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Criminal practice – accusatorial system of criminal justice – companion rule

Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16 (24 April 2020) was an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the operation of s87(1)(b) of the Evidence Act 2011 (ACT).

That provision relevantly entails that a representation by an employee of a party may be taken as an admission by the party if the representation relates to a matter within the scope of the employee’s employment.

The principal question for the High Court was whether s87(1)(b) had the effect that invocation of an investigative power to compel an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence amounts to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case. The High Court answered that question in the negative.

Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly. Edelman J separately concurring. Appeal from the Full Court of the Federal Court of Australia allowed.

David Kelsey-Sugg is a Victorian barrister, 03 9225 6286, email dkelseysugg@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

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