Dougherty v Ling
[2001] TASSC 63
•6 June 2001
[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 first statement, but determined that the learned magistrate had erred in excluding the second statement. He concluded at par18:
"Although there was evidence from Mr Rigby that he informed the respondent that he intended to ask some questions, there was no evidence that the contents of the statement were obtained by Mr Rigby from the respondent as a result of questions asked by Mr Rigby or as a result of information provided by the respondent to Mr Rigby pursuant to a requirement to do so. I conclude therefore that the statement was not shown to be inadmissible under s37(4)."
The learned primary judge in his reasons for judgment left open the question whether or not to remit the matter back to the Court of Petty Sessions, but subsequently declined to do so and dismissed the motion to review. No challenge is made to this part of his decision.
The appellant claims error on the grounds that:
"1The learned judge erred in law in holding that, for the purposes of Section 37(4) of the Workplace Health and Safety Act 1995, a question asked by an inspector carries with it a requirement to answer, whether or not the inspector couches the question as one to which he requires an answer.
2The learned judge erred in fact and/or in law in holding that the learned Chief Magistrate was correct when he ruled that the statement signed by the Respondent on 6th January, 1998 was inadmissible by virtue of Section 37(4) of the Workplace Health and Safety Act 1995."
The Act relevantly states:
"36 (1) In addition to any other powers conferred upon an inspector by any other provisions of this Act, an inspector may at any time enter and inspect any place if the inspector has reasonable cause to believe that an industry is, or is intended to be, carried on, or an amusement structure or temporary public stand is located, in or on that place and may -
(a) make such examination and inquiry and conduct such tests, including the taking of measurements and samples for analysis, as may be necessary to ascertain whether the provisions of this Act are being complied with; and
(b) for the purposes of ascertaining whether the provisions of this Act are being complied with, require a person who has custody or control of any record, book or document to produce that record, book or document; and
(c) examine, copy and take extracts from any record, book or document, or require an employer to provide a copy of any record, book or document; and
(d) take photographs, films or video or audio recordings; and
(e) require any person to answer any question or to provide any information relating to the health or safety of persons at any workplace or to any other matter to which this Act applies; and
(f) require an employer to produce a copy of any statement or record that is required to be prepared or kept under this Act.
…
37 (1) A person must not -
(a) obstruct, wilfully delay, threaten, intimidate or attempt to intimidate an inspector, a person assisting an inspector or an interpreter in the execution of the inspector's functions under this Act; or
(b) without lawful excuse, refuse or fail to comply with a requirement made, or to answer a question asked, by an inspector under this Act; or
(c) furnish an inspector with information requested under this Act knowing that it is false or misleading in a material particular; or
(d) directly or indirectly, prevent or attempt to prevent any person from appearing before or being questioned by an inspector.
Penalty:
In the case of -
(a) a body corporate, a fine not exceeding 500 penalty units; and
(b) a natural person, a fine not exceeding 200 penalty units.
(2) A person is not required to provide under subsection (1) -
(a) information that is the subject of legal professional privilege; or
(b)information that is relevant to proceedings that have been commenced under this Act.
(3) A person is not excused from answering any question asked, or providing any information required, by an inspector under this Act on the ground that the answer or information may tend to incriminate that person.
(4) In proceedings for an offence against this Act, any answer given, or information provided, to an inspector pursuant to a requirement of an inspector under this Act is not admissible in evidence against the person giving the answer or providing the information -
(a) if the person claims before giving the answer or providing the information that the answer or information may tend to incriminate the person; or
(b) unless the person's entitlement to make a claim of the kind referred to in paragraph (a) was drawn to the person's attention before the answer was given or the information was provided."
Section 36 affords rights of entry and inspection and powers to make examinations, take samples, photographs and films and require the production of records and documents. The power to require answers or the provision of information is expressed in wide terms and the enactment runs contrary to the rights of a citizen not to be subject to self-incrimination. Parliament has reinforced the grant of power by providing for a sanction in the event of non-compliance. It has attempted to balance competing interests and principles by excluding information subject to legal professional privilege or sought after the commencement of proceedings and making admissibility dependent on two pre-conditions. Those pre-conditions stated in ss37(4)(a) and (b) are:
(i)that the person has not claimed that the giving of an answer or provision of information may tend to incriminate that person; or
(ii)unless the public officer advises the person of the entitlement against self-incrimination.
The appellant contends that the respondent was not required to make an answer or provide any information at the time the first statement was taken. Learned counsel relied on the dictionary (Macquarie) meaning as "that which is required, a thing demanded or obligatory" and connotes "directing, demanding or imposing an obligation". The same dictionary includes the wider meanings "to have need of …, to call on authoritatively to do something … to wish to have". Oxford 3rd ed includes:
"to ask (a person) a question; to inquire of …; to ask or request or desire (a person) to do something …II to ask for (something or person) authoritatively or imperatively, or as a right; to demand claim on having".
The inspector gave evidence as to the taking of the statement in the following terms:
"A On the first occasion I spoke to Mr Ling because I didn't recognise him. I knew Mr Youl prior to the accident. I was familiar with the police but I didn't know who Mr Ling was so on the first occasion it was merely an introduction. I introduced myself and he introduced himself and he told me that (he) was the load operator and he'd been involved in carting hay with Tanya Sawford and five bales had come off the truck and consequently caused the accident.
Q Right. What, if anything, did you do next in relation to Mr Ling?
A In relation to Mr Ling I asked him could he give me a document of account of the circumstances surrounding the accident. He agreed to that and he sat in the passenger side of my work vehicle and a statement was obtained.
Q Right. Now how was it that you came to take a statement from him, did this involve questions and answers or did he write it out or how did it come into existence?
A I asked Mr Ling questions relaying the circumstances surrounding and involving the accident and as he gave me answers I documented the particulars that he gave me and at the conclusion of it I read it, I passed it to Mr Ling, I invited him to read it. He indicated it was correct and I invited him to sign it and he did.
…
Q Right. Now, at the very start of taking the statement did you warn him as to any way it might be used in later proceedings?
A I did not.
Q Can you say why it was that you didn't warn him?
A At that point I didn't believe, I wasn't, I didn't believe that any breach had been committed."
He had introduced himself presumably by reference to name and office. His use of the term "document of account" would alert the ordinary person that the officer was not engaged in social conversation, but was making an inquiry as an authorised officer. As such the "asking" accords with the definitions "to call on authoritatively", to "request" or "to ask for authoritatively". Politeness or the use of the "velvet glove" rather than the "iron fist" ought not be seen as an indication that a public officer is not exercising power or a means of avoiding a statutory requirement. It is proper and preferable that an officer with a power, afforded by statute, attempts to fulfil a duty with civility rather than an immediate threat of sanction. The officer was making a request authorised by Parliament.
A dictionary approach might be appropriate in many cases (State Chamber of Commerce and Industry & Ors v The Commonwealth (1987) 163 CLR 329, Smoker v Pharmacy Restructuring Authority & Ors (1994) 125 ALR 577) but in this case it is insufficient to properly interpret the statute since significantly different connotations can be attributed to the word "require".
The learned Solicitor-General placed more emphasis on an analysis of the purpose and place of the statutory provision. That the conflicting principles were considered by Parliament is apparent from the debate recorded in Hansard (Parliamentary Debates 20-23 June 1995 pp 1659 - 1661) but no definitive conclusion can be derived from that source.
The essence of the appellant's contention is:
(1)The statutory prohibition in the Act, s37(1)(b) does not extend to every question asked by an inspector since the purpose intended by that section differs from that of s37(4).
(2)A volunteered answer would not be rendered inadmissible by the Act s37(4). To do so would be to provide greater protection than that afforded by the common law.
(3)An inspector needs no empowering provision merely to ask questions or seek information.
(4)The offence provision contains protection (s37(4)) for persons charged under the Act against the use against that person of incriminating answers that they are required to give.
(5)There is a distinction in the provisions of s37(1)(b) and s37(3) between a question asked and one required. A requirement imposed by the former is a requirement under the Act and not a requirement by an inspector.
(6)No policy reasons exist to preclude the ordinary meaning of plain words used in s37(4).
(7)"If 'requirement' in s37(4) includes the statutory obligation imposed by s37(1)(b) the words 'of an inspector' in s37(4) are superfluous. As a general principle, all words in legislation should be given meaning and effect where that is practicable and inconsistency does not result."
(8)Sufficient protection is afforded by the common law principles embodied in the Judges' Rules.
Two practical problems are apparent from the approach urged by the appellant. The Judges' Rules 1912 - 1918 (see R v Deverell [1969] Tas R 106), r2 provides:
"(2) Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions, as the case may be."
That was the course adopted by the inspector on the second occasion. The problem with the rule if considered alone is that in many instances a police officer might not decide to charge a person until he has received answers especially if they are incriminating in nature. The rules provided for any imbalance of power by requiring:
"(3) Persons in custody should not be questioned without the usual caution being first administered."
This rule encompasses situations where the suspect is not subject to arrest or formal custody, but is subject to a form of control. The common law recognises that a police officer, with limited exceptions, has no power to compel answers. An inspector has such a power and it is an offence to decline to make or avoid answer . If a person attempts to avoid answer, on the appellant's argument the inspector may compel. To this extent the person is subject to a form of statutory control in the same way as a person "in custody". The argument also overlooks two further rules:
"(4) If the prisoner wishes to volunteer any statement, the usual caution should be administered. It is desirable that the last two words of such caution should be omitted, and that the caution should end with the words 'be given in evidence'.
…
(6) A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely by reason of no caution having been given, but, in such a case, he should be cautioned as soon as possible."
On the appellant's argument (proposition 8) once the respondent indicated that he wanted to volunteer a statement the officer was obliged to warn since the person was subject to the statutory control of the inspector with an incipient power to compel answer.
The second practical problem is that outlined by the learned primary judge in his reasons for judgment at par15. A person through experience or training who is aware of the right of objection is advantaged as against the unsophisticated and trusting citizen. Lack of awareness of the existence of the protection afforded by Parliament would become a vehicle for obtaining incriminating material through civility which was unprotected whilst that obtained by coercion would be protected. Parliament had good reason to grant coercive power to obtain information as a means of ascertaining the cause of an accident if only to guard against repetition, obtain access to work directives or procedures or identify the responsibility of management. Parliament balanced that grant of power with a prohibition against the use of the information so obtained as evidence in a prosecution of the person subject to that power. It would be inappropriate to distinguish between categories of citizens in affording the protection. The enactment of s37(4)(b) is designed to afford a citizen unaware of the intricacies of the legislation protection identical to that of a person claiming the benefit of s37(4)(a).
A court is entitled to take into account the consequences (especially unintended) of giving a particular meaning to a statutory provision. The consequence referred to by the learned primary judge could be said to be capricious (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151, Regional Director of Education & Ors v International Grammar School Sydney Ltd (1986) 7 NSWLR 302, Graham v Ninness (1986) 65 ALR 331).
There are good policy reasons (proposition 6) to require the provision of advice in the terms of s37(4)(b) before the evidence is admissible. The privilege against self-incrimination is a fundamental common law right (Sorby & Anor v The Commonwealthof Australia & Ors (1983) 152 CLR 281).
The provisions of the Act ss36 and 37 are complementary. Disjunctive interpretation (propositions 5 and 7) is not appropriate and produces a result contrary to the legislative scheme. The questions asked by the inspector were answered voluntarily (McDermott v The King (1948) CLR 501, R v Zion [1986] VR 609), but were initiated by means of a coercive process (R v Holmes A95/1996 at 3). The making of a claim of privilege in accordance with s37(4)(a) is a precursor to a claim that the evidence is inadmissible, and is not dependent on whether the maker believes it to be so. As Cox CJ stated in Holmes (supra) at 7:
"The inadmissibility of the statement is dependent on making a claim of privilege before making the statement and the fact of its incriminating tendency. It is not dependent upon the belief of the maker in factual existence of the tendency. If it is later determined to have that tendency, the statement is inadmissible."
It is the making of the claim which renders the answer inadmissible not the knowledge of the import of the answer. Failure to make the claim in accordance with s37(4)(a) renders the evidence admissible. Thus, it can be said that the provisions of s37(4)(b) is a precondition to the operation of s37(4)(a). There must be a claim or if no such claim is made notification of entitlement must be provided. In Sorby the High Court was required to consider the import of the Royal Commissions Act 1902 (Cth), ss6DD and 6A(2). The former provided:
"A statement or disclosure made by any witness in the course of giving evidence before a Commission is not (except in proceedings for an offence against this Act) admissible in evidence against that witness …"
whilst the latter stated that:
"A person is not entitled to refuse or fail to answer a question that he is required to answer by a member of a Commission on the ground that the answer to the question might tend to incriminate him".
A person might appear before a Royal Commission voluntarily yet a refusal to answer a question could constitute an offence against the Act, s14(2). It would not be appropriate to punish the witness unless the Commission made that person aware of the terms of s6A(2).
In Workcover Authority of New South Wales v Seccombe & Ors (1998) 101 A Crim R 303, the Industrial Commission considered the admissibility of statements made by a company director to an inspector after the director had been informed that the legislation required that he answer questions, but that he could claim privilege against self incrimination and that claim would be noted. No claim for privilege was made. The Commission determined the failure to advise the director of the full terms of the statute rendered the statements inadmissible. The terms of the New South Wales legislation were relevantly:
"31I Powers available on entry
For the purposes of the relevant legislation, an inspector who enters premises under this Division may do any of the following:
(a) …
…
(e)require any person in or about those premises to answer questions or otherwise furnish information, …
31MProtection from incrimination
(1) A person is not excused from making a statement in accordance with a requirement under this Division on the ground that the statement may tend to incriminate the person.
(2) However, the statement is not admissible in evidence against a person in criminal proceedings (except proceedings for an offence under section 31N):
(a)if the person claims before making the statement that the statement might tend to incriminate the person; or
(b)unless the person's entitlement to make a claim of the kind referred to in paragraph (a) was drawn to the person's attention before the statement was made.
31NOffence: obstructing an inspector or others
A person must not:
(a)…
…
(d)without reasonable excuse, refuse or fail to comply with a requirement made or to answer a question of an inspector asked in accordance with this Division; or
(e)…
Maximum penalty: 100 penalty units."
The Full Bench of the Commission concluded at 313 - 314 that the effect of the statutory provision was:
"· The inspector could require (the director) to answer questions or otherwise furnish information.
·(the director) could not, without reasonable excuse, refuse or fail to comply with the requirement so made.
·the director was not excused from making the statements so required on the sole ground that they may tend to incriminate him, although other grounds may relieve him.
·However, the statements made were not admissible in evidence against (the director) unless his entitlement to make a claim that the statements might tend to incriminate him was relevantly and properly drawn to his attention before the statements were made.
·The inspector cautioned (the director) that he 'can claim privilege against self-incrimination and I will note the claim, but you must answer my questions. You may claim privilege now or at any time during this conversation'.
It is clear to us the legislature has required a statement to be made, even though it may tend to incriminate the person concerned contrary to the fundamental position at common law, but legislative protection has been given to exclude the statement from evidence unless certain specified advice be given."
That approach accords with the rationale and basis for privilege stated by Murphy J in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 when he said at 346:
"The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society's acceptance of the inviolability of the human personality. In the widest sense it prohibits compulsory admission of criminality, that is, infamy, even where there is no prospect of punishment, because, for example, of a pardon, of the expiration of the time limited for prosecution. In a narrow sense, it is privilege against exposure to jeopardy of criminal prosecution, and is available only where there is a real danger of prosecution and conviction. The privilege developed in England out of concern for lack of due process in Star Chamber and criminal proceedings. It was introduced into the constitutions of several of the American states following the 1788 Revolution, and entrenched in the federal Bill of Rights: see The Constitution of the United States of America - Annotated, 1106-1107. It is referred to in the International Covenant on Civil and Political Rights, Art 14(3)(g)."
Although in minority his statement of principle was approved by the majority (Mason ACJ, Wilson and Dawson JJ) at 340 that:
"… the rule of the common law … is seen as too fundamental a bulwark of liberty to be categorised simply as a rule of evidence applicable to judicial and quasi-judicial proceedings".
In that case the majority held that in cases of obligation to answer a statutory officer the right of privilege could be excluded by statute when they stated at 341:
"There is a stronger reason for holding that the privilege is available in the case of an examination on oath before a judicial officer which is a preliminary to committal for trial or summary prosecution than there is in the ordinary case where a statute imposes an obligation to answer questions, provide information or produce documents. On the other hand, if the object of imposing the obligation is to enable an authority or agency to ascertain whether an offence has been committed or a statutory provision has been contravened then it is reasonable to conclude that the privilege, though inherently capable of applying, has been impliedly, if not expressly, excluded by the statute."
In Tasmania Parliament did not seek to exclude privilege, but made specific provision for its operation. It has not, in clear or unambiguous terms, attempted to exclude it in part.
The learned primary judge was correct in his conclusion. In my opinion the appeal ought be dismissed.
File No FCA 76/2000
CHRISTOPHER DANIEL DOUGHERTY v ROBERT MERVYN LING
REASONS FOR JUDGMENT FULL COURT
EVANS J
6 June 2001
Like Slicer J, whose reasons for judgment I have had the advantage of reading, I consider that the learned primary judge was correct in reaching the conclusion that he did and I agree with his reasons for doing so. The appeal should be dismissed.
File No FCA 76/2000
CHRISTOPHER DANIEL DOUGHERTY v ROBERT MERVYN LING
REASONS FOR JUDGMENT FULL COURT
BLOW J
6 June 2001
My analysis of the question raised by this appeal as to the interpretation of the Workplace Health and Safety Act 1995 ("the Act"), s37(4), is as follows:
(a) By s36(1)(e), Parliament empowered inspectors to "require any person to answer any question … relating to the health or safety of persons at any workplace or to any other matter to which this Act applies".
(b) By s37(1)(b), Parliament made it an offence for a person, without lawful excuse, to fail to answer a question asked by an inspector under the Act, thereby abrogating the common law rule as to privilege against self-incrimination.
(c) In order to ameliorate the effects of that abrogation, Parliament, by s37(4), made "any answer given … to an inspector pursuant to a requirement of an inspector" under the Act inadmissible as evidence against the person giving the answer if he or she claims, before giving the answer, that the answer may tend to incriminate him or her.
(d) In order to be fair to people who might be unaware of the desirability of making such a claim before answering a question, Parliament, by s37(4)(b), made "any answer given … to an inspector pursuant to a requirement of an inspector" under the Act inadmissible against the person giving the answer unless the person's entitlement under s37(4)(a) to claim that the answer may tend to incriminate him or her was drawn to that person's attention before the answer was given.
(e) The question that arises is whether the mere asking of a question by an inspector, without any words of compulsion, amounts to "a requirement of an inspector" for the purposes of these provisions.
I agree with the reasoning and conclusions of Slicer J. When an inspector asks a person a question without any words of compulsion, and the person would commit an offence against s37(1)(b) if he or she failed to answer the question, the inspector must be regarded, for the purposes of s37(4), as having imposed a requirement that an answer be given. In this case, s37(4)(a) entitled the respondent to protect himself against the use of his answers in evidence against him by claiming, before answering each question, that the answer might tend to incriminate him. The inspector did not draw that entitlement to his attention as contemplated by s37(4)(b). The answers were therefore inadmissible in evidence against the respondent.
I think support for an interpretation favourable to the respondent of the words "a requirement of an inspector" in s37(4) can be gained from the Acts Interpretation Act 1931, s8A(1), which requires "an interpretation that promotes the purpose or object of the Act … to be preferred to an interpretation that does not promote the purpose or object". One of the principal purposes or objects of the Act is the promotion of workplace safety. It seems clear that Parliament made the answering of inspectors' questions obligatory, and abrogated the common law rule as to privilege against self-incrimination, for the purpose of facilitating the investigation of workplace accidents. The more an inspector can find out about the cause or causes of an accident, the more likely it is that steps will be taken to obviate any relevant safety risk. It follows that an interpretation of s37(4) that would make interviewees more likely to provide information to inspectors is to be preferred to one that would make them less likely to do so. Whilst s37(4)(b) is so worded that an inspector is never compelled to draw an interviewee's attention to the protection that can be gained by saying that an answer may tend to incriminate, the adoption of an interpretation favourable to interviewees would, in my view, encourage inspectors to take such a course, and thus promote frank disclosures by interviewees and facilitate the identification and minimisation of safety risks. It follows that the words "a requirement of an inspector" in s37(4) should be interpreted as including a question asked by an inspector without any words of compulsion.
I agree that the appeal should be dismissed.
0