Australian High Court: Compulsory Examination of Employee not Tantamount to Compulsion of Corporate Accused

The Situation: In 2016, a helicopter pilot died after he fell into a hidden ice crevasse in Antarctica. At the Coronial inquest, the coroner issued a subpoena requiring the chief pilot of the helicopter company to give evidence. In 2019, the Full Court of the Federal Court of Australia held that the chief pilot could not be compelled to give evidence at the inquest in respect of matters that were relevant to concurrent criminal proceedings against the company relating to the workplace death. As relevant rules of evidence would permit the employee's evidence concerning matters within the scope of his employment to be taken as admissions by the company in the prosecution, the Full Court concluded this would offend the rule that an accused cannot be required to assist the Crown in proving its case. The decision was the subject of an appeal to the High Court of Australia.

The Result: A unanimous full bench of the High Court overturned the decision of the Full Court. The High Court ruled that the fact an employee can be compelled to give evidence that may be treated as an admission in criminal proceedings against his or her employer does not involve, in effect, any compulsion of the employer to give evidence or otherwise to assist the Crown in proof of its case.

Looking Ahead: The High Court's decision is of significance to regulated entities, regulators, and law enforcement bodies. The decision clarifies that concurrent criminal proceedings against a corporate accused will not bar the exercise of investigative powers of a regulator or coroner to compel an employee of the accused to give evidence in other proceedings or investigations, including evidence which relates to matters relevant to the criminal charges against the employer.

The Decision

Our previous Commentary, "Compulsion of Employee Evidence That May Incriminate Corporate Employers: The High Court Deliberates," detailed the facts of the case and the Full Federal Court decision.  In summary, a Coronial inquest was undertaken 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. Similar charges were laid against the Commonwealth Department of Environment and Energy ("the Commonwealth"). The chief pilot of HeliRes was subpoenaed by the coroner at the request of the Commonwealth to attend the inquest for questioning in relation to matters which were also relevant to the criminal proceedings. 

The Full Court held that it is central to Australia's system of criminal justice that the prosecution bears the onus of proving the guilt of an accused. The accused also 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. By compelling the chief pilot to give evidence in the Coronial proceedings (on matters within the scope of his employment), that evidence could subsequently be tendered against HeliRes as admissions against the company in the criminal trial pursuant to provisions of Australia's Uniform Evidence Law, which would alter HeliRes' position in the criminal proceedings in a fundamental way. 

The High Court Overrules

In Commonwealth of Australia v Helicopter Resources Pty Ltd [2002] HCA 16, the High Court held that the compulsory pre-trial examination of an employee in circumstances where s 87(1)(b) of the Uniform Evidence Law has the effect that representations by the employee may be taken as admissions by a corporate accused in criminal proceedings, does not engage the general rule that an accused cannot be required to assist the Crown with its case. The compulsion of such a potential witness to answer questions does not involve any compulsion of the accused to give evidence or to otherwise assist the Crown with its case.

The majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) and Edelman J in a separate judgment, affirmed that the effect of s 87(1)(b) is that a previous representation made by an employee relating to a matter within the scope of his or her employment and adverse to the interest of the employer in the outcome of the proceeding may be tendered as an admission by the employer. Contrary to the reasons of the Full Court, the provision did not have the effect of compelling the accused to give evidence nor did it have the effect of compelling HeliRes to assist in the discharge of the prosecution's onus of proof. The provision does not require an employer to make an employee available to give evidence or to authorise the employee to make admissions on the employer's behalf. 

The consequences of an employee giving evidence are ordained by s 87(1)(b) on the basis of the nature of the relationship between the employee and employer that was created voluntarily by the employer. The majority held that there is nothing fundamental to the accusatorial system of justice that allows an accused employer to prevent statements of an employee from being used as evidence against the employer. An accused has no property in a witness or potential witness, even where that individual might be identified as the guiding mind of the accused.

The majority affirmed that where a compulsory investigative procedure is sufficiently authorised by statute it may be invoked notwithstanding that, as a matter of practical reality, the result will alter fundamentally the ability of an accused to defend criminal charges against the accused.

HeliRes also sought to advance a new argument before the Court (for which an extension of time was required) to the effect that compelling the evidence of its chief pilot at the Coronial inquest would constitute such a risk of interference with justice in the criminal proceedings as to amount to a contempt of court. The Court refused to grant an extension of time to HeliRes because the criminal proceedings involving HeliRes had concluded (with the company being acquitted) and therefore HeliRes would suffer no prejudice if the question of contempt remained undetermined. Further, any question of contempt turns on specific questions of fact and circumstance and, as such, a determination on this occasion would provide little guidance for future cases and could even generate a "perception of certainty" in this area of the law that the High Court considered unwarranted.

Four Key Takeaways 

  1. The decision is a timely reminder that representations made by employees either voluntarily or in compulsory examinations relating to matters within the scope of their employment can be tendered as admissions against the company in any subsequent criminal prosecution against the company.
  2. Ordinarily, a stay will not be granted nor a subpoena or other compulsory notice set aside to prevent an employee from being examined on the basis that such compulsory examination would interfere with the employer's fundamental rights as an accused party in related and concurrent criminal proceedings. It is clear from the High Court's decision that, so long as the compulsion of such a potential witness to answer questions is sufficiently authorised by statute, such interrogation does not involve any compulsion of the accused to give evidence or to otherwise assist the Crown with its case.
  3. The decision underscores the importance of employers conducting their own thorough investigations in relation to matters the subject of regulatory or coronial investigation or proceedings so as to ensure they are forewarned and forearmed in relation to the evidence that employees may give. 
  4. In appropriate cases, employers should consider taking steps to ensure that their employees have access to sound legal advice and representation, even in the absence of any contractual right on the part of the employee to be indemnified by the employer for the cost of independent legal advice. 
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