Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull (No 4)

[2020] NSWLEC 124

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull (No 4) [2020] NSWLEC 124

Hearing dates:

4 August 2020

Date of orders:

28 August 2020

Decision date:

28 August 2020

Jurisdiction:

Class 5

Before:

Duggan J

Decision:

See paragraphs 64 and 65

Catchwords:

CRIMINAL PROCEDURE – stay of proceedings – admissions made in class 4 civil enforcement proceedings – criminal proceedings commenced after conclusions of class 4 proceedings – whether use of admissions in criminal proceedings is a breach of the accusatorial principle – whether admissions were made under compulsion – whether admissions were necessary to the defendant’s class 4 defence

Legislation Cited:

Criminal Procedure Act 1986

Evidence Act 1995

Native Vegetation Act 2003

Cases Cited:

Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66

Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165

Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46

Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

Holloway v R [2015] NSWCCA 207

Lee v New South Wales Crime Commission (2013) 251 CLR 196

Lee v R (2014) 253 CLR 455

Peters & Heffernan v R (1995) 83 A Crim R 142

X7 v Australian Crime Commission (2013) 248 CLR 92

Category:

Procedural and other rulings

Parties:

Chief Executive of the Office of Environment and Heritage (Prosecutor)
Grant Wesley Turnbull (Defendant)

Representation:

Counsel:
Mr T Howard SC and Mr S Hartford-Davis (Prosecutor)
Mr S Odgers SC and Mr D Brezniak (Defendant)

Solicitors:
Office of Environment and Heritage (Prosecutor)
Cole and Butler Solicitors (Defendant)

File Number(s):

2016/151113

Publication restriction:

No

Judgment

Nature of application

1. The Defendant, Grant Wesley Turnbull (the Defendant), has been charged with committing an offence against s 12 of the Native Vegetation Act2003 (NV Act) in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the NV Act or a property vegetation plan (the Criminal Proceedings).

2. The Defendant has entered a plea of not guilty in the Criminal Proceedings. The Criminal Proceedings were fixed for a ten day hearing to commence on 3 August 2020.

3. By Notice of Motion, filed in Court at the pre-trial mention of the matter on 30 July 2020, the Defendant seeks the following orders:

That the Court order a temporary stay of the trial of the defendant to and until such persons who have had access to the evidence given by the defendant in proceedings number 2014/40673 are no longer involved in the prosecution of the defendant;

Such further, other and/or consequential order as the Court may order.

4. It was not clear as to the identity of the persons to whom proposed order (1) is said to relate, but at the hearing Senior Counsel for the Defendant clarified that it is intended to relate to the legal team comprising Senior and Junior Counsel and instructing solicitors of the Prosecutor who presently have the conduct of this hearing.

Facts

5. The proceedings to which proposed order (1) of the Notice of Motion refers were civil enforcement proceedings commenced by the now Prosecutor, the Chief Executive of the Office of Environment and Heritage (the Prosecutor) against the now Defendant (the Class 4 Proceedings). The Class 4 Proceedings sought orders restraining the further clearing of the land and the remediation of the cleared land. The Class 4 Proceedings had as its subject matter the same clearing of the same land and reliance upon such clearing being unauthorised by the NV Act is now the subject matter of the Criminal Proceedings.

6. In the Class 4 Proceedings the Defendant: made admissions in his filed Points of Defence in relation to the clearing; gave evidence by way of affidavit in which he admitted the clearing; and was cross examined during which he made further admissions as to the clearing event (the Admissions). The Court determined the Class 4 Proceedings in Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66.

7. At the conclusion of the Class 4 Proceedings, but prior to judgment, the Prosecutor commenced the Criminal Proceedings. The Prosecutor has given notice that it intends to adduce as evidence in the Criminal Proceedings the Admissions.

8. A preliminary hearing was held pursuant to s 247G of the Criminal Procedure Act 1986 (CP Act) which dealt with, inter alia, whether the Admissions were admissible as evidence against the Defendant. At the preliminary hearing the Defendant gave evidence by way of affidavit and was cross examined in connection with (among other matters) the circumstances surrounding the making of the Admissions.

9. Judgment was delivered on the preliminary hearing in Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165 (Turnbull (No 3)). Her Honour, Pain J, determined (inter alia) that the Admissions were admissible as evidence against the Defendant and dismissed the motion.

10. The present Notice of Motion relates, in substance, to the same Admissions that were the subject of the preliminary hearing in Turnbull (No 3).

11. The present Notice of Motion was fixed for hearing prior to the commencement of the substantive hearing due to the potential consequence of the legal representation having to be replaced in its entirety should the motion succeed. As a consequence of the matter being raised with the Court for the first time two business days before the commencement of the trial, the hearing was ultimately vacated as it could not proceed in the remaining time allocated and until determination of the subject Notice of Motion.

The evidence

12. The only evidence that was adduced by either party at the hearing of the Notice of Motion was the Admissions to which the Notice of Motion relate.

The Defendant’s submissions

13. In essence, the Defendant’s application is that:

1. There is a fundamental principle of common law that Criminal Proceedings are accusatorial such that the Prosecutor must prove the guilt of the accused without assistance from the accused;

2. The Admissions made by the Defendant in the Class 4 Proceedings would therefore infringe this principle if the Prosecutor was able to use the Admissions as evidence in the Criminal Proceedings or to inform its conduct of the trial;

3. As a consequence, the Prosecutor should be precluded from using the Admissions and a fair application of the accusatorial principle dictates that such prohibition would also preclude the Prosecutor’s legal team from having knowledge of the Admissions. As the present legal team is aware of the Admissions they should be precluded from further participation in the trial; and

4. In order to facilitate the quarantining of the Prosecutor’s legal team from the Admissions a temporary stay of the trial of the Criminal Proceedings is warranted.

14. The Defendant contends that a proper formulation of the accusatorial principle is that the Prosecution must prove the guilt of an accused without assistance from the accused.

15. The accusatorial principle has been held as fundamental to an accused’s rights in X7 v Australian Crime Commission (2013) 248 CLR 92 at [99] (per Hayne and Bell JJ) and at [160] (per Kiefel J) as follows (citations omitted):

99   The criminal trial process is accusatorial in the sense that it is for the prosecution to decide what charge is preferred against the accused. The trial process is accusatorial in the further sense that the prosecution bears the onus of proof of all elements of the charge that is laid. But describing these aspects of a criminal trial as “accusatorial” must not distract attention from the much wider and no less fundamental observation that the whole process of criminal justice, commencing with the investigation of crime and culminating in the trial of an indictable Commonwealth offence, is accusatorial.

160   The common law principle is fundamental to the system of criminal justice administered by courts in Australia, which, as Hayne and Bell JJ explain, is adversarial and accusatorial in nature. The accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial inquiries and investigations. This is recognised by the statutory provisions to which their Honours refer. It may be added, as to the trial itself, that the concept of an accusatorial trial where the prosecution seeks to prove its case to the jury has a constitutional dimension.

16. Further, in Lee v R (2014) 253 CLR 455 at [32] the accusatorial principle was described in the following terms (citations omitted):

32   Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that “no attempt to whittle it down can be entertained” albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

17. In the present case, no statutory provision qualifies the principle and it is therefore applicable to its fullest extent.

18. Whilst the Defendant’s expression of the principle in the form that “the Prosecutor must prove the case without assistance from the accused” is very broadly formulated and is adopted from language used in the High Court, Senior Counsel for the Defendant accepted that the principle was not so absolute as to preclude any assistance from the accused, noting (T8 lines 12-15):

ODGERS:   The words “without the assistance of the accused” carry with them some baggage but, essentially, it’s where the prosecutor takes steps to elicit admissions and in some circumstance where it’s arisen in the High Court in circumstances where the evidence has been elicited by statutory compuls[ion].

19. The Defendant submitted that it was not a necessary element of the accusatorial principle for the “assistance” of the accused to be compelled; it is sufficient if the evidence was elicited from the Defendant by the prosecuting authority. It was said to be particularly relevant in this case that the Admissions were made in the context of civil proceedings brought by the same authority that is the prosecuting authority in the Criminal Proceedings.

20. In the alternative, if compulsion was a necessary element of the accusatorial principle, in this case the Defendant was compelled to make the Admissions as he had no real choice but to participate in the Class 4 Proceedings and the decision to participate involved exposing him to a prejudice from which the accusatorial principle provides protection.

21. In addition, the Defendant relies upon the decision in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 as authority for the principle that civil proceedings should be stayed in circumstances where the accused would be required to give evidence in civil proceedings which could prejudice his right to a fair trial in existing or likely forthcoming criminal proceedings. In particular, the Defendant relied upon the passages in Zhao at [35] and [42], which stated:

35   …Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial.

42   The risk of prejudice to the second respondent if a stay is not granted in the forfeiture proceedings and the exclusion proceedings is plain. It is not necessary for the second respondent to say any more than he did on the application for a stay in order to identify that risk, given that the offences and the circumstances relevant to both proceedings are substantially identical.

22. The Defendant accepted that the facts in Zhao differed from the present case as in Zhao criminal proceedings were already on foot when the civil proceedings were commenced. Notwithstanding that factual distinction, the Defendant submits that the principles in Zhao are applicable by analogy as, if the Criminal Proceedings had been commenced (or were likely to be commenced) prior to the Class 4 Proceedings, the Defendant would have been entitled to a stay of the Class 4 Proceedings until the determination of the Criminal Proceedings in order to avoid the potential of his participation in the Class 4 Proceedings prejudicing his defence of the Criminal Proceedings.

23. The Defendant submits that the prejudice of the Class 4 Proceedings in the conduct of the Criminal Proceedings is obvious and needs no further evidence or particularisation. The fact that the Prosecutor now seeks to tender the Admissions in the Criminal Proceedings to assist in the discharge of its duty to prove the charges is an obvious prejudice.

24. If the use of the Admissions is inconsistent with the accusatorial principle, that principle operates to prevent the Prosecutor from possessing or using, in any way, evidence obtained from the accused. Such principle not only precludes the evidence from being admitted, but the Prosecutor must not possess such evidence as the mere possession would arm the prosecution with knowledge of the defence case of the accused: Lee at [46] (citations omitted) where it is held:

46   In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution

Prosecutor’s submissions

25. The Prosecutor noted that the Defendant had in Turnbull (No 3) sought an order precluding the Admissions being adduced as evidence. The Prosecutor summarised the findings of Pain J relating to the admissibility of the Admissions in Turnbull (No 3) at [8] of the Prosecutor’s submissions (which the Defendant agreed was an accurate summary), relevantly, as:

…

(a)   The LEC 4 admissions were made voluntarily: Turnbull No. 3 at [105]

(b)   The defendant did not object to giving evidence leading up to and at the LEC 4 hearing: Turnbull No. 3 at [106]

(c)   The LEC 4 Admissions were not obtained improperly: Turnbull No. 3 at [110]

(d) The prosecutor’s reliance on the LEC 4 Admissions is not unfair in the context of consideration of s 90 of the Evidence Act: Turnbull No. 3 at [113]

(e)   The LEC 4 Admissions are admissible in the proceedings and the weight to be given to them can be determined at trial: Turnbull No. 3 at [113]

26. The Prosecutor submitted that the Notice of Motion was seeking to once again agitate the admissibility of the Admissions, which had been the subject of a preliminary hearing before Pain J in Turnbull (No 3). Accordingly, the Notice of Motion was subject to the provision of s 247G of the CP Act and the Defendant required leave to bring this Notice of Motion and such leave had not been sought. Section 247G (relevantly for the Notice of Motion) provides:

247G   Preliminary hearings

…

(2)   During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings.

(3)   Without limiting subsection (2), the court may take any or all of the following action under that subsection—

…

(e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial or sentencing hearing had commenced,

(f)   hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial,

(g)   give a ruling on any question of law that might arise at the trial or sentencing hearing.

…

(5)   Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding.

(6)   Except with the leave of the court, a party to proceedings may not raise a relevant preliminary hearing matter if a preliminary hearing was held in the proceedings and—

(a)   the matter was not raised at the preliminary hearing, or

(b)   the matter was dealt with at the preliminary hearing.

(7)   A relevant preliminary hearing matter means—

(a)   an objection to an application for an appearance order, or

(b)   a question that was the subject of a ruling or finding under subsection (3)(e).

(8)   Except with the leave of the court, a party to proceedings may not raise a question of law that was the subject of a ruling under subsection (3)(g) if a preliminary hearing was held in the proceedings and the matter was dealt with at the preliminary hearing.

(9)   Leave is not to be granted under subsection (6) or (8) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned.

27. The Prosecutor submitted that, in essence, the Defendant was seeking a ruling as to the admissibility of the Admissions pursuant to s 192A of the Evidence Act 1995 which had already been given in Turnbull (No 3). Section 192A provides:

192A   Advance rulings and findings

Where a question arises in any proceedings, being a question about—

(a)   the admissibility or use of evidence proposed to be adduced, or

(b)   the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c)   the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

28. The Prosecutor submitted that no leave had been sought and that if leave was now sought it should not be granted as the decision made in Turnbull (No 3) was made after lengthy evidence from the Defendant and submissions, being evidence which is not available in this Notice of Motion.

29. The Prosecutor also submitted that the relevant accusatorial principle did not apply in this case as:

1. The Admissions were voluntary admissions made by a person as to the commission of an offence;

2. Evidence of the Admissions was not obtained or disseminated illegally or improperly;

3. The Class 4 Proceedings had a different purpose (i.e. remedial) to the Criminal Proceedings (i.e. punitive) and there is no spectre of double jeopardy; and

4. There is no applicable legislative bar to the subsequent prosecution of Criminal Proceedings for an offence under the NV Act when civil proceedings under that Act have already been instituted and determined.

30. The reliance by the Defendant upon a suggestion that the accusatorial principle is applicable because if the Criminal Proceedings had been commenced first he would have been entitled to a stay of the Class 4 Proceedings is misplaced as:

1. The Criminal Proceedings were not in fact commenced until after the Class 4 Proceedings; and

2. A stay of the Class 4 Proceedings would not have been an automatic entitlement and the Defendant has failed to establish, even if relevant, any basis upon which a stay would have been granted.

31. In this case, the Defendant has failed to establish any relevant compulsion to give the Admissions and as such the accusatorial principle has no application to the present case. This case is analogous to the determination in Holloway v R [2015] NSWCCA 207 at [41] which adopted the statement in Peters & Heffernan v R (1995) 83 A Crim R 142 where it was said:

…right-thinking members of the community would be very surprised if a person who, in sworn evidence at trial, admits having committed a serious crime, were not later prosecuted for that crime.

Defendant’s submissions in reply

32. The Defendant submitted that the application of the accusatorial principle was not a rule of evidence, and therefore, the preliminary hearing in Turnbull (No 3) was not binding nor would leave be required to raise the issue now as the provisions of s 247G of the CP Act does not apply to the present application. If, however, the Court found that leave was required or that it was bound by the findings in Turnbull (No 3) in a way which would preclude the determination of this application, the Defendant now sought leave under s 247G(6) or a finding that the Court was not bound by the decision in Turnbull (No 3) by application of s 247G(5).

33. The decision in Holloway relied upon by the Prosecutor is distinguishable as in Holloway it was at the conclusion of civil proceedings that the subject matter of those proceedings was referred to a prosecuting authority and that authority was different to the applicant in the civil proceedings. Whereas, in the present proceedings, the prosecuting authority was the applicant in the Class 4 Proceedings.

Determination

Are the provisions of s 247G of the CP Act relevant to this application?

34. The accusatorial principle is not a rule of evidence but relates to all aspects of the criminal process (see [15] above, X7 at [104] and Lee at [51]). As such, whilst the consequence of the current application may be that the Admissions are not permitted to be tendered at the hearing of the Criminal Proceedings, the basis for such a finding would not be because the Admissions are not admissible as evidence, but rather that they are not permitted to be used as to do so would be a breach of the fundamental common law protection afforded to the Defendant by application of what has been referred to as the accusatorial principle.

35. The relevant part of the preliminary hearing in Turnbull (No 3) was dealing solely with the admissibility of the Admissions under the provisions of the Evidence Act. The current application is not a matter that has been the subject of a preliminary hearing as defined in s 247G(7), and therefore, does not require leave to be sought or granted to permit the ventilation of the question. Further, the ruling made by her Honour, Pain J, in Turnbull (No 3) being a preliminary ruling on the admissibility of the Admissions under the provisions of the Evidence Act, whilst a ruling which would be binding on the presiding Judge, is not a ruling that traverses the application of the common law protections afforded by the accusatorial principle, and therefore, would not affect the capacity of the present application to be determined in light of the earlier determination of the preliminary hearing in Turnbull (No 3).

36. For those reasons, the Defendant does not require leave to raise the subject matter of this application, nor does the binding nature of the determination in Turnbull (No 3) preclude a determination of this matter, even if the consequence is that the previous ruling made in Turnbull (No 3) is rendered of no utility in the hearing.

The accusatorial principle

37. The accusatorial principle was enunciated by the High Court in X7 at [99] and [160] (recited at [15] above) and at [102] (citations omitted):

102   These features of the accusatorial system of criminal justice can be described as an accused having a “right to silence”. And discussion of the “right to silence” must often proceed in conjunction with a discussion of the privilege against self-incrimination. But, as this Court’s decision in Environment Protection Authority v Caltex Refining Co Pty Ltd shows, the privilege against self-incrimination is distinct from what was there described as “[t]he fundamental principle that the onus of proof beyond reasonable doubt rests on the Crown” and its “companion rule that an accused person cannot be required to testify to the commission of the offence charged”.

38. In Lee the principle was stated in the following terms at [32]-[33] (citations omitted):

32   Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that “no attempt to whittle it down can be entertained” albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

33   The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.

39. The Defendant formulated the accusatorial principle as:

…that the prosecution must prove the guilt of an accused person without the assistance of the accused. (T 7/42-43) and Defendant’s Submissions at [4] and [6].

It is accepted that these words are adopted from the language of the High Court in X7 at [47] and Lee v New South Wales Crime Commission (2013) 251 CLR 196 (Lee (2013)) at [20], [125], [159] and [175]. However, those words are not a complete statement of the accusatorial principle.

40. In X7 the phrase adopted by the Defendant was considered as a part of the broader context expressed at [46]-[47] (citations omitted) that:

46   The abovementioned developments, adopted in Australia, show the interweaving of interrelated rights and immunities into the criminal law, which shaped the accusatorial process of the criminal trial both by way of procedure and in substance. In EPA, consideration was given to the accusatorial nature of a criminal trial and the interrelationship between an accused’s right not to give evidence or answer incriminating questions on the one hand, and on the other, the fundamental principle stated in Woolmington v Director of Public Prosecutions: “that the prosecution must prove the guilt of the prisoner is part of the common law … and no attempt to whittle it down can be entertained.”

47   Whilst in dissent on the main point, but not on this issue, Deane, Dawson and Gaudron JJ explained the interrelationship between the rules that an accused is not obliged to “testify or admit guilt” or “to give evidence in defence of his or her plea of not guilty”, and the fundamental principle that the onus rests on the prosecution:

“[A]n accused person (who is a competent witness only as a matter of fairly recent history) has the right to refrain from giving evidence and to avoid answering incriminating questions.

The latter right is by no means wholly explained by reference to the maxim nemo tenetur seipsum prodere. Rather it is to be explained by the principle, fundamental in our criminal law, that the onus of proving a criminal offence lies upon the prosecution and that in discharging that onus it cannot compel the accused to assist it in any way.”

41. In Lee (2013) the words were used in the contexts at [125], [159] and [175]-[176] as follows (citations omitted):

125   It is undoubtedly within the power of the legislature of New South Wales to alter the common law in relation to answering incriminating questions. Issues similar to those debated on this appeal were recently considered by this Court in X7. A number of considerations bearing on the construction of the examination provisions considered in X7 apply equally to the provisions relevant to an examination under the CAR Act, because the task of construction in each case has to be approached bearing in mind the rights of an accused person which are protected by the common law. For present purposes it is sufficient to refer to as applicable, rather than to repeat, what was said in X7, in the joint reasons for judgment of French CJ and Crennan J, with respect to: the disparate immunities covered by the expression “the right to silence”; the privilege against self-incrimination; the concept and importance of a fair trial; and the development, and characteristics, of the accusatorial process of the criminal trial, notably the principle that the onus of proof rests on the prosecution, whom the accused is not required to assist, and the rule that an accused is not compellable at his or her trial.

…

159   It is also a common law principle that the prosecution cannot compel a person accused of a crime to assist in the discharge of its onus of proof. This is an essential aspect of an accusatorial system and is fundamental to the common law. It lies at the heart of the system of criminal justice administered by the courts.

…

175   In Environment Protection Authority v Caltex Refining Co Pty Ltd, the principle was stated to be that the onus of proof rests upon the Crown and its companion rule expressed to be that an accused person cannot be required to testify to the commission of the offence charged. It is fundamental to the criminal law that the prosecution, in the discharge of its onus, cannot compel the accused to assist it. In Sorby v The Commonwealth, this was described as “a cardinal principle”.

176   I will continue to describe this principle – that the prosecution must discharge the onus of proof and cannot compel the accused to give evidence for it – as “the fundamental principle” of the common law; it is an essential aspect of the criminal trial in our system of criminal justice. In common with the civil trial, the criminal trial is adversarial in nature and it is accusatorial. As X7 holds, it is the fundamental principle and the accusatorial system of criminal justice to which attention must be directed in construing a statute which requires a person charged with an offence to answer questions about the offence. As was said in X7, the question that must be addressed is whether the statute in question clearly intends to alter that system and that principle.

42. In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 (to which the above authorities refer) the words, in context, were used at p 550-551 (per McHugh J) as follows (citations omitted):

However, the most powerful reason for allowing a corporation to claim the privilege is that the privilege against self-incrimination is a natural, although not a necessary, consequence of the adversary system. It is a fundamental rule of the common law that, whatever the charge and wherever it is tried, the onus of proving the guilt of the accused rests upon the Crown and never shifts to the accused. That rule is reinforced by the further rule that an accused person cannot be compelled to give evidence in defence of his or her plea of not guilty. The practical effect of those rules is that the prosecution must prove the guilt of the accused by evidence other than the compulsory answers or assistance of the accused. If, in the course of or for the purpose of judicial proceedings, the prosecution could force the accused to provide evidence which did or could incriminate that person, the adversary system of justice would be seriously undermined. The differences between the adversary system and the inquisitorial system would be theoretical rather than real. If the prosecution could compel the answering of questions in the course of the trial and the answering of interrogatories and the production of documents for the purpose of the trial, the burden of proof on the prosecution would be immeasurably lightened and, in the case of the guilty, frequently discharged. But if these reasons justify the privilege against self-incrimination in the case of a natural person, they also support its application to a corporation.

43. When the phrase adopted by the Defendant as the “accusatorial principle” is placed in the context from which it is derived it is apparent that the phrase does not represent a full statement of the accusatorial principle. That phrase may be a part of it or one of the consequences of the application of the principle but it is insufficient to be representative of the totality of that principle.

44. When considered in the context outlined above it is apparent that the assistance of the accused to which the principle applies is assistance that is obtained from the accused by compulsion. This is a logical constraint on the application of the principle as, whilst an accused is afforded certain protections, there is no obligation to ensure that an accused takes the advantage of such protections.

45. The accusatorial principle is not so broad that it prohibits all acts of participation by the accused. The right to silence is one that is afforded to the accused but not one that an accused is required to adhere to. Whilst a Prosecutor cannot compel an accused to participate in the investigation of a crime or to testify at the trial, an accused may do both of these things without offending that fundamental principle. Further, whilst the Prosecutor must bear the burden of proving the case to the relevant standard, and it must do so without the benefit of assistance from the accused, where the accused does assist (other than by compulsion), the utilisation by the Prosecutor of the material derived from that assistance does not offend the accusatorial principle.

46. The principle seeks to prevent the Prosecutor from compelling assistance in the investigation stage and/or trial stage of the criminal process. The essential element of the principle is the protection against the accused being compelled to participate in the investigation or proof of the criminal charge. Absent an element of compulsion there is no inherent unfairness that the principle is intended to operate upon to protect the rights of the accused. It is the compelling of participation that falls foul of the principle not the use by the Prosecutor of any and all participation by the accused, obtained by means other than compulsion.

47. For the same reasons, it matters not that the Admissions were made in Court proceedings where the same prosecuting authority was a party. The accusatorial principle will not apply to preclude use of the Admissions unless there was some compulsion brought to bear by the prosecuting authority that elicited the Admissions.

48. The reduction of the accusatorial principle to the phrase as adopted by the Defendant is too simplistic and too narrow in its terms to fully encompass that which comprises the accusatorial principle. Accordingly, the Defendant’s submission that there is no requirement for the Admissions to have been compelled in order for the accusatorial principle to apply must be rejected. It is an essential element of the accusatorial principle that the Defendant has been compelled to participate in the investigation of, or the proving of, the charges against him.

Were the Admissions made under compulsion?

49. Compulsion can take many guises and the most obvious is requiring an accused to answer questions that may tend to incriminate the accused and the failure to provide such answers can lead to the accused being at jeopardy of further sanction. Under the NV Act the power to compel the giving of relevant information is conferred by s 36. In this case, the Admissions were not made pursuant to that power and there was no compulsion of this type relied upon to justify the temporary stay.

50. It is submitted that the relevant compulsion required by the accusatorial principle is present where an accused is faced with what has become known as the “invidious choice”. That is, where criminal proceedings are pending or likely, and civil proceedings are commenced, an accused should not be faced with the choice as to whether to participate in the civil proceedings and disclose a defence or give evidence that may assist in any later criminal proceedings.

51. This concept of the invidious choice was considered in Zhao. The principles to be derived from Zhao dealing with this concept are:

1. Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required: Zhao at [35];

2. To warrant a stay of the civil proceedings the person must demonstrate that the person is at risk of prejudice in the conduct of their defence in the criminal trial: Zhao at [35];

3. The detail of the evidence of prejudice in support of an application for a stay need not be at a level of detail that would itself prejudice the conduct of the defence: Zhao at [43]; and

4. The determination of whether a stay should be granted will require a determination of the interests of justice in each particular case: Zhao [47].

52. In this case, the Defendant is not and was not in fact faced with this choice as the Class 4 Proceedings had been concluded prior to the Criminal Proceedings being commenced. Therefore, there was, as a matter of fact, no invidious choice with which the Defendant was faced.

53. The Defendant’s case relies upon the Court assuming that something other than the reality of the facts occurred. The Defendant relies upon the hypothesis that, if the facts were different, the Court would have ordered a stay of the Class 4 Proceedings. The Defendant sought to extend this notion to the invidious choice to the Defendant’s circumstances. The different facts required to be assumed are that:

1. At the time of the Class 4 Proceedings were commenced the Criminal Proceedings were pending or likely;

2. The Defendant, prior to the hearing of either of the matters, had made an application to stay the Class 4 Proceedings; and

3. The Class 4 Proceedings were stayed.

Inherent in this hypothesis is that if Class 4 Proceedings had been stayed he would not have made the Admissions.

54. Even if assuming that the factors the Defendant relies upon were the case the Defendant must still be faced with the actual “invidious choice”, not merely a possibility of such choice being faced: Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 at [36]-[38]. There has been no evidence adduced or submission put that would permit such a finding to be made in this case.

55. In Zhao the applicant for the stay was the wife of Xing Jin. She had not been charged with any offence but was the registered proprietor of the family home. Her husband had been charged with aiding and abetting another to deal with money or property that were the proceeds of crime. On the same day an order was made restraining the husband from disposing of items of his property which included the family home. A further application was made that the restrained property be forfeited. In Zhao evidence was given by the husband that in order to defend the civil forfeiture proceedings the husband would have to give evidence relating to the source of funds, the acquisition of property and bank account details all of which were matters directly relevant to the criminal charges. He also deposed that he did not wish to waive his right to silence. The decision in Zhao turned, in large part, upon this evidence and upon the prejudice that was identified through this evidence: Zhao at [42]. It was held that the interests of justice would not be served by requiring the husband to defend the forfeiture proceedings before the criminal proceedings were finalised.

54. In this case, the Defendant has not put on any evidence of prejudice. The prejudice that is asserted is that the Class 4 Proceedings and the Criminal Proceedings rely upon circumstances relevant to both proceedings. It is contended that the prejudice is obvious in the circumstances as the Defendant made the Admissions in the Class 4 Proceedings and those Admissions are now sought to be used against him in the Criminal Proceedings to prove the Prosecutor’s case. However, as made plain in Zhao, merely because the Class 4 Proceedings relate to the same subject matter as the Criminal Proceedings would not, of itself, justify a stay. It would have been necessary for the Defendant to identify, in a broad sense, how participating in the Class 4 Proceedings would prejudice his defence in the Criminal Proceedings. He has not done so.

55. It is not sufficient to suggest that if the Class 4 Proceedings had been stayed the Admissions would not have been made, and therefore, could not now be used against the Defendant to his advantage. Such submission assumes that it was inevitable that the Class 4 Proceedings would have been stayed, without providing any real foundation to support that assumption.

56. The Defendant formulated his case on the basis that a stay was inevitable as, to defend the civil proceedings, he would have to give evidence that could be used against him in any future criminal proceedings. This submission, however, fails to give force to the requirement as identified in Zhao that the prejudice must be more than mere concurrent proceedings; the prejudice must be real in that to defend the civil proceedings he must (or be likely to) necessarily compromise the criminal proceedings.

57. The gravamen of the concept of the invidious choice is an inability to fully participate in the Class 4 Proceedings without risking a prejudice to the defence of the Criminal Proceedings. It is not sufficient to merely point to the fact that the Admissions were made in the Class 4 Proceedings and that the Admissions will now assist the Prosecutor in the Criminal Proceedings. In this case, the fact is that the Defendant did make the Admissions in the Class 4 Proceedings but there is no evidence or submission made to suggest that the Admissions were necessary to the defence of the civil proceedings, as was the case in Zhao.

58. There is no suggestion that a proper defence of the Class 4 Proceedings necessarily involved the giving of evidence by the Defendant at all or that the Admissions in the Points of Defence were necessary in order to fully participate in the Class 4 Proceedings. Nor was it suggested that, absent the making of the Admissions, the Defendant could not have participated in the defence of the Class 4 Proceedings to the fullest extent such proceedings warranted, or would have been handicapped in the capacity to defend those proceedings.

59. In the absence of identifying the need or likely need to make the Admissions in the proper and full defence of the Class 4 Proceedings there is no identification of the relevant compulsion inherent in the “invidious choice”.

60. Absent identification of an actual prejudice that was faced due to civil proceedings having been commenced against a person and criminal proceedings being likely or pending, even if the assumptions that the Defendant requires the Court to be made are made, there is no basis on which to find that the Defendant was faced with a choice that would have justified the granting of a stay in the Class 4 Proceedings pending the outcome of the Criminal Proceedings. Contrary to the Defendant’s submission the conclusion is not obvious.

61. In this case, there was no actual compulsion exercised by the Prosecutor to elicit the Admissions. The Admissions were not elicited at a time when the Defendant was also faced with criminal proceedings which would have been prejudiced by the civil proceedings commencing before the conclusion of the Criminal Proceedings. Even if available to invoke the necessary compulsion, the suggestion by the Defendant that he would have inevitably been entitled to a stay of the Class 4 Proceedings has not been established on the facts of this case. The Admissions were made and are now potentially prejudicial to the defence of the Criminal Proceedings, however, the Defendant has failed to establish that the making of the Admissions were a necessary consequence of a proper defence of the Class 4 Proceedings. Accordingly, the Defendant has failed to establish the Admissions were made by compulsion, and therefore, there is no work for the accusatorial principle to do in respect of the Admissions.

Conclusion and orders

64. For the reasons outlined above, in order for the accusatorial principle to apply to preclude the Prosecutor from having and using the Admissions in the Criminal Proceedings, the Defendant must establish that he was compelled to give the Admissions. The Defendant has failed to establish that the Admissions were made under compulsion. Accordingly, the accusatorial principle does not prevent the Prosecutor from using or tendering the Admissions in the Criminal Proceedings.

65. The Court orders:

1. The Notice of Motion is dismissed;

2. The exhibits are returned; and

3. The matter is listed before the List Judge for mention and if appropriate the fixing of a date for hearing on Friday, 25 September 2020.

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Decision last updated: 28 August 2020