Today’s correspondent is interested in my:
… advice regarding providing a caution to an individual who is believed to have breached the Rural Fires Act 1997 (NSW) or the Protection of Environment Operations (Clean Air) Regulation 2010 (NSW) (‘the PoEO Regulation’).
Both the Rural Fires Act and the PoEO Regulation contain criminal offences, for example under the Act it is an offence to light a fire on another person’s land (s 100(1)) or to leave a fire before it has been extinguished (s 100(2)). Under the PoEO Regulation it is an offence to set certain fires without an approval (r 12) or to set a fire without taking whatever ‘practicable means as are necessary to prevent or minimise air pollution’ (r 10(1)). My correspondent says:
A very regular occurrence for RFS volunteers is to be called to a fire where there is potentially a breach of the RF Act, the POEO Reg, or both.
Some guidance that has been (verbally) provided from staff is that those on scene should make enquiries of those they may encounter at such incidents, such as “did you light this fire”, “can I have your details or some identification”. The objective appears to be that whatever is said to the volunteer would later form part of a witness statement in the event of a prosecution by the respective agencies or Police.
The question then arises, are RFS volunteers, in making inquiries of individuals who are suspected of committing a criminal offence (in the case of the RF Act), or a civil offence (in the case of the POEO Reg), obliged to issue a caution similar to Police to the effect that anything said may be later tendered as evidence in court?
(I’m not sure what is meant by a ‘civil offence’. The PoEO regulations provides for criminal offences. They are not ‘civil offences’ just because they are in a regulation, but nothing turns on that).
The legislative basis for a caution
The Evidence Act 1995 (NSW) s 138 says, in effect, that evidence that is illegally or improperly obtained should not be used against an accused person. There are exceptions but we need not concern ourselves with those. Section 139 says that an admission is improperly obtained if an ‘investigating official’ did not, prior to any questioning, ‘caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence’.
An ‘investigating official’ is (s 3):
(a) a police officer …, or
(b) a person appointed by or under an Australian law … whose functions include functions in respect of the prevention or investigation of offences.
Authorised officers under the Rural Fires Act can demand a person’s name and address (s 131A) and can issue a penalty notice (s 131) ‘if it appears to the officer that the person has committed a penalty notice offence’. I will assume that an authorised officer is an ‘investigating official’ but that does not include most RFS volunteer firefighters (see the comments below). In this post I am talking about volunteers who are not ‘authorised officers’ or fire investigators.
If that’s correct an RFS volunteer does not have to issue a caution; but there is more to it than that.
Exclusion of admissions where the use of the admission would be unfair.
Normally a witness gives evidence of what they saw and heard. If the witness heard another person say something, they cannot give that evidence; for example, evidence from a witness that ‘I heard Bill say “Mary broke the window”’ cannot be used as evidence that Mary broke the window. It is hearsay evidence and proves nothing about Mary. An exception to the hearsay rule is an admission. An admission is something that someone says about themselves and incriminates them in the offence. A witness cannot give evidence ‘I heard Bill say “Mary broke the window”’ but the witness can give evidence ‘I heard Bill say “I broke the window”’. That is evidence that can be used in Bill’s trial to prove that Bill broke the window. It is an exception to the rule against hearsay evidence.
The Evidence Act 1995 (NSW) s 90 says
In a criminal proceeding, the court may refuse to admit evidence of an admission … if … having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
If a person comes to a firefighter who has turned up at a fire and says ‘Mate, I’m sorry, I lit the fire and it got away from me’, then the firefighter could give evidence of that statement and it could be used as evidence that the person did in fact light the fire. Nothing unfair in that. There is also nothing unfair in giving evidence of what someone says in response to a question, so if a firefighter asks ‘what happened here?’ and the person makes an admission that would, in most cases, not be unfair.
But a person does not have to make an admission or answer any questions and that is why they are cautioned during official investigation. There have been cases where people have made it clear to police that they do not wish to answer any questions, so police have ‘gone undercover’ or used others to gain the alleged offender’s trust in order to record an admission. The courts have held that that practice is ‘unfair’ because it’s a deliberate attempt to ‘get around’ a person who is exercising their rights (see R v Swaffield  HCA 1; Em v The Queen  HCA 46).
The scenario posited is not that extreme. It is not suggested that the situation is one where the police have tried to interview a person, they have declined to be interviewed so the police ask an RFS volunteer to buddy up to the person and ask questions the police want to ask, and which the accused has refused to answer. But even so, giving the advice ‘that those on scene should make enquiries of those they may encounter … [so] that whatever is said to the volunteer would later form part of a witness statement …’ is to put volunteers on notice that they are asking questions for the purpose of collecting evidence, not just to find out what happened to inform their response. That is something they know but the person who they are asking does not know. If the person being asked the question did know that they were being asked that question in order to gather evidence to be used against them they may chose not to answer. The RFS volunteer may not need to issue a caution as they are not an ‘investigating official’ but if they are asking questions with a view to putting whatever is said in a statement for the prosecution, I would argue that would be obtaining an admission in circumstances that would make it ‘unfair’ to use the admission, and if I was the accused’s lawyer, I would ask the judge to exclude that evidence under s 90.
A volunteer firefighter who is not an ‘authorised officer’ can give evidence of admissions that are made to them. Admissions may be made by people who spontaneously volunteer information or who are responding to questions.
But where an RFS volunteer is deliberately asking questions to try and elicit an admission, then they know something the person they are asking does not. They understand that they will report the answers in a witness statement and maybe in oral evidence in any contested hearing. The person who is being asked the question does not know that. That is why police and other investigator’s give a caution- so the person being questioned understands why the questions are being asked. Even though an RFS volunteer is not required by s 139 to administer a caution, I would argue that asking questions where you have been advised to do so, or order to collect evidence, and where the person you are asking does not know that, could make the use of the admission ‘unfair’. That is not however an issue that volunteer’s need overly concern themselves with, that would be a matter for the lawyers and the judge to determine.