Ku-ring-gai Council v John David Chia (No 4)

[2018] NSWLEC 75

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ku-ring-gai Council v John David Chia (No 4) [2018] NSWLEC 75
Hearing dates:	16, 17, 18, 20, and 24 April,16 May 2018
Date of orders:	22 May 2018
Decision date:	22 May 2018
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [108]
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application – evidence – criminal trial – application by defendant to exclude evidence under s 138 of the Evidence Act – interview given by defendant against his objection – transcript of interview provided to investigator – transcript referenced by investigator whilst interviewing material witnesses – whether witnesses should be precluded from giving evidence – whether evidence improperly obtained   STATUTORY INTERPRETATION – statute conferring the power to compulsorily interview – privilege against self-incrimination – whether fundamental right abrogated in the context of the statute – principles of construction – principle of legality – whether use of plain words or necessary implication
Legislation Cited:	Australian Crime Commission Act 2002 (Cth) s 25A Environmental Planning and Assessment Act 1979 (NSW) ss 118N, 118BA, 119S, 122U Evidence Act 1995 (NSW) s 138 New South Wales Crime Commission Act 1985 (NSW) s 13
Cases Cited:	Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Hunter v Chief Constable of West Midlands Police [1982] AC 529 Ku-ring-gai Council v John David Chia (No 3) [2018] NSWLEC 61 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Lee v The Queen (2014) 253 CLR 455 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 R v Ross Edward Seller; R v Patrick David McCarthy [2013] NSWCCA 42; (2013) 273 FLR 155 R v Seller; R v McCarthy [2012] NSWSC 934; (2012) 269 FLR 125 Rogers v R (1994) 181 CLR 251 Seller v The Queen; McCarthy v The Queen (2015) 89 NSWLR 155; [2015] NSWCCA 76 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Category:	Procedural and other rulings
Parties:	Ku-ring-gai Council (Prosecutor) John David Chia (Defendant)
Representation:	Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with A Djemal (Defendant)   Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant)
File Number(s):	2016/00293131
Publication restriction:	Nil

Judgment

1. Before the Court is an application made by Mr John David Chia (‘the defendant’) to exclude the evidence of certain witnesses in these Class 5 proceedings (‘the application’). The application was made on the morning of the third day of hearing of the proceedings. Oral argument was heard on that day, before written submissions were filed on 23 April 2018, and further oral argument was heard on 24 April and 16 May 2018.

2. In essence, pursuant to s 138 of the Evidence Act 1995 (NSW) (‘Evidence Act’), the defendant seeks to prevent Ku-ring-gai Council (‘the prosecutor’) from adducing the evidence of Mr Craig Edgar, Mr Jesse Draeger and Mr James McKenzie. Because Mr Edgar has already given evidence in the proceedings, the defendant seeks that it be withdrawn. The defendant also seeks an order to prohibit Mr Draeger and Mr McKenzie, whom the prosecutor seeks to call in the proceedings, from giving oral evidence.

3. For the reasons that follow, I have determined that the defendant’s application should be dismissed.

The alleged offence

4. On 30 September 2016, the prosecutor filed the summons in these proceedings. On that date, the defendant was ordered to attend this Court to answer the charge that he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’).

5. The alleged offence relates to the lopping of 74 trees approximately between 6 October 2014 and 21 October 2014 on land which included the defendant’s property at 53 Carnarvon Road, Roseville; a Crown reserve adjacent to his property; and Roseville Golf Course (collectively ‘the site’) in breach of the Ku-ring-gai Council Tree Preservation Order (‘TPO’). Each of the witnesses sought to be excluded by the application was allegedly retained by the defendant to carry out the tree clearing works.

6. The prosecutor alleges that the defendant directed the tree clearing works to be carried out in circumstances where he had no lawful authority to do so.

Background

7. On 16 October 2014, Ms Wendy Miller, an officer from the prosecutor, attended the site in response to a complaint about the tree clearing. Ms Miller returned to the site on 21 October 2014 and on that occasion spoke to Mr Edgar. A week later, on 28 October 2014, Ms Miller caused a letter to be sent to Mr Edgar advising him that he was required to attend an interview in respect of the removal of trees pursuant to what was then s 118BA(44)(a) of the EPA Act.

8. On 9 December 2014, Ms Miller caused a similar letter to be sent to Mr McKenzie, requiring him to attend an interview. On 7 January 2015, Ms Miller caused a letter of the same effect to be sent to the defendant.

9. Consequently, the defendant attended an interview on 5 February 2015. He was interviewed by Ms Miller and Mr Tony McCormack. The defendant advised prior to answering any questions that he objected to the interview on the grounds that his answers may incriminate him. As at the date of the interview, the defendant had not been charged with any offence.

10. On 23 June 2016, the prosecutor appointed Mr Philip Myles as an investigator pursuant to what was then s 118B of the EPA Act. It is agreed that Mr Myles was provided with and read a copy of the defendant’s compulsory interview with Ms Miller and Mr McCormack.

11. On 29 July 2016, Mr Myles conducted an interview with Mr Edgar. It is agreed that during that interview Mr Myles had regard to certain information obtained from the defendant’s record of interview and further that he couched certain questions in terms of certain answers that the defendant gave whilst being interviewed under compulsion.

12. On the same day, 29 July 2016, Mr Myles interviewed Mr Draeger. The defendant alleges that in this interview Mr Myles also used information which was obtained from the defendant’s record of interview.

13. On 19 August 2016, Mr Myles interviewed Mr McKenzie. The defendant again alleges that in this interview Mr Myles also used information which was obtained from the defendant’s record of interview.

14. On 30 September 2016, the prosecutor filed the summons in these proceedings, in which it proposes to call each of Mr Edgar, Mr Draeger, and Mr McKenzie as material witnesses.

Relevant statutory provisions

15. Whether the correct version of the EPA Act to be applied in these proceedings is that which applied at the time of the defendant’s compulsory interview or that which applied when Mr Myles conducted his interviews with the witnesses was the subject of some minor disagreement between the parties. The defendant used the former in his submissions and the prosecutor adopted the latter.

16. I adopt below the version of the EPA Act in force when the defendant was compulsorily interviewed, but I note that the parties agreed that the provisions between the two versions are relevantly identical (albeit renumbered) such that it is unnecessary to express a concluded view on this point.

17. The defendant was interviewed pursuant to what was then s 118BA of the EPA Act:

118BA Power of authorised persons to require answers and record evidence

(1)   A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters.

(2)   An authorised person may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.

(3)   An authorised person may, by notice in writing, require a person referred to in subsection (1) to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(4)   The place and time at which a person may be required to attend under subsection (3) is to be:

(a)   a place and time nominated by the person, or

(b)   if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised person that is reasonable in the circumstances.

(5)   An authorised person may cause any questions and answers to questions given under this section to be recorded if the authorised person has informed the person who is to be questioned that the record is to be made.

(6)   A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised person.

(7)   A copy of any such record must be provided by the authorised person to the person who is questioned as soon as practicable after it is made.

(8)   A record may be made under this section despite the provisions of any other law.

18. By the operation of s 118N(2), a council investigator conducting an interview was required to abide by the provisions of s 122U (which was subsequently renumbered s 119S). At the time of the defendant’s interview, s 122U provided:

122U Provisions relating to requirements to furnish records, information or answer questions

(1)    Warning to be given on each occasion

A person is not guilty of an offence of failing to comply with a requirement under this Division to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.

(2)   Self-incrimination not an excuse

A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.

(3)   Information or answer not admissible if objection made

However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:

(a)   the person objected at the time to doing so on the ground that it might incriminate the person, or

(b)   the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.

(4)   Records admissible

Any record furnished by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

(5)   Further information

Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground:

(a)   that the record or information had to be furnished or the answer had to be given, or

(b)   that the record or information furnished or answer given might incriminate the person.

19. Section 138 of the Evidence Act provides:

138 Exclusion of improperly or illegally obtained evidence

(1)   Evidence that was obtained:

(a)   improperly or in contravention of an Australian law, or

(b)   in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)   Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)   did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b)   made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)   Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)   the probative value of the evidence, and

(b)   the importance of the evidence in the proceeding, and

(c)   the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)   the gravity of the impropriety or contravention, and

(e)   whether the impropriety or contravention was deliberate or reckless, and

(f)   whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g)   whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)   the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

Evidence

20. The evidence on the voir dire comprised a transcript of the defendant’s record of interview; a memorandum noting the appointment of Mr Myles; transcripts of Mr Myles’ interviews with each of Messrs Edgar, Draeger, and McKenzie; passages from an affidavit of Ms Miller; and various contemporaneous letters and file notes prepared by the prosecutor.

21. I refused an application made by the prosecutor to tender audio recordings of Mr Myles’ interviews, the transcripts of which had already been adduced on the voir dire, in Ku-ring-gai Council v John David Chia (No 3) [2018] NSWLEC 61.

Defendant’s submissions

22. The defendant submits that the evidence of Messrs Edgar, Draeger, and McKenzie should be excluded by operation of s 138 of the Evidence Act. Alternatively, and the defendant submits not inconsistently with the operation of that provision, that the Court has the power to refuse to admit evidence where it would constitute an abuse of process (Hunter v Chief Constable of West Midlands Police [1982] AC 529; Rogers v R (1994) 181 CLR 251) which should be exercised to exclude the evidence of those witnesses in this case.

23. The defendant relies on a line of High Court authority beginning with X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 (‘X7’) which concerns an aspect of the right of an accused person to a fair trial. In essence, the testimony of an accused person obtained compulsorily is not admissible at trial, unless expressly authorised in clear words by statute.

24. The defendant submits that the terms of s 122U of the EPA Act do not authorise Mr Myles’ use of the defendant’s record of interview. It is contended by the defendant that in the course of interviewing the witnesses, Mr Myles impermissibly divulged aspects of the defendant’s defence such that if their testimony were admitted he would be denied a fair trial in a regard similar to that considered in Lee v The Queen (2014) 253 CLR 455 (‘Lee v The Queen’).

25. The defendant further relies on Seller v The Queen; McCarthy v The Queen (2015) 89 NSWLR 155; [2015] NSWCCA 76 (‘Seller’), a case in which the Court of Appeal affirmed the primary judge’s order that a witness who was privy to compulsory testimony given by the defendants be prevented from giving evidence. The defendant says that Seller is “on all fours” with the present case.

Prosecutor’s submissions

26. The prosecutor submits that the defendant’s application is misconceived and that he has failed to identify how the viva voce testimony of the witnesses would constitute evidence unlawfully or improperly obtained within the meaning of s 138 of the Evidence Act. Nor, according to the prosecutor, would the Court consider the adducing of that evidence an abuse of process.

27. The prosecutor submits that even if the Court were of the view that some answers given by Mr Edgar were unlawfully or improperly obtained, it does not logically follow that the entirety of his viva voce evidence and that of the other witnesses has been unlawfully or improperly obtained. The prosecutor contends that such a submission is an irrational leap and unsupported by authority.

28. The prosecutor does not concede that any of the evidence has been unlawfully or improperly obtained and submits that s 122U plainly abrogates the right against self-incrimination. The prosecutor does not deny the defendant’s position that the provision should be read according to the principle of legality, but submits that the words of the statute are plain as to which parts of the right are abrogated and which are maintained.

29. The prosecutor distinguishes the line of High Court cases from X7 on the grounds that the case turned on the fact that, unlike the present case, the accused person compulsorily interviewed was facing criminal charges at the time of the interview. The prosecutor says that R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 (‘IBBACC’) makes it clear that this was a crucial circumstance in X7.

30. The prosecutor denies that the present case is “on all fours” with Seller, and submits that the statutory scheme was very different in that case. Particularly, the prosecutor notes that in the present case, the power to compulsorily interview is vested in councils which are themselves prosecuting bodies. In that regard, the prosecutor submits that the extent to which the right against self-incrimination is abrogated is a question of statutory interpretation in the given case: Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 (‘Lee v NSWCC’).

31. Having regard to the statutory context of the EPA Act, the prosecutor submits that “the line” not to be crossed is any attempt to adduce answers given by the defendant under compulsion. As the prosecutor does not intend to cross that line, and in circumstances where the defendant has not been able to identify any real prejudice, but only “hypothetical” prejudice, it submits that the defendant’s application should be dismissed.

Consideration

X7 and the “companion rule”

32. The present application raises the issue of what has been called the “companion rule” to the principle that the onus in a criminal trial is for the prosecution to prove guilt beyond a reasonable doubt. The companion rule, that a defendant cannot be obliged to participate in the prosecution’s attempt to discharge that onus, has been articulated by the High Court in a number of recent decisions.

33. In X7, the defendant was charged with offences and compulsorily interviewed pursuant to the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’) before the matter went to trial. A direction was given under s 25A(9) of the ACC Act which stipulated that prosecutors and police officers investigating the matter were not entitled to receive a transcript of the defendant’s interview.

34. The majority of the High Court (Hayne and Bell JJ, with Kiefel J, as her Honour then was, concurring) held that the ACC Act did not authorise the compulsory interview of a person in respect of an offence with which they had been charged. Such a course would constitute a departure from the usual criminal process to an extent which could only be authorised by the express words or necessary intendment of parliament.

32. Concurring with the orders made by Hayne and Bell JJ, Kiefel J made the following statement of principle at [159]-[160]:

[159] Relevant to the question of legislative intention is not only the privilege of the person to refuse to answer questions which may incriminate him or her, but also a fundamental principle of the common law. The fundamental principle – that the onus of proof rests upon the prosecution – is as stated in Environment Protection Authority v Caltex Refining Co Pty Ltd, as is its companion rule – that an accused person cannot be required to testify to the commission of the offence charged. The prosecution, in the discharge of its onus, cannot compel the accused to assist it.

[160] The common law principle is fundamental to the system of criminal justice administered by courts in Australia, which, as Hayne and Bell JJ explain, is adversarial and accusatorial in nature. The accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial inquiries and investigations. This is recognised by the statutory provisions to which their Honours refer. It may be added, as to the trial itself, that the concept of an accusatorial trial where the prosecution seeks to prove its case to the jury has a constitutional dimension (some citations omitted).

36. The “companion rule” was again considered by the High Court in Lee v The Queen. In that case, the transcript of a defendant’s compulsory interview before the New South Wales Crime Commission was circulated to the Department of Public Prosecutions (‘DPP’) in breach of a direction given under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) (‘NSWCC Act’) (which was similar in terms to s 25A(9) of the ACC Act).

37. The defendants were convicted, and appealed unsuccessfully to the New South Wales Court of Criminal Appeal. They appealed to the High Court, which quashed their convictions and ordered a new trial. The Court (French CJ, Crennan, Kiefel, Bell, and Keane JJ) held that circulating the transcript to the DPP constituted a miscarriage of justice such that the defendant had not had a trial according to law.

38. In a passage particularly relied upon by the defendant in these proceedings, the Court stated at [46]:

In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution (citations omitted).

39. The High Court further considered the operation of the companion rule in IBBACC. At [41], French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ said:

The appellants argued that this Court's decision in [X7] illustrated the operation of the principle of legality in a way which was significant for the outcome of this case. But in X7 the decision turned on the circumstance that the person to be compulsorily examined under the [ACC Act] had been charged with an offence and was, as a result, subject to the accusatorial judicial process. The majority held that the ACC Act did not authorise the compulsory examination of a person charged with an offence about the circumstances of the offence while his trial was pending. In their Honours' view, the accused's defence would inevitably be prejudiced if he were required to answer questions about the subject matter of the charge; and the ACC Act had not, by express words or necessary intendment, effected such an alteration to the process of criminal justice. As Hayne and Bell JJ said:

"To hold that the general words of the relevant provisions of the ACC Act authorise compulsory examination of a person charged with an indictable Commonwealth offence about the subject matter of the offence charged would thus depart in a marked degree from the 'general system of law'" (citations omitted).

40. It is important to recognise that the defendant in these proceedings had not been charged with an offence at the time he was compulsorily questioned. Another principle which emerges from the above passage from IBBACC, and which was also made clear by the High Court in Lee v NSWCC, is that whilst the companion rule is undeniably an important principle, it is susceptible to being overturned by the express words of the legislature.

41. Seller involved two defendants charged with tax fraud. Both had been compulsorily interviewed by the Australian Crime Commission (‘ACC’). An officer of the Australian Tax Office (‘ATO’), Mr Quincy Tang, was on secondment to the ACC at the time of the compulsory interviews, and was present for a portion of them. In addition, he was subsequently provided with a transcript of the interviews.

42. The proceedings had a lengthy and somewhat complex history. In R v Seller; R v McCarthy [2012] NSWSC 934; (2012) 269 FLR 125, Garling J ordered a permanent stay of the proceedings. This decision was overturned by the Court of Appeal in R v Ross Edward Seller; R v Patrick David McCarthy [2013] NSWCCA 42; (2013) 273 FLR 155, which held that it was not open to the primary judge to order a permanent stay but that if the primary judge were so minded, he or she could direct that Mr Tang not give evidence.

43. In the course of the trial remitted back to the Court, the prosecutor proposed to call Mr Tang. He was to give expert evidence, but his testimony was informed in part by information which he gleaned from having access to the compulsory interviews of the defendants. The primary judge, Button J, gave an order that Mr Tang should not be allowed to give evidence in the trial but refused to grant the defendants’ application for a stay of the proceedings. The prosecutor appealed Button J’s decision to refuse to allow Mr Tang to give evidence, and the defendants cross-appealed, seeking a permanent stay of the proceedings.

44. The Court of Criminal Appeal dismissed both the appeal and the cross-appeal. At [108]-[109], Bathurst CJ, with whom Fullerton and Bellew JJ agreed, stated:

[108] It should be noted that unlike X7, the examination in the present case was not illegal. Further, the dissemination of the material to Mr Tang did not contravene the direction given under s 25A(9) of the Act at the conclusion of the examinations, as at the relevant time, Mr Tang was an officer of the ACC.

[109] However, these matters are not conclusive. If in fact the giving of evidence by Mr Tang would alter the trial process in a fundamental respect, in the sense described in X7 and [Lee v The Queen], then the primary judge was correct in ordering that Mr Tang be prohibited from giving evidence at trial…

45. His Honour went on to cite the passage of Lee v The Queen extracted above at [38]. His Honour went on to say at [110]:

I do not think that the fact that any potential witness was present during the compulsory examination of a person subsequently charged or who had read the transcript of evidence given at the compulsory examination, in all cases, would alter a trial in a fundamental respect in the sense described in X7 and [Lee v The Queen]. However, it is unnecessary to decide that point.

46. Although all the judges agreed that it was unnecessary to decide the point, Bathurst CJ and Bellew J also concurred with the additional remarks of Fullerton J which further addressed this issue. At [229]-[232], her Honour observed:

[229] I would wish only to add my own view as to whether Lee v The Queen is authority for the proposition for which the respondents contend, namely that a witness who has been privy to compulsorily acquired information must be excluded from giving evidence in the trial of an accused. I agree with the Chief Justice that it is not necessary on this appeal to decide whether any witness that the Crown might call at trial who has been exposed to compulsorily acquired information must be excluded. I would, however, venture the view that in a particular case that question will depend on the material the witness has been exposed to, and the evidence the witness is to give at trial in proof of the charge or charges, in the context of the issues in dispute at trial in an adversarial setting where the Crown has the obligation of proving the guilt of an accused.

[230] Lee v The Queen is, however, authority for the proposition for which it was cited by the respondents on the appeal, namely that the fundamental and underlying tenet of a fair trial at common law is that it is for the prosecution to prove the guilt of an accused person, and that any risk of upsetting the balance between the power of the State to prosecute and the position of an individual who stands accused, by the dissemination of compulsorily acquired material is open to be remedied by discretionary orders of the trial judge of the kind made by the primary judge in this case.

[231] On the hearing of the appeal, the Crown submitted that the principles for which Lee v The Queen is authority do not dictate the exclusion of Mr Tang as a witness at the respondents’ trial, the Crown having not been put in a position of unfair advantage relative to the respondents either by reason of Mr Tang having had foreknowledge of the respondents’ answers given under compulsion, or because he has had access to other material produced under compulsion, in circumstances where the senior counsel who is to lead his evidence at trial has been quarantined from that information.

[232] As the Chief Justice has emphasised, it is not necessary that the respondents establish, as a matter of fact, that Mr Tang derived some form of improper forensic advantage in the preparation of his witness statement or the preparation of the summaries of the flow of funds from access to the compulsorily acquired information. It is sufficient that the fundamental entitlement the respondents have to a fair trial is not jeopardised by reason of that access. The trial judge’s assessment of the measure of that risk was discretionary and, for my part, an assessment with which I could not reasonably disagree.

47. It is on this basis that the defendant seeks to have the oral testimony of Messrs Edgar, Draeger and McKenzie excluded from the proceedings.

The impugned questions

48. It is necessary for the purposes of this application to consider questions of Mr Myles in which the defendant alleges he impermissibly divulged the contents of the defendant’s compulsory interview.

49. There are nine extracts from Exhibit VD3 (that is, the transcript of the Myles/Edgar interview) about which the defendant complains. I shall extract each of those sections below with any submissions made by the parties in respect of each.

50. At the outset, I reiterate that the prosecutor concedes that Mr Myles was in possession of, had read, and used to inform his questions, a copy of the defendant’s compulsory interview.

First complaint

51. On p 8 of Exhibit VD3 the following exchange is recorded:

Phillip Myles: Okay. Was there any discussion of how long the work would take?

Craig Edgar: No, to my knowledge he, I thought I would be there one or two days just to do stuff around his house. But every time he came down and saw what we did, he wanted more and more and we asked him, “is this your land?”. “Yes it is”. He said if you do go on the on the golf course area, I have permission to do it.

Phillip Myles: Okay, so in John Chia’s record of interview, with Council back in 2015, February 2015, John Chia said that, it was saying it was your responsibility, meaning you, for approval, to get all the approvals that are necessary? Is that what he said, he said to you? What do you say about that?

Craig Edgar: No he did not say that.

52. The defendant submits that this exchange shows Mr Edgar being led in respect of a material issue in the proceedings, and that it is enabled by Mr Myles’ access and use of the defendant’s compulsory interview. In the defendant’s submission, Mr Edgar is pre-warned of the defendant’s defence by Mr Myles’ impermissible divulging of the interview.

53. The prosecutor submits that this exchange must be seen in the context of an interview where Mr Edgar had already given answers to Mr Myles (on pp 5-7 of Exhibit VD3) in which Mr Edgar stated that the defendant gave Mr Edgar and his team repeated instructions to continue clearing trees, including onto the golf course area. Mr Edgar had already told Mr Myles about the defendant’s assurance he had permission to clear trees on the golf course. In those circumstances, the prosecutor says the defendant has not suffered any material prejudice.

Second complaint

54. Also on p 8 of Exhibit VD3 immediately after the first complaint, the following exchange is recorded:

Phillip Myles: Okay. He also said that what you do there must be aesthetic. Do you recall him saying that?

Craig Edgar: No, he did not say that.

55. The prosecutor submits, similarly to its submission in respect of the first complaint, that this exchange in no way prejudiced the fair trial of the defendant.

Third complaint

56. Immediately after the second complaint, the following exchange is recorded:

Phillip Myles: And the third thing he said was that you must talk to the neighbours first to make sure that they’re happy he was concerned about particularly the golf course with any clearing to be done there.

Craig Edgar: He did not say anything like that. He said if we were to go near golf course land, he had permission from the golf course.

57. The prosecutor submits that it is clear that Mr Edgar had already given the relevant information, including the information contained in his answer to the question; that the defendant had said that he had permission from the golf course. The prosecutor once again submits that there is nothing arising from the third complaint that would prejudice the defendant’s fair trial.

Fourth complaint

58. Immediately after the third complaint, the following exchange is recorded:

Phillip Myles: Okay. He also said that when a Council officer asked him whether you’d looked at the property together, he said “no” he only spoke to you out the front of the property.

Craig Edgar: No, that’s not correct.

59. The prosecutor submits that Mr Edgar had already told Mr Myles earlier in the interview that the defendant had given him instructions at the rear of the property. In those circumstances, the prosecutor submits that no unfairness arises from the fourth complaint.

Fifth complaint

60. Further down p 8 and on to p 9 of Exhibit VD3, the following exchange is recorded:

Phillip Myles: Okay. Alright so he is saying that he only spoke to you for about five minutes on that first day he met you at the property and then he left and was only at the front of the property?

Craig Edgar: No that’s incorrect.

61. The prosecutor submits that this is just a restatement of the disclosure made in the fourth complaint, but that even if it were to be treated as a separate disclosure on the part of Mr Myles, Mr Edgar had already given that information before any disclosure of the defendant’s interview occurred.

Sixth complaint

62. Immediately after the fifth complaint, the following exchange is recorded:

Phillip Myles: He’s also saying that he told you that it was your responsibility to get all the approvals that are necessary to do the work.

Craig Edgar: That’s incorrect as well.

63. The prosecutor submits that this is a restatement of the disclosure made in the first complaint, and that in any case, given that Mr Edgar had already refuted that allegation before the disclosure made in the first complaint, no unfairness to the defendant arose.

Seventh complaint

64. On p 10 of Exhibit VD3, the following exchange is recorded:

Phillip Myles: Okay, so are you saying that John Chia he thought initially that it would be a couple of days work there. So that wasn’t correct with the amount of work there?

Craig Edgar: No, that was definitely not correct.

Phillip Myles: And he said that when asked by the Council officer had he paid you, he said that you had demanded money from him to pay you?

Craig Edgar: No I did not, no.

65. The prosecutor submits that no prejudice to the defendant is occasioned by this exchange.

Eighth complaint

66. At the top of p 12 of Exhibit VD3, the following exchange is recorded:

Phillip Myles: Alright. Were you aware of John going overseas at all?

Craig Edgar: Yes, yes, he went to Singapore.

Phillip Myles: Okay do you know which day that was?

Craig Edgar: I don’t recall.

67. The defendant submits that Mr Edgar was put on notice by this question that the defendant was overseas for part of the time the work was carried out. Therefore, the defendant submits, Mr Edgar was able to adjust his story to account for this fact. The prosecutor observes that it was Mr Edgar, not Mr Myles, who identified that the defendant went to Singapore, rather than “overseas” generally.

Ninth complaint

68. On p 14 of Exhibit VD3, the following exchange is recorded:

Phillip Myles: Okay. Alright, now did you speak to a person by the name of Andrew Hyden who was John Chia’s agent.

Craig Edgar: I briefly spoke to him, but nothing much. There was him and John and [we’re] in his place and basically John said I want you to say this and say that so I don’t get in trouble.

69. The prosecutor notes that this information did not necessarily emerge by way of the defendant’s compulsory interview. Exhibit VDA tendered by the prosecutor is a copy of a letter sent by Mr Hyden to the prosecutor’s office, identifying himself as the defendant’s agent.

70. The defendant submits that taking the above nine matters into account, the defendant would suffer unfair prejudice if Mr Edgar’s evidence is to be admitted in the proceedings such that it would be a case of the kind referred to by the High Court in Lee v The Queen where the balance has “shifted to the prosecution”.

71. Further, the defendant submits that the case for that finding is stronger than it was in Seller for two reasons. First, the defendant submits that the information put to Mr Edgar by Mr Myles was selected and disseminated to a material witness who had his own reason to tell lies. Secondly, the defendant submits that by virtue of the fact that Mr Edgar is a material witness, the prejudice suffered by the defendant is more serious than in Seller, where Mr Tang was an expert witness who had no ulterior motive.

72. The prosecutor refutes those contentions, and says that the disclosures made by Mr Myles are “anodyne” in nature.

The Draeger interview

73. The interview Mr Myles conducted with Mr Draeger was on the same day as the interview with Mr Edgar. The prosecutor submits that it is clear from the “context and tenor” of the interview with Mr Draeger that Mr Myles was using information based on answers given by Mr Edgar which in turn were based on material compulsorily disclosed by the defendant. Put another way, the defendant submits that Mr Myles could not have asked Mr Draeger the questions he did if it were not for the compulsory interview of the defendant being made available to him.

74. The prosecutor submits that there is nothing in the interview between Mr Draeger and Mr Myles which would cause prejudice to the defendant if Mr Draeger were to give evidence in the proceedings.

The McKenzie interview

75. The defendant submits that the interview Mr Myles conducted with Mr McKenzie was again affected by Mr Myles having access to the defendant’s compulsory interview. In particular, the defendant makes reference to three specific sections:

1. On p 9 of Exhibit VD5 (that is, the transcript of the Myles/McKenzie interview) the following exchange is recorded:

Phillip Myles: When you say he didn’t like the Casuarina trees, what was the idea for removing those trees? Was it for aesthetic value or was it for something else?

James McKenzie: I don’t know, he just didn’t like the way, he kept going on about it didn’t he?

2. On p 10 of Exhibit VD5, the following exchange is recorded:

Phillip Myles: Did John Chia at any time say that he had approval to remove the trees that he had asked you to remove?

James McKenzie: No, he said he was working under the 50/10 what’s it called?

3. On p 23 of Exhibit VD5, the following exchange is recorded:

Phillip Myles: Okay, and the person who was with him on this day, did John Chia introduce that person to you?

James McKenzie: No, he didn’t introduce him as sort of his name or, he looked like a solicitor. I know what they look like because my (speech fades).

Phillip Myles: The name Andrew Hyden, does that assist your memory?

James McKenzie: Not really, maybe um it does ring a bell though. I don’t want to say I’ve forgotten names though.

Phillip Myles: I was told by Craig Edgar when I spoke to him that a person by the name of Andrew Hyden who was John Chia’s agent was present when he had a meeting with him on one occasion at the property.

James McKenzie: At ah.

Phillip Myles: Killara.

76. The defendant submits that the word “aesthetic” is taken from the defendant’s description of the work in his compulsory interview, and that Mr Myles has falsely attributed to Mr Edgar the source of Mr Hyden’s name, which also came from the defendant’s interview.

77. Further, the defendant submits that it is clear from the evidence that Mr Edgar was in contact with Mr McKenzie after Mr Edgar’s interview with Mr Myles and that the evidence of Mr McKenzie, both in the interview with Mr Myles and any evidence he would give in these proceedings, is also tainted in that respect.

78. The prosecutor submits that nothing in Exhibit VD5 is prejudicial to the defendant such that it would warrant the Court ordering that Mr McKenzie be precluded from giving evidence. The prosecutor additionally repeats its submission that the prosecutor was aware of Mr Hyden’s identity through channels other than the defendant’s compulsory interview.

79. The prosecutor does not accept that any information gleaned directly from the defendant’s compulsory interview was put by Mr Myles to either Mr Draeger or Mr McKenzie.

Statutory construction

80. As I noted above, the defendant submits that the present case is “on all fours” with Seller. However, a number of matters which distinguish Seller from the present case should be noted. First, the ACC Act, including the protective provision of s 25A considered in X7, governed the compulsory interviews of the defendant in Seller. I note that the defendant submits that this does not carry the day because protective provisions of the kind found in the ACC Act and NSWCC Act merely preserve the pre-existing position at common law.

81. Secondly, the ACC conducted the interviews in Seller, and s 25A(9) was in part designed to prevent the dissemination of material gained in compulsory interviews to prosecuting bodies, the ACC not being competent to bring prosecutions itself. By contrast, the EPA Act empowers councils to conduct compulsory interviews, whilst also empowering councils to bring prosecutions against breaches of the Act.

82. This second matter is articulated by both Mr Howard, senior counsel for the prosecutor, and Mr Steirn, senior counsel for the defendant. A different gloss was put on the circumstance by each. Mr Howard submits that the absence of such a provision is a significant difference that distinguishes the present case from the X7 line of authority and Seller. Mr Steirn submits that sections like s 25A(9) of the ACC Act and s 13(9) of the NSWCC Act are merely protective of the common law position and that the mere absence of such a provision in the EPA Act is not indicative of an intention on the part of the legislature to usurp the common law.

83. I consider that the position at common law is only relevant insofar as it is maintained by the statute. It is clear from the authorities that the companion rule is susceptible to being overcome by parliament, but only if it does so by clear words or necessary intendment.

84. This familiar formulation has come to be known as the principle of legality. In Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 at 308, also cited in X7 at [86], Connor J quoted Maxwell’s On the Interpretation of Statutes as follows:

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.

85. Another oft-quoted and more recent statement of the principle was given by Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 at 437:

The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

86. It is agreed by the parties, and I accept, that the principle of legality applies in this case. The question that arises is the extent to which the EPA Act, and more particularly s 122U(5) of the EPA Act as it then was, displaces the common law position. For convenience, I extract s 122U(5) again below:

(5)    Further information

Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground:

(a)   that the record or information had to be furnished or the answer had to be given, or

(b)   that the record or information furnished or answer given might incriminate the person.

87. A number of observations should be made at the outset about the operation of the EPA Act as a whole. At the time of the defendant’s compulsory interview, Div 2C of Pt 6 of the EPA Act related to the investigative and enforcement powers of the Planning and Environment Department (‘Department’). Although the divisions have since been amalgamated, Div 1A of Pt 6 related to local enforcement powers.

88. By virtue of s 118N(2) of the EPA Act, s 122U, which was relevant to the Department’s enforcement powers, also applied to the enforcement powers of councils. Section 125(1), also found in Pt 6 of the EPA Act, created an offence which made it an offence, inter alia, to do anything forbidden to be done by the Act. It is under that provision that the defendant is charged in the substantive proceedings.

89. It is clearly contemplated by the legislature that there is no division between the investigative and prosecuting bodies for offences created by s 125. Section 122U applies to the same bodies that prosecute offences created by s 125.

90. A natural corollary of this is that a section like s 25A(9) in the ACC Act or s 13(9) in the NSWCC Act could not be intelligibly included in the EPA Act because it would in effect be asking the Department or a council not to disseminate information to itself. That is not to say that the companion rule is overborne by s 122U entirely because a restriction on the use of any interview compulsorily obtained against objection is contained in s 122U(3).

91. In the context of the EPA Act, however, it is clear that the companion rule is subject to s 122U(4) and s 122U(5). It is not contended by the prosecutor that the exception in s 122U(4) is relevant in the present case.

92. The question therefore is what is authorised by s 122U(5) of the Act. “Further information obtained as a result of a record or information furnished or of an answer given” is not inadmissible because it was given against objection or is self-incriminating.

93. It is contended by the defendant in the first instance that the prosecutor should never have been given the defendant’s record of interview to Mr Myles in the first place, and that in so doing, the prosecutor lost control of the dissemination of the interview.

94. I do not find that submission compelling. Mr Myles was an authorised person for the purposes of s 118BA, and as such would have been entitled to compulsorily question the defendant against his objection himself. In those circumstances, it cannot be the case that the EPA Act forbade him from having access to the information already previously obtained by council officers during the investigation.

95. Being privy to the information included in the defendant’s record of interview, Mr Myles was entitled by the operation of s 122U(5) to use that information in order to gather further evidence in respect of what was a suspected contravention of s 125 of the EPA Act.

96. It may be that the manner in which Mr Myles framed the information he put to Messrs Edgar, Draeger and McKenzie was undesirable. However, on the clear words of s 122U(5), I find that he was entitled to use the defendant’s interview to inform the questions he would ask of other witnesses.

97. Had it been the case that Mr Myles told Mr Edgar that the defendant had said that it was Mr Edgar’s responsibility to obtain approvals for the tree clearing before Mr Edgar had already told Mr Myles that the defendant had assured him the approvals had already been obtained, then it might be said Mr Myles was going beyond what was permissible under s 122U(5) in that he was directing the evidence in accordance with the information obtained under compulsion. In the circumstances, however, I am satisfied that Mr Myles only used the information in the defendant’s interview to test one witnesses account of the events against that of another, and that this is an approach allowed by s 122U(5).

98. It is suggested by the defendant that s 122U(5) applied to more limited circumstances. An example given by Mr Steirn was that, if someone claimed to be overseas at a particular time, this could be tested against flight records and the like to establish whether such a claim was true. This evidence would be admissible under s 122U.

99. The difficulty with this submission is that it draws a distinction the basis for which cannot be found in the text of the statute. Even in Mr Steirn’s example, there is an infringement in a strict sense of the companion rule, and there is no guideline if that submission were accepted as to how serious an infringement would need to be to offend s 122U(5).

100. Section 122U(3) makes it clear what cannot be done with a defendant’s compulsory interview. The information gathered therein is inadmissible in a criminal trial. However, any further information gathered as a result of the receipt of the information is not for that reason rendered inadmissible (s 122U(5)). That is the clear meaning of the text and its necessary intendment. Any other construction of the provision would necessitate a council adopting a hybrid personality and lead to intolerable ambiguity in the operation of the Act. Such a conclusion cannot have been intended and I find it is not reasonably open on the language of the provision.

101. It follows that the defendant’s interview is inadmissible in the proceedings. However, the course Mr Myles adopted in the interviews with Messrs Edgar, Draeger and Miles was authorised by s 122U(5) of the Act and there is therefore no grounds to prevent those witnesses from giving evidence under s 138 of the Evidence Act as neither s 138(1)(a) or (b) is engaged.

102. In those circumstances, it is unnecessary to consider whether the prosecutor’s actions offend the common law principle. However, for completeness, I add that I do not consider that the present case constitutes a “fundamental departure” from the ordinary trial process as considered in Lee v The Queen or an upsetting of the balance between prosecutor and defendant in the sense considered by Fullerton J in Seller.

103. In any case, where the EPA Act explicitly stipulates that evidence is not inadmissible by reason of having been compulsorily obtained or by reason of being self-incriminating, I would not exercise the reserve powers of the Court to prevent an abuse of process to exclude such evidence.

104. In making that finding, I do not discount the possibility of the dissemination of a compulsory interview which would change the nature of a criminal trial in such a fundamental respect in the sense considered in Lee v The Queen that it may warrant the exercise of the Court’s inherent powers to exclude the evidence. However, I do not consider that the present case is an example of those circumstances.

105. The EPA Act empowers councils to conduct compulsory interviews even against the objection of the interviewee that the answers given may be self-incriminating. Information obtained, whilst not admissible, may then be used for an investigative purpose. That is a departure from the ordinary common law position, but it is manifest in the clear words of the legislature and represents a balance struck between the competing interests of the public and a person accused of an offence. The interaction of those competing policy arguments is shown starkly by the provisions of s 122U(3) and s 122U(5).

106. It is not for the Court to cavil with the balance struck by the legislature between competing policy arguments. In my view, a decision to exercise the Court’s inherent powers to exclude evidence in a case with legislation similar to the present would only be made where it was clear that a failure to make such an order would deprive the defendant of the right to a fair trial. In the circumstances, and having carefully considered the passages of the transcript extracted above and counsels’ submissions in respect of each, I do not consider this to be such a case.

107. For those reasons, I find that the defendant’s application should be dismissed.

Orders

108. The Court orders that:

1. The defendant’s application to exclude evidence pursuant to s 138 of the Evidence Act 1995 (NSW) is dismissed.

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Decision last updated: 22 May 2018