Industrial Relations Commission of New South Wales in Court Session CITATION : Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and ors [2003] NSWIRComm 392 [2003] NSWIRComm 393 revised - 18/12/2003 PROSECUTOR: Stephen Finlay McMartin PARTIES : DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady. FILE NUMBER: 3198 - 3249 of 2000 CORAM: Staunton J CATCHWORDS : Occupational health and safety - voir dire to determine admissibility of expert witness statement - issue as to whether protected witness statements admissible in voir dire to determine admissibility of expert witness statement - Part 36r13C and para 5(b) of Schedule K of Supreme Court Rules not considered relevant to issue currently before the Court - issue as to indemnity provided by s60(2) of Coal Mines Regulation Act 1982 to use of protected witness statements - distinction between use indemnity, a use derivative use indemnity and a transactional indemnity - held use indemnity provided by s60(2) of Coal Mines Regulation Act 1982 applies to protected statements being used against the person as a defendant in criminal proceedings - witness statement excluded on the voir dire to determine the admissibility of expert witness statement Occupational Health and Safety Act 1983 Evidence Act 1995 LEGISLATION CITED : Coal Mines Regulation Act 1982 Royal Commission Act 1923 Ganin v New South Wales Crime Commission NSWLR 423 Rogan v Hyde [1995] 84 A Crim R 519 CASES CITED : Hood (1997) 91 A Crim R 526 Hamilton v Oades (1989) 166 CLR 485 Sorby v The Commonwealth (1983) 152 CLR 281 HEARING DATES: 10/29/2003; 10/30/2003 DATE OF JUDGMENT: 11/03/2003 PROSECUTOR: Mr S Crawshaw SC Mr B Docking of counsel Mr A Slevin of counsel SOLICITORS: Mr M Carrick Geoffrey Edwards & Co DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Ltd; Mr R Porteous & Mr J Romcke LEGAL REPRESENTATIVES: Mr S Rothman SC Mr G McGrath of counsel SOLICITORS: Ms F Inverarity Price Waterhouse Coopers Legal DEFENDANTS: Mr F Alston; Mr M Coffey; Mr C Nicholls; Mr P Pritchard; Mr M Robinson & Mr T Shacklady Mr B Hodgkinson SC Ms W Thompson of counsel SOLICITORS: Mr J Rodney / Mr G Phillips Carroll & O'Dea JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 3/11/2003 Matter No's IRC 3198/00 - 3249/00 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others Prosecutions pursuant to s15(1), s16(1) and s50(1) of the Occupational Health and Safety Act 1983 Judgment NSWIRComm 393 1 At the present stage in the proceedings before me the prosecution have called Mr Darrel Adam as an expert witness. His statement has been admitted conditional on my ultimate ruling as to its admissibility. 2 In order to determine the admissibility of Mr Adam's statement, a voir dire is being held. 3 At the commencement of the voir dire, counsel for the defendants jointly challenged the admissibility of Mr Adam's statement on two grounds: · The field of specialised knowledge that underpins Mr Adam's statement - in short, the defendants say that Mr Adam has insufficient specialised knowledge to support the opinions he purports to express, particularly in the area of mine surveying; and · The specialised knowledge that Mr Adam relies upon to express his opinions has been obtained in part in circumstances that overall preclude it from being relied upon and it should be excluded in accordance with s137 of the Evidence Act. 4 In the course of addressing me in relation to the point we have now reached in the voir dire, counsel for the defendants have also submitted that Mr Adam's statement does not comply with the form as required by Schedule K of Part 36, Rule 13C of the Supreme Court Rules, in particular para 5(b) of Schedule K, that states in whole: A report by an expert witness must (in the body of the report or in the annexure) specify: (b) the facts, matters and assumptions on which the opinions in the report are based. (A letter of instructions may be annexed). 5 For the purposes of the ruling I propose in the issue currently before me, I do not consider the compliance or otherwise with Schedule K to be particularly relevant. It may be relevant to any submissions I receive as to the ultimate admissibility of Mr Adam's statement. I do not have to deal with that issue now. 6 The issue before me revolves around the desire by the prosecution, in re-examination of Mr Adam on the voir dire, to tender three statements of Mr Mark Robinson. Mr Robinson is one of the natural person defendants before me in the substantive proceedings. 7 The process by which the prosecution seeks to tender Mr Robinson's statements at this point in the voir dire can be traced, in the first instance, by reference to paras [15] to [17] of Mr Adam's statement now before me. 8 Those paragraphs relevantly detail the background for the preparation of a report by Mr Adam for the 1997 Judicial Inquiry into the accident at Gretley Colliery. 9 In preparing his report, including his observations and conclusions, Mr Adam was given a number of documents and mine plans. One of the documents given to and considered by Mr Adam in the preparation of his 1997 report was a statement made by Mr Mark Robinson. In para [21] of Mr Adam's statement now before me, he affirms that he did not consider or take into account, amongst other material, Mr Robinson's statement in providing the opinions that he now does. 10 In cross-examination on the voir dire, Mr Adam agreed that a proportion of the statement now before me is a repeat of the statement he had earlier prepared in 1997. As part of that, when expressly questioned, he agreed that in expressing the opinions he now does about mine surveying, he would have had regard 'on an inclusive basis' to Mr Robinson's statement as well as other material. 11 As is now clear, while Mr Adam refers to Mr Robinson's statement in the singular, there are three statements referable to Mr Robinson from 1997. It seems apparent that the statement of Mr Robinson that Mr Adam refers to is a statement made by Mr Robinson in February of 1997. 12 Objection has been taken by counsel for the defendants to the tender of Mr Robinson's statements in the voir dire proceedings to ultimately determine the admissibility of Mr Adam's statement. The basis for that objection is to be found in the provisions of s60(2) of the Coal Mines Regulation Act 1982. 13 In the first instance, s60(1) of that Act confers on the relevant officer the power to do a number of things. For example, the officer has the power to require any person to answer forthwith any questions, take samples of any articles or substance, take possession of any machinery, apparatus or other article, require production and inspection of registers, books, plans or other documents. 14 Section 60(2) provides a statutory protection in the following terms: An answer given by a person in pursuance of a requirement imposed under ss(1) shall not be admissible in evidence against the person in any proceedings except proceedings for an offence under s 62(e). 15 By reference to the provisions of s60(2), counsel for the defendants submitted that Mr Robinson's statements were protected from tender on the basis that, firstly, they represented evidence against him; and, secondly, that voir dire proceedings were part of 'any proceedings' as contemplated by s60(2). 16 Counsel for the prosecution submitted that the protection afforded by s60(2) is limited in that an answer shall not be admissible in evidence 'against the person.' 17 In furtherance of that submission, it was contended that the admission into evidence on the voir dire of Mr Robinson's answers is not evidence against Mr Robinson but is evidence as to the admissibility or otherwise of Mr Adam's evidence. 18 Further support for the prosecution's contention is evidenced, it was submitted, by the fact that counsel for the defendants elicited from Mr Adam evidence as to the nature of Mr Robinson's answers that Mr Adam considered in expressing the opinions that he now does. 19 Counsel for the prosecution relied on the nature of the indemnity offered to Mr Robinson by distinguishing between a use indemnity, a use derivative use indemnity and a transactional indemnity. The distinction between them was expressed by Kirby P in Ganin v New South Wales Crime Commission NSWLR 423 at 433 as follows : In the United States an important distinction has been drawn between use indemnity and transactional indemnity. The former protects the person the subject of compulsion from the use of the enforced testimony itself. The latter protects the subject in respect of any prosecution arising out of a transaction with respect of which the testimony is related. The use derivative use indemnity lies between the two foregoing indemnities. It's purpose is to ensure that the prosecution gets the benefit of the witness's testimony, is forbidden from using that testimony or material derived from that testimony, but, without being obliged to pay a price (often considered too high) of affording complete exculpation to the witness from past criminal activities which may not have been known at the time the questions were first asked. 20 In Rogan v Hyde [1995] 84 A Crim R 519 at 524, Allen J expressed the distinction between those indemnities by way of example as follows: An example of a "use" indemnity is s17(2) of the Royal Commission Act which provides that in respect of proceedings before a Royal Commission: 17(2) An answer made or document or other thing produced by a witness to or before the Commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings. That protects 'the person, the subject of compulsion, from the use of the enforced testimony itself". An example of a "use derivative use" indemnity is the indemnity given pursuant to s18(5) of the New South Wales Crime Commission Act given to Mr Rogan. Not only does it protect Mr Rogan from the enforced testimony being given in evidence in any subsequent proceedings against him for an offence against the law of the State, but it protects him also from 'any information, document or thing obtained as a direct or indirect consequence of" that enforced testimony being used in any such subsequent proceedings. An example of a 'transactional' indemnity is that provided by s13 of the Criminal Procedure Act (NSW) 1986 namely indemnity from prosecution: (a) for a specified offence; or (b) in respect of specified acts or omissions. That indemnity 'protects the person' - albeit that in the example given protection is not full, being limited to specific offences, acts or omissions. 21 Relying on the above examples, I accept that the indemnity provided by s60(2) of the Coal Mines Regulation Act is a use indemnity. Having come to that view, it does not, it seems to me, automatically provide for the admissibility of Mr Robinson's statements in the voir dire. The issue still, in my view, is whether the admission of those statements can be said to be evidence against Mr Robinson. 22 The compensatory protection provided in s60(2) precludes the admissibility of answers given under compulsion being used against the person. It would be logically implicit, in my view, that reference to 'against the person in criminal proceedings' means the person as a defendant. In other words, it does not follow that the compensatory protection afforded by a use indemnity only applies with respect to the protected evidence being used against the person as a witness in criminal proceedings. 23 As a defendant in criminal proceedings, Mr Robinson is not obliged to give evidence. Accordingly, the use of his answers against him must apply in circumstances other than, for example, being put to him as a witness in order to attack his credibility or to establish a prior inconsistent statement. 24 To the extent that Mr Robinson's answers are being relied upon by Mr Adam to give an expert opinion that may have the tendency to incriminate him (Mr Robinson), he is, it seems to me, to be using Mr Robinson's answers against him. 25 I was taken to the decision of the Court of Criminal Appeal in Hood (1997) 91 A Crim R 526 at 536 where, in reaching his conclusions, Smart J stated inter alia: Where a statute abrogates the privilege against self incrimination and confers compensatory protection, the court must construe the ambit of that statutory protection. A technical or narrow approach should not be adopted having regard to the importance of that privilege. ( emphasis added). 26 In Hood, the issue under appeal was whether evidence given by Hood at the Royal Commission into the New South Wales Police Service was admissible against him in subsequent sentencing proceedings either on its own or as the basis of, or springboard to, the question that he had attempted to mislead the Commission because he thought it would be to his advantage. 27 The indemnity given under s17(2) of the Royal Commission Act was a use indemnity in terms similar to that under s60(2) of the Coal Mines Regulation Act. While the factual circumstances in Hood went to his rights as to cross-examination in the sentencing process, particularly as to credibility, Smart J also concluded at 536-537: Where it is hard to draw the line between cross-examination undermining credibility and that having a tendency to incriminate, and there is a substantial risk that it may have the tendency to incriminate, such cross-examination is not permissible. 28 It seems to me that not only should one avoid a narrow and technical approach to the ambit of the compensatory protection afforded by s60(2), but where a balance has to be struck in circumstances such as that propounded by Smart J above, then the proper approach for the court is to exclude the evidence. 29 The prosecution contends that in the voir dire proceedings before me the purpose is not to adduce answers which incriminate Mr Robinson, or tend to do so. Rather, it is said it is to establish whether Mr Adam, having read the answers provided by Mr Robinson under the compulsion of s60(1) of the Coal Mines Regulation Act, relies on any answers so given in some or all of the opinions expressed by Mr Adam. It is only by taking Mr Adam to Mr Robinson's statement, the prosecution contends, that that exercise can be done and, having elicited that evidence, excise the offending evidence. 30 The prosecution contends that the purpose of the above exercise is not to incriminate Mr Robinson or use his statement in a substantive hearing as to his liability. Therefore, it is said that the compensatory protection of s60(2) of the Coal Mines Regulation Act does not apply. 31 I have to say I cannot agree. To start with, Mr Adam is being called by the prosecution in order to give expert evidence that is presumably intended to assist in establishing sufficient evidence to incriminate the defendants before me, including Mr Robinson. 32 In order to do that, Mr Adam has relied directly, in part, on answers provided by Mr Robinson under the compulsory provisions of s60(1) of the Coal Mines Regulation Act. By 'directly' I mean he has read and relied upon Mr Robinson's statement rather than any document derived from, or obtained as a result of, Mr Robinson's statement. 33 In other words, Mr Robinson's statement is not, it seems to me, the type of derivative evidence as referred to by Mason CJ in Hamilton v Oades (1989) 166 CLR 485 at 496 to which my attention was drawn: Of course, the section gives no protection to the witness against the use in criminal proceedings of derivative evidence; that is, evidence which is obtained from other sources in consequence of answers given by the witness in his examination. 34 It seems to me that by relying directly on answers given by Mr Robinson in order to express the opinion that he now does, Mr Adam has made a direct use in evidence of the answers of Mr Robinson. Even if it is said that the use of Mr Robinson's answers by Mr Adam in expressing his opinion was an indirect use of Mr Robinson's answers rather than a direct use, the compensatory protection still, it would seem, exists. 35 On that point, I refer in the first instance to the following statement in Mason CJ in Hamilton v Oades at 495: Mortimer v Brown is a striking illustration of statutory abrogation of the privilege where the intention to abrogate was ascertained by necessary implication. Although Mortimer v Brown was decided before Sorby established that the privilege is designed to protect a witness from indirect use of answers which may tend to incriminate the circumstances in no way affects the authority of the decision. 36 Reference to Sorby is reference to the decision of the High Court in Sorby v The Commonwealth (1983) 152 CLR 281 and, the point summarised by Mason CJ above is drawn from the comments and conclusions of Gibbs CJ at pages 291-292. 37 Counsel for the prosecution has submitted that only by reference to Mr Robinson's statements can the extent or otherwise that the reliance placed by Mr Adam on Mr Robinson's answers for the purpose of expressing his opinion be determined. Such a proposition, it seems to me, runs entirely counter to the compensatory protection afforded by s60(2) of the Coal Mines Regulation Act. 38 If I may draw upon the conclusion of Smart J in Hood by way of analogy, to undertake some look-and-see exercise between Mr Adam's statement and the statements of Mr Robinson, protected as they are by s60(2), is not only making it hard to draw a line, it makes it impossible to protect Mr Robinson's answers from coming before the court as part of a process that carries with it a substantial risk that it may have the tendency to incriminate Mr Robinson, let alone any other defendants before me. 39 I should also add that my concern in relation to the court considering Mr Robinson's statement is not directed so much as to whether I would have to 'wrestle with the difficulty of whether or not evidence is tainted.' It is as much concerned with the perception that, having read Mr Robinson's statements, my obligation to deal impartially and fairly with the matters that I have to determine would seem to be tainted or would be seen to be tainted. 40 As the trier of both fact and law, it seems to me that the abrogation of Mr Robinson's rights against self-incrimination and the compensatory protection afforded to him does not envisage the trier of facts and law in subsequent criminal proceedings for offences arising in relation to answers given under compulsion of law having access to those questions to determine an issue that goes ultimately to the admissibility of evidence that would tend to incriminate him or there being a substantial risk that that it may. 41 I see nothing within the Coal Mines Regulation Act or elsewhere that would circumscribe reference to 'in any proceedings' in s60(2), such that proceedings on a voir dire were excluded from the compensatory protection of the subsection. 42 Nor, I should add, do I consider any questions asked of Mr Adam in cross-examination by counsel for Mr Robinson as constituting a waiver of Mr Robinson's compensatory protection. Those questions established, no more no less, in my view, that Mr Adam had made direct use by way of reference to Mr Robinson's answers in expressing the opinions that he does now does. 43 In all the circumstances, therefore, I am of the view that Mr Robinson's statements cannot be admitted on the voir dire to determine the admissibility of Mr Adam's statement. 44 I have still to determine the admissibility of Mr Adam's statement. I should add further that the ultimate admissibility of Mr Adam's statement is a different issue from that which has been canvassed before me on a number of occasions in this hearing to date both in relation to Mr Adam's statement and other evidence. That is, once admitted, against which of the defendants is that evidence admissible? That is an issue to be determined in due course when all the evidence is before me. 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