McAndrew (NSW Department of Planning and Environment) v Cummings

[2020] NSWDC 590

District Court

New South Wales

Medium Neutral Citation:

McAndrew (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 590

Hearing dates:

7 September 2020

Date of orders:

9 September 2020

Decision date:

09 September 2020

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1. The defendant’s notice of motion is dismissed.

Catchwords:

CRIMINAL PROCEDURE — Stay of proceedings — Compulsorily Acquired Material

Legislation Cited:

Independent Commission Against Corruption Act 1988

Work Health and Safety Act 2011

Cases Cited:

Barron v Attorney-General (1987) 10 NSWLR 215

Barton v The Queen (1980) 147 CLR 75

Jago v District Court (NSW) (1989) 168 CLR 23

Lee v The Queen (2014) 253 CLR 455

Macdonald v R (2016) 93 NSWLR 736

R v IBAC (2016) 256 CLR 459

R v Seller (2015) 89 NSWLR 155

Strickland v CDPP [2018] HCA 53

Walton v Gardiner (1993) 177 CLR 378

X7 v The Queen [2014] NSWCCA 273

Category:

Procedural and other rulings

Parties:

McAndrew (NSW Department of Planning and Environment) v Tony Glenn Cummings

Representation:

Counsel: I Taylor SC/G Lewer (Prosecution)
R Clifford (Defendant)

Solicitors: McCulloch Robertson (Prosecution)
Browne Jeppesen and Sligar (Defendant)

File Number(s):

2018/336909 and 2018/336887

Publication restriction:

None

Judgment

Introduction

1. The defendant has pleaded not guilty to two alternative charges brought pursuant to s 32 Work Health and Safety Act 2011 (the Act).

2. On the first day of trial the defendant has applied for a permanent stay of the proceedings or an order disqualifying the lawyers briefed by the prosecution from continuing to act in the proceedings on the basis of a breach of the companion principle. The defendant contends that by being required to participate in a recorded s 171 interview on 6 November 2016 that he has disclosed information that would have the effect of limiting the defences available to him and that this information has been communicated to other Inspectors who are witnesses in the case and/or who interviewed lay witnesses in the case and to the lawyers representing the prosecution.

3. The prosecution’s response is to point to other sources of information available to it and that the information provided through those sources is similar to the information provided by the defendant in the s 171 interview, such that there is no demonstrable unfairness to the defendant.

4. There may be another occasion in the course of the trial where I need to further consider or reconsider the extent of a relevant person’s power to disclose information provided to them under compulsion pursuant to s 271 of the Act, but the present application relates to what the regulator, exercising its function as a prosecutor, knew and not whether those matters are admissible as evidence in the trial.

Factual Background

5. On 4 November 2016 Mark Siegel (the deceased) was killed when he was crushed by a steel bucket attached to a hoist (the plant) that fell into a mine shaft of a mineral claim at Grawin (the mineral claim). It is alleged by the prosecution that the defendant was the owner of the plant involved in the incident and that he was aware of prior incidents of the plant malfunctioning where the bucket had fallen into the shaft.

6. On 6 November 2016, before the s 171 interview took place, the defendant had a discussion with Inspector Orr at the mineral claim. The relevant parts of Inspector Orr’s statement provides:

1. On the morning of Sunday 6 November 2016, I travelled from Lightning Ridge to the Mine, arriving at approximately 8.00am.

2. At approximately 9.05am, two men I now know to be Paul Ellis and Tony Cummings arrived at the Mine and I introduced myself to them. Mr Cummings departed the Mine a few minutes later.

3. I then saw Investigator Andrew Tull and Investigator Tim Flowers conduct an electronically recorded interview with Mr Ellis under section 171 of the WHS Act, although I did not participate in that interview.

4. At approximately 10.50am, Mr Cummings returned to the Mine to collect Mr Ellis and I had an informal conversation with Mr Cummings in the vicinity of the Ag Fab Super Hoist while he was waiting for Mr Ellis to complete his interview. During the conversation Mr Cummings said words to the effect of “I bought the Glengarry Hilton pub off Mark’s mother and stepfather Gisela and Harald Gruenefeld. They are on their way here from Victoria.

5. At that time, it became apparent to me that both Gisela and Harald Gruenefeld were known to me from my previous regulatory role with the NSW Office of Liquor Gaming and Racing. I then informed Mr Cummings that I knew Gisela and Harald in a professional capacity as I had conducted compliance inspections of their licensed premise in the past and through my involvement with the Walgett Liquor Accord.

6. During the conversation Mr Cummings kept saying “Mark shouldn’t have been there” and said words to the effect of “The hoist commonly has the bucket get stuck at the tip point, and the winch drum cable winds the opposite way. Mark got in the monkey to clean out a rock and dirt when the bucket was stuck at the top. Mark hit the lower level switch causing the bucket to freefall and it hit Mark across the back as he was trying to get out of the monkey. It dragged him back down. He should haven’t been in there but he won’t listen. Mark was known as “Mad Mark” as he was risk taker.”

7. Mr Cummings also explained the operation of the hoist to me and said words to the effect of “When the lower limit switch isn’t activated by the bucket the cable unspools from the winder and overwinds onto the spool causing the bucket to raise to the surface and it gets stuck against the tipping arm (he then pointed toward the hydraulic arm at the top of the winder frame). It then jams against the arm and stays there until the power is cut off, then it falls. It has happened before. Mark shouldn’t have been there.”

8. I said words to the effect of, “Are you available to be interviewed today?”

9. Mr Cummings said words to the effect of “It’s my birthday today and I have family staying with me, but I’m available all day to speak to the investigators if you need me.”

10. At the time that Mr Cummings said the things referred to in paragraphs 25 to 30 above, the investigation into the Incident was in the very early stages and I had not formed a belief that Mr Cummings had committed an offence under the WHS Act or any other law. As a result, I did not issue Mr Cummings with a caution under the Evidence Act 1995(NSW) prior to having the conversation with him.

11. At approximately 10.55am, Mr Cummings and Mr Ellis departed the Mine together.

12. At approximately 11.00am, Matt U’Brien and I left the Mine to meet Phillip Morton, Electrical Inspector at Cumborah. We then met Phillip Morton at Cumborah and escorted him to the Mine, arriving at approximately 12.05pm. When I returned, I saw that Mr Cummings had returned to the Mine and was being interviewed by Investigator Andrew Tull and Investigator Tim Flowers.

13. At approximately 2.00pm, I departed the Mine to meet Jeremy U’Brien and Perry Sparkes, both Mechanical Inspectors at Grawin. I then met and escorted them to the Mine, arriving at approximately 2.30pm. I then provided Jeremy U’Brien and Perry Sparkes with a briefing on the investigation.

14. Jeremy U’Brien, Perry Sparkes and Phil Morton then undertook a mechanical and electrical inspection of the “Ag-Fab Super Hoist” at the Mine.

15. At approximately 4.45pm, I left the Mine.

    7. On 6 November 2016, Andrew Tull and Tim Flowers, Inspectors, appointed pursuant to s 156 of the Act, conducted an interview with the defendant at the mineral claim. The defendant was required by the Inspectors to answer questions and was not entitled to rely on the privilege against self-incrimination consistent with the application of ss 171-173 of the Act.

    8. In the course of the s 171 interview, the defendant told the Inspectors that:

    1. he operated the mineral claim with the deceased and that he considered them to be business partners;

    2. the mineral claim was owned by the deceased;

    3. he owned the machinery used at the mineral claim including the hoist;

    4. he completed maintenance on the hoist, but electrical maintenance was carried out by a licensed electrician by the name of Greg;

    5. in the course of undertaking work at the mineral claim, he had observed a problem with the hoist if the lower limit switch in the sump was not activated by the bucket because the sump contained spilled mullock. On those occasions the winch would unspool and the drum would keep winding and spool the cable the wrong way and the hoist would stop and the up button would have to be pushed to correct it;

    6. the bucket free falling into the shaft had happened to him when he pressed the emergency stop button or if the lower limit switch was tripped;

    7. the hazard of the free falling bucket was controlled by not getting into the sump under where the bucket would fall into or if it was necessary to clean out the sump then the bucket would be held up by inserting a crow bar into the shaft above it;

    8. the deceased had a habit of not following instructions and tended to act without proper regard for safety.

    9. A transcript of the compulsory interview was created at the request of Inspector Tull and came into his possession on or about 16 November 2016.

    10. On 19 March 2017 the defendant prepared a statement at the request of Senior Constable Hicks, which formed part of the brief of evidence that was prepared for the Coroner. In that statement the defendant provided the following relevant information:

    1. the hoist was owned by him;

    2. he moved the hoist to work the deceased’s claim on the basis of a 50/50 split of expenses and profits;

    3. Paul Ellis assisted the defendant and the deceased to work the mineral claim and they each paid him some of the profits;

    4. the defendant was informed about the incident involving the deceased by Mr Ellis and he went to the mineral claim;

    5. the defendant opined that the incident was caused by the bucket failing to activate the lower limit switch when it reached the bottom of the sump because there was spillage in the sump and that the deceased had activated the lower limit switch when he was in the sump which caused the power to the hoist to shut down and the bucket went into free fall;

    6. the normal procedure adopted to clean out the sump was to secure the bucket with a metal bar and chain in case the hydraulics failed when a person was in the sump;

    7. the defendant had been considering (I infer post incident) how the incident could be prevented and had been considering installing a slack wire switch.

    11. On 2 November 2018 the prosecutor filed two Summonses commencing the proceedings, which were listed for first return on 4 February 2019.

    12. On 10 July 2020 Inspector Tull swore an affidavit in these proceedings concerning the dissemination of the s 171 interview with the defendant. In summary, the s 171 interview was made available to the lawyers representing the prosecution in the proceedings. It was also uploaded to the regulator’s database that is maintained for the Investigation Team and the relevant inspectors had access to it.

    13. The prosecution has tendered an Agreed Statement of Facts signed by the legal representatives of the parties, which contains the following relevant matters:

    1. the defendant was a person operating an undertaking within the meaning of s 5 of the Act;

    2. the defendant owned the plant used at the mineral claim;

    3. in about early October 2016 the defendant arranged for Greg Coulthard (an electrician) to attend the mineral claim and undertake electrical work on the hoist; and

    4. the deceased was hit by the bucket which fell from above him after he entered the sump at the bottom of the shaft.

Relevant law

14. The companion rule is not engaged where a witness the subject of a compulsory interview has not, at the time of the interview, been charged with an offence: R v IBAC (2016) 256 CLR 459 at [43]-[46], [68]-[70] and [73]-[75].

15. With regard to a similar provision (s 37 Independent Commission Against Corruption Act 1988), the CCA held that evidence obtained under compulsion could not be tendered in evidence, but the use of such material by prosecutors was not prohibited: Macdonald v R (2016) 93 NSWLR 736 at [98].

16. The Court has the power to stay proceedings to prevent an abuse of process and to ensure a fair trial, but the fact of a compulsory examination is not enough and there must be evidence of prejudice in the circumstances of the particular case: X7 v The Queen [2014] NSWCCA 273 [109]-[111].

17. In order to obtain a permanent stay of criminal proceedings, it is necessary to show that an exercise of power has been attended with a defect in process which is so profound as to offend the integrity and functions of the court: Strickland v CDPP [2018] HCA 53 at [106], [172]-[173] and [292].

18. The power is discretionary and will only be used to stay criminal proceedings in the most exceptional circumstances: Barton v The Queen (1980) 147 CLR 75 at 116: Jago v District Court (NSW) (1989) 168 CLR 23 at 31 per Mason CJ, at 75 per Gaudron J.

19. The phrase ‘abuse of process’ encapsulates all cases in which the processes and procedures of the court may be used as instruments of injustice or unfairness: Walton v Gardiner (1993) 177 CLR 378 at 393. The question the Court must answer is whether, in all the circumstances, the continuation of proceedings would involve unacceptable injustice or unfairness: Walton at 392.

20. Fairness or unfairness defies analytical judgment and involves a large content of intuitive judgment: Jago at 57. The onus is on the applicant to show that the disadvantage or prejudice that they will suffer is unacceptable to the extent that a trial would be unfair: Barron v Attorney-General (1987) 10 NSWLR 215.

21. In determining the question of whether to grant a permanent stay the Court must balance the interests of the accused, the public interest of the community that those charged with serious criminal offences are bought to trial and those guilty are convicted, and the need to maintain public confidence in the administration of justice: Walton at 395-6; Jago at 33 per Mason CJ, and at 49-50 per Brennan J.

22. Other steps, short of a permanent stay may be justified in an appropriate case: Lee v The Queen (2014) 253 CLR 455. This can include a temporary stay and until the prosecution briefs new lawyers, who do not have any knowledge of the compulsorily acquired material: R v Seller (2015) 89 NSWLR 155 at [147]-[149].

23. It is common ground that the interview conducted with the defendant on 6 November 2016 was conducted pursuant to s 171 of the Act and that the warning provided for by s 173 of the Act was given by Inspector Tull to the defendant in the course of the s 171 interview.

24. Section 172 of the Act provides

1. A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

2. However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.

   25. Section 271 of the Act relevantly provides:

3. This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7).

4. The person must not do any of the following:

(a)   disclose to anyone else:

1. the information, or

2. the contents of or information contained in the document,

(b)   give access to the document to anyone else,

(c)   use the information or document for any purpose.

Maximum penalty:

(a)   in the case of an individual—$10,000, or

(b)   in the case of a body corporate—$50,000.

1. Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document:

(a)   about a person, with the person’s consent, or

(b)   that is necessary for the exercise of a power or function under this Act, or

(c)   that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use:

1. is necessary for administering, or monitoring or enforcing compliance with, this Act, or

2. is necessary for the administration or enforcement of another Act prescribed by the regulations, or

3. is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or

4. is necessary for the recognition of authorisations under a corresponding WHS law, or

5. is required for the exercise of a power or function under a corresponding WHS law, or

(d)   that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or

(e)   that is required or authorised under a law, or

(f)   to a Minister.

…

Consideration

26. I am of the view that the defendant has not established the kind of prejudice required to be demonstrated to warrant a permanent stay of the proceedings for the reasons that follow.

27. First, the defendant was not under compulsion when he spoke to Inspector Orr on 6 November 2016. Whilst there may be a question as to the admissibility of the Inspector’s evidence on this point that does not detract from the fact that the defendant provided the information to the regulator and that the regulator could use the information to investigate the matter and potentially to pursue charges against the defendant.

28. Second, the defendant was not under compulsion when he spoke to Senior Constable Hicks. The same comments apply as to the admissibility of the police statement. The regulator obtained the defendant’s statement by exercise of the power contained in s 155 of the Act. No complaint by the defendant has been made about that and I do not think that one could be sustained. Accordingly, the information provided by the defendant to the police was available to the regulator to be used in its investigation and to potentially pursue charges against the defendant.

29. Third, the defendant has made a forensic choice to admit some of the matters that are contained in the s 171 interview, most notably that he was the owner of the hoist and conducting an undertaking at the mineral claim.

30. Fourth, taken in combination the matters voluntarily disclosed by the defendant to Inspector Orr, Senior Constable Hicks and to the Court establish all of the relevant matters that were traversed by the defendant in the s 171 interview. I am satisfied that the relevant matters came into the knowledge of the regulator independently of the s 171 interview and that the information was provided voluntarily by the defendant to Inspector Orr and Senior Constable Hicks.

31. Fifth, by the time that the lawyers for the prosecution were briefed to appear, the information that was provided by the defendant in the s 171 interview was available to the regulator as an admission by the defendant from alternate sources. This had the effect of limiting the defences available to the defendant as much as the content of the s 171 interview. The authorities to which I have referred dealt with cases in which information has come into the knowledge of the regulator only as a result of the compulsory interview, and accordingly can be distinguished.

Orders

32. The defendant’s notice of motion is dismissed.

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Decision last updated: 06 October 2020