Australia: Recap of investigation powers under the EP&A Act and implications for evidence in criminal proceedings

In brief - Two significant judgments in 2019 highlight that investigation powers under the EP&A Act are broad and must be correctly exercised for evidence obtained to be admissible in subsequent proceedings

Declaration of interest: Colin Biggers & Paisley acted for the defendants in Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7; Port Macquarie-Hastings Council v Mansfield [2018] NSWLEC 107; and Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146.

The views expressed in this article are solely those of the authors.

With increased enforcement budgets and enforcement officers in many of those organisations around NSW regulating planning and environmental laws, those being investigated and prosecuted, as well as those doing the investigating and prosecuting, need to be aware of the controls on investigation powers.

This year, two significant judgments have been handed down about whether a Council properly exercised investigation powers under Division 1C (now Division 9.2) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act):

1. Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7 (Mansfield), and
2. Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146 (Waite)

These cases are important for both prosecutors and defendants in planning prosecutions in Class 5 of the Land and Environment Court or Local Court.

The decisions have implications for the evidence that comprises the prosecutor's brief, and the admissibility of that evidence, but also on the way interviews and requests for information are handled.

Port Macquarie-Hastings Council v Mansfield

This Court of Criminal Appeal case related to the validity of a notice issued under section 119J (now section 9.22) of the EP&A Act. This is a notice requiring a person to answer questions.

The Mansfield case followed another important judgment in Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10 (Zhang). In that case, Preston CJ held that a notice requiring a person to answer questions issued after commencement of a prosecution against the defendant was invalid. This was because these notices can only be issued to enable a Council "to exercise its functions under this Act", but the notice was in fact serving a purpose under another Act since a Council's prosecutorial functions are not conferred under the EP&A Act, but the Local Government Act 1993 (NSW).

The Council, in Mansfield, had issued subpoenas based on information obtained from the defendant's response to a section 119J notice. But at the time the notice was issued, proceedings had not been commenced.

At first instance (Port Macquarie-Hastings Council v Mansfield [2018] NSWLEC 107), the subpoenas were set aside because the section 119J notice was held to be invalid as, among other things, it was issued after Council's investigation officer formed the view that a criminal prosecution was a very substantial, if not his only, or his primary, purpose in issuing the notice to the defendant.

However, on appeal the Court of Criminal Appeal (after reinterpreting the pleaded ground of appeal) found that the section 119J notices were not ultra vires, as the Court held the notice was issued for an investigation purpose under the EP&A Act. The Court held it was artificial to draw a distinction between investigations for the purpose of a criminal prosecution and investigations for other purposes pursued under the EP&A Act.

Implications of Mansfield decision

A Council's power under section 119J to compel production of documents and answer questions or provide information is much broader than that of a subpoena. For example, a subpoena must have a legitimate forensic purpose, and cannot be a "fishing expedition".

The Court of Criminal Appeal's judgment in Mansfield means that section 119J notices (now section 9.22) need to be considered in light of its purpose. The Court stated:

The fact that criminal proceedings may or may not have been contemplated or already instituted at the time the notices were issued is but one factor informing the assessment of whether the issue of the notices did or did not occur in connection with an investigation purpose. It follows that the relative timing of the issue of the notices on the one hand and the institution of criminal proceedings on the other hand is a persuasive, but is not a determinative, consideration in deciding whether or not the issue of s 119J notices occurred in connection with an investigation purpose.

The decision practically makes it more difficult to challenge subpoenas even when the output of the notice forms the basis of issuing subpoenas in later criminal proceedings. It also makes it difficult to challenge such notices at the time they are issued, unless evidence exists that the purpose for which it is issued is not for an investigation purpose. It is really only after proceedings are commenced that challenging such a notice would become more feasible given the difficulties in obtaining evidence as to the purpose of the notice before proceedings are commenced.

Importantly, information obtained in the response to a notice can then be used by the prosecutor to later issue a subpoena in the prosecution.

Port Macquarie-Hastings Council v Waite

This Land and Environment Court judgment was handed down after a voir dire on the admissibility of a Record of Interview (ROI) conducted between the accused and the prosecutor.

This judgment demonstrates that unless the proper warning is given before a ROI, a ROI will be inadmissible, regardless of the importance that evidence has to the prosecutor's case.

The central question in this case was whether the Council was required to warn the defendant that he could object to answering a question during the interview on the ground that it might incriminate him, in order for the ROI to be admissible in evidence by operation of section 119S(3) (previously section 9.31(3)) of the EP&A Act.

The following sub-questions arose in the course of analysing the circumstances in which the ROI had been conducted:

• Had the Defendant been "required" under section 119K(1) to attend and answer the Council's questions?
• If "yes", then a failure to give the warning contained in section 119S(3)(b) of the EP&A Act results in the ROI being inadmissible by reason of the operation of the chapeau to section 119S(3) of that Act.
• If "no", then:
• Did the investigation officer have statutory authorisation to conduct a ROI?
• Did sections 138 (improperly or illegally obtained evidence), section 90 (unfairly made admissions) or section 85 (unreliable admissions) of the Evidence Act operate to render the ROI inadmissible?

In short, Justice Pepper found that the defendant had been "required" under section 119K(1) to attend and answer the Council's questions. The ROI was therefore inadmissible pursuant to section 119S(3) of the EP&A Act as the proper caution had not been provided.

It was not therefore strictly necessary for the judgment to determine whether the ROI should be excluded under the Evidence Act. However, Justice Pepper covered this also and found that the ROI would not have been excluded under the Evidence Act.

Excluding the evidence under the EP&A Act

Justice Pepper found at [44] that an interview pursuant to section 119K can occur either:

• without a written notice (all that is needed is the formation by the investigating officer of the mental state referred to in section 119K(1)). This can occur at any time, in any location; or
• with written notice, to specify the location of the interview.

In both of the above circumstances, a section 119S(3)(b) warning must be given.

Emails between an investigating officer and the person being interviewed can constitute the written notice. Justice Pepper stated that, if the Court had needed to make a finding, it would have found the emails in these circumstances constituted a written notice.

However, regardless of that, the Court found at [46]-[47] that the emails arranging the interview evidenced that it was highly unlikely that the investigating officer was doing something other than exercising power under section 119K to require answers, just as the officer had exercised his power under section 119J to require information or records from the defendant only three weeks earlier. The mental state referred to in section 119K(1) had been attained by the investigating officer. The Council did not submit otherwise. As Justice Pepper importantly noted at [46]:

If it were otherwise, the Council could seek to evade the protections afforded by s 119S of the EPAA by not issuing a written notice. [Emphasis added].

Therefore, although the defendant participated in the interview, this did not change the character of the section 119K interview, and "did not alter the fact that Mr Henderson was exercising his power to require him to answer the questions pursuant to Div 1C of the EPAA." (at [51]).

What you need to know

A requirement under the EP&A Act to attend an interview and answer questions may not come in the form of a formal notice. Those the subject of any request to be interviewed and authorised officers requesting interviews should carefully consider these situations since due process needs to be followed if attendance is required.

If a person is "required" to attend and answer questions under the EP&A Act, then a corresponding requirement exists to ensure that person is given the proper warning for these types of circumstances - it is not the more commonly heard caution given by police officers in movies derived from 139(2) of the Evidence Act.

If the proper caution is not issued, prosecutors can be prevented from relying on the evidence obtained from that interview, and defendants can object to the material being used in evidence if proceedings are commenced.

Implications of Waite decision

The decision does not limit investigation powers, but rather reiterates the requirement that where those powers are exercised, the proper caution must be given. It is important when these powers are being exercised to consider the source of the powers, and the requirements as to how those powers are then exercised.

This judgment is also important for defendants and those subjected to these processes. If evidence has been obtained under Division 9.2 of the EP&A Act, but the defendant either:

• objected at the time to giving information or answering questions on the ground that it might incriminate themselves, or
• was not warned on that occasion that they can object to furnishing the information or giving the answer on the ground that it might incriminate themselves,

the defendant can expect a prosecutor to be held to the standard in section 9.31 (formerly section 119S) of the EP&A Act. That evidence will not be admissible.

Investigative powers must be properly exercised

The investigation powers under Division 9.2 (formerly Division 1C) of the EP&A Act are broad and can, among other things, compel persons to:

• provide documents or information in response to a notice under section 9.22 (formerly section 119J), and
• answer questions at an interview pursuant to section 9.23 (section 119K).

Given that these powers run against the grain of important freedoms like "the right to silence", these powers have checks and balances which need to be observed if they are to be exercised.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.