The Full Court of the Federal Court of Australia (Full Court) handed down its decision on 15 February 2019 in Helicopter Resources Pty Ltd v Commonwealth of Australia [2019] FCAFC 25.  The case involves an appeal to the Full Court by Helicopter Resources Pty Ltd (Helicopter) arising from a decision of the Federal Court which we previously reported on in November 2018.

Briefly, the matter relates to a Coronial inquest commenced in September 2017 in relation to the death of Captain David Wood on 11 January 2016 (the Inquest).  On 20 December 2017, Captain Wood’s employer, Helicopter, was charged with offences under the Work Health and Safety Act 2011 (Cth) (WHS Act).  The Commonwealth of Australia (the Commonwealth) had engaged Helicopter to provide helicopter support services at the relevant time and was also charged with offences under the WHS Act.  The third charge brought against both Helicopter and the Commonwealth related to the events of 11 January 2016 (the criminal proceedings).

The Commonwealth had written to the Chief Coroner requesting Helicopter’s Chief Pilot, Captain David Lomas, be available for cross-examination at the Inquest.  The topics to be covered by the cross-examination would overlap with key aspects of the subject matter of the criminal proceedings.  Helicopter made submissions to the Coroner that the Inquest should be adjourned until the criminal proceedings were concluded.  The Coroner issued a subpoena to Captain Lomas and ruled on 12 April 2018 that he would be required to give evidence.  Helicopter sought judicial review of the decision not to adjourn the inquest until finalisation of the criminal proceedings.

Captain Lomas had not been charged, was not a party to the proceedings and there was no evidence as to the position he took in relation to being called to give evidence.  However, according to Helicopter, he was its ‘guiding mind’ and calling him to give evidence would constitute an interference with the due administration of justice.  Helicopter did not rely on a case of direct interference.  It sought to rely “…upon the adverse consequences to it, and the forensic advantages accruing to the prosecution or the Commonwealth, arising from any overriding of [Captain] Lomas’ rights.” (paragraph 115).  The Commonwealth submitted “…the hallmark of the accusatorial system was that the accused was not required to answer any questions of prosecuting authorities from the investigation phase through to the end of the trial” (para 124) and given Captain Lomas was not accused of anything the questioning of him “was not interfering with the same kind of rights as having the accused questioned” (paragraph 134).

The FCAFC considered provisions of the Evidence Act 2011 (ACT) and determined the evidence Captain Lomas could give at the Inquest would be capable of being tendered by the prosecution as an admission against Helicopter in the criminal proceedings.   “As a matter of practical reality, if Captain Lomas were required to give evidence to the Coroner before the completion of the criminal trial, that requirement would have a tendency to interfere with the due course of justice in that trial…”.  FCAFC went on to find the questioning of Captain Lomas would likely advantage the prosecution and co-accused by providing the opportunity to explore Mr Lomas’ evidence and would deny Helicopter the ability to rely on the “…fundamental principle of the accusatorial process …that  “it is for the prosecution to prove the guilt of an accused person”’ (paragraph 182) and if Captain Lomas were compelled to give evidence in the Inquest “…the appellant’s position as an accused corporation in the criminal proceedings would be altered fundamentally” (paragraph 189).

The appeal was allowed and the subpoena for Mr Lomas to give evidence at the inquest was stayed until finalisation of the criminal proceedings.


The author acknowledges the contribution of Nadeem Hekmat to this article.

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