WCRA: ss.279 & 284 – privilege and self-incrimination

Ferrington v WorkCover Queensland [2012] QSC 354

McMeekin J considered amongst other matters the scenario of disclosure where an employer, North Goonyella Coal Mines Pty Ltd (“NGCM”) was facing prosecution under Coal Mining Safety and Health Act 1999 s 34 and disclosure was being sought for the common law claim. The applicant sought disclosure pursuant to s. 279 of Workers’ Compensation & Rehabilitation Act 2003 (“the Act”) for material related to the prosecution and in particular an expert industrial chemist’s report (Mr Miller’s Report) and  certain other statements, reports or investigations; however, the employer alleged privilege on the basis on self incrimination.

In these respects His Honour agreed to defer disclosure despite the delay to the applicant until the conclusion of the evidence in the prosecution.

McMeekin J

[18] Mr Miller’s report was obtained by the prosecution and supplied to NGCM and the SSE as part of the prosecution’s disclosure obligations. The Crown has declined to provide the report to the applicant’s solicitors.

[19] As a result of the circumstances of its disclosure to the applicant the report is plainly subject to the “implied undertaking” discussed in Hearne v Street[5] not to use witness statements so obtained otherwise than for the purpose of the proceedings in which they were prepared.

[20] That being so NGCM was not at liberty to disclose the report so obtained, except with the leave of the court or else when compelled by statute.[6]

[21] That raises the question of the obligation that is imposed by s279 of the Act on an employer insured by WorkCover. Counsel informed me that the provisions in question have not been the subject of any prior decision of the Court.

[22] It is not entirely clear as to whether the obligation to disclose imposed by s 279(1) falls onto the employer or not. While it may make little practical difference it seems to me that it is WorkCover and not the employer who comes under the primary obligation. The obligation is imposed on “the parties”, a concept that is not defined. Other sections in the Act specifically deal with the employer’s obligations as separate and distinct from the entities under the primary obligation. For example, s284(3) permits “an insurer or a contributor” to withhold documents in certain circumstances, but not an employer. Similarly ss 280 and 279(2) treat the employer as separate from the entity having the obligation there mentioned. The whole scheme of Chapter 5 Part 5 is to expect the insurer and the injured worker to engage in the processes contemplated with a view to resolving the claim, but again not the employer.

[23] If that is right it raises the interesting question as to whether the employer’s right to claim legal professional privilege has been abrogated at all. Section 284 refers to a “party”, again without definition, as losing its right to claim legal professional privilege in relation to a certain class of documents. The submissions proceeded on the basis that the privilege in the employer was abrogated by the Act and I will so assume. It would work some mischief if that were not so.

[24] It follows that the sole obligation on an employer insured by WorkCover is to co-operate with WorkCover as contemplated by s 280. Hence NGCM must provide such documents as WorkCover “reasonably requires”.

[25] It might be said that WorkCover is obliged to “reasonably require” the production of any documents that fall within the purview of s 279 and for which privilege cannot be claimed. But it is by no means clear that the obligation on the employer to positively respond to a request is necessarily coincident with WorkCover’s obligation to disclose. For one thing the Act does not say that and it could easily have done so. For another, the introduction of the concept of reasonableness must mean something.

[26] The better view, it seems to me, is that the requirement that the employer respond only to requests that are “reasonable” must permit an employer to bring into account matters other than the potential for a document to fall within s 279.

[27] An example might be that the employer may have thousands of documents, the production of which might be tedious and involve considerable expense, but the potential utility is evidently marginal at best, albeit the documents are relevant to the circumstances of the event resulting in the injury, the worker’s injury or the worker’s prospects of rehabilitation. Questions of reasonableness in requiring identification and disclosure would or may arise.

[28] Such an approach does not abrogate to the employer the decision as to what should be produced on request. What is “reasonable” is a question of fact and can be determined by a court. An employer would need to produce cogent evidence to expect to be relieved of an obligation to produce documents otherwise relevant to proceedings and liable to be produced. The issue here is whether the employer has done that.

[29] The principal issue that concerns NGCM is that disclosure of the report has the potential to enable the applicant to tailor his evidence to its contents at the pending prosecution. For example if the chemist discusses the characteristics that a chemical fume might display in terms of its colour or odour, or the likely symptoms to be expected from exposure to the chemicals involved, or the length of time of exposure that there would need to be to have any effect, then there is the potential for the applicant to tailor his evidence accordingly, consciously or otherwise.

[30] The employer therefore claims a legitimate concern that proceedings involving the potential for severe penalties being imposed on it might be unfairly affected, and adversely to its interests, if it was obliged to disclose the report.

[31] The cases discussing the release of a party from its implied undertaking typically involve a request by the party bound to be released so that it can pursue some other forensic purpose in an unrelated matter. That obviously is not this case. Nonetheless it is useful to consider the circumstances in which a court might exercise a discretion to release a party from the implied undertaking.

[32] Essentially the question is always whether it would be in the interests of justice to permit the release[7] and that in turn depends on whether “special circumstances” exist.[8] Special circumstances have been said to exist where:

“…there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.”[9]

[33] In Citicorp Life Insurance Ltd v Lubransky; Bagiotas v Citicorp Life Insurance Ltd[10] Hargrave J added to that list “[t]he extent to which the information contained in the documents under consideration has entered the ‘public domain’…”

[34] Of the various factors mentioned two are particularly relevant here. First, the document has not entered the public domain and was not expected to enter the public domain until a particular time – namely in the course of the presentation of the prosecution’s case and presumably at a time or in a fashion that would not influence the applicant’s evidence. Abrogation of the implied undertaking would run counter to the expectation of the parties who brought the document into existence.

[35] Second, production of the document to the applicant might well contribute significantly to achieving justice in the second proceeding, that is, in his own damages action. But it might have precisely the opposite effect in the proceedings for which the document was brought into existence.

[36] The applicant led no evidence to show that production of the report is necessary now as opposed to later in the course of the pre court proceedings. I appreciate that any delay is unfortunate and to be avoided if it can be, consistently with the interests of justice. But here that does not seem to me to be possible. The interests of justice do not require that the report be produced now.

[37] The competing considerations can be met by delaying any requirement to disclose the report until after the report has been led in evidence in the course of the prosecution case.

Reports and/or Statements Relating to the Workplace Incident and its Investigations

[38] The applicant here seeks documents that pertain to “the circumstances of the event resulting in the injury” (s 279(1)(a)) or which may be “investigative reports” (within the meaning of s 284(2)(a)).

[42] A corporate entity such as NGCM does not have the privilege against self incrimination but an individual such as the SSE does.[11]

[43] It is apparent that an accused person cannot be compelled to produce documents or other evidence whether the evidence is incriminating or not. So much is clear from the judgment of Deane, Dawson and Gaudron JJ in Environment Protection Authority v Caltex Refining Co Pty Ltd[12]:

“The abolition of the Star Chamber and High Commission marked not only the end of the ex officio oath, but the rejection of inquisitorial procedures. The so-called “right to silence” is often invoked in an attempt to express compendiously this rejection, although in truth there is not just one right but a number of rights, or immunities, of differing scope. There is, of course, the general right, which everyone has, not to answer questions, whether or not the answers might incriminate him. The law, generally speaking, does not oblige persons to answer questions if they do not wish to do so. But that right, or immunity, is not absolute. There are exceptions, and perhaps the most important is that witnesses may not refuse to answer questions put to them in a court save where they are excused from doing so. The privilege against self-incrimination provides such an excuse, and extends beyond a court of law to other forms of compulsory examination.

However, other inter-related rights or immunities have emerged which have become woven into the law, particularly the criminal law, both by way of procedure and in substance. For example, the fact that persons suspected of having committed a crime are immune from having to answer, under compulsion, the questions of police officers or others in authority, has led to the development of rules which render inadmissible in evidence confessions which are involuntary or unfairly obtained. And an accused person (who is a competent witness only as a matter of fairly recent history) has the right to refrain from giving evidence and to avoid answering incriminating questions.

The latter right is by no means wholly explained by reference to the maxim nemo tenetur seipsum prodere. Rather it is to be explained by the principle, fundamental in our criminal law, that the onus of proving a criminal offence lies upon the prosecution and that in discharging that onus it cannot compel the accused to assist it in any way. Thus, whilst the basic adversarial procedure of the criminal law may have roots in the seventeenth century, it has grown in a way that is not explained solely by reference to a specific immunity such as the privilege against self-incrimination. Rather it must be explained by reference to broader considerations which may in turn explain the privilege. As Gibbs CJ said in Sorby v The Commonwealth: “It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.”

So far as documents are concerned, it may be thought that the maxim nemo tenetur seipsum prodere has a limited application, for documents are more in the nature of real evidence and speak for themselves in contrast to evidence of a testimonial kind. It is said, particularly in the United States, that there is a testimonial element in the production of documents because the person producing them identifies the documents produced as those being sought. There is a certain technicality about that explanation. In reality, the privilege protects a person from being compelled to produce evidence which will incriminate him, whether testimonial or not. That is clear enough in a criminal trial where an accused cannot be compelled by the prosecution to produce documents. But the immunity enjoyed by an accused in a criminal trial extends to evidence of any kind, whether incriminating or not. The immunity is, perhaps, better explained by the principle that the prosecution bears the onus of proving its case, than by the more confined principle that an accused has a privilege against self-incrimination, notwithstanding that both have a common origin.

The privilege against self-incrimination was extended to the production of documents apparently as the result of Chancery influence. Discovery was an equitable remedy and the Court of Chancery would not order the production of documents if to do so would have exposed the party against whom discovery was sought to a penalty or forfeiture. The Court came to recognize self-incrimination as affording a similar protection. The same policy extended to the subpoena duces tecum, which was originally a Chancery writ. When the common law courts were given the power to use the subpoena, they used it consistently with Chancery practice. The general aversion in seventeenth century England to inquisitorial procedures meant that no distinction was drawn between documents and testimonial evidence. But, as we have said, the immunity of an accused person from being compelled to produce documents in criminal proceedings now appears to rest more upon the principle that the prosecution bears the burden of proof than upon the privilege against self-incrimination, even though the burden of proof has its beginnings in the same aversion to inquisitorial proceedings which gave birth to the maxim nemo tenetur seipsum prodere.” (emphasis added)

[48] In those circumstances is it reasonable to expect NGCM to disclose the relevant documents?

[49] The potential abrogation, indirectly at least, of the SSE’s privilege against self incrimination is a drastic step to take. As Margaret Wilson J observed in Cth DPP v Jo and Ors[13]:

“The privilege against self-incrimination is a substantive right which has been described as “a cardinal principle of our system of justice”, a “bulwark of liberty” and “fundamental to a civilised legal system”. It affords protection against the risk of incrimination by both direct evidence and indirect (or “derivative”) evidence. But a person has to claim the privilege in order to be entitled to its protection, and it may be waived or excluded by statute.”

[50] I would be slow to make an order that had such an impact on a fundamental right absent some clear statutory intention that the right be abrogated. There is no such intention here. The statute implicitly preserves privileges other than legal professional privilege given that the abrogation of that latter privilege is the only one mentioned and is restricted to certain classes of nominated documents.

[51] The second point is that the disclosure sought would have the potential to reveal the defence. McKenzie J said in State of Queensland v Shaw[14]:

“The case is one where there is a well defined and real advantage available to a person in criminal proceedings in respect of revealing evidence in advance. Depriving a defendant of such an advantage by requiring him to undergo prior proceedings where the State may, in effect, test-run the same case it proposes to lead in the prosecution proceeding and if necessary improve it if it can prior to that time is in my view sufficiently of the character of a demonstrated reason why the interests of justice would not be served by the forfeiture proceedings being heard in advance of the criminal proceedings. In my view the circumstances in which a stay is justified are established by the particular facts of the case.”

[52] Those comments were quoted with apparent approval by Margaret Wilson J (with whom McMurdo P and Ann Lyons J agreed) in Jo.[15]

[53] Here the State is not involved in seeking early disclosure but the disclosure would be to the person who is a significant witness in the prosecution case and who would gain the advantage or potential advantage of knowing in advance of giving his evidence the likely attack to come on his evidence. The disadvantages to the defence are obvious.

[54] In my view there is nothing unreasonable in the attitude taken by NGCM in declining the request to disclose the relevant documents.

[57] In my view the interests of justice lie in preserving the position of the defendants until trial of the summary charges. The interests of the parties can be met by requiring disclosure of the documents but at a time after their potential to unfairly prejudice the employer and the SSE has passed.

Brisbane Barrister – David Cormack

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