Posted on November 26, 2019 by Katie Mortimer 4

Court finds a voluntary interview is ‘required questioning’

The Land and Environment Court recently ruled that a voluntary interview between a Council officer and an individual was properly characterised as ‘required questioning’. As the individual’s answers were required, he should have been warned that he may object to answering the questions on the grounds that his answers may incriminate him.

The individual had been warned that he was not required to answer any questions, as it was understood that the interview was voluntary. Because the Court found that the wrong caution was given, it ruled that the interview inadmissible.

The Court’s judgment includes some concerning comments that investigators should be mindful of when they are not exercising coercive powers. We briefly explore those comments in this post.

Gathering Information in Investigations

When conducting an investigation, our experience is that investigators generally rely on voluntary means to collect evidence before using coercive evidence gathering powers.

When information is offered voluntarily, the Evidence Act 1995 contains protections to ensure that investigators do not infringe on an individual’s right to silence, or the privilege against self-incrimination.

When investigators require a natural person (meaning an individual – rather than a company) to provide information, the relevant legislation (in this case the Environmental Planning and Assessment Act 1979 (EPA Act)) protects those fundamental rights by allowing a person to object to furnishing information or giving an answer on the ground that it might incriminate the person.

If that objection is made, the individual must provide the information, however the information will not be admissible in evidence against that person in criminal proceedings. In addition, if the person is not warned that they may take that objection, any information they provide will not be admissible in proceedings against them.

Facts considered by the Court 

In this case, a Council was investigating breaches of the EPA Act. The Defendant proposed that a meeting occur with Council. A Council investigation officer agreed, and suggested that the meeting take the form of a recorded interview. The Defendant consented.

On the day of the interview, before it commenced, the Council investigation officer gave the Defendant the caution contained in s139 of the Evidence Act 1995 for a voluntary interview and stated:

‘you don’t have to say or do anything here today but anything you do say or do can be recorded and may be used in evidence against you’

The Defendant responded, ‘Yes, rightio‘.

At the conclusion of the interview the Council officer asked: ‘Have the answers you have given been of your own free will?’  The Defendant confirmed that they had.

Admissibility of the Record of Interview 

Council later commenced class 5 proceedings against the Defendant.

In those proceedings, the Defendant challenged the admissibility of the record of interview. The Defendant alleged that it was a form of required questioning pursuant to s9.23 of the EPA Act (then s119K), and that to be admissible, Council had been required to warn the Defendant that he could object to answering questions on the grounds that his answers may incriminate him.

Surprisingly, although Pepper J found that the Defendant:

• was not a passive participant in the interview only answering questions put to him, and he did most of the talking including asking questions of the Council officers present,
• was willing and enthusiastic in his responses, on several occasions actively and forcefully seeking to disclose information not requested by the Council, and at times, argumentative and perhaps threatening,
• understood the warning that he was not obliged to answer questions, and in fact refused to disclose information to Council,

Her Honour concluded that the interview was ‘required questioning’ pursuant to s9.23 of the EPA Act. Without the appropriate caution any answers given by the Defendant were not admissible in the proceedings.

Factors indicating that the interview was ‘required’ 

Pepper J found the following facts persuasive in determining that the interview was required:

• the Defendant suggested the meeting after a Council investigation officer had required a use of land to cease,
• the Defendant was told that he could ‘bring‘ a representative only to observe the interview. This was an implicit direction that the representative could not take part in the interview, confirming a requirement that the Defendant answer questions,
• a s9.22 notice had been issued before the interview occurred, that required the Defendant to provide information to the Council (previously s119J). This indicated that Council was investigating the Defendant,
• formalities occurred during the interview such as the giving of the s139 Evidence Act 1995 warning, and the interview was recorded.

Key Lessons 

Worryingly, when construing the meaning of ‘require’ in the context of s9.23 of the EPA Act, Pepper J stated that:

‘provided that the request for an interview came from someone acting in their capacity as an “investigating officer” … —that is, authoritatively— [s9.23(1)] encompasses a requirement for an interview where questions must be answered that falls short of the compulsory process envisaged by [s9.23(3)] (where a formal notice in writing is issued)’.

On one view this statement suggests that on every occasion that a person authorised to exercise coercive powers asks questions during a voluntary exchange of information, that exchange could or should be characterised as ‘required’ or ‘compulsory’.

However investigators speak with individuals on a voluntary basis everyday. To suggest that all of those conversations are coercive questioning cannot be correct. Such an interpretation would render all voluntary admissions made to an investigator inadmissible and mean that only officers that are not ‘authorised’ with coercive powers could give admissible evidence about voluntary admissions.

We expect that this decision will be used against enforcement authorities to challenge the admissibility of admissions given voluntarily.

Investigators should be mindful of the Court’s findings in this case, and carefully consider the circumstances that may give rise to information being provided on a voluntary basis, in order to remove any inference that may cause a Court to find the information was ‘required’.

Read the Court’s judgment here: Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146

If you require advice on investigations, or to discuss this blog, please contact Katie Mortimer on 8235 9716 or Carlo Zoppo on 8235 9705.