Posted on January 10, 2020 by Anna Sinclair

The 5 common mistakes made in investigations

Conducting a successful investigation is a complex and difficult task, and investigators need to have a firm grasp on the best techniques to ensure that they gather strong and admissible evidence for future enforcement action.

In this blog we look at 5 common mistakes made in investigations and how they can be avoided.

1. Officers acting without the necessary delegations or authorisations

Council officers must have the necessary delegations or authorisations before they enter or search any premises, or take any enforcement action. Under the Environmental Planning and Assessment Act 1979 (EPA Act) and the Protection of the Environment Operations Act 1997 (POEO Act) only officers appointed as investigation officers or authorised officers (respectively) can exercise the powers of entry and search under those Acts. Prosecution proceedings can generally only be commenced by the General Manager or officers acting under delegation from the council.

If an officer acts without holding necessary power by authorisation or delegation, then that act could be challenged on the ground that it was undertaken without power and therefore unlawful. This may arise inadvertently where an instrument of authority that has an expiry date expires.

This can have significant consequences for any future enforcement action that the council takes. For example, evidence collected by an officer that did not have authority to collect the evidence may be inadmissible. A more severe case may be if prosecution proceedings are commenced by an officer who does not have the appropriate delegation to do so, the commencement of proceedings may be found to be unauthorised and struck out.

2. Failing to collect the best evidence at the time of the incident

It is best to collect evidence at the time of an incident, or soon after, particularly where environmental harm has been caused. Often investigators have a very small window to collect evidence that may not be present for a range of reasons after an initial inspection.

Investigation and authorised officers are given broad powers under the EPA Act and the POEO Act to enter and search premises, such as examine works, take and remove samples, take photographs and videos, require records to be inspected, copy records, and seize any item that the officer has reasonable grounds for believing is connected with the offence.

Officers should be prepared to fully exercise these powers during their investigation. A smart phone is one of the best and most convenient investigation tools that can be used to document the site and incident, and also record any witness interviews. Other items in an investigator’s ‘tool-kit’ should include their instrument of authority (to ensure they can enter a property), a formal note book and sample bottles.

Officers should document the full nature and extent of the incident. For a water pollution incident this should include photographs or video from the source and along the path of the water pollution. Photographs should also be taken upstream of the source to rule out any other causes of the pollution.

All eye witnesses (or at least the key witnesses) should be spoken to, and obtain their identities confirmed using a drivers licence or some other form of identity card with a photo. This will ensure that these persons can be interviewed later, or called to give evidence if necessary, which may be crucial to the council’s case.

3. Failing to make detailed notes of an investigation

Officers should ensure that they take detailed contemporaneous notes of their observations, when the observations are fresh in the mind. Contemporaneous notes should not be changed without a compelling reason, or this may raise concerns with the accuracy of the notes.

Contemporaneous notes can be crucial evidence, particularly if there is a dispute over what was said during a discussion or questioning. If an interview or questioning cannot be recorded electronically, then it is important to record the conversation and then have the person review and sign each page, confirming the correctness of the record. This will make it difficult for the person to change their story later, and the process will assist in making the record of interview admissible.

Finally, if the matter goes to trial, an officer’s observations are less likely to be successfully challenged under cross-examination if they are supported by contemporaneous notes.

4. Failing to caution or warn a witness

Individuals have a right to silence and the privilege against self-incrimination (unless they have been directed or compelled under the EPA Act or the POEO Act to answer questions).

If during questioning an investigation officer forms a belief that there is sufficient evidence to establish that the person has committed an offence, then they must caution the person. If they do not, then any evidence obtained from that point on may be held to have been “improperly obtained” (s139 of the Evidence Act 1995).

It has also been held that evidence may be improperly obtained where an employee (who is not a suspect) is making admissions against their employer and they have not been cautioned (see Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137).

Such evidence may not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting it (s139).

Where a person is being compelled to answer questions the appropriate warning under s212(1) of the POEO Act or s9.31(1) of the EPA Act must be given, or else the evidence is not admissible in criminal proceedings against the person.

Officers must keep these matters in mind during the questioning of any individuals to ensure that their questioning is fair and proper, and that any admissions an individual makes are admissible in any future proceedings.

5. Taking enforcement action against the wrong person

Enforcement action is taken against the individual or company who has carried out works or undertaken an activity contrary to the law. Often many people are involved in a development but not all of those will be liable for an offence or contravention of the EPA Act or the POEO Act.

Officers often issue penalty notices in respect of development sites where unauthorised development has taken place, or where water pollution is occurring.

Officers often rely on site signage to determine who is the responsible party, and who the penalty notice should be issued to. However, this should only be a starting point as it may not include the correct or complete company or business name.

Council’s records, including any consent or construction certificate should also be reviewed to confirm the person or entity identified as responsible for carrying out the works. Searches of the ABN and/or ASIC registers should also be carried out to ensure that the correct company name is used and that the company has not been deregistered.

If a penalty notice is issued to the wrong person, then the council will not be able to enforce the notice if the person does not pay it. If the person court elects the notice, the court attendance notice (which is usually generated automatically) will be issued to the same incorrectly named person.

Once proceedings have commenced, while the council can seek to have the defendant’s name amended, if the defendant does not consent, the council will have to argue this point and persuade the court to make the amendment. Alternatively, the council can withdraw the proceedings and recommence against the correct company or individual, unless the proceedings are statute-barred.

Either scenario will cause additional legal costs and inconvenience for the council, so it is best to ensure that the penalty notice and court attendance notice are issued to the correct person in the first instance.

LTL Investigation Fundamentals Workshops

LTL runs an Investigation Fundamentals Workshop for organisations, which trains their investigators in the collection of evidence, interviewing witnesses, preparing briefs of evidence and giving evidence in court. The workshop is practical and hands-on to give investigators a strong grounding in proper investigation techniques to ensure that they avoid the above mistakes, and have the sufficient knowledge to undertake robust and successful investigations.

Please contact Carlo Zoppo, Partner, on 8235 9705 or at carlo.zoppo@lindsaytaylorlawyers.com.au if you wish to discuss this blog, or if you are interested in our workshop for your organisation.