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Issued: 1 October 2021
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 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 ). The OEH proposed to rely on certain evidence, including Mr Turnbull’s admissions (at ).
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 -).
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 , -). 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 (-).
The CCA dismissed the appeal and held:
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.
16 Nov 2022
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