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.