Director-General, NSW Department of Industry and Investment v Mato Investments Pty Ltd (No 3)
[2011] NSWLEC 37
•16 March 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Director-General, NSW Department of Industry & Investment v Mato Investments Pty Ltd & Ors (No 3) [2011] NSWLEC 37 Hearing dates: 14 - 15 March 2011 Decision date: 16 March 2011 Jurisdiction: Class 5 Before: Pain J Decision: The Defendants' objections to the record of interview of Mr Bennett dated 12 November 2007 are not sustained and the record of interview in whole or part is not struck out.
Catchwords: Procedure - whether record of interview should be struck out in whole or part Legislation Cited: Evidence Act 1995, s 90, s 137, s 138
Fisheries Management Act 1994Cases Cited: Em v R [2007] HCA 46; (2007) 232 CLR 67
R v Em [2003] NSWCCA 374
R v Plevac (1995) 84 A Crim R 570
R v SJRC [2007] NSWCCA 142
R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159Texts Cited: Stephen Odgers, Uniform Evidence Law, 9th ed (2010) Lawbook Co Category: Procedural and other rulings Parties: Director-General, NSW Department of Industry & Investment (Prosecutor)
Mato Investments Pty Ltd (First Defendant)
Ian Charles Bennett (Second Defendant)
Dzeladin Ceman (Third Defendant)
James Lawrence Coomes (Fourth Defendant)Representation: Mr I Lloyd QC with Mr T Howard (Prosecutor)
Mr J Webster SC with Ms M McMahon (First and Third Defendants)
Ms A Pearman (Second Defendant)
Mr C Ireland (Fourth Defendant)
Crown Solicitor's Office (Prosecutor)
Neville & Hourn Legal (First, Second and Third Defendants)
Moray & Agnew (Fourth Defendant)
File Number(s): 50052 to 50067 of 2009
Judgment
On this voir dire the Defendants Mato Investments Pty Ltd (Mato) and Mr Ian Charles Bennett seek to have the Record of Interview (ROI) of Mr Bennett conducted by Fisheries Officer Mr David James Potter on 12 November 2007 at the Fisheries Department office at Albury struck out in its entirety under s 90, s 137 and s 138 of the Evidence Act 1995. The Defendants are charged with numerous offences under the Fisheries Management Act 1994 relating to clearing of snags and woody debris from specified water courses, inter alia. Mato has development consent for an eco-tourist resort on a property known as Kunanadgee near Corowa.
Sections 90, 137 and 138 of the Evidence Act are relied on by the Defendants and state as follows:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The dictionary to the Evidence Act contains a definition of admission as follows:
admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person's interest in the outcome of the proceeding.
The Defendants referred to R v Plevac (1995) 84 A Crim R 570 at 579-581 which states as follows:
1. Police may, in the course of investigation, interrogate a suspect who is willing to answer their questions, and that interrogation may include putting to the suspect the facts as the police know, or believe, or suspect them to be, in order to ascertain what, if anything, the suspect will say about them: Grills (1910) 11 CLR 400; O'Neill (1987-88) 48 SASR 51 at 56.
2. Such questioning must be fair and must not amount to "intimidation, persistent importunity or sustained or undue insistence or pressure": McDermott (1948) 76 CLR 501 at 511; Lee (1950) 82 CLR 133 at 144; Van der Meer (1988) 35 A Crim R 232 at 258-259, but questioning is not to be regarded as unfair merely because it is persistent: Taylor (unreported, Court of Criminal Appeal, NSW, 18 April 1995).
3. Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions: Ireland (1970) 126 CLR 321 at 331-332; although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible.
4. The answers given by the suspect are admissible in evidence (and hence, so are the questions) if they are relevant; but not otherwise: Grills at 413, 419; Taylor at p 9.
5. An answer (and the question to which it is given) is relevant if it is an admission, or is capable of being regarded as an admission, of guilt or of a fact relevant to the proof of guilt: Astill (unreported, Court of Criminal Appeal, NSW, 17 July 1992) at pp 8-13.
6. If an answer is not unequivocally an admission but is capable of being regarded as such, it is a question for the jury whether it is such. Subject to the exercise of the judge's discretion, the question and answer are admissible but it is necessary that the jury be clearly and fully directed that it is a question for them as to whether the answer does or does not amount to a relevant admission: Astill at pp 11-15.
7. An answer which is not capable of being regarded as an admission is on the face of it irrelevant and therefore inadmissible: Grills at 413; Taylor at p 9.
8. However, answers of that sort may yet be admissible if they form part of an interrogation in the course of which some answers do amount to admissions or are capable of being so regarded, where the question and answers which do not themselves contain admissions are relevant to set the other questions and answers in context, and/or to show that there was no impropriety on the part of the police in the conduct of their interrogation: Taylor at pp 9-10; Barca (1975) 133 CLR 82 at 107; Grills at 418-419; Towers (unreported, Court of Criminal Appeal, 7 June 1993) at pp 10-11.
9. In such circumstances, the trial judge must always carefully consider whether questions and answers which are not capable of amounting to relevant admissions should be excluded because they are prejudicial: Grills at 419-420; Ireland at 332; Taylor ; Astill .
10. Where the questions and answers under consideration, although having in themselves no probative value but forming part of an interview and prima facie admissible as part of the context of that interview, do no more than place before the jury, in a hearsay form, assertions of fact which have already been established by other evidence or which clearly will be established by other evidence intended to be led by the Crown, their prejudicial effect will be minimal and would not ordinarily justify their exclusion: Taylor at 10.
11. Where, however, a question is asked, which contains a hearsay assertion of matter which the Crown is not in a position to prove, or which is inadmissible in evidence, and where the answer is not capable of amounting to an admission of the matter asserted by the questioner, there may be, depending on the nature of the matter stated and its relevance to the issues in the trial, very great prejudice, which may lead to the exclusion of the evidence, even if that means (because, in the context, the inadmissible material is inextricably interwoven with the admissible) that the Crown is deprived of some probative and admissible evidence: Ireland at 332; Grills at 419; but cf. Harriman at pp 603-604; 231.
The matters which arise of unfairness to an accused under s 90 and unfair prejudice in s 137 are generally similar and a finding that one section applies is likely to mean the other section applies. The matters arising for consideration under s 138 are different because that section refers to evidence that has been improperly obtained. The authorities referred to by the parties of R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159 and R v Em [2003] NSWCCA 374 identify the further public policy considerations that apply under s 138 in relation to the importance of upholding public confidence in the administration of justice.
Mr Bennett attended the interview on the basis that he was authorised to speak on behalf of Mato as a director duly authorised to do so (see par 39 to 46 of the ROI). He was also interviewed in his personal capacity as a director of Mato.
Defendants' submissions
Mato and Mr Bennett are separately represented. The submissions by Mato's counsel in relation to the global objections to the ROI were largely adopted by Mr Bennett's counsel.
The first global objection made to the entire ROI is that Mr James Lawrence Coomes, a potential defendant, attended the interview with Mr Bennett and was present throughout. He is described at the outset of the interview as a friend of Mr Bennett. He is identified by Mr Bennett as being the project manager appointed by Mato in the course of the interview and his role was discussed (ROI at par 167 - 174). Mr Bennett was asked questions which concerned Mr Coomes' role as project manager.
Mr Coomes was a potential defendant at the time of the interview and was present throughout. At the meeting on 25 October 2007 at Kunanadgee where Mr Potter met Mr Bennett and others, Mr Coomes was identified as the project manager who was sick. Notes of persons with possible involvement including Mr Coomes identified as the project manager who was sick are in MFI 2 and notes of the meeting identifying Mr Coomes as the project manager are in MFI 4. That Mr Coomes was the project manager was known to Mr Potter at the time of the interview on 12 November 2007.
The Court should infer that the presence of Mr Coomes impinged on Mr Bennett's ability to speak freely. The Court needs to consider whether it is likely that had Mr Coomes not been present, Mr Bennett would have said something different and that there was the possibility of a different answer or answers to the questions posed. The Court cannot be satisfied that the answer given would be the same if Mr Coomes had not been there. These circumstances were unfair and unfairly prejudicial to Mato and to Mr Bennett personally. These circumstances also suggest the evidence was obtained improperly.
The second global objection made to the whole ROI was that the reference by Mr Bennett on numerous occasions to "we" is misleading and ambiguous given the presence of Mr Coomes which means that it is unclear whether "we" refers to Mato and Mr Bennett and/or Mr Coomes.
Brennan CJ in Swaffield at [22] - [24] identifies the relevant common law principles to consider in relation to improperly obtained evidence which require the Court to balance public policy considerations concerning the administration of justice with principles of fairness. These common law principles were held to apply in relation to s 138 of the Evidence Act in Em .
Public policy considerations in the proper administration of justice must be protected and conducting an ROI where Mr Bennett was representing both a corporate defendant and himself personally when a potential defendant was present was improper and unfair. This procedure was highly irregular.
Alternatively, Mato's counsel submits that large parts of the ROI should be struck out under the principles in Plevac at 579 - 581, particularly principles 2, 6, 7, 9 and 11. Many of the questions about the meeting on site on 25 October 2007 (including questions at par 105, 108, 131, 132, 139 and 140) are hearsay assertions made to Mr Bennett of what was said on that occasion and should not be allowed, relying on principle 11 in Plevac and s 59 of the Evidence Act. The questioning at par 149 - 169 is persistent and applies undue pressure to Mr Bennett in breach of principle 2 in Plevac . Questions at par 187 - 188 breach principle 11 as there is a hearsay assertion and no admission of what was put. Questions at par 279 - 280 do not satisfy principle 6 as no admission is being made. Questions at par 287 - 288 do not satisfy principle 7 as the answer given is not capable of being regarded as an admission and is therefore irrelevant. Generally the admissions sought are hearsay and cannot be relied upon: s 59 Evidence Act.
Prosecutor's submissions
The principles in Plevac are embraced and apply so that none of the ROI should be struck out. The ROI must be considered in its entirety and at the outset clearly identifies who is attending, for what reason, that Mr Bennett was attending for himself personally and on behalf of Mato, whether he wishes to communicate with a friend or wishes to have a lawyer present and he is properly cautioned. At the end he has the opportunity to make a further statement and agrees that there has been no coercion or inducement in providing his answers. The interview lasted for one hour and fifty minutes. His responses at par 43 - 44 of the ROI of how he was authorised by the company to appear show that he gave thought to attending the interview. The ROI was conducted in accordance with principle 1 in Plevac . The conduct of the ROI was orthodox, including putting formally to the interviewee what he said on an earlier occasion, 25 October 2007. The whole context of the interview suggests no unfairness or impropriety.
In relation to the global objections made, that answers are provided in terms of "we" is clearly a reference to the fact that Mr Bennet is answering on behalf of himself and Mato. No inference arises from the interview that Mr Coomes is included in "we". In any event, ambiguity alone is not a reason that evidence of an admission is not admissible.
In relation to the attendance of Mr Coomes, it can be inferred that he attended at the request of Mr Bennett. The unusual situation was brought about by Mr Bennett. Mr Coomes is described as a friend at the outset of the interview. He is identified in the course of the interview as the project manager. Mr Bennett's ROI was the first conducted by law enforcement officers from the prosecuting department. Later knowledge which lead to Mr Coomes being charged as another defendant cannot be imputed to Mr Potter at the time of this interview. While his presence was unusual and possibly undesirable, given these circumstances and the fair manner in which the interview was conducted there can be no suggestion of impropriety on the part of the investigating officers as a result of his attendance. Nor was there any unfair prejudice or unfairness. The principles in Swaffield which are relevant to s 138 do not apply as there is no impropriety. There is no reason to constrain law enforcement practices here.
In relation to the objections made to parts of the ROI based on the principles in Plevac , principles 5 and 6 apply to much of the ROI as the answers to questions are admissions or are capable of being regarded as an admission. The word "admission" has a wide definition as found in the dictionary to the Evidence Act. Principles 7 and 8 should be read together as principle 8 recognises the necessity for questions which set the scene. Principle 9 has less relevance here where there is no jury. It is premature to rely on principle 11 in relation to matters which the Crown cannot prove as the affidavit of Mr Potter is yet to be read. There is no prohibition on putting hearsay assertions where the answer is capable of amounting to an admission, see questions at par 105, 106 and 107. All of the questions in the interview were relevant to the issue of whether snags in the river or woody debris had been removed, how and by whom and were clearly relevant to the charges in the summons. The hearsay rule does not apply to admissions: s 81 Evidence Act.
The Defendants bear the onus of proof on the balance of probabilities and have not met that onus of establishing that Mr Potter had any suspicion that Mr Coomes was a possible defendant at the time of the ROI.
Finding
I note that the wording of s 90 suggests ("the court may"), and the authorities in Stephen Odgers, Uniform Evidence Law , 9th ed (2010) Lawbook Co at [1.3.5760] confirm, that the Court has a broad discretion under s 90 as to whether evidence should be admitted or refused. Section 137 contains mandatory language ("the court must") and the authorities discussed at [1.3.14740] of Odgers suggest that the Court must exclude evidence if its probative value is outweighed by the alleged danger to a defendant. At 745 of Odgers R v SJRC [2007] NSWCCA 142 is referred to as holding that the power in s 137 is not appropriate to be used simply because the evidence is "ambiguous".
Considering firstly the global objections of the Defendants to the ROI, the onus of establishing on the balance of probabilities unfairness and unfair prejudice in relation to s 90 and s 137 falls on the Defendants. The Defendants' objections to the ROI in relation to Mr Coomes being present throughout are being determined before any evidence of the Prosecutor or the Defendants, if any, is read. The Court has before it the ROI, MFI 2 being a note of Mr Potter made at a meeting on site on 25 October 2007 referred to in the ROI, and notes of what occurred at that meeting in MFI 4. The Defendants' submissions of unfairness and unfair prejudice were based in part on the Court being asked to infer certain matters from the ROI because it was known that Mr Coomes was the project manager at the meeting on 25 October 2007. He is identified in MFI 2 as being sick on that day. Particulars in relation to the allegation that Mr Coomes was a project manager for Mato were relied on by the Defendants (MFI 3) because the Prosecutor relied at (xxii)(c) on his presence at the ROI with Mr Bennett where Mr Coomes did not demur when he was so described. That does not advance the Defendants' case as that fact alone does not demonstrate unfairness or unfair prejudice.
The submission was made that I should infer that Mr Bennett may have answered as he did because, firstly, Mr Coomes was present and secondly, he had been sick possibly during the period of the offences. It was also put that the inference should be drawn that there was the possibility that Mr Bennett might have given different answers if Mr Coomes had not been present. The material in the ROI and MFIs 2, 3 and 4 provide no assistance to the Defendants in establishing any relevant evidence to support such inferences.
I agree with the Prosecutor that the presence of Mr Coomes was unusual and probably also undesirable. All of the circumstances of the ROI should be considered as identified in the Prosecutor's submissions outlined above in par 15 above. Given that Mr Coomes attended voluntarily, I infer at the request of Mr Bennett, there is no word from Mr Coomes during the ROI, he played no role whatsoever and none of Mr Bennett's responses suggest that he was in any way affected in the giving of his answers by the presence of Mr Coomes so that no unfairness or unfair prejudice arises. That Mr Coomes later became a defendant cannot be knowledge imputed to Mr Potter at the time of this interview on 12 November 2007, the first ROI held after the on-site meeting on 25 October 2007. Mr Coomes was not interviewed until 12 December 2007. There is no basis for suggesting that there was any unfairness or unfair prejudice to Mr Bennett in these circumstances.
The second basis for the global objection was that "we" used on numerous occasions by Mr Bennett in his responses to the questions in the ROI was ambiguous because it was not clear if this was a reference to Mato, Mr Bennett and/or Mr Coomes. I do not agree that any ambiguity arises when the questions the subject of the criticism are considered. These refer to Mato and to Mr Bennett personally on numerous occasions. When considered in the context of the question posed there can be no suggestion that Mr Bennett's answers were intended to include Mr Coomes when he refers to "we".
No authority has been provided by the Defendants of any similar circumstance and it was submitted that none were found suggesting that having two possible defendants at a ROI was not usual practice. That may well be the case and the practice is probably not desirable but whether the particular circumstances resulted in unfairness or unfair prejudice must be considered. The mere fact of the presence of Mr Coomes does not alone result in that finding. The Defendants have not discharged the onus upon them of establishing unfairness or undue pressure in relation to the global objections to the ROI.
In relation to s 138 the threshold issue arises of whether the evidence sought to be relied on was improperly obtained. The circumstances referred to in s 138(2) do not arise here. The Defendants bear the onus on the balance of probabilities of establishing that the evidence was improperly obtained. The submission made was that the presence at the ROI of Mr Coomes, who is later identified by the Prosecutor as a defendant, was improper. That he was known to Mr Potter as the project manager before the ROI on 12 November 2007 is said to compound the problem. The public policy question is whether a suspect should be asked questions about a criminal matter in front of another person of interest. For the reasons given above at par 23 in relation to s 90 and s 137, the presence of Mr Coomes alone does not suggest impropriety in the conduct of the ROI. Section 138 does not therefore apply.
The circumstances of this case are far removed from cases such as Swaffield and Em which were concerned with police entrapment of defendants and whether evidence improperly obtained could be relied upon. (I note for completeness that Em was appealed to the High Court Em v R [2007] HCA 46 ; ( 2007) 232 CLR 67 but the consideration of these principles was not overturned). The public policy principle identified in those cases concerning the importance of upholding the administration of justice as a factor to consider regardless of whether there is unfairness to a particular defendant arose in far more serious circumstances in those cases.
Turning to the submissions of Mato's counsel that parts of the ROI should be struck out, the criticisms of questions at par 149 - 169 on the basis that these were persistent, sustained or amounted to undue pressure (principle 2 in Plevac ) simply cannot be maintained when the questions and answers are considered. The questioning appears entirely orthodox and relevant to the issues the subject of the charges. The overall circumstances of the ROI were referred to by the Prosecutor (par 15 above) including the duration of the interview about which there is nothing unusual, and in light of this criticism has no basis.
In relation to the criticism of a number of questions (at par 105, 108, 131, 132, 139 and 140) concerning assertions made to Mr Bennett of what he said on 25 October 2007 on the basis that these were hearsay, s 81 specifically provides that the hearsay rule does not apply to admissions. Principles 5, 6, 7 and 8 in Plevac apply to support the form of the questions posed. The definition of admission in the Evidence Act is broad and many of the answers criticised by the Defendants can be characterised as admissions within that description. This criticism has no basis.
In relation to questions at par 187 and par 188, I agree with the Prosecutor's submission that principle 11 in Plevac does not apply to strike these out. The answer is capable of amounting to an admission of the matter asserted in the question.
In relation to questions at par 279 and par 280, I agree with the Prosecutor's submission that principle 6 does not apply, the answer is capable of being regarded as an admission. This criticism has no basis.
In relation to questions at par 287 and par 288, principles 7 and 8 in Plevac must be read together and when applied to this question and answer I agree with the Prosecutor that these are capable of amounting to an admission. This criticism has no basis.
The Defendants' objections to the ROI of Mr Bennett dated 12 November 2007 are not sustained and the ROI in whole or part is not struck out.
**********
Decision last updated: 30 March 2011
0
5
2