Environment Protection Authority v Shell Co of Australia Ltd (No 4)

[1999] NSWLEC 289

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority V Shell Co of Australia Ltd (No 4) [1999] NSWLEC 289

PARTIES

PROSECUTOR
Environment Protection Authority

DEFENDANT
Shell Co of Australia Ltd

NUMBER:

50071 of 1997

CORAM:

Bignold J

KEY ISSUES:

Environmental Offences :- Environmental Offices - Whether information furnished to Prosecutor by Defendant pursuant to statutory notice should be excluded as being involuntary admissions.

LEGISLATION CITED:

Evidence Act 1995 s 90

DATES OF HEARING:

11/19/1999

DATE OF JUDGMENT DELIVERY:

11/22/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D. Buchanan SC with Mr D Jordan, Barrister

SOLICITORS
Environment Protection Authority

DEFENDANT
Mr Miller QC with Mr I Hemmings, Barrister

SOLICITORS
Coudert Bros

JUDGMENT:

IN THE LAND AND Matter No . 50071 of 1997

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 22 November 1999

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

SHELL CO. OF AUSTRALIA LTD (No 4)

Defendant

JUDGMENT ON ADMISSIBILITY OF EVIDENCE

Bignold J:

1. The Prosecutor has sought to tender as admissions against the Defendant a number of reports and documents that were provided by the Defendant to the Environment Protection Authority (EPA) in accordance with three statutory notices issued by the EPA to the Defendant over the period October 1994 to October 1995.

2. These statutory notices are respectively—
(i.) Notice pursuant to the Environmentally Hazardous Chemicals Act 1985 s 35 dated 13 October 1994;
(ii.) Notice pursuant to s 27A of the Clean Waters Act dated 28 July 1995;
(iii.) Notice pursuant to Pollution Control Act 1970 s 24 (1A)(a) dated 25 October 1995.

3. It is not necessary to identify the particular documents that were provided to the EPA pursuant to these notices, it being sufficient to note that it is common ground that the relevant documents were provided pursuant to the obligations imposed upon the Defendant by the statutory notices.

4. It is also to be noted that each of the three Acts pursuant to which the statutory notices were issued creates a statutory offence if the notices are not complied with.

5. The Defendant submits that the documents were produced under compulsion of law and asks the Court to exclude the admission in the exercise of the discretion conferred by the Evidence Act 1995 s 90.

6. That discretion has recently been described by the High Court of Australia as “very wide”: see R v Swaffield (1998) 151 ALR 98.

7. In opposing the Defence submission, Senior Counsel for the Prosecution has drawn the Court’s attention to the recent decision of the NSW Court of Appeal in DPP v Alderman (1998) 45 NSWLR 526 where the Court, in an obiter dictum, held that evidence given before the Police Royal Commission would be admissible in evidence on a charge of an offence under the Royal Commission (Police Service) Act 1994 against the person who had given the evidence before the Royal Commission.

8. In expressing that obiter dictum, the Court of Appeal did not follow the earlier decision of James J in DPP v Persson (unreported 16 April 1996) where his Honour held, on a charge of an offence against the Independent Commission Against Corruption Act 1988, inadmissible as being an involuntary admission, evidence given before the Independent Commission Against Corruption.

9. The Court of Appeal also supported its decision by reference to the decision of the Court of Criminal Appeal in R v Azar (1991) 56 A Crim R 414 where Gleeson CJ stated at 418:

As an illustration of the care that needs to be exercised in interpreting words used in this area of discourse without regard to the context, it has been held that answers made under compulsion of law are not, on that account, involuntary: R v Kempley (1944) 44 SR (NSW) 416; R v Owen [1951] 1 VLR 393; R v Travers [1958] 58 SR (NSW) 85; Zion [1986] VR 609.

10. Reference to the cases cited by the Chief Justice and particularly to the decision of Murphy J in R v Zion (1986) VR 609 (which contains an extensive review of the relevant authorities, both ancient and modern), has led me to the conclusion that the furnishing of the documents to the EPA by the Defendant pursuant to the three statutory notices cannot be regarded in law as being involuntary.

11. It is to be noted that by the respective times the three statutory notices had been issued, the High Court of Australia in the majority decision in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 had held that the privilege against self incrimination did not apply to corporations.

12. Although that case was not concerned with the question of the admissibility against the defendant of evidence comprising reports and documents produced to the EPA, pursuant to statutory notice issued under the Clean Waters Act 1970 s 29, it is apparent that their Honours recognised the forensic legitimacy of the prosecution relying upon such documents as evidence against the company on a charge of an offence against the Clean Waters Act.

13. The Evidence Act 1995 s 187 now enacts that a body corporate does not have any privilege against self incrimination or exposure to penalty.

14. Although this outcome does not necessarily displace the discretion under s 90 to exclude admissions, since there is nothing that the Defendant has relied upon in support of its application, save for the fact that the documents were provided under compulsory process, I am not satisfied that there is any reason or foundation that would justify exclusion of the admissions under s 90.

15. Accordingly, I must reject the Defence submission and hold that the documents are admissible in evidence as admissions within the meaning of the Evidence Act Part 3.4.