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 (Judges 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:
- 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).
- 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.
- 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.