McAndrew (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 590

District Court New South Wales

Medium Neutral Citation: McAndrew (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 590 Hearing dates: 7 September 2020 Date of orders: 9 September 2020 Decision date: 09 September 2020 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1. The defendant's notice of motion is dismissed. Catchwords: CRIMINAL PROCEDURE — Stay of proceedings — Compulsorily Acquired Material Legislation Cited: Independent Commission Against Corruption Act 1988 Work Health and Safety Act 2011 Cases Cited: Barron v Attorney-General (1987) 10 NSWLR 215 Barton v The Queen (1980) 147 CLR 75 Jago v District Court (NSW) (1989) 168 CLR 23 Lee v The Queen (2014) 253 CLR 455 Macdonald v R (2016) 93 NSWLR 736 R v IBAC (2016) 256 CLR 459 R v Seller (2015) 89 NSWLR 155 Strickland v CDPP [2018] HCA 53 Walton v Gardiner (1993) 177 CLR 378 X7 v The Queen [2014] NSWCCA 273 Category: Procedural and other rulings Parties: McAndrew (NSW Department of Planning and Environment) v Tony Glenn Cummings Representation: Counsel: I Taylor SC/G Lewer (Prosecution) R Clifford (Defendant)

Solicitors: McCulloch Robertson (Prosecution) Browne Jeppesen and Sligar (Defendant) File Number(s): 2018/336909 and 2018/336887 Publication restriction: None

Judgment

Introduction 1. The defendant has pleaded not guilty to two alternative charges brought pursuant to s 32 Work Health and Safety Act 2011 (the Act). 2. On the first day of trial the defendant has applied for a permanent stay of the proceedings or an order disqualifying the lawyers briefed by the prosecution from continuing to act in the proceedings on the basis of a breach of the companion principle. The defendant contends that by being required to participate in a recorded s 171 interview on 6 November 2016 that he has disclosed information that would have the effect of limiting the defences available to him and that this information has been communicated to other Inspectors who are witnesses in the case and/or who interviewed lay witnesses in the case and to the lawyers representing the prosecution. 3. The prosecution's response is to point to other sources of information available to it and that the information provided through those sources is similar to the information provided by the defendant in the s 171 interview, such that there is no demonstrable unfairness to the defendant. 4. There may be another occasion in the course of the trial where I need to further consider or reconsider the extent of a relevant person's power to disclose information provided to them under compulsion pursuant to s 271 of the Act, but the present application relates to what the regulator, exercising its function as a prosecutor, knew and not whether those matters are admissible as evidence in the trial.