Compulsion of Employee Evidence That May Incriminate Corporate Employers: The High Court Deliberates

In Short

The Situation: A recent decision of the Full Court of the Federal Court of Australia has significant implications for prosecuting authorities, including corporate regulators. The decision affects the circumstances in which an individual may be compelled to give evidence in inquisitorial or civil proceedings in respect of matters which are also relevant to concurrent criminal proceedings on foot against the individual's employer.

The Result: The Full Court held that a subpoena requiring an individual to give evidence at a coronial inquest about matters that were also relevant to a pending criminal prosecution of his employer should be stayed so as to not fundamentally alter the position of the accused in the criminal trial. By virtue of section 87(1)(b) of the Evidence Act 2011 (ACT) the employee's evidence would be admissible not merely as a witness of fact, but as evidence of an admission by the employer itself.

Looking Ahead: The Full Court's decision is significant due to its implications for regulatory bodies including ASIC, APRA, the ACCC and the Australian Crime Commission. In particular it impacts the timing and appropriate staging of any criminal proceedings where there are also, or likely to be, inquisitorial or civil proceedings (including class actions) conducted at the same time touching on the same subject matter. Given the potential impact of the decision on the efficient and fair conduct of such proceedings, the High Court of Australia has granted special leave to appeal the decision of the Full Court. 

The Facts

The decision of Helicopter Resources Pty Ltd v Commonwealth of Australia [2019] FCAFC 25, concerned the conduct of a coronial inquest into the death of a helicopter pilot who, whilst working in the Australian Antarctic Territory, fell into a hidden ice crevasse. The pilot's employer, Helicopter Resources Pty Ltd ("HeliRes"), was subsequently charged with criminal offences under Commonwealth work health and safety legislation for failing to ensure the safety of workers. Similar charges were also laid against the Australian Antarctic Division of the Commonwealth Department of Environment and Energy ("Commonwealth") which had engaged HeliRes to provide helicopter support services in the Antarctic.

The chief pilot of HeliRes, Captain Lomas, was subpoenaed by the coroner at the request of the Commonwealth to attend the inquest for questioning. One of the topics proposed for cross-examination was the adequacy of risk mitigation measures taken by HeliRes. That topic was also significant to the criminal hearing. HeliRes sought an adjournment of the inquest until the criminal trial had been concluded on the basis that HeliRes was likely to be disadvantaged by the cross-examination of its chief pilot, and that the Commonwealth would likely obtain an advantage as a co-accused by its cross-examination of Captain Lomas. The coroner refused the adjournment application.

HeliRes subsequently sought judicial review of the coroner's decision and obtained interim injunctive relief, restraining the Coroner's Court from requiring Captain Lomas to answer any question in the inquest pending the determination of the judicial review application. The judicial review application was dismissed at first instance, but that decision was overturned unanimously on appeal by the Full Court (Rares, McKerracher and Robertson JJ).

The Decision

The key issue for determination on appeal was whether the compulsion of evidence from Captain Lomas at the inquest would interfere with the due administration of criminal justice amounting to contempt of court or otherwise an impermissible interference with the criminal proceedings.

The Full Court observed that Australia's system of criminal justice is accusatorial for all accused parties, whether they be natural persons or corporations. It is fundamental to that system that the prosecution bears the onus of proving the guilt of an accused. The accused has a common law right to decide how to meet the prosecution case and the prosecution and any co-accused are not entitled to know how the accused will defend the charge.

The court held that the coroner's use of compulsory powers to require Captain Lomas to give evidence at the inquest would reveal matters about whether he would, or may, give evidence for HeliRes at the criminal trial and, possibly, what that evidence might be. Evidence given by Captain Lomas at the inquest (within the scope of his employment at the time) would be admissible in the criminal trial as evidence of a witness of fact but could also be tendered against HeliRes as an admission pursuant to relevant provisions of the Evidence Act. Potentially this could force HeliRes to disclose its hand prematurely as regards its criminal defence and would alter HeliRes' position as an accused in fundamental ways.

The court held that the coroner incorrectly found that HeliRes had failed to identify how it was disadvantaged by the continuation of the inquest. The primary judge was held to have erred in his conclusion that requiring Captain Lomas to give evidence before the completion of the criminal trial did not amount to interference with the course of justice. The court also held, contrary to the primary judge, that the judicial review application was not premature.

The appeal was allowed and the operation of the subpoena stayed until the finalisation of the criminal prosecution of HeliRes.

Appeal to the High Court

In October 2019, the High Court heard oral argument in respect of the appeal.

The Commonwealth's grounds of appeal raise three questions for determination:

  1. Whether the effect of the relevant provision of the Evidence Act, properly construed, is that an employee's evidence is simply admissible against the employer (as distinct from having the effect that an employee's evidence becomes evidence of the employer itself as held by the Full Court).
  2. Whether the accusatorial principle applies to a corporate accused in the same manner that it applies to a natural person. Specifically, whether it prevents an employee from being compelled to give evidence that incriminates the corporate accused.
  3. Whether HeliRes' application was premature because, at the time it was brought, any risk of interference in the criminal proceeding was notional rather than real. 

The High Court has reserved its decision.

Four Key Takeaways

  1. An individual cannot be compelled to give evidence in inquisitorial or civil proceedings in respect of matters which are also relevant to the determination of concurrent criminal proceedings that are on foot against the individual's employer as such evidence may be tendered against the accused as an admission in the criminal trial pursuant to relevant provisions of the Evidence Act
  2. According to the Full Court, compelling the attendance of such a witness in inquisitorial or civil proceedings would interfere with the course of justice as it would alter in fundamental ways the position of the accused who is entitled to decide how to meet any prosecution case.
  3. The above principle applies equally to natural persons and corporations and is to be distinguished from the proposition that a corporation cannot claim the privilege against self-incrimination in response to a compulsory notice requiring the production of documents, as held by the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477.
  4. Given the potential significance of this issue to the efficient and fair conduct of concurrent inquisitorial/civil and criminal proceedings, including regulatory proceedings, the High Court will provide the final word in due course.

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