Posted on February 16, 2022 by Anzer Khan and Carlo Zoppo

The use of evidence that may incriminate – Investigative powers under the POEO Act considered by the Court

In a recent decision of the NSW Land and Environment Court (Court), the Court considered how investigative powers under the Protection of the Environment Operations Act 1997 (POEO Act) can be used to gather a broad range of evidence and the admissibility of that information. In this instance, the information obtained (under compulsion and objection) related to a passcode for a mobile phone that led to further information being obtained from the phone.

Facts

The matter involved an investigation by the Environment Protection Authority (EPA) into a demolition and excavation company (Company) that provided services to developers operating in the construction industry. The EPA investigations resulted in charges laid against the Company and the director of the Company (Director) for alleged breaches under ss 144AA (supplying false or misleading information about waste) and 169A (executive liability offences) of the POEO Act respectively.

During the course of executing a search warrant, the EPA seized the Director’s mobile phone. In order to access messages on the phone the EPA issued  a notice under s 193 of the POEO Act to provide information, namely the passcode to unlock his mobile phone (Notice) to the Director. The passcode was provided in response to the Notice and the EPA was able to unlock and access messages on the phone. These messages (the further information) led to the charges being laid.

Admissibility of information obtained after objection

It was submitted on behalf of the Director that the information obtained via the text messages was inadmissible as it fell within the scope of s 212(3) of the POEO Act.

Section 212(3) of the POEO Act provides that information or answers provided by a person in compliance with a requirement under Chapter 7 of the POEO Act (including compliance with a s 193 notice) are not admissible in evidence against the person in criminal proceedings if:

  • the person objected at the time on the grounds that providing the information may incriminate the person; or
  • 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.

When responding to the Notice, the Director objected to providing the information.

Section 212(5) of the POEO Act provides that further information obtained as a result of records or information or an answer given in compliance with a requirement under Chapter 7 are not inadmissible on the basis of incrimination or on the basis that the information or answer had to be given. The Defendant submitted that the text messages were not further information or consequential discovery as it was information already held by the EPA and the passcode was the only information needed to access the messages.

The Court rejected this argument and accepted the EPA’s position that the messages were further information for the purposes of s 212(5). The information was admissible as it was not information directly required to be provided by the Notice and therefore could not be protected by privilege against self-incrimination. It was also stated that Parliament intended to restrict the common law immunity against self-incrimination in s 212(5).

The EPA cited Robson J in Ku-ring-gai Council v Chia (No 4) [2018] NSWLEC 75 (Chia (No 4)) in support of its position that Parliament could restrict or overcome a common law immunity against self-incrimination if Parliament showed clear intent or clear expression. The EPA submitted that s 212(5) was clear in its intent and identical to s 122U (now s 9.31) of the Environmental Planning and Assessment Act 1979 (the EPA Act) which was considered in Chia (No 4) where Robson J found such an intent and clear expression was expressed by Parliament in s 122U, and the application to exclude the disputed evidence was dismissed.

Section 212(4) of the POEO Act was differentiated from s 212(3) and was not applicable as a defence to self-incrimination as it related to ‘records’ . The phone (seized via a search warrant) and its electronic data (accessed after the passcode was provided) were not provided through any relevant compliance with that provision (such as a s193 notice).  Only the passcode was provided and with the benefit of that passcode the EPA could access the messages on the phone of the Director.

The take away

This case confirms the value of information obtained under compulsion and objection under the POEO and EPA Acts.  While the information obtained by compulsion following objection is not admissible against the individual that gave the information, that information can be used to further an investigation and obtain evidence that is not inadmissible following an objection.

Examples include:

  • identifying other people that may be involved in the contravention or that may have evidence of the contravention such as contractors or suppliers of products used in any offence;
  • identifying other entities that have information such as banks that may hold records of bank accounts that confirm or establish relevant transactions.

The case can be found by accessing the following link: Environment Protection Authority v Allam [2021] NSWLEC 103

If you have any questions about this blog or any matter pertaining to investigations please contact Carlo Zoppo on 8235 9705 or Anzer Khan on 8235 9717.