Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd
[2002] NSWLEC 202
•11/12/2002
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd [2002] NSWLEC 202 PARTIES: PROSECUTOR
DEFENDANT
Environment Protection Authority
McConnell Dowell Constructors (Australia) Pty LtdFILE NUMBER(S): 50009 of 1999 CORAM: Pearlman J KEY ISSUES: Evidence :- admissibility - record of interview - whether an admission - whether discretion to exclude should be exercised - authority to make admission - whether admission improperly obtained - failure of investigator to give full caution LEGISLATION CITED: Clean Waters Act 1970 s 16(1)
Evidence Act 1995 s 81, s 87, s 90, s 138, s 139, s 187
Protection of the Environment Operations Act 1997 s 216CASES CITED: Papakosmas v The Queen (1999) 196 CLR 297;
Tesco Supermarkets Ltd v Nattrass (1972) AC 153DATES OF HEARING: 05/11/2002; 07/11/2002 DATE OF JUDGMENT:
11/12/2002LEGAL REPRESENTATIVES: DEFENDANT
PROSECUTOR
Mr D A Buchanan SC with Mrs J Kelly (Barrister)
SOLICITORS
Environment Protection Authority
Mr J L Glissan QC with Mr G B Newport (Barrister)
SOLICITORS
Doyles Construction Lawyers
JUDGMENT:
50009 of 1999
Pearlman J
12 November 2002
- Prosecutor
- Defendant
Introduction
1 The issue for determination is the admissibility in these class 5 proceedings of a transcript of a record of interview of Mr Craig Beveridge.
2 The defendant is charged with pollution of waters under s 16(1) of the Clean Waters Act 1970, arising out of a spill of oil into Woolloomooloo Bay which occurred on 25 February 1998 during demolition works being carried out on the Finger Wharf. The prosecutor relies upon the vicarious liability of the defendant for the act of its sub-contractor, Moltoni Corporation Pty Ltd (“Moltoni”). The defendant was engaged in works on the Finger Wharf under a head contract with Multiplex Constructions (NSW) Pty Ltd (“Multiplex”).
3 Mr M A Callaghan, an investigating officer in the employ of the prosecutor, conducted a recorded interview of Mr Beveridge, an employee of the defendant, on 13 November 1998. Mr Beveridge is not available to give oral evidence.
4 The prosecutor sought to tender the transcript of the record of interview (“the record”) and the defendant objected to its tender. Evidence was then called on a voir dire from Mr Callaghan, and evidence adduced from Mr R Moltoni and Mr S King was also directed to be taken on the voir dire. In addition, a document containing a tender for the Finger Wharf project made by the defendant to Multiplex was admitted into evidence on the voir dire.
5 The prosecutor relied upon s 87(1)(b) of the Evidence Act 1995 to support the tender of the record. That section provides as follows:
87 Admissions made with authority
(a) …(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; …
6 Mr Glissan QC, appearing for the defendant, conceded that Mr Beveridge was, for the purpose of s 87(1)(b), an employee of the defendant, and that the matters stated by him in his interview with Mr Callaghan (“the statements”) related to a matter within the scope of Mr Beveridge’s employment. Nevertheless, Mr Glissan submitted that the record was not admissible and that its tender should be rejected upon the following grounds:
(1) The statements did not amount to an “admission” by the defendant within the definition provided in the dictionary to the Evidence Act;
(2) Even if the statements amounted to an admission for the purpose of the Evidence Act, the Court should nevertheless refuse to admit the record pursuant to s 90 of the Evidence Act, on the basis that, as set out in s 90(b), “… it would be unfair … to use the evidence”. The elements of unfairness to which Mr Glissan pointed were as follows:
i. Mr Beveridge had no authority to represent the defendant and the statements would not be permitted to be adduced in evidence against the defendant, absent the imprimatur of s 87;
ii. No proper caution was administered by Mr Callaghan to Mr Beveridge before the interview was conducted and recorded;
iii. The statements must be taken to have been improperly obtained within the terms of s 139(2)(b) of the Evidence Act, because Mr Callaghan must be taken to have formed the belief that there was sufficient evidence to establish that Mr Beveridge or the defendant had committed an offence;
iv. The statements are equivocal on the issue of the control exercised by the defendant over Moltoni as its sub-contractor;
v. There is an inherent unreliability in the statements, taking into account that Mr Beveridge was himself at risk of prosecution; and
vi. Mr Beveridge is unavailable for cross-examination.
The competing claims raise a number of issues. I deal with each in turn.
Admission
7 The term “admission” is defined in the dictionary to the Evidence Act as follows:
‘admission’ means a previous representation that is:
(b) adverse to the person’s interest in the outcome of the proceeding.(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
8 There is no argument that the statements amount to a “previous representation”. Mr Glissan’s objection turns on whether the statements fall within sub-cl (b). Mr Glissan submitted that the statements are equivocal, that is, that they do not amount to any representation adverse to the defendant’s interest in the outcome of the proceedings.
9 The prosecutor relies upon the whole of the record, but, in particular, relies upon statements by Mr Beveridge as to the letting of the sub-contract to Moltoni, the obtaining of work method statements from Moltoni, the passing on of such work statements to Multiplex, the personal involvement of Mr Beveridge as project manager responsible for the defendant’s role in the Finger Wharf project, Mr Beveridge’s understanding of the existence of the oil pipe, his impression that it was empty, and the absence of testing as to whether or not the pipe was empty.
10 I am of the opinion that the matters I have outlined from the record, and, indeed the whole of the record (which I have read for the purpose of this judgment) consist of statements about the relationship between the defendant and Moltoni – the nature of that relationship, the circumstances surrounding it, the respective responsibilities of the defendant and Moltoni, especially in regard to the oil pipe. Those matters are, in my opinion, of direct relevance to the issue of whether or not the defendant could be said to be vicariously liable for the acts of Moltoni, and hence those statements are of direct relevance to the liability of the defendant for the offence with which it is charged. So far as the statements tend to prove that the defendant exercised the requisite degree of control over the acts of Moltoni, then they must be regarded as adverse to the interest of the defendant in the outcome of the proceedings. The statements are, accordingly, an “admission” for the purpose of s 87 of the Evidence Act.
The s 90 claim
11 The whole of pt 3.4 of the Evidence Act relates to “admissions”. Section 81 provides, amongst other things, that the hearsay rule does not apply to evidence of an admission. Section 90, which falls within pt 3.4, provides 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:
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.(a) the evidence is adduced by the prosecution; and
12 As I have said, Mr Glissan has urged the Court to exercise its discretion to exclude the record on the basis that it would be unfair to the defendant to use it as evidence.
Mr Beveridge’s authority
13 There is no evidence to establish whether or not Mr Beveridge had actual or ostensible authority to make the statements on behalf of the defendant. It would be the position at common law that such authority would need to be established before the statements could be taken to be admissions by the company (Tesco Supermarkets Ltd v Nattrass (1972) AC 153). But s 87 changes the common law position (see Papakosmas v The Queen (1999) 196 CLR 297) by providing that the court is to admit the representation if it is reasonably open to find the matters specified in that section, in particular for present purposes, that the person who made the representation was an employee of the party and the representation related to a matter within the scope of the person’s employment.
14 Nevertheless, in Mr Glissan’s submission, the absence of evidence of actual or ostensible authority is such that it would not be fair, in terms of s 90, to admit the statements against the interests of the defendant.
15 In my opinion, this submission must be rejected. If the absence of actual or ostensible authority was to be taken as establishing unfairness for the purpose of s 90, it would have the effect of rendering the operation of s 87 nugatory. Mr Buchanan SC, appearing for the prosecutor, submitted that the effect would be “to subvert” the operation of s 87. I agree. So long as the requirements of s 87 are met (which they are in this case by virtue of the defendant’s concession as to the status of Mr Beveridge as an employee and as to relationship of the statements to the scope of his employment), then the statements may be admitted, despite the absence of evidence of actual or ostensible authority. The question of fairness under s 90 does not arise in this context.
The requirement for a caution
16 The following exchange between Mr Callaghan and Mr Beveridge is noted in the record:
A: Yes.Q2: As I have already explained to you, my name is Mark Callaghan I am an investigator with the EPA. I am making enquiries regarding an oil spill at the Finger Wharf at Woolloomooloo Bay on Wednesday 25th February 1998 at around about 4.30 p.m. I intend asking you questions about the matter and those questions and your answers will be recorded and may later be used. Do you understand the purpose?
17 There is no real dispute that the words uttered by Mr Callaghan fell short of a full caution in that they did not refer to the fact that Mr Beveridge did not have to provide answers but that if he did the answers might later be used in evidence. This raises three separate issues.
18 The first issue is whether a caution was required to be administered at all. Mr Buchanan submitted that the statements were made by Mr Beveridge as an employee of the defendant, and that, pursuant to s 187 of the Evidence Act, no privilege against self-incrimination is available to the defendant as a body corporate. The difficulty with this submission is that it was not clear that Mr Beveridge was making the statements solely on behalf of the defendant. Clearly enough, he was being questioned because he was the project manager for the Finger Wharf project, and as an employee of the defendant, but he himself may also have been at risk of prosecution. I am of the view that it was necessary to administer a full caution to Mr Beveridge.
19 The second issue is whether, by reason of the failure to administer a caution, the statements were obtained improperly, so that the Court should exercise its discretion to reject the admission of the record into evidence pursuant to s 138(1)(a) of the Evidence Act. Relevant to that issue is s 139(2), which provides as follows:
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and(2) For the purposes of paragraph 138(1)(a), evidence of a statement made or an act done by a person during official questioning is taken to have been obtained improperly if:
(b) the statement was made…after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and
(c) the investigating official did not, before the statement was made … caution the person that the person does not have to say anything … but that anything the person does say … may be used in evidence.
20 It is not in dispute that Mr Callaghan did not have the power to arrest Mr Beveridge. The issue turns on whether Mr Callaghan had formed a belief within the terms of sub-cl (b). In giving evidence on the voir dire, Mr Callaghan denied that he had formed such a belief. He said that he had been brought in to conduct investigations, and that, for that purpose, he had been briefed by Mr McElwain, a solicitor employed by the prosecutor. It was not within his role or authority to determine who was to be prosecuted, although he knew that the answers to questions put to him would have been used in evidence against whoever was to be prosecuted, that is, to use his words, “… a possible prosecution ... probably … but against who I had no idea…”. (T 05/11/02 p 41 line 45)
21 This evidence does not establish that evidence of the statements was obtained improperly within in the meaning of s 139(2). That would be sufficient to dispose of this second issue, but I should add that, even if I was wrong in so holding, I would nevertheless exercise the Court’s discretion under s 138(1) to admit the record, taking into account the relevant matters specified for the Court’s consideration in this respect in s 138(3). The relevant matters are:
(a) the probative value of the evidence …
(b) the importance of the evidence in the proceeding;
(e) whether the impropriety … was deliberate or reckless.(d) the gravity of the impropriety …
22 In my opinion, the statements have probative value. To adopt the definition of “probative value” in the dictionary to the Evidence Act, I find that the statements could rationally affect the assessment of the probability of the existence of a fact in issue, namely, whether the defendant exercised such a degree of control of Moltoni that it could at law be vicariously liable for the conduct of Moltoni. That fact in issue is crucial to the determination of the guilt or innocence of the defendant, and accordingly, I find that the statements are important evidence in the proceedings. Furthermore, Mr Callaghan did attempt to administer a caution, but he failed to do so to the necessary extent. Nevertheless, he did warn Mr Beveridge, and hence the impropriety, if there was one, was not grave, nor was it deliberate or reckless.
23 The third issue is whether the failure to administer a full caution, when considered in the whole context of the state of the investigation at the time the record was made, is such as to amount to unfairness within s 90. Mr Glissan pointed to the requirement, in s 216 of the Protection of the Environment Operations Act 1997, that the proceedings are required to be commenced not later than 12 months after the date on which the offence is alleged to have been committed. By November 1998, when the interview took place, time was running out - just over three months remained before the expiry of the limitation period. In Mr Glissan’s submission, when this is considered together with the failure to administer a full caution, it would be unfair to use the statements. I am not persuaded, however, that these circumstances amount to unfairness within s 90. Although time may have been running out, there is no evidence that the investigation was being conducted with undue haste or that the risk of the expiry of the limitation period was causing the prosecutor to cut corners. Mr Callaghan did endeavour, as I have noted, to administer a full caution. That he failed to do so is a fact, but it is not a fact that goes to the fairness of using the statements as evidence.
Other elements of unfairness
24 I have noted, in par 6 above, that Mr Glissan submitted that the statements are equivocal, that they are not reliable, and that they cannot be tested because Mr Beveridge is not available to give oral evidence. For the purpose of exercising a discretion to exclude the statements pursuant to s 90, none of these matters are, in my opinion, relevant. Section 90(b) makes it clear that, in exercising the discretion on the ground of unfairness, the Court is to have regard to the circumstances in which the admission was made. None of these matters goes to such circumstances.
25 They may be relevant to a consideration of whether or not to exclude the record under the general discretion to exclude evidence conferred on the Court by other sections of the Evidence Act. However, counsel for the parties sought and obtained leave to address the Court on these matters at a later date, and accordingly I refrain from expressing any opinion about the operation of other sections of the Evidence Act in relation to the record.
Conclusion
26 For the foregoing reasons, I am prepared to admit into evidence the transcript of the record of interview of Mr Craig Beveridge. I will refrain from formally doing so until the parties have had an opportunity to address the Court on the operation of ss 135 or 137 (and any other relevant section) of the Evidence Act in relation to the admission of that document.
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