Dougherty v Ling - [2001] TASSC 63

[2001] TASSC 63

CITATION: Dougherty v Ling [2001] TASSC 63

PARTIES:  DOUGHERTY, Christopher Daniel
  v
  LING, Robert Mervyn

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 76/2000
DELIVERED ON:  6 June 2001
DELIVERED AT:  Hobart
HEARING DATES:  14 March 2001
JUDGMENT OF:  Slicer, Evans and Blow JJ

CATCHWORDS:

Industrial Law -Industrial safety, health and welfare - Other States and Territories - Tasmania - Workplace Health and Safety Act 1995 - Answer given, or information provided, pursuant to a requirement of an inspector - Act required person to answer inspector's questions - Whether answer to inspector's question given pursuant to a requirement of an inspector - Person not informed of right to claim answers may incriminate - Whether answers inadmissible.

Workplace Health and Safety Act 1995 (Tas), ss34, 37(4) and 36(1).
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, applied.
Aust Dig Industrial Law [444.5].

REPRESENTATION:

Counsel:
             Appellant:  W C R Bale QC, S K Perring
             Respondent:  R W Pearce
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Douglas & Collins

Judgment Number: [2001] TASSC 63
Number of Paragraphs: 32

Serial No 63/2001
File No FCA 76/2000

CHRISTOPHER DANIEL DOUGHERTY v ROBERT MERVYN LING

REASONS FOR JUDGMENT FULL COURT

SLICER J
EVANS J

BLOW J
6 June 2001

Order of the Court

Appeal dismissed.

Serial No 63/2001
File No FCA 76/2000

CHRISTOPHER DANIEL DOUGHERTY v ROBERT MERVYN LING

REASONS FOR JUDGMENT FULL COURT

SLICER J
6 June 2001

An inspector appointed under the Workplace Health and Safety Act 1995, s34 ("the Act") attended the scene of a work related accident and interviewed a number of persons including the respondent who was the overseer and supervisor of the injured employee. The inspector asked the respondent:

"… could he give me a document of account of the circumstances surrounding the accident."

The respondent agreed and a statement combining the questions and answers was prepared and signed. No caution or warning was administered since the inspector "… didn't believe that any breach had been committed".

Some few months later the inspector visited the respondent and advised him that there was a possibility of prosecution. He cautioned the respondent by advising:

"I intend to ask you some questions but before I do it's my duty to warn you that you are not obliged to say anything unless you wish to do so because anything you do say will be taken down in writing. Do you understand the warning?"

and then handed the respondent two witness statements and a typed copy of the statement obtained on the earlier occasion. The respondent made a further statement and signed the same.

At the hearing of the complaint the learned magistrate ruled that both statements were inadmissible on the ground that they did not comply with the requirements of the Act, s37(4). The appellant unsuccessfully sought review. In his reasons for judgment ([2000] TASSC 34) the learned primary judge upheld the ruling relating to the…

Grounds of appeal

[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.

Continue reading Dougherty v Ling

Details

AGLC: Dougherty v Ling [2001] TASSC 63
Case: [2001] TASSC 63
Decision Date: 6 June 2001

CaseChat Overview and Summary

The case of Dougherty v Ling involved a dispute regarding the admissibility of statements made by an individual to an inspector under the Workplace Health and Safety Act 1995 in Tasmania. The appellant, Christopher Daniel Dougherty, sought to appeal the decision of the primary judge who had upheld the ruling that the statements made by the respondent, Robert Mervyn Ling, were inadmissible as evidence. The central legal issue was whether the statutory requirement to answer questions imposed by an inspector included the mere act of asking a question, or if it necessitated more forceful compulsion. The court had to determine whether the inspector's act of asking questions constituted a "requirement" under the Act, and if the failure to inform the respondent of their right to claim that their answers may incriminate them rendered the statements inadmissible.

The court found that the statutory power to require answers extended to the mere asking of questions by an inspector, which constituted a requirement under the Act. The court reasoned that the purpose of the statute was to facilitate the investigation of workplace accidents to promote safety, and therefore, an interpretation that encouraged interviewees to provide information to inspectors was preferable. The court also held that the inspector's failure to inform the respondent of their right to claim that their answers might incriminate them rendered the statements inadmissible. The Full Court of the Supreme Court of Tasmania unanimously dismissed the appeal, affirming the primary judge's decision.

In conclusion, the court held that the inspector's act of asking questions constituted a requirement under the Act, and the failure to inform the respondent of their right to claim that their answers may incriminate them rendered the statements inadmissible. The appeal was dismissed, and the primary judge's decision was upheld.

Orders