Australia: NSW Government Bulletin: Warnings and cautions for statutory requirements

Warnings and cautions

A recent decision of the Land and Environment Court has served as a reminder to those exercising enforcement powers and functions to ensure that they:

• act in accordance with their relevant delegation(s)
• strictly comply with the statutory requirements relevant to the exercise of investigative functions.

Any failure to do so could lead to evidence being inadmissible and have the potential to derail a prosecution, as recently occurred in Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146.

The judgment concerned the admissibility of a record of interview (ROI) conducted between the accused (Accused), and the prosecutor, Port Macquarie-Hastings Council (Council).

Council had charged the Accused with three offences under the Environment Planning and Assessment Act 1979 (EPAA), including carrying out development without consent and carrying out prohibited development on the land.

During the ROI, Council's investigating officer gave the following warning to the Accused:

...... I'll caution you that you don't have to say or do anything here today but anything you do say or do can be recorded and may be used in evidence against you. Do you understand that?

The central question was whether, to enable the Council to use the ROI as evidence in the hearing, the then s 119S of the EPAA (now s 9.31) required it to warn the Accused that he could object to answering a question during the interview on the ground that it might incriminate him.

Then s 119S (now s 9.31) of the EPAA sets out the provisions relating to requirements to furnish records or information or answer questions, and provides that:

A person is not excused from a requirement under this Division to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.

However, any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:

Put simply, two of the key findings of the Court were that:

• the ROI was a form of "required" questioning for the purposes of the relevant powers in the EPAA.¹ While it was the Accused who initially suggested the meeting at which the ROI occurred, the answering of the questions put to him by the Council officer on that day was found to have been "required" for the purpose of s 119K(1) (now s 9.31(3)) of the EPAA
• the Council was therefore required to give the warning in s 119S(3)(b) (now 9.31(3)(b)). Its failure to do so rendered the ROI inadmissible, as a result of the operation of sub-section (3).

The Council conceded, with which the Court agreed, that this result followed notwithstanding that the Accused was given a warning for the purposes of s 139(2) of the Evidence Act 1995 (the caution that a person does not have to say or do anything but anything the person does say or do may be used in evidence against them).

As the Accused submitted, the failure to give the warning in respect of his privilege against self-incrimination meant that he was not informed of his fundamental right to answer but maintain an objection based on self-incrimination. Rather, the choice presented to him was to either say nothing and forgo the opportunity to potentially exculpate himself, or provide an answer and potentially incriminate himself. This was contrary to s 119S (now s 9.31) of the EPAA.

Lessons learnt

In order to ensure that evidence is admissible and to have the best chance of success in any enforcement action, enforcement officers should always ensure that any enforcement and investigative actions are undertaken strictly in accordance with the terms of any applicable delegation, within the terms of the relevant statutory provisions and that appropriate warnings are given and recorded. Training and enforcement guidelines can assist in this regard.

It is also important for enforcement officers to consider and develop a strategy as to how an investigation should be conducted, including whether they are conducting the investigation for civil enforcement or criminal prosecution. For example, the power to object the subject of these proceedings only applies in criminal proceedings. However, enforcement officers should be mindful of how this power is exercised if they are also contemplating criminal enforcement as well.

Footnote

¹ Former s 119K (now s 9.23) of the EPAA sets out the powers of "investigation officers" to require answers and record evidence.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.