Safety Prosecutions, Coronial Inquiries and your employee
It is common in fatality prosecution cases for the coronial inquiry to follow the prosecution. Although an employee is not a personally compellable witness in a coronial inquiry if they have risks of criminal proceedings against them, however ‘not at risk’ employees can be called. That is particularly the case where two or more parties are involved in the causation of death. For example the business and a contractor they had on site.
The recent decision of the High Court in the Commonwealth of Australia v Helicopter Resources may change all that.
The High Court held there was nothing objectionable in another party cross-examining an employee of another organisation (which is potentially liable under safety law) about the actions of the employee’s company. In all jurisdictions but Victoria and South Australia, there is no right to silence. In Victoria an employee can refuse to give any evidence but their name and address. All jurisdictions preserve the right to protect yourself against self-incrimination. In Victoria this judgment has real impact. Multi-party fatalities, are almost always prosecuted before the coronial inquiry is convened. It is a matter of convenience that this occurs.
However, if you were acting for a party who was charged but had strong defences, you may push for the coronial hearing to dig up other defendant witnesses who could shed light on their failure of systems and processes that a committal would not permit.
Why are committals and coronial inquiries different? Committals are limited to the evidence produced by the Crown to prove their case. The Rules of Evidence apply. Coronial inquiries are broad ranging, trying to ascertain the cause of death and there are no Rules of Evidence. So you can hunt down causation.
You can run but you can’t hide – the impact on business
The case has a simple but profound risk. If you fail in a system but the cause of the failure is not known to the Safety Regulator, a coronial inquiry can find it through the actions of other parties at risk by cross-examining your employees. Then the Safety Regulator will know about it, and in all jurisdictions, there are powers to launch proceeding or amend proceedings out of time.
The answer is to make sure your systems are strong, robust and always followed. If you don’t, the risks of discovery have just been enhanced.
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