Clarifying a company’s rights as a defendant to a safety prosecution

A recent decision of the Full Federal Court in Helicopter Resources Pty Ltd v Commonwealth of Australia has clarified that a company which is a defendant to a safety prosecution has substantially the same rights as a natural person under the system of criminal justice. Accordingly, with the exception of producing documents in response to a subpoena, in most cases a company cannot be compelled to assist the prosecution once charges have been laid against the company.

In February 2019, the Full Federal Court allowed Helicopter Resources’ appeal against the decision of Bromwich J refusing an injunction to prevent its chief pilot from giving evidence in a coronial inquest into the death of Captain David Wood.

Background to Helicopter Resources Pty Ltd v Commonwealth of Australia

Captain Wood was employed by Helicopter Resources, which in turn provided helicopter support services in the Antarctic under a contract with the Commonwealth (Australian Antarctic Division) (AAD). After landing across a hidden crevasse in ice, Captain Wood slipped and fell into the crevasse whilst reboarding the helicopter, and sadly, subsequently died.

The ACT Coroner commenced an inquest into the captain’s death in September 2017. On 20 December 2017, both Helicopter Resources and the AAD were charged with category 2 offences in relation to alleged breaches of s 19 of the Work Health and Safety Act 2011 (Cth) (WHSA).

In the course of the proceedings, the Coroner ruled that Helicopter Resources’ chief pilot, Captain Lomas, would be required to give evidence at the inquest. Interestingly, Captain Lomas was not in Antarctica at the time of Captain Wood’s death, nor was he individually charged in relation to the incident or alleged to be an officer of Helicopter Resources. He was subpoenaed to give evidence on a number of matters, including the adequacy of the risk mitigation measures adopted by Helicopter Resources. This issue was ‘central to the position of [Helicopter Resources and the AAD] as co-accused in respect of the various charges’ as it overlapped with core elements of the WHS charges against both defendants.

Helicopter Resources’ application

Helicopter Resources sought an adjournment of the inquest until the criminal proceedings in respect of the WHS charges were concluded. It argued that the requirement for Captain Lomas to give evidence at the inquest would cause a significant injustice to Helicopter Resources while it was defending the WHS prosecution. Helicopter Resources also argued that the prosecution and the AAD would gain a forensic benefit if the inquest were not stayed, as they would each have the benefit of cross-examining Captain Lomas in relation to his evidence before the criminal trial.

The Coroner refused the application. Helicopter Resources then applied to the Federal Court for an injunction, which was refused by Bromwich J.

Appeal to the Full Federal Court

Helicopter Resources appealed Bromwich J’s decision to the Full Federal Court. The central issue was whether the requirement for Captain Lomas to give evidence in the coronial inquest would impermissibly interfere with the criminal proceedings in respect of the WHS charges against Helicopter Resources.
The Full Court undertook a detailed review of the relevant authorities, from which it drew the following key propositions:

  1. Helicopter Resources, as a corporation, did not have any right or privilege to refuse to produce documents before being charged on the ground that the documents might tend to incriminate it.
  2. However, ‘[R]ights involved in the accusatorial system of criminal justice are not limited to the right against self-incrimination and that, so far as a corporation is concerned, it is one thing to require the corporation to produce to the prosecuting authority existing documents but it would be another thing to compel the corporation to answer questions.’
  3. Once the corporation is charged, a separate executive (eg. coronial) inquiry cannot seek to compel the corporation to assist the inquiry by answering questions relating to matters that are the subject of the criminal charges.
  4. ‘The use of compulsory powers in a way that is unjustifiably oppressive on a party to a court proceeding can amount to conduct that is an abuse of the latter court’s process’.

The Full Court reaffirmed that ‘the fundamental principle of the accusatorial process is that “it is for the prosecution to prove the guilt of an accused person”‘. However, the Full Court also found that the ‘companion rule’ to this principle, ‘that an accused person cannot be required to testify’, was not enlivened as Captain Lomas was not an accused, nor was he an authorised officer or representative of Helicopter Resources as an accused.

Consequently, the Full Court’s decision then turned on the application of the authorities in light of section 87 of the Evidence Act 2011 (ACT), which effectively ‘widens the common law’ by permitting the admissions of an employee to be taken as the admissions of the employer if it is in respect of a matter that is in the scope of the person’s employment. By operation of this provision, any admissions made by Captain Lomas in the inquest could be tendered as admissions of Helicopter Resources in the criminal proceedings.

In light of this, the Full Court found that the use of the Coroner’s compulsory powers to compel Captain Lomas to give evidence had ‘the real potential of forcing the appellant’s hand prematurely, before the time in the criminal trial when the prosecution has closed its case’. The ‘crucial and dispositive consideration’ was therefore that the compulsion of Captain Lomas to give evidence would fundamentally alter Helicopter Resources’ position as an accused.

The Full Court allowed the appeal.

Implications of Helicopter Resources Pty Ltd v Commonwealth of Australia

Although the ultimate finding in this case turned significantly upon the application of s 87 of the Evidence Act 2011 (ACT), the Full Court’s reasoning has significant implications for corporate defendants in all jurisdictions, not only the ACT (as well as NSW and the Commonwealth, which include similar provisions in their respective Evidence Acts).

The Full Court’s decision confirms that a corporate defendant has essentially all the same rights and privileged as an individual accused, subject to the specific exception in respect of the corporation’s books and records. The Full Court’s thorough re-examination of the authorities on this issue reveals that while this has been the position at law for some time, this has not always been acknowledged in practice. While these rights can be altered by legislation, very clear language or ‘necessary implication’ is required before a Court can be satisfied that parliament intended for it to have that effect.

It follows from this that the once criminal charges are laid, the rights of the accused must take precedence over any other proceedings. This includes not only coronial inquiries or inquests but also interviews and investigations undertaken by a regulator using their compulsory powers.

Interestingly, the Full Court’s decision may also have the effect of preventing information obtained by a regulator under its compulsory powers from being used by the prosecution to prove the guilt of the defendant corporation (see, for example, R v Leach [2018] QCA 131).

The decision is currently on appeal to the High Court. If it stands, it is likely to have significant implications for regulatory prosecutions of corporate defendants, particularly where the proceedings occur subsequent to or concurrent with any form of executive enquiry or investigation.