Commonwealth of Australia v Helicopter Resources Pty Ltd

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Kiefel CJ,Bell,Gageler,Keane,Nettle,Gordon JJ.,Edelman J.
• Judgment Date: 24 April 2020
• Neutral Citation: [2020] HCA 16
• Docket Number: S217/2019
• Date: 24 April 2020

[2020] HCA 16

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon And Edelman JJ

S217/2019

Commonwealth of Australia

Appellant

and

Helicopter Resources Pty Ltd & Ors

Respondents

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth, with T M Begbie and J D Watson for the appellant (instructed by Australian Government Solicitor)

J T Gleeson SC with T J Brennan and K I H Lindeman for the first respondent (instructed by Norton White)

Submitting appearances for the second and third respondents

Coroners Act 1997 (ACT), ss 36, 43, 58(6).

Evidence Act 2011 (ACT), s 87(1)(b).

Criminal practice — Accusatorial system of criminal justice — Companion rule — Where subpoena issued for employee to attend to give evidence at coronial inquest into manner and cause of another employee's death — Where employer and Commonwealth of Australia prosecuted for alleged failures to comply with duty to ensure worker health and safety — Where s 87(1)(b) of Evidence Act 2011 (ACT) relevantly entailed that representation by employee of party relating to matter within scope of employment taken as admission by that party — Whether invocation of investigative power to compel employee to give evidence about matter with respect to which employer stands charged amounts to compelling employer to give evidence contrary to rule that accused not required to assist Crown in proving its case.

High Court — Appellate jurisdiction — Practice — Extension of time — Where first respondent sought leave to file notice of contention out of time alleging that compulsion of its employee to give evidence at coronial inquest would constitute contempt of court in parallel criminal proceedings by creating real risk of interference with justice according to law — Where criminal proceedings concluded and first respondent acquitted of offences — Whether extension of time should be granted to resolve question of whether compulsory examination of potential witness other than accused can amount to contempt of court.

Words and phrases — “accusatorial system of criminal justice”, “admissions made with authority”, “attribution”, “companion rule”, “compulsory investigative powers”, “compulsory pre-trial examination”, “contempt of court”, “coronial inquest”, “extension of time”, “hypothetical circumstances”, “practical reality”, “real risk of improper interference with criminal proceedings”.

ORDER

• 1. The first respondent's application for leave to file a notice of contention is refused.

• 2. Appeal allowed.

• 3. Set aside orders 1 and 2(a) of the orders of the Full Court of the Federal Court of Australia made on 15 February 2019 and, in their place, order that the appeal to the Full Court be dismissed.

• 4. The appellant pay the first respondent's reasonable costs on a solicitor/client basis.

1 Kiefel CJ, Bell, Gageler, Keane, Nettle And Gordon JJ. This is an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the operation of s 87(1)(b) of the Evidence Act 2011 (ACT) 1. That provision relevantly entails that a representation by an employee of a party may be taken as an admission by the party if the representation relates to a matter within the scope of the employee's employment.

2 The principal question is whether the provision has the effect that invocation of an investigative power to compel an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence amounts to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case. For the reasons which follow, it does not. Thus, it is unnecessary to address the appellant's other appeal grounds.

Section 87(1)(b) of the Evidence Act

3 Section 87 of the Evidence Act provides as follows:

“Admissions made with authority

• (1) For the purpose of deciding whether a previous representation made by a person is also taken to be an admission by a party, the court must admit the representation if it is reasonably open to find that –

  • (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter in relation to which the representation was made; or

  • (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or

  • (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or 1 or more people including the party.

• (2) For this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove –

  • (a) that the person had authority to make statements on behalf of someone else in relation to a matter; or

  • (b) that the person was an employee of someone else or had authority otherwise to act for someone else; or

  • (c) the scope of the person's employment or authority.” (emphasis added)

The facts

4 The appellant (“the Commonwealth”) engaged the first respondent (“Helicopter Resources”) to provide helicopter services to the Commonwealth in connection with Commonwealth operations in the Australian Antarctic Territory. On 11 January 2016, Captain David Wood, a pilot employed by Helicopter Resources to provide some of those services, landed his helicopter at a point on the West Ice Shelf where, unbeknownst to him, a crevasse lay hidden by snow. After undertaking work on the ground, Captain Wood fell into the crevasse while attempting to reboard the helicopter and remained there for some hours. He died the following day from hypothermia.

5 By virtue of s 6 of the Australian Antarctic Territory Act 1954 (Cth), applicable laws of the Australian Capital Territory including the Coroners Act 1997 (ACT) apply in the Australian Antarctic Territory. Pursuant to the Coroners Act, on 19 September 2017 the Chief Coroner of the Australian Capital Territory commenced an inquest into the manner and cause of Captain Wood's death. The evidence before the Coroner included a statement by Helicopter Resources' Chief Pilot, Captain David Lomas, that was prepared for the purpose of the inquest.

6 By virtue of s 11 of the Work Health and Safety Act 2011 (Cth) (“the WHS Act”), the WHS Act extends to every external Territory, including the Australian Antarctic Territory 2. Under s 10 of the WHS Act, the Commonwealth is relevantly

bound by, and may be liable for an offence against, the WHS Act. By information and summons laid on behalf of Comcare, the work health and safety regulator, in the Magistrates Court of the Australian Capital Territory on 20 December 2017, the Commonwealth (acting through the Department of the Environment and Energy) and Helicopter Resources were each charged as co-accused with three summary criminal offences against s 32 of the WHS Act

7 The charges were apparently prosecuted by the Commonwealth Director of Public Prosecutions on instructions from Comcare. They alleged that failures to comply with the duty to ensure worker health and safety 3 in three separate incidents had exposed workers to risks of serious injury or death. The second and third charges alleged breaches in relation to Captain Wood and another employee. The third charge arose directly out of the circumstances giving rise to Captain Wood's death.

8 As the Commonwealth and Helicopter Resources had different safety responsibilities in the Australian Antarctic Territory, they were likely to take different positions in both the coronial inquest and the criminal proceedings. By letter to the Coroner dated 31 January 2018, the Commonwealth requested that Captain Lomas be made available for cross-examination at the coronial inquest, on topics including Helicopter Resources' relationship with the Commonwealth in relation to responsibilities for risk identification and management.

9 Helicopter Resources applied to have the inquest adjourned, pursuant to s 36 or s 58(6) of the Coroners Act, pending the determination of the criminal proceedings. The Coroner refused that application and issued a subpoena for Captain Lomas to attend to give evidence pursuant to s 43 of the Coroners Act. Helicopter Resources then sought, but the Coroner refused, a direction that the examination of Captain Lomas not extend to matters arising in the criminal proceedings.

10 It is not in dispute that the matters on which it was proposed to cross-examine Captain Lomas at the coronial inquest were matters within the scope of his employment or authority within the meaning of s 87(1)(b) of the Evidence Act.

Proceedings at first instance

11 Helicopter Resources applied to the Federal Court for judicial review of the Coroner's decision to issue the subpoena. The basis of the application was that to compel Captain Lomas to give evidence at the coronial inquest on the proposed topics would prejudice Helicopter Resources in the criminal proceedings, and undermine the accusatorial nature of the criminal process, in two ways: first, by giving the Commonwealth, as co-accused, the forensic advantage of exploring the evidence that Captain Lomas might give if called in the criminal proceedings, which advantage would not be available under the ordinary rules of criminal procedure; and, secondly, by arming the prosecution with evidence and admissions, attributable to Helicopter Resources pursuant to s 87(1)(b) of the Evidence Act, which could be tendered in the criminal proceedings.

12 On 29 June 2018, the primary judge (Bromwich J) dismissed the application. His Honour reasoned 4 that, although the accusatorial nature of criminal proceedings prevents the rights and privileges of an accused from being overridden without clear...