Cahill v State of New South Wales [2008] NSWIRComm 123 | Case summary | Zoe

NSWNSWIRComm

Cahill v State of New South Wales

[2008] NSWIRComm 123

Industrial Relations Commission (NSW)|2008-07-01|Before: Boland J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2008-07-01

Before

Boland J

Source

Original judgment source is linked above.

Judgment (309 paragraphs)

[1]

INTRODUCTION The incident giving rise to the charge The charge Interlocutory judgments Dramatis Personae Physical Layout of the Ballina CSC FACTUAL BACKGROUND EVIDENCE OF MS THOMAS WHETHER OFFENCE CHARGED IS ONE OF ABSOLUTE LIABILITY Case for the defendant Prosecutor's case CONSIDERATION OF ABSOLUTE LIABILITY ISSUE Relevant statutory provisions Carrington Slipways Regulatory offences The words of the statute and the subject matter with which it deals Statutory construction Objects of 2000 OHS Act Meaning of word "ensure" OHS Act is a remedial statute Defendant's reliance on Kirk Group History of the legislation Legislative intention Whether imposition of absolute liability would assist in the enforcement of the relevant statutory duty Penalties Difficulty of proof Honest and reasonable mistake of fact LIABILITY OF THE DEFENDANT Failing to prevent the client, Ms Cheryl Cooper, from attending the place of work for an interview Failing to undertake an adequate risk assessment of the client Failing to undertake a Protection Planning Meeting in respect of the client Failing to ensure that there were a security guard(s) or police officers(s) present or then attended at the place of work whenever the client attended the place of work Failing to provide an alert in respect of the client or to warn employees that the client was to attend the place of work, or both Failing to have in place adequate interview facilities at the place of work Failing to have in place an adequate emergency system OFFENCE MADE OUT STATUTORY DEFENCES Section 28(a) defence Section 28(b) defence GUILTY FINDING

[2]

INTRODUCTION 1 These proceedings involve a criminal prosecution under s 8(1) of the Occupational Health and Safety Act 2000 ("the 2000 OHS Act"). The defendant, the State of New South Wales in its emanation as the Department of Community Services ("DOCS"), has pleaded not guilty. 2 In addition to a complex factual setting that will require extensive explanation, the defendant has challenged whether the relevant offence is an absolute liability offence. The defendant relies on the decision of the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523 to contend that the offence with which the defendant was charged was one in which there was an original obligation on the prosecution to prove mens rea. Alternatively, it was put that the offence was one in which the defence of honest and reasonable mistake of fact was available and, therefore, that the prosecution must undertake the burden of negativing the relevant belief beyond reasonable doubt. The incident giving rise to the charge 3 On 24 May 2004, a client of the defendant, Ms Cheryl Cooper, attended the defendant's Ballina Community Service Centre ("CSC") for the purpose of an access visit to her three children, who had been removed from her care the week prior. An interview was conducted between the client and two of the defendant's employees employed as caseworkers, namely Ms Kylie Philps and Ms Linda Williams. During the interview the client stabbed one of the employees, Ms Philps, and threatened other staff present at the Ballina CSC. Ms Cooper was arrested, subsequently found guilty of intent to maliciously wound and sentenced to a term of imprisonment. The charge 4 As a consequence of the incident, Mr John Joseph Cahill, General Secretary of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("PSA"), empowered by s 106(1)(d) of the 2000 OHS Act, filed an application for order on 23 May 2006 that the defendant answer a charge under s 8(1) of the 2000 OHS Act. That provision requires that an employer "must ensure the health, safety and welfare at work of all the employees of the employer." 5 The particulars of the Application for Order alleged that: On 24 May 2004, at the Ballina Community Services Centre in New South Wales, the State of New South Wales (Department of Community Services) whose address is 4-6 Cavill Avenue Ashfield 2131 Sydney, New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular, Gwen Balchin, Robin Kelly, Natjsia (sic) Lapic, Lynn Meehan-Frost, Kylie Philps, Theresa Pisanos, Rhonda Sherrington, Linda Williams and Raymond Hendrikas Wilton in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000 The further particulars of the charge are: a) From time to time clients attended the place of work of the Department of Community Services ("DOCS") for the purpose of being interviewed by DOCS employees. b) There was an actual risk of a DOCS employee suffering trauma, namely, a psychic or physical phenomena, or both, which may occur when an employee is exposed to a violent event involving a client that threatens danger or anxiety, or both, and can be created by being the victim or a witness to an event or restraining any client. c) Aspects of the defendant's unsafe systems of work were any of the following: i) Failing to prevent the client, Ms Cheryl Cooper ("the client") from attending the place of work for an interview. ii) Failing to undertake an adequate risk assessment of the client that had a focus on the safety of the employees at the place of work, assessed the risk and assessed what preventative or control measures needed to be in place to prevent or reduce an incident arising or escalating to a more serious stage. iii) Failing to undertake a Protection Planning Meeting in respect of the client. iv) Failing to ensure that there were a security guard(s) or police officers(s) present or then attended at the place of work whenever the client attended the place of work. v) Failing to provide an alert in respect of the client or to warn employees that the client was to attend the place of work, or both. vi) Failing to have in place adequate interview facilities at the place of work. vii) Failing to have in place an adequate emergency system. d) Manifestations of the risk were the stab wounds to Ms Philps and the psychological injuries to Mr Wilton. 6 Mr Cahill, in his affidavit in support of the application for order, described the incident that was the subject of the charge. The affidavit provides a general picture of what occurred on 24 May 2004 at the Ballina CSC.

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Physical Layout of the Ballina CSC 19 The Ballina CSC is located on Tamar Street, Ballina. Tamar Street is a divided road with a nature strip and trees in the centre of the carriageway. On 24 May 2004, the Ballina CSC housed the Ballina offices of DOCS and DADHC. Entry to the CSC was gained via an electric sliding front door that automatically operated between the working hours of 8.30 am and 4.30 pm, Monday to Friday. Clients would enter these doors, cross the foyer and present at the reception desk. At the reception desk there was a perspex screen that extended to the ceiling. The perspex had a small gap to enable clients to talk to the receptionist. 20 In the foyer area there were doors into interview rooms, although these doors had no handles on the foyer side. A client, or any one entering from the street, could not access any area other than the foyer, unless a DOCS worker opened the internal door to an interview room for them. Behind the reception desk was the general office area. The DADHC staff were located to the left of the office area, and the DOCS employees were located in the rest of the office area. 21 The same interview room was used for all interviews with Ms Cooper in the week leading up to and on the day of the stabbing. It was located on the right hand side of the foyer as one entered from the street. There was a discrepancy in the evidence as to whether the room was known as Interview Room 1 or 2, but this appears to have been due to witnesses using different names when referring to the same room. The interview room contained two doors. One door, the internal door, was used by caseworkers to enter the room from the general office area. The other door was the external door. It had no handles on the outside, and required a caseworker to open the door from the inside to allow the client into the room. On 24 May 2004, the internal door leading to the general office area was left open whilst the interview was being conducted. 22 Inside the interview room was a rectangular table that did not cover the full width of the room, some chairs, a sink and a window with Venetian blinds, which faced into the general office area. On 24 May 2004 there was a refrigerator up against the window on which the blinds were attached. Neither of the two doors leading into the interview room had an observation window nor was there closed circuit television in the interview room.

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24 On Tuesday, 18 May 2004, Ms Glenda Christopher, Acting Manager Casework Child Protection, formally allocated the case to Ms Philps, a caseworker within the Child Protection Team of the defendant. Ms Garcia explained in her evidence, it was normal practice that when children did not have any legal status and there were concerns about risk of harm, the case was referred to the Child Protection Team. Ms Garcia was herself a caseworker within the Out of Home Care Team, and normally worked with children already living in foster care. The only reason that Ms Garcia and Ms Britton had attended the Hospital on the weekend was because they were on-call. 25 Ms Christopher originally intended to allocate the case to Ms Williams, another Child Protection Team caseworker. However, Ms Williams' workload was considered to be excessive. As Ms Philps had less of a workload, Ms Christopher allocated her the role of primary caseworker, with Ms Williams as the secondary caseworker. It was departmental policy to have two caseworkers for initial contact with clients, although the primary caseworker had main carriage of the case and held the responsibility of liaising with the client and other relevant agencies. The secondary caseworker acted as support. It was the evidence of both Ms Philps and Ms Williams that there was no discussion regarding the experience of either caseworker to work with Ms Cooper. 26 After being allocated the case, Ms Philps' evidence was that there was no formal handover meeting between herself and Ms Garcia. However, there was clearly a handing over of the case from the Out of Home Care Team to the Child Protection Team because that is how Ms Philps and Ms Williams came to be the caseworkers on the case. Ms Philps said she could not recall receiving any running notes made by Ms Garcia or Ms Britton in relation to the Sunday interview with Ms Cooper. However, Ms Philps did not access the DOCS internal computerised information system known as "KIDS" prior to her first interview with Ms Cooper. The KIDS system recorded case files and the history of clients and their children, including case notes and any other relevant information. Ms Garcia said in her evidence that she posted the information from the interview with Ms Cooper on to KIDS.

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Q. Are you able to say, based on how the system worked at the time, whether you should have been told? A. I should have been told, yes. 36 It was Ms Balchin's belief that if this information had been brought to her attention she would have had a discussion regarding whether there were other issues to be concerned about. There was some evidence led in the proceedings in relation to personal conflict between various staff members and breakdowns in communication between staff, specifically between Ms Balchin and Mr Wilton. However, Ms Sherrington agreed that this was related more to personality clashes rather than any systemic breakdown within the office. 37 During the briefing by the two caseworkers of Ms Christopher, Ms Philps was instructed by Ms Christopher to request the paper or hard copy file on Ms Cooper. Ms Philps' evidence was that at that point she was aware that Ms Cooper had had some involvement previously with a different DOCS office. She thought Lismore was the likely office, as Ms Cooper had been residing in Casino. It was the normal procedure for the caseworker to request the file and for the file to be transferred through the Document Exchange or by courier. Mr Wilton gave evidence that he had in the past used a Ballina DOCS worker who lived in Lismore to collect the file from Lismore and bring it into work with them the following morning. 38 The responsibility for obtaining a paper file was essentially that of the caseworker, although if there was a delay or any problems, Mr Wilton said the caseworker could approach their manager who, if necessary, would approach the Regional Director, who at that time was Mr Myers. Ms Philps requested the file, however it appears she did not go to her manager to hasten its delivery, nor did the manager inquire as to its status. Ms Christopher, in fact, did not know whether the file had arrived before 24 May 2004. 39 On Wednesday 19 May 2004, Ms Philps arrived at work early, and saw Ms Cooper sitting in her car outside the Ballina CSC, hitting the steering wheel with her hands and head, and "revving" the car. Ms Philps gave evidence that when she approached Ms Cooper in the car, Ms Cooper did not appear to recognise her. 40 Ms Christopher also witnessed Ms Cooper's behaviour and rang the police. During their attendance, the police removed three to five knives and scissors from Ms Cooper's car. The knives were described as kitchen knives. Ms Philps and Ms Marsh, another witness, gave evidence that they thought the knives were in the car because Ms Cooper had been living in her car. 41 The police spoke to Ms Cooper and an interview was arranged for her with Ms Philps and Ms Williams at 1.00 pm that afternoon. Ms Cooper left shortly after. 42 Ms Christopher sent out an alert email at 8.46 am on 19 May 2004 to staff at the Ballina CSC and flagged it as high importance. The email is set out below:

[58]

During this interview Cheryl leaned across the table and hit herself hard in the chest with her hand. When she did this she said, "I feel like I am dead inside." Through out this interview Cheryl again slipped into speaking a different language, which I describe as gibberish. She also made mention to Jehovah. 48 After the interview, Ms Cooper did not leave the Ballina CSC immediately and lingered in the foyer. Witnesses described her as "speaking in tongue or tongues". She also wrote over posters on the walls with comments including: "Where's God law" and "Spineless bastards, soulless heathens". Witnesses gave evidence that "speaking in tongue or tongues" was a way to describe someone not speaking in English or any other decipherable language. Ms Philps described it as gibberish. Mr Palmer gave evidence that it was not a language and was something a person with a mental health issue would use. 49 Whilst Ms Cooper was still in the foyer Ms Christopher called the police who, pursuant to their powers under the Mental Health Act 1990, took Ms Cooper to Ballina Hospital. She returned to the Ballina CSC between 20 and 40 minutes later. Ms Philps and Ms Christopher spoke with Ms Cooper at the front counter, as Ms Cooper wanted to confirm her appointment time for a mental health assessment the following day. 50 On Thursday 20 May 2004, Ms Cooper arrived for her mental health assessment at 3.30 pm. Due to a failure by Mental Health to attend, the assessment did not go ahead and was re-scheduled for Friday, 21 May 2004. Ms Cooper was interviewed by Ms Philps and Ms Williams, during which Ms Philps advised Ms Cooper that a decision to keep her children had been made. Ms Philps handed to Ms Cooper "assumption of care" papers. Ms Cooper was told, however, that she could have access to her children at the Ballina CSC on the following Monday, 24 May 2004. 51 The interview concluded at 4.15 pm and Ms Cooper left the Ballina CSC. Ms Christopher said in her police statement that: At 4.20pm I was looking though (sic) the front window of the building to ensure that Cheryl left the building. As soon as I looked out I observed Cheryl laying face down over the bonnet of her car, rocking her body backwards and forwards. I walked out to Cheryl and said, "Cheryl, I'm Glenda. I'm the manager. I can see that your not well, can I call an Ambulance for you, or could I call your doctor." Cheryl didn't answer and vomited on the ground. Cheryl moved to get into her vehicle. I was so concern (sic) that Cheryl was going to drive and was in no fit state to do so that I walked back into the office and phoned the Ballina Police. 52 It was the evidence of Ms Christopher and Ms Williams that they believed on this occasion that Ms Cooper was under the influence of "something like valium". They held this belief because of Ms Cooper's demeanour of being demure and almost sluggish. 53 Before the police arrived, Ms Cooper was involved in an incident outside the Ballina CSC. Ms Cooper rolled back her vehicle with the door slightly open, started the engine and commenced to drive east up the wrong way of the divided street. She then proceeded to reverse back into the space she had departed. Another vehicle coming down the street in a westerly direction on the correct side of the carriageway and made a gesture to Ms Cooper. Ms Cooper then sped off after the driver of the other vehicle and rammed her vehicle into the rear of the other vehicle as it stopped at a roundabout. Ms Cooper rammed the other vehicle twice more. The other driver alighted from her vehicle. Ms Cooper steered her vehicle around the other driver and drove off. Ms Williams gave evidence that had Ms Cooper wanted to hit the other driver, she could have. The police arrived shortly thereafter, but Ms Cooper had left the scene. 54 On the Thursday evening, Ms Philps had a discussion with Ms Christopher and Ms Balchin. It was decided that due to the recent events the mental health assessment of Ms Cooper scheduled for the following day should be cancelled. Further, that if Ms Cooper arrived at the CSC the police should be called, as they expected Ms Cooper to be arrested and charged. On the same evening Ms Balchin also had a discussion with Ms Williams as to whether Ms Cooper was potentially violent. Ms Williams stated that Ms Cooper had never posed a threat to Ms Philps or herself. 55 On Friday 21 May 2004, Ms Philps cancelled the mental health assessment and advised the police that if Ms Cooper arrived for her interview, the police should attend. Ms Cooper did not arrive, but the police attended at 10.45 am. In light of Ms Cooper's failure to attend, Ms Philps cancelled the following Monday's access visit for Ms Cooper to see her children. Ms Philps attempted to contact Ms Cooper on her mobile phone a number of times on the Friday to advise of the cancelled access but had no success. Ms Cooper's mobile phone was turned off. 56 On Sunday 23 May 2004, Sergeant Martin of the Ballina Police saw Ms Cooper double-parked in her car in front of the Ballina police station. She had the music playing very loudly, was reading from the Bible and crying. He attempted to talk to her to obtain her name, but she did not respond. Sergeant Martin became concerned for her welfare. He asked another police officer to call an ambulance, which subsequently conveyed Ms Cooper to the Ballina Hospital. 57 At the Hospital Ms Cooper was assessed by Mental Health. She returned to the police station at 12.30 pm and was spoken to in relation to Thursday's car ramming incident. Sergeant Martin said in his evidence that he decided not to take any action in relation to the incident at that time and considered the incident to be a relatively minor traffic matter. He had told Ms Cooper that the police officer dealing with the matter would contact her when next on duty. 58 On Monday, 24 May 2004 Ms Philps arrived at work at 8.00 am. Mr Hurley, who Ms Philps understood to be a Mental Health worker, rang Ms Philps at approximately 8.15 am. He advised that Ms Cooper had attended the hospital on Sunday 23 May 2004 and had been assessed by Mental Health. He advised that Ms Cooper did not have a mental illness, and mentioned a number of other matters including that Ms Cooper had said she did not have a criminal record. Ms Philps, in light of her knowledge of the car ramming incident, queried the accuracy of that statement and advised Mr Hurley to speak to the police. In her evidence Ms Philps stated that she said this because she felt it was important for Mental Health to have accurate information. At the conclusion of the phone conversation, Mr Hurley faxed the Mental Health Assessment report to Ms Philps. 59 It was Ms Philps' evidence that as at 24 May 2004 she had not previously seen that particular type of health assessment form sent by Mr Hurley. Ms Philps' evidence was that at the time she received the report she had a quick look over it but she had not read certain parts of the document. Prior to the interview with Ms Cooper on 24 May 2004 Ms Philps had not read that Ms Cooper had been assessed as a medium risk in relation to harm to others. Neither had she read the section of the report stating that the client should be reassessed in 24 hours, and that the report had been completed at 11.00 am on the Sunday. Ms Philps acknowledged that this 24 hour period expired at 11.00am on Monday 24 May 2004. Ms Philps said, however, that she had noticed on the morning of 24 May 2004, that Ms Cooper had a low overall risk rating, although the report did not identify what this meant. 60 After perusing the report, Ms Philps showed it to her manager, Ms Christopher. Ms Christopher acknowledged in her evidence that she had seen the report prior to the stabbing and, in particular, that she had read the section on 'Assessment of Current Risk', which rated Ms Cooper as a medium risk with regard to harm to others. Ms Philps' evidence was that she did not see the report again prior to the stabbing and that it had been left on her desk. 61 Ms Philps also had a discussion with Ms Williams regarding the mental health assessment. The conversation was relayed by Ms Williams in her evidence in chief: The main thing I would have remembered would have been something like Kylie saying to me, "Can you believe it?", and me saying, "No. They've put down low." And us both looking at it over and over and saying, "They have got to be joking." That's all I can remember that was said between ourselves.

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Q. Can you explain each of those terms as you mean each to be understood - "mad or bad"? A. Because we had not taken Cheryl's children she had such a behaviour she wanted us to put her children in care. We spent hours on the first day straining every detail to the point she was actually smiling and seemed fine, her behaviour. She turned up having a car revving up, screaming, yelling out and carrying on the way she did not make sense to us and we believed she must have had some sort of mental health disorder, as a layman, just her actions. 62 Under cross-examination, when asked whether she relied on the report, Ms Williams said: A. We are not mental health professionals, we have to rely on the documents given to us by mental health professionals to a certain extent. 63 Ms Balchin stated in her evidence that as at 24 May 2004, and before Ms Philps was stabbed, she had not seen the mental health assessment of Ms Cooper, nor had anybody talked to her about its contents. 64 On the morning of Monday 24 May, after talking with Mental Health, Ms Philps also spoke to Sergeant Martin, who advised her of the events of the previous day. Sergeant Martin in his evidence said: I dealt with Ms Cooper or Mrs Cooper the day before or 23 May when Kylie rang the custody manager. The conversation was in relation to that and I gave her certain advice in relation to what I thought was, as a police officer, that I should not tell her how to do her work as a DOCs worker but more a safety aspect. My dealings with that lady - I had not never (sic) met her until 24 hours before - except that the peculiar circumstances in which I met her indicated to me there were some mental health circumstances. They are always an unknown quantify (sic). It was more that I had spoken to her and these where the circumstances I found her. I got her help, she was an unknown quantity. Then, again, I just said if she needed any help to give us a ring at the police station, which I had done before, given advice like that. Basically along those lines. 65 Ms Philps' evidence was that she understood Sergeant Martin to say that Mental Health had got it wrong and that he believed Ms Cooper did have a mental illness. Sergeant Martin then advised Ms Philps to call if she had any problems with Ms Cooper. In relation to this advice Mr Philps said in her evidence: My understanding of their offer was that if Cheryl Cooper decided to hang around after the interview, as she had done previously, or if we had any trouble with her, that we could contact them and they would attend, not that they were willing to come and sit in on the interview. 66 Ms Philps' evidence was that she relayed to Ms Christopher what Sergeant Martin had said regarding Ms Cooper having a mental illness. 67 Shortly before midday on Monday 24 May, Ms Cooper attended the Ballina Police Station and thanked Sergeant Martin for his help. Sergeant Martin gave evidence that she was well dressed and groomed. He stated he almost did not recognise her, as she presented neat and tidy. Ms Cooper thanked him for what he did the day before, advised him that she was attending DOCS regarding access to her children and then left. 68 At approximately 12.50 pm, Ms Cooper was pulled over by the police and questioned about the significant amount of damage to her car. Whilst the police were talking to her she turned her car radio up and down. Constable Hayden's evidence was that it was very difficult to communicate with her. Senior Constable Turner, arrived soon after, and informed Constable Hayden of the car ramming incident involving Ms Cooper on Tamar Street. 69 During the discussion, Ms Cooper exited her car, squatted in the gutter and urinated. She asked how much longer they would be as she was attending DOCS for an interview at 1.00 pm. Constable Hayden wrote out a defect notice for her car and Ms Cooper was allowed to leave. Constable Hayden gave evidence that he did not arrest Ms Cooper in relation to her urinating in the gutter as he considered it a very minor offence that warranted the use of his discretion and something that was not that unusual for police to see. When questioned why he did not arrest her for the car ramming incident his evidence was that he thought the very fact that someone was aware of the situation meant that it had been dealt with. In his evidence he stated that he did not think Ms Cooper was affected by alcohol, and did not think it was something he missed. In cross-examination he said that although it was not impossible to rule out, he thought it unlikely that she had consumed half a bottle of bourbon. There was some suggestion by the defendant that on 24 May 2004 Ms Cooper was suffering the effects of drinking half a bottle of bourbon. There is no credible evidence supporting that suggestion and I reject it. 70 After Ms Cooper left, Constable Hayden and Senior Constable Turner did not notify DOCS or the Ballina Police Station of their encounter with Ms Cooper. According to Ms Philps, when she entered the interview room with Ms Cooper on 24 May 2004, she did not know about the police pulling Ms Cooper over. Her evidence in the witness box was that given the events of the past week it was information she should have had and had she had it, would have taken it to her manager who would have decided whether to conduct the interview.

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71 No alert email was sent to staff at the Ballina CSC warning them that Ms Cooper would, or might, be attending the CSC on Monday 24 May. The evidence of the majority of CSC staff was that they were not even aware Ms Cooper was in the building until the attack occurred. Ms Balchin stated that she had been advised that Ms Cooper was supposed to attend the office at a certain time but the caseworkers did not expect Ms Cooper to show up. Ms Balchin could not recall who had told her, but believed she had been told on the Monday morning. 72 Mr Wilton had no knowledge Ms Cooper would be attending the Ballina CSC on Monday 24 May 2004. He had not participated in any meetings with managers regarding Ms Cooper's attendance nor had he had any discussions about what, if any, procedures or controls should be put in place. 73 Some staff members were aware that Ms Cooper might be attending the Ballina CSC on 24 May. Ms Philps knew that it was possible that Ms Cooper might attend expecting a contact visit with her children, but she did not expect Ms Cooper to actually appear. Although the contact visit had been cancelled on the Friday before, Ms Philps had been unsuccessful in notifying Ms Cooper that the contact visit would not proceed. As to why it was not her responsibility to send an alert email advising of Ms Cooper's possible attendance, Ms Philps stated: I go to my manager, so, after interviews I brief my manager of what took place during the interview and unless instructed by them to send out an e-mail, usually that is the role of the manager, the manager usually takes that role on. 74 It was Ms Philp's evidence that she had informed Ms Christopher of the events, including that Ms Cooper would possibly be attending. In her evidence, Ms Christopher agreed that Ms Philps had frequently briefed her regarding the Cooper case and that she felt fully informed of the situation. Indeed, Ms Christopher was herself aware that Ms Cooper might attend on Monday 24 May, as she was advised of the possibility by Ms Philps on the morning of the stabbing attack. 75 Ms Williams stated in her evidence that she did not know that Ms Cooper was going to attend the CSC on the 24 May and, therefore, did not notify anyone. Ms Williams was the secondary caseworker, and it was Ms Philps who had made the arrangements. The following question was put to Ms Williams by Mr B G Docking of counsel for the prosecutor: Q. You have already indicated as best you know you had not sent an e-mail on 24 May 2004 nor did anyone else. I want to find out whether you orally told any of these persons that Cheryl Cooper might or was going to attend on that day: Gwen Balchin? A. To go back, remembering we had not seen her since the Thursday when she rammed the car; we had no notice that she was coming in, given that anybody who would have spoken to anybody about the proposal, if she was proposing to come in that day it would have been Kylie; I was the secondary so I was not part of organising or speaking to a Manager, so I didn't speak to anybody about Cheryl coming on that day.

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76 Ms Philps stated in her evidence that in the past she or Ms Williams had advised administrative staff of the interview with Ms Cooper, as they sat closest to the interview room. She could not recall, however, whether she or Ms Williams had advised them on 24 May 2004. 77 The police statement of Ms Lynn Meehan-Frost, Senior Customer Service Officer, was tendered in proceedings. In her statement she said: On Monday 24 May, 2004, Marie LEE told me that Cheryl COOPER was coming in again. About 1.10pm the bell at the front counter rang. I went to the counter and saw Cheryl standing there. 78 The police statement of Ms Natajsia Lapic, duty officer on the Child Protection Intake Team, was tendered in proceedings. In her statement Ms Lapic said: I had been informed by Lyn (sic) MEEHAN-FROST on Saturday the 22nd of May, 2004 that Cheryl COOPER would be attending the Ballina Community Service Center (sic) this week sometime, to discuss Child Protection issues involving her children. 79 Despite there being some inconsistency about when they were told, it does appear that some staff of the Ballina CSC were aware of Ms Cooper's possible attendance on Monday 24 May. In addition to Ms Philps, Ms Christopher and Ms Balchin, both managers, knew of the possibility that Ms Cooper might attend, even though they had both been informed it was unlikely. It was Ms Balchin's evidence, however, that she was not fully informed of the situation, including that there had been a death threat made. Ms Balchin explained in her oral testimony that although she had been out of the office on the morning of 24 May, she was in the office from 11.30 am and at no time thereafter was anything raised with her regarding Ms Cooper or her attendance at the CSC. The following exchange occurred between Mr Docking and Ms Balchin: Q. When you got back at about 11.30, were you at the Ballina office until the stabbing incident occurred? A. Yes I was here at a management meeting; 11.30 to 12.30; that would have been with the managers case workers so they had the opportunity to talk to me about issues of concern.

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Q. Did it get activated at all? A. I don't know. I only know after because of the way things went down I snapped my nails off which I noticed later on. I don't even know what happened to it. 95 Ms Philps and Ms Williams were unable to recall whether the alarm was activated in the interview. Ms Williams, in her evidence, stated that she had only heard the alarm go off once previously during a demonstration that had occurred months prior to 24 May 2004. Ms Philps and Ms Williams had not been part of a practice drill as to where employees should go when an alarm was activated, nor had they seen a written procedure about what to do if a client was violent in an interview room and the alarm went off. 96 It was not mandatory to take duress alarms into interviews with clients before 24 May 2004. In her evidence Ms Balchin said: A. I would not guarantee it was mandatory; all I can say, if I was the manager case worker discussing the case with a case worker and there was risk in the report or history and/or we were in an interview, we didn't know the people, I would be saying to them they must go and get a watch, wrist band thing, and take it in. 97 Mr Barrett, in his evidence, said that he had only one conversation regarding the use of duress alarms prior to 24 May 2004. It had been an unplanned conversation with the person testing the alarm and involved the person simply describing how the system worked. Ms Christopher knew that duress alarms were available for employees, as she had used them in interviews that she had conducted as a caseworker and had been instructed on how to use them. She did not, however, participate in any practice drills on what to do if one was activated. Most of the witnesses had a very limited understanding of the procedure surrounding duress alarms, indeed not one witness recalled seeing any written procedures or participating in any practice drills as to what to do if a duress alarm was activated. 98 On 24 May, Ms Cooper entered the interview room through the external door, which was opened by either Ms Philps or Ms Williams. The internal door was left ajar and enabled other caseworkers to see into the interview room. Ms Purdey, a DOCS worker, attended the Ballina CSC whilst the interview was being conducted, and witnessed through the doorway the interview going on between Ms Philps and Ms Williams. She also saw Ms Cooper sitting on the table. Ms Purdey had attended the CSC with a baby from another case and for the purpose of collecting baby supplies. She also had a conversation with Ms Balchin which was related in examination in chief by Mr Docking: Q. You then saw another person, employee Gwen Balchin at that time? A. Yes, that's right.

[95]

If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 118 The basis for this submission was that Ms Thomas had over 24 years' experience with DOCS initially by providing front line services as a caseworker, and then moving up to hold a number of managerial roles including her current position as Manager Client Services at Mount Druitt CSC, which she has held since 2001. It was the defendant's submission that no one could be more experienced on the matter than an experienced DOCS worker such as Ms Thomas. 119 Ms Thomas held the following qualifications, a Bachelor Degree in Social Science obtained from Mitchell College in 1979; a Graduate Diploma in Drug and Alcohol Studies; a Graduate Certificate in Public Sector Management and Master Business Administration (Public Sector Management), the latter being obtained in approximately 2000. 120 Prior to her employment with the defendant she worked for the Salvation Army in the role of Director for the Household in Distress Programme, which involved training volunteers and working with volunteers and families in stress. 121 During her 24 years of employment with the defendant Ms Thomas has held various positions including, caseworker, manager of a community service centre in Wellington, assistant manager at Mount Druitt CSC, and a manager (Out of Home Care) for the Cumberland Prospect Area. This last position involved supervision of Parramatta, Blacktown and Auburn CSC's for Out of Home Care programmes, as well as the supervision of 'Minali', a residential establishment for approximately 25 children. During her last position she also supervised a state-wide intervention service where caseworkers worked intensively with families in their homes. 122 In her position of Client Services Manager at the Mt Druitt office, Ms Thomas was responsible for the management and supervision of the Manager Casework (Intake), three managers Casework (Child Protection), and the Manager Casework (Family Violence Service). 123 It is apparent that Ms Thomas is a very experienced DOCS worker with a great deal of knowledge and experience in working with families and children in crisis. But the relevant question for the purpose of determining how much weight to give her evidence is whether she possesses specialised knowledge on the subjects of which she seeks to make opinions on, and if she does have specialised knowledge, does she make her opinions wholly or substantially based on that specialised knowledge. 124 I note that Ms Thomas had never given evidence as an expert witness before, nor had she read, or agreed to comply with, any expert codes of conduct such as the Supreme Court Experts Code of Conduct prior to preparing her statement or giving oral evidence. 125 Throughout her evidence Ms Thomas commented on risk assessment practices of the defendant. In order for her opinion on the topic of risk assessment to be considered by the court, it must be established that she does in fact have specialised knowledge on risk assessments: See CA Henschke & Co and Another v Rosemount Estates Pty Ltd (1999) 47 IPR 63. There must be specific evidence before the court as to the specialised knowledge of the person in relation to the specific subject matter and the training, study or experience upon which that specialised knowledge is based: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 744 and Regina v Jung [2006] NSWSC 658 at 60. 126 The following exchange occurred when Ms Thomas was asked by Mr Docking about her training regarding risk assessments: Q. Going back to risk assessment, what course, if any, had you been given in relation to conducting a risk assessment on a client who could be violent to a DOCS worker? The time period I am asking you about is on or before 24 May 2004? A. What course had we been given?

[105]

[44] This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture "opinions" (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. 130 Ms Thomas' specialised knowledge was her extensive experience as a DOCS employee. However, throughout her evidence Ms Thomas formed opinions that were not based wholly or substantially on this knowledge but instead on speculation, inference and second hand views. 131 In her statement Ms Thomas provided an explanation as to why Ms Cooper might have had her car running outside the CSC. Ms Thomas said: In relation to the incident involving the mother parking her car outside the CSC with her motor running between 6pm and 8pm in May it is probable this was to operate the car heater. 132 Ms Thomas' experience as a DOCS employee does not enable her to form such an opinion, and can only be considered to be speculative. No one other than Ms Cooper herself would be able to explain why the car was running. Ms Thomas' opinion on this subject should be given no weight by the Court. 133 In her statement Ms Thomas commented on the mental behaviour of Ms Cooper and stated that: Some of the behaviours which are reported in Philps' notes indicate that the presence of a security guard might be warranted for any interview with a caseworker, while other behaviours indicate that the client is quite harmless and just 'mad'. 134 In cross-examination she described what she meant by the term "mad": Erratic behaviour, unusual behaviour, behaviour other people might not determine normal or a normal reaction. 135 Whilst I accept in her experience at DOCS Ms Thomas would be able to recognise someone with these sorts of behaviour, I am unable to give any weight to the opinion that the client was "just mad". This opinion was based on the case notes of Ms Philps, without any personal interaction between Ms Thomas and Ms Cooper, and on the evidence before me, without Ms Thomas possessing any specialised knowledge on mental health issues. It is a second hand, personal view and must be given no weight. 136 In her statement Ms Thomas also commented on what Ms Cooper would have felt after her dealings with the case workers: Mum not treated fairly, no wonder she has reacted (doesn't sound like real temporary care, but rather a manipulation of mum to sign the papers - unless you sign, we will take you to court). From mother's point of view the caseworkers are misleading. 137 Ms Thomas' experience as a DOCS employee does not enable her to form an opinion on what Ms Cooper thought about the caseworkers. That evidence could only come from Ms Cooper. What Ms Thomas said regarding how Ms Cooper felt was speculative, based on inference, and not based on her specialised knowledge as a DOCS employee. 138 Further, by her own admission Ms Thomas conceded that some of her evidence was speculative. In her statement Ms Thomas said: Contact supervisor - who was supposed to supervise contact? If it was someone without qualifications (an ordinary 'off the street' person) that might indicate a low assessment of risk to workers by Philps. 139 In cross-examination, Ms Thomas acknowledged the following: Q. Going to subparagraph F, you don't know what qualifications any contact supervisors had or didn't have? A. That's why the comment is there because I didn't know.

[109]

140 The above examples demonstrate that in preparing her statement Ms Thomas has ventured outside the scope of her specialised knowledge, and has formed opinions based on a combination of speculation, inference, personal and second hand views: HG v The Queen. Ms Thomas' evidence on those topics should be given no weight. 141 In addition to her opinions not being made wholly or substantially on the basis of her specialised knowledge as an experienced DOCS worker, Ms Thomas' evidence is inconsistent with the weight of the evidence. 142 For example, in her statement, Ms Thomas said: The fact that the Police have not been called in to be present for any interview, notwithstanding all of the behaviours reported, indicates that the caseworkers did not consider the client to be of a high risk (of violence to employees). If the caseworkers had thought that the client was high risk they would have put the police on alert or called them in for the interview. 143 This is in contrast to the direct evidence of Ms Philps that both Ms Williams and herself had identified Ms Cooper to be high risk after their first interview with her at the Ballina Hospital. Ms Williams stated that after this first interview she recognised it was a complex case and a potentially violent client. 144 Another example was in Ms Thomas' oral evidence when she said: The office was well aware that the woman was coming into the office, the case workers had had good communication with their managers and with mental health authorities and with the police, and a decision had been made that, I would say that everybody was aware that that interview was going to happen and they would have talked about possibilities, about the mother being in rehab and how I would handle that. 145 I have already found that no email was sent to the office on 24 May 2004 alerting staff that Ms Cooper might attend on that particular day. I note that Mr Wilton, a manager, did not know that Ms Cooper was to attend on 24 May 2004 and had not participated in any discussion regarding what procedures or controls should be put in place for the interview. Ms Balchin gave evidence that although she had been advised that Ms Cooper might attend, she had been told it was unlikely that she would show up. Further, Ms Balchin had not been approached by any manager regarding Ms Cooper attending on 24 May 2004. 146 In her statement Ms Thomas also commented on the knowledge and actions of managers at Ballina CSC: The caseworkers' managers would not have allowed the meeting to go ahead on 24 May 2004 if they considered there would be a real risk to the caseworkers' physical safety. The managers were briefed about the matter. You would expect the mother to be upset and shout and be angry but if physical safety was at risk a manager wouldn't allow a meeting to go ahead 147 Not only is this speculation as to what the managers would or would not have done, it states that the managers were briefed about the matter. The evidence before the Court, however, was that with the exception of Ms Christopher, who was not present at the CSC at the time of the interview and attack, no other manager was fully briefed on the matter. I note that Ms Balchin had been advised it was unlikely that Ms Cooper would attend on 24 May 2004, and that she did not know of the death threat against Ms Garcia, nor of the mental health assessment or its contents. Mr Wilton did not know that Ms Cooper would even be attending on 24 May 2004. The weight of the evidence was against Ms Thomas in this regard, and accordingly her evidence on the topic should be given no weight.

[113]

151 The three categories were described by Dawson J in He Kaw Teh in the following passage at 590: In relation to the offence of importing narcotic goods into Australia, the question which arises is whether the prosecution has to prove any mental state accompanying the importation. In other words, the question is whether mens rea is an ingredient of the offence to be proved by the prosecution. If it is not, the further question arises whether the offence is one of strict liability which, whilst not requiring the prosecution to prove mens rea in order to make out a case, allows the accused to raise honest and reasonable mistake by way of exculpation. To that extent a mental element is imported into an offence of strict liability short of requiring proof of mens rea by the prosecution. The mistake must involve a belief in a state of affairs which, if true, would make the act of the accused innocent. If the statute in neither of these ways requires any mental state to accompany the importation, then the offence is an absolute one and is complete once the prohibited act of importation is proved. Offences of strict or absolute liability are creatures of statute. The terms "strict liability" and "absolute liability" are not always used precisely and sometimes interchangeably, but used as I have used them, they are a convenient way of drawing the distinction to which I have referred. 152 Thus, it was submitted, it was clear that the presumption was not confined to a narrow conception of mens rea; it also applied when the question was whether a statute allowed for a ground of exculpation based on honest and reasonable mistake. Reference was made to what Black CJ said in Chief of the General Staff v Stuart (1995) 58 FCR 299 at 303: It is natural that the presumption that mens rea is required should apply when the question is whether it was intended that an honest and reasonable mistake should be a ground for exculpation since the absence of an exculpatory belief is now seen as a form of mens rea: see Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 659, per Wilson , Dawson and Toohey JJ, referring to the observations of Brennan J in He Kaw Teh at CLR 580.

[114]

The defendant also referred to Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120, where Mahoney JA said at 127: What is in issue essentially is the nature of the mens rea or mental element involved in the offence created by or under [the statute]: see generally He Kaw Teh (at 530, 568, 590). It is, as pointed out in He Kaw Teh , convenient to employ for this purpose descriptions such as "absolute liability" and "strict liability" (at 590, per Dawson J). But, in principle, what must be determined is that of which the defendant must be aware in order that the offence be committed. In the end, that can be stated only in terms formulated by reference to the precise acts or omissions which constitute the offence. 153 That a breach of the general duties under Div I of Pt 2 of the 2000 OHS Act is to be regarded as an absolute liability offence has been the accepted wisdom of this Court since the Act came into force. The predecessor provision to s 8(1) of the 2000 OHS Act, which was s 15 of the Occupational Health and Safety Act 1983 ("the 1983 OHS Act"), has also been regarded as an absolute liability offence ever since the decision of Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467, a decision the correctness of which has been repeatedly affirmed by Full Benches of this Court. That this is so, is evident from the majority judgment (Walton J, Vice-President, Boland J) in Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) (2006) 159 IR 121 at [214]: Although the issue was not raised by either party in these proceedings, it is pertinent at this juncture to comment briefly upon one other matter of principle: the absolute nature of liability under ss 15 and 16, referred to in remarks by Basten JA in Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of New South Wales & Anor [2006] NSWCA 172 at [146]. While there has been, at times, variance in the language used, the settled authority of this court plainly establishes that liability is absolute as the Full Bench observed recently in Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355 at [49]. (See also Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 449; WorkCover v Coffey Engineering (2001) 110 IR 447 at [16]-[17]; Ridge Consolidated v WorkCover (2002) 115 IR 78 at [32]; WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at [58]; Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 at [97]; WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 at [45]; Daly Smith Corporation (Aust) Pty Limited and Anor v WorkCover Authority of New South Wales (Inspector Mansell) (2006) 151 IR 173 at [33]; Inspector Schultz v Hoffman's Kundabung Sawmilling Pty Ltd [2006] NSWIRComm 277 at [54]; and Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 at [148]). This stems from the unconditional, objective nature of the liability (see Shannon v Comalco Aluminium Pty Ltd (1986) 19 IR 358 at 470; State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120 - 121; Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50; ABB Power Transmission Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [1997] NSWIRComm 60; Ferguson v Nelmac Pty Limited (1999) 92 IR 188; WorkCover Authority (NSW) v State Police (NSW) (No 2) (2001) 104 IR 268 at [20]; and McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241); the exclusive nature of the defences available under s 53 (allowing no countervailing defence of honest and reasonable mistake of fact - see, for example Kelloggs (No 1) at 259 and Inspector Wolf v Rockdale Beef Pty Ltd at [147]); and the important social purposes of the Occupational Health and Safety Act and its successor, discussed by the Full Bench in WorkCover v T V & Y Pty Ltd (2005) 146 IR 458 at [7]; Beacham v Interface Manufacturing Pty Ltd (2005) 141 IR 416 at [27]; Glass v Flexible Packaging (Australia) Pty Limited (2005) 144 IR 385 at [2]; and T and M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 at [77]). 154 Counsel for the defendant submitted, however, that there may not have been the fullest assistance possible provided to the variously constituted Courts when construing the 2000 OHS Act and its predecessor, in the sense of detailed submissions regarding the applicable principles of criminal responsibility as decided by the common law. Further, that the leading High Court authority, He Kaw Teh, had not been the subject of any extensive submissions to the Court. Counsel noted that the foundational authority - the judgment of Watson J in Carrington Slipways v Callaghan - was decided before He Kaw Teh. It may be noted, though, that the common law presumption that an essential ingredient of every offence is that the defendant knew of the wrongfulness of his or her act and that such a presumption could be displaced expressly or by implication, was not a new proposition derived from He Kaw Teh: see Sherras v De Rutzen [1895] 1 QB 918 at 921; Proudman v Dayman (1941) 67 CLR 536 at 540 per Dixon J.

[119]

162 In relation to the second principle derived from He Kaw Teh - the subject-matter with which the statutory provision deals - it is relevant in the manner explained by Dawson J in He Kaw Teh at 595: Resort must then be had to the subject-matter or character of the legislation. Attempts have been made to categorize those offences which have been regarded as absolute, but the result is only helpful in a broad sense and the recognized categories cannot be regarded as exhaustive. It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation by making people govern their behaviour accordingly. See Lim Chin Aik v. The Queen (1963) AC 160. Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders. 163 Mr Skinner accepted the 2000 OHS Act had an important social purpose, but contended that so it was in respect of s 233B(1)(b) of the Customs Act considered in He Kaw Teh and in the provisions considered in the other cases referred to above, but in those cases the presumption had not been displaced. The defendant also noted that in He Kaw Teh, Brennan J, in his judgment, rejected the proposition of the Judicial Committee in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 at 14 that "the presumption [that mens rea is an essential ingredient in every offence] can be displaced where the statute is concerned with an issue of social concern, and public safety is such an issue" as being too categorical an approach (at 567 - 568).

[121]

166 In the present case, Mr Skinner accepted that the weight of the evidence was that there was always some risk of client aggression towards caseworkers employed by the defendant doing the work that was being done at Ballina CSC. However, it was submitted that no one had the slightest suspicion that Ms Cooper had a concealed knife that she had brought into the interview room and that, therefore: [I]t accords with fundamental principles of justice in the criminal law for it to be held that a person should not be liable under the OHAS Act for failing to eliminate risks that it knew nothing of, or at least that it thought did not exist on the basis of an honest and reasonable view of the relevant facts. 167 It was submitted for the defendant that there was nothing in the terms of s 28 of the 2000 OHS Act to compel the conclusion that the prosecution did not have to prove a mental element in defendants to s 8(1) charges. Reference was made to Environment Protection Authority v N where the Protection of the Environment Administration Act provided a defence under s 7 in identical terms to s 28(b) of the 2000 OHS Act, yet the Court in that case held that honest and reasonable mistake was a defence. Further in Chief of General Staff v Stuart, s 44 of the Defence Force Discipline Act provided a defence under s 44(2) in very similar terms to s 28(a) of the 2000 OHS Act, yet the Court in that case held that honest and reasonable mistake was a defence. Black CJ said in that case at 305: As He Kaw Teh shows, the existence of a statutory defence does not mean that the presumption that mens rea must be proved is necessarily displaced with respect to the offence for which such a defence is provided. The presence of a statutory defence may give different indications in that regard according to which element of an offence is being considered and in a prosecution under s 44 the defence provided for by s 44(2) would be of no use to a person who did not know that particular property had in fact been entrusted to his care and who had therefore not taken steps for its safekeeping. 168 Adapting the words of Black CJ, Mr Skinner submitted the defence provided for by s 28(a) of the 2000 OHS Act, as it had been interpreted in this jurisdiction, was of no use to a defendant who did not know of the risk that it was to ensure against or had an honest and reasonable belief that such a risk did not exist.

[129]

c. the assistance provided by the United Kingdom authorities which show that the English Courts at the highest level have regarded an offence under the counterpart English legislation as absolute; · the words in s 8(1) "must ensure" have a settled meaning following Carrington Slipways at 470; · there is no basis for any interpretation on s 8(1) other than a literal one; · Waugh v Kippen and Another (1986) 160 CLR 156 is against the defendant in relation to what the words of the 2000 OHS Act indicate about the nature of the offence. The present offence does not contain any words like "permitted or allowed" that presuppose an awareness, actual or constructive, on the part of an employer; · the purposive approach to interpretation suggests that words "must ensure" should not be read down. Nevertheless, the literal interpretation of s 8(1) is ameliorated or has some flexibility; · the subject matter is workplace health, safety and welfare. Workers often spend half, or more than half, of their waking hours on workdays at their places of work. Preventing or reducing, to the extent reasonably practicable, workplace fatalities and injuries puts the present legislation in a different category to the other Acts to which the defendant has made reference; · the subject matter of the legislation is a general duty cast on an employer that is both preventive and remedial in nature. The duty must be interpreted in the sense favourable to making the remedy effective and the protection of workers secure; · it would drive a juggernaut through the legislative scheme if corporate employers could avoid criminal liability where the potentially harmful event is committed by someone who is not the directing mind of the company. It would emasculate the legislation if the prosecution had to prove a "directing mind"; · knowledge is not an ingredient of the offence and the organic theory of corporate structure used to impute knowledge on a corporation, as formulated in Tesco Supermarkets Ltd v Nattrass [1972] AC 153, is irrelevant in view of the absolute nature of the offence (Dawson v State Rail Authority of NSW (1988) 26 IR 359 at 366 per CIM); · none of the cases relied upon by the defendant to show that the offence is absolute are of any help because of the different legislation considered in those cases; · it appears untenable to argue that Parliament by implication retrospectively changed what was an absolute liability offence into a strict liability offence when the 1983 OHS Act was amended after its introduction to increase the maximum available penalties. The same applies when Parliament enacted the 2000 OHS Act and maintained the higher penalty regime; · when the 1983 OHS Act was enacted the maximum available penalties in all jurisdictions involved fines and not imprisonment. This is an indication supporting absolute liability offences (R v Davies [2003] ICR 586 at [18], [19]); · even where imprisonment is now a sentencing option this does not indicate away from the offence being absolute liability; · even if the Court finds that the offence is one of strict liability, the prosecution has negatived the defence beyond reasonable doubt: a. Just like in R v Lavender (2005) 222 CLR 67, any opinion of an employee of the defendant that it was safe to act as she did was not a relevant matter - it is not a mistake of fact. The defendant never turned its mind to the facts and falls far short of the defence. It was more based on faith than facts,

[153]

Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the South Australian Industrial Safety, Health and Welfare Act , 1972, where in reg.4 the phraseology used is "shall take all reasonable precautions to ensure" (see Smith v. Elliott Bros. (1980) 26 SASR 138). What intention is to be inferred from the use of the words "shall ensure" which (leaving aside s.53) are without qualification? In Sweet v. Parsley [1970] AC 132 at 163 (a case in which the House of Lords was called upon to consider the question of the absolute nature or otherwise of a statutory offence) Lord Diplock stated as follows: Where penal provisions are of general application to the conduct of ordinary citizens in the course of their every day life the presumption is that the standards of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject matter of a statute is a regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfill the ordinary common law duty of care. But such an inference is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation (see Lim Chin Aik v The Queen [1963] A.C. 160, 174). (See also Proudman v. Dayman (1941) 67 CLR 536 at 540 per Dixon J (as he then was) and John Summers & Sons Ltd v. Frost (1955) 1 All ER 870 at 872).

[158]

185 As I have earlier explained, the presumption that mens rea is an ingredient of a statutory offence is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, or by considering whether the imposition of absolute liability would assist in the enforcement of the relevant statutory duty: Lim Chin Aik v The Queen at 174 per Lord Evershed. I propose to consider each of these tests in relation to s 8(1) of the 2000 OHS Act but before doing so it is necessary to say something about the class of offences known as regulatory offences. Regulatory offences 186 As I noted earlier, s 8(1) is to be found in Div 1 of Pt 2 of the 2000 OHS Act, dealing with the general duties imposed on employers and others in respect of occupational health and safety. Division 1 is regulatory in nature. That is to say, it is a provision regulating an important issue of social and industrial concern, namely, safety in the workplace. In this respect, there is a line of English authority to the effect that where the subject matter of the statute is the regulation for the public welfare for a particular activity it has been inferred that the legislature intended that such activities should be carried out under conditions of absolute liability. As the House of Lords stated in Sweet v Parsley [1970] AC 132 at 174: The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea. 187 In Gammon v Attorney General of Hong Kong, Lord Scarman at 14, speaking for the Privy Council, went so far as to say that the only situation in which the presumption (of law that mens rea is required before a person can be held guilty of a criminal offence) could be displaced was where the statute was concerned with an issue of social concern, and public safety was regarded as such an issue. The imposition of a general duty to ensure safety in the workplace would not appear to be distinguishable from a statute concerned with public safety. Brennan J in He Kaw Teh, however, considered that Lord Scarman's proposition "seems to be too categorical an approach" given what was a question of statutory interpretation. His Honour said that it was not possible to decide that mens rea could be excluded only where the subject matter answered a given description without regard to the whole of the statutory context.

[159]

188 Nevertheless, Brennan J did not dispute the English line of authority regarding "regulatory offences" that such offences, where they may involve contravention of a statute regulating public safety, for example, have been regarded as absolute. Other members of the Court in He Kaw Teh also recognised the existence of regulatory offences: see Gibbs CJ (with whom Mason J agreed) at 533, 535 and Dawson J at 594 - 595 where his Honour stated: Resort must then be had to the subject-matter or character of the legislation. Attempts have been made to categorize those offences which have been regarded as absolute, but the result is only helpful in a broad sense and the recognized categories cannot be regarded as exhaustive. It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation by making people govern their behaviour accordingly. See Lim Chin Aik v. The Queen (1963) AC 160. Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders. 189 The question of what constituted a regulatory offence was considered in R v Davies at 591 - 593. The UK health and safety laws and the English authorities have a particular relevance here. As I shall later explain, the New South Wales 1983 OHS Act was modelled on the Health and Safety at Work etc Act 1974 (UK), which provides in s 3(1): It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety. 190 In explaining the notion of regulatory offences, and after considering the nature of the Health and Safety at Work etc Act, the Court in Davies stated: [15] The first point to be noted about the legislation is that it is regulatory rather than prescriptive. This is important in the balancing exercise. Lord Clyde in R v Lambert [2002] 2 AC 545, 609, para 154, having said that the statutory provision in question (section 28 of the Misuse of Drugs Act 1971) could not be justified because the offence carried a sentence of life imprisonment, continued: "A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy." [16] The reasons for the distinction between truly criminal and regulatory offences were spelt out cogently by Cory J in the Canadian Supreme Court in R v Wholesale Travel Group Inc [1991] 3 SCR. He expressed the rationale for the distinction as follows, at p 219: "The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care. "It follows that regulatory offences and crimes embody different concepts of fault. Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care." This distinction could be justified by what he called the licensing argument, at pp 228 - 229: "while in the criminal context, the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is, by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity ... those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility ... those persons who enter a regulated field are in the best position to control the harm which may result, and that they should therefore be held responsible for it. and the vulnerability justification, at p 234: "Regulatory legislation is essential to the operation of our complex industrial society; it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves. The extent and importance of that role has increased continuously since the outset of the Industrial Revolution. Before effective workplace legislation was enacted, labourers-- including children-worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of Dante's Inferno. It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century." This analysis led him to conclude that the legislation in question which required the defendant to prove that he had exercised due diligence to prevent false and misleading advertising was not incompatible with the presumption of innocence in the Canadian Charter saying, at pp 244-245: "Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. Thus, the question is not whether the accused has exercise some care, but whether the degree of care exercised was sufficient to meet the standard imposed. If the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context, there is nothing unfair about imposing that onus; indeed, it is essential for the protection of our vulnerable society." [17] We are conscious of the difference of approach by the Canadian Supreme Court to their Charter to that of courts in this and other jurisdictions (see Attorney General of Hong Kong v Lee Kwong-kut [1993] AC 951, 970B - 973A), but we find Cory J's analysis convincing and extremely helpful. 191 In another significant Canadian case, R v Sault Ste Marie (1978) 2 SCR 1299, which concerned the interpretation of s 32(1) of the Ontario Water Resources Act 1970, the Supreme Court considered the distinction between what it described as a "true criminal offence" and "the public welfare offence". At [22] - [26] Dickson J, delivering the judgment of the Court, stated: [22] The distinction between the true criminal offence and the public welfare offence is one of prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such inquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.

[163]

[26] Various arguments are advanced in justification of absolute liability in public welfare offences. Two predominate. Firstly, it is argued that the protection of social interests requires a high standard of care and attention on the part of those who follow certain pursuits and such persons are more likely to be stimulated to maintain those standards if they know that ignorance or mistake will not excuse them. The removal of any possible loophole acts, it is said, as an incentive to take precautionary measures beyond what would otherwise be taken in order that mistakes and mishaps be avoided. The second main argument is one based on administrative efficiency. Having regard to both the difficulty of proving mental culpability and the number of petty cases which daily come before the courts, proof of fault is just too great a burden in time and money to place upon the prosecution. To require proof of each person's individual intent would allow almost every violator to escape. This, together with the glut of work entailed in proving mens rea in every case, would clutter the docket and impede adequate enforcement as virtually to nullify the regulatory statutes. In short, absolute liability, it is contended, is the most efficient and effective way of ensuring compliance with minor regulatory legislation and the social ends to be achieved are of such importance as to override the unfortunate by-product of punishing those who may be free of moral turpitude. In further justification, it is urged that slight penalties are usually imposed and that conviction for breach of a public welfare offence does not carry the stigma associated with conviction for a criminal offence. 192 However, his Honour said there were arguments of greater force advanced against absolute liability at [27] - [28]: [27] Arguments of greater force are advanced against absolute liability. The most telling is that it violates fundamental principles of penal liability. It also rests upon assumptions which have not been, and cannot be, empirically established. There is no evidence that a higher standard of care results from absolute liability. If a person is already taking every reasonable precautionary measure, is he likely to take additional measures, knowing that however much care he takes it will not serve as a defence in the event of breach? If he has exercised care and skill, will conviction have a deterrent effect upon him or others? Will the injustice of conviction lead to cynicism and disrespect for the law, on his part and on the part of others? These are among the questions asked. The argument that no stigma attaches does not withstand analysis, for the accused will have suffered loss of time. legal costs, exposure to the processes of the criminal law at trial and, however, one may downplay it, the opprobrium of conviction. It is not sufficient to say that the public interest is engaged and, therefore, liability may be imposed without fault. In serious crimes, the public interest is involved and mens rea must be proven. The administrative argument has little force. In sentencing, evidence of due diligence is admissible and therefore the evidence might just as well be heard when considering guilt. Additionally, it may be noted that s. 198 of the Highway Traffic Act of Alberta, R.S.A. 1970, c. 169, provides that upon a person being charged with an offence under this Act, if the judge trying the case is of the opinion that the offence (a) was committed wholly by accident or misadventure and without negligence and (b) could not by the exercise of reasonable care or precaution have been avoided, the judge may dismiss the case. See also s. 230(2) [am. 1976, c. 62, s. 48] of the Manitoba Highway Traffic Act , R.S.M. 1970, c. H60, which has a similar effect. In these instances at least, the legislature has indicated that administrative efficiency does not foreclose inquiry as to fault. It is also worthy of note that historically the penalty for breach of statutes enacted for the regulation of individual conduct in the interests of health and safety was minor -- $20 or $25; today, it may amount to thousands of dollars and entail the possibility of imprisonment for a second conviction. The present case is an example.

[164]

[28] Public welfare offences involve a shift of emphasis from the protection of individual interests to the protection of public and social interests: see Sayre, "Public Welfare Offences" (1933), 33 Colum. L. Rev. 55; Hall, "Principles of Criminal Law", [1947] Ch. 13; Perkins, "The Civil Offences" (1952), 100 U. of Pa. L. Rev. 832; Jobson, "Far From Clear" (1975-76), 18 Cr. L.Q. 294. The unfortunate tendency in many past cases has been to see the choice as between two stark alternatives: (i) full mens rea; or (ii) absolute liability. In respect of public welfare offences (within which category pollution offences fall) where full mens rea is not required, absolute liability has often been imposed. English jurisprudence has consistently maintained this dichotomy: see 2 Hals. (4th), para. 18, Criminal Law, Evidence and Procedure. There has, however, been an attempt in Australia, in many Canadian courts, and indeed in England to seek a middle position, fulfilling the goals of public welfare offences while still not punishing the entirely blameless. There is an increasing and impressive stream of authority which holds that where an offence does not require full mens rea, it is nevertheless a good defence for the defendant to prove that he was not negligent. 193 Dickson J went on to conclude at [60] - [61] that: [60] I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed or by additional evidence. 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Estey C.J.H.C. so referred to them in Hickey's case. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. [61] Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully", "with intent", "knowingly" or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

[166]

195 As the prosecutor submitted, workers often spend half, or more than half, of their waking hours on workdays at their places of work. Their safety is paramount. Given the discussion in the English, Canadian and Australian cases regarding the nature of regulatory offences, I do not believe there is any doubt that the offences under the OHS Act are other than regulatory offences. 196 Being regulatory offences does not, of course, automatically cast them as absolute offences: He Kaw Teh per Brennan J at 567. Indeed, as the cases referred to by the defendant demonstrate, there is little doubt that at least since He Kaw Teh in Australia and R v Sault Ste Marie in Canada, the tendency in respect of statutory offences (including regulatory or public welfare offences), where it is not apparent as to the legislature's intention regarding mens rea being an ingredient of the offence, has been to steer the middle course of strict liability rather than regard the offences as absolute. I note, in particular, the observations of Hunt CJ at CL in Hawthorne v Morcam at 133: Neither the difficulty in securing convictions nor pragmatic concerns about unmeritorious acquittals warrant the imposition of an absolute liability: He Kaw Teh 's case (at 580). The trend of modern authority is clearly to limit offences of absolute liability, and the strength of the common law presumption that the defendant's knowledge of the wrongfulness of his act is an essential element of every offence has recently been reaffirmed by the High Court in He Kaw Teh 's case. The offence created by s 10 is defined only by reference to its external elements, and accordingly a mental element is usually implied: He Kaw Teh 's case (at 565 - 566). I have considered the many cases to which the prosecutor has referred as establishing that "public health" statutes constitute a special category. It is significant that they all pre-date He Kaw Teh 's case, which finally exorcised the doubts which had previously plagued the common law presumption in favour of a Proudman v Dayman "defence". 197 It should be explained that in Canada it has been held that all offences under the Occupational Health and Safety Act are strict liability offences. This is despite the fact that the Act requires an employer to "ensure" certain safety measures prescribed by the regulations (see for example s 14(1)(c)). However, it is important to understand the reason this is so. It was explained by the decision in R. v. Cancoil Thermal Corp. (1986) 27 C. C. C. (3rd) 295 where it was held that: Absolute liability where there is a potential penalty of imprisonment violates s. 7 of the Canadian Charter of Rights and Freedoms. Here, the statutory defence of due diligence was expressly excluded from the offence of failing to provide a guard, suggesting that the legislature had, as a matter of policy, determined that the defence was one of absolute liability. However, to avoid a violation of s. 7, it had to be treated as creating a strict liability offence, with the defence of due diligence available. See also Ref. re S. 94(2) of Motor Vehicle Act [1985] 2 S.C.R. 486. 198 The same tendency, apparent in Australia and Canada, to adopt the middle course of strict liability did not occur in the United Kingdom because the courts have not adopted the notion. In this respect, Dawson J in He Kaw Teh observed at 591: The English cases are of limited assistance in this area because the courts there have not taken up the defence of honest and reasonable mistake and see themselves as having to decide between an offence requiring mens rea to be proved as an ingredient and absolute liability which excludes guilty intent entirely. Although there are those in England who have been attracted by what has been called "the half-way house" of strict liability, the concept has not been adopted there. See Sweet v. Parsley [1969] UKHL 1; (1970) AC 132, esp. at pp 150, 158 and 164. This is, perhaps, surprising since the modern application of the concept begins with Reg. v. Tolson (1889) 23 QBD 168 and, in particular, the judgment of Cave J. at p 181. See also Sherras v. De Rutzen (1895) 1 QB 918. But it is unnecessary to pursue the divergent development of the law in England. 199 Of course, his Honour was concerned with the Customs Act and a truly criminal offence that carried a penalty of life imprisonment. What I am concerned with here is a regulatory offence that has its origins in English legislation, which the English courts have regarded as providing for an absolute liability offence. I acknowledge it would not ordinarily follow that an offence under s 8(1) of the 2000 OHS Act must be regarded as an absolute liability offence because it falls into the class of regulatory offences and that is because of the decision in He Kaw Teh and the tendency since that decision to adopt the middle course of strict liability. However, there are other considerations, which I shall come to in due course, including legislative intention, that point to an offence under s 8(1) being an absolute liability offence.

[193]

221 In this regard, Watson J observed in Carrington Slipways: As it was said in Rice v. Henley (1914) 19 CLR 19 at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit [per Isaacs J]. See also, Butler and Another v Fife Coal Company Limited (1912) AC 149 esp at 178 - 179, when Lord Shaw stated the approach as: The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. 222 The 2000 OHS Act may also be regarded as a penal statute and, therefore, to be strictly construed. In Waugh v Kippen at 164 the High Court considered the question of conflict between the two principles of interpretation (beneficial legislation to be interpreted liberally, penal statutes to be interpreted strictly) in the context of the Factories and Shops Act 1960 (Qld). The High Court (Gibbs CJ, Mason, Wilson and Dawson JJ) stated at 164 - 165: If such a conflict was to arise, the Court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board (1951) AC 639, per Lord Porter at p 650; John Summers & Son Ltd. v. Frost (1955) AC 740, per Viscount Simonds at p 751; McCarthy v. Coldair, Ltd. (1951) 2 TLR 1226, per Denning L.J. at pp 1227 - 1228. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidents of an obligation imposed on the employer. The legislature cannot speak with a forked tongue.

[195]

225 Secondly, a literal interpretation of s 8(1) does not lead to an absurd, irrational or unreasonable result. This is so for the following reasons: (1) the prosecution must prove all of the elements of the offence beyond reasonable doubt: State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120 - 121. This includes proving that the defendant owes the duty under s 8(1) to the employee or employees affected and that the safety standard has been breached; (2) there will be no offence unless the defendant's acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when the employee or employees were exposed to the risk: Drake Personnel Ltd at 449; The Crown in Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 at [45]. The question of causation is to be dealt with in a practical and common sense way: O'Sullivan at [50]. Where person who suffers a stroke or heart attack or dies at work for reasons entirely unrelated to the work environment, it is most unlikely this would give rise to an offence under s 8(1) because there would have been no act or omission on the part of the employer that could be said to have caused a risk to the health or safety of the employer there would be an absence of causation; (3) the 2000 OHS Act in s 28 provides for two defences: the reasonable practicability defence (s 28(a)); and the absence of control defence (s 28(b)). Where a person dies at work for reasons entirely unrelated to the work environment it is unlikely in the first place that any charge would be laid, but even if the offence was found to have been committed, the cause of it would surely be a matter over which the employer had no control and against the happening of which it was impracticable for the employer to make provision; (4) in relation to the reasonable practicability defence, the test is not whether steps could be taken that were guaranteed to prevent the risk to health and safety but rather whether steps were available that could have materially reduced the risk: see William and Margaret Adamson t/a John Adamson & Sons v Procurator Fiscal, Lanark [2000] ScotHC 102 at [21]; R v Gateway Foodmarkets Ltd [1997] ICR 382 at 387 - 388. In other words, the defence requires a defendant to satisfy the court that it has done what is reasonably practicable to avoid a state of affairs. The defence is, therefore, flexible because it does not restrict the way in which the defendant can show that it has done what is reasonably practicable ( R v Davies at [26]). It should be noted that under consideration in Adamson Procurator Fiscal and R v Davies was s 3(1) of the Health and Safety at Work etc Act 1974 (UK); (5) in R v British Steel Plc [1995] ICR 586, Steyn LJ considered the "troublesome" issue raised by counsel that where an individual employee was guilty of negligence, the corporate employer would not have the defence of reasonable practicability and, therefore, the section could not sensibly be given such wide effect as to make the employer criminally liable for the acts or omissions of even its most junior employees, where these have put another employee, or even the same employee, at risk of injury to his health, safety or welfare. The court concluded at 594: there may be circumstances in which it might be regarded as absurd that an employer should even be technically guilty of a criminal offence"--but that-- "in any event, so-called absurdities are not peculiar to this corner of the law: at the extremities of the field of application of many rules surprising results are often to be found. That circumstance is inherent in the adoption of general rules to govern an infinity of particular circumstances. In R v Gateway Foodmarkets Ltd the Court noted what was said in British Steel Plc and stated at 388: The answer lies, we suggest, in the application of the qualification or caveat contained in the statute itself. The duty under each section is broken if the specified consequences occur, but only if "so far as is reasonably practicable" they have not been guarded against. So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning "taken by the company or on its behalf." In other words, the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather, the company is liable in the event that there is a failure to ensure the safety, etc. of any employee, unless all reasonable precautions have been taken--as we would add, by the company or on its behalf. If this is correct, then it follows that the qualification places upon the company the onus of proving that all reasonable precautions were taken both by it and by its servants and agents on its behalf. The concept of the "directing mind" of the company has no application here. The further question is whether this includes all those persons for whose negligence the employer is vicariously liable to third parties for the purposes of the law of tort. If it does, then the employer is not able to rely on the statutory defence when any of his employees has been negligent, i.e. failed to take reasonable precautions, "in the course of his employment." That phrase has been widely defined, and if the same test applies here then the statutory defence is limited to the rare case where the individual employee was on a frolic of his own, and where there was no failure to take reasonable precautions at any other level. It is possible that some narrower test should be defined, but as stated above we do not consider that it is necessary to decide this for the purposes of the present appeal. I shall return later to the UK legislation and authorities.

[201]

Health and Safety at Work etc Act 1974 (UK) Occupational Health and Safety Act 1983 (NSW) Section 1 provides that its provisions shall have effect with a view to securing the health, safety and welfare of persons at work and protecting persons other than persons at work against risks to health or safety and controlling the keeping and use of dangerous substances. Section 5 provides the objects of the Act are to secure health, safety and welfare of persons at work; to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work; and to promote an occupational environment for persons at work which is adapted to their physiological and psychological needs. Section 2 provides that it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. Section 15 provides that every employer shall ensure the health, safety and welfare at work of all the employer's employees Section 3 provides that it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment are not exposed to risks to their health or safety. This duty is placed on self employed persons as well. Section 16 provides that every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. This duty is placed on self employed persons as well. Section 4 places a duty on persons who have control, to any extent, on non-domestic premises that are used by non-employees as a place of work, or as a place where they may use plant of substances provided for their use there, to take such measures as it is reasonable for a person in their position to take to ensure, so far as is reasonably practicable, that the premises are safe and without risks to health. Section 17 provides that each person who has to any extent, control of non-domestic premises which have been made available to non-employees as a place of work or any plant or substance in any non-domestic premises that have been provided for use of non-employees at work, shall ensure that the premises and means of access to and egress from, or the plant or substances, are safe and without risks to health. Section 17(2) provides that this duty includes persons who by virtue of a contract or lease have an obligation in relation to the maintenance of non-domestic premises or the safety of any plant or substances. Section 7 provides employees to take reasonable care for the health and safety of himself and other persons at work and to co-operate with duty holders to enable their respective duty to be complied with. Section 19 provides that employees shall take reasonable care of people who are at his or her place of work and co-operate with their employer or any other person to ensure that Occupational Health and Safety duties are complied with Section 40 provides that the onus of proving what was reasonably practicable in the circumstances lies with the defendant. The defendant has to show that it was not practicable or not reasonably practicable to do more than what was in fact done by the defendant, or that there were no better practical means than those that were used, in order to satisfy the general duty. Section 53 provides a defence whereby it was not reasonably practicable for the person to comply with the provision of the Act; or the commission of the offence was due to causes of which the person had no control and against the happening of which it was impracticable for the person to make provision. The onus lies on the defendant on the balance of probabilities.

[221]

… the legislature by enacting Part IV (section 40) of the Ordinance clearly took the view that criminal liability and punishment were needed as a deterrent against slipshod or incompetent supervision, control or execution of building works. The imposition of strict liability for some offences clearly would emphasise to those concerned the need for high standards of care in the supervision and execution of work. 245 At 17, Lord Scarman noted that the maximum penalties for the offences under s 40 were "heavy": a fine of $250,000 and imprisonment for three years. His Lordship stated: "There is no doubt that the penalty indicates the seriousness with which the legislature viewed the offences." However, his Lordship went on to state: The severity of the maximum penalties is a more formidable point. But it has to be considered in the light of the Ordinance read as a whole. For reasons which their Lordships have already developed, there is nothing inconsistent with the purpose of the Ordinance in imposing severe penalties for offences of strict liability. The legislature could reasonably have intended severity to be a significant deterrent, bearing in mind the risks to public safety arising from some contraventions of the Ordinance. Their Lordships agree with the view on this point of the Court of Appeal. It must be crucially important that those who participate in or bear responsibility for the carrying out of works in a manner which complies with the requirements of the Ordinance should know that severe penalties await them in the event of any contravention or non-compliance with the Ordinance by themselves or by anyone over whom they are required to exercise supervision or control. 246 In considering s 40(2A), Lord Scarman stated at 17 - 18: This provision applies to building owners, authorised persons (i.e., architects, surveyors, structural engineers), registered structural engineers and registered contractors. It is thus confined to persons bearing responsibility for the decision to undertake works and for their supervision and control. There is plainly an element of mens rea in the offences it creates: the wording of subparagraphs (a) and (b) does not make clear how far mens rea extends: the wording of subparagraph (c) reveals an offence of full mens rea….

[222]

The wording of subparagraph (b) clearly requires knowledge of the approved plan and of the fact of deviation. But in their Lordships' view it would be of little use in promoting public safety if it also required proof of knowledge of the materiality of the deviation. As it was put on behalf of the Attorney-General, if the offence requires knowledge of the materiality of the deviation to be proved, the defendant is virtually judge in his own cause. The object of the provision is to assist in preventing material deviations from occurring. If a building owner, an authorised or a registered person is unaware of the materiality of the deviation which he authorises (and knowledge of the deviation is necessary), he plainly ought to be. He is made liable to criminal penalties because of the threat to public safety arising from material deviations from plans occurring within the sphere of his responsibility. The effectiveness of the Ordinance would be seriously weakened if it were open to such a person to plead ignorance of what was material. In the words already quoted of the Court of Appeal: "it therefore behoves the incompetent to stay away and the competent to conduct themselves with proper care. 247 In relation to s 40(2B)(b) his Lordship stated at 18 - 19: The construction of subsection (2B)(b) is more difficult, but their Lordships are satisfied that it imposes strict liability for substantially the same reasons as those which have led them to this conclusion in respect of subsection (2A)(b). The offence created clearly requires a degree of mens rea. A person cannot carry out works or authorise or permit them to be carried out in a certain manner unless he knows the manner which he is employing, authorising, or permitting. The appellants laid great emphasis on the reference to permitting as an indication of full mens rea. They referred their Lordships to James & Son Ltd. v. Smee [1955] 1 Q.B. 78. But their Lordships agree with the answer of the Court of Appeal to this point: We would therefore hold that the word 'permitting' in section 40(2B)(b) does not by itself import mens rea in the sense of intention to cause a likelihood of risk of injury or knowledge that such likelihood would result but does require that the defendant shall have had a power to control whether the actus reus (the carrying out of the works in the manner which in fact causes a likelihood of risk of injury) shall be committed or not. 248 In summary then, the Privy Council in Gammon held that that the presumption that mens rea was an essential ingredient of a statutory offence could be displaced by clear words and by necessary implication where the statute creating the offence dealt with an issue of social concern, including public safety, provided that strict (meaning absolute) liability would be effective to promote the objects of the statute; that since greater vigilance would be promoted if knowledge of the materiality of the deviation from the plan was not a necessary ingredient of the offence, subsection (2A)(b) was to be construed as requiring knowledge of the deviation from the plan but imposing strict (meaning absolute) liability for the deviation being a material one; that similarly, provided the appellants had knowledge of the manner in which the works were carried out, they had committed an offence under subsection (2B)(b) even if they did not know that there was a resulting risk of injury or damage.

[231]

(iii) the penalty regime under the 2000 OHS Act in relation to imprisonment is at the low end of penalties in the criminal calendar and is markedly different to that which applied in He Kaw Teh . In commenting on the penalties under the Customs Act , Gibbs CJ said at 530 and 535: … offences of this kind, at least where heroin in commercial quantities is involved, are truly criminal; a convicted offender is exposed to obloquy and disgrace and becomes liable to the highest penalty that may be imposed under the law. It is unlikely that the Parliament intended that the consequences of committing an offence so serious should be visited on a person who had no intention to do anything wrong and no knowledge that he was doing so. … I have already shown that the offence created by s.233B(1)(b) is treated by the Parliament in some circumstances as being one of the most serious in the criminal calendar. It seems improbable that the Parliament would have intended that it might be committed as a result of mere carelessness, although that would be the case if guilty knowledge was not an element, and an unreasonable although honest mistake would not be sufficient to exculpate the accused. It is true that the penalty of life imprisonment provided by the statute is a maximum one and that a judge who considered that the accused had brought in narcotic goods in the honest but unreasonable belief that his luggage did not contain them would sentence accordingly. Nevertheless, to provide that a sentence of life imprisonment might be imposed for an offence committed merely through negligence would appear to be exceedingly severe. The gravity of the offence suggests that guilty knowledge was intended to be an element of it. 251 It is noted that in Chief of the General Staff v Stuart, Black CJ said at 304: … the fact that a penalty of up to six months imprisonment may be imposed for an offence against s 44 seems equivocal as an indication of whether or not the presumption of mens rea has been displaced. On the one hand the maximum penalty is a term of imprisonment but, on the other hand, the maximum penalty of six months imprisonment is at the low end of the scale of maximum penalties of imprisonment provided for by the Act for service offences.

[243]

The defence is usually brought in a positive way, "I held an honest belief I had a licence," or that these were not inclosed lands. It is not a hard concept and it is quite realistic to express the proposition Kylie Philps honestly believed Cheryl Cooper was not a risk when she went into that room and if Ms Philps and the others thought she was a risk they would have done other things. My client did not know that. Unless the prosecution can disprove either that belief was held or that it was reasonable, we must succeed. 261 It was submitted for the prosecutor that if no proper factual basis for the defence existed, there was nothing that the prosecutor was required to negative: Hunter Water Board v State Rail Authority per Stein J at 20. The case concerned a prosecution of the defendant for contravention of s 16 of the Clean Waters Act 1970, which provided that a person shall not pollute waters. Diesel oil had escaped from a break in an underground pipeline at the defendant's rail depot into an unmade drain and had made its way into a creek system. The defendant alleged honest and reasonable mistake or belief in a certain state of facts which, if true, would render its conduct innocent. The defendant's depot manager, Mr Creighton, gave evidence in the proceedings. At 20, his Honour observed: [W]hen one examines Mr Creighton's evidence in the light of his answers in cross-examination, it is apparent that his belief was based more on faith than facts. He had never seen the pipe; he knew it had never been tested although it could have been; his knowledge was mostly second-hand; and his knowledge of the relevant area of the site, although claimed as substantial, was in fact slight. For example, he claims not to have been aware until the incident that the depot was wholly built upon a reclaimed swamp. He says he was subsequently informed of this by an SRA officer. He was of course aware of the nearby problems of the crumbling banks of the creek and the tendency of the sides of any hole dug to fall in. In my opinion Mr Creighton never really turned his mind to the integrity of the pipe or the possibility of its failure: see Gherashe v Boase [1959] VR 1. His basis for not so considering the possibility was his belief that there had never been a problem before and that PVC pipes were, to use his words, "maintenance free".

[246]

In determining what state of mind will be treated as a mistaken belief for the purposes of a defence of strict liability created by statute, questions of statutory construction arise, and the purpose of the legislature in creating an offence needs to be considered... It would be inconsistent with the legislative purpose underlying the Clean Waters Act to conclude that the mere lack of knowledge that pollution was occurring, or was likely to occur, based upon a general understanding or assumption that everything was in order, would be sufficient to amount to a mistaken belief. Rather, a belief in the existence of a set of facts which, if true, would take the conduct in question outside the operation of the statute would entail, in a case such as the present, a positive belief that the operation of the plant and equipment would not result in pollution. That belief would also need to be sufficiently specific to relate it to the elements of the particular offence. 263 In R v Lavender one of the subsidiary issues was that at trial counsel said: "I would invite your Honour to add, in relation to the manslaughter, a sixth element, being that the accused did not hold an honest and reasonable belief that it was safe to proceed." The invitation was declined. In the joint reasons (Gleeson CJ, McHugh, Gummow and Hayne JJ) it was said at [59] about the second of two reasons and why it would have been erroneous and inappropriate to give the jury such a direction: The second reason is that the principle on which counsel based his argument, which applies in other contexts, is a principle relating to honest and reasonable mistake of fact. The principle was recently discussed in this Court in Ostrowski v Palmer (2004) 78 ALJR 957; 206 ALR 422. As the decision in that case illustrates, the principle concerns mistakes of fact. The belief concerning which counsel sought a direction was a (supposed) "belief that it was safe to proceed". Such a state of mind involves an opinion. It might be based upon certain factual inferences or hypotheses (the respondent did not give evidence, so the jury were not told by him exactly what facts or circumstances were operating in his mind), but it necessarily involves an element of judgment. Indeed, it involves a conclusion by the respondent that his conduct was reasonable. The direction sought would be inconsistent with what has been described as the objectivity of the test for involuntary manslaughter. The respondent's opinion that it was safe to act as he did was not a relevant matter. If there had been some particular fact or circumstance which the respondent knew, or thought he knew and which contributed to that opinion, and the jury had been informed of that, and counsel had asked for a direction about it, then it may have been appropriate to invite the jury to take that into account: see Jiminez v The Queen (1992) 173 CLR 572. 264 Kirby J said the trial judge did not accede to a request by counsel for Mr Lavender to direct the jury that they had to be satisfied that Mr Lavender did not hold an honest and reasonable belief that it was safe to operate the front-end loader in the fashion which he did before they could convict (at [72]). His Honour agreed with the joint reasons that the trial judge was correct to refuse to so instruct the jury (at [83]). Callinan J and Heydon J also agreed (at [139] and [148]). Callinan J also reasoned that fact, opinion and belief are discrete concepts (at [141]).

[251]

269 Based on its view of the evidence in the proceedings, the defendant contended that "the risk of a violent attack with a weapon by Ms Cooper was unknown to the defendant, and that its employees, particularly Ms Philps and Ms Williams, honestly and reasonably believed that they were not at such risk", and that "Kylie Philps honestly believed Cheryl Cooper was not a risk when she went into that room and if Ms Philps and the others thought she was a risk they would have done other things." 270 The evidence, however, was that neither Ms Philps nor Ms Williams had turned their minds to whether Ms Cooper might have a concealed weapon and, it must follow, had not turned their minds to whether that constituted a risk to their health and safety. That Ms Williams was watching Ms Cooper's bag would suggest that at least Ms Williams had some degree of concern that there may have been a risk, but that goes completely against the defendant's defence that there was an honest and reasonable mistake about the fact that Ms Cooper constituted a risk. The same reasoning applies to Ms Meehan-Frost's "hope" that Ms Cooper did not have a gun in her bag. 271 In any event, when one considers the evidence overall, it is not possible to accept that it was reasonable for Ms Philps and Ms Williams to believe that Ms Cooper constituted no risk to their safety. Within the week preceding 24 May 2004 or on the day itself: · Ms Cooper had threatened to kill a caseworker, Ms Garcia. Both Ms Philps and Ms Williams were aware of the threat. When the threat was made Ms Williams described Ms Cooper as "basically frothing at the mouth"; · the two caseworkers said that during the initial interview at the Ballina Hospital Ms Cooper displayed a range of emotions, being extremely aggressive one minute and calm the next; she at times spoke gibberish. It was Ms Philps' evidence that after the interview Ms Williams and herself had rated Ms Cooper as a "high risk client"; · Ms Philps and Ms Williams took the death threat seriously and reported the threat to their superiors; · on Wednesday 19 May 2004, Ms Philps saw Ms Cooper sitting in her car outside the Ballina CSC, hitting the steering wheel with her hands and head, and "revving" the car. Ms Christopher also witnessed Ms Cooper's behaviour and rang the police. During their attendance, the police removed three to five knives and scissors from Ms Cooper's car; · on 19 May 2004, Ms Christopher advised CSC staff that Ms Cooper was "very aggressive and threatening"; · in preparation for the interview on 19 May 2004 with Ms Cooper, Ms Williams arranged the furniture in the interview room to minimise the prospect of an attack by Ms Cooper; · prior to the interview on 19 May 2004 Ms Christopher instructed the caseworkers not to allow Ms Cooper to take her bag into the interview room with her; · during the interview on 19 May 2004 Ms Cooper said, "I was spoken to by the Police about the threats I made to the other DOCS worker. Kylie you should know I don't make threats, I make promises. If I drop dead before I get to see my kids again, every breath that you take before you die you will smell my rotting corpse up your nose"; · after the interview on 19 May 2004 Ms Cooper was speaking gibberish in the foyer of the CSC office. Ms Christopher called the police who took Ms Cooper to Ballina Hospital for a mental health assessment; · Ms Cooper had a known history of drug abuse or use of medication, which the defendant acknowledged was potentially a major cause of client violence to staff;

[254]

· it was very apparent that Ms Cooper was concerned about losing custody of her children and it was causing her significant distress to the extent she made death threats. Ms Philps and Ms Williams were clearly alert to the cause of Ms Cooper's distress and it was unreasonable to believe that on being advised that she would not have access to her children as she had been earlier promised that Ms Cooper would take the news calmly and present no risk to the safety of the caseworkers. The defendant regarded Ms Cooper as "unpredictable". Ms Sherrington, whose role it was to work on complex cases and whose evidence I accept, stated that in light of threats to staff and the car ramming incident she would not have conducted the interview on 24 May. Instead, from behind the perspex at the front desk, she would have re-scheduled the appointment for a later time. 272 In light of the evidence, the defence of honest and reasonable mistake of fact is not available. That is to say, the prosecution has negatived the defence of honest and reasonable mistake of fact beyond reasonable doubt. It, therefore, becomes unnecessary to consider whether the belief of Ms Philps and Ms Williams can be equated with that of the defendant: see Hunter Water Board v State Rail Authority, where Stein J in obiter expressed the view that Mr Creighton's belief could not be equated to that of the SRA because he did not represent the "mind or will" of the corporate defendant. 273 Before leaving the defendant's reliance on honest and reasonable mistake of fact, I should refer to the cases relied on by the defendant in this regard. In my opinion, each of the cases may be distinguished. 274 In R v Wampfler, the Court of Criminal Appeal considered s 6(1) of the Indecent Articles and Classified Publications Act 1975, which was relevantly in the following terms: … a person who publishes an indecent article contravenes this section and is liable, on conviction on indictment [and penalties are then set out]. 275 At 547, Street CJ observed: On its face the statute does not expressly require knowledge on the part of the accused person and there is an inadequate basis for construing it so as to import an express obligation on the prosecution in this regard. 276 In finding that the offence was not absolute, his Honour stated at 548: I have already quoted the definition of "publish" in s 5 of the New South Wales statute. The inclusion of such commonplace, ordinarily innocent, acts as distribute, deliver, send, and so on attracts the same observations as were made in R v Ewart (1905) 25 NZLR 709. In my view an offence such as that presently under consideration is not absolute. If the accused advances a sufficient basis for the proposition that he had an honest and reasonable belief in innocence then the onus of negativing that belief rests upon the prosecution. 277 The observations made in R v Ewart (1905) 25 NZLR 709 to which his Honour referred may also be found at 548: In R v Ewart the Court of Appeal was considering a prosecution for selling a newspaper which was, "as to parts thereof, of an indecent, immoral, and obscene nature". The relevant New Zealand legislation was informed by the same policy considerations as the Indecent Articles and Classified Publications Act . Williams J said (at 728): "... The object, however, of the Offensive Publications Act is not to regulate trade nor protect the public health, but to prevent and punish acts which are in themselves of a highly immoral and disgraceful nature. No doubt the statute is also for the purpose of preventing the corruption of public morals, and it is true that if obscene matter is sold or distributed by accident or mistake the injury to the morals of those who read it is the same as if it had been distributed intentionally. But the object of the statute is to protect the public morals, by the prevention and punishment of a series of immoral acts. The majority of the acts mentioned in s 3 are of a kind in which the mental element of knowledge can hardly be imagined to be absent, and I think the terms of the section connote the mental element of knowledge as an ingredient of the offences specified. It is assumed that the offender must be aware of what he is doing. The acts forbidden are all on the face of them grossly immoral, and the essence of them is their immoral character. It is because they are immoral that they are prohibited. If the essential part of a prohibited act is its immorality, there must, in my opinion, be some immoral mental condition on the part of the perpetrator to justify a conviction." Edwards J and Chapman J, in separate judgments, reached the same conclusion. Chapman J said (at 744): "... Though it is quite reasonable that a man should be held prima facie responsible for whatever he sells in his shop, I cannot think that he is to be precluded from showing that with all care on his part something pernicious has been accidentally sold. In the same way, I do not think that it was intended that a newspaper-runner was to be convicted when he receives a parcel for sale, and instantly proceeds in all innocence to sell the papers without any real means of knowing the pernicious character of the one he is charged with selling." 278 Thus the observations in Ewart relied upon by Street CJ included that: · the object of the Offensive Publications Act was not to regulate trade nor protect the public health; · the majority of the acts mentioned in s 3 were of a kind in which the mental element of knowledge could hardly be imagined to be absent, and the terms of the section connoted the mental element of knowledge as an ingredient of the offences specified. It was assumed that the offender must be aware of what he was doing. 279 In contrast, the 2000 OHS Act has as its object to secure the health, safety and welfare of persons at work and the mental element of knowledge in s 8(1) of the 2000 OHS Act could hardly be imagined to be present. 280 In Environment Protection Authority v N the Court of Criminal Appeal considered s 5(1) of the Protection of the Environment Administration Act, which was in the following terms: A person who, without lawful authority, wilfully or negligently disposes of waste in a manner which harms or is likely to harm the environment is guilty of an offence.

[255]

Additionally, the Act provided in s 7 that: … the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 281 It is clear from the judgment in Environment Protection Authority v N that the word "wilfully" in s 5(1) of the Protection of the Environment Administration Act played an important part in the Court's decision. For example at 356, Hunt CJ at CL (with whom Enderby and Allen JJ agreed) stated: But here, if there is no offence created by merely disposing of waste without authority, and the only basis upon which such an action is made to constitute an offence is where its consequence is to harm or to be likely to harm the environment, it seems to me that - both in order to give the word "wilfully" some work to do and in order to comply with the common law as stated by Jordan CJ in R v Turnbull (at 109; 71) (by showing that the accused "knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing") - the prosecution must establish that the person charged with this offence pursuant to s 5(1) of the Act either intended or was aware that the waste which he was disposing of would or was likely to harm the environment. 282 I also note what his Honour said at 356 - 357: It may fairly be assumed that the destruction of the environment is an enormous social problem which requires strict measures to be taken to prevent the continuation of that destruction. The maximum penalty of $1,000,000 for a corporation and of $150,000 (now increased) or imprisonment for seven years or both for an individual when the matter is tried on indictment in the Supreme Court (rather than summarily in the Land and Environment Court) demonstrates that the legislature clearly intended the offence to be "truly criminal", but it appears to me unlikely that the legislature could have intended that such a grave penalty should befall a person who was intending only quite lawfully to dispose of waste, who had no intention thereby to cause any harm to the environment and who was unaware that his manner of disposal was likely to cause such harm. 283 In Hawthorne (Departmentt of Health) v Morcam Pty Ltd the Court of Criminal Appeal considered s 10 of the Pure Food Act, which was in the following terms: No person shall sell any article of food which is adulterated or falsely described, which contains any matter foreign to the nature of the food or which is packed or enclosed for sale in any manner contrary to any provision of this Act or the regulations. 284 The defendant had been charged with selling adulterated food (bread). The matter came before the Court as a case stated by the trial judge in the District Court which raised the issue of statutory construction. The issue was whether the offence was one of strict or absolute liability. I note the following in respect of the judgment: · it was not clear what was the mischief with which the relevant provisions of the legislation were intended to deal: at 126 per Mahoney JA; · the objects sought to be achieved by s 10 and the regulations were several and various and the ways in which those objects were, by the legislation, to be achieved were diverse: at 126 - 127 per Mahoney JA; · considerations that difficulty in making effective the requirements of the legislation not of such obvious and pressing significance to rebut the presumption of mens rea: at 129 per Mahoney JA; · less than overwhelming contention that to permit Proudman v Dayman defence would effectively emasculate the legislation: per Hunt CJ at CL at 132; per Sully J at 136; · the statute itself was silent as to any intention to make the offence created by s 10 one of absolute liability. There was nothing in the Second Reading Speech to support the existence of such an intention: per Hunt CJ at CL at 131 - 132; · absolute liability would not assist in preventing the sale of adulterated food: per Hunt CJ at CL at 133. 285 None of the foregoing matters, in my view, apply to the relevant offence under the 2000 OHS Act. 286 In Chief of the General Staff v Stuart service property, including weapons, was stolen when a vehicle in which the property was left was stolen. Two provisions of the relevant legislation, the Defence Force Discipline Act, were in question. Most relevant to this case was s 44, which was in the following terms: (1) A person, being a defence member or a defence civilian, who loses any property that is, or forms part of, service property issued for his use, or entrusted to his care, in connection with his duties is guilty of an offence for which the maximum punishment is imprisonment for 6 months. (2) It is a defence if a person charged with an offence under this section took reasonable steps for the safe-keeping of the property to which the charge relates. 287 It was held by the Court, inter alia, that: (i) as to the element of "loss" in the offence under s 44, the presumption of requiring proof of mens rea is displaced; (ii) as to elements of the offence under s 44 other than loss, the presumption of requiring proof of mens rea is not displaced.

[260]

As well as there being no necessary element of intent in the notion of losing something, the honest and reasonable mistake ground of exculpation would sit uneasily with the idea of loss and with s 44 as a whole. In circumstances of loss unaccompanied by any intention to lose it would often be very hard to see in respect of what facts the honest and reasonable mistake might be made. If such a mistake were, however, made with respect to matters such as the security of, say, a container in which an item of service property had been stowed, the presence of s 44(2) suggests that the legislature intended that the very question of reasonableness in such cases should be the subject of proof, on the balance of probabilities, by the accused. The policy of the section points in the same direction. In all these circumstances, having regard to the language and structure of s 44 and the purpose of the section in protecting against loss the huge inventory and range of service property, as to which there is a high public interest in its security, I conclude that the presumption that mens rea is an ingredient in the offence is entirely displaced in relation to the element of loss. 290 I am unable to see how Stuart is of assistance to the defendant other than for the purpose of providing authority for the proposition that a defence such as that contained in s 44(2) of the Defence Force Discipline Act (said to be similar to the defence under s 28(a) of the 2000 OHS Act) is no reason to exclude the rule of honest and reasonable, but mistaken, belief in respect of the operation of a provision such as s 44(2). With respect, I accept that proposition, but it is not one that has any bearing on the outcome in the present proceedings. 291 I find that an offence under s 8(1) and s 12 of the 2000 OHS Act is an absolute liability offence. LIABILITY OF THE DEFENDANT 292 As Street CJ observed in Wampfler, an absolute liability offence is one in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence. 293 In the present case, the prosecution has to prove beyond reasonable doubt the following essential ingredients, or elements of the offence, namely, that on 24 May 2004 at the Ballina CSC in New South Wales: (1) the defendant was an employer for the purposes of the 2000 OHS Act;

[262]

(3) the defendant failed to ensure the health, safety or welfare of all of its employees (in particular, Gwen Balchin, Robin Kelly, Natajsia Lapic, Lynn Meehan-Frost, Kylie Philps, Teresa Pisanos, Rhonda Sherrington, Linda Williams and Raymond Hendrikas Wilton) whilst they were at work; (4) there was a causal relationship between the facts causing the risk to safety and the defendant's acts or omissions. 294 In relation to the first two elements of the offence, as I apprehend it there was no dispute that DOCS was, at the relevant time and place, an employer for the purposes of the 2000 OHS Act and that it employed employees (in particular, Gwen Balchin, Robin Kelly, Natajsia Lapic, Lynn Meehan-Frost, Kylie Philps, Teresa Pisanos, Rhonda Sherrington, Linda Williams and Raymond Hendrikas Wilton) at its place of work at Ballina CSC on 24 May 2004. 295 I turn to the third element, which concerns the question of the defendant's failure to ensure the safety of employees. As it was said in Drake Personnel at 452 (Wright J, President and Walton J, Vice President; Peterson J not dissenting) in relation to the 1983 OHS Act: The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 296 The majority in Drake Personnel at 453 cited the following passage from Haynes: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title, indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. 297 It is appropriate, then, to first identify the risk to the health, safety and welfare of employees and after that to consider whether there was any failure on the part of the defendant to ensure the employees were not exposed to the risk whilst at work. 298 It was alleged in the defendant's application for order that from time to time clients attended Ballina CSC for the purpose of being interviewed by DOCS employees. So much was uncontroversial. It was also alleged that: [T]here was an actual risk of a DOCS employee suffering trauma, namely, a psychic or physical phenomena, or both, which may occur when an employee is exposed to a violent event involving a client that threatens danger or anxiety, or both, and can be created by being the victim or a witness to an event or restraining any client. 299 I regard the risk to the health and safety of the defendant's employees as being a risk of exposure to a violent physical attack by a client or other person visiting the CSC. The risk to health obviously encompasses a risk of physical or psychological injury or illness. Further, the risk is not confined to the employee or employees who may be physically attacked, but any employee who witnesses the attack or its immediate aftermath, or who intervened in the attack in order to restrain the attacker and who may be placed at risk of traumatic stress caused by the intervention, or by seeing the injuries, or by the need to give aid to the victim of the attack. 300 The defendant contended that the risk must be something over and above the normal day-to-day risk faced by DOCS workers. Hence the defendant's classification of the risk as one of violent attack with intent to wound/cause grievous bodily harm at Ballina CSC on 24 May 2004. 301 In my opinion, in classifying the risk the way it did, the defendant worked back from the actual incident with the benefit of hindsight and the effect of doing so was to narrow the risk to a degree of preciseness which was impermissible. In State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [26] the Full Bench observed:

[263]

[26] The observations in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166 could have been written in response to the present appellant's written submissions. After referring to O'Sullivan and Police Service (No 2) , the court observed (at [133]): [133] It is clear from the foregoing cases that careful attention must be paid to the correct identification of the risk the subject of the charges: Police Service (No 2) and O'Sullivan make it clear that it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation. 302 As the Full Bench observed in Covi, it is the general class of risk that matters and a misguided focus may not only misdirect an analysis of causation, but also an analysis of reasonable foreseeability in the context of a consideration of the defence under s 28(a) of the 2000 OHS Act. 303 There was a large amount of evidence indicating an awareness by the defendant that its employees could be placed at risk by violent clients or the public. For example, in November 1992 there existed a "Policy on the Effective Management of Client Behaviour to Prevent Injury or Illness to Staff". The Policy, a comprehensive one, acknowledged the risk of assault by clients on DOCS staff; identified the "trigger events" for client violent behaviour (including personal factors such as history of violence, fear, frustration, etc); identified management strategies for client behaviour; and identified training and education for staff to deal with client behaviour and principles concerning response to violent situations. Ms Christopher, in cross-examination, said there was always a potential for violence. 304 In its OHS Risk Management Policy, August 2004 and OHS Risk Management Procedures the defendant identified "psychological - verbal abuse or threat" as one of the typical hazards, and "Violence from clients/public" as one of the "Risk Categories".

[264]

305 The defendant's internal paper systems identified a number of causes, indicators or triggers of client/public violence to staff that applied beyond reasonable doubt to Cheryl Cooper before and on the charge date. First, a history of violence. As I noted earlier, the November 1992 Policy listed as one of the five major causes of client violence to staff: "1. personal factors (related to the occurrence of violent actions e.g. history of violence, medication, medical)". The defendant's July 2007 Policy and Procedures on "Preventing and Managing Client Initiated Violence Policy" listed a range of factors that will affect a client's behaviour. A "Client Context Risk Management Tool" was introduced that prompted the manager and caseworker to consider all relevant aspects of the client's behaviour and context. The Tool included reference to "History of violence/aggression (includes domestic violence, threats of violence against staff/others)" and "Pattern of violence or of obstructive behaviour". 306 Other factors identified by the Tool that might indicate high potential for client violence were: Changes which may indicate declining mental health e.g. more erratic, agitated, declining personal hygiene etc. Other factors were "Client due for mental health or other relevant assessment"; "Known history of abuse of alcohol or other drugs"; "There are also particular times during case management where client may be more prone to aggressive or violent behaviours (eg, initiation of court proceedings…) 307 In relation to this last factor, Mr Wilton gave evidence that clients sometimes are just very angry because the defendant has taken the children and the defendant is taking Children's Court action. Mr Palmer's evidence was to similar effect. Ms Sherrington's evidence in this regard included the following: Q. What type of clients generally were required to be dealt with by that CSC? A. A very broad spectrum of clients. Any client who been affected by family crisis, clients with dysfunctions and clients with mental health issues and clients with drug and alcohol problems, clients with domestic violence, clients with poor parenting skills.

[271]

· on 18 May 2004, in the presence of Ms Philps and Ms Williams during a three-hour interview, Ms Cooper made threats to kill Ms Garcia: "If I see her in the street I will kill her. I will discharge myself from hospital right now and go down to the DOCS office and sort her out" and also "you are all a pack of fucking cunts". These threats were made after Ms Cooper alleged that Ms Garcia had lied to her about when she would see her children. Ms Philps said that she did not discount Ms Cooper actually following that threat; · on 18 May 2004, by the completion of the three-hour interview, Ms Cooper agreed to sign a further Temporary Care Agreement that was for three months starting on 18 May 2004; · on 18 May 2004, Ms Philps received telephone calls from the hospital advising that Ms Cooper was distressed that DOCS had taken her children (and she didn't know why) and then later that Cheryl Cooper had been discharged; · on 19 May 2004, at about 7.45 - 8.00 am, Ms Christopher observed Ms Cooper to be sitting in her car outside the defendant's office. The engine was running and Ms Cooper was speaking incoherently to herself in a loud voice; · at about 8.15 am on 19 May 2004, Ms Cooper was observed by Ms Philps to be sitting outside the defendant's place of work in a motor vehicle. Ms Cooper was hitting the steering wheel with her hand and head with sufficient force that Ms Philps thought Ms Cooper may injure herself. Ms Cooper continued to sit out the front yelling and "revving" the car; · on 19 May 2004, a short time later, the ambulance arrived followed by the police. This was after Ms Christopher telephoned the police at Ballina to advise them of the situation. After the police made an appointment for Ms Cooper to attend the defendant's office that afternoon, the police took knives and a pair of scissors into the office from the car of Ms Cooper. The knives were variously described by witnesses as: 3 or 4 large kitchen knives; and five knives about the size of a cutlery knife and one of the knives looked longer appearing to be more of a chef's knife; · on 19 May 2004, at 8.46 am, Ms Christopher sent an email with its "Importance" said to be "High" and that represented, inter alia, "The hospital staff advised the caseworker that the natural mother [Ms Cooper] did not have any mental health concerns. Please be advised that this person is very aggressive and threatening"; · on 19 May 2004, at about 12.15 pm, Ms Williams saw Ms Cooper sitting in the front of her car out the front of the building. Ms Cooper was reading the bible and was jabbering to herself. The radio was going fully but was turned down after a request to do so by Ms Williams. Ms Cooper started thumping herself on the chest, she was spitting and she said: "I'm going to die. When I die you will smell my rotting flesh up your nose until the day you die"; · on 19 May 2004 commencing at about 1.00 or 2.00 pm (depending on which of two different times provided by Ms Philps is correct), a 30 minute interview was conducted by Ms Philps and Ms Williams with Ms Cooper during which:

[274]

· Cheryl Cooper was angry, · speaking to the wall in gibberish or "in tongues", · stating "I want my kids back I want them returned", · stating "God forgive me for what I am about to do" and, after looking at Ms Philps, "14000 dark angels are going to come and take your soul. I'm sorry"; · whilst Ms Cooper was in the interview room with Ms Philps and Ms Williams on 20 May 2004, Ms Christopher organised three male staff members to come and stand with her outside the interview room. Ms Christopher explained: "I arranged this because I was concerned about Cheryl's mental health issues and as a result was concerned about safety for my staff"; · on 20 May 2004, after the above interview, Ms Christopher saw Ms Cooper laying face down over the bonnet of her car and Ms Cooper vomited on the ground. The caseworkers believed Ms Cooper had taken something - valium or something like that; · on 20 May 2004, during working hours, "client [Cheryl Cooper] used car to attack community members in their car" and this occurred outside the front of the defendant's Ballina CSC. Cheryl Cooper screeched backwards into Tamar Street by reversing her car and began driving about 20 metres up the wrong side of the road. Cheryl Cooper then reversed back into the defendant's car park between two of the defendant's car, yelling and watching a car drive past. The female driver of the car that drove past made a gesture towards Cheryl Cooper. Cheryl Cooper then grabbed the steering wheel of her car and floored her car after the car that had driven past. There was smoke where Cheryl Cooper took off from her tyres spinning. Whilst that other car was stopped at a roundabout, Cheryl Cooper drove into the back of that stopped car. Cheryl Cooper then twice reversed and drove into the other car again. Cheryl Cooper ultimately drove off on the wrong side of the highway"; · after a discussion with Ms Christopher, Ms Balchin and Ms Philps it was decided that a mental health assessment would be cancelled the next day and if Ms Cooper arrived for the appointment the police would be called; · according to the history taken by Northern Rivers Area Health Services on 23 May 2004 from Ms Cooper, the explanation provided by Cheryl Cooper was: "… Children taken into DOCS care. Acting out behaviour, angry verbal outbursts, rammed a car & drove down wrong side of the road, after DOCS wouldn't return children. Has access visit tomorrow from 1-2 & Wednesday from 3-4 …" · Mr Wilton, as Manager Casework, said he had been advised of Ms Cooper's threat to kill Ms Garcia and how she had crashed into another vehicle. He said he had formed the view that Ms Cooper had a predisposition to hurt, injure or even kill people and that she posed a risk of violence to staff; · on 21 May 2004, at about 10.45 am, Ms Philps stated to the police that at the moment the whole [Ballina] CSC was thinking that Ms Cooper had mental health issues and it seemed impossible that the entire office could be wrong; · on 24 May 2004, Ms Philps had a telephone conversation with Sergeant Martin of the NSW Police. Part of this exchange is summarised by Ms Philps: "CW [caseworker] stated that the Mental Health team believed that the n/m [Ms Cooper] had no mental health issues. Steve stated that he wasn't an expert but believed that they were wrong and he had genuine concerns for the n/m's safety." · on 24 May 2004, Ms Philps continued to work on the court papers. Once the defendant had assumed care for the children on Friday it needed to have the court papers in court by Monday afternoon. Mr Wilton said in his evidence: … The decision to seek the Emergency Care order indicates that the officers dealing with the matter were highly concerned with Cheryl Cooper's ability to care for her children. A matter would only go to the Children's Court if the risk of harm to the children concerned could not be resolved in any other fashion. Additionally, the removal of children in this manner often causes parents to act out in a variety of anti-social ways. Thus this action both indicates the potential for violent behaviour as well as creating the conditions where violent behaviour is more likely to occur …"

[277]

Cheryl Cooper has not put the needs of the children first however has placed her own needs as a priority and has not been able to demonstrate that she can support her own emotional and physical needs let alone those of her children. · on 24 May 2004 at about 1.20 pm, Ms Cooper arrived in the defendant's reception area. After Ms Philps set up an interview room, one of the caseworkers let Cheryl Cooper into the room. Ms Philps set the room up by taking out any objects that might be able to be used as a weapon. They set the table up at one end of the room and arranged their chairs so that they could exit the room into the main office should they need to. The room was arranged so that Ms Cooper also had an exit door back out into the reception area should she wish to leave the interview. The employed method of setting up the interview room was usually used for potentially violent clients who already have a history of violence or aggression. Cheryl Cooper fell into that category because of yelling obscenities at the caseworkers and the anger towards Ms Garcia. It was employed for interviews at Ballina CSC before 24 May 2004. Ms Williams said: "The office was set up in such away to try and ensure everybody's safety"; · before permitting Ms Cooper to go from the foyer area of Ballina CSC into the interview room, Ms Philps did not telephone the police to get an update for information concerning Ms Cooper. Ms Philps could not advance any reason why she could not have done so; · Ms Philps had to advise Ms Cooper that they had cancelled the visit with the children and the contacts had to be rescheduled. 309 The evidence demonstrated overwhelmingly that Ms Cooper constituted a significant risk to the safety of DOCS employees at the Ballina CSC on 24 May 2004. Moreover, the evidence also demonstrated beyond doubt that the defendant was aware of this risk. The risk was manifested in the actual incident that occurred on 24 May 2004. Noting that the defendant, in its internal policy and procedure documents, accepted that violence and threats of violence from clients could result in physical or psychological illness or injury to employees, in so far as Ms Philps was concerned the risk materialised in her being stabbed by Ms Cooper. In so far as Mr Wilton was concerned, he confronted Ms Cooper who had a knife in her hand. He was diagnosed with psychological injuries, which manifested in both physical and psychological symptoms. Arising from his psychological injuries, Mr Wilton receives ongoing treatment in the form of weekly counselling sessions and taking daily anti-depressant medication. Mr Wilton lodged a workers' compensation claim that was accepted. 310 Ms Balchin was also placed at risk in her undoubtedly brave confrontation with Ms Cooper as she tried to wrestle with the client who was holding a knife at the time. Ms Balchin suffered "contusions/bruising/crushing". Ms Williams was in the interview room when Ms Cooper attacked Ms Philps. Ms Williams' safety was unquestionably at risk as she also, courageously, confronted Ms Cooper who had a knife in her hand. Ms Sherrington moved into the melee to remove Ms Philps and undoubtedly her safety was placed at risk. Ms Sherrington was stressed by the incident. Ms Lapic, Ms Meehan-Frost and Ms Pisanos were in the immediate vicinity of the interview room and witnesses to the actual incident or its aftermath, including the injuries suffered by Ms Philps. I am unable to find any evidence that Ms Kelly was at risk. I would observe that if it were not for the personal bravery of Mr Wilton and the others I have mentioned, the consequences of Ms Cooper's attack could have been more serious. 311 The question remains as to whether the defendant failed, in the manner particularised, to ensure that its employees were not exposed to risks to their health and safety from the conduct of Ms Cooper. Before addressing each of the particularised failures, it is necessary to say something about causation. A causal nexus between each of the acts or omissions and the risk has to be proven to the criminal standard. In Newcastle Wallsend Coal Company Pty Ltd v WorkCover (Inspector McMartin) the majority (Walton J, Vice President and Boland J; Marks J not dissenting on this point) stated in relation to causation: [301] As foreshadowed at the beginning of our discussion of failures, the parties made submissions concerning the relevant principles governing causation. The principles relating to causation in this jurisdiction are well settled: WorkCover v Kellogg (Aust) at 253; The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57 at [41]-[51]; and State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [25]-[33]. In summary: (a) As we noted above at [213], the Court held in WorkCover v Kellogg (Aust) (No 1) at 253 that it is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees. It is not necessary to demonstrate a causal connection between the conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. (b) It is inappropriate to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation ( WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited and Anor at [133]; see, for example, Haynes v C I & D Manufacturing Pty Ltd at 156-7). See also The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [32]-[40]. (c) The fact that a risk was not created by, or under the control of, a defendant is not to the point: The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [42] and [44]. An employer cannot escape liability by contending simply that it did not create the risk. (d) Causation has to be viewed in a common sense and practical way and is not decided as a philosophical or scientific question; see State of New South Wales (NSW Police) v Inspector Covi at [25] and The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [45]. (e) It is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question was whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way" see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]-[50]. (f) A risk to safety that exists independently of the defendant (such as a violent criminal) may increase or become more serious as a consequence of the employer's acts or omissions. In that way, the defendant's failure may materially contribute to the risk: see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]. Failing to prevent the client, Ms Cheryl Cooper, from attending the place of work for an interview

[278]

312 After the car ramming incident on Thursday 20 May 2004, as I earlier noted, Ms Philps had a discussion with Ms Christopher and Ms Balchin. It was decided that due to the recent events the mental health assessment of Ms Cooper scheduled for the following day should be cancelled. Further, that if Ms Cooper arrived at the CSC the police should be called, as they expected Ms Cooper to be arrested and charged. On Friday 21 May 2004, Ms Philps cancelled the mental health assessment and advised the police that if Ms Cooper arrived for her interview, the police should attend. Ms Cooper did not arrive, but the police attended at 10.45 am. In light of Ms Cooper's failure to attend, Ms Philps decided to cancel the following Monday's access visit for Ms Cooper to see her children. Ms Philps attempted to contact Ms Cooper on her mobile phone a number of times on the Friday to advise of the cancelled access but had no success. Ms Cooper's mobile phone was turned off. 313 Ms Philps knew that it was possible that Ms Cooper might attend expecting a contact visit with her children on Monday 24 May 2004, although she did not expect Ms Cooper to actually appear. Ms Christopher was aware that Ms Cooper might attend, as Ms Philps advised her of the possibility on the morning of the stabbing attack. 314 It should have been apparent to Ms Philps, Ms Williams, Ms Christopher and indeed, Ms Balchin that given Ms Cooper's obvious concern with having been separated from her children there was every likelihood she would attend the access visit that had been arranged for Monday 24 May and, as far as Ms Cooper knew, had not been cancelled. Moreover, given the obvious risk associated with a situation where it had been decided Ms Cooper would not have access to her children and Ms Cooper's unpredictability, the threats she had made and her known capacity for violent behaviour, consideration should have been given to the taking of steps to ensure Ms Cooper did not present a risk to the safety of employees at the Ballina CSC. 315 It was submitted for the defendant that based on the mental health assessment, the absence of any advice from the police that they should be present if Ms Cooper presented herself on 24 May and Ms Cooper's relatively neat and calm appearance on 24 May, it was reasonable for the caseworkers to proceed to interview Ms Cooper without taking any necessary precautions in respect of their safety. However, neither Ms Philps nor Ms Williams nor Sergeant Martin agreed with the mental health assessment of Ms Cooper being mentally stable. Further, Ms Cooper's neat and calm appearance was at odds with her earlier appearance and demeanour and her capacity for aggressive behaviour. The two caseworkers had earlier observed the rapid mood swings that Ms Cooper was capable of. Ms Philps herself observed Ms Cooper being "very angry" and then "very passive"; crying then laughing. In these circumstances it was unreasonable to regard Ms Cooper as not representing any risk to safety. 316 I note that it had been decided on Friday 21 May to cancel the mental health assessment and the police were advised that if Ms Cooper arrived for her interview, the police should attend. Ms Cooper did not arrive, but the police attended in any event. No such arrangement was made for Monday 24 May, despite there being, on an objective assessment, the likelihood that Ms Cooper would attend to see her children and if she were not given access there was the potential for her to react violently. 317 Despite what I regard as an obvious course of action, that is to take steps to prevent Ms Cooper from attending the CSC for the interview on Monday 24 May and thereby avoiding any risk to the safety of employees, no such steps were taken. Ms Cooper walked into the foyer of the CSC unimpeded and was then invited into the interview room by one of the caseworkers. There were various alternatives to this course of action. One of them was, as Ms Sherrington explained in her evidence, to speak to Ms Cooper from behind the protection of the perspex covering the reception area. Ms Sherrington said: "I think worker safety comes first; so in a case like this you would say, I would say it through the perspex, I would invite them to another appointment and I would invite where I could plan but I would do it from the perspex and as there was a different appointment to have empathy." 318 Another alternative was to have the police or security personnel present to prevent Ms Cooper accessing the CSC. Another viable alternative was to conduct any interview with Ms Cooper at the police station, which had been done before with other clients exhibiting a propensity for violence. 319 I agree with the prosecutor that it is impossible to come to any view other than that if Cheryl Cooper had been prevented from attending the place of work for an interview, no risk to health and safety would have arisen. The defendant's failure to prevent Ms Cooper's attendance was a "substantial or significant cause [of the risk] viewed in a commonsense and practical way". 320 Particular (c)(i) of the charge is made out. Failing to undertake an adequate risk assessment of the client 321 It was alleged that there was a failure on the part of the defendant "to undertake an adequate risk assessment of the client that had a focus on the safety of the employees at the place of work, assessed the risk and assessed what preventative or control measures needed to be in place to prevent or reduce an incident arising or escalating to a more serious stage." 322 There is no doubt the defendant failed to undertake an adequate risk assessment of Ms Cooper. There is no statutory requirement for an employer to conduct a formal, structured risk assessment by, for example, allocating a risk score or a rating using a risk matrix, although given the requirement in reg 10 of the Occupational Health and Safety Regulation 2001 to assess the risk of harm to the health or safety of the classes of persons nominated in the regulation, it is highly advisable. 323 In the defendant's case, however, its policies and procedures provided for formal risk assessments to be conducted. Those policies and procedures, both at the time the charge was laid and after the incident on 24 May 2004, laid out in great detail the approach to be taken to risk assessment including in relation to the assessment of risk that clients presented. The policies and procedures were most relevant and applicable to an assessment of the type of risk presented by Ms Cooper. The policies and procedures to which I refer included: No. 92/136 Departmental Policy on the Effective Management of Client Behaviour to Prevent Injury or Illness to Staff, 20 November 1992; No. 95/148 Procedures for the Management of Threats to Staff, 29 December 1995; No. 96/65 Risk Assessment Policy Guidelines and Procedures, May 1996 that set down a method of conducting and recording the risk assessment process as signed by Rod Gilmour, Director Corporate Services, including for the risks of injury or illness to staff from clients; DOCS Policy Statement OHS Policy dated 26 September 2003, which said that Managers and Supervisors were accountable to the Director-General for implementing and monitoring risk management strategies applicable to staff and workplaces that they manage; OHS Risk Management Policy, August 2004 and OHS Risk Management Procedures; and Preventing and Managing Client Initiated Violence Policy and Procedures, July 2007. 324 The formal policies and procedures were not followed by the defendant through any of its managers or caseworkers. Indeed, there was no formal policy or procedure in place in the Ballina CSC in relation to dealing with potentially violent clients and there was no systematic risk assessment to determine the risk of violence before and on the charge date. 325 Nevertheless, it was contended for the defendant that it did assess the risk. Reference was made to the evidence of various witnesses including Ms Sherrington, Ms Thomas, Ms Garcia, Ms Philps and Ms Williams. The evidence was to the effect that risk assessment by DOCS workers was a continuing, everyday occurrence, which encompassed an appraisal of clients based on common sense, training and experience. It was said that formal, structured risk assessments were not always practicable given the heavy workload and the urgency of many situations that arose and which caseworkers were required to deal with quickly. However, that this did not mean no risk assessments were undertaken.

[290]

340 Prior to the 24 May 2004 incident, the evidence was that Ballina CSC staff occasionally engaged private security guards in order to protect them while interviewing potentially violent clients. Witnesses employed by the defendant at Ballina CSC on 24 May 2004 who had personal experience and knowledge of the defendant implementing this step or measure were Mr Wilton, Ms Britton, Mr Barrett, Ms Williams and Ms Sherrington. In contrast, Ms Christopher, Ms Balchin and Ms Philps did not have personal experience of using security guards. 341 Mr Wilton said in his evidence: From first hand experience … We have had a number of occasions over a period of years when the centre has been on a higher alert than usual because of the opportunity that a client might act out violently towards either a child or a staff member or somebody from another agency who might be involved in the case and present in the CSC. 342 Mr Wilton also gave evidence that a security guard could have acted as a deterrent as the client would have had to consider if she is going to continue to attack. Ms Britton said that the defendant could have arranged for a security guard to be there when someone was going to tell Ms Cooper that she was not going to have access to her children. Mr Barrett said the security guard could be in the interview room or directly outside making sure that nobody was harmed or injured. In his experience one security guard seemed to be effective as he did not recall a violent incident on site whilst a guard was present. 343 Prior to the 24 May 2004 incident, Ballina CSC staff organised police officers to be present in order to protect them while interviewing potentially violent clients. Witnesses who had personal experience or knowledge of the defendant implementing this step or measure were Ms Britton, Mr Barrett, Mr Palmer, Ms Williams and Ms Sherrington. Ms Philps, Ms Christopher and Ms Balchin did not have personal experience of police being present. 344 Mr Barrett said just by having a police person present usually will keep the behaviour of most clients under control. If somebody does become violent, police can step in and assist physically. Typically, the police would stand up in the corner of the interview room whilst the interview was conducted and two officers would be present. In his experience, it was very effective to limit the potential for violence and there were no violent situations on the occasions that police were on site. 345 I note that in the Injury/Illness Incident/Accident Report Form dated 24 May 2004 from Ms Balchin to Mr Myers it was stated under the heading "Preventative Action": "Higher security attendance at the office if client to attend office …" I also note that in the "Preventing and Managing Client Initiated Violence Policy and Procedures, July 2007", there was the option to "… call Police if circumstances warrant …" Further, in that Policy and Procedures in its "Client Context Risk Management (CCRM) Tool" it lists as one control action "Request Police presence." 346 As the prosecutor submitted, even assuming a worst case scenario that the caseworkers did not stop the interview after Ms Cooper sat on the table, any security guard or police officer could have intervened later when Ms Cooper first slid across the table and struck Ms Philps in the face. At the very least, the actual incident of Ms Cooper dragging Ms Philps to the side of the room and stabbing Ms Philps another three times in the back would have been then prevented or certainly reduced. The same applies to Ms Cooper then following Ms Philps into the main office after Ms Philps broke free. There would have been no need for Ms Williams to run to the interview room door and yell for someone to ring the police whilst Ms Cooper and Ms Philps were fighting along the wall. The intervention of Ms Balchin, Mr Wilton and Ms Sherrington all needing to become involved to variously assist Ms Philps, to disarm Ms Cooper and to restrain Ms Cooper would also have been obviated or reduced if there was any security guard or police officer present. 347 In The Crown in Right of the State of New South Wales (Department of Education and Training) v O'Sullivan the Full Bench considered circumstances involving an attack by a severely intellectually disabled student on a teacher left alone in a class room. It had been alleged the appellant had failed to provide adequate human resources. At [63] the Full Bench stated: [63] Given the above circumstances, described by Walton J at [148] of his first judgment, it is, in our opinion, a matter of plain common sense that if Mr McKenzie [another teacher] had been present in the classroom at the time Mrs Griffiths was exposed to the risk of assault his presence would have had the effect of reducing the risk. His presence would have surely meant that the risk did not escalate or become a more serious potential danger. Whilst we accept that the presence of Mr McKenzie would not have eliminated entirely the risk of assault by violent and unpredictable students, we consider that on 9 February 1999 that risk escalated to a more serious level because of the absence of an additional staff member. It may, therefore, be safely concluded beyond reasonable doubt that the failure of the appellant to provide additional human resources in the face of the potential danger to which Mrs Griffiths was exposed on 9 February 1999, after Mr McKenzie left the classroom, materially contributed to a risk to Mrs Griffiths' health and safety.

[292]

349 Apart from Ms Christopher and some administrative staff, the defendant's employees working at Ballina CSC were not alerted, informed or warned that Ms Cooper would be attending the Ballina CSC on 24 May 2004. Nothing was provided to such employees electronically, in writing or orally. 350 In contrast, on 19 May 2004 emails were sent from Ms Christopher to staff and to Ms Balchin and described as of "high" importance. Ms Christopher said this description meant that the recipients would see it come through as a high alert and open the email and read it. The emails referred to the incident at the Ballina Hospital when Ms Cooper made threats. Ms Christopher advised in the email that Ms Cooper was "very aggressive and threatening." 351 It was Mr Wilton's evidence, which I accept, that: · there was no email or other warning informing staff that Cheryl Cooper was going to be interviewed by staff on 24 May 2004, · he did not know Cheryl Cooper was in the building, he was in his office and what he heard sounded like horseplay, · "… to this day, I can't for the life of me figure out why no one else was told that the client was in the building. We had not received any emails, there had not been any security protocol. No one had said to us, we have got somebody who's demonstrated a predisposition to violence recently towards people, and we have decided to interview her in the Centre and these are the security arrangements we've made, no warning, no advice that she was …" And: Q. In your interview with Mr Saunders, you variously said that you confirmed you did not know that Cheryl Cooper was in the building and you were not told that Cheryl Cooper was in the building. Now, without the benefit of hindsight, by that I mean knowing there was a stabbing incident, if you had been informed she was to come into the building on 24 May 2004, what would you have done? A. I would have convened a meeting of the managers and argued for protection and some type of secure arrangement. I would not have let her back in the centre after what happened with the car incident. 352 In documentary material prepared after the incident on 24 May 2004, various references were made to the need for procedures to alert staff to the presence of potentially aggressive clients. For example, in an email dated 12 October 2005 attaching Draft - Security Rules - Ballina CSC, it was stated that one of the rules/conditions to be complied with was that: "Caseworkers must inform all staff through email of an appointment with an aggressive or known violent client. The email must outline the time of the interview, any special arrangements and the supervising manager." 353 The defendant's obligation under s 8(1) of the 2000 OHS Act may have been met by eliminating or preventing or minimising exposure to any risk by taking the step of alerting employees beforehand that Ms Cooper was to, or might, attend the Ballina CSC or, if she had already arrived unannounced, alerting employees to her presence. Particular (c)(v) has been made out. Failing to have in place adequate interview facilities at the place of work 354 It was correctly contended by the prosecutor that on the charge date, the actual interview room was insensitive to administrative staff exposed potentially to violence, physical or verbal, because of its proximity to those administrative staff. It was noted that, for example, Ms Meehan-Frost was seated working at the switch about two metres from the door and could see into the interview room. Ms Philps and Ms Williams left the internal door open about 40 to 50 cm. Further, that none of these staff had been trained on how to deal with a potentially violent client who acted out violently. 355 It is correct to observe that on the charge date, the table in the interview room was not large enough to provide a complete barrier between the client and the two employees conducting the interviews. Ms Williams did place other chairs around the table to stop Ms Cooper coming around the table. Nevertheless, there was a gap at one end of the table because the table was not long enough. Thus, the table did not maintain an appropriate distance between, or restrict access to, the client and employees. After the incident the interview rooms were furnished to allow for one higher security interview space - a large rectangular table, set across the room, restricting access to the staff side of the interview space. Larger chairs were purchased so that they could not be lifted so easy. 356 On the charge date, the internal door to the interview room did not have any actual window. There was a refrigerator blocking the blinds and window, and no worker was positioned outside monitoring the interview. There did not exist what was referred to as an operating observation room because that room was used as a storage room. There was no CCTV coverage of the interview room. 357 After 24 May 2004, the defendant ceased using the interview room in which the attack took place. After the incident, in interview rooms used at the Ballina CSC, there was introduced an actual window in the interview room door to permit vision and observation. 358 It is beyond reasonable doubt that if the post-charge measures taken to upgrade the security of the interview rooms had been implemented prior to 24 May 2004, it would have eliminated or prevented or minimised exposure to the risk of an assault by Ms Cooper. Particular (c)(vi) has been made out. Failing to have in place an adequate emergency system 359 It was submitted for the prosecutor that on the charge date there was no adequate emergency system in place, in that there was: a. No departmental policy about when to activate a duress alarm. b. No procedure for what happens once a duress alarm was activated and how to respond. c. No emergency procedures in place in relation to violence by clients. d. No practice drills for responding to a duress alarm once it had been activated or responding to when a client became violent within the CSC. e. No mandatory requirement that Caseworkers take a personal duress alarm into an interview room when interviewing clients.

[296]

[88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 369 In determining whether a defendant should have reasonably foreseen a risk of injury, it is not necessary to show that a reasonable person placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident or, in other words, the precise risk of injury or how it occurred. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen or it was reasonable to foresee in a general way the kind of thing that occurred. 370 In Shannon v Comalco Aluminium Ltd at 364 the Full Bench stated in relation to the application of s 53(a): The standard of foreseeability is objective, but it is not necessary to show that a reasonable man placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident. (See Caledonian Collieries Limited v Speirs (1959) 97 C.L.R. 202; Malleys Limited v Rogers (1955) 55 S.R. (NSW) 390.)

[299]

371 More recently, the Full Bench in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 said at [76]: [76] …It appears that the appellant was not even aware of the risk. But it is not a matter whether the appellant was or was not aware. It is a matter of whether the appellant should have been aware: WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Limited (unreported, Walton J, Vice President, IRC 97/4732, 4733, 19 October 1999). If the appellant had been aware, as it should have been, instructions not to use the trafficable ceiling until its safety was assured would have prevented the risk to safety arising. 372 The defendant has not discharged the onus of proving on the balance of probabilities that what occurred at Ballina CSC on 24 May 2004 was not reasonably foreseeable. The defendant's paper systems in connection with occupational health and safety policies and procedures that applied on or before the charge date are sufficient, in themselves, to show that the risk was reasonably foreseeable, indeed, foreseen by the defendant. But putting aside the paper systems, on or before the charge date it was reasonable to foresee the general kind of thing that occurred with Ms Cooper, namely, that Cheryl Cooper might in some way be violent towards the defendant's employees. In that respect, I refer to just four indicators: (i) on 19 May 2004 at 8.46 am (and, therefore, before the car ramming incident), Ms Christopher sent an email with its "Importance" said to be "High" and that represented, inter alia , "The hospital staff advised the caseworker that the natural mother did not have any mental health concerns. Please be advised that this person is very aggressive and threatening"; (ii) on 20 May 2004 at about 3.30 pm (and, therefore, shortly before the car ramming incident), whilst Cheryl Cooper was in the interview room with Ms Philps and Ms Williams, Ms Christopher organised three male staff members to come and stand with her outside the interview room. Ms Christopher explained: "I arranged this because I was concerned about Cheryl's mental health issues and as a result was concerned about safety for my staff"; (iii) on 20 May 2004 (shortly after the car ramming incident), Ms Christopher for the third time in that week telephoned the NSW Police for reasons that included safety issues. The defendant cross-examined Ms Christopher: Q. In this case it was partly because of your assessment with safety issues that you called at the police three times that week? A. Yes; (iv) on 24 May 2004, in the morning, the grounds for the orders sought as set out in the Application to the Children's Court include: "Cheryl Cooper has continually shown disturbing behaviours such as aggression, non-compliance, non-engagement to the employees at the Ballina CSC." 373 In addition to failing to show the risk was not reasonably foreseeable, the defendant failed to show, on the balance of probabilities, that it was not reasonably practicable to make provision against the happening of the event - in this case, the attack by Ms Cooper in the interview room at the Ballina CSC. Where the happening of an event is obvious or reasonably foreseeable, in considering a defence under s 28(a) it is necessary to consider the costs, difficulty and trouble necessary to avert the risk: St Hilliers at [37]. 374 In WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (2002) 115 IR 59 at [69] the Full Bench referred with approval to what was said by Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 260 that the greater the magnitude of the risk and the greater the gravity of the harm, should the event occur, the higher is the duty to take precautions, even if these are expensive or difficult. 375 In the present case, there was a known risk that entailed the potential for serious injury to employees. On the other hand, the taking of precautions against the risk was neither expensive nor difficult. 376 In relation to particular (c)(i), failing to prevent Cheryl Cooper from attending the place of work for an interview, the precautions that could have been taken included: causing at Ballina CSC the attendance of a security guard or guards or a police officer or officers in order to prevent Ms Cooper entering the Tamar Street entrance through the automatic sliding doors or preventing Ms Cooper if she got into that foyer area from going from that part of the premises into the secured office area (including the interview room); interviewing Cheryl Cooper at Ballina Police Station in the presence of police after speaking at the Ballina CSC to Cheryl Cooper from behind the protection of the perspex protected reception area; not opening the external door that allowed Ms Cooper to come into the interview room; and having a written policy or procedure in place on the day of the charge to prevent Ms Cooper from going either into the premises through the Tamar Street entrance or, if she was in that foyer area, from going any further into the office area where the interview rooms were located. 377 In relation to particular (c)(ii) precautions that could have been taken included: undertaking a formal risk assessment of occupational violence in respect of a client like Cheryl Cooper; implementing the defendant's paper systems in place before and at the time of the charge; consulting with a cross-section of employees at the Ballina CSC and in particular those with experience in the job; and considering before and on the charge date, information and documents dealing with potential client violence based on known client history, which were available to the defendant. 378 In relation to particular (c)(iv) the precaution that could have been taken was to ensure that there were security guards or police officers attending at the place of work whenever the client attended the place of work. In relation to particular (c)(v), providing an alert in respect of the client or warning employees that the client was to attend the place of work, or both. In relation to particular (c)(vi), precautions that could have been taken included: providing a table in the interview room that was large enough to provide a complete barrier or restricted access between the client and the two employees; installing a window in the internal door to the interview room to permit vision and observation; maintaining an operating and functional observation room with a window that permitted monitoring of the interview; and providing CCTV coverage of the interview room. 379 In relation to particular (c)(vii), precautions that could have been taken included: providing and implementing a departmental policy about when to activate a duress alarm; providing and implementing a procedure for what happens once a duress alarm was activated and how to respond; providing and implementing emergency procedures in relation to violence by clients; providing and implementing practice drills for responding to a duress alarm or responding when a client became violent within the CSC; and implementing the defendant's paper systems in place before and at the time of the charge. 380 The defendant failed to adduce evidence about the costs and benefits of the various alternative measures set out above or to address them. In any event, on any analysis it could not be said the costs, difficulty or trouble occasioned by the measures significantly outweighed the risk. The defence under s 28(a) has not been made out.

[304]

(iii) there was ineffective supervision by Mr Wilton and Ms Sherrington and ineffective communications between the two teams in the Ballina CSC caused by personality conflict. 385 As to the first alleged cause, Ms Williams had not even read the mental health assessment provided to Ms Philps on 24 May 2004, but in her discussions with Ms Philps could not understand how the assessment could be so low. Ms Christopher only recalled seeing one page of the assessment (the eighth page containing the assessment of the current risk) and seems to have essentially relied on Ms Philps' judgment regarding any evaluation of the assessment. 386 As for Ms Philps: · on 21 May 2004, at about 10.45 am, Ms Philps stated to the police that at the moment the whole [Ballina] CSC was thinking that Cheryl Cooper had mental health issues and it seemed impossible that the entire office could be wrong; · Ms Philps always thought that Cheryl Cooper had mental health issues of some sort; · on 24 May 2004, Ms Philps had a telephone conversation with Sergeant Martin of the NSW Police. Part of this exchange was summarised by Ms Philps: "CW [Ms Philps] stated that the Mental Health team believed that the n/m [natural mother] had no mental health issues. Steve stated that he wasn't an expert but believed that they were wrong and he had genuine concerns for the n/m's safety"; · there were limitations to the experience of Ms Philps. Ms Philps was under probation. Ms Philps did not think before 24 May 2004 that at Ballina CSC she had dealt with any psychiatrist for the purpose of work. Ms Philps had not seen the type of mental health assessment before. Ms Philps did not have any other client who rammed a car. At the time, Ms Philps did not have any other clients threatening to kill a DOCS worker; · thus, in respect of Ms Philps, even though she was a caseworker of limited experience, Ms Philps had been dealing directly with Ms Cooper and clearly had a different view, confirmed by Sergeant Martin, about the risk constituted by Ms Cooper. In those circumstances, I do not believe that Ms Philps accepted the mental health assessment on its face and proceeded on the basis that Ms Cooper was a low risk or, if she did, then it was unreasonable for her to do so. If Ms Philps had doubts about the extent to which Ms Cooper was a risk, and she surely did, it was open to her to request a further mental health assessment into which DOCS could have an input prior to undertaking any further interviews with Ms Cooper. 387 Ms Sherrington was a child protection specialist and, unlike other employees at Ballina CSC, had experience in looking at mental health assessments. She was not asked to do so in respect of Ms Cooper's assessment. It was clearly within the defendant's control to have Ms Sherrington look at the assessment and it was not impracticable for her to do so. 388 The "Request for Mental State Examination" was completed on 23 May 2004 at 11.00 and it represented in writing that the client was to be re-assessed within 24 hours. This re-assessment did not occur or the defendant did not ascertain whether the 24 hours had expired by the time of the 24 May 2004 interview with Ms Cooper. It was clearly within the defendant's control to have Ms Cooper re-assessed after the expiry of the 24-hour period and was not impracticable for it to do so. 389 It appeared from the evidence that mental health workers accepted Ms Cooper's version of events and narratives without adequate reference to experienced staff in other agencies, including DOCS. It should have been apparent to the managers and caseworkers involved with Ms Cooper that this was the case and given their scepticism about the assessment of Ms Cooper being a low risk it was within their control to seek to have input into the assessment and there was no evidence this was impracticable. 390 The defendant's proposition amounts to this: the defendant had received a mental health assessment that was wrong in hindsight but it was left with no alternative but to accept that assessment. That is plainly wrong. The assessment was not adequately assimilated by the managers or caseworkers; the main responsibility for interpreting and applying the assessment was left with a caseworker with limited experience; the assessment was met with deep scepticism if not disbelief; there was an opportunity to seek advice about the assessment from an experienced specialist; and it was open to the defendant to seek a further assessment into which it could have input based on very recent experience of Ms Cooper's conduct. 391 The next contention was that there was an "effectively wrong assessment of the risk by the local police". I agree with the submission of the prosecutor that the Police were never involved in assessing the risk that is the subject of the charge. Such a proposition was never put directly in those terms or even indirectly by the defendant to the police officers called to give evidence. Moreover, the Police were never provided with all of the information and history about Ms Cooper that was in the possession of the defendant. 392 Finally, on this point, I note Sergeant Martin's evidence as follows: Q. What did you think when you learnt there had been an interview in a DOCs' interview room at the DOCs' office involving Cheryl Cooper, Kylie Philps and another case worker? … Q. What did you think? A. Once I found out the victim was Kylie, like she was standing at the front counter and bandaged, I spoke to Detectives and expressed: I just couldn't believe somebody of Coopers background in that last 24 hours, or two or three days, was put in a situation where she was able to basically reach over to a DOCs worker.

Parties

Applicant/Plaintiff:

Cahill

Respondent/Defendant:

State of New South Wales

Legislation Cited (6)

Customs Act 1901(Cth)ss 233B(1)(b), 233B(1)(c)

Defence Force Discipline Act 1982(Cth)

(UK) Defence Force Discipline Act 1982(Cth)s 44(2)

Environment Protection Act 1970(Vic)s 39(1)

Factories and Shops Act 1960(Qld)

Occupational Health and Safety Act 1983(NSW)

Cases Cited (70)

Allen v United Carpet Mills Pty. Ltd. and Another [1989] VR 323 Austin Rover Group Ltd v Her Majesty's Inspector of Factories [1989] 3 WLR 520 Beacham v Interface Manufacturing Pty Ltd (2005) 141 IR 416 Bull and Others v The Attorney-General for New South Wales (1913) 17 CLR 370 Butler and Another v Fife Coal Company Limited (1912) AC 149 CA Henschke & Co and Another v Rosemount Estates Pty Ltd (1999) 47 IPR 63 Cahill v State of New South Wales (Department of Community Services) (2007) 161 IR 124 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Chief of the General Staff v Stuart (1995) 58 FCR 299 Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 Daly Smith Corporation (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 Dawson v State Rail Authority of NSW (1988) 26 IR 359 Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Environment Protection Authority v N (1992) 26 NSWLR 352 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Ford v North West County Council (1987) 23 IR 155 Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] 1 AC 1 Grunwick Processing Laboratories Ltd and Others v Advisory, Conciliation and Arbitration Service and Another [1978] AC 655 Hardy v St Vincent's Hospital Toowoomba Ltd [2000] 2 Qd R 19 Hawthorne (Deptartment of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 Haynes v CI & D Manufacturing Pty Limited (1994) 60 IR 149 He Kaw Teh v The Queen (1985) 157 CLR 523 HG v The Queen (1999) 197 CLR 414 Hunter Water Board v State Rail Authority of New South Wales (No 1) (1992) 75 LGRA 15 Inspector Schultz v Hoffman's Kundabung Sawmilling Pty Ltd [2006] NSWIRComm 277 Jiminez v The Queen (1992) 173 CLR 572 John Cahill v State of New South Wales (Department of Community Services) (No 2) [2007] NSWIRComm 187 K & S Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 Kirk Group Holdings Pty Ltd & Another v WorkCover Authority of New South Wales and Another (2006) 66 NSWLR 151 Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 Lim Chin Aik v The Queen [1963] AC 160 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McMartin v The Broken Hill Proprietary Company Limited (1988) 100 IR 241 Morrison v Powercoal Pty Ltd and Another (2004) 137 IR 253 Mount Isa Mines Ltd v Peachey (Unreported, Queensland Court of Appeal, McMurdo P, McPherson JA and Muir J, 1 December 1998) Neindorf v Junkovic (2005) 80 ALJR 341 CASES CITED: Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) (2006) 159 IR 121 Powercoal Pty Ltd and Another v Industrial Relations Commission Of NSW and Another (2005) 64 NSWLR 406 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Proudman v Dayman (1941) 67 CLR 536 R v Associated Octel Co Ltd (1985) ICR 285 R v Board of Trustees of the Science Museum (1993) ICR 867 R v British Steel Plc [1995] ICR 586 R v Davies [2003] ICR 586 R v Ewart (1905) 25 NZLR 709 R v Gateway Foodmarkets Ltd [1997] ICR 382 R v Lavender (2005) 222 CLR 67 R v Sault Ste Marie (1978) 2 SCR 1299 R v Wampfler (1987) 11 NSWLR 541 R. v. Cancoil Thermal Corp. (1986) 27 C. C. C. (3rd) 295 Ref. re S. 94(2) of Motor Vehicle Act [1985] 2 S.C.R. 486. Regina v Jung [2006] NSWSC 658 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 Saraswati v The Queen (1991) 172 CLR 1 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Sherras v De Rutzen [1895] 1 QB 918 St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (2007) 162 IR 241 State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 Sweet v Parsley [1970] AC 132 T and M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 The Crown in Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 Von Lieven v Stewart Kemish v Godfrey and Another (1990) 21 NSWLR 52 Waugh v Kippen and Another (1986) 160 CLR 156 William and Margaret Adamson t/a John Adamson & Sons v Procurator Fiscal, Lanark [2000] ScotHC 102 WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366 WorkCover Authority (NSW) v T & Y Pty Ltd (2005) 146 IR 458 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (2002) 115 IR 59 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 WorkCover Authority of New South Wales (Inspector Glass) v Flexible Packaging (Australia) Pty Ltd (2005) 144 IR 385 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No 2) (2001) 110 IR 447

[1997] NSWIRComm 60

(1985) 157 CLR 523

(2005) 141 IR 416

(1913) 17 CLR 370

(1999) 47 IPR 63

(2007) 161 IR 124

(1985) 11 IR 467

(1995) 58 FCR 299

(1981) 147 CLR 297

(2006) 151 IR 173

(1988) 26 IR 359

(1992) 28 NSWLR 1