The case of Turnbull v Office of Environment and Heritage  NSWCCA 190 (Turnbull v OEH) concerned an appeal to the New South Wales Court of Criminal Appeal (Court) regarding whether a prosecutor could be prevented from using admissions made in civil proceedings in subsequent criminal proceedings. The basis of the Applicant's argument was that the use of the admissions infringed upon the accusatorial principle of our criminal justice system.
The proceedings against the Applicant involved allegations of unlawful clearing of native vegetation in breach of the now repealed Native Vegetation Act 2003 (NSW).
We have previously written about an example of admissions being held to be inadmissible in Class 5 criminal proceedings in the New South Wales (NSW) Land and Environment Court (see: Recap of investigation powers under the EP&A Act and implications for evidence in criminal proceedings). However, in contrast to that example, in Turnbull v OEH, the admissions were not made under compulsion.
The Court found that the relief sought by the Applicant would radically extend the practical application of the accusatorial principle, and declined to grant that relief. The prosecutor was therefore not precluded from using the admissions on the basis of the accusatorial principle.
The accusatorial principle requires the prosecution to prove its case against an accused person, without compelling that person to assist. The right to silence is the keystone of the principle. As stated by the High Court of Australia (High Court) in X7 v Australian Crime Commission (2013) 248 CLR 92;  HCA 29 :
"The accusatorial process of criminal justice and the privilege against self incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong doing." (emphasis added).
The High Court stated the importance of the principle in Lee v The Queen (2014) 253 CLR 455;  HCA 20 (at  to ):
"The principle is so fundamental that ‘no attempt to whittle it down can be entertained’ albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof." (emphasis added).
The Applicant had separately sought to have the admissions excluded from the criminal proceedings under various provisions of the Evidence Act 1995 (NSW), including section 90. Section 90 relates to the Court's discretion to refuse to admit evidence of an admission, where it would be unfair to a defendant having regard to the circumstances in which the admission was made. However, the question before the Court in this appeal only related to the accusatorial principle.
Admissions made in civil proceedings
In Class 4 civil enforcement proceedings in the NSW Land and Environment Court, an affidavit had been filed in which the Applicant admitted that he had engaged in clearing vegetation, but to a lesser degree than what was alleged by the prosecution. The evidence was apparently given on the advice of counsel.
After the conclusion of the civil proceedings, the NSW Office of Environment and Heritage (OEH), relying on the admissions made by the applicant in the civil proceedings, commenced Class 5 criminal proceedings against the Applicant.
No compulsion or invidious choice
The Applicant argued that he would not have made the admissions if he had have known that criminal proceedings would be commenced against him.
The Applicant also argued that he was "required" to give the evidence in the civil proceedings to defend himself, and compared the circumstances to those in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46;  HCA 5 (AFP v Zhao). In AFP v Zhao, "Mr Zhao was not compelled – on pain of penal sanction – to defend the pending civil forfeiture application in the same way that a person called to give evidence at an investigatory commission is compelled to give truthful self-incriminating evidence. And yet the High Court granted relief in that case, based upon the principle." (see Turnbull v OEH at ).
However, in AFP v Zhao, the relief granted was extremely limited compared to what was sought in Turnbull v OEH. In AFP v Zhao, to allow the accused to defend himself in the civil proceedings without incriminating himself in the criminal proceedings, the High Court simply ordered that the civil proceedings must proceed after the criminal trial. In Turnbull v OEH, not only was that option unavailable (as the civil proceedings had already concluded), but also because the Applicant sought more "radical" orders, including an order that the admissions were inadmissible in the criminal proceedings.
Ultimately, the Court held that the Applicant had not faced a choice similar to that in AFP v Zhao, i.e. whether to defend the civil proceedings and potentially incriminate himself in the criminal proceedings. The Court found that no such "invidious choice" ever arose, because the criminal proceedings were not commenced until after the civil proceedings had concluded. See :
"Here, however, the applicant was not given any choice at all – invidious or otherwise – because of an accident of chronology. The fact that the applicant wished to give evidence in the civil proceedings for some perceived forensic benefit does not provide a basis, it was said, for distinguishing AFP v Zhao as an application of principle."
Whilst the accusatorial principle is of fundamental importance, the Court refused to extend the application of that principle beyond its application in AFP v Zhou to render inadmissible in criminal proceedings the admissions made in the Class 4 civil enforcement proceedings. The Court stated the principle "…has finite limits, it is not absolute, and it must sometimes yield to other principles." (at ).
The Court also noted that there are other legislative mechanisms to protect a defendant from the unfair use of an admission against them (a pathway that the Applicant had already pursued).
The Court found no issue with the OEH being the plaintiff in the civil proceedings and the prosecutor in the later criminal proceedings. The Court stated that "that double role is a position consciously adopted by Parliament in the context of alleged environmental wrongdoing that can be both a civil wrong and a criminal offence." (at ).
Respondents in Class 4 civil proceedings therefore need to give careful consideration to the possibility of criminal proceedings following the civil proceedings before making any admission. An admission enticed by a regulatory authority needs to be carefully evaluated, since the admission may end up being used as evidence in a prosecution.
Prophylactic measures to ring fence the use of an admission should also be considered by respondents in these situations, as indicated in the Court's judgment. For example, there may be a possibility of seeking an undertaking from the plaintiff (and potential future prosecutor) in civil enforcement proceedings that an admission made in the civil proceedings will not be used in any subsequent criminal proceedings. Where an admission is being made under compulsion, consideration needs to be given to objecting on the basis of self-incrimination before making the admission.
It should otherwise be assumed that the respondent or prosecutor may include a voluntary admission in evidence in criminal proceedings, should the decision to prosecute occur after the conclusion of civil proceedings.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.