Crown Solicitor's Office

Regulatory and environment insight accusatorial principle

Issued: 1 October 2021

When self-incriminating evidence can be used: the limits of the accusatorial principle

Turnbull v Office of Environment and Heritage [2021] NSWCCA 190

Key points

The use of an admission made by a person in civil proceedings as evidence in subsequent criminal proceedings did not contravene the accusatorial principle in circumstances where:

  •  the criminal proceedings were not pending or likely
  •  the admission was made voluntarily
  •  no undertaking was made.


The Office of Environment and Heritage (OEH) commenced civil proceedings against Mr Turnbull in the Land and Environment Court (LEC) to restrain the alleged clearing of certain land, and to seek remediation orders. In the proceedings, on legal advice, Mr Turnbull admitted to breaching s. 12 of the Native Vegetation Act 2003 (the NV Act) in open court.

Subsequent to the hearing taking place, but prior to the judgment being delivered, the OEH initiated a prosecution of Mr Turnbull in the criminal jurisdiction of the LEC (at [15]). The OEH proposed to rely on certain evidence, including Mr Turnbull’s admissions (at [18]).

An application by Mr Turnbull seeking, amongst other things, that the admissions made by him in the civil proceedings be ruled inadmissible in the criminal proceedings was dismissed by Duggan J (at [21]-[24]).

Appeal against interlocutory decision

In the Court of Criminal Appeal (CCA), Mr Turnbull complained that Duggan J's refusal to exclude the admissions from evidence in the criminal proceedings contravened the accusatorial principle, pursuant to which the prosecutor must prove its case against an accused without compelling the accused to assist in the discharge of the onus of proof.

Mr Turnbull challenged Duggan J's finding that he was not compelled to make the admissions in the sense required to give rise to the application of the accusatorial principle. Her Honour considered that the applicant was not faced with the "invidious choice" of whether to defend himself in civil proceedings where criminal proceedings are pending or likely, to the potential detriment of the defence or right to silence in criminal proceedings (at [38], [45]-[46]). The applicant submitted that compulsion should be understood in a wide sense, citing Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 (AFP v Zhao).

The respondent submitted that the accusatorial principle was not engaged in circumstances where Mr Turnbull was not compelled to make the admission in circumstances where it was voluntarily made without inducement and no undertaking was given in respect of any subsequent prosecution ([57]-[71]).

The CCA dismissed the appeal and held:

  • The accusatorial principle's practical application is not absolute. The right to silence can be limited or abolished by legislation of sufficient clarity (at [81]).
  • To contend that everything said in civil proceedings should be unavailable for use in later criminal proceedings would constitute an impermissible expansion of the approach taken in AFP v Zhao (at [84]).
  • While the applicant has suffered disadvantage from being the subject of two sets of litigation, there are mechanisms by which the law ameliorates such disadvantage, including under the Evidence Act 1995 (see s. 90, for example).

Implications for prosecutors

Whilst a cornerstone of criminal law, the accusatorial principle is not absolute. When deciding whether to seek to rely on evidence adduced by a defendant in civil proceedings in criminal proceedings, the prosecutor should consider whether the defendant was compelled to give the evidence or faced 'an invidious choice' in the sense required to give rise to the application of the accusatorial principle.


Jonathan Vasiliou, A/Director
02 9474 9227

Jessica Wardle, Principal Solicitor
02 9474 9585

Sophie Sauerman, Solicitor
02 9474 9588

The CSO’s Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.

Last updated:

16 Nov 2022

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