Posted on June 27, 2018 by Katie Mortimer and Carlo Zoppo

Enforcing the EPA Act – Information obtained under objection may be used for an investigative purpose

The Land and Environment Court (Court) has recently provided guidance on when evidence, compulsorily obtained under objection against self-incrimination, may then be further used to investigate and later prosecute breaches of the Environmental Planning and Assessment Act 1979 (Act).

Ku-ring-gai Council (Prosecutor) commenced criminal proceedings in September 2016 against John David Chia (Defendant).

The Prosecutor alleged that the Defendant had committed an offence under s125(1) of the Act, by allegedly lopping approximately 74 trees in October 2014 in breach of the Ku-ring-gai Council Tree Preservation Order.

Investigation and collection of evidence 

The Prosecutor interviewed the Defendant on 5 February 2015 (Interview). Before answering any questions the Defendant objected to the interview on the grounds that his answers may incriminate him.

The Prosecutor subsequently interviewed Mr Edgar, Mr Draeger and Mr McKenzie.

It was agreed that the Prosecutor had regard to information obtained in the Interview when interviewing Mr Edgar, and it was alleged that information from the Interview was used when the Prosecutor interviewed Mr Draeger and Mr McKenzie.

The Prosecutor proposed to call Mr Edgar, Mr Draeger and Mr McKenzie as material witnesses in the proceedings (Evidence).

Power to obtain information under the Act 

The Act allows for authorised persons to require a person to attend at a specified place and time to answer questions. The questions and answers may be recorded if the person who is to be questioned is informed that the record is to be made (see current s9.22 – 9.24 of the Act).

At the time of the Interview, s118BA empowered the Prosecutor to conduct the Interview. When doing so, the Prosecutor was required to abide by s122U of the Act (now s9.31).

Section 122U(3) and (5) relevantly stated:

‘(3)   Information or answer not admissible if objection made

However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:

(a)   the person objected at the time to doing so on the ground that it might incriminate the person, or

(b)   the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.

(5)   Further information

Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground:

(a)   that the record or information had to be furnished or the answer had to be given, or

(b)   that the record or information furnished or answer given might incriminate the person.’

Defendant’s application to exclude the evidence of Mr Edgar, Mr Draeger and Mr McKenzie

The Defendant sought to exclude the Evidence pursuant to s138 of the Evidence Act 1995. Alternatively, the Defendant submitted that the Court should refuse to admit the Evidence, as it constituted an abuse of process.

The Defendant submitted that the testimony of an accused person obtained compulsorily is not admissible at trial, unless expressly authorised in clear words by statute. Section 122U of the Act did not authorise the use of the Interview, and the Prosecutor ‘impermissibly divulged aspects of the Defendant’s defence such that if their testimony (being the Evidence) were admitted he would be denied a fair trial‘.

The Court’s findings 

The Companion Rule 

It is a fundamental common law principle that the onus in criminal proceedings to prove guilt beyond reasonable doubt rests on the prosecution. In its findings, the Court considered the ‘companion rule‘, which holds that a Defendant ‘cannot be obliged to participate in the prosecution’s attempt to discharge the onus‘.

The Court recognised that the companion rule is only relevant to the extent it is maintained by statute. It may be overturned by express words or the necessary intent of the legislature (known as the principle of legality).

The Court and parties both agreed that the principle of legality applied to the case, and the necessary question was to what extent the Act and s122U(5) displaced the companion rule.

Does the Act displace the Companion Rule? 

The Court determined that the Act was manifestly clear in departing from the position of the common law ‘companion rule’.

Section 122U(3) was clear that a defendant’s compulsory interview taken under objection is inadmissible in a criminal trial. However, s122U(5) operates to make any further information gathered as a result of receiving that information, not inadmissible. This strikes a balance between the interests of a person accused of an offence and the public and it was not for the Court to ‘cavil with the balance’ the legislature had struck in the Act.

The legislature clearly contemplated no division between investigative and prosecuting bodies for offences under s125 of the Act, as that would preclude the Department of Planning and Environment or a Council, from disseminating information to itself.

Any other construction of s122 would require a Council to adopt a ‘hybrid personality‘ and lead to ‘intolerable ambiguity‘ in the Act’s operation. The Court determined that this could not have been intended and was not reasonably open on the language of s122.

Accordingly, the Prosecutor was entitled to use information obtained from the Interview to gather further evidence in respect of a suspected contravention of s125 of the Act. There were no grounds to prevent the Evidence under s138 of the Evidence Act 1995 as neither s138(1)(a) or (b) were engaged.

Court’s inherent power to exclude evidence

Robson J opined that the Court’s inherent powers to exclude evidence when dealing with legislation similar to this case, would only be made where, ‘it was clear that a failure to make such an order would deprive the defendant of the right to a fair trial.’ The Court did not consider this to be such a case and therefore dismissed the Defendant’s application.

Read the case in full here: Ku-ring-gai Council v John David Chia (No 4) [2018] NSWLEC 75.

To discuss this blog, please contact Carlo Zoppo, Partner on 8235 9705 or Katie Mortimer on 8235 9716.

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