Dougherty v Ling
[2000] TASSC 84
•7 July 2000
[2000] TASSC 84
CITATION: Dougherty v Ling [2000] TASSC 84
PARTIES: DOUGHERTY, Christopher Daniel
v
LING, Robert Mervyn
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 20/1999
DELIVERED ON: 7 July 2000
DELIVERED AT: Launceston
HEARING DATE/S: 17 May 2000
JUDGMENT OF: Crawford J
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), s37(4).
Aust Dig Industrial Law [444.5]
REPRESENTATION:
Counsel:
Applicant: J P Ransom
Respondent: R W Pearce
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Douglas & Collins
Judgment ID Number: [2000] TASSC 84
Number of paragraphs: 21
Serial No 84/2000
File No LCA 20/1999
CHRISTOPHER DANIEL DOUGHERTY v ROBERT MERVYN LING
REASONS FOR JUDGMENT CRAWFORD J
7 July 2000
A complaint against the respondent was dismissed by a magistrate and the applicant has applied to review the dismissal. The charge was one of failing to take reasonable care for the health and safety of another person contrary to the Workplace Health and Safety Act 1995, s16(a). Two grounds of review are relied upon by the applicant. Both of them concern rulings made by the learned magistrate that handwritten statements signed by the respondent on 6 January 1998 and 6 May 1998 were inadmissible.
There was evidence that Miss Tanya Sawford was employed by a firm, J & S Youl & Son, on a farm at Symmons Plains. The respondent was the farm overseer and her superior. On 6 January 1998 she went with him to load round bales of hay onto a flat-tray truck and trailer and to cart them to a paddock. Her job was primarily to drive the truck which towed the trailer. The respondent loaded bales onto the two vehicles, using a vehicle described as a teleporter, which had a forklift arrangement on it. There were two layers of bales loaded. The respondent tied them down with ropes. Miss Sawford was then required to drive the laden truck, towing the laden trailer, to a paddock. It was an unstable load and she therefore drove at a slow speed in first gear. She described the truck as rocking, swaying from side to side.
At their destination, the respondent intended to use the teleporter to unload the bales. It was Miss Sawford's evidence that he asked her to undo the ropes. Once she had done so, several bales fell off one side of the truck, striking her. She suffered serious injuries resulting in a permanent disability.
The prosecution called Mr Peter Rigby as a witness. He was an inspector appointed under the Act, s34, and he went to the scene shortly after the accident, on the same day. There he spoke to a number of people including the respondent. They introduced each other and the respondent told Mr Rigby that he had been involved in carting hay with Miss Sawford and that five bales had come off the truck causing the accident. It was Mr Rigby's evidence that "I asked him could he give me a document of account of the circumstances surrounding the accident". The respondent agreed and they sat in Mr Rigby's vehicle, where a statement was obtained from him. Mr Rigby asked questions about the circumstances surrounding and involving the accident and the respondent gave answers. Mr Rigby combined the questions and answers into the form of a statement by the respondent, in Mr Rigby's handwriting. At the conclusion, Mr Rigby passed it to the respondent and invited him to read it. The respondent indicated that it was correct and signed it at Mr Rigby's invitation.
Prior to obtaining that statement, on 6 January 1998, Mr Rigby gave him no caution or warning of any kind. His explanation for not doing so was that "I didn't believe that any breach had been committed".
On 6 May 1998 Mr Rigby visited the respondent. He informed him that there was a possibility that there could be prosecutions as a result of the accident. He said to the respondent:
"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?"
The respondent replied that he did. Mr Rigby then handed to him statements which had been made by Miss Sawford and Mr John Youl of J & S Youl & Son. The respondent appeared to read them. He was then handed, and appeared to read, a typed copy of the statement Mr Rigby had obtained from him at the scene of the accident on 6 January. He made comments which Mr Rigby wrote down in the form of another statement by him. He was then invited to read it, which he appeared to do, and he elected to sign it. There was no evidence that the statement was compiled by Mr Rigby from the respondent's answers to questions asked of him, as was the case with the first statement.
The respondent's counsel objected to both of the statements being admitted into evidence. The learned magistrate ruled that they were inadmissible. It is the applicant's case that the statements should have been admitted, that they contained significant admissions by the respondent and that if they had been admitted into evidence the prosecution may well have been successful.
Two arguments were advanced by the respondent's counsel to the learned magistrate. The first was that the statements were inadmissible because of the provisions of the Act, s37(4). The second was that if the first argument failed, the learned magistrate should nevertheless refuse to admit the statements into evidence in the exercise of his discretion. The learned magistrate upheld the first argument and found it unnecessary to consider the second.
The material provisions of the Act were poorly drafted and are difficult to understand. Plainly they need to be amended, but until they are inspectors and the courts must do the best they can with them.
The material provisions of the Act are the following:
"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."
With respect to par(a) of s37(4), the respondent at no time made a claim that an answer or other information he was proposing to give might tend to incriminate him. With respect to par(b), the respondent's entitlement to make such a claim was at no relevant time drawn to his attention. Accordingly, the provisions of subs(4) rendered the statements inadmissible against him on the hearing of the proceedings if the contents of them were provided by him "pursuant to a requirement of an inspector", Mr Rigby. The learned magistrate ruled that both of the respondent's statements were inadmissible for that reason. The applicant submits that was wrong and that although the respondent answered questions asked of him by the inspector and provided information to the inspector, there was no evidence that he was at any time required by the inspector to answer the questions or to provide the information.
By s36(1)(b), an inspector is empowered to "require" a person who has custody or control of any record, book or document to produce that record, book or document. In common parlance there is a difference between asking a person to produce a document and requiring a person to do so. Paragraph (e) empowers an inspector to "require any person to answer any question or to provide any information relating to" certain matters. That paragraph might contemplate that a person may be asked a question by an inspector and if he fails to answer it the inspector may then require him to do so. In other words asking a question and requiring a question to be answered, might be different things, when par(e) is considered.
However, putting aside for a moment the provisions of s37(4), the obligations of the person asked a question by an inspector appear to be no different, whether or not he is required by the inspector to answer, for s37(1)(b) makes it an offence, without lawful excuse, to refuse or fail to either comply with a requirement made, or answer a question asked, by an inspector under the Act. A lawful excuse for not answering at least extends to the circumstances provided by subs(2), that is to say to information that is the subject of legal professional privilege or relevant to proceedings that have been commenced under the Act. But apart from those circumstances, a person is not excused from answering a question asked, or providing any information required, by an inspector, on the ground that the answer or information may tend to incriminate him, because that is what subs(3) provides.
Therefore, in the factual circumstances of this case, proceedings not having been commenced at the times when the statements were obtained from the respondent and there being no question of legal professional privilege, he was required by s37 to answer the inspector's questions, whether or not he was informed by the inspector that his answers were required to be given. The scheme of s37, without having regard to subs(4), is that there is no need for an inspector to inform a person that he is required to answer questions. By asking a question the inspector was, because of the law, in effect requiring an answer.
If the applicant's argument is sound, s37(4) would operate in a disturbing and surprising way. It would mean that a person who is ignorant of his rights and is asked a question by an inspector, but not in terms which impart a sense of requirement to answer, is required by law to answer and his answer will be admissible in evidence against him on the hearing of any proceedings for an offence against the Act, notwithstanding that his entitlement to make a claim of incrimination is not drawn to his attention before he gives his answer. On the other hand, if that person refuses to answer, thereby committing an offence against s37(1)(b), and the inspector then tells him that he is required to answer, his answers will not be admissible against him unless the inspector first draws to his attention that he is entitled to make a claim of incrimination and he fails to make such a claim before answering. In a practical sense, only those who first offend by refusing or failing to answer the inspector's questions might receive the advice required by subs(4)(b). An inspector could in any event impart a requirement to answer a question without invoking the provisions of the subsection, simply by informing the person that the section requires him to answer the questions without informing him that he, the inspector, requires him to answer the questions. On the applicant's argument, that would be a case of the law requiring an answer but not one of the inspector requiring an answer and in that event the protection of subs(4) could not operate to protect the person, even if he claimed before giving his answers that they might tend to incriminate him. The subsection only permits a claim concerning incrimination by persons who give an answer to an inspector pursuant to a requirement of the inspector. On the applicant's argument, there would be no entitlement to make such a claim if all the inspector did was ask a question which, because of s37(1)(b), the person was required to answer, without the inspector stating in addition that he required an answer.
In my opinion the only sensible and just way in which subs(4) can be interpreted, is by treating a question asked by an inspector as carrying with it a requirement to answer. That is its effect at law, regardless of whether the inspector couches the question as one to which he requires an answer. In that way all persons who are required to answer an inspector's questions will have the same rights, obligations and protection under the Act.
I agree with the learned magistrate that there is to be found in subs(4), a policy consideration that although the rights of individuals are to be compromised by a duty to provide information, that duty is not to be discharged at the cost of individuals being forced to incriminate themselves, at least not for the purpose of subsequent proceedings.
It is therefore my opinion that the learned magistrate was correct when he ruled that the statement signed by the respondent on 6 January 1998 was inadmissible. However, I conclude that the learned magistrate erred when he ruled that the statement made on 6 May 1998 was also inadmissible for the reasons he gave. 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).
Left outstanding is the issue of whether the statement of 6 May 1998 should have been rejected by the learned magistrate in the exercise of a discretion. What submissions were made to the learned magistrate about that has not been made known to me. Counsel agreed that if I uphold the motion to review because the learned magistrate erred in rejecting both statements (in which event it would follow that the dismissal of the complaint should be set aside), I should remit the case back to the same magistrate for further hearing and in particular for his Worship to determine how he should exercise that discretion.
I will invite counsel to make further submissions in light of my determination upholding the ruling that the statement dated 6 January 1998 was inadmissible, leaving open the question of whether the statement of 6 May 1998 might be admitted by the learned magistrate if the case is remitted to his Worship. There may be agreement that it would be pointless to refer the case back to his Worship because the bulk of the incriminating material is to be found in the first and not the second statement. I will make no orders until hearing further from counsel
I conclude by pointing out that when Mr Rigby said to the respondent on 6 May 1998 that he was not obliged to say anything unless he wished to do so because anything he did say would be taken down in writing, the inspector was misleading the respondent if it was his intention to ask him questions relating to this matter, for s37(1)(b) obliged the respondent to answer. That Mr Rigby may have mislead the respondent in that regard may well be attributable to his misunderstanding of what are clearly poorly drafted legislative provisions.
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