Roo-Roofing Pty Ltd v The Commonwealth (Ruling No 5)
[2018] VSC 338
•21 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 3382
| ROO-ROOFING PTY LTD (ACN 131 182 093) | First Plaintiff |
| MATSUH PTY LTD (ACN 105 461 818) | Second Plaintiff |
| v | |
| THE COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12, 15 June 2018 |
DATE OF RULING: | 21 June 2018 |
CASE MAY BE CITED AS: | Roo-Roofing Pty Ltd v The Commonwealth (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 338 |
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EVIDENCE – Privilege against self-incrimination – Whether reasonable grounds for objection – No reasonable grounds for objection – Witness required to answer – Certificate given - Evidence Act 2008 (Vic) s 128, Coroners Act 2003 (Qld) s 50A, Workplace Health and Safety Act 1995 (Qld) s 165, Workplace Health and Safety Act 2011 (Qld) s 232.
EVIDENCE – Admissibility – Whether document a business record – Tender permitted - Evidence Act 2008 (Vic) ss 48, 69.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Delaney QC with Dr C G Button, Ms C Van Proctor and Mr R Chaile | ACA Lawyers |
| For the Defendant | Ms R M Doyle SC with Ms R L Enbom, Mr L T Brown and Mr J Hooper | Australian Government Solicitor |
HIS HONOUR:
This ruling concerns two discrete issues in this proceeding:
(a) I overruled objections taken by Mr Nicholas Lindsay when giving evidence that his evidence might tend to incriminate him by tending to prove that he had committed an offence arising under an Australian law; and
(b) the admissibility of the document MSC.010.698.0001, from the Electrical Regulatory Authority Council entitled ‘Insulation Session’, dated May 2010, which the plaintiffs sought to tender, was contested by the defendant.
What follows are my reasons for the former ruling and my ruling and the reasons for it in respect of the admissibility of the document.
Evidence of Mr Lindsay
Mr Lindsay gave evidence for the defendant in this proceeding under subpoena. Senior and junior counsel announced an appearance on his behalf and indicated, by an advance submission, that he would object to certain questions or lines of questioning on the grounds of self-incrimination.
Although appearing via video link from Queensland, Mr Lindsay gave evidence before the Supreme Court of Victoria and the applicable rules governing his objections are found in s 128 of the Evidence Act 2008 (Vic) (the Act).
Mr Lindsay was a director of Titan Insulations Pty Ltd (Titan), a company that installed retro-fitted ceiling insulation under the Home Insulation Program (HIP). Titan engaged Mr Mitchell Sweeney as a sub-contractor to install ceiling insulation. Mr Sweeney died on 4 February 2010 when he was electrocuted while installing insulation for Titan under the HIP in a domestic ceiling space.
Mr Lindsay neither swore an affidavit nor gave evidence about any background matters relevant to his claim of privilege against self-incrimination. So far as I am aware there was no relevant material in the large body of evidence before the court in the trial that was relevant to the issues arising in respect of the objection. Certainly, nothing was drawn to my attention.
The submissions proceeded on the assumption, which I will accept for present purposes, that a coroner held an inquest into Mr Sweeney’s death. There is no evidence before the court of when that inquest was finalised or of the coroner’s findings. However, the defendant observed, without objection from Mr Lindsay, that the coroner did not conclude the inquest with an open finding. I was invited to assume, and I will, that the inquest concluded more than 2 years ago. I have no evidence of whether and to what extent, the Hanger Royal Commission inquired into Mr Sweeney’s death, the findings of the coronial inquest, or the circumstances of Mr Sweeney’s employment by Titan. Further, there is no evidence of the material, or evidence, that was before the coroner on which his findings were made. There is no evidence that the relevant Queensland authorities ever had, or now have, any interest in charging Titan or Mr Lindsay with any offence arising under Queensland law or in conducting any further investigation of that matter. There is no evidence that any person felt, or continues to feel, aggrieved by the coronial finding.
Mr Lindsay’s objections were based on a possibility that the coronial inquest into Mr Sweeney’s death might be reopened on the basis of his evidence to this court, with the possibility that within a 2 year period following coronial findings from that reopened inquest Mr Lindsay might be prosecuted under the Workplace Health and Safety Act 1995 (Qld). The contention was developed in the following way.
First, the Workplace Health and Safety Act 1995 (Qld) places obligations, with penalties for non-compliance, on various persons, including principal contractors. For example, s 31 states:
31 Obligations of principal contractors
(1) A principal contractor has an obligation to ensure the workplace health and safety of persons arising from—
(a) a hazard at the workplace for which no other person owes a workplace health and safety obligation; and
(b) anything that has been provided for the general use of persons at the workplace.
(2) Without limiting the principal contractor’s obligation under subsection (1), the principal contractor must—
(a) coordinate, supervise and oversee construction work in a way that prevents or minimises risks to the health and safety of persons at or near the workplace during the work; and
(b) consult with each of the following persons who are involved in the construction work in relation to identifying hazards associated with the construction work and assessing risks that may result because of the hazards—
• the designer
• the project manager
• any other relevant person; and
(c) notify another person of any matter of which the principal contractor is aware, or should reasonably be aware, that may affect the capacity of that person to comply with the person’s obligations under this Act; and
(d) provide safeguards and take safety measures prescribed under a regulation made for principal contractors.
(3) In addition, the principal contractor has the obligation mentioned in subsection (4) if the principal contractor reasonably believes, or should reasonably believe, that a person at the workplace is not discharging the person’s workplace health and safety obligation.
(4) The principal contractor must—
(a) direct the person to comply with the person’s workplace health and safety obligation; and
(b) if the person fails to comply with the direction—ensure the person stops work until the person complies with the obligation.
Section 167 of the Workplace Health and Safety Act 1995 imposes an obligation on executive officers to comply with the Act:
167 Executive officers must ensure corporation complies with Act
(1) The executive officers of a corporation must ensure that the corporation complies with this Act.
(2) If a corporation commits an offence against a provision of this Act, each of the corporation’s executive officers also commits an offence, namely, the offence of failing to ensure that the corporation complies with the provision.
Maximum penalty for subsection (2)—the penalty for the contravention of the provision by an individual.
(3) Evidence that the corporation has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with the provision.
(4) However, it is a defence for an executive officer to prove—
(a) if the officer was in a position to influence the conduct of the corporation in relation to the offence—the officer exercised reasonable diligence to ensure the corporation complied with the provision; or
(b) the officer was not in a position to influence the conduct of the corporation in relation to the offence.
These sections were drawn to my attention by way of example. Mr Lindsay submitted this particular possibility was not the limit of the potential exposure to prosecution that he feared, nor did he concede that he would fall within the purview of those provisions if so charged. Critical to the argument were the applicable limitation periods that on first blush would suggest that Mr Lindsay no longer faced any such exposure to prosecution.
Section 165 of the Workplace Health and Safety Act sets out the applicable limitation period for proceedings for offences under the Act:[1]
[1]The defendant raised the possibility that the governing limitation periods may be those set out in the current act.
165 Limitation on time for starting proceedings
A proceeding for an offence against this Act must start—
(a) within 1 year after the commission of the offence; or
(b) within 6 months after the offence comes to the complainant’s knowledge; or
(c) if the offence involves a breach of an obligation causing death and the death is investigated by a coroner under the Coroners Act 2003—within 2 years after the coroner makes a finding in relation to the death.
As there was a coronial inquest into the death of Mr Sweeney more than 2 years ago, there would appear to be no exposure to a prosecution. However, a coroner may re-open inquiries and make further findings pursuant to s 50A of the Coroners’ Act 2003 (Qld):
50A Reopening inquests on coroner’s initiative
(1) The coroner who held an inquest, or the State Coroner, may on his or her own initiative, reopen the inquest to re-examine a finding, or hold a new inquest, if satisfied—
(a) new evidence casts doubt on the finding; or
(b) it is otherwise in the public interest.
(2) A coroner who has reopened an inquest, or is holding a new inquest, under this section may accept any of the evidence given, or findings made, at the earlier inquest as being correct.
Should that occur, after any further finding in relation to the death the two year period under s 165 of the Workplace Health and Safety Act would re-commence. In that time a prosecution of Titan or Mr Lindsay might be considered.
It was said that these matters gave rise to a well-founded fear that questions Mr Lindsay may answer may tend to prove that he has committed an offence and is exposed to criminal prosecution, in the sense of setting in train a process which may lead to incrimination or the discovery of evidence of an incriminating character.[2] An example arose when Mr Lindsay was asked about the type of insulation products used by Titan. It was submitted such a line of questioning may lead to a train of enquiry regarding the risks involved with particular products, and whether other products were preferable.
[2]Rank Film Ltd v Video Information Centre (1982] AC 380, 443 (Lord Wilberforce) quoted in Sorby v Cth (1983) 152 CLR 281, 294 (Gibbs CJ) (‘Sorby’).
I took this submission to be referring to the use of foil insulation product, the use of which was implicated in Mr Sweeney’s death. However, the submission was not further developed, either to demonstrate that the answer might constitute new evidence that cast doubt on the coroner’s finding or in the sense of exposing precisely how the answer to the question might set in train a process of inquiry about the use of foil insulation on that particular occasion that would excite the prospect that the coronial inquest might be reopened and the further prospect of a prosecution under the relevant legislation on the basis of further coronial findings that might reasonably be supposed to follow on the answer to the question.
The defendant submitted the prospect of exposure to criminal prosecution was real, in the sense that it was not fanciful, but remote. The defendant submitted that a different limitation period provision may possibly apply by the application of s 232 of the Workplace Health and Safety Act 2011 (Qld):
232 Limitation period for prosecutions
(1) Proceedings for an offence against this Act may be taken within the latest of the following periods-
(a) within 2 years after the offence first comes to the notice of the regulator;
(b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act;
(c) if a WHS undertaking has been given in relation to the offence, within 6 months after-
(i) the WHS undertaking is contravened; or
(ii) it comes to the notice of the regulator that the WHS undertaking has been contravened; or
(iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking.
(2) A proceeding for a category 1 offence may be taken after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period.
(3) Subsection (1) does not apply to a proceeding for an offence against part 2A.
For the purposes of this ruling I need not reach a view as to which limitation period would apply. It suffices to note that the requirements on which Mr Lindsay relied are less stringent than those under the current act referred to by the defendant.
I ruled that it would be necessary to consider each objection on a question by question basis and I overruled each objection and required Mr Lindsay to answer. I do not propose to set out the course of the evidence and each objection in detail. So much is evident from the transcript that will be annexed to a certificate under s 128(5) in respect of all evidence given in these proceedings, which I granted to Mr Lindsay.
In many cases the answer to the question would necessarily be so innocuous as to be devoid of any tendency to incriminate, bearing in mind how that tendency is to be assessed. In respect of some questions that might have been capable of starting a train of inquiry towards proof that Mr Lindsay might, in the opinion to be reached at some indeterminate time in the future by some prosecuting authority, have committed an offence, I concluded that while the grounds for Mr Lindsay’s objections could not be said to be completely untenable or fanciful, there were not reasonable grounds for the objections, and I overruled each of them.
My reasons follow.
Section 128 of the Act governs the privilege in respect of self-incrimination. It relevantly provides:
128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness—
(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness—
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b) that the court will give a certificate under this section if—
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii) the witness gives the evidence after being required to do so under subsection (4); and (c) of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that—
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
No evidence was provided about the prospect of a renewed coronial enquiry, and how the requirements of s 50A(1) might be satisfied by Mr Lindsay’s evidence in this proceeding. I have no evidence as to the date of the enquiry or its findings. Further, no evidence was provided that might shed light on the prospect of a criminal prosecution being initiated.
In Sorby, Gibbs CJ observed:
The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient; "to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer".[3]
[3](1983) 152 CLR 281, 289 (citations omitted).
In Jackson v Gamble, Young CJ stated:
A mere statement by the witness that his answer might tend to incriminate him is not sufficient. The court must be able to see for itself that there is reasonable ground to fear that the answer may have the stated effect. What it will be necessary for a witness to establish in order to be allowed to claim the privilege will depend upon all the circumstances of the case. So where "a question concerns conduct that is itself innocent, and will only involve risk to a witness as a link in a chain of proof, he must satisfy the Court by facts that will, in that event, be outside the terms of the question, that the answer would, or might tend to, incriminate him; e.g. R v Cox and Railton(1884) 14 QBD 153, at p. 175": Brebner v Perry, supra, at p. 182.[4]
[4]Jackson v Gamble [1983] 1 VR 552, 555.
Whether there are reasonable grounds for an objection must be decided judicially and that process requires evidence. I have none and cannot speculate. In the absence of any contrary evidence, I can more comfortably infer that it was highly improbable that inquest would be reopened. Given the prospect of criminal prosecution requires the further step of prosecuting authorities commencing proceedings against Mr Lindsay, the links in the chain of proof are both considerable and complex. Any possible risk of criminal prosecution in the circumstances is so remote it can be described as very tenuous or so improbable as to be virtually without substance such that, although not completely fanciful,[5] such a risk could not constitute a reasonable ground for the objection.
[5]Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] AC 547, 581.
For the purposes of sub-s 128(4) of the Act, I am satisfied that the answer to every question asked, being the relevant evidence, cannot tend to prove that Mr Lindsay has, as opposed to had, committed an offence, or is liable to a civil penalty because such evidence is both stale and likely to have been available to and considered by the coroner at the original inquest. The witness bore the onus of showing the contrary and made no attempt to do so.
The section is in the present tense, not the past tense, and consistently with the underlying rationale of the privilege, it does not afford a privilege where there cannot a prosecution. That is because such evidence cannot presently have any tendency to incriminate the witness. Taken at its highest for the purposes of argument, assuming the questions were directed at obtaining admissions of conduct in breach of the act, which was not the case, the evidence could only tend to prove that the witness had many years ago committed an offence, conduct for which he will not be prosecuted. Thus, any evidence that might emerge from this proceeding could not be evidence of an incriminating character.[6] The probative value of the evidence actually given fell well short of this standard in any event.
[6]Sorby (1983) 152 CLR 281, 290 (Gibbs CJ).
I note that this conclusion is consistent with the former position at common law, stated by the Full Court in Korp v Egg and Egg Pulp Marketing Board, in these terms:
To stop at this point, it is clear that this ground of the objection cannot be sustained, and so much is now conceded. The reason is, as pointed out by Adam, J, that the effluxion of time since the relevant dates has dissipated the possibility of conviction for those offences, even if they were committed.[7]
[7][1964] VR 563, 566 (citations omitted).
On the other hand, the questions revealed that the answers Mr Lindsay might give will be relevant evidence in the determination of the issues in dispute in this proceeding. It was in the interest of justice for him to give that evidence.[8] Accordingly, I required Mr Lindsay to answer all questions to which he raised objection. In the event, the parties took no objection to any answer as inadmissible by operation of s 56(2) of the Act.
[8]John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346, 354.
Admissibility of document MSC.010.698.0001
The defendant objected to the tender of document MSC.010.698.0001. The document bears the letterhead of the Electrical Regulatory Authority Council c/- Queensland Electrical Safety Office and is titled ‘Insulation Session – ED Package’. It appears to be dated May 2010. It purports to document or catalogue the contents of an insulation session at an ERAC meeting in May 2010. In its format it resembles an agenda to which a participant has made notes of the discussion and/or conclusions of the meeting. It also includes the contents of a letter dated 23 March 2010 about applicable Australian standards.
The plaintiff argued the document is capable of tender under s 48 of the Act as a business record and that any argument as to its authenticity or its probative value is a separate matter to its admissibility, and should be determined at the end of the proceeding in light of the entirety of the evidence.[9]
[9]Citing ACCC v Air New Zealand (No 1) (2012) 207 FCR 448, 467-471 (Perram J) (‘Air New Zealand’).
The plaintiff submitted that I can be satisfied the document is a business record in circumstances where the document was produced under subpoena to the Hanger Royal Commission by the Queensland Electrical Safety Office (ESO), which was the relevant secretariat, permitting an inference that it formed part of the business records of the ESO.
The defendant disputed the characterisation of the document as a business record, noting as a preliminary matter that when Mr Thompson, an employee of the ESO, gave evidence the plaintiff did not explore with him whether the document could be considered a business record of the ESO. What evidence Mr Thompson may have given is a matter of speculation.
The defendant invited analysis of the contents of the document, submitting that it did not present as minutes of a meeting, or identify or include attendees, or indicate who said any of what the document records. There was no evidence of the practice of the ESO in terms of minute keeping or taking notes about meetings, and whether these are reviewed and distributed. The defendant submitted that Perram J’s observations in Air New Zealand can have little application on the final day of trial where there is no more evidence to be adduced. In the event that I allow the document to be tendered, the defendant submitted these same contentions go to the probative value of the document.
It was not disputed that the document may be relevant and was admissible pursuant to s 56 of the Act, subject to exclusion by operation of the hearsay rule (s 59). The hearsay rule is excepted if the document is a business record, which is determined by reference to s 69 of the Act. If admissible as a business record, the contents of the document may be adduced in evidence by its tender without further proof of its authenticity pursuant to s 48(1)(e) of the Act.
Section 69 relevant provides:
69 Exception—business records
(1) This section applies to a document that—
(a) either—
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made—
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
…
(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).
It was not disputed that the ESO was a business as defined in Part 2, s 1 of the Dictionary in the Act. I am satisfied that the document is likely to have been part of a record kept by the ESO in the course of or for the purposes of its business and that it was produced by the ESO from its possession custody or power in answer to a subpoena.
The question that is more difficult is whether the representations made in that document were made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
There was some force in the defendant’s contention that there is simply not enough information within the document to clarify its exact nature, use, or the source of the matters which it records. The defendant noted, for example:
(a) there was no indication as to whose views were being expressed, if they were expressed at a meeting, or who was recording this information, and for what purpose;
(b) the document commences with a ‘table of contents’, yet includes substantive commentary, including a short chronology. This is followed by what is described to be ‘discussion’. This in turn is followed by what appears to be a copied letter to Standards Australia.
The document does not immediately present as minutes, a paper to be put to a meeting, or notes. In short, the defendant submitted the document presents with too many unknowns about its creation and presentation, such that without further evidence I cannot be satisfied of the matters required by s 69(2).
I bear in mind that I may examine the document and draw any reasonable inferences from it (s 183 of the Act). Given that Mr Thomson gave no evidence that might assist identification of it as a business record, there is no other basis. I also bear in mind that the standard of ‘might reasonably be supposed’ applies to the source of personal knowledge of the asserted facts and that this standard permits inferences not just from the form of the document but from the nature of the information contained within it.[10]
[10]Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 984 [19].
I am satisfied that the representations in the document were made or recorded in the document in the course of the business of the ESO and for the purposes of that business.[11] It might reasonably be supposed that insulation session was a meeting that persons attended, and I consider that inference is open from the content of the document. It might, for the same reason, reasonably be supposed that the author of the document attended the meeting. Although this person is unidentified, the cases show that there is no need to identify the person who made the record or the person with the requisite personal knowledge.[12] Section 69(5) provides that a person is taken to have had personal knowledge of a fact if that person’s knowledge was based on what they saw heard or otherwise perceived. In this sense, the issue of the personal knowledge of the author is distinguished from the issue of the personal knowledge of the ambulance officer in Lithgow City Council v Jackson.[13] In other respects, the content of the document can be traced as drawn from other business records of ESO that the author may reasonably be supposed to have seen. The letter to Australian Standards represents the views of the ESO and it appears that the author of the document in question had reproduced the contents of that letter by accessing other business records of the ESO.
[11]Air New Zealand (2012) 207 FCR 448, 460 [50].
[12]ASIC v Rich (2005) 216 ALR 320, 365 [197].
[13](2011) 244 CLR 352.
Although the matter was not free of difficulty, I am satisfied that the document satisfies the requirements of s 69 of the Act, and its tender is permitted. I note the defendant’s residual submission that in the event of its tender, its contentions are applicable on the question of the probative value of the document.
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