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There is no ‘property in witnesses’

In an important decision last month, the High Court ruled that a company cannot prevent any of its employees being subpoenaed to give evidence in proceedings, even if the employee may make admissions against the company.

By Michael Selinger

In an important decision last month, the High Court ruled that a company cannot prevent any of its employees being subpoenaed to give evidence in proceedings, even if the employee may make admissions against the company.  

Inquest and a separate WHS prosecution arising from a fatality in Antarctica

The High Court decision in Commonwealth of Australia v Helicopter Resources Pty Ltd (2020) related to an incident involving the death of Captain David Wood in 2016. Captain Wood had been delivering fuel drums to a remote depot on Antarctica’s West Ice Shelf when he fell down a crevasse. He was trapped for hours while his colleague flew back to Davis Station to return with a rescue team. He was recovered by the rescue team but died from hypothermia the following day.

The Commonwealth Director of Public Prosecutions (DPP) filed three charges in the ACT Magistrates’ Court alleging the Commonwealth of Australia (being the Department of the Environment and Energy, through its Australian Antarctic Division) failed in its duties under the Work Health and Safety Act (WHS Act).

Three charges were also brought against Captain Wood’s employer, Helicopter Resources Pty Ltd, contracted by the Department to support field operations for the Antarctic Division.

At the same time, the incident was the subject of an ongoing inquest in the ACT Coroner’s Court. As part of that inquest, the Commonwealth sought for an employee of Helicopter Resources Pty Ltd, a Captain Lomas, to attend the inquest and be subject to cross-examination.

Helicopter Resources Pty Ltd sought to prevent Captain Lomas attending the inquest until such time as the WHS proceedings were complete, arguing that it would prejudice its position in the WHS proceedings.

A single judge of the Federal Court disagreed, but on appeal to the Full Court, Helicopter Resources’ position was upheld on the basis that admissions by Captain Lomas could impermissibly amount to admissions by his employer. In effect, the Court held that compelling Captain Lomas to give evidence was to compel Helicopter Resources to give evidence against itself.

High Court decision

The matter went on appeal to the High Court, even though by that stage the WHS proceedings were being concluded.

The High Court allowed the appeal and overturned the decision of the Full Federal Court on the basis that there was nothing fundamental to the accusatorial system of criminal justice that requires that an accused employer be free to prevent statements of an employee from being used as evidence against the employer. In particular, the High Court stated that any “compulsory investigative procedure [that] is sufficiently authorised by statute may be invoked” despite having the practical effect of fundamentally altering the accused’s position in criminal proceedings.

The Court also noted that any arrangement, such as an employment agreement seeking to prevent an employee from giving evidence in criminal proceedings would be “unenforceable as contrary to public interest”.

Impact on the WHS proceedings

The High Court decision had little impact on the inquest or the WHS proceedings in the end because the WHS proceedings concluded 4 months before the High Court judgment was delivered. 

In December 2019, the ACT Magistrate found that the Australian Antarctic Division was best placed to decide how projects and other operations could be safely conducted, including the safe location of fuel sites. As such, the Court found the Commonwealth guilty of breaching the safety laws on the basis that it failed to assess the suitability of those sites before pilots were tasked to land and walk there for the purpose of refuelling and/or collecting their sling hardware.

Captain Wood’s employer, Helicopter Resource, was found not guilty as the Court considered it was entitled to rely on the expertise of the Australian Antarctic Division to locate likely crevasse sites and it could not itself have reasonably been able to assess the likelihood of the crevasses at the site.

Going forwards

The decision of the High Court is a significant one in that it has reaffirmed that there is no ‘property in witnesses’ and an employee of a company can be required to give evidence in WHS proceedings and inquests, with the potential that their evidence will amount admissions by the company.

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