***UNCHECKED*** Commonwealth of Australia v Helicopter Resources Pty Ltd & Ors

[2019] HCATrans 197

[2019] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S217 of 2019

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

HELICOPTER RESOURCES PTY LTD ACN 006 485 105

First Respondent

MARY MACDONALD

Second Respondent

CORONER’S COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Third Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 OCTOBER 2019, AT 10.02 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear with MR T.M. BEGBIE and MS J.D. WATSON, for the appellant.  (instructed by Australian Government Solicitor)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR T.J. BRENNAN and MS K.I.H. LINDEMAN, for the first respondent.  There are submitting appearances from the second and third respondents.  (instructed by Norton White)

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours have our oral outline.  You will see that I had contemplated in paragraph 2 that at the outset the Court might be minded to address the question of whether leave would be granted to file the notice of contention so that we know where we are at the start of the hearing, but of course I am in your Honour’s hands as to ‑ ‑ ‑

KIEFEL CJ:   We will deal with it as part of the argument, Mr Solicitor.

MR DONAGHUE:   If the Court pleases.  Just to be clear that I understand that, your Honours, does that mean that your Honours would contemplate that in my primary submissions I would respond to the notice of contention or that I would leave that until reply because, in my submission, I would prefer, if it is convenient to the Court, not to seek to anticipate the way that our friends would develop the notice of contention?

KIEFEL CJ:   Yes, deal with it by way of reply.

MR DONAGHUE:  Thank you, your Honour.  In that event, I will pass over paragraph 2 and commence by noting that, in our submission, the critical issue on the appeal is the permissibility of the use of coercive powers and inquiry to require the employee of a corporation to give evidence in circumstances where that corporation is facing criminal charges and the coercive inquiry overlaps with the subject matter of those pending charges.

In our submission, the Full Federal Court found that, but for the operation of section 87(1)(b) of the Evidence Act, the accusatorial principle would not have been relevant to the examination of an employee in those circumstances, but it treated 87(1)(b) as having the effect that an admission made by an employee was required to be treated as if it had been made by the corporate employer itself, as opposed to simply being admissible evidence against that employer.  For that reason it found that to compel the employee to give evidence was to be equated with compelling evidence from the corporate employer itself and that that would be contrary to the accusatorial principle.  Our submission is that that reasoning involved error and it is the primary purpose of the appeal to correct that error.  So that point is quite a narrow one.

The wider questions that are sought to be raised as to the accusatorial principle and the way that they engage in relation to corporations and the law of contempt of court and whether powers can be used to gather evidence in any other circumstances all, in our submission, go well beyond what your Honours need to decide in order to decide the appeal in favour of the Commonwealth.

Can I ask your Honours to turn to the core appeal book and to the Full Federal Court’s reasons and to start on page 96 where you will see in paragraph 29 the court expressing the view that it was satisfied as to its own jurisdiction and it was so satisfied having identified the “matter” that was before it in the fifth line of that paragraph:

The “matter” or controversy is the validity of the decision to issue a subpoena to Captain Lomas –

who was the chief pilot of HeliRes:

to give evidence. Also the appellant seeks to prohibit the Coroner’s Court from requiring certain persons to give evidence in the inquest prior to finalisation of the prosecution . . . That is a further aspect of the “matter”.

The fact that the matter first identified is as to the validity of the subpoena is the reason why there is some dispute between the parties as to the relevant point in time.  For the legislation, it is not a dispute that matters because the provisions were in the same form at both relevant times but we have taken the view that the relevant point in time is the point in time when the subpoena was issued.  The respondent takes a different view.

Your Honours can see the background that leads up – relevant background leading to the issue of that subpoena – if you turn on a few pages to paragraph 50.  What had happened is, in short, the inquest had been running for a period.  Then, at paragraph 50, criminal charges were commenced in the ACT Magistrates Court on 20 December 2017 and the day after that the coroner heard arguments as to what should happen in respect of the progress of the hearing in light of the laying of the charges the day before, parties were directed to file written submissions on that occasion and the matter was adjourned to come back in May.  In March, the HeliRes filed submissions in accordance with that direction, seeking an adjournment of the inquest pending the determination of the criminal proceedings.

The Commonwealth opposed that application.  If your Honours turn on to page 104, you will see at the bottom of page 104, the last bullet point which is part of paragraph 55, you will see that part of the basis for that was that it was submitted that:

The questioning that would occur . . . was not questioning of the accused.  Captain Lomas was an employee . . . and can be called to give evidence at the criminal trial and will be required to answer questions at trial unless he is entitled to claim privilege –

that is his own privilege:

Therefore, there was no fundamental altering of the accusatorial process –

The coroner ruled on that on the adjournment application at 57.  You can see what occurred.  So, on 12 April the parties were notified:

that the inquest would proceed.

HeliRes sought reasons for that which were provided and you can see an extract of those reasons at the bottom of paragraph 57.  Just above the quote:

The Coroner noted that the remaining witness was Captain Lomas, who was not subject to criminal prosecution, nor had there been any suggestion that he would be.  The Coroner continued:

His interests and those of [the appellant] are not the same.  He is a compellable witness in both jurisdictions.  His interests, as opposed to those of his employer, insofar as they may be affected by being required to give evidence in both fora, can be protected by asserting his rights in respect to self‑incrimination.  I reject the submission that [the appellant’s] defence will be compromised by Mr Lomas giving evidence.

Over the page, at paragraph 59, you will that on the same day as the coroner decided to proceed, 12 April, the subpoena was issued to Captain Lomas to give evidence, that subpoena being issued under section 43 of the Coroners Act (ACT).

In effect, the inquest was to continue and, as part of the investigative processes of that inquest, the coroner decided, having heard submissions on the point, that it was appropriate to require Captain Lomas to give evidence for that administrative purpose.

Your Honours will have seen repeatedly through first respondent submissions references to the notion of a pre‑trial deposition and how there is no pre‑trial deposition known to the law.  In light of those submissions, it is perhaps useful to see the way that the first respondent put their jurisdictional case in the Full Federal Court.

If I could ask your Honours to go back to page 97 of the book, paragraph 34, what had occurred was that the Federal Court had effectively raised an issue about its own jurisdiction and the parties then made submissions on that, and it concluded at – I have already shown your Honours paragraph 29 where the court found that it was satisfied it had jurisdiction.  Part of the reason for that is paragraph 34, where the Full Court said:

it is clear that the decision of the Coroner’s Court sought to be impugned is not an application by the defendant in a prosecution in relation to a decision made in the criminal justice process in relation to the offence, within . . . s 39B(1C).  In particular, in our opinion, the decision is not “a decision in connection with the investigation, committal for trial or prosecution of the defendant” for the purposes of the definition of “related criminal justice process decision” in s 39B(3).  Relevantly, the inquest stands outside and separate from such a decision in the criminal justice process.

I am going to take your Honours to those statutory provisions in a moment but before I do that, if your Honours go back to paragraph 23, you will see that that in effect was an acceptance of the submission that HeliRes put in support of the idea that the Full Federal Court had jurisdiction.  At the bottom of page 94 of the book:

The appellant submitted there was no relationship between the relief claimed, or the application made by it, and any decision made in the criminal justice process.

So at that point, in attempting to satisfy the Full Federal Court that it had jurisdiction, it was recognised that there was a distinction, there was no relationship, to use the language there, between the inquest on the one hand and the criminal justice process on the other, and yet much of the argument that your Honours are now confronted with from the first respondent seeks to draw a very tight connection between those ideas by characterising what was happening as if it were a deposition in the course of, connected with, the pending prosecution.  That is just not the position.

BELL J:   Nonetheless, I think in the way the matter was run before the Full Federal Court, if one goes to core appeal book 125 at paragraph 112, it is clear that the submission relating to the concept of the pre‑trial deposition was live before the court, albeit, as you submit, Mr Solicitor, the matter was decided on the narrower basis.

MR DONAGHUE:    Indeed.  It is certainly no part of my case and no part of our case in opposing the notice of contention to suggest that this is a new argument.  The argument was run; it just was not decided, in our submission.  Could I just complete this point ‑ we have handed up to your Honour 39B of the Judiciary Act just so your Honours can make sense of paragraph 34 that I have just read to you.  Without dwelling on it, the source of jurisdiction is 39B(1A)(c).  That was the basis upon which the court relied.  That, as your Honours will see from the closing words, is subject to a carve‑out where the matter is in respect of a criminal prosecution, or:

in respect of which a criminal prosecution is instituted or any other criminal matter.

But, more importantly, that section is subject to (1C) on the next page which provides that at any time when a prosecution for, relevantly, an offence against a law of the Commonwealth ‑ your Honours do not have the Judiciary Act?

KIEFEL CJ:   No, we all have copies, thank you.

MR DONAGHUE:   You all have it?  Thank you, your Honours.  So in (1C) you will see in subparagraph (a) when:

a prosecution for an offence against a law of the Commonwealth . . . is before a court of a . . . Territory –

which was the position here, then (c):

the Federal Court of Australia does not have jurisdiction with respect to –

skipping to the end of (c), a matter where relief is sought:

in relation to a related criminal justice process decision ‑

That term is defined in subsection (3), as the third definition in subsection (3) in 39B, to mean:

in relation to an offence, means:

(a)a decision (other than a decision to prosecute) made in the criminal justice process –

which does not seem to be defined:

in relation to the offence, including:

(i)a decision in connection with the investigation, committal for trial or prosecution of the defendant –

and most importantly:

(iv)a decision requiring the production of documents, the giving of information –

which, of course, was what was required from Captain Lomas, or summoning the person as a witness.  So the court’s conclusion that it had jurisdiction depended on it being satisfied that the inquest – the coroner issuing a summons to Captain Lomas was not a decision requiring the giving of information in connection with the criminal justice process.  That separation is, in our submission, a critical starting point in analysing the arguments that are put forward, because the proposition is that an unrelated administrative proceeding cannot get evidence from someone who is not accused of anything because of the accusatorial principle or contempt of court.

GAGELER J:   Is this anything more than a rhetorical device?

MR DONAGHUE:   It is, your Honour, yes, because it is, in our submission ‑ once one accepts that the matter is a matter about the validity of a particular subpoena issued in the course of an inquest it is important, in my submission, to be very clear about what that subpoena was doing and what it was not doing, and what it was not doing, it was no ‑ was bringing in a witness for the purpose of building the criminal case against HeliRes because if that ‑ ‑ ‑

GORDON J:   Could have had that effect though.

MR DONAGHUE:   Well, perhaps, but if that had been what it was doing, then the whole proceeding was out of court; there was no jurisdiction in the Federal Court to review a decision of that kind.  HeliRes did not contend it.  So, as Justice Bell put to me, there was an argument that was talking about related criminal justice – was talking about pre‑trial depositions, but HeliRes’s case was not that this subpoena was something that can properly be characterised as a process of that kind.

NETTLE J:   They do not say otherwise.  They just say that because there is no depositional procedure in the criminal court, what you are doing is seeking to get an advantage not available to you under the criminal procedure rules by in effect using the Coroner’s Court to obtain a compulsory deposition.

MR DONAGHUE:   And what I am saying, your Honour, is that the factual basis upon which your Honours should proceed is that, leaving aside the question whether that might have been an incidental effect, we were not doing it for the purpose of gaining an advantage in the criminal proceeding because, if we were, it would have been a related criminal justice process decision.  What was happening was that the inquest was being conducted for the purposes of the coroner’s inquiry into the circumstances of the death of Captain Wood.

NETTLE J:   So that the Full Court’s determination that it had jurisdiction forecloses any issue about you stealing a march by the use of the coronial proceeding.

MR DONAGHUE:   In my submission, it does, because, as HeliRes put it below, there was no relationship between the relief that it was claiming and the criminal justice process decision.

GORDON J:   Does that mean, though, that if you were able to establish that it was for that purpose that the court did not have jurisdiction and, therefore, it is unreviewable?

MR DONAGHUE:   What I am saying is that HeliRes mostly implicitly – but sometimes explicitly – is asking your Honours to characterise what happened in the way that Justice Nettle just put to me and, in my submission, that is not what they did below and your Honours should not accept it because to characterise things in that way would have meant that the Federal Court would not have had jurisdiction.

GORDON J:   And, it is unreviewable.

MR DONAGHUE:   The Full Court’s decision, your Honour?

GORDON J:   No, the issue of the subpoena in those circumstances outlined by Justice Nettle.

MR DONAGHUE:   No, no.  What 39B says is if it is in relation to a related criminal justice process decision, then it is the court of the State or Territory in which the prosecution is being conducted that has jurisdiction; that is (1C)(b).  So, if you are going to take the point that is related to the criminal justice process, take it in the court that is controlling the criminal trial so that it has got visibility of all of the relevant issues.  Do not go off to the Federal Court and fragment.  That is the policy underlying that exclusion. 

GAGELER J:   Mr Solicitor, I do not want to get bogged down on this but you chose to start at this point.

MR DONAGHUE:   Yes.

GAGELER J:   Are you saying, is it an issue estoppel?  And, if not, what are you saying?

MR DONAGHUE:   I am simply saying – I am not endeavouring to say any more than that your Honours should not approach the subpoena that is at the heart of this matter as if it were a subpoena that was issued so as to obtain an advantage that would not have been available in criminal proceedings.  There is no finding to that effect and to approach it in that way is inconsistent with the way that the case was articulated below.  Whether or not it would have had an incidental effect of conferring some benefit is a different question from whether it was issued for the purpose of obtaining an advantage of that kind.  And, it is that that I am trying to rule out of play because that seems to be being put against us – that it is repeatedly – your Honours are repeatedly invited to view the subpoena as if that is what it was all about.

In fact, what it was all about was bringing to a close an inquest into the death of a man in circumstances where the man’s family were urging the coroner to bring the inquiry to a close – the adjournment was opposed by Captain Wood’s wife and the submissions the Commonwealth put in opposition to the adjournment were all about saying, this is going to drag on forever if you adjourn it.  Bring it to an end.  Captain Lomas is an important witness, you should call him.  And, that is what the coroner did.

BELL J:   Captain Lomas was being called at the request of the Commonwealth for cross‑examination on the statement that was before the coroner.

MR DONAGHUE:   Yes, that is right.  As your Honour’s questioning indicates, it was not the case that the slate was clean, he had actually given a statement and the Commonwealth was saying we want to cross‑examine him on some topics.

BELL J:   The inquest had, largely, as it were, come to an end until the application by the Commonwealth to cross‑examine Captain Lomas.  Is that a fair statement?

MR DONAGHUE:   I do not think so, your Honour.  I think Captain Lomas was the last witness but before the matter came to an end, the charges were laid and that then raised a question of, what do we do, what do we do now?

NETTLE J:   It was then stood over pro tem, was it not, until you sought leave to cross‑examine Captain Lomas?

MR DONAGHUE:   No.  This, your Honour, is back to 50, 51 or thereabouts.  So the application to cross‑examine ‑ your Honour you will see at paragraph 13 –I think that is right – that at the end of January the Commonwealth notified the coroner of an intention to cross‑examine Captain Lomas.  There was then, back in 52, the submission that the inquest should be adjourned.

At the time we did that, in January, the coroner had stood the matter over until May and invited the parties to make submissions about what should happen next.  So it was not stood over.  That adjournment to May was not influenced by the Commonwealth’s application but I think when we made the application to cross‑examine that seems to have triggered the adjournment application.

NETTLE J:   Just to get it straight, the criminal charges were laid and the coroner stood over the further conduct of the coronial proceeding sine die.

MR DONAGHUE:   No, to 1 May.  That is paragraph 51.

NETTLE J:   I see.  And you accelerated by asking Captain Lomas to be brought on to be cross‑examined?

MR DONAGHUE:   Your Honour, if you go back to paragraph 51, what her Honour did was she adjourned it to 1 May, contemplating that the parties would make submissions in writing supported by any relevant evidence as to what should happen next.  She had not contemplated at that point that the matter would go off indefinitely until the criminal proceeding was over; she contemplated it would go off while the parties made submissions and filed evidence going to that question.  That is what then happened and then on 12 April the coroner decided to proceed and bring the inquest to an end, having decided, as I have shown your Honours in 57, that she was not satisfied that it would compromise Heli’s defence, given the difference between an employee on the one hand and a corporate defendant on the other.

NETTLE J:   Thank you.

MR DONAGHUE: Your Honours, in our submission, at the heart of the reasoning is section 87(1)(b). To make that good, can you start at paragraph 143 on page 133. The court has just engaged in a detailed analysis of Caltex, which I will come back to, and it concludes at 143:

subject to the question of any operation of s 87(1)(b) . . . Caltex stands against the proposition that, of itself, the accusatorial nature of a criminal trial of a corporation means that an officer of the corporation may not be required to answer questions which tend to incriminate the corporation.

That, in our submission, is a correct understanding of Caltex, but I will come back to that ‑ that understanding expressly said to be subject to 87(1)(b).  Then if your Honours go to the next page, there is a discussion of Nutricia, which I will also come back to.  Then at paragraph 150, having noted that there may be a distinction between compelling answers and compelling documents, the last sentence of 150:

We would add that those questions would need to be answered by the proper officer of the corporation.  Nevertheless, an issue remains whether requiring Captain Lomas to answer questions at the inquest would be compelling the appellant corporation to answer questions.

So their Honours are grappling with the question:  would compelling Captain Lomas be compelling the corporation?  The reason they are grappling with that is because, in our submission, in the line of authorities the court then immediately turns to X7, Lee No 1, Lee No 2 and Strickland.  Those are authorities concerned with the accusatorial process of justice that is compelling evidence from the accused.

So, the court is asking, is compelling Captain Lomas compelling the accused?  Its answer to that is found in the reasoning which is the key reasoning from 181 through to 189 on page 142 of the book.  In 181, the fourth line down:

Once criminal proceedings have been commenced –

And this is all, I emphasise, analysed having discussed the X7 line of authorities, this analysis is an analysis directed to that, to the accusatorial process of justice.  It is not directed to contempt of court.  The fourth line down:

Once criminal proceedings have been commenced, as here, the relevant perspective is the accusatorial system of criminal justice and the fundamental principle that the onus is on the prosecution to prove its case.

At 182, by reference to Strickland, the fundamental principle is identified:

that “it is for the prosecution to prove the guilt of an accused person”. . . . the companion rule to that principle is that an accused person cannot be compelled to testify to the commission of a charged offence.

So, those are the two principles that your Honours have identified throughout that line of cases.  Then, critically, in our submission, at 183, subject to what follows:

what has been referred to as the companion rule . . . is not engaged as, unlike the position with interrogatories, the prosecution is not seeking to compel the person charged with the crime (namely the appellant) to assist in the discharge of the prosecution’s onus of proof.

So, the distinction is compelling Captain Lomas is not, subject to what follows, compelling the defendant, unlike what might be the position with an interrogatory because Captain Lomas has not been charged with anything.

Then, at 184, entirely consistently with what the court said back in 143, does section 87 have the effect that the corporation is being compelled – the corporation itself is being compelled – that is the question.  So, when in 183, the court says, subject to what follows, what they are saying is, subject to the effect of section 87, which was exactly the language they used back in 143. 

The court concludes that that does make a difference – that section 87 does make a difference and, indeed, a critical difference, and it does it for this reason – it identifies one effect of 87(1)(b) that is not contentious between the parties which is broaden the scope of the admissible evidence of an employee beyond statements made with authority, that being the old law, Fraser Henleins v Cody et cetera – it broadens it to statements made within the scope of employment and there is no question that 87(1)(b) does that.  That is the effect that is referred to in the Cross on Evidence extract that is noted in that passage – the only effect that is identified there.

The critical hinge point for the court’s conclusion is the next sentence of 184:

The provisions s 87(1)(b) altered the common law which Mason CJ and Toohey J said in Caltex at 504 was that “[o]ral evidence given by an officer of a corporation is that of the witness, not that of the corporation” –

So, what their Honours are saying is, it would not have been a contravention of the companion rule but 87(1)(b) has had the effect that evidence of the witness – which would, historically, have been evidence of the witness – is now to be taken as evidence of the accused itself and because of that the accusatorial principle is engaged.

So one sees then in 185 this notion of applying 87(1)(b) prospectively which in itself is a slightly problematic concept, but their Honours are anticipating the effect that they say 87(1)(b) would have.  If evidence is given to the coroner it would be able to be tendered not just as evidence against the corporate accused but as evidence by the corporate accused, and the corporate accused, having been compelled to give evidence in that way, the accusatorial principle was engaged.

So by then, in our submission, the court has really answered the question posed at 184.  It answers it more clearly again at 189.  But it has already answered the question, does 87(1)(b) change the position?  It then pivots from the companion rule to the fundamental principle, but that discussion that you then see at 186, 187 and 188 is, in our submission, all premised on the proposition that Captain Lomas giving evidence is HeliRes giving evidence and, on that premise, the discussion is then in terms that uses language directly drawn from Strickland.

So the court is saying, well, if HeliRes has to give evidence itself, is that inconsistent with the accusatorial principle?  Yes, because it is said, well, the prosecution will have information it should not have, would not have in ordinary circumstances, the accused will not be answer the case just on the basis of the material that the prosecution put forward.

So all of it just equates HeliRes with the position of a natural person and that reasoning is the subject of our ground 2. But, in our submission, your Honours do not need to get to our ground 2 if we are right that the reasoning at 183 and 184 is wrong, because 87(1)(b) does not do what the Full Court said that it did, having used 87(1)(b) as the critical bridge to overcome the gap between what was happening on the facts here, which was compulsion of an employee, and what the authorities say is problematic, which is the compulsion of an accused, and bridging that gap was the fundamental problem that HeliRes confronted. Section 87(1)(b) was the only way the gap was bridged, and that was erroneous.

To make that good, can I take your Honours to the Evidence Act, starting if I may at section – so this is the Evidence Act 2011 (ACT). If you start at section 59 – I am not going to linger on this because all these provisions will be well familiar to your Honours, but 59(1) is the hearsay rule:

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

Section 59 is, of course, subject to exceptions, the relevant one being in section 81 which concerns admissions.  The hearsay rule does not apply to evidence of an admission.  Admission is defined in the dictionary at the end of the Act as one of the first definitions in the dictionary and it means ‑ ‑ ‑

EDELMAN J:   Which page is this?

MR DONAGHUE:   On the print, your Honour, I think 166, I hope ‑ the second definition.  The dictionary is in Part 1 of Schedule 1:

admission means a previous representation that is —

(a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b)adverse to the person’s interest in the outcome of the proceeding.

So the ordinary position, unsurprisingly, is that an admission is a statement made by the party to the proceeding and not by anyone else.  Third parties cannot usually make admissions on behalf of parties.

But that ordinary position reflected in that definition is then subject to modification by section 87, if your Honours could now turn to that.  The premise for the operation of section 87 is that you would have a statement, a previous representation being made by a person who is not the party.  That is what section 87 is about:

For the purposes of deciding whether a previous representation made by a person is also taken to be an admission made by the party –

we have two different people:

the court must admit the representation if it is reasonably open to find that –

and relevantly here (b):

when the representation was made, the person was an employee of the party, or had authority . . . and the representation related to a matter within the scope of the person’s employment or authority ‑

So those last words are the words that extended the previous position, instead of, as one needed under Fraser Henleins v Cody to have authority, authority is still enough but it is also enough for the statement of the employee to be admissible against the employer if it is made within the scope of the person’s employment.

So 87 is modifying the usual position by creating a situation in which statements made by one person might be taken to be admissions made by someone else.  That is not, in our submission, to say that the admission which becomes admissible in that way is to be treated as if it was made by someone else, by the party, and that is most obviously seen if one contemplates the situation of an employer who was a natural person, because there is no distinction drawn in this section between corporations and natural persons.

So if we take a natural person small business employer at the local bakery, or something of that kind, an employee of the bakery under investigation for a food standards violation of some kind can make a statement within the scope of their employment about what they did, that would be admissible against the natural person baker by reason of 87(1)(b), but it would be ludicrous, in our submission, to say that the baker made the admission, and nothing in section 87(1)(b) says that the baker made the admission. It just says the statement ‑ ‑ ‑

EDELMAN J:   Is that to reject the master’s tort theory or the qui facit per alium facit per se notion of agency?

MR DONAGHUE:   Your Honour, I am not sure that I can give an answer that fully grapples with that.

EDELMAN J:   There is a long, long line of authority in the law of agency that a person who acts for another, or acts through another, acts himself or herself.

NETTLE J:   So too in the criminal law, of course.

MR DONAGHUE:   Your Honours, in my submission, there is an important distinction here, bearing in mind that we are coming at this all through the lens of the protections that the accusatorial system of justice provides to an accused person, between things that are binding on the accused person – authority to bind the accused person in the world in their dealings with other ‑ authority to bind the employer in the dealings with the world and with others, and indeed the admissibility of evidence against a person, and the question of whether the person actually did the thing himself or herself.

The concern, in my submission, with the accusatorial system of justice would, in the event that the baker in my hypothesis, charged with an offence, sought to say, my employee cannot give evidence in this criminal charge, cannot be spoken to by the prosecution in advance because the statement of the employee will be admissible against me, in my submission that argument would attract short shrift in a court because it would be said, it is one thing for us to say we are not going to put you in the witness box, we are not going to subject you to a pre‑trial interrogation, but getting evidence from your employees that is admissible against you is not the focus of this doctrine at all.

NETTLE J:   You are on much stronger ground under (c), are you not?  Presumably the police could speak to a co‑accused who had been engaged in an alleged common purpose?

MR DONAGHUE:   I accept that, your Honour, yet one would think that if 87(1)(b) operates as the Full Court said, the same would be true of (c).  In my submission, there is just nothing in the history of this provision or in its test that makes it do anything more than extend the common law rule that used to say statements of an employee with authority will be admissible against the employer to a new category of case.  That is all that it did.  In that last sentence of 184 that I have read to your Honours – saying that it changed the common law rule – what the Full Court did was found that a long‑settled position that evidence of an employee, even if admissible against the employer, or even if admissible against the corporation, is not evidence of the corporation itself.

All of this Court accepted that in Caltex.  The Court was divided four/three on some issues but everybody accepted that proposition and it is a proposition that has heritage going back a long way.  It was recognised in this Court in the Melbourne Steamship Case in 1912.  So, what the Court was finding there, on the basis of no reasoning, no extrinsic material, no secondary material, was the alteration of a long‑settled common law understanding that there is an important difference between the evidence of an employee of a corporation and the corporation itself.

EDELMAN J:   Is that, though, because when the employee of the corporation gives evidence, the employee is giving evidence qua employee, not qua corporation employer?  But, there may be a difference where the act is done as an act of an agent.  It is done for the benefit of, and the purposes of, and with authority of the principal and that might include representations. 

MR DONAGHUE:   I think, your Honour, I can accept the possibility that might be so in some cases without it weakening the argument that I am advancing here because if it be the case that when the witness goes into the witness box to give evidence against their employer, they are giving evidence qua employee rather than qua employer.  In my submission, there is no sensible basis to say that the evidence remains the evidence of the employee when actually given in the criminal trial, but if given to the coroner in advance of the criminal trial, when tendered, it transmogrifies so that it is no longer the evidence of the employee and becomes the evidence of the employer.  That is, effectively, what the Full Court found would have had to have occurred here.

In our submission, the regime of 87 – and this is supported by the extrinsic material – the concept is to make it easier to make admissible against an employer evidence given by employees, on the basis that the employer is then in the best position to deal with that if they want to by calling contradictory evidence from other employees by showing that the person was doing the wrong thing in the account that they had given, unlike the position of a natural person who might be said to be locked‑in when they have given evidence on oath.

Nothing stops a corporation bringing in other people to say, well, actually, what that person did was wrong – not in accordance with our policies, not in accordance with directions and seeking to meet the case in that way. And, nothing, if there is unfairness, stops the criminal court dealing with that unfairness by reference to the suite of discretions that are accorded to the trial court under section 90 with unfairness, under sections 135 and 137 for unfairly prejudicial evidence.

KIEFEL CJ:   In determining the effect of section 87 in relation to an employee’s evidence, would you not have to take into account what amounts to a representation and whether or not the witness will be asked to make representations, which is to say, statements of fact?  Presumably, a witness, say in a coronial inquiry in a position of Captain Lomas, much of what would be asked would be matters of opinion, I would have thought.  Would you not have to look at how 87 would actually operate in relation to what was being asked?

MR DONAGHUE:   Yes, your Honour, and this was part of our prematurity point ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR DONAGHUE:   ‑ ‑ ‑ because I said there was difficulty with applying 87(1)(b) prospectively.  But, here, for the reasons your Honour gives, they might not be representations at all if they are opinions.  But, also, to be admissions, they have to adverse to the interests of the employer and there was nothing to say that Captain Lomas’ evidence would have had that character.  So, it was probable that only quite some subset of the evidence he might have given to the coroner would have been, perhaps, representations at all and if representations would have been representations capable of constituting admissions.  And, it is at that point, that there might have been a small body of statements that were made in the course of giving evidence that might have been able to be admitted and then there would have been a question, is there any unfairness in any of that.  If so, it could be dealt with by reference to discretionary exclusion.

But the point made – and I will not take your Honours to it but you have got it in the material – by the ALRC in recommending this provision, and I will give your Honours the reference.  It is the Interim Evidence ALRC Report No. 26.  It is volume 4, tab 36 and the relevant passage is in paragraph 755.  But the point made was that the unfairness could be mitigated by the capacity of the employer to call the person who made the representation to give the evidence to explain it, to contest its reliability, to call other evidence to contradict it.  So that is the way the ALRC thought that this was going to work.

In our submission, the common law position that the Full Court regarded as altered by 87 was so clearly settled that the court should not readily have concluded, certainly not without any explanation, that there was such a profound change being made so as to convert evidence from being evidence of the witness admissible against the corporation into evidence of the corporation itself. 

Can I take your Honours briefly to two cases to establish that.  The first is Smorgon v ANZ Banking Corporation (1976) 134 CLR 475. That is volume 3, tab 34. The case was decided by Justice Stephen sitting alone. It concerned section 264(1)(b) of the Tax Act, which is obviously a familiar coercive power to require the giving of evidence. Your Honours can see the terms of it set out at the top of 479 in the report – sorry, in the middle of 479 at the bottom. It was a power, relevantly, to give a notice in writing to any person requiring them to attend and give evidence.

One of the questions that his Honour Justice Stephen was required to consider in this case was whether it was possible to give a notice to a corporation to require it to attend and give evidence and his Honour held that it was not, an attempt having been made to require evidence to be given in relation to some of the Smorgon tax affairs.  You see that finding at the bottom of – or that conclusion at the bottom of page 481 and also at 485.  But if your Honours could turn to 481 you will see Justice Stephen reasons that:

Uninstructed by authority I would have little hesitation in concluding that the first part of par. (b), relating to attendance and the giving of evidence, applies only to natura1 persons . . . A corporation cannot, of course, itself “give evidence”.  It may authorize an individual to depose to facts on its behalf and is obliged to do so in the course of litigation –

Sorry:

and is obliged to do so . . . when required to make discovery of documents, answer interrogatories and the like.  But it is not then itself giving evidence, the oath remains that of the individual, upon whom alone the sanctions which are designed to deter perjury may operate.  The corporation may be bound by admissions contained in the evidence of such a duly authorized individual but the evidence will remain that of the individual witness.

So his Honour was recognising the distinction that we say lies at the heart of all of this.  Section 87 is about being bound by the admissions, but that does not change the identity of the person who makes them and therefore does not bridge the gap from evidence of an employee to contravention of the accusatorial principle.

His Honour then, having reached that position, uninstructed by authority goes on to look at some authorities, including in particular on page 483.  He discounts the idea that the Tesco line of authorities about guiding lines changes the position and then at 483 he looks, at the bottom of that page, at a decision of the Court of Appeal in the UK in Penn‑Texas Corporation, which reached the same conclusion, which your Honours see quoted at the top of 484, again, accepting that even where the corporation is bound, the evidence is still that of the individual witness.

I mention those two cases because when one then goes to EPA v Caltex (1993) 178 CLR 477, volume 2, tab 13, which I will go to briefly now and in more detail in a little while, all members of the Court, as I have mentioned, accepted that distinction and two of them did so by reference to the two cases I have just mentioned. In Caltex, if your Honours start in the joint judgment of Chief Justice Mason and Justice Toohey, in the middle of the page.

NETTLE J:   Page, please?

MR DONAGHUE:   Page 504, their Honours say, right in the middle of the page:

It makes no sense at all to make the privilege available to a corporation in respect of these books and documents when officers of the corporation are bound to testify against the corporation unless they are able to claim the privilege personally.  Oral evidence given by an officer of a corporation is that of the witness, not that of the corporation.

And there is a footnote to Justice Stephen in Smorgon and to Penn‑Texas, the two cases which I just mentioned.  That was the statement that the Full Federal Court found was reversed by 87(1)(b).  It was expressed similarly by Justice Brennan at the bottom of page 512 over onto the top of page 513:

the privilege was designed to confer was an immunity from an obligation to testify as to one’s own guilt.  That is an immunity that is irrelevant to a corporation, for a corporation cannot be a witness.

And his Honour cites a copious number of authorities in support of that proposition, including Penn‑Texas.  He also includes Melbourne Steamship v Moorehead, where Chief Justice Griffith and Justice Barton both likewise said a corporation cannot of course be a witness, that being a case concerned again with the power to compel a person to answer questions.  I will not take your Honours to it but Justice McHugh at 551, point 4 said the same thing:

a corporation itself cannot give evidence.

And at 535, in the dissenting reasons of Justices Deane, Dawson and Gaudron, their Honours having held contrary to the majority that the privilege was available to a corporation, at 535 say in the first full paragraph on the page, about six lines down, in effect, having said that:

we should add that the scope of the privilege . . . in its application to corporations is, because of the very nature of a corporation, somewhat limited.  A corporation cannot be a witness.

And in the second half of that page:

Moreover, a corporation’s privilege is no ground for resisting production of the corporation’s documents by another person.

That is because, quoting Controlled Consultants:

“The privilege is not a privilege against incrimination; it is a privilege against self‑incrimination.”  An officer or an employee . . . cannot resist production of documents ‑

Then from about eight lines up:

Although a corporation cannot be a witness in proceedings, when an officer or employee is called, even in criminal proceedings against the corporation, the officer or employee may not refuse to answer upon the basis that the answer would tend to incriminate the corporation.

So even the dissenting reasons in Caltex recognise that there is no difficulty with compelling, even in the criminal trial itself, an employee of the corporation to give evidence against the corporation in the criminal trial.

Now, in our submission, once that is accepted, the proposition that to do so is contrary to the accusatorial system of justice is impossible to accept – that the accusatorial system of justice provides protections of a kind that do not exist in the criminal trial when, for proper purposes, authorised by statute, a coroner seeks to gain evidence of the same kind.

The consequence of that, in our submission, is that the operation that the Full Court attributed to 87(1)(b) involves a significant and unwarranted departure from a very well‑established position that recognises the distinction between evidence of a corporate employee on the one hand and the employer on the other – that there was no basis to treat 87(1)(b) as having changed that rule and, therefore, that the critical conclusion of the Full Court did not follow.

I think, in fact, that I stopped short when I was taking your Honours through to reasons from the most important paragraph.  If I could ask your Honours to go back to that?  It is in the Full Court’s reasons on 144, paragraph 189.  So, your Honours will recall that the court said the perspective is the accusatorial system, the companion rule would not have applied, does 87 change the position – yes, because it makes the evidence of the office of that of the corporation – which is wrong, we say, for the reasons I have just explained – the fundamental principle does not change the position.  Then, at the end of all of that:

In our opinion, the crucial and dispositive consideration in relation to the issue of interference is that if Captain Lomas were compelled to give evidence in the inquest, as a matter of practical reality, the appellant’s position as an accused corporation in the criminal proceedings would be altered fundamentally –

Why?  We are told expressly:

That is because s 87(1)(b) . . . would make his evidence admissible, not merely as evidence of a witness of fact, but as evidence of an admission by the appellant itself.

That is the crucial and dispositive consideration.  In our submission, it is wrong for the reasons that I have just explained.  And, that is really why we are here, on the appeal to correct that error.  If your Honours accept that error, then you do not need, in our submission, to look at any other issue in the case.  The appeal should be allowed. 

KEANE J:   Mr Solicitor, in relation to maxims like qui facit per alium facit per se, there is, in a sense, fictional reasoning for a particular purpose that the maxim applies to achieve a particular result in relation to torts or whatever.

MR DONAGHUE:   Yes.

KEANE J:   But, generally, the modern approach is not to indulge in fictional reasoning and there are some statements in this Court about referring – at least as the default position – not to engage in that sort of fictional reasoning.  Are any of those statements of assistance in this particular context?

MR DONAGHUE:   Your Honour, can I have a look at that and respond in reply.  But, that is, if I may respectfully say so, what I was getting at, not very elegantly, in trying to answer Justice Edelman’s question earlier – that it does very much depend on the context.  And, here, in our submission ‑ ‑ ‑

EDELMAN J:   You may – if you are going to get into this – you may wish to deal then with this Court’s reasons a year and a half ago in IL v The Queen. 

MR DONAGHUE:   Thank you, your Honour.  But the point that I am ultimately trying to make is that, until the last sentence of paragraph 184, we have not found any suggestion that process of attributing statements from employees to – or from natural persons to companies should be the subject of a fictional process whereby the statement is also able to be binding on the corporation in some circumstances but where the statement is to be treated as indistinguishable from having been made by the corporation itself.  Unless what we submit would be a fictional process is engaged in to translate what all of the authorities say remains evidence of the witness into evidence of the accused, the accusatorial principle just had nothing to do with this case.

EDELMAN J:   Why is not 87(1)(b) just simply about situations where the agent or the employee is acting as or for the corporation or the employer?  At least at common law that would have been – that is the classic position for agency, and then there is a slight extension with 87(1)(b).

MR DONAGHUE:   Your Honour, if that be right, 87(1)(b) has nothing to say about the position of an employee giving evidence.

EDELMAN J:   Because the employee is giving evidence as the employee.

MR DONAGHUE:   Because they must and can only give evidence as the employee and so that would be an alternative pathway to the same conclusion – 87(1)(b) does not bridge the gap.  So, your Honours, that is ground 1 and, in our submission, ground 1, if allowed, is dispositive of the appeal.

Can I turn then to ground 2 which focuses on the – assumes that we have lost on ground 1 and that there can be some identity so that the evidence can be treated in some way as having been given by the employer and asks then whether it is nevertheless in error to equate the position of a corporation with that of a natural person when it comes to the application of the accusatorial principle.

KIEFEL CJ:   May I interrupt you before you proceed into ground 2?  The effect of section 87 is, however, although it is not taken on your argument to be evidence of a corporation, the admission nevertheless binds the corporation.

MR DONAGHUE:   Binds in the sense of is admissible against, but does not bind in the sense of preventing the corporation from contradicting or seeking to explain.

KIEFEL CJ:   Yes.

MR DONAGHUE:   So it does not bind in the sense of an admission in the pleading but, yes, is admissible evidence against.

KIEFEL CJ:   So it is rebuttable?

MR DONAGHUE:   Yes.

KIEFEL CJ:   That is how it would play out in a criminal trial?

MR DONAGHUE:   Yes.

KIEFEL CJ:   If it was tendered, the corporation could seek to rebut what was otherwise said with authority?

MR DONAGHUE:   Indeed, it could ask the prosecution to call Captain Lomas, it could call Captain Lomas himself and seek to explain or qualify earlier answers that were given, it could call other employees to cast light on that, it could tender additional documents that said, well, what Captain Lomas says is one thing but actually there is a body of evidence to the other effect.  All of those courses would be open.

KIEFEL CJ:   Yes, thank you.

GAGELER J:   It is no different from a natural person in that respect.  If an admission is tendered against a natural person, the natural person can go into evidence or call other evidence to contradict it.

MR DONAGHUE:   Your Honour, that is true, save for this one qualification, that if the admission is made under oath then X7 and Strickland would – this takes one into the locking in debate.

GAGELER J:   That might be a tactical problem, but it is still just evidence against the person.

MR DONAGHUE:  Your Honour, I accept that that is true, but in applying the accusatorial principle some members of the Court have given weight to the fact that that tactical problem is a real one where there is a perjury risk facing the witness if they choose to give a different version of events, that consideration.

KIEFEL CJ:   The provisions and law around prior inconsistent statements might add to the complexity of the natural person as well in the event that they are resiling from something that was said before.

MR DONAGHUE:   Yes.  I accept that that is so, but that issue as well, the perjury problem, none of those problems apply to a corporation, in my submission.  Even if evidence is attributed to the corporation, the corporation cannot be done for perjury for giving a different version of events at the trial.  That is part of the reason why we submit that one cannot directly equate the way the accusatorial principle applies to a corporate defendant with a natural person.  That was a large part of the point of the decision in Caltex, which I am going to come to in a moment, because Caltex expressly recognises that a corporation is in a worse position in a criminal justice proceeding than a natural person for reasons effectively of public policy.

Before I turn to Caltex, can I lay what I hope is uncontroversial groundwork by reference to some passages in the Full Court’s judgment quoting from this Court’s decisions in the accusatorial line of cases to make the point, starting at page 127, paragraph 123, that the way that this Court has articulated the accusatorial system of justice, the fundamental principle, the companion rule, is all about compulsion of the accused person himself or herself and never about the compulsion of a witness to give evidence against the accused person.

So if one takes the foundational judgment of Justices Hayne and Bell in X7, with which your Honour the Chief Justice agreed, quoted in paragraph 123, the second sentence, the system:

is accusatorial in the sense that an accused person is not called on to make any answer to an allegation of wrong‑doing . . . even after that information has been provided, the accused person need say or do nothing more than enter a plea of guilty or not guilty to the charge.  If the accused person –

The passages are all expressed in that way.  X7 is quoted again in paragraph 155 in another passage.  This passage is picked up in a number of the later authorities in this Court.

GAGELER J:   This goes back to your ground 1, does it not?

MR DONAGHUE:   I do not think so, your Honour.  Yes, part of the premise for my ground 1 was that there was a gap that needed to be breached.  That is true in that the premise was the accusatorial principle is limited to the accused person, so that is so. 

What I am leading into here, and I will not spend too long getting to it, is that what X7 turned upon was the principle that was identified by the majority as a general principle of law within that phrase, as used in Potter v Minahan, as being one of the kinds of things, unlike fundamental rights but also general principles of law that could attract the interpretive principle known as the “principle of legality”.

What the majority were doing in X7, in my submission, was identifying a general principle of law which had the two facets of the fundamental principle and the companion rule and then saying by reference to those two principles that a statute will not be interpreted as cutting across them unless an intention to do so is irresistibly clear.  That is not, unlike the case that the first respondent seeks to advance, a principle that is dependent upon the law of contempt of court. 

The position was complicated in X7, if I might be permitted a brief digression, by reason of the way that the issue came up in that case, because in X7 charges had been laid against a natural person accused but that evidence was to be taken in private and steps had been taken to try to prevent that private evidence from being disseminated to anyone.  In those circumstances, the Crime Commission came to this Court and said, there is no difficulty with this examination proceeding because it cannot constitute a contempt of court because there will  not be a risk of interference with the administration of justice because we have taken all these measures that mean that that risk does not eventuate.  So contempt was in play because the ACC was seeking to defend the case in that way. 

But what the Court said is, we do not care in effect whether there is a risk of interference with the administration of justice because there is a fundamental principle that attracts the operation of the principle of legality and this legislation is not clear enough to override that principle.  So, while there is reference to contempt at various places in some of the judgments in this line of authority, in our submission, the line of authority is properly understood as hanging off that interpretive idea. 

Your Honour Justice Gageler in your joint judgment with Justice Keane in Lee No 1 recognised that distinction, so you explain how – I will not go to it, but this is around 318 and 319.  The principle of legality emerged in argument in Lee No 1 as a foundational idea and then you distinguish in 318 and 319 between the principle of legality on the one hand and contempt ideas on the other.

So I am saying that by way of introduction really because if your Honours turn to our friends’ written submissions at paragraph 25 you see them there suggesting that in the context of a discussion of ground 2 it is said that:

The large issue raised by the Appellant’s second argument is:  does the system of criminal justice know of any process where the prosecution (or a co‑accused) can ask the court to administer a compulsory pre‑trial deposition over an employee or agent of the accused?

That argument is then sought to be developed in a way that hangs quite heavily off the principle of contempt of court, which is how they ran their case below.  But, in our submission, our ground 2 does not raise that large question at all.  All that we are seeking to do by our ground 2 is to focus attention on whether or not a corporate defendant is in the same position as a natural person defendant in the application of the accusatorial principle.  So that if that large issue was to be reached, it should only be reached if our friends are given leave to rely on their notice of contention and it does not form any part of the argument that arises properly on the appeal if the notice of contention is not permitted.

In order to make good the idea that there is an important distinction between natural persons and corporations in the way the accusatorial principle applies, I need to take your Honours back to Caltex 178 CLR 477 at volume 2, tab 13. If your Honours, starting with the facts, could turn to the commencement of the joint judgment of Chief Justice Mason and Justice Toohey on page 486 you will see at about point 7 on the page that:

Following commencement of the prosecution, [against Caltex] the appellant –

the EPA:

served on Caltex two notices, each requiring production by Caltex of identical documents relating to the pollution offences.

With which it had been charged:

The first notice was a notice pursuant to s. 29(2)(a) of the Act (“the s. 29 notice”) and the second was a notice to produce pursuant to the Rules of the Land and Environment Court ‑

So one statutory notice outside court processes; one process under court rules:

The sole purpose of the notices was to obtain evidence and information for use against Caltex in the prosecution.

So there was no suggestion of any ulterior purpose or different purpose, as there is here, in pursuing the interests of the inquest.  But here avowedly these two different procedures were being use to gather information for use against the corporate defendant in the pending prosecution.

If your Honours go on to 489, you can see the terms of the statutory provision that authorised the issue of that notice, near the top of the page:

“An authorised officer may, by notice in writing, require ‑

an occupier to produce, amongst other things:

documents relating to the discharge from the premises of pollutants –

And, under the quote of the section, you see:

Caltex, by a notice of motion, challenged the validity of the s. 29 notice.  The appellant then issued a notice to produce under –

the rule of court.  So, we started just with the statutory process and then when it was challenged it was supplemented later by the notice under the rules of court seeking the same information.

In our submission, there cannot really be any doubt, based on the X7 line, that if a statutory notice was issued to a natural person accused for the purpose of requiring them to produce material to be used against them in pending prosecution, that would be contrary to the companion rule and legislation would not be authorised as having that effect unless it was very clear in its terms.  So, that is important because what happened here could not have been done with respect to a natural person, it was upheld by the court.  The validity of these notices requiring this material to be produced for use in the pending prosecution was upheld.

So, the ratio of the case, in our submission, demonstrates that it is permissible by a process outside the processes of the rules of court – and I emphasise that because your Honours will have seen our friends say, well, once you have got criminal proceedings, you can only use the court’s processes to get the material.  If that were right, you could not have used section 29 to gain the relevant information here but the court held you could use section 29 in this circumstance.  So, the upholding of the section 29 notice, in our submission, demonstrates that the proposition advanced by our friends is wrong.

They say – and this is their main answer, really, to our reliance on Caltex – they say that the section 29 notice was upheld only because the documents had to be produced under the notice, under the rules of court.  So, the suggestion is, they say, it was because there was a rules of court procedure that was available that the section 29 notice was valid.  In our submission, that is not a sustainable reading of the reasons.  I need to take your Honours to questions and the answers to the questions in those circumstances.  I do not know if it is convenient ‑ ‑ ‑

KIEFEL CJ:   It is a convenient time, thank you, Mr Solicitor.

AT 11:14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, I am staying with Caltex, but just to make clear the argument I am answering, could your Honours turn up the first respondent’s submissions and turn to paragraph 29, about halfway down paragraph 29 having identified the facts of Caltex and the holding that the privilege “was not available to a corporation”, the submission is made that:

They upheld the Statutory Notice even though Caltex was under charge on the basis that production was required in any event by the Notice to Produce as part of the law governing the criminal trial.

Much the same submission is then repeated at the end of the next paragraph, paragraph 30.  It is said that our submissions are in error by suggesting that the notice was upheld without reference to the fact that the accused would be required to provide the same documents pursuant to the notice to produce.

In my submission, if your Honours turn to the end of the report in Caltex 178 CLR 477, to page 559, you see the answers set out to the seven questions that the Court was considering in that case. Question 2 was:

Whether there is power under s. 29 –

so under the statutory power:

enabling the appellant to issue and serve a notice in connexion with, or for the purpose of –

although here it was for that purpose:

obtaining material for use in a prosecution which at the time of the issue of that notice is pending before the Land and Environment Court.
Answer:  Yes.

Not qualified in any way in its terms that would suggest that that answer is contingent upon production being required under the Court process.  Question 3:

Whether the notice issued pursuant to s. 29(2) . . . served on the respondent . . . is a lawful exercise of power.
Answer:  Yes.

So the statutory notice is upheld.  Question 6:

Whether the privilege against self‑incrimination extends to the respondent in respect of the said notice issued pursuant to s. 29(2)(a) of the Act.
Answer:  No.

So not only is the statutory power to gather evidence available to be used in a pending prosecution; it is available to be used without being qualified by the privilege against self‑incrimination.  Then question 7:

Whether the privilege against self‑incrimination extends to the respondent in respect of the said notice to produce –

The notice to produce being the notice under the court rules, not the statutory notice under section 29:

Answer:The respondent is entitled to either the privilege against self –incrimination –

that is the minority, Justices Deane, Dawson and Gaudron:

or the privilege against self‑exposure to a penalty –

Justice Brennan changing from the majority to the minority on that point, so we get both:

in respect of the said notice ‑

The outcome in Caltex is that production was not required under the notice to produce because the majority of four Justices so held in answering question 7 and it was required under the section 29 notice.

It is impossible to read the reasons consistently with the submission that the first respondent makes at 29 and 30 because if production under the notice to produce depends on production under the rules of court, the answer should have been the statutory notice is ineffective.  But what happened was Caltex got an advantage outside the rules of criminal procedure for the sole purpose of advancing the case in the criminal prosecution.

Now, that point, in our submission, highlights another error made by the Full Federal Court, if your Honours turn back to the core appeal book at 141, in paragraph 178 where in the second half of that paragraph their Honours express the view that:

in relation to the inquest, the Coroner could not act, under s 43 of the ACT Coroners Act –

the subpoena power:

to require the appellant, which has been charged with criminal offences, to produce a relevant document or other thing to the Coroner where that document or other thing related to the criminal charges.  That is because if the Coroner did so, she would be interfering with the administration of justice in the criminal proceeding, even though the appellant could be required in the criminal proceeding to produce the document or other thing –

Actually, what was held in Caltex was that you could require a document to be produced outside of the criminal proceeding, pursuant to the section 29 notice.  So their Honours misunderstood the ambit of the finding by the majority in Caltex in upholding the use of a statutory procedure outside the rules of criminal proceeding to gather relevant evidence.

GAGELER J:   How do you explain page 507 in Caltex?

MR DONAGHUE:   I was about to come to that, your Honour; I will do that immediately.  So that is the reasons of Chief Justice Mason and Justice Toohey in dealing with the answers that I have just been referring to and that seems to be the heart or the source of the proposition that the first respondent advances.

In our submission, the discussion of the section 29 notice starts at the bottom of the previous page, at the bottom of 506, where that notice had been set aside by the New South Wales Court of Appeal for reasons given by Chief Justice Gleeson, that involved the proposition that the notice was circumventing the limits on the process of the criminal trial.

So it involved the kind of notion that the first respondent is asking your Honours to accept and the Court overturned the approach that Chief Justice Gleeson had taken.  At about point 4 on the page, which I imagine is what your Honour Justice Gageler is asking me about, where their Honours say:

As the court’s own process can be used to compel production, resort to the statutory power for the same purpose cannot amount to an abuse of process.

In our submission, that is not advancing the positive statement that a section 29 notice can only be used where the notice to produce is available and if that is what their Honours thought, they should not have answered the questions as they did.

It is making the reverse proposition, or the more straightforward proposition, that you do not even get to first base in your argument challenging the statutory notice to produce if the same documents could be obtained under the court procedure.  You do not have any foundation for the argument at all, in the event that that overlap exists, which according to their Honours reasons, it did because the privilege against self‑incrimination was not available in that answer either to the notice to produce or to the statutory notice.

So, in a sense, on their Honours’ own reasoning, they would not have needed to go further than that because in circumstances where both procedures were available there was no reason to seek to constrain the statutory procedure.

But, in circumstances where a majority of the Court held that the notice to produce procedure was not available, in my submission, their Honours would have needed to reconsider the position under the section 29 notice if their reasoning on that footing depended on the availability of production under the notice to produce because the majority of the Court, having held that that procedure was not available, if their Honours’ reasoning on the 29 notice was contingent on that way, then they would have had to have said, given that a majority is against us on production under the rules of court, it follows that we cannot get production under the 29 notice.

But, their Honours never re‑engaged with that process and the reason for that, in my submission, is that they were not reasoning that there needed to be that capacity there.  And, if your Honours go further down the page on 507, in my submission that emerges tolerably clearly in that their Honours are explaining why they are not giving a restrictive interpretation to 29(2), having regard to the purpose it is designed to serve. 

GAGELER J:   Mr Solicitor, one way of reading what they are doing is applying the clear statement rule, not denying the need for a clear statement.  I mean, it seems to me to be an available reading, particularly given that they do not seem to contradict any reasoning in Huddart Parker.

MR DONAGHUE:   Indeed, but Huddart Parker and that line of cases that are referred to are an illustration of the fact that a number of different limiting doctrines are in play in this area and one of them – identified in Huddart Parker – is that ordinarily, as a matter of construction, you construe a power to gather evidence as exhausted on the laying of criminal charges.  So that very often, in the authorities – and this is part of our complaint about our friend’s use of many of the authorities – the critical factor is that once the provision is interpreted in that way, it is exhausted on the laying of charges and the attempt to exercise the power, thereafter, is problematic just because it is unauthorised.  It is ultra vires.  You are trying to do something with the power that goes beyond what the power authorises.

In many of the cases, any discussion of contempt or other limiting doctrines has to be read in light of the fact that the Court has concluded the statute does not authorise the thing that the person is trying to do.  So, we are not exactly in clear statement territory.  The Court has held the purpose of this power is only to be used for investigation, not for facilitating the prosecution, therefore the power is exhausted at that point.  And, the power being exhausted, there is no question of a clear statement to override the accusatorial principle because the power is cut out before you even get to the accusatorial principle.

GAGELER J:   The power is cut out by operation of a common law presumption, is it not?

MR DONAGHUE:   Interpretative presumption, yes.

GAGELER J:   Which applies equally to prosecutions of corporations as it does to prosecutions of natural persons.

MR DONAGHUE:   Not according to Justice Brennan in Caltex.

GAGELER J:   But, according to Huddart Parker? 

MR DONAGHUE:   According to Huddart Parker, yes, and to that line of case.  So, Justice Brennan drew a distinction – I do not think one sees that in the majority.  But, what their Honours are doing in that last paragraph above the conclusion heading at 507 is, in my submission, finding that presumption, that your Honour is just raising with me, not to be applicable to section 29(2).  They find that the 29(2) power is available both before and after prosecution and can be used both to gather evidence for the prosecution both before and after.

None of that limits or reads down the statutory power by reference to whether or not the same thing could be done under the rules of court.  That is just not part of their Honours’ reasoning process there.  The absence of that limit is, in my submission, even clearer in the judgments of the other members of the Court.

Can I though defer that so that I can take each of these judgments in sequence.  I do not want to detain the Court too long on Caltex, but it is important to this limb of the case and I want to try to draw two points out of each of the majority judgments.  The first is to identify the reason that their Honours upheld the section 29 notices, and we have already done that in relation to Chief Justice Mason and Justice Toohey. 

But the other point I seek to draw from them is that the majority relied in their reasoning on the difference between corporations and natural persons in justifying the deprivation of the privilege to corporations, and they did so notwithstanding the impact that that would have on the accusatorial system of justice.  That is, they identified that principle, they recognised that it was available separately from the privilege, they recognised that depriving corporations of the privilege would change the balance in the accusatorial system and they upheld it anyway.  That is why we say as part of our ground 2 that one cannot just equate the authorities about the operation of the accusatorial principle with natural persons and corporations.  So to try to make that good can I take your Honours ‑ ‑ ‑

GORDON J:   Just before you do that, I know you took us in 178 of the Full Court’s reasons to identify what you said was the too broad proposition and then the misunderstanding of Caltex.  Does that mean that it is the first sentence which in effect is the foundation of the error?

MR DONAGHUE:   The first sentence in 178?

GORDON J:   Yes.

MR DONAGHUE:   Your Honour, that is ‑ ‑ ‑

GORDON J:   Which I think is what Justice Gageler was raising with you, because it reads “Thus, in relation to”.  It is the conclusion that follows from that principle.

MR DONAGHUE:   The difficulty there, your Honour, is that there is a possible distinction identified in Nutricia in the New South Wales Court of Appeal between interrogatories and everything else.  So oral evidence cannot be given by a corporation for the reasons I have already gone through in relation to ground 1.  Documentary evidence can be gained without problem, as Caltex establishes, but interrogatories are creating new evidence that might be admissible and for that reason Chief Justice Spigelman treated them differently.  So the opening part of that paragraph seems to be dealing with interrogatories. 

Now, in fact the result in Nutricia was that interrogatories could be administered to gain evidence because there was a sufficiently clear statement, so even with respect to interrogatories, they might be permissible.  But the error that I was identifying in 178 was that the Full Court, in my respectful submission, slid from what Nutricia said about interrogatories to applying it to documents, which is what they do about five lines up from the bottom.  With documents, it is just flat out contrary to the result in Caltex which says that compelling documents from a corporation for use in criminal proceedings is not inconsistent with the accusatorial system.  So that was what I seeking to demonstrate there.

NETTLE J:   Could I just ask you one further question ‑ I am sorry to delay you – whilst you are at 507 in Environment Protection Authority v Caltex.  Is what is said there capable of being squared with what is said by Chief Justice Gibbs in BLF and by Justice McHugh in this case about when there is a pending criminal proceeding using something to cause the proceeding to obtain an advantage which could not be obtained under the rules applicable in that proceeding, and is that not really the purpose of the first section of the big paragraph at 507?

MR DONAGHUE:   Can it be squared with it?  Your Honour, in my submission, taking it in stages, I think in the BLF passage your Honour is mentioning there is a reference back to Justice Franki’s decision in Brambles Holdings and his Honour expresses some tentative agreement I think with the proposition expressed in Brambles, if I am remembering the passage correctly.

GORDON J:   He adopts it; he agrees with it.

MR DONAGHUE:   He agrees with it.  He certainly agrees with it in Pioneer Concrete.  That proposition expressed in unvarnished terms, in my submission, does not square with the result in Caltex.

NETTLE J:   What I was really driving at was that the passage to which Justice Gageler drew your attention might be thought to be directed to overcoming that difficulty because of the conclusion that the same advantage that can be obtained under section 29 can be obtained under the rules of criminal procedure by notice to produce.

MR DONAGHUE:   Except, your Honour, that it could not be.  The answer to question 7 was it could not be because under the court rules, either by reason of self‑incrimination or the penalty privilege, no answer could be compelled, yet the Court said you could get the documents under section 29.  That is why I say it cannot square with the answers given in the case.

NETTLE J:   So it is a disconnect, is it?

MR DONAGHUE:   It is not, in my submission, because if one reads 507 as saying, if you can get them under the rules of court, you do not get to step one in your complaint because the complaint that Chief Justice Gibbs referred to in Brambles and in Pioneer is a complaint of doing something that you could not do.  If you can do it, well, end of argument, without needing to go further. 

One sees it more clearly in Justice Brennan and Justice McHugh.  Their Honours both say, in terms there is nothing wrong with using evidence gathering tools, statutory powers included, to gain evidence for use in pending litigation.  They expressly say – perhaps I should take your Honours to complete this now.  It is probably clearest, I think, in Justice McHugh’s reasons at the bottom of 558 to 559.

NETTLE J:   There is the qualification at 559, though.

MR DONAGHUE:   Yes, there is ‑ ‑ ‑

GORDON J:   This is our point.  The qualification is the advantage point.

MR DONAGHUE:   There might be if the exercise of statutory power would give the party advantages which the rules of procedure would otherwise deny him.  The qualification, in my submission, reflected in that passage quoting Pioneer is talking about circumvention of effectively a privilege of something of a benefit that is affirmatively granted to the party – privilege against self‑incrimination or penalty, privilege being an obvious example.

It is not talking about using a statutory procedure outside of the rules of court to require someone to speak to you who may or may not have agreed to speak to you otherwise because the rules of procedure – the position of an employee, a person who is entitled to speak to the prosecution but might not choose to, to remain silent, is not ‑ ‑ ‑

GORDON J:   Why is not the service of the notice in those circumstances giving you advantage to the rules of that procedure in that proceeding do not otherwise give you?

MR DONAGHUE:   They do not deny you.  That is the distinction I am trying to draw between ‑ ‑ ‑

GORDON J:   The distinction between express denial and positive power.

MR DONAGHUE:   Between silence and express denial, and the reason for that, your Honours, if we can go back up the page a little to the bottom of 558, in my submission, that is a fair reading of what his Honour is saying because that last paragraph of 558:

Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts.  The evidence gathering procedures of a party are not limited to the use of court procedures.  No interference with the processes of the courts . . . occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation . . . is not a contempt of court even when the sole purpose . . . is to assist a party –

in pending litigation.

GORDON J:   Here comes the critical bit.

MR DONAGHUE:   But, all of that is saying that if one is limited to the rules of court then that would suggest you cannot use a search warrant because that is a statutory power to gather relevant information that is not provided under the rules of criminal procedure.  That would be an astonishing proposition, in my submission, that the power to use a search warrant to gather evidence for use in a criminal prosecution is unavailable because it is a contempt of court.

His Honour is making the point – and the answer given in this – I do not want to belabour the point, your Honours, but this is a notice under section 29 given for the sole benefit – sole purpose – of building the prosecution’s case when the prosecution is pending and the court upholds it and Justice McHugh is a member of the majority in upholding the issue of that notice.  So, his Honour cannot have been saying, you cannot use the statutory procedure to get this evidence because his Honour answered the question to the opposite effect.

When the Court talks about an advantage to the rules of procedure denied him, that is picking up language going back to Pioneer, BLF, Brambles, which – and I can come to this later if I need to – but Brambles was a case where it was a penalty proceeding.  The corporate defendant was entitled to the penalty privilege so you could not get discovery under the rules of court, so the Trade Practices Commission said, okay, I will use my 155 notice of procedure to get the documents that I cannot get under the rules of procedure.  When the cases use the phrase, “the rules of procedure deny him”, that is where that phrase comes from – getting around the limit on the power that is available under the rules. 

So, bringing the matter back to the facts of this case, where what was being done was issuing coercive processes against an employee, there is simply nothing in the rules of procedure that denies the prosecution the right to speak to an employee.  There is nothing.  So, yes, there is no power in the rules of procedure to require the employee to speak to the prosecution but there is no denial and so there is no engagement of that principle but even if there – no, I do not need to go there.

In my submission, your Honours should not just focus on that sentence leading up to footnote 16, divorced from the first part of the paragraph, because the first part of the paragraph is all about, in my submission, why it was permissible to use the section 29 notice in this case and why it was permissible to do so, notwithstanding the view of the majority of the Court, that the rules of court procedure were not available.  His Honour is explaining you are not tied to the court procedures.  Justice Brennan’s reasoning was relevantly to the same effect at the bottom of page 517.  His Honour, likewise, says at the last four lines on that page:

A final question relating to the s. 29(2)(a) notice should be considered.  Was the use of the notice an abuse of the process . . . There is no abuse of a court’s process in a party’s taking advantage of a legitimate means of obtaining evidence to be used in pending litigation.  If the documents to be produced pursuant to the notice had been seized under a search warrant, it could not be suggested that the use of the search warrant was an abuse of process.  Nor can the service of the notice under s. 29(2)(a) be so described.

That is the reasoning that led his Honour to the answer I have already shown you.

So, the majority of the Court in the reasons that support the answers at questions 2 and 3, in particular, are denying the idea that it is only the rules of court that can be used to gather evidence for the purpose of proving a criminal case.  And, that is the proposition that, as we understand it, our friends are inviting your Honours to adopt on the notice of contention and that is why we have said that they cannot succeed unless your Honours overrule Caltex, which they have not asked your Honours to do. 

The other point I seek to draw from Caltex is this difference that the Court acknowledges in relation to the way the accusatorial principle applies and structurally the judgments, particularly of the Chief Justice and Justice Toohey on the one hand and Justice McHugh on the other are similar in that they both commence with a detailed comparative review of the jurisprudence about privilege against self‑incrimination and then they turn to an examination of the historical basis and the modern rationales for privilege, and I do not need to take your Honours through any part of that discussion.  But if your Honours could go in the joint judgment to the top of page 500 you will see, having gone through all of that, their Honours say at about point 3 on the page:

In the final analysis, the principal bases for making the privilege available to corporations ‑ both relied upon by Gleeson C.J. in the Court of Criminal Appeal –

both of which we relied on:

are that it assists in maintaining the fair state‑individual balance –

That is the first, and the second is that:

it “is a significant element” in “maintaining the integrity of our accusatorial system of criminal justice” –

That is the second.  So they were the two reasons that might have meant that the privilege should be made available to corporations.  In the next paragraph their Honours reject without hesitation the first of those two bases, the “fair state‑individual balance”, because of differences that they identify between a corporation and a natural person.  They draw the comparison, and I do not need to read it, but they clearly do not treat the two as to be equated.  Then over the page their Honours turn on page 501 about halfway down to Chief Justice Gleeson’s second justification:

the maintenance of the accusatorial system of justice.

In the next paragraph at the middle of the page their Honours identify the fundamental principle in the same terms as it has been identified in the more recent X7 line of cases, and then they note that that fundamental principle:

is complemented by the elementary principle that no accused person can be compelled by process of law to admit the offence with which he or she is charged –

That is the companion rule.  So X7 drew directly on that paragraph in the middle of 501 in identifying those two features of the accusatorial system of justice.  Moving then forward to 503, the Court at about point 3 or 4 on the page say that:

Accepting that, notwithstanding this difference, the privilege does protect the individual from being compelled to produce incriminating books and documents, it does not follow that the protection is an essential element in the accusatorial system of justice or that its unavailability . . . would compromise that system.  The fundamental principle that the onus of proof beyond reasonable doubt rests on the Crown would remain unimpaired, as would the companion rule –

So their Honours find in terms, having identified the relevant principles, that there is a difference between the way that they apply to individuals and corporations for the reasons that their Honours have explained, and that to deny something that is available to a natural person to a corporation nevertheless can stand consistently with the accusatorial system.  Over the page at 504 their Honours identify that the extent of statutory interference – this is about point 2 or point 3:

with the privilege . . . indicates that the privilege . . . is not a fundamental aspect of the accusatorial criminal justice system.

That to accord it:

to corporations has a disproportionate and adverse –

effect.  They note that it does not matter in relation to testimonial evidence, and this is the passage I have already shown your Honours, because corporations cannot give testimonial evidence, and all of that leads to the conclusion at about point 8 on 504 that the privilege is not available to corporations at all.

So, part of the dispositive reasoning in Caltex involves the recognition that even though compelling corporations to provide documents does have an impact on the adversarial system of justice, it is not an impermissible impact because corporations are different. Justice Brennan says reasons in a relevantly similar way at 514. He distinguishes, at the end of the first paragraph on that page:

The tenderness of the law towards a natural person charged with an offence strikes a traditional balance between law enforcement and personal liberty.  The balance between law enforcement and the interests of a corporation must be struck differently.

And, I will not take your Honours right through it but he explains why, on the pages that follow, including on 515, at about point 3, that:

If the privilege against self‑incrimination were held to qualify a statutory power compulsorily to obtain access to a corporation’s documents –

Then corporate criminal law would be hard to enforce.  It is said, on 516, that the rationales for the privilege applying to corporations are different, partly because the way that they can be punished is different.  And, it is at the bottom of 516 to 517 that there is the difference I referred to in answering your Honour Justice Gageler.  His Honour treats the interpretative principle as applying differently – the interpretative principle that powers are exhausted once proceedings have commenced as not applicable to corporations.  So, again, in my submission, there is a recognition that one cannot assume that the accusatorial principle applies in the same way to corporations as it does to natural persons.

Finally, in Justice McHugh’s reasons – again, having gone through the comparative case law, the history and the rationale – one sees at 548, under the heading, “Corporations”, his Honour recognises that:

it is arguable that the privilege should extend to corporations so as to protect the human rights of individuals –

within them because individuals:

are as susceptible to abuse by the prosecution –

as are others:

An admission by such a person may be vital to the prosecution’s case against the corporation.  Consequently, the prosecution may be tempted to abuse its power –

But, then his Honour says this:

the argument that the privilege is necessary to protect the accused against an abuse of power is not a strong argument in modern times.  Furthermore, a similar argument could be used in respect of the evidence of any witness against an accused person.

And, these are the words I am emphasising:

Yet such a witness can be compelled to answer a question although it might incriminate the accused.  No reason exists for making an exception for a witness representing or testifying on behalf of a corporation.

So, his Honour is holding, in terms relevant to this case, that there is no objection to compelling a witness to answer a question that incriminates a corporation.  His Honour, at 550, considers the most powerful reason for upholding that corporations could benefit from the privilege to be the accusatorial system of justice which he identifies again in familiar terms at the bottom of 550, the fundamental rule, the companion rule, are both identified there.

But even though he considers that to be the most powerful reason for a corporation being able to claim the privilege, his Honour concludes that the privilege is not available, again because of the difference between corporations and natural persons ‑ so at 552, point 3, for example, he says “to deny the privilege to a corporation”.  So he accepts at 552, point 3 that:

to deny the privilege to a corporation would significantly weaken the forensic position of a corporation and significantly strengthen the forensic position of the prosecution.

That is a plain recognition of the weakening of the accusatorial system as it protects corporations but it holds that that is justifiable, but basically because to accord the same protections to corporations would be to pay too high a price, which you see at the bottom of 544.

So, in my submission, Caltex provides good support for the idea that even if we lost on ground 1 and even if in some way Captain Lomas’ evidence should be regarded as evidence that can be attributed to the corporation, that was but the start of the question and not the end of it because one then needed to ask whether consistently with the approach that was taken in Caltex it should be held that a sufficient equation existed between the position of a natural person and the corporation so as to engage that line of authority.

Your Honours returned somewhat more recently to some of the issues in Caltex in CFMEU v Boral, which, as your Honours may recall, was an attempt to obtain discovery in a contempt matter that had been brought against the CFMEU. I would ask your Honours to turn to that briefly. I will not take very long on it. It is volume 1, tab 11, 256 CLR 375.

There was a joint judgment given by Chief Justice French and your Honours Justices Kiefel, Bell, Gageler and Keane and a separate reason given by your Honour Justice Nettle.  At paragraph 2 in the report on page 380 in the plurality’s reasons, your Honours note that the position arrived at in Caltex is:

reinforced by s 187 of the Evidence Act –

which is a provision I am going to come to in a moment.  Your Honours noted its role in reinforcing Caltex there.  At paragraph 3 you identify the result in Caltex as being that the Court held that:

a corporation charged . . . may not resist a lawful command to produce documents to a prosecuting authority . . . even though the corporation had been charged with criminal offences.

It was then argued ‑ the argument that was sought to be raised was summarised at paragraph 20 dealing with the accusatorial principle in an attempt to invoke the X7 line of authority. 

At paragraph 24, the reliance was particularly placed on the companion principle and it was argued that the companion principle meant that the rules of discovery could not be used to require the defendant in the contempt proceeding, the CFMEU, to produce documents that could be used against it in the pending prosecution.  Your Honours held, contrary to that submission, particularly at paragraph 37 that:

the accusatorial nature of a criminal trial . . . whereby an accused person cannot be compelled to assist the prosecution . . . The companion principle is a “companion” of criminal trials, not –

the ordinary question of the standard of proof.  There was no question of the appellant being required to give evidence against itself as a witness, your Honours held at 38, because the documents spoke for themselves. 

So, in the end, your Honours rejected the argument that was advanced in CFMEU essentially because the contempt proceeding that was in issue was a civil proceeding and the companion principle is the companion principle to criminal trials, so the applicant did not get very far.

Your Honour Justice Nettle dealt in your separate reasons in more detail with the Caltex argument and particularly at paragraph 57 your Honour made the point that the policy‑type considerations that underpinned Chief Justice Mason and Justice Toohey’s reasons in terms of the extent of corporate crime and the importance of being able to access documents so as to effectively prosecute criminals was, if anything, at least as compelling now as it had been when those remarks were first made, and we respectfully embrace that proposition.

At paragraph 73, I think consistently with the submission that I have just been making, your Honour identified the reasoning in Caltex as having denied the privilege:

to corporations because of the disproportionate and adverse impact which those privileges would have in restricting the documentary evidence that may be produced in court –

to a prosecution.  At 76 your Honour says the accusatorial system did not require corporations to be spared compulsory production of documents and near the end of 79 at the top of page 400 nothing said in the X7 or Lee Cases:

cast any doubt on the determination in Caltex that, in the case of a corporate defendant, it is not a fundamental aspect of the accusatorial criminal justice system that the corporation should be entitled to resist a requirement for compulsory production of documents.

So, in my submission, to the extent that Caltex – sorry, the last point, your Honours, is paragraph 81 where your Honour said that because:

it is not a fundamental aspect of the accusatorial criminal justice system that a corporation should be entitled to resist a requirement for compulsory production of documents.

In effect there is no need for a clear statement to overcome that requirement because the requirement just does not exist in relation to corporations.  So in the case of a corporate identity there is no need for specific statutory abrogation of the fundamental principle or companion rule in order to render the documents appellable. 

Now, with that lead‑up through the authorities, our submission fairly briefly is this, that having regard to the differences between corporate defendants and natural person defendants acknowledged in Caltex and reflected in those passages in Boral, there are at least three reasons why the Full Court should not have equated the position of Heli corporate accused with the defendants in the X7 line of cases. 

The first is section 187 of the Evidence Act, which I would invite your Honours to turn to, because the effect of 187 is, in our submission, profound.  As a matter of a law of general application within the Territory, we are under a Territory law which includes the Coroners Act.  A corporation – a body corporate is required not just to produce a document, as was in issue in Caltex, but also to “answer a question or give information”.  It cannot rely on privilege, ever. 

Once that is recognised, the position of a corporate defendant is fundamentally different from a natural person and the information that the prosecution can legitimately be expected to have in advance of a prosecution is fundamentally different than it would be from a natural person because any evidence‑gathering procedures that are available to the prosecution with respect to a natural person would be qualified, with respect to a corporation are not, not just in relation to documents but also in relation to answers.  That must necessarily create the possibility that the prosecution will be armed, at least to some extent, with knowledge of the way a corporate defendant might go about defending a charge.

GAGELER J:   Is section 187 concerned with anything other than the privilege against self‑incrimination?

MR DONAGHUE:   No, it is not, your Honour, and I accept that the privilege of self‑incrimination is different from the accusatorial system of justice, but one impacts on the other in that, in my submission, the abrogation of the privilege against self‑incrimination means that one cannot point just to the fact that one has to give an incriminatory answer as the disadvantage that would contravene the accusatorial system of justice.

That is why, in my submission, one sees in cases like X7 a search for forensic disadvantages of a kind that are separate from the fact that the answer actually has to be given because Parliament has said in terms the answer has to be given.  To that extent, the giving of the answer is legislatively sanctioned as a permissible step to take.  What the authorities say is, well, that is one thing but if there are other flow‑on advantages, locking in being one that is featured in the cases, that in those circumstances there might still be a contravention of the accusatorial system of justice.

Really the point I am seeking to make at this stage is that if one looks back at the Full Court’s reasoning for example of 187, where the Full Court identify the problem as being that if Captain Lomas gives evidence the prosecution would know various things and it is said that the appellant has a:

common law right to decide how to meet the case that the prosecution must prove beyond reasonable doubt, without the prosecution or co‑accused having any entitlement to know, beyond the . . . plea of not guilty, how it will defend the charge.

That language is Strickland language in relation to a natural person defendant but that, in my submission, is not true in relation to a corporation that, by legislation, is not entitled to refuse to answer questions on the grounds of self‑incrimination because, if it were true, if the corporation was entitled to say, well, notwithstanding that I have no privilege, I am still not going to answer this question because the answer to the question would incriminate me and that would mean that you would have information about how I was going to defend a charge, contrary to the accusatorial system of justice.  That would read out the abrogation of the privilege completely in 187.  The accusatorial principle cannot put back exactly what Parliament has taken away and, in my submission, the cases do not suggest otherwise.

The second main reason why we submit that one cannot equate the position of corporate defendants and the accused ‑ and this echoes something said by Chief Justice Mason and Justice Toohey ‑ is that just as there is a long history of abrogating the privilege for documents in relation to corporations there is a long history of requiring corporate officers to give evidence relevant to potential proceedings against a company, including criminal proceedings against a company, and that long history points against the idea that it is a fundamental part of the accusatorial system of justice that employees not be compelled to give relevant evidence.

To illustrate that point, could your Honours turn to R v OC in volume 4, tab 33, which is 90 NSWLR 134. At issue in this case, in the New South Wales Court of Criminal Appeal, was whether a transcript of an examination obtained by ASIC under section 19 of the ASIC Act could be given to and used by the Commonwealth DPP in a prosecution. You see the terms of section 19 set out in paragraph 17 of the Court’s reasons, effectively allowing ASIC, where it had reasonable grounds to suspect that a person could give relevant information, to compel the person to appear. Interestingly, one also sees at paragraph 24, the terms of section 76 set out:

“76Statements made at an examination: proceedings against examinee

(1)A statement that a person makes at an examination of the person is admissible in evidence against the person in a proceeding unless –

various things are satisfied.  Then, in subparagraph (3):

Where a written record of an examination of a person is signed by the person . . . or authenticated in any other prescribed manner, the record is, in a proceeding, prima facie evidence of the statements it records –

That is much closer to a pre‑trial deposition than what is occurring here in the context of the coronial inquest, ASIC, which is itself empowered under section 49 of the ASIC Act which you see a few pages earlier to commence prosecutions – can exercise compulsory powers to require people to speak to it, can then have them sign that statement and it becomes prima facie evidence in the proceedings.

It was put that this was contrary to the accusatorial system of justice and that argument was rejected by Chief Justice Bathurst for the Court.  At paragraph 119, you see the Chief Justice hold, at the bottom of the page, that as a matter of construction of the Act:

it follows, as a matter of necessary implication, that the CDPP officers responsible for the conduct of the proceedings are entitled to have access to the examination transcripts, not only to formulate charges, but to prosecute them.

That conclusion his Honour supported by reference to the language and purpose of the legislation.  At 123, you will see his Honour say:

The historical analysis to which I have referred above also supports the conclusion which I have reached.  As has been pointed out in a number of cases, the legislature has, for many years, made “special exceptions to the otherwise accusatorial process of the criminal law in respect of bankruptcy and companies examinations” ‑

See X7 and Lee:

The legislative history to which I have referred also shows that this was not confined to examinations by courts.  As the Solicitor‑General pointed out . . . there has been, since 1847, a “second stream of executive inquiry under compulsion without court supervision”.

I will not take your Honours through it but the legislative history is traced in detail at 33 through to 60.  And, just as was held to be the case in Caltex, the long history of compelling corporate documents was part of the reason that the accusatorial principle did not prevent that.  Similarly, the second stream of executive inquiry traced back to 1847 in that case similarly suggests that to say that there is some fundamental inconsistency with the accusatorial system of criminal justice to examine corporate employees is wrong, as a matter of history.  The final point, your Honour ‑ ‑ ‑

GAGELER J:   Do you say there is a third stream of coronial executive inquiries that provides any assistance here?

MR DONAGHUE:   I am not making that submission, your Honour.  I am generalising the proposition that, if it be the case that the employees of corporations can, in a context involving criminal offences against a corporation, be examined in the second stream but by executive inquiries independent of the Court without that being contrary to the fundamental principle, it is unlikely that to do such a thing not for the purpose of gathering evidence for the criminal proceeding but for the purpose of pursuing a completely unrelated public interest, the public interest in the inquest, is in a worse position.

It should be that the interference with the accusatorial process would be greater in a coercive investigation to build the criminal case than where the coercive investigation has a different purpose.

GAGELER J:   If the common law presumption applies to corporations as well as to natural persons, you do not make any submission that there is anything in the terms or nature of the coronial statute here that provides a clear statement?

MR DONAGHUE:   I do not say that but I do say this:  I do not believe it has been put against us that the purpose of the coronial inquiry is to gather evidence for the purpose of deciding whether or not to lay charges.  So that presumption, the Huddart Parker presumption, I do not say is rebutted but I also say it is irrelevant because that presumption is about investigative statutes for that purpose and the purpose of the coronial inquiry is different, so I do not need to rebut that presumption, as I would with the ASIC Act or the Trade Practices Commission Act or other Acts that are authorising coercive processes leading up to the commencement of proceedings.

The final difference that I will not belabour, your Honours, is that, as I have already submitted in our submission, the locking‑in objection which has featured in the accusatorial cases in relation to natural persons for reasons I have already explained does not apply equally for corporations.  So for all of those reasons, in our submission, if your Honours get to any of this, it was not right to reason as the Full Court reasoned in paragraph 187.  I do not, your Honours, particularly in light of the time, propose to say anything about ground 3 other than that we submit that Justice Bromwich was right for the reasons he gave and we cannot improve on them.

Can I finally say something about why, in our submission, your Honours should not permit the notice of contention to be filed.  In our submission, there are two reasons.  The first is that to file the notice of contention is inconsistent with the first respondent’s position that it has no continuing interest in this matter and the second is that it has not provided an adequate explanation for its non‑compliance with the rules in the timing of the effort to file the notice of contention in a way that has caused some prejudice to the Commonwealth.

With respect to the first of those two matters, could your Honours go to my friend’s written submissions at paragraph 3 where the position is put quite plainly:

HeliRes has no readily identifiable continuing legal interest in this matter.  It is here as a contradictor to the Appellant’s arguments.

That is consistent with the position that was taken at the special leave stage when Mr Hutley was then appearing for the first respondent who said in equally clear terms that HeliRes “did not care about the outcome of the appeal except from a costs point of view”.

The Commonwealth submitted that it sought to overturn the Full Federal Court’s judgment because unless it was overturned it would constitute a precedent that would adversely affect the ability of Commonwealth regulators across a variety of areas to use statutory investigative powers for the purposes for which they were conferred, including for example to investigate cartel behaviour because once charges were laid against the corporation that would have prevented any coercive investigation not just connected with possible criminal charges against employees but also connected with regulatory or disciplinary steps that might otherwise be needed.

We accepted that the criminal trial would be over before the matter was heard, that being the basis upon which HeliRes said it did not have an interest.  We accepted there needed to be a contradictor.  We accepted that HeliRes could, ultimately, perform that role and that in doing so it would be akin to an amicus and special leave was granted on that basis ‑ ‑ ‑

EDELMAN J:   Is there not something of a tension between the position that this Court needs to hear this point as a matter of public interest beyond the direct interests of the parties in this case and the position that the Court should not entertain broader questions relating to the issue itself for the broader context of the issue that are raised by the notice of contention?

MR DONAGHUE:   In my submission, there is not a tension there because the test case dimension of this case is about asking this Court to overturn a case that will be a precedent that will be binding unless and until the matter could be got back to this Court in a differently framed proceeding which would mean – by reason of the asserted operation of 87(1)(b) – that Commonwealth regulators cannot exercise powers when they wish to do so in the public interest.

Your Honours could find for us and, effectively, clear the field of that argument leaving untouched the correctness, or otherwise, of the proposition that is sought to be raised by the notice of contention.  The correctness of our argument on appeal does not depend, in any way, on whether or not there is some additional or different basis upon which the Court below could have decided the point.  But, what is happening in my submission here is that a party – obviously your Honours normally would require a person who wants to raise a legal argument to demonstrate an interest in raising that argument.

Here, in our submission, remarkably, not only do you not have a party asserting an interest in raising an argument, you have a party that denies the existence of an interest in raising the argument and says that even though they deny having an interest in doing so, your Honours should enter a field of legal discourse, not raised by the appeal, to determine what might be interesting arguments but that are in dispute only because, at a time when Heli did have an interest, it sought to raise those arguments and the Full Federal Court chose not to decide them.

In our submission, the Court has been astute in past cases to prevent amicus and interveners from raising new issues.  Your Honours have, on occasion, confined attempts by State Attorneys‑General intervening under section 78A to raise issues that would change the matters that are in dispute on a proceeding.  So, Masson v Parsons was a recent example.  K‑Generation was an older one. 

In our submission, there is no damage at all done to the public interest by your Honours leaving – what our friends themselves describe as – the large issues raised by the notice of contention until they arise in a case between parties that have a concrete interest in their resolution.  That is not this case on Heli’s own self‑description of the position. 

So the absence of an interest, in our submission, is a powerful reason why your Honours should not take what is quite a narrow point on appeal – allow what is quite a narrow point on appeal to be converted into a large case about the proposition of when, if ever, non‑court processes can be used to gather evidence in relation to court proceedings because of limitations said to arise from contempt of court.  That is, in our submission, particularly true in circumstances where the point is raised out of time, and not trivially out of time.  It should have been raised within a week of the notice of appeal being filed. 

As it turned out, the question was not first raised until six weeks later, which was after we had filed our written submissions.  So your Honours are being asked to enter into a large legal question in circumstances where, because the point was raised late, we have not had an opportunity to address your Honours in relation to it in writing and we did not have an opportunity to say anything about the impact that the point might have on the time required for the oral hearing. 

Now, looking at how long it has taken me to get to where we are now, it seems most unlikely that it will be possible to address your Honours properly or orally on the issues that are raised by the notice of contention.  No doubt we could seek, and your Honours might grant, leave to address those matters in writing, but nevertheless we will have been deprived of the opportunity to address your Honours on what are acknowledged to be large questions because there was delay. 

Why was there delay?  Well, the initial attempt to explain it was because it was said, well, counsel worked out when drafting their written submissions that a notice of contention was necessary, doing that after we had already filed.  That, your Honours, is not a persuasive explanation in circumstances where the point sought to be raised is sought to be raised here by the same counsel who ran the same argument in the Full Federal Court.  So it should have been apparent from the moment that that court gave judgment that if an attempt was to be made to re‑run the arguments not decided that that was going to be necessary.  If that had been raised in a timely fashion then it could have been accommodated both in the filing of the written submissions and in the estimates of the hearing.

After we filed our reply, a fresh attempt was made to explain the delay which sought to tie it in in some way to an amendment that was made by consent to the Commonwealth notice of appeal.  Again, your Honours should not find that, in our submission, at all persuasive.  The proposition that is advanced by way of explanation is it is said, well, that amendment narrowed the case that we advanced at special leave.  That is not so. 

I will not detain your Honours with all of the detail of it but the affidavit that advances that explanation, which is Mr Mackrell’s affidavit of 27 September, annexes the special leave submissions and refers to paragraph 8 and says that what we did by the amendment was narrow the case from paragraph 8.  In fact, if one reads paragraph 8 it says, “In the circumstances identified above”, which is a reference to paragraph 6, which confines the matter to corporations and their employees.  So we reject the idea that there was any relevant narrowing of our case.  In our submission, what we did by the amendment was more closely align our notice of appeal with the way we put the case at special leave.

The notice of appeal does not explain the delay.  In any event, as a matter of logic, if a party narrows the basis upon which it attacks the decision below, it is hard to see how that creates a wider reason to seek to defend that decision on some different basis.  In other words, if we say the Federal Court is wrong for reasons (a), (b) and (c) and we drop reason (c), that seems to create less need to defend the Full Federal Court’s decision on a different basis, rather than more need to do so.

So your Honours have a situation where a party with no interest seeks to raise a wide argument out of time and we have not had an opportunity to respond properly to it and, in our submission, you should not allow that to occur.

Your Honours, the final matter is that ordinarily a party raising a notice of contention is somewhat constrained by costs considerations in deciding whether or not to do that.  They run the risk that if they raise an argument that is bad they will pay for it.  Since the moment when Heli first raised this idea of a notice of contention, we have indicated that the costs condition that your Honours imposed for the grant of special leave, in our view, should not extend to the running of the notice of contention raising different issues in which Heli lacks an interest.  So Heli has been on notice since then that our submission would be that if Heli chooses to run the notice of contention they should do it subject to the normal costs discipline, that costs should follow the event of the notice of appeal. 

In our submission, in the event that your Honours do choose to allow – our primary submission is that you should not allow the notice of appeal but if you do, in our submission, not part of the test case that was the price that the Commonwealth paid to have a contradictor.  If Heli wants to run a different argument it should, in our submission, do so at risk that if the argument fails, it pays, and that we would ask your Honours to vary the costs order to that extent in the event that you are against our primary submission.  If your Honours please.

KIEFEL CJ:   Thank you, Mr Solicitor.  Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  Your Honours, I propose to address the last 15 minutes at the end of my submissions, if that is convenient, other than to say this at the outset.  Each and every argument that we put in writing and that I wish to address orally is either directly responsive to submissions made by Mr Donaghue or supportive of the reasons of the Full Court which I will show or, finally, necessary to consider in terms of the question before you, which is whether the orders were correct at the time they were made, and the notice of contention is for precaution only.

KIEFEL CJ:   Mr Gleeson, would it be convenient for you to address the question of whether an extension should be granted and whether your client has an interest in the notice of contention?

MR GLEESON:   If your Honour wishes me to deal with that now, I will, yes.  Your Honour, this is what occurred.  When we were before both the trial judge and the Full Federal Court we had a vital interest – legal and practical – in obtaining the relief we sought because at that date the coroner was threatening to compel Captain Lomas to give evidence.  At that date, the criminal trial had not commenced and the moment he was compelled to give his first answer, on a matter the subject of the charges, in our submission, there would be a fundamental alteration of the accusatorial trial to which we were entitled.  That is why there was a vital interest at each of those dates.

What happened on special leave was that Mr Hutley pointed out that, on the facts as they then appeared, it was likely that the criminal trial would proceed in June of this year.  And what he, in my submission, rightly pointed out to the Court, as a discretionary matter in respect to Lee, was a likelihood or a probability that by the time you came to this hearing, unless it was given even greater expedition than it already has, by that stage the criminal trial will have run its course.

The point that we sought to make in paragraph 3 of our submissions – which is used as an admission against us – is simply this.  We thought it appropriate that adjectively to the appeal your Honours should know what is the actual position in the criminal trial as of today – not in the appeal but adjectively to the appeal – and the position is that the criminal trial ran, protected by the Full Federal Court’s orders, in exactly the way we say the accusatorial system demanded.  In particular, the prosecution and Mr Donoghue’s client did not have access to a compelled examination of Captain Lomas before the trial started.  That is the very thing we argued we were entitled to and the Federal Court orders secured that.

What then occurred in the course of the criminal trial was that, contrary to the prosecution’s brief of evidence which asserted it could prove our guilt without Captain Lomas, the prosecution changed course and decided to call Captain Lomas as a witness in its case, as it was entitled to do, consistent with the authorities that have been spoken of this morning.

It called him as a witness of fact, and he gave evidence as Captain Lomas.  The critical aspect of the Full Federal Court’s orders was that when that occurred, the prosecution had to accept the ordinary working of the criminal justice system, which is that if it wishes to call a person as a witness it cannot obtain, within the court process, a compelled examination of that person in advance, to decide whether to call the person or how to call them.

So what happened, consistent with the accusatorial system, is Captain Lomas was called, he was examined in-chief in the exact way that the rules of the criminal justice system provide, which was by non-leading questions.  He was then opened for cross-examination.  He was cross‑examined by Mr Donaghue’s client, he was cross‑examined by my client, he was briefly re‑examined, and that was the end of his evidence.  Now, our point in paragraph 3 about having no readily identifiable legal interest is a summary of saying what has actually happened is the Full Federal Court orders have secured the purpose which we say they always had, which was to protect the fundamental elements of the criminal justice system.

KIEFEL CJ:   Was the purpose of the notice of contention, then, to acknowledge the correctness of that course?

MR GLEESON: If needed, that is its purpose. However, what I will seek to do this afternoon is to show you that the reasons of the Full Federal Court, to the extent we are defending those, in fact had four strands in them. They had one important strand, which was section 87(1)(b), and I will deal with that, and that is ground 1. They had three other strands in them, and the four strands have found, between paragraphs 170 and 189 of the Full Court’s decisions.

Mr Donaghue has not referred you to the first strand in those reasons, which is paragraphs 172, 174, 175, 176 and 177, and in those paragraphs the Full Federal Court came to its first reason why this course propounded by his client was a contempt of court, and essential to that first set of reasons was that the compelled examination would produce a transcript from Captain Lomas which would be available to the appellant and most probably the Commonwealth DPP and would thereby involve a locking in of Captain Lomas and therefore us, because he is central to our defence to what he said, and perhaps more fundamentally involve a revelation of our likely defence in respect to the person who was central to our defence of the case. 

At paragraph 176 the Full Court concluded that those matters alone worked a fundamental alteration to the criminal justice system and in paragraph 177 they said it is conceded that there was no clear statement authorising that.  That was the first strand of their reasons.

The second strand, which is paragraphs 184 and 185, which Mr Donaghue relies upon, we put a radically different interpretation on to what he does.  What actually happened in those paragraphs was not that the Full Federal Court found that section 87 worked any alteration to the law other than to expand the category of cases in which statements by an employee will be treated as statements by the employer.  What they made was actually a more fundamental point about the accusatorial system and it is the point illustrated by exactly what happened in the criminal trial.  The prosecution could at all times choose to call Captain Lomas as its witness if they wished.  What they could not do within the criminal trial is have a compelled examination of him in advance.  So they could call him as a witness.

At common law, the evidence that Captain Lomas would give, if compelled, in the inquest, which would be his evidence, would for all practical purposes never be available as an admission against us, and the reason for that was that at common law his answers would only be attributed to us if we gave him authority to make the communication to the coroner and when he spoke to the coroner he would not have that authority from us.

What section 87 did was, by expanding the category of cases in which the evidence is an admission, remove from HeliRes the ability to not be bound by his statements.  Because of section 87, what Lomas says to the coroner as his evidence in the criminal trial becomes an admission by us, and I emphasise those words “an admission by us”.  Mr Donaghue repeatedly said the Full Court was finding we were giving evidence via Lomas.  They did not say that.  What they said was, his statements in place number 1, when tendered in place number 2, now become admissions binding us, and that is their second strand.

Their third strand, which he glossed over extremely lightly, is paragraphs 187 and 188.  Those paragraphs do not hinge on 87.  They are paragraphs which say that, by compelling our central officer to speak and making that available to the appellant and probably the Commonwealth DPP, that was a fundamental alteration of the criminal trial in the sense of X7, Lee (No 2) and Strickland.  We want to defend those paragraphs, if we are permitted to, as paragraphs in the Court’s reasons.  They do not need any notice of contention.  They are paragraphs there to defend.

The fourth strand which you will find in paragraph 188, which is perhaps the most powerful in this case, we submit the most powerful of many, is this.  What the Full Court has said is that the Commonwealth of Australia, as a co-accused, was seeking this coroner’s process to obtain a compelled examination from a person central to our defence as a co‑accused when that can never occur within a criminal trial, thereby upsetting the balance between two co‑accuseds.

The effect of examination would be, our defence via Lomas would be known to the Commonwealth.  They could use that knowledge of our defence to chart their course in the criminal trial, which obviously enough was to try and throw the blame on to us.  That upsetting of the balance between two co‑accused in a criminal trial, a very grave matter, one we have not found a precedent for before, one, amply attracts the contempt of court doctrine, we would say.  So our ultimate proposition is each of those four strands, taken together, sustain the Full Court’s reasons.  The arguments we wish to put in support of them are all responsive to the ground raised by the appellant and the notice of contention, it turns out, when counsel looks at it later is one of those steps in precaution only, because every point we want to put is squarely in issue on the case that you have heard this morning.

KIEFEL CJ:   In the event that that is not the view that the Court takes, I do not think you have dealt with the question of an explanation for the matter being so out of time. 

MR GLEESON:   The explanation is twofold.  Firstly, I acknowledge it was out of time.  Secondly, there was a very significant change in the notice of appeal.  The notice of appeal that leave was granted on, which is at page 184 of the core book, it has a very interesting ground 2 which, if you look at it, was essentially an attempt to reinstate Justice Bromwich’s reasoning at paragraphs 114 and 115 of his judgment, and that was a proposition that, provided the compulsion is exercised over anyone other than the accused, it does not matter what advantages that gives to the co‑accused or the prosecution, the X7 line of cases can never be attracted.  So that was a proposition about how does the fundamental X7 line of cases apply whenever compulsion is exercised over the non‑accused.

KIEFEL CJ:   Is it not the case that Helicopter Resources had given notice of - or had sought agreement to filing a notice of intention before this amendment was made?

MR GLEESON:   No, your Honour, what happened was that amendment was made and we consented to it and it went on two days before their submissions went on.  So, when their submissions went on, they went on with the notice of appeal having just been amended to reframe question 2 to say what we now want to say the Full Court is about is what happens when the coercion is exercised over an employee of a corporation.  Now, the reason that was a radical change was, you will have observed from paragraphs 53 and 55 of the appellant’s submissions that a key argument that is now put is when it is a corporation involved there cannot be any problem compelling their officer to speak out of court because they say, according to Caltex and Nutricia, you can already compel a corporation to incriminate itself in the criminal process, and they say by documents or answers.  Now, by documents is correct; that is Caltex. 

The proposition they were now trying to raise on ground 2 - and this is their ground 2 - is that within the system of criminal justice in Australia where a corporation is the accused, in effect, a corporation has no right of silence.  It can be compelled within the system to reveal its defence, not just to make admissions, but to reveal its defence.  So they were propounding, by this amended notice of appeal and those submissions, that large proposition about the nature of the protections a corporation gets under the system of accusatorial justice.  That is what led us in our written submissions to say if that is the territory you are staking out, why would that territory not also apply to a natural person.  What is the difference between a corporation and natural person that justifies that distinction? 

So, it was within a period of four days after receiving their submissions and about seven days after receiving their amended notice of appeal which explained that is the way they are trying to defend the Full Federal Court, not Justice Bromwich.  You have not heard a word this morning about the correctness of Justice Bromwich; you have heard about this argument.  It became apparent to us that we needed to make sure that all of the arguments we had put before the Full Federal Court were before you and that the matter did not go off on some fine reading of the Full Federal Court’s reasons.  Now, we say, all of our arguments were accepted by them.  The only purpose of the notice of contention was to put that argument beyond doubt. 

So, your Honours, in terms of the application of the costs question, it would be fair to accept that after you have heard our full argument if you came to the view that the matters I wish to speak to you about this afternoon are not supported in the way I have said this morning and could only arise by reason of the notice of contention, that is, they fall outside any fair reading of the Full Federal Court’s reasons, then we would accept you would be entitled to reconsider that aspect of your ruling on costs.  So the notice of contention is pressed only - for precaution only in the alternative, only in the event that when I have developed our argument I cannot persuade you that the Full Federal Court in fact took the richer view of the accusatorial system that we commend.  If it please the Court.

KIEFEL CJ:   Thank you.  The Court will adjourn until 2.15.

AT 12.52 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

KIEFEL CJ:   Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honour.  Before coming to paragraph 2, which are the facts, could I just deal with the half jurisdiction point that was made by the Solicitor this morning and explain how it causes no difficulty with the appeal.  It is in the core appeal book at pages 94 to 95, paragraph 23 of the Full Federal Court, and you will also need the section from the Judiciary Act handed up this morning.

What the Full Federal Court ruled as a matter of jurisdiction was that, looking at the definition of “related criminal justice process decision” in the Judiciary Act, that is a decision which is made in the criminal justice process relating to the offence of certain types.  The Full Federal Court ruled that the decisions by the coroner to issue the subpoena and the like were not made in the criminal justice process; they were made in an external administrative process.  That is the finding at paragraph 23 and it is supported by the cases there referred to. 

I will simply give you a reference in the first case, which is Jiang 111 FCR 395. The key paragraphs are 14, 75 and 77, and that was a case which held that the issue of a search warrant is done as part of the criminal justice process and thereby excluded from this judicial review, and that is because the search warrant is a part of the process of investigation leading to the prosecution. The coroner’s process is clearly outside that. So that is why the court held there was jurisdiction. There is then no inconsistency in saying that a decision made outside the criminal justice process may, depending on the facts, work an interference with that process, which was our case.

Now, your Honours, in terms of the facts, could I emphasise these matters and first ask you to go to the core book at pages 89 to 91.  The first core fact is that from paragraphs 5 through to 11 or 12 of the judgment, we see that each of the appellant and my client were under what we describe as overlapping charges in a joint criminal trial. 

By that I mean they were separate informations, separate summons, but they were heard jointly, and the charges were overlapping in the sense that it was the same statutory provision, sections 32 and 19 of the WHS Act in issue, and you will see from section 19 that the critical allegation was that each of the Commonwealth and the corporation failed to take measures which were reasonably practicable to ensure health and safety of workers were not put at risk. That is the provision analysed by this Court in the Kirk decision.  There were three charges against each accused. 

As you will from paragraph 7 and paragraphs 10 and 11, the key charge for this case is charge 3, and that was a charge concerning events on 11 January 2016 where it is said that each co‑accused failed to take reasonably practical measures to preserve the health and safety of Captain Wood and Mr Sutton in a particular respect, which was essentially allowing the helicopter to land and then to walk without a pre‑assessment for the risk of crevasses.

If I could ask your Honours to go to the book called the first respondent’s further material to illustrate how these were overlapping charges against my client, charge 3 commence on page 21 of the book and in paragraphs 16 to 18 at page 27 there were the particulars of were the particulars required by this Court’s decision in Kirk of the acts or omissions reasonably practicable to eliminate the risk. 

You will see from paragraph 16 the case against us was that we permitted the workers to land the helicopters and walk without those sites having been pre-assessed for the risk of crevasses, and in particular in 17 an allegation which bound us up with the Commonwealth, which was that we should have made sure that the Commonwealth pre-assessed the sites for those purposes by a series of means including, at 17.6, that it had to be done at least every two weeks or after a significant weather event.  At paragraph 18.1 it was alleged that we breached the law criminally by failing contractually to bind the Commonwealth to conduct such a pre-assessment. 

Then if you compare that to the equivalent charge 3 against the Commonwealth, which commences at page 107 and follows a similar fact pattern, at page 111, paragraph 14, the particular against the Commonwealth is that they required our workers to land without first having conducted the appropriate assessment, and paragraph 16 alleges the assessment that is also in the charge against us, the same type of assessment.

So what is apparent is that at the centre of these overlapping criminal trials are questions of fact, taking up your Honour the Chief Justice’s question this morning, central questions of fact of how responsibility for pre-assessing the site for crevasses was dealt with between the two parties.  So that is the context of the overlapping trials. 

The second fact we would emphasise is that my client exercised its right to silence in this matter, and this can be picked up from the core appeal book at paragraph 49 on page 99, which refers to a letter that was written by Comcare, as the effective prosecutor to us, on 11 December 2017, so it is written just nine days before the charges were laid.  Your Honours have that letter in what is described as the first respondent’s second supplementary further material, pages 16 to 17. 

That was a letter putting HeliRes on notice that Comcare was investigating criminal offences and inviting HeliRes, in paragraph 6, to participate in a formal voluntary record of interview, and in paragraph 7 gave the type of caution one would expect before any potential accused was being asked to engage an interview and, unsurprisingly, HeliRes said, “We don’t wish to take up that opportunity”.  Now, this is of some importance, (a) because we submit the right to silence as an aspect of the accusatorial system is held by a corporate accused as well as a natural person accused as well as, we would add, an accused which is a polity.  The Commonwealth as the accused also had the same right if it was called upon to ask questions to say, “We decline to do so”.

Secondly, it is important because in the analysis of section 87 when we come to it, by declining to participate in this interview, HeliRes lawfully declined to confer authority on an officer to make statements which would be admissions on its behalf under section 87(1)(a).  If HeliRes had gone through the interview and sent along Captain Lomas or the managing director, those statements would be out of court statements which would be authorised admissions and they would then be receivable in the criminal trial as admissions by HeliRes under section 87(1)(a).  By exercising that right to silence, HeliRes lawfully declined to assist the prosecution by the creation of that form of evidence.

Your Honours, the third key fact concerns Captain Lomas’ position, and as chief pilot he was the person who had statutory control of the subject matter of the charge, namely, the safety of the operations of the first respondent.  Your Honours will see that from Civil Aviation Order 82 which is in volume 1 at tab 7.

GORDON J:   Do you mean the supplementary further materials, or the further materials?

MR GLEESON:   I am going now to volume 1 of the authorities, your Honour.

GORDON J:   I see, thank you.

MR GLEESON:   Volume 1 of the authorities, tab 7, page 278, clause 2.1 established that Captain Lomas had:

control of all flight crew training and all operational matters affecting the safety of the flying operations of the operator.

The responsibilities included certain matters in 2.2 and we would emphasise 2.2(f) through to (g). What that means is that Captain Lomas was central to HeliRes’ defence of these charges. His decisions about safety went to the heart of whether the allegations of failure to carry out reasonably practical measures could be proved beyond reasonable doubt, and in an important finding of the Full Federal Court at paragraph 174 which is in the core appeal book at page 140 – and this takes up a matter which your Honour Justice Edelman asked a question about this morning – the Full Court relied not just on section 87(1)(b), but on a broader proposition that in respect to this charge he was the embodiment of the company, citing Hamilton and Lord Reid in Tesco Supermarkets.

That finding has not been challenged.  It could not be challenged.  We are not dealing with any peripheral actor.  We are dealing with the person who was the embodiment of a company because of CAO 82, central to our defence of the charges.  The other aspect of this fact that we would add – and this, perhaps, distinguishes the present case from the section 87(1)(c) example that your Honour Justice Nettle asked about – if we simply had two co‑accuseds who were alleged to be co‑conspirators, the effect of 87(1)(c) is that the out of court statements by one may be admissible against the other, thereby an admission by the other in the trial which may then need to be rebutted.  That is undoubtedly the effect of the section.

That section about co‑conspirators, which goes back to the common law of both conspiracy and evidence, has its particular statutory purpose.  The purpose is not identical to 87(1)(a) or (b), because in 87(1)(a) or (b) the person whose out of court statements are attributed as admissions of the accused, is a person who is associated with, and under the control of, the accused in a relevant way.  Either paragraph (a), the person was authorised to speak on the topic, or (b), the person is an employee and is being asked about the course of employment.  Where one is in either of those categories, particularly (b), it is open to the accused – that is us – whether we be a natural person or a corporation, to give a lawful direction to our employee not to speak with the prosecution when we are under charge – or the co‑accused.

So, it was open to HeliRes lawfully to control whether the prosecution or the Commonwealth got access to answers from Mr Lomas.  The point of the affidavit, which is in the book I asked you to go to, the first respondent’s second supplementary further material, the affidavit of Mr Pulford at page 5 of the book, was that Captain Lomas was under lawful direction and he was – paragraph 5- not given:

permission to divulge confidential company information to any person, including members of the Australian Antarctic Division –

that is the Commonwealth:

the Coroner or Comcare –

that is the prosecutor.  And had such a request been received it would not have been endorsed, save if required by law, and so on.  So the effect of that is that Captain Lomas is not only central to our defence, but he is under our lawful direction which allows us to exercise our right of silence by saying, “You shall not speak with the prosecution or Comcare”, and that is what happened.

GORDON J:   But he had given a statement to the Coroner.

MR GLEESON:   He had given a statement.  And, equally, we could say, “You may speak” or “You may speak to this extent and in this fashion”, and it was quite proper that he was given that authority at a time one year before there was any question of criminal charges.  So the point was, once the criminal charges were imminent, which was 11 December 2017, HeliRes was entitled to say, “Whatever Captain Lomas has already said to the Coroner is there, but from here on we are exercising our right of silence.  Our rights under the criminal trial are fundamental.  You will have to prove our guilt other than through the mouth of our employee who is our guiding mind”.

T46Oct10C1hs

Your Honours, the fourth fact that we mention is, as can be seen from the Full Federal Court at paragraph 44 on page 98 through to paragraph 46, and confirmed at paragraph 191 by fresh evidence received on the appeal, the prosecution’s brief of evidence did not contain a statement from Captain Lomas.  What that meant was that, in terms of the language used in X7 and subsequent cases, the prosecution was asserting that it could prove our guilt beyond reasonable doubt, through evidence which did not include the calling of our guiding mind, and that is a course they were entitled to take.  Equally, that entitled HeliRes to say, “When we make our decisions about our defence, we are not required to reveal to the prosecution or our co‑accused what the evidence of Captain Lomas might be beyond what is already in his statement, whether we are going to call him, whether he will claim privilege, and so on. 

They all remain legitimate forensic choices - not mere tactics, but legitimate forensic choices of an accused faced with this allegation of crime and those choices, we submit, were available to us, they were available to a natural person accused and they would have been available to the Commonwealth, had there been any attempt to compel the Commonwealth to divulge, either to the prosecution or to us, how they were planning to defend the charges against it.

So, when we think about the balance struck within the criminal trial, as referred to in X7 and such cases, it is not simply the balance between the prosecution and us as accused; it is a balance between co‑accused which is critically protected by our right to silence.  Your Honours, with that background ‑ ‑ ‑

BELL J:   Just taking up that last submission, you do not suggest that the Commonwealth could not have called Captain Lomas had it cared to?

MR GLEESON:   Not for one minute.  In the trial, of course, we embraced the proposition that within the criminal trial, as it runs in our system, we cannot be compelled to divulge anything about him in advance.  The prosecution then had open to it the choice, if it wished, to go beyond its proof of evidence and call him.  He could then be subpoenaed.  He would give evidence as a witness.  If he was not called by the prosecution, the Commonwealth could, when it came to their defence, call him as a witness. 

The critical thing that would occur within the criminal trial is that, if either of the other parties made that choice, we could not resist it on grounds of privilege against self‑incrimination, undoubtedly, but when it happened, firstly within the trial, they would be confined to non‑leading questions in‑chief.  They would expose him to cross‑examination by other parties, including us, who presumably knew the substance of his evidence.  So that is the limitation that would attach to them calling him.

But then beyond that, what they could not have within the trial is any process of a compulsory deposition of Captain Lomas in advance to find out what he might say, whether they should call him and then, if that deposition produced a transcript, they would then have a variety of ways within the criminal trial in which they could deploy that transcript.  So yes, they can do the calling of the witness, and that is the criminal trial.  The whole point of Caltex is we cannot claim a privilege to stop that occurring in the trial.  But if they take that course, they take it with those consequences.

The fundamental alteration of that system in the present case, if it is viewed from a perspective of obtaining advantages, it is obtaining an advantage not available within the rules of court, which is having the compelled testimony of a potential witness either before you come to call him or when that witness is called by someone else.  So that is in terms of the advantage side.

The opposite side, which is the prejudice side, is that HeliRes’ legitimate right not to reveal the nature of its defence prematurely is fundamentally compromised when its guiding mind is deposed on the subject of the charge.  So in essence, your Honour, the comparison that we submit is the relevant one in this case is other parties being able to call him as their witness if they chose but with those limitations, and here being able to call him with that compelled testimony. 

BELL J:   You were developing a strand of your argument which I have some difficulty with, which seems to be that in addition to whatever understanding the cases may give us concerning the accusatorial principles, there is a dimension involving a co‑accused, so that there is some notion of a balance of something of that sort that feeds into your argument that I have some difficulty with.

MR GLEESON:   Can I explain that, your Honour.  It is the correlative.  It is not a different point; it is a correlative.  Because each co‑accused has what I will call for short “the right to silence” - and there is a lot more in it than that - but has the ability to say, “My defence will not be revealed prematurely.  I will test the evidence as I wish.  At the end of the prosecution’s case you will know what positive defence I am taking” - because each co‑accused has that position within the trial of course it is open to co‑accused voluntarily to speak with each other about their defences if they choose with such consequences that follow.  What there is no process for in the criminal trial is for one co‑accused through compulsion to require the other to reveal how it is planning to defend the charge.  Now, that is just a corollary of saying the prosecution does not have that process, so nor does either co‑accused.

BELL J:   It does not strengthen your argument, the addition of the dimension of the co‑accused, does it?

MR GLEESON:   It is not a different dimension but there are two aspects of the advantage because in the present case the prime mover for the compulsory deposition was in fact the co‑accused, and the first person that would have received the benefit of the revelation of our defence is the co‑accused.  Within the criminal trial that revelation could then have been used in a whole variety of ways by either co‑accused or CDPP, or both.  So I would really see them as two particulars of the advantage case, that within the criminal trial neither prosecution nor co‑accused has any mechanism to compel the other accused to reveal defences. 

EDELMAN J:   The core of this submission, though, must be that it only extends to witnesses who are the governing mind of the corporation or the party themselves.

MR GLEESON:   That is the core of the submission I am putting and that is sufficient to resolve this case and, because we are looking at fundamental alterations to the criminal justice system and we are looking at real risks of contempt not remote or fanciful ones, one could imagine different fact situations where the person is incidental or periphery to the defence and where if that person were compulsorily examined somewhere else in a coronial inquest, one would have to ask does that work a fundamental alteration, does that create a real risk of administration of justice?  But at least in the present case where we have these very powerful facts about Captain Lomas’ centrality to our defence, that is sufficient for the principle.

GORDON J:   In what circumstance could the broader principle be engaged?

MR GLEESON:   Only if ‑ ‑ ‑

GORDON J:   I will ask two questions, sorry.  Do you put that broader principle in this case?

MR GLEESON:   No, I do not.  This is not necessary to decide. 

GORDON J:   I see.  I misunderstood you before lunch to be putting it, so that is why I am asking.

MR GLEESON:   No, your Honour, I want to just confine it to these facts that I am identifying.  And in the broader case the only ‑ ‑ ‑

GORDON J:   So at the moment it is limited to governing mind of the corporation or the accused?

MR GLEESON:   Yes, a person central to the defence, and we get centrality through ‑ ‑ ‑

EDELMAN J:   The attribution rules - it is the persons whose acts would be attributed?

MR GLEESON:   Yes.  And in a sense, that is where section 87 comes in, not as the sole plank to the finding, as the Solicitor has put it, but as an important plank which confirms that when he speaks qua inquest, even though he speaks there as Captain Lomas, in the criminal trial that will be attributed to us as our admission.

NETTLE J:   Could I just follow up from Justice Gordon’s question.  Take the example if someone like Coles were charged with an occupational health and safety offence of keeping the floor dirty and it was sought to call in advance the blokes whose job it was to wash the floor.  Would your principle apply in those circumstances?

MR GLEESON: In the circumstance your Honour has posited, section 87(1)(a) would not attribute that statement to Coles. The common law would not have attributed that statement to Coles. Section 87(1)(b) may well attribute that statement to Coles, because they remain an employee and they are being asked about how they wash the floor as an employee. In that sense, although that is the next case along from this, I would say that the principle would be attracted, and that is why the section 87(1)(b) element is an element of the case that we defend.

The reason that would be appropriate is, if one thinks about how the evidence goes in, when the out of court statement of the floor sweeper goes in, it goes in by reason of section 87(1)(b) as an admission by Coles under section 81. When it goes in, as your Honours asked this morning - your Honour the Chief Justice asked about this - is it open to Coles to rebut that with other evidence? The answer is of course, yes, Coles can call other evidence.

But when one thinks about interrogatories - and this has not been teased out this morning - when a corporation answers interrogatories, as per Nutricia, interrogatories create out of court statements, what Justice Heydon called in his text informal admissions, not formal admissions, which still have to be tendered in the criminal trial, and they go in via section 81.  So if an interrogatory were issued to Coles and Coles answered it, the answer would be given by Coles.  It would be verified by a senior officer.  When there is an attempt to tender that in the trial, that goes in under section 81 as an admission by Coles.

The parallel which we submit the Full Federal Court was drawing in the paragraphs that have been criticised is that the answers under 87(1)(b) go in under section 81 with exactly the same effect and consequences in the trial as an answer to an interrogatory would go; namely, it is evidence of a fact, it is an informal admission, it may or may not be powerful, it may be very powerful as a matter of weight, and you will then likely be forced to call other evidence from someone to qualify or contradict it.

KIEFEL CJ:   Would not an answer of a company to an interrogatory amount to the evidence of the company itself?

MR GLEESON:   Your Honours, the authority on this - we have handed the Court Gannon (1971) 125 CLR 629 in this Court. It discusses how the evidence goes in. It is relevant. It does not completely answer your Honour’s question. What Gannon establishes, particularly at pages 639 to 640, is that an interrogatory is an informal admission and it is different from a formal admission in a trial and, when it goes in, it goes in as proof of the admission by the company and the company may then call other evidence in an attempt to rebut or qualify it. 

The proposition I am putting is that if a company answered an interrogatory, this is the route by which it would go in, as an admission by the company under section 81.  If the compelled answers of Captain Lomas go in via 87(1)(b), the effect is they go in under section 81, placing us in exactly the same position as if we had been compelled to answer an interrogatory, the very thing that Nutricia says we cannot be compelled to do on the subject of the charge.

NETTLE J:   Just to come back to the pool sweeper, does it follow that wherever an employee is, if not central to, then critically involved in the matters the subject of a criminal charge against his employer, you would say that the immunity which should have operated in this case in favour of HeliRes would operate in favour of the employer?

MR GLEESON:   Yes, we are putting that, your Honour, and as to what centrality is, I am using that as a term to capture a number of things, but within it one strand is attribution via section 87, another strand is guiding mind, irrespective of section 87, and another strand which would be a fact‑specific one is simply ‑ ‑ ‑

NETTLE J:   Critical involvement.

MR GLEESON:    ‑ ‑ ‑critical involvement in the matter.  So, with the floor sweeper, your Honour’s example looks at matters that are of a particular kind but if on the facts of the charge what that floor sweeper did or did not do was central to the defence, then the right to silence would say, “As an employer I can direct you not to speak to the prosecution.  I certainly can’t direct you not to turn up to court on a subpoena, but I can lawfully direct you to observe confidence with me,” and the prosecution within the trial cannot find any means of compulsion to override that lawful direction; whereas what has happened here, the reason it is an interference, is the separate administrative inquiry is achieving via compulsion a result that cannot be achieved in a criminal trial.

EDELMAN J:   Your identification of the persons who are subject to this constraint in the criminal process, all of those factors that you identify are just Meridian Global‑type factors, are they not?  They are agency‑type factors, whether you call it centrality, or whether you call it governing mind with respect to that act.  Is not the question always just going to be whether or not the person is performing the act for the benefit of the principle, with authority?

MR GLEESON:   Your Honour, I will agree at a broad level they are agency‑type factors; they are.  Where I want to qualify that is in some of the cases in this area, the Court has pointed out that when one thinks of the accusatorial system, it is in fact a mix of some principles of substantive law, some principles of procedural law, and many principles of evidence law.  Justice Heydon in his text says when one is dealing with what he calls vicarious admissions, which is what we are dealing with, it is sometimes difficult to disentangle the substantive law principle from the evidence law principle.

So what 87(1)(a) did was match what would be the general law of agency, and Justice Heydon describes that as, in effect, treating a substantive common law principle of agency – “If I authorise you to speak for me on a topic, then I am speaking”. It has then given that an evidentiary significance, which is that, “That will become my admission under section 81”. Section 87(1)(b) is a little different, because a general substantive law, merely employing the floor sweeper to sweep the floor, would not have the consequence that if he speaks about his method of sweeping, “That is my speech”.

EDELMAN J:   It is agency plus scope of employment.

MR GLEESON:   Scope of employment, in the sense that the evidentiary rules within the trial, which are part of the accusatory and adversarial system of justice, they have shaped the way in which the right to silence plays out within the trial.  That is one of the reasons why the appellant is anxious to say you should only consider the fundamental principle and the companion rule – and this case says nothing about the broader accusatorial system.  We seek to defend the Full Court’s reasons as looking at the accusatorial system as a whole, and that must include understanding how these rules of evidence intersect with substantive law rules to produce what in substance, not in fiction, pace Justice Keane, in substance are fundamental interferences with the criminal justice system.

So your Honour raised this morning about fiction.  So far as that is in play here, our argument cannot get off the ground if it depends on fictions.  The test that the Full Court said they were applying was the McRae test, the Times Newspapers test – practical reality.  Practical reality requires, as a start, identifying what are the fundamental elements of the accusatorial system as a whole, and then to see whether the degree of interference is an interference in a fundamental respect and, in doing that, one looks at practical reality. 

So, once Lomas’ answers before the coroner, which are his answers there, through the prism of 87(1)(b), bind us as admissions – not as evidence; as admissions, when tendered against us in the trial – and then one steps back and says, “Has that either conferred them an advantage which is not available under the rules of court, or prejudiced our defence?”, you then get your ultimate answer to the question.  Your Honours, just to complete the facts, could I just ‑ ‑ ‑

GAGELER J:   Mr Gleeson, while you are still interrupted perhaps, an integer of your argument seems to be the lawfulness and enforceability of the direction by HeliRes to Mr Lomas not to speak to the prosecution.  Can you point to some authority to support that proposition of law?

MR GLEESON:   We did not find a direct proposition.  We started from the negative that of course you could not lawfully direct your employee not to comply with a demand of law, such as the subpoena.  We then stepped back from that and as a matter of principle came up with the answer I have offered the Court; namely, it could not be contrary to law where the accused is under charge and where the employee has no separate interest in respect to the criminal justice system to give such a direction.  That is why I distinguished paragraph 87(1)(c), that where you have alleged co‑conspirators one co‑conspirator cannot give a direction binding in law to the other not to speak to the prosecution.  The other alleged co‑conspirator is entitled to either exercise or waive its right to silence.  So in that world, which is why it raises different questions, your co‑conspirator may voluntarily speak with the prosecution. 

But equally, if your co‑conspirator were compelled by process of law to speak with the prosecution, that being something not available within a criminal trial, that, we say, would engage the clear statement principle.  If I come up with any direct authority for what I have said I will try to give it to you.  Is it an element of our case?  It is an element.  Does the case stand or fall on that?  No.  But it is an element that explains centrality in this case.

Your Honour asked a question this morning about how this case would relate to natural persons.  We have attempted to submit as forcefully as we can in writing that the real issue in this case is in fact not about corporations in the end; it is about persons under charge where the charge concerns, centrally, the conduct of employees or agents, to come back to your Honour Justice Edelman’s frame of “agency”.

We have urged the Court to perhaps start the case from this end.  If, for instance, a person is under charge for a tax offence and there is an attempt to compel their tax agent to reveal the matters the subject of the charge, including the defence, would it be an alteration in a fundamental respect of the criminal justice system for that compulsion to occur?  We submit, yes, it would, and therefore the clear statement principle would be engaged in that area. 

NETTLE J:   Smorgon would suggest otherwise.

MR GLEESON:   Well, your Honour, there are some different aspects of Smorgon.  His Honour ruled, as a matter of construction, that notice could not go to a corporation; it could only go to a natural person.  That is one aspect of it.  But, in terms of the principle we embrace – and it is applying the underlying logic of the X7 line of cases; not the facts of the cases - but the underlying logic is, if I am an accused under charge, I am entitled not to assist the prosecution and therefore I am entitled not to reveal my defence, not to speak, and then to test the sufficiency of the case led against me.  Where my agent or employee is going to be central to the way I exercise those legitimate rights of defence, then it would follow that I would be entitled to lawfully direct that employee not to voluntarily speak with the prosecution and ‑ ‑ ‑

GAGELER J:   That is the point on which you have no authority.

MR GLEESON:   That is correct.

GAGELER J:   Sorry, go ahead.  I just wanted to be clear about that.

MR GLEESON:   Yes.  So, your Honours, if I could just move to paragraph 2(e) which is to establish the ‑ ‑ ‑

KIEFEL CJ:   What if there was a conflict between the employee and the employer in the sense that the employee was themselves potentially liable to be charged and was being asked to co‑operate with the authorities.  How would you resolve that?

MR GLEESON:   Your Honour, I accept fully that that type of case may bear upon the question of the lawfulness of the direction and in principle, which is where my argument is coming from, if the employee has a separate legitimate interest in respect to the criminal justice system ‑ ‑ ‑

KIEFEL CJ:   It might override that of the corporation.

MR GLEESON:   ‑ ‑ ‑ it would override that authority.

EDELMAN J:   The employee then would be giving any evidence or making any statements as an employee and most certainly not as an employer – making statements in his or her own interests.

MR GLEESON:   I am not sure I am disagreeing with your Honour, but the question I am trying to focus on is there would be one category of case where the employee has a separate interest in engagement with the accusatorial system of justice if the person is under charge or suspected of charge and that person, with their own right to silence, would be able to say, “I think it’s in my interest to in fact reveal my story because that might be beneficial to my defence of the case”.  If those were the facts, one would then have to see how that intersected with the employer’s legitimate interest in giving a direction which protected the integrity of its defence.

In the present case, we are not subject to any such conflict for two reasons.  One is, no interest has been identified that Captain Lomas had that might have led him to voluntarily speak with the prosecution authorities; and related to that, number two, there is no evidence that he said he wanted to speak to them. 

BELL J:   The statements in X7 are a fundamental principle in terms of the nature of the criminal trial process.  The recognition that, in the case of the employee, there may be a distinct and different interest justifying a different outcome, seems to me to make it difficult to make good the principle that in some way the integrity of the system is being challenged on the argument that you are presently making; that is, the broader argument that the employee who is central to one’s defence attracts this aspect of the accusatorial system.

MR GLEESON:   Thank you, your Honour.  So there are strands to my argument and they seek to match the strands in the Full Court.  At perhaps the narrower strand, if Captain Lomas’ answers will become admissions by us in the criminal trial with the consequence that they go in with the same status as an interrogatory that is - perhaps this explains paragraph 189, why the Full Court thought that was an important consideration.

In that case, we are focusing on the advantages limb of contempt.  We have the prosecution and the co‑accused achieving, through that compulsion and through that evidentiary right, an advantage not available within the criminal justice system; namely, getting compelled access to his answers in advance.  So that is a strand.

The broader strand, which I do not retreat from, is that, particularly when one focuses on the prejudice limb of the X7 line of authorities, we submit that the corporation, save to the extent it has been cut back in Caltex, which I will come to, is entitled to take the same stance towards the prosecution and say, “Prove my guilt and I will test your case appropriately”.

Where someone is central to our defence we submit that, whether it be a corporate accused or a natural person accused, if an agent, to use it loosely, is central to your defence, there is a fundamental alteration.  Why?  Because within the criminal trial the prosecution cannot compel that evidence out of you.  Once they do it outside the criminal trial, then a series of consequences flow from you defence.

Your Honours, I want to deal with those in more detail a little further on if I could.  Could I just complete on the facts two matters:  paragraphs 2(e) and (f).  Paragraph 2(e) – and I am not sure this is disputed – is that we have concurrent findings of fact that there is an overlap between the questions which the Commonwealth wished to put in the coronial inquest and the subject matter of the charge.  If I could just identify where those concurrent findings are made, in the primary judge at paragraph 11 on page 23, his Honour said:

The Commonwealth  has foreshadowed cross-examining Mr Lomas on topics that at least overlap with key aspects of the subject matter of the criminal proceedings.

Again at paragraph 32, his Honour said the Commonwealth:

does not dispute that there is a relevant overlap on the issues proposed to be ventilated in cross‑examining him, and the issues in the criminal proceedings.

In the Full Court at paragraphs 13 to 16, you can see in paragraph 13 at page 92 the topics that the Commonwealth wish to ask her Honour are identified and a number of them clearly concern the charge that I have shown you.  At paragraph 55 on page 102 all the way through to 104, this is in the Commonwealth submissions, but the second bullet point confirms these are all the matters we want to ask about, and one can see that many of them are matters of fact and they are concerned with the comparative attribution of responsibility between the two accused.  Could I emphasise there that the overlap that we point to is objective.  The question is whether this is proposed questioning on the subject of the charge, not a question of subjective purpose.

GAGELER J:   Mr Gleeson, it is really not clear to me how central to your argument this lawful direction is, or the availability of lawful direction is.

MR GLEESON:   It is feeling like it is becoming more peripheral, your Honour.

GAGELER J:   Well, no doubt you will define your submission, but you really should do so in light of the holding in A v Hayden (1984) 156 CLR 532, which I think is to the effect that such a direction is contrary to public policy and, for that reason, unenforceable.

NETTLE J: I might add, section 256 of the Crimes Act (Vic) and I dare say there is a similar provision in other States and Territories.

MR GLEESON:   That must be correct so, unless we can find anything to put context around that, I would ask your Honours in paragraph 2 of the facts to treat our case in paragraph 2(c) as being Captain Lomas the chief pilot and guiding mind was central to our defence of the charges.

Your Honours, the final fact was that no procedures were put in place to quarantine the answers of Captain Lomas from Comcare or the prosecution, and could I refer you to the Full Federal Court at paragraphs 204 to 206 on pages 148 to 149.  This was an issue which was floated below by the Commonwealth but has not been pressed before you.  The Full Court has found, it is not challenged, that the only provision which could be pointed to - section 40 of the Coroners Act - would not authorise constraints which would immunise the material from the parties in the criminal trial and they did that, we submit, accepting the submission that is recorded at paragraph 196, page 146, and that was a submission which relied upon this Court’s decision in Zhao 255 CLR 46 at 60.

At paragraph 206 the Full Court noted that even at the stage of the appeal the Commonwealth had not offered any form of safeguard and they did not suggest in their submissions they would do so.  So the position as it was determined at trial and on appeal was that, to the extent safeguards are in play - and they are only part of the question - there were none in this case.  So the case can be looked at on the basis that this compelled material would likely be available to both prosecution and co‑accused.

Your Honours, coming to our third proposition, which is simply the legal framework, your Honour Justice Gageler’s question this morning elicited a clarification, or at least a confirmation, that, as was the position below, there is no submission that the Coroners Act contained a clear statement authorising the examination if it would work a contempt of the criminal trial.  That position, which is common ground, was recorded in the Full Federal Court, and I will just give the references – paragraphs 90 and 177.  It is for that reason that the case becomes the case about whether this was a contempt and whether there was a fundamental interference risk with criminal justice.

Your Honours, the test for contempt, we submit, is exposed in Lee (No 1), which is in volume 2 at tab 17.  Could I give a couple of paragraphs where various members of the Court expose the test:  first, your Honour the Chief Justice at paragraphs 194 to 195; your Honour Justice Bell at paragraph 264; and your Honours Justices Gageler and Keane at paragraphs 319 to 320.  Each of those tests, in various ways, trace back to the McRae line, where there was a need to establish as a matter of practical reality, a real risk of interference with a criminal trial including, as per paragraph 320, a need to establish a logical connection between the impugned action and the feared impediment, which we accept.

Your Honours, our next proposition is from paragraph 335 of Lee (No 1), emphasising the words that are in the parenthesis, “(or any other person)”.  We take from that that, depending on the circumstances, conduct involving compulsion over person A may interfere with the fair accusatory trial of person B.  It is a question then of when that is so, and there will need to be the logical connection.  That statement, we submit, shows that Justice Bromwich was in error when he, at paragraph 114, in effect said we cannot succeed because the compulsion was not exercised directly over us, but was over our agent.

With paragraph 114 of Justice Bromwich, page 60 of the book, and the surrounding paragraphs, they have not been directly commended by the appellant in this appeal.  Could we make these observations that your Honours should not accept these paragraphs as a correct statement of the law.

GORDON J:   Could I have those paragraphs again please?

MR GLEESON:   Yes, they are paragraphs 112 to 117.  Our first submission is that to the extent his Honour has distinguished direct and indirect interferences, there is no prior authority to that effect and it is not a helpful division.  In fact, it produces the very odd result, paragraph 114, that some of the stronger statements in this Court about interference and contempt of court in Hammond, Lee No 1, Lee No 2, X7, and so on are now reduced somehow to indirect interference, whereas we would have said you could hardly think of something more direct than a fundamental alteration of the system of criminal justice.  So, that is not helpful.

Then, your Honours will see in paragraph 114, near the middle, his Honour is analysing this as a rights based principle – rights and privileges – and he says:

it is only the accused person who cannot . . . be forced to surrender such rights or privileges –

Then, the next sentence is the one we challenge:

A person who has been charged, but is not being required to give up such rights or privileges, cannot claim protection based on interference because there is no such threat.

That seems to be as long as the compulsion is exercised over anyone other than the accused there can never be interference.  That, we submit, is wrong, inconsistent with Lee at 335 and wrong in principle. 

Your Honours will then see in 115, line 10, on page 61, this return to the emphasis on fundamental rights.  That, with respect, is too narrow because the court, in the X7 line, has been at pains to point out we are dealing here with the fundamental principle of the criminal justice system, it is not really an aspect of rights.

Then, 117, is one of the three paragraphs where the Full Federal Court found error.  The key error was found in 117, 120 and 137.  And, 117, if one is speaking about what happens in the inquest, one can understand what is being said in the first sentence.  Whether the second sentence is correct, as to the inquest, is doubtful.  But, what the analysis of Justice Bromwich has done is stopped there and said, I do not need to go further and evaluate whether this creates a fundamental alteration to the system of criminal justice and that underpins his finding at 120 that we have pointed to:

forensic disadvantage and a generalised sense of unfairness –

but it does not rise to a level of interference. 

Your Honours, the other aspect I wish to identify from Justice Bromwich is that in three core paragraphs – which are 11, 15 and 42 – he has made findings that are correct, that the compelled examination will create advantages to the Commonwealth and the DPP which are not available in the criminal trial and will correspondingly work prejudice to us.  Your Honours can see that in paragraph 11 where it is expressed in terms of the:

course that might result in evidence being given that would be helpful, if made available to –

them and it could “potentially give” them “forensic advantage” and “limit . . . forensic choices” – see X7 and Hammond.

So, the analysis there has started correctly, we would say.  And, at paragraph 15, where he deals with our guiding mind argument, after expressing some doubts about what section 87 does, he says:

it is probably enough for Helicopter’s present purposes that it may be directly or vicariously responsible for Mr Lomas’ past actions or omissions arising in his official capacity.

And, the compelled evidence may reveal:

what he did or did not do –

And, that is:

an advantage to the Commonwealth in deciding whether – and, if so, how – to defend the criminal charges against it.

So, just pausing on that paragraph, the finding of direct or vicarious responsibility picks up what your Honour Justice Edelman put to me in the question as to what is the core element we are relying upon.  And, the last sentence picks up what your Honour Justice Bell put to me about advantages accruing between co‑accused in a trial.

Now, at paragraph 42, which is the third in the trilogy, page 37, in the first three lines, we submit we have a correct statement of how the criminal justice system works in Australia and the ACT which is:

that the procedures for the hearing and determination of the summary charges brought against it and the Commonwealth do not provide any party with an opportunity to depose an employee of another party ‑

described as “undoubtedly correct”.  So, where the matter was left at first instance ‑ and this is the real error the Full Court found ‑ the primary judge has said this procedure will give them advantages not available in the criminal trial.  It is likely to cause prejudice to our defence as per X7 and yet, no contempt, and one asks why, the answer seems to be provided the compulsion is exercised over anyone other than you, there cannot be interference or contempt.  If that is the proposition, that would have to apply, we would say, equally to corporations as natural person accuseds and that would be a fundamental derogation of the X7 line of protections.

Now, the original notice of appeal in this matter, ground 2, was an attempt to defend this proposition, namely, provided the compulsion is over someone other than the accused, it does not matter what advantages and disadvantages accrue, there can be no contempt.  That, we submit, is in error.

Your Honours, just finalising our proposition number 3 and without delaying longer than I need to, as to paragraph 3(d) we submit that the cases have identified at least two different strands of interference in the criminal trial.  One strand focuses on the attaining of advantages which are not available within the criminal trial and the other strand focuses on the accused being prejudiced in its defence and we submit each of those strands are applicable here.

GORDON J:   Are they separate strands or, in effect, the flipside of the same coin?

MR GLEESON:   In many cases, and this case is one, they are largely the two sides of the same coin.  In some cases, they may not be, which is the point of X7, that even if it does not get to the prosecution it may still prejudice you in your defence.  The reason we have a much stronger case is, as I have sought to show through the facts, it has got ‑ it will get to the co‑accused and then it will be available to the DPP, so we are in both the advantages territory and the prejudice territory.

Your Honours, if I could briefly mention on the advantages line of cases because there were some submissions about this this morning, they start as early as Brambles which is in vol 3 at tab 29 ‑ Justice Franki’s seminal decision where at page 338 of the report or 1353 of the book the argument of Mr Horton in the middle of the page which asserted contempt on the ground that:

The notice was an attempt to divert the ordinary course of justice in such a way that issues would be determined otherwise than in accordance with the rules and practice of the court.

Because you could not get interrogatories was accepted by Justice Franki in the next paragraph.  On the next two pages Justice Franki explained how that ruling sat with the seminal cases, Attorney‑General v Times Newspapers and so on.  And, in particular, on page 340 of the report at about point 3, referring to Lord Simon and the earlier case of Castro and Shipworth’s:

when a case was pending it ought to be tried “in the ordinary course of justice”, meant “the ordinary and unimpeded course of legal proceedings”.

So once we can establish in this case paragraph 42 of Justice Bromwich there is no ability within the criminal trial to compulsorily examine the witnesses of an accused we come within Justice Franki’s formulation.

Your Honours, in terms of the later statements of that principle, if I could ask the Court to go back to Lee No 1, which is in volume 2, at tab 17.  At paragraph 211 your Honour the Chief Justice referred to this proposition, expressing it this way:

The attainment of such an advantage through the exercise of statutory powers ‑

being one:

criminal justice would not otherwise provide [for] . . . may in itself amount to an interference –

citing Justice Gibbs in Pioneer Concrete and Justice McHugh in Caltex, at page 559. So we have a stream of authority: Brambles, then Pioneer Concrete, then Caltex, then Lee No 1.  And a similar point was made in X7, volume 3, tab 27.  I will just give the reference:  paragraphs 53 to 54, in the judgment of Chief Justice French and Justice Crennan.  That is one strand of our argument.

The second strand is the prejudice strand, and could I commence with the BLF Case, which is in volume 3, at tab 26, at page 71 in the judgment of Justice Stephen.  There is the familiar reference to Clough v Leahy and Chief Justice Latham in McGuinness – and this is the prejudice strand.  And, putting the proposition compendiously, we say that that strand of prejudice was then taken up in Hammond – I do not need to take your Honours to the pages, it is pages 198 and 206 to 207.  It was taken up in X7 and it was taken up variously in Lee No 1 in a number of the judgments, and taken further by the Court in Lee No 2 and Strickland.

Your Honours, could I then come to the Full Federal Court’s decision and show the four strands of the reasoning.  At paragraph 90 the court identified the issue and at paragraph 92(f) identified the various strands of the contempt of which (i) and (iii) are critical and then set out at paragraph 93 and following exactly how we argued the interference. 

Could I just emphasise that from paragraph 93 that the case that we were asserting for interference treated the criminal trial as a sequential process.  Obviously, what ultimately happened or would happen at the trial was critical, but treating it as a process, once there was the compelled examination that would force HeliRes to decide whether to maintain its plea of not guilty and how to deal with evidence in the trial not just in accordance with the brief but in accordance with that compelled examination for which there was no process in the criminal procedure – that was the point made in (b).

There was then the possibility of derivative use and then there were the possibilities of what would occur at the trial itself.  So at paragraph 96 we sought to show how this was a fundamental alteration and the balance of our argument is recorded over the following paragraphs, including 104, which makes clear the points we were squarely putting in issue.

At 113 in the last sentence – albeit this is a submission – we put to the Full Court, in reliance upon paragraph 42 of the trial judge, that it was now accepted that there was:

no process of internal pre‑trial depositions of the witnesses of the accused –

within the criminal trial, and over the page we sought to map that onto Strickland.  Your Honours, Strickland was handed down just a couple of days before the Full Court decision.  It was not available to Justice Bromwich.

The Commonwealth’s argument was then recorded and then the court dealt with Caltex at 137 to 143. I want to make a submission in response to the Commonwealth on 143. All the court is saying there, which is correct, is that if an officer of a corporation is compelled to give evidence within the process of the criminal trial, the corporation cannot assert a privilege against self‑incrimination to prevent answers being given. We accept that. That is a consequence of the officer giving evidence as a witness and it goes no further than that.

Your Honours, the court then looked at Nutricia through to paragraph 150.  Paragraph 150 is important because the court correctly recognised that the rights in the accusatorial system are not limited to the privilege against self‑incrimination, and as the solicitor has pointed out, they posed, as it were, a question at the end of 150:  would compelling Captain Lomas to answer questions in the inquest be properly regarded as compelling the corporation to answer the questions ‑ for the purpose of the criminal trial ‑ which is clearly the question that is being asked there.

Now, the later authority is then referred to and 157 is important because that is a finding that the X7 approach would apply to a corporation.  We commend that finding.  Paragraph 164 correctly picks up paragraph 335 of the Lee No 1.  Paragraphs 166 and 167 correctly pick up Lee No 2, including that the emphasis is on the fair trial – not simply the fundamental principle and the companion rule.  Then, there is a reference to Strickland.  And, then the dispositive reasoning commences at 171.  The first strand of the reasoning is at 171 through to 177 and that strand starts by noting in 172 that the evidence can be:

tendered by the prosecution –

against HeliRes:

as an admission by it by force of s 87(1)(b) –

That is an accurate statement of what section 87 says.  But, it goes further:

Moreover [once he] is compelled to go into the witness box at the inquest, he will reveal either what his evidence will be, and so will commit himself to a version of events from which he could not credibly depart at the trial, or that he is not presently prepared to give evidence –

because of incrimination but he still may be required to answer the questions with a certificate.

So, just pausing there, that paragraph includes 87(1)(b) but in the moreover is detecting that the moment Captain Lomas is compelled to go into the box, there will be either prejudice to HeliRes in its defence or advantage to the Commonwealth and the prosecution.  The prejudice that he is seeing – the locking‑in – is another species of the locking‑in where the natural person accused is examined.  Is it the same species?  No.  Because it is Captain Lomas being examined, if he later gave evidence he would be locked‑in to a version of events, but the point the court is making is that if he is locked‑in, we are locked‑in because he is central to our defence.

That is why, at 174, the court emphasises again not just 87(1)(b) but the proposition that he is the embodiment.  So, at 175, there is the first finding of error in the reasons of the coroner, which were that we had:

failed to identify how [we were] disadvantaged by the continuation of the inquest –

At that point, the court is, by analogy, mapping the prejudice onto those paragraphs of Strickland.  At 176, the court confirms, based on McRae, it is applying a practical reality test.

So, in that first strand of the reasoning, while 87(1)(b) is being referred to, the critical prospect is the idea of the revelation of material which will, because of Lomas being our guiding mind, prejudice us in our defence.  Paragraph 177 says there is no clear statement and, at that point, the first reason has been given for the contempt.

Now, in 178, your Honour the Chief Justice asked about – perhaps, your Honour Justice Gordon asked about the first sentence.  We submit the first sentence is correct and it is supported by Nutricia, as the court says.  If you are asking the corporation interrogatories, that is to make answers which are available for tender, that is not available within the criminal trial and therefore it is an interference to do it outside the criminal trial.  Your Honours, the second and third sentences of 178 we have puzzled over and I cannot put a submission defending them.  They may be correct but I cannot think of it.

GORDON J:   Do you accept the Solicitor’s submission that the last line is “misunderstands Caltex”?

MR GLEESON:   It does appear to, your Honour.  It does not affect the first sentence about interrogatories but the last sentence ‑ ‑ ‑

GORDON J:   I am dealing with numbers 2 and 3.

MR GLEESON:   Yes.  So I am accepting – I cannot think of a defence of it.  It does not infect the rest of the reasoning.  In fact, what it highlights is a fundamental difference between the parties which I am coming to on ground 2.  We have to accept that Caltex says that a corporation does not have a privilege against self‑incrimination in respect to a demand to produce documents even if you are under charge.  The one thing Caltex did not do was go further and say if a corporation is compelled to make answers where it is under charge that is no derogation from the accusatorial system.  It dealt with the production of documents.  It did not deal with being compelled to make answers.  So, those two topics should be kept squarely separate.

Now, moving on, there is then a discussion at 181 ‑ and this is where the Solicitor commenced his analysis of a judgment ‑ ‑ ‑

EDELMAN J:   Are you going to come back to the significance of that distinction at some stage or are you moving on from Caltex now?

MR GLEESON:   I am sorry, your Honour, the distinction between interrogatories and ‑ ‑ ‑

EDELMAN J:   The distinction between production of documents and the giving of answers, why as a matter of principle they should be treated in a different way.

MR GLEESON:   I will put the submission now.  What the majority in Caltex said was if a corporation is compelled to produce its documents they are in the nature of real evidence, they are the books and records and they are likely to be the best evidence of its doings.  Even though that will be some impingement upon a pure accusatory system it can be justified having regard to several considerations.  One consideration was said to be the difficulty of prosecuting corporations.  Another consideration was said to be the search warrant and the analogy drawn there was, well, you could already administer a search warrant provided that was under an appropriate statute and that would give you some means to get at the corporation’s books.  It would not be a means as powerful as a subpoena or a notice to produce because a search warrant has to be drawn more tightly but you are already at some prejudice of your books being summonsed.  The third consideration was because your officers could be compelled to give oral evidence for the prosecution, it may not be too great a derogation from the system if you as a corporation can be compelled to produce your documents.

They, I think, are the three stands woven into the idea that this is not a sufficient impingement of the accusatorial system to justify extending a privilege to a corporation.  Virtually every judgment in Caltex drew a clear distinction between the production of documents in the nature of real evidence, and what they called testimonial evidence, and they recognised that to compel any accused, corporation or otherwise, to make answers to questions, when you are under charge – that is, to bring into existence a new form of evidence which does not presently exist, would raise fundamentally different questions and would be a significantly greater impingement on the accusatorial system.

Caltex did not need to rule on whether that would be permitted or not but the judgments of the majority recognised that would be a significantly greater impingement.  When your Honour Justice Nettle reviewed Caltex in Boral, in one of the key paragraphs that was not read this morning, paragraph 78, your Honour noted those statements in Caltex of that being, on its face, a significantly greater impingement on the accusatorial system.

So our proposition is it is a significantly greater impingement where the corporation is compelled to assist the prosecution, by bringing into existence answers to questions, when it is already under charge.  And why is that?  Because the prosecution, by filing the charge, as X7 tells us, has asserted that it has the necessary evidence to prove the guilt of the corporation beyond reasonable doubt.

No purpose is served within the criminal justice system in permitting the prosecution to compel any accused, corporate or otherwise, or a polity, to bring into existence answers to questions on the charge, solely for the purpose of improving the prosecution’s chance of proving guilt.  That would tilt the balance too far in favour of the state.  It would undermine, it would whittle down the fundamental principle.  It would be a form of compelled assistance, for the purpose of the companion rule, and it would fundamentally alter the way in which a criminal trial runs in this country.

So the bright line principle that we seek to draw is that where any accused, corporate or otherwise, is asked to make answers to questions when it is under charge, it is entitled to say, no, you cannot do that over me without lawful compulsion, and to establish lawful compulsion you will need to satisfy the clear intent principle, which is not suggested occurred here.  So, your Honour, that is our broad answer to that as a matter of principle.

Your Honours, continuing over to the next page, 142 of the book, the court at 181 starts on the fundamental principle, and at 182 refers to the companion rule.  Would your Honours note, please, that in paragraph 182, which is an extract from Strickland at [95], the passage that is cited is not simply a statement about the fundamental principle of the companion rule, it is a statement about the entire accusatory nature of the system.  It is that proposition in Strickland [95] that the Full Court is ultimately relying upon, that we submit is the answer to your Honour Justice Edelman’s question to me a moment ago ‑ that proposition must be equally available to all accused within our system, natural person, corporate or governments.

Now, 183, the court is saying under the companion rule ‑ which is not the whole of the principle, that is just a part of it – it would not be engaged, subject to what comes, because there would not otherwise be a relevant form of assistance in the discharge of the prosecution’s onus of proof.

Your Honours, when the companion rule is stated in the authorities of this Court, at its narrowest it is stated as a rule that the accused cannot be compelled to testify.  At its broadest, as per Lee No 2, it cannot be compelled to assist or, as your Honour Justice Bell expressed that in X7, the prosecution must prove their case unaided by the accused.  Now, our proposition is that this language of assistance or aid is broader than simply testify, and even if it be accepted a corporation does not give evidence and therefore cannot testify, that does not end the companion rule for a corporation.

Now, we get to 184 to 185, this is the second key strand.  There is no error in 184.  The court, both parties agree, commences by identifying the admitted effect of the change from 87(1)(b) over the previous position and then can I deal with the last sentence of 184.  When the court talks about the common law being changed, it is obviously not talking about nature of the evidence given orally by the officer it called as a witness in the trial.  It cannot be because the whole of 87 is not about evidence given at trial; it is about out of court statements being attributed to someone.  So that is not the change they are talking about.

What they are saying is this.  When Captain Lomas gives evidence at the trial, if he is called under subpoena, that will be his evidence and we cannot assert any relevant privilege over his speech for the reason at paragraph 143.  But, if he is called as a witness at the trial, that will carry with it the range of limitations that I have mentioned earlier – namely, he will be examined by non‑leading questions, he will be exposed to cross‑examination and all of that will occur without a pre‑trial deposition.

And importantly, under the old common law position, the corporation could protect itself against Captain Lomas’ answers to the coroner being tendered as admissions by HeliRes in the trial and that is for the reason dealt with in the Bond Corporation Case, which is volume 3 at tab 28.  This was the decision of Justice Giles which established that even if the managing director is called as a witness there is a mechanism available to the party to ensure that the evidence does not bind the corporation which is by withdrawing authority and that is found on page 88.

So, what would have happened at common law is that when Captain Lomas was called in the inquest, assuming the subpoena was otherwise permitted, he would give evidence as a witness but HeliRes could protect itself by asserting that he had no authority to speak for HeliRes and the result would be that his answers in the inquest could not be tendered as an admission in the trial.  What 87(1)(b) does is to say that ability has been taken away from us.  If he speaks to the inquest when he is our employee, which he is, and if he speaks on the subject of employment, which he would, his answer will become an admission by us at the trial and that is what is explained in 185 ‑ how prospectively it would work in the trial. 

The Full Court is reasoning that that is a form of compelled assistance and/or an infringement of the Strickland paragraph [95] principle.  Just to unpack then what the real difference is; after section 87 any answer that Captain Lomas gives at the inquest which is adverse to HeliRes can now be tendered as an admission by HeliRes relieving the prosecution or the co‑accused of the need to ever call him as a witness at all.  Instead, they will have the ability to tender the adverse answers and having tendered them for practical purposes make it likely that HeliRes will need to call Lomas to rebut or qualify those answers.  He will then become our witness and they will be able to cross‑examine him.

EDELMAN J:   Is there any part of your argument that the Evidence Act comes after the Coroners Act?

MR GLEESON:   I do not think it is, your Honour.

EDELMAN J:   Because if the meaning of the Coroners Act between 1997 and 2011 was governed by the common law it would presumably have then been open to HeliRes to protect itself from admissions by the narrower common law principle. On one view, the broader effect of section 87(1)(b) would then have changed that principle and the question is whether changing the operation of that principle would also at the same time effect a change in the accusatorial system that leads to the constructional rules for the Coroners Act?

MR GLEESON:   I can see that is possible, your Honour, I am not sure I can completely embrace it on my feet because I have not thought it fully through, but we had come at it from a perhaps simpler end that it was common ground that nothing in the Coroners Act authorised an interference and once we have got 87(1)(b) whenever it came along, we have got a position now whereby his evidence there becomes an admission by us in the criminal trial and that then works this range of fundamental alterations.

EDELMAN J:   The rules and the operation on the construction of the Coroners Act ought to be the same whether we are looking at it in 2010 or 2019.

MR GLEESON:   And, the primary rule is it can never authorise that which is an interference with the criminal justice system.  Whether something is an interference may change over time depending on the rules in the system.  For example, if a process of compulsory pre‑trial depositions did emerge within the criminal law of Australia, clearly authorised by statute, then the Coroners Act – in the way we would analyse Caltex – might survive because it would be doing nothing other than what is now available within the system.  So, we are certainly embracing 87 saying, from the moment it is in, that gives you important context for how the criminal justice system operates and then you can understand interference.

Your Honours, I wanted to point out that at 187, the third strand, we submit, emerges and contrary to the Solicitor’s submission this is not a strand based on 87.  This is a strand about the moment he is compelled to give any evidence, even if that is to claim privilege.  Whether the evidence is adverse to us or not, the moment he is compelled to give any evidence in the inquest, the CDPP and the Commonwealth will have access to material – I emphasise the words:

and neither can compel the appellant to reveal them.

Those words there, “and neither can compel the appellant to reveal them”, show that the court is making a finding that, because you cannot exercise any compulsion over Captain Lomas within the criminal trial to reveal anything about what he might say at the criminal trial, the inquest necessarily works a fundamental alteration.  You can see from the second sentence there it reveals:

matters about whether he will, or may, give evidence for the appellant at the trial and, possibly, what that evidence is.

So, this is not about the tender of his answers as an admission by us.  This is about the revelation of our defence.

BELL J:   I am sorry, which paragraph are you in at the minute?

MR GLEESON:   Paragraph 187.

BELL J:   Thank you.

MR GLEESON:   Paragraph 187.

NETTLE J: Mr Gleeson, does this not still assume that section 87(1)(b) has the effect which the Full Court said that it did?

MR GLEESON:   No, because this is saying, within the criminal trial they cannot get access to a compel proof of testimony from Captain Lomas.  That is the premise – as per Justice Bromwich.  The moment he gives any answers in the inquest, they have a compelled transcript.

NETTLE J:   So, it would follow that even before the enactment of 87(1)(b), this could not have been done.

MR GLEESON:   That is right.  And, that is why we say this paragraph, at least – and some of the others – is not about an 87(1)(b) effect.  This is saying, the moment any co‑accused or prosecutor gets compelled access to the evidence of a person – I will put it loosely – central to the other accused, the alteration has occurred at that point in time, immediately.  Why? 

NETTLE J:   Even if he is not your agent at all?  As, for example, if you withdrew his authority?

MR GLEESON:   I am sorry, I had not appreciated your Honour’s question.  I was focusing on the second line of 87:

matters about whether he will, or may, give evidence for the appellant at the trial ‑

NETTLE J:   Yes.

MR GLEESON:   Implicit in that seems to be some notion of agency that he is a person in our camp who ‑ ‑ ‑

NETTLE J:   He is certainly in your camp, one would think, but let us say that for the sake of care you withdrew his authority to make admissions on your behalf in a pre‑87 world.

MR GLEESON:   Yes.  I am pressing this paragraph even in a pre‑87 world.  Even if we withdrew that authority, what they now have access to is a proof of a person who is in our camp and central to our defence and that could be used in the trial in a whole range of ways.  It could be used under 87(1)(b).  But just to itemise the other ways it can be used – and this is what the Full Court is speaking of – they now have a piece of information from which they can decide whether they might call him as a witness in their case because they have a proof.  The proof will tell them what Lomas will say.

So they have now been aided, through that compulsory examination, in the discharge of their proof because they now have that transcript.  So that helps them to decide whether to call Lomas.  Secondly, it allows them to seek out derivative evidence because they know Lomas’ version is X, we can seek out evidence to rebut Lomas.

NETTLE J:   So no prospective witness can be compulsorily examined once the indictment has been filed?

MR GLEESON:   That is the proposition in 187 and I submit that is correct because that is an alteration of that position.  Now, no prospective witness – prospective involves the issues we have debated as to how one defines the centrality or the camp, but that is the proposition.  What that leads to is that in the trial that evidence could be used in a variety of ways.  87(1)(b) is the most powerful way it can be used because that relieves them of the duty to call him and that effectively means we may have to call him. 

It could be used in other ways in the trial. One example your Honours know is section 66 of the Evidence Act, that if the prosecution calls Lomas in their case and if he satisfies the requirements for the record being created while it was fresh in his mind, then they can tender the transcript as well as calling him.  That is another way it could be used.  It could be used as prior inconsistent statement, depending on who calls Lomas.  So there is a whole variety of ways it could be used and none of that can happen, we submit, under the ordinary rules of the criminal justice system.

BELL J:   The breadth of the proposition – do I understand you are putting that no witness can be compulsorily examined?

MR GLEESON:   I do not want to overstate it.  I am putting a proposition about how the criminal justice system works.

BELL J:   The criminal justice system worked for a very long time in relation to indictable offences with an administrative procedure whereby prosecution witnesses were called compulsorily and gave evidence and their deposition was signed informed by the brief.

MR GLEESON:   Your Honour, I am not seeking to cut across that at all.  What I am saying is ‑ ‑ ‑

BELL J:   Well, I am seeking to understand the distinction that you are drawing.

MR GLEESON:   Yes, all right.  The charge has been laid.  We are dealing in our case with a person who, if I am otherwise correct, meets the requirement of being central to our defence.

GORDON J:   Is that the qualification we had this morning?  It is to be made again.

MR GLEESON:   Yes.

GORDON J:   So could we please have it clearly what the qualification is?

MR GLEESON:   A person who can be seen to be central to the defence of the accused, which can be established either through agency, through section 87 or through a finding of guiding mind.

NETTLE J:   Or intimate involvement in the facts in issue.

MR GLEESON:   Or intimate involvement in the facts.  That is the confinement of my people I am speaking of.  I am saying in paragraph 187 the Full Court is saying you are a person who may give evidence for the appellant, so they are in a shorthand way saying you are in the camp in that sense.  There is no process within the criminal trial, that is, after the charge has been laid, for the prosecution to ask the court to compel a testimony out of that person.  It cannot be done within the process.

GAGELER J:   Does the process include committal in an indictable offence case?  I mean, are you going so far as to say ‑ ‑ ‑

MR GLEESON:   I am not attacking the committal process, your Honour.  What has happened within the committal process with its own purpose and its own limitations we are not cutting across at all.  The committal process, of course, has its own purpose, which is to enable a testing of the evidence which is likely to be led by the prosecution to establish whether there is a sufficient case to make it worthy of going to a jury.  For that purpose, it is an important element of the fairness protections for the accused within the system.  We do not undermine them one fraction. 

BELL J:   What do you say in relation to a corporate defendant is that it would not be open to the prosecution to call any officer of that corporate defendant whose evidence might be, in the view of the corporate defendant, of central importance to its defence.

MR GLEESON:   It is open to call them at the trial.

BELL J:   No, I am talking at committal.  I am positing an indictable offence under a scheme ‑ I mean, there have been changes relating to committals in recent years but we are talking about the notion of the integrity of the system.  So, assuming the availability of a committal procedure, you say it would cut across the essential attributes of the accusatorial system for the prosecution to call at committal an officer of a corporate defendant whose evidence was, in the view of the corporate defendant, of central importance to its defence.

MR GLEESON:   Your Honour, I do not need to go that far.  Firstly, I am making a proposition about all accused and I am saying corporation, natural person, no difference.  I am talking about such an accused where an agent or employee of that accused is central to the defence, so in the case of a natural person who goes to committal and if the prosecution says the brief that we propose to lead against you includes your tax agent.

And then we are not saying anything to undercut the ordinary process of the committal.  If that process is such that the prosecution is permitted to subpoena that agent and is then permitted to lead evidence in a non‑leading fashion from that agent and is then required to expose that person to any cross‑examination that the accused wishes to bring and if that leads to a deposition – and that has a consequence in the indictable trial – that is an established process within the court’s system.  That is true whether it is a corporation or natural person accused.  And, that is because the committal has a fundamental fairness protection for the accused.

KIEFEL CJ:   Would you suggest that the corporation was able to, in effect – as you put in the context of the coronial inquiry – de‑authorise the employee from giving evidence?

MR GLEESON:   The first question would be whether the corporation is permitted under the legislation governing the committal to waive the right to the committal and go straight to trial. 

KIEFEL CJ: Just on that point, you have spoken about a corporation having an authority over an employee as to whether or not, in the coronial context, they give evidence. The Full Court did not speak in that context, did it? It was speaking of authority for the purpose of section 87(1)(b) as being met by, within the scope of his employment – paragraph 185.

MR GLEESON:   Your Honour, I agree 185 is about that matter your Honour mentioned.  That is what it is about.  I am submitting that 187 has opened the frame a little more broadly and, in that context, I am trying to deal with the matter I had to deal with which was where does this square with the committal?  We put no submission that their well‑established committal process is contrary to the system of justice.  But, if one is testing that against what we say is the right to silence of any accused – corporate or otherwise – where they are your central officers and agents who are in issue, the first question would be, if I do not wish my officer or agent’s evidence to be examined in that open fashion, creating a deposition, am I permitted under the statute to waive my right to a committal and go to a trial.

NETTLE J:   The co‑accused, for example, if there were one, could insist on that officer being called at the committal.

MR GLEESON:   If you are a single accused, you may be able to waive.  If they are co‑accused, exactly as your Honour has said, and so in that example, because of the balance of fairness between the two co‑accused, the other co‑accused says, I am entitled to insist on my committal rights, I want the prosecution to call those people, non‑leading questions, and then I ask certain questions.  So, it is possible, through that process, there might be the creation of material, depending on the circumstance.  We say nothing to undercut that. 

What we are saying here is in a process which is either summary or is indictable but proceeding in a similar fashion to this, namely, where the prosecution has said I can prove your guilt through witnesses a, b and c in the brief, and I do not include Captain Lomas in that proof, and I search your guilt beyond reasonable doubt and the matter is then simply going to a trial on that question in that context ‑ and we do not think this has been controverted and Justice Bromwich has accepted this ‑ there is no process for the prosecution to go to the judge and say, I am not sure whether I want to add Captain Lomas to my brief, he might be helpful to me, he might hurt me, would you order a deposition of Captain Lomas for the purpose of my potentially improving my brief, which, when one thinks of it, is a rather different purpose to the committal which is the purpose of fairness to the accused of establishing is there a sufficient brief to go to a hearing.

EDELMAN J:   It is also a different purpose from a coronial inquest.

MR GLEESON:   Yes.

NETTLE J:   Why is it that you – what is the point of principle that allows you to accept the committal hearing but you will not accept the coronial inquest when they are both administrative hearings, neither of them are part of the judicial proceedings, what is the essential difference?

MR GLEESON:   The committal hearing is administrative in character ‑ ‑ ‑

NETTLE J:   Historically.

MR GLEESON:   Historically so, and is designed to serve a number of purposes, one of which is to test the sufficiency of the material to go to a trial and, as such, is the administrative component closely related to the criminal trial and part of the overall accusatorial system of criminal justice viewed in the broader sense.  Some of the cases the courts have said the overall system of criminal justice is accusatorial and that starts before charge; that starts the moment a person is suspected.  So, within that entire system of criminal justice where the final element is judicial, the committal plays its administrative role and can have that relationship to the judicial part of the trial. 

In the present case, the coronial inquest has no relationship of a historical character with the criminal trial and because it is accepted there is no clear statement, there is nothing in the coronial Act to say subpoenas may be issued even when the effect of the subpoena will be to examine under oath people who are central witnesses for an accused who is under charge and that is the sort of language that would be necessary under the clear statement rule.

BELL J:   It does deal with it to the extent of the particular provisions relating to indictable offences under section 59, I think it is.

MR GLEESON:   It deals with it in the traditional fashion, saying if the coroner forms the view an indictable offence is likely, then there is a mandatory duty to stop the entire coronial inquest.

BELL J:   Yes.

MR GLEESON:   So it deals with that.  What it otherwise says is, here is a general subpoena power and what it never says is which is – all this about whether the clear intent rule is attracted or not.  If it is not attracted, we lose, but if it is attracted there is nothing in section 43 to say you may exercise the subpoena power, even when it is over a person who is central to the defence of a person who is actually under charge, and that is the issue we are grappling with.  So your Honours, that is 87, which we say is the third strand.

The fourth strand is the aspect of imbalance between the two co‑accused and in paragraph 189 the first sentence refers back to practical reality and to Strickland at paragraphs [77] to [81], and your Honours might cross refer back to paragraphs 175 to 176 where those paragraphs of Strickland  are being referred to and the practical reality test has been stated.

In the first sentence of paragraph 189 ‑ and this is a summary paragraph, it does not undermine anything that went before – there is a reference back to the reasoning at 175 to 176 and then in the second paragraph there is a word – this is because of section 87(1)(b). In the light of the way I have analysed it, the court really is saying this is principally because or this is insubstantial part because; it is not saying this is only because, because that would undermine the earlier reasoning.

Your Honours, I am conscious of the time.  I have not addressed you on the aspect of ground 1 which is, as a pure matter of construction of the Evidence Act ‑ ‑ ‑

KIEFEL CJ:   Well, before you talk about shortening yourself, it would seem pretty obvious that this matter will require some further time on another date.  Perhaps I can get an estimate from the Solicitor‑General about – I think we are probably looking at a sittings in advance.

MR DONAGHUE:   Yes.  If I am going to deal with the notice of contention orally, I would anticipate that that might well take me in the region of 45 minutes to an hour, plus replying, so I could be a little over an hour.

KIEFEL CJ:   Is your preference to put some written submissions on, or would you ‑ ‑ ‑

MR DONAGHUE:   Well, your Honour, my preference would be, in all the circumstances, to resume the oral hearing at a future date, if that is convenient to the Court.  If it would assist the Court for us to file some written submissions on the notice of contention before that hearing, I am very happy to do that.

KIEFEL CJ:   I think that would be of assistance.  Perhaps seven days before?

MR DONAGHUE:   Yes.  If the Court pleases.

KIEFEL CJ:   What would the estimate of time – you would say you would need 45 minutes?

MR DONAGHUE:   I think 45 minutes to an hour on the notice of contention.

KIEFEL CJ:   Then in reply?

MR DONAGHUE:   And 15 or 20 minutes on reply, something like that.

KIEFEL CJ:   Yes.  Mr Gleeson, how much longer do you think you would take if you dealt with your submissions fully?

MR GLEESON:   About 45 minutes, your Honour.

KIEFEL CJ:   Very well.  In the circumstances, the matter is adjourned to a date to be fixed, and the Senior Registrar will be in contact with the parties.  The Court will now adjourn until 9.45 am tomorrow.

AT 4.15 PM THE MATTER WAS ADJOURNED