KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
COMMONWEALTH OF AUSTRALIA APPELLANT
AND
HELICOPTER RESOURCES PTY LTD & ORS RESPONDENTS
Commonwealth of Australia v Helicopter Resources Pty Ltd
[2020] HCA 16
Date of Hearing: 10 October 2019 & 5 February 2020 Date of Judgment: 24 April 2020
S217/2019
ORDER
1.The first respondent's application for leave to file a notice of contention is refused.
2.Appeal allowed.
3.Set aside orders 1 and 2(a) of the orders of the Full Court of the Federal Court of Australia made on 15 February 2019 and, in their place, order that the appeal to the Full Court be dismissed.
4.The appellant pay the first respondent's reasonable costs on a solicitor/client basis.
On appeal from the Federal Court of Australia
Representation
S P Donaghue QC, Solicitor-General of the Commonwealth, with T M Begbie and J D Watson for the appellant (instructed by Australian Government Solicitor)
J T Gleeson SC with T J Brennan and K I H Lindeman for the first respondent (instructed by Norton White)
Submitting appearances for the second and third respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Commonwealth of Australia v Helicopter Resources Pty Ltd
Criminal practice – Accusatorial system of criminal justice – Companion rule – Where subpoena issued for employee to attend to give evidence at coronial inquest into manner and cause of another employee's death – Where employer and Commonwealth of Australia prosecuted for alleged failures to comply with duty to ensure worker health and safety – Where s 87(1)(b) of Evidence Act 2011 (ACT) relevantly entailed that representation by employee of party relating to matter within scope of employment taken as admission by that party – Whether invocation of investigative power to compel employee to give evidence about matter with respect to which employer stands charged amounts to compelling employer to give evidence contrary to rule that accused not required to assist Crown in proving its case.
High Court – Appellate jurisdiction – Practice – Extension of time – Where first respondent sought leave to file notice of contention out of time alleging that compulsion of its employee to give evidence at coronial inquest would constitute contempt of court in parallel criminal proceedings by creating real risk of interference with justice according to law – Where criminal proceedings concluded and first respondent acquitted of offences – Whether extension of time should be granted to resolve question of whether compulsory examination of potential witness other than accused can amount to contempt of court.
Words and phrases – "accusatorial system of criminal justice", "admissions made with authority", "attribution", "companion rule", "compulsory investigative powers", "compulsory pre-trial examination", "contempt of court", "coronial inquest", "extension of time", "hypothetical circumstances", "practical reality", "real risk of improper interference with criminal proceedings".
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16
Case
[2020] HCA 16
Decision Date
CaseChat Overview and Summary
The High Court considered an appeal by the Commonwealth of Australia against Helicopter Resources Pty Ltd concerning the interplay between coronial inquests and criminal proceedings. The dispute arose when Helicopter Resources and the Commonwealth were prosecuted for alleged failures to ensure worker health and safety following the death of an employee, Captain David Wood, during a coronial inquest into his death. A key issue was whether compelling an employee of Helicopter Resources to give evidence at the inquest, particularly when the employer faced criminal charges related to the death, would contravene the principle that an accused is not required to assist the prosecution in proving its case.
The legal issues before the High Court included whether the invocation of investigative powers to compel an employee to give evidence about a matter for which their employer is criminally charged amounts to compelling the employer to give evidence, thereby violating the rule against self-incrimination. Additionally, the Court considered an application by Helicopter Resources for an extension of time to file a notice of contention, which alleged that compelling its employee to give evidence at the inquest would constitute contempt of court by creating a real risk of interference with the parallel criminal proceedings.
The Court reasoned that section 87(1)(b) of the Evidence Act 2011 (ACT) permits the admission of a representation made by an employee if it relates to a matter within the scope of their employment, and this provision does not compel an employer to give evidence against itself. The Court found that compelling a third-party witness, such as an employee, to give evidence at an inquest does not equate to compelling the employer to provide evidence. Furthermore, the Court determined that whether the compulsory examination of a potential witness other than an accused amounts to contempt of court is a question of fact and degree dependent on the specific circumstances, making it inappropriate to speculate on hypothetical scenarios.
Consequently, the High Court refused Helicopter Resources' application for leave to file a notice of contention out of time. The appeal by the Commonwealth was allowed, and the orders of the Full Court of the Federal Court of Australia were set aside and replaced with an order dismissing the appeal to the Full Court. The Commonwealth was ordered to pay Helicopter Resources' reasonable costs on a solicitor/client basis.
Orders
Orders of the court
1. The first respondent's application for leave to file a notice of contention is refused.
2. Appeal allowed.
3. Set aside orders 1 and 2(a) of the orders of the Full Court of the Federal Court of Australia made on 15 February 2019 and, in their place, order that the appeal to the Full Court be dismissed.
4. The appellant pay the first respondent's reasonable costs on a solicitor/client basis.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The principal question is whether the provision has the effect that invocation of an investigative power to compel an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence amounts to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case. For the reasons which follow, it does not. Thus, it is unnecessary to address the appellant's other appeal grounds.Section 87(1)(b) of the Evidence Act Section 87 of the Evidence Act provides as follows:"Admissions made with authority(1)For the purpose of deciding whether a previous representation made by a person is also taken to be an admission by a party, the court must admit the representation if it is reasonably open to find that –(a)when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter in relation to which the representation was made; or(b)when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or(c)the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or 1 or more people including the party.(2)For this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove –(a)that the person had authority to make statements on behalf of someone else in relation to a matter; or(b)that the person was an employee of someone else or had authority otherwise to act for someone else; or(c)the scope of the person's employment or authority." (emphasis added)The facts The appellant ("the Commonwealth") engaged the first respondent ("Helicopter Resources") to provide helicopter services to the Commonwealth in connection with Commonwealth operations in the Australian Antarctic Territory. On 11 January 2016, Captain David Wood, a pilot employed by Helicopter Resources to provide some of those services, landed his helicopter at a point on the West Ice Shelf where, unbeknownst to him, a crevasse lay hidden by snow. After undertaking work on the ground, Captain Wood fell into the crevasse while attempting to reboard the helicopter and remained there for some hours. He died the following day from hypothermia. By virtue of s 6 of the Australian Antarctic Territory Act 1954 (Cth), applicable laws of the Australian Capital Territory including the Coroners Act 1997 (ACT) apply in the Australian Antarctic Territory. Pursuant to the Coroners Act, on 19 September 2017 the Chief Coroner of the Australian Capital Territory commenced an inquest into the manner and cause of Captain Wood's death. The evidence before the Coroner included a statement by Helicopter Resources' Chief Pilot, Captain David Lomas, that was prepared for the purpose of the inquest.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
EDELMAN J
Moreover, whether an exercise of compulsory investigative powers creates a real risk of improper interference with criminal proceedings, and thus amounts to a contempt of court, turns on questions of fact and degree dependent on all the circumstances of the case[34]. In the result, any determination of whether the subpoena issued to Captain Lomas amounted to a contempt of the criminal proceedings in this case would be unlikely to provide any meaningful guidance for the determination of the issue in another, different case. Possibly, it might assist in resolving the fundamental question of whether the compulsory examination of a potential witness other than an accused can ever amount to a contempt of court. But it would be more likely to generate a perception of certainty that would not be warranted. It cannot be foretold what circumstances might arise in other proceedings, and it would be inappropriate for this Court to conjecture as to hypothetical circumstances in which contempt might be established by the compulsory examination of a third party[35].[34]See, eg, Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 73-75 per Sholl J; Brambles Holdings Ltd v Trade Practices Commission (1980) 32 ALR 328; BLF (1982) 152 CLR 25 at 54 per Gibbs CJ; Hammond (1982) 152 CLR 188 at 198 per Gibbs CJ; Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 467-468 per Gibbs CJ; Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 275 [206]-[207] per Kiefel J.[35]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356-357 [48] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; cf Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135 at 154-155 [33]‑[34] per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.Conclusion For these reasons, leave to file the notice of contention should be refused, and the appeal should be allowed. Orders 1 and 2(a) of the Full Court should be set aside, and, in their place, it should be ordered that the appeal to the Full Court be dismissed. In accordance with the conditions on the grant of special leave, the Commonwealth shall pay Helicopter Resources' reasonable costs on a solicitor/client basis. Introduction: a moot question of law Captain Wood was a pilot employed by Helicopter Resources Pty Ltd. He had unknowingly landed a helicopter on a hidden crevasse of ice in the Australian Antarctic Territory. He later fell into the crevasse when attempting to board the helicopter and subsequently died of hypothermia. The laws of the Australian Capital Territory apply in the Australian Antarctic Territory[36].[36]Australian Antarctic Territory Act 1954 (Cth), s 6(1). A coronial inquest into Captain Wood's death was held by the Chief Coroner of the Australian Capital Territory. The bulk of the evidence in the inquest was taken between 19 September 2017 and 11 October 2017. On 20 December 2017, whilst the inquest was in progress but nearing its end, Helicopter Resources and the Commonwealth of Australia were charged by information and summons in the Magistrates Court of the Australian Capital Territory with three offences against s 32 of the Work Health and Safety Act 2011 (Cth)[37]. The third charge arose from the circumstances of Captain Wood's death. The Chief Coroner invited the parties to the inquest to make any applications in respect of the progress of the inquest in light of the laying of those charges. By that time, only one, or possibly two, witnesses remained to be examined in the inquest. A remaining witness was Captain Lomas, the Chief Pilot of Helicopter Resources with control over all flight crew training and operational matters affecting the safety of the flying operations.[37]Applicable in the Australian Antarctic Territory: see Work Health and Safety Act 2011 (Cth), s 11.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ,
EDELMAN J