DPP v Esso Australia Pty Ltd
[2001] VSC 106
•20 March 2001
| SUPREME COURT OF VICTORIA | Not Restricted |
| CRIMINAL DIVISION |
No. 1484 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ESSO AUSTRALIA PTY LTD |
Ruling No. 8
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JUDGE: | Cummins J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 20 March 2001 |
CASE MAY BE CITED AS: | DPP v Esso Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2001] VSC 106 |
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Criminal law – evidence – charges under ss. 21, 22 and 47 Occupational Health and Safety Act 1985 – safe workplace – major gas facility at Longford, Victoria – admissibility of accused’s solicitors’ submissions to Longford Royal Commission – admission of fact – self incrimination – s. 19C Evidence Act 1958 – EPA v Caltex Refining Company Pty Ltd (1993) 178 CLR 477.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | R. Richter QC | Office of Public Prosecutions |
| For the Accused | M. Titshall QC with M. Hennessy | Middletons Moore & Bevins |
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Ruling No. 8
HIS HONOUR:
The accused company is charged with 11 counts under the Occupational Health and Safety Act 1985 in circumstances I shall not rehearse in full for this ruling. The counts and facts are set out in the Reasons for Ruling No.5 at T.355-359. Essentially the counts are of failing to maintain so far as was practicable a safe workplace at the company's plant at Longford on 25 September 1998. The prosecution has sought to tender as part of the evidence in proof of the crimes charged parts of Submissions in writing and of 91 pages by Messrs Middletons Moore and Bevins, solicitors made on 26 April 1999 to the Longford Royal Commission. The Submissions are entitled "Submissions on behalf of Esso Australia Ltd. and Esso Australia Resources Ltd. ("Esso")." The Longford Royal Commission was established by Letters Patent for the purpose of inquiring into and reporting upon three substantial matters as to Esso Australia Ltd's gas plant at Longford, Victoria including by its Term of Reference 1A, "the causes of the explosion and fire which occurred at the Longford facilities on Friday 25 September 1998". The Letters Patent were issued on 20 October 1998. The Commission was to report by 15 February 1999 but on 9 February 1999 the reporting period was extended to 30 June 1999. It first sat, for appearances, on 12 November 1998. Its hearings commenced on 14 December 1998 and concluded on 9 April 1999. Final submissions by counsel assisting were heard on 15 April 1999. Final written submissions on behalf of the parties (a term to which I shall return) including Esso Australia Ltd, were made on 26 April 1999 and the Commissioners loyally reported on 28 June 1999.
Esso Australia Ltd (now Esso Australia Pty. Ltd.) was granted leave to appear on 12 November 1998. The Commission issued 74 summonses to it to produce documents. It produced 201 exhibits. Numerous Esso personnel were called by the Commission: from Mr R.C. Olsen, chairman and managing director, another director, Mr M Sikkel, to managers, supervisors, operators and technicians.
As I say, on 26 April 1999 written submissions on behalf of the company were made to the Commission. If admissible, parts of the submissions plainly are relevant to issues joined in this proceeding. The cause of the rupture and fire on 25 September 1998 is here said by the prosecution to be hot oil entering a vessel embrittled through extremely low temperatures. It has been put by the accused in the s.13 response by learned senior counsel that those (supposedly casual) events did not occur. The means whereby the tragic events of 25 September 1998 did occur, according to the defence, has not been presently articulated. There is no requirement for the defence to do so bearing in mind the onus of proof and bearing in mind also that we have only just commenced the trial and the defence is yet to be heard. The cause of the rupture is not an element of the charges, at least not of 10 of the 11 charges, but plainly is a matter joined in issue. The question is whether the material sought to be led is admissible in law. It is said by the prosecution to be an admission by the accused company of fact and an admission against interest, namely vessel failure due to cold temperature embrittlement.
It might be convenient first to deal with the proper construction of s.19C Evidence Act 1958, introduced by s.6 Crimes, Confiscation and Evidence Acts (Amendment) Act 1998. Section 19C provides:
"(1)Despite anything to the contrary in this Division, a person required to provide any information, or to produce any document or thing, to a commission, or an appearing before a commission to give evidence, is not excused from providing the information, or producing the document or thing, or giving the evidence, on the ground that the information, or document or thing, or evidence, may tend to incriminate him or her.
(2)Any information provided, or document or thing produced, or evidence given, by a person to a commission is not admissible against him or her in any proceedings, whether civil or criminal, nor can it be made the ground of any prosecution, action or suit against him or her other than in proceedings for perjury or giving false information."
It is submitted on behalf of Esso by learned senior counsel that that protection applies to the sought-for material.
I am not persuaded that the statutory protection does here apply.
It is plain that sub-s.(1) refers to "required", that is to say coerced, material. Sub-s.(2) does not in terms link with sub-s.(1) as would have been the case if the word "so" appeared in sub-s.(2) before the verbs "provided", "produced" or "given" - that is to say, "any information so provided or document or thing so produced or evidence so given". However, I consider despite that absence that the plain meaning of sub-s.(2), given its purpose and context, is as if the word "so" there appeared. That is because its purpose is protection provided in relation to coercively required material, and its context is s.19C. Further, the provisions of s.19C and indeed the cluster of provisions introduced by s.6 Crimes, Confiscation and Evidence Acts (Amendment) Act 1998 evidently constitute a scheme of protection and provision, and s.19C(2) is to be construed in that context. The section appears in Part I Div.5 of the Evidence Act 1958. (Section 30 appears in Part II Div.2). Thus I consider that the operation of sub-s.(2) is dependent upon the operation of sub-s.(1).
However, I consider sub-s.(2) does not to apply to corporations. The legislature is to be taken to know the common law at the time of the implementation of legislation, this provision being enacted in 1998. EPA v. Caltex Refining Company Pty.Ltd. (1993) 178 CLR 477 established that the privilege against self incrimination does not apply to corporations. In the judgment of Mason, C.J. and Toohey, J. who formed part of the majority in that case, the considerations relevant to that conclusion are there set out. Their Honours cite the speech of Lord Templeton in Istel Ltd v. Tully (1993) A.C. 45 at 53 that the privilege can be justified only on two grounds:
"first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions."
Lord Denning MR, in British Steel Corporation v. Granada Television Pty Ltd (1981) A.C. 1906 at 1127 stated:
"In these courts, as in the United States, the privilege is not available to a corporation. It has no body to be kicked or soul to be damned. The public interest lies much more in making corporations disclose their misdeeds than in giving them this shield of privilege."
(I put aside the assumption which is there evident). At 498 Mason, C.J. and Toohey, J. state:
"Historically, the privilege developed to protect individual human persons from being compelled to testify, on pain of excommunication or physical punishment, to their own guilt. At the time of the development of the privilege in relation to proceedings in the Star Chamber and the High Commission, private corporations as we know them today were not a concept known to the law, although corporations established by Royal Charter were in existence."
Their Honours proceed (at 499 to 500):
"Neither the fact that the privilege had its origin in the necessity of protecting human beings from compulsion to testify on pain of excommunication or physical punishment nor the modern justification of discouraging ill-treatment of individuals and dubious confessions requires that the privilege be available to corporations. Although corporations are susceptible to punishment, whether by means of imposition of fines or sequestration, they cannot suffer physical punishment. Nor can they testify or be required to testify except through their officers. Consequently, the historical reasons for the creation and recognition of the privilege do not support its extension to corporations. Likewise, the modern and international treatment of the privilege as a human right which protects personal freedom, privacy and human dignity is a less than convincing argument for holding that corporations should enjoy the privilege."
Their Honours at 501 proceed to the consideration of the maintenance of the accusatorial system. I shall not repeat it. However, the following should be noted as a foundation for Their Honours' reasoning. At page 502 Their Honours say this of the privilege against self incrimination:
"In its application to the production of documents, the operation of the privilege is more far reaching in the protection which it gives than in its application to oral evidence. It is one thing to protect a person from testifying to guilt; it is quite another thing to protect a person from the production of documents already in existence which constitute evidence of guilt, especially documents which are in the nature of real evidence."
The Middletons' Submission was not a company document or a document "already in existence" but was simply a document created by lawyers for the purposes of making submissions to a Royal Commission. Thus, one of the foundations of the reasoning in the High Court majority in EPA v Caltex Refining Company Pty Ltd, is conspicuously absent from the present case.
Further, sub-s.(2) speaks of being "not admissible against him or her", reflecting the terms of sub-s.(1) "may tend to incriminate him or her". In the 1928 predecessor of what is now s.30 - the provision which preserves the privilege against self-incrimination as to statements by witnesses before Boards or Commissions - the traditional personal pronoun "he" appeared. Section 30 of the 1928 Act is precisely replicated by the present s.30, which was enacted in 1958. In s.19C, introduced in 1998, the personal pronouns are in the modern form of "him or her." But the words protecting against self-incrimination, in s.30 or s.19C, all are personal. They are to be contrasted with the expression "the person" in s.19D(1) dealing with legal professional privilege. That is because (normally) a corporation can claim legal professional privilege and thus the expression "the person" there appears; whereas in 19C, a corporation cannot claim privilege against self-incrimination and thus the matter is in 19C expressed in the personal.
For those reasons I consider that s.19C does not act as a protection to Esso in relation to the elicitation of the sought-for material. I have not referred to the Second Reading speech of the Treasurer (Hansard, Assembly, 29 October 1998, 891) or the Explanatory Memorandum to the Bill (30 October 1998, Clause 3) because they add nothing to consideration of this question.
However, I am unpersuaded that as a matter of law the Submissions made by the solicitors, Messrs Middletons Moore and Bevins are capable of constituting an admission of fact by Esso or an admission against interest by Esso which can be tendered by the prosecution in proof of guilt of the crimes here charged. I put aside, as I have said in discussions with counsel, the use of the Submissions in cross-examination as to credit, if persons relevant to that matter are called by the defence. This question, rather, is the antecedent, a priori, question whether the Submissions (or any of them) are capable of constituting evidence in proof of guilt of the crimes charged. In my view, they are not.
It is true, as Mr Richter has submitted, that a number of the submissions are expressed in unequivocal terms - that is to say, in objective and absolute terms. Thus paragraph 5 on page 2 is expressed:
"The fire on 25 September resulted from a vapour release from the 905 heat exchanger caused by the failure of that vessel. The failure was due to embrittlement following the vessel being subjected to temperatures below those for which its metal was designed. The principal cause of the low temperatures was the loss of lean oil flow in the circumstances of cold condensate flowing to the Rich Oil Demethaniser."
Other submissions are similarly unequivocal objective and absolute: for example, paragraphs 21, 23, 24 and 25. The prosecution now seeks to elicit those statements as an admission by the accused company of vessel failure due to cold temperature embrittlement.
I consider it would be wrong to view those apparently absolute statements out of context. The first paragraph of the Introduction to the Submissions (para.11) states:
"These Submissions will address the matters necessary for report by the Commission."
The final paragraph of the Submissions (para.299) states:
"The objective of Esso's submission has been to consider carefully the probative evidence and relate that probative evidence to the specific focus of the Terms of Reference."
Various parts of the Submissions are overtly expressed to go to evidence received by the Royal Commission. Thus paragraph 22:
"Esso contends that on the basis of the evidence, it is open for the Commission to find that...."
Similarly, paragraphs 266 and 267. The unequivocal paragraphs should be viewed in the light of the qualified paragraphs (particularly paragraph 299) I have cited and are said by senior counsel for Esso to be but summaries of that qualified material.
However the more fundamental, and more important, contextual consideration is that Esso was a party before the Royal Commission (it having been given leave by the Royal Commission to appear, as set out in Appendix 1 Attachment 3 to the Report), and evidence, both documentary and oral, from Esso personnel of a very substantial sort coercively had been led. The Royal Commission had Terms of Reference quite different from a presentment (or informations by authorized officers in a court below) to inquire into. The Submissions, as is apparent from their whole tenor, were directed to the conclusions which the Royal Commission should or should not make, on the evidence before it, as to its Terms of Reference.
The three critical elements are the nature of the Royal Commission, its Terms of Reference, and the evidence before it. A Royal Commission is wholly different from a curial proceeding. It has Terms of Reference, the relevant one of which I have stated. It is not a court which has before it a presentment (or informations by an authorized officer as in the court below). The first Term of Reference, namely the causes of the explosion and fire, is not the same as or coextensive with the informations laid below or the presentment before me. The Occupational Health and Safety charges here and below are entirely different from "the causes of the explosion and fire". Next, a Royal Commission is not bound by the rules of evidence: an essential matter for consideration here. The ordinary principles of relevance and admissibility do not apply, nor do the extrapolated principles of evidence such as the rule in Browne v. Dunn, Jones v. Dunkel and the like. A central differentiation between this court inquiring into proof of articulated crimes charged and the Royal Commission is that the Royal Commission was not bound by the rules of evidence. Thus the matter before the Royal Commission was articulated in an entirely different mode from curial proceedings.
On their face, the Submissions were submissions to a Royal Commission in relation to evidence there received in satisfaction of its Terms of Reference. That is a far cry from an admission of a fact in issue capable of being tendered in this curial proceeding. A moment's reflection will demonstrate that the difference between, on the one hand, a statement by the accused company objectively about the cause of the fire and on the other hand, a submission by lawyers on behalf of Esso to a Royal Commission as to evidence received by the Royal Commission in satisfaction of its Terms of Reference. If Esso had stated to the world the cause of the explosion and fire, that is one thing; but a submission of lawyers to a Royal Commission does not constitute such a statement even if, as here, the submissions are expressed at various points apparently unequivocally. That those are apparently unequivocal or objective or absolute is not the point. The point is the statements were made in submissions by lawyers to a Commission on evidence including non-evidence before it and to its ends namely its Terms of Reference. The circumstance that the submissions were made on behalf of Esso, and doubtless on its instructions, does not derogate from their nature - submissions - nor from the context I have stated.
Further demonstration of the distinction between a statement of fact by Esso (capable of constituting an admission) and a statement apparently of fact by lawyers in a submission is the following. If the Submissions by Middletons had been expressed to be "solely a submission by Esso lawyers on evidence before the Royal Commission" it could not be argued to be an admission of fact by Esso. Yet in substance that is what the Submissions were. Further, if a legal submission overtly directed to, and confined to, evidence led in the Royal Commission is not admissible as an admission of fact or against interest by Esso - as ultimately was conceded by the learned senior prosecutor - then the evidence sought here to be led devolves upon the question whether some or all of the Submissions by Middletons went beyond their professed function. It would be most undesirable to go down that path. As a matter of policy, professional and evidentiary functions should be kept separate. And as a matter of analysis, the sought-for distinction is fraught with uncertainty.
It is put by the prosecution that the Submissions - or those apparently unequivocal parts that are sought to be led - were voluntary and need not have been made (or so expressed). That is put to the end that the constituent statements were able here to be led. But the coercive considerations relevant to the applicability of s.19C(2) are here inapplicable as that section does not apply to corporations. Voluntariness would go to the non-applicability of s.19C, but that section does not apply for reasons already stated.
It is finally put on behalf of the prosecution that Esso, through an officer of the Royal Commission, published the Submissions to the world. It is apparent from the affidavit of 19 March 2001 of Ms J E Kennedy, secretary to the Longford Royal Commission, that Esso authorized that its Submissions through the distribution system of the Royal Commission be published to the media. I consider the matter is of no moment. The publication to the world was in the fulcrum of the Royal Commission by Esso of its Submissions to the Royal Commission about evidence called before the Royal Commission and in satisfaction of the Royal Commission's Letters Patent. The circumstance that those Submissions were published is in my view inconsequential, because it does not change the character or nature of the document from a submission to an admission.
Accordingly, I am not satisfied that the material contained in the written Submissions of Messrs Middletons of 26 April 1999 is capable in law of constituting evidence of an admission of fact by Esso or an admission against interest by Esso which can be propounded by the prosecution in proof of guilt of the 11 crimes here charged.
I have not dealt with Mr Titshall's submissions as to prejudice because I consider that matter is not reached. The issue of prejudice is not reached because the material is not admissible in law in this court. My silence on that matter is not to be taken as any acquiescence that the Royal Commission was anything other than fair and that matter need not presently delay us.
What if any is the use of the Submissions on matters of credit will remain to be assessed at the time the issue then arises. It may be that parts of the Submissions can be put to witnesses called by the defence but that will have to be judged when
the evidence is in and that which is said by the prosecution to make that material capable of being used on matters of credit is then known. That is quite a different matter from the material constituting an admission in proof of guilt.
For those reasons I rule that the Submissions on behalf of Esso Australia Ltd by Middletons Moore and Bevins of 26 April 1999 are inadmissible in these proceedings in proof of guilt of any of the 11 crimes charged.
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