW), particularly where investigators failed to clearly communicate that the individual was a potential subject of personal criminal liability.
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A holistic assessment is required when exercising the s 90 discretion. Even where statutory warnings about self-incrimination and use immunity were technically provided, the Court found their practical effect was undermined because the overall framing of the interview pointed toward a corporate investigation rather than a personal prosecution.
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Where compulsory obligations to answer under s 40 of the Food Act 2003 (NSW) were invoked, silence was not a realistic option for the defendant. This context was significant to the Court's determination that it would be unfair to use those compelled answers against the defendant individually.
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Close scrutiny of the circumstances in which admissions were obtained during the regulatory investigation proved decisive, particularly the stated purpose of the investigation, the capacity in which the individual participated, and the adequacy of the warnings given.
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No broad rule was established that corporate interviews can never be used against directors personally. The ruling was confined to the s 90 discretion and turned on the particular combination of circumstances (compulsory powers, corporate framing, and inadequate notice) present in the case.
Legislation and Cases Referenced
Legislation:
- Food Act 2003 (NSW), ss 21(3), 37(1)(q), 40, 42, 122(2)
- Evidence Act 1995 (NSW), ss 90, 187
Cases:
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Fantakis v R [2023] NSWCCA 3
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- R v Swaffield & Pavic (1998) 192 CLR 159; [1998] HCA 1
- The King v Lee (1950) 82 CLR 133; [1950] HCA 25
- X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29