GEO Group Australia Pty Ltd (t-as Junee Correctional Centre) v WorkCover Authority of New South Wales

Criminal Appeal Act 1912 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Chow (1992) 63 A Crim Report 316 DeMarchi v R [1983] 1 VR 619 CASES CITED: Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169 WorkCover Authority of New South Wales (Inspector Hannah) v The GEO Group Australia Pty Limited (t/as Junee Correctional Centre (7 February 2008, No. 20173945/06/2, Chief Industrial Magistrate Hart, unreported) Yates v Wilson and ors (1989) 168 CLR 338

APPELLANT (RESPONDENT ON THE MOTION): Mr A Moses SC Solicitors: Berry Buddle Wilkins Lawyers Mr S Berry LEGAL REPRESENTATIVES:

RESPONDENT (APPLICANT ON THE MOTION): Mr D O'Neil of counsel Solicitors: DLA Phillips Fox Lawyers Ms J Healy

CORAM: BOLAND J, President WALTON J, Vice-President STAFF J

The GEO Group Australia Pty Limited (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales

Appeal by The GEO Group Australia Pty Limited (t/as Junee Correctional Centre) from a decision of Chief Industrial Magistrate Hart given on 7 February 2008 in Matter No. CIM 20173945/06/2

JUDGMENT OF THE COURT [2009] NSWIRComm 15 1 The GEO Group Australia Pty Limited (t/as Junee Correctional Centre) (the GEO Group) was found guilty by the Chief Industrial Magistrate of contravening s 8(2) of the Occupational Health and Safety Act 2000 (the Act): (WorkCover Authority of New South Wales (Inspector Hannah) v The GEO Group Australia Pty Limited (t/as Junee Correctional Centre), (7 February 2008, No. 20173945/06/2, Chief Industrial Magistrate Hart, unreported). 2 On 28 February 2008, prior to the sentencing hearing, the GEO Group filed an application for leave to appeal and appeal pursuant to s 105(3) of the Act and ss 188 and 197(1)(b) of the Industrial Relations Act 1996. 3 On 31 March 2008, Backman J considered an application by the GEO Group for a stay of the sentencing hearing, which was listed for 1 May 2008 before the Chief Industrial Magistrate. Her Honour expressed reservations as to whether this Court had jurisdiction to entertain an application for a stay prior to the sentencing hearing. A second issue raised by the parties was whether the decision of the Chief Industrial Magistrate resulted in a conviction of the GEO Group under s 197 of the Industrial Relations Act and s 5AA of the Criminal Appeal Act 1912. Her Honour was informed that this issue was the subject of a reserved decision of the Full Bench: Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169. Against that background, her Honour granted an application that the appeal be stood over. 4 On 16 September 2008, the Full Bench delivered its judgment in Rail Infrastructure Corporation v Inspector Page. 5 On 4 November 2008, the WorkCover Authority of New South Wales filed a Notice of Motion seeking Orders that the appeal be stayed pending sentencing by the Chief Industrial Magistrate or, in the alternative, leave to appeal, to the extent that it is required, be refused pending sentencing by the Chief Industrial Magistrate. Hence, the Notice of Motion raises two issues. First, whether the appeal should be stayed pending sentencing by the Chief Industrial Magistrate. Secondly, whether leave to appeal, to the extent that it is required, be refused pending sentencing by the Chief Industrial Magistrate. This judgment deals with these issues. In our opinion, the first issue should be resolved in the affirmative. It is, therefore, unnecessary to determine the second issue. Submissions of the parties

6 Mr D O'Neil of counsel, who appeared for the applicant on the Motion, conceded that the GEO Group was entitled to lodge an appeal after conviction, but prior to being sentenced. It was common ground, in the light of the Full Bench decision in Rail Infrastructure Corporation v Inspector Page (at [20] and [39]) that the GEO Group had been convicted. 7 Mr O'Neil primarily submitted that it was fundamental to the administration of the criminal process that proceedings not be fragmented unless exceptional circumstances applied and that it would undermine the proper administration of the Court's criminal business if, in each and every matter, it was open to defendants to appeal a finding of guilt prior to the sentencing process. Such an approach, counsel submitted, opened the potential for a waste of the Court's resources and time, the potential for extensive delay and the creation of the impression that all convictions were contingent upon confirmation by the Full Bench. 8 In summary, Mr A Moses SC who appeared for the GEO Group, submitted that the applicant's contentions were based on false premises and relied upon authorities that were either not binding on this Court or had little relevance to the present case. The applicant's submissions, it was submitted, ignored the clear and express words of s 197(1)(b) of the Industrial Relations Act and were an attempt to have the Full Bench lay down guidelines which stated a general binding rule to be observed before the respondent could exercise its right to appeal. Such an approach was impermissible, senior counsel submitted, as the applicant's approach ignored a basic fact that an appeal from a Chief Industrial Magistrate's decision to the Full Bench was a matter affecting rights and not a matter of procedure. The primary matter for consideration was whether staying the appeal pending sentencing by the Chief Industrial Magistrate could be characterised as fragmenting the criminal process. Consideration 9 In Yates v Wilson and ors (1989) 168 CLR 338, Mason CJ said at 339: It would require an exceptional case to warrant the grant of special leave to appeal in relation to a review by the Federal Court of a magistrate's decision to commit a person for trial. The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us. It is a factor which should inhibit the Federal Court from exercising jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and as well inhibit this Court from granting special leave to appeal. 10 In Chow (1992) 63 A Crim Report 316, an accused appealed to the New South Wales Court of Criminal Appeal in order to resile from a plea bargain in circumstances where he had made no equivalent application in the lower court. Although Mr Moses submitted that the circumstances of the case have no parallels in the instant case, the observations of Kirby P (as he then was) are persuasive. His Honour observed at 320: The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22-24; Barton (1980) 147 CLR 75 at 104; Lamb v Morris (1983) 76 FLR 296 at 307-308; Bacon v Rose (1972) 2 NSWLR 793 at 797; Caine v Glass (No. 2) (1985) 3 NSWLR 230 at 235.

More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellant procedures following conviction at sentence and the possibility that many problems disappear, or are resolved, at first instance, if only cases are allowed to take their ordinary course provide further reasons to restrain an overenthusiastic response to interlocutory claims for judicial review of criminal proceedings. And at 321:

This is not such an exceptional case as to justify declaration which pre-empts the decision of the Judge at the District Court. The application for relief in this respect should be refused. 11 In DeMarchi v R [1983] 1 VR 619, although the Full Court of the Supreme Court of Victoria (McInerney, Murray, Marks JJ) were persuaded to hear a conviction appeal prior to sentencing, McInerney J at 622 observed: ... It is obviously more convenient to hear an application for leave to appeal against conviction in conjunction with an application for leave to appeal against sentence, if an appeal against sentence is instituted. In such a case, in the course of hearing the application for leave to appeal against conviction, the Court is ordinarily apprised of all or most of the facts which bear on the question of sentence. It can seldom be convenient to have the time of the Court wasted by having to go through the evidentiary material twice over, or to have an application for leave to appeal against sentence dealt with by a court other than that which dealt with the application for leave to appeal against conviction ...

Ordinarily, therefore, all considerations of convenience point to the Court entertaining an application for leave to appeal against conviction only after sentence has been passed. But there may be exceptional cases where an applicant who challenges the sufficiency of the evidence to warrant a conviction is held in custody pending sentence for a substantial time and entertains a feeling of injustice at being so held when he contends and desires to contend to this Court that the conviction was wrong in law in that there was no case to go to the jury or that the case should have been withdrawn from the jury. 12 His Honour was ultimately persuaded by the factors of the applicant's custody, the small compass of the issues involved and the unusually long delay between conviction and sentence that the interests of justice required the Court to hear the conviction appeal. 13 Similarly, Murray J observed at 623: It is, of course, most unusual for an application to be made to the Court for leave to appeal against conviction before the Applicant has been sentenced. For my part, I consider it highly undesirable that any practice should be allowed to arise whereby separate applications are made to different sittings of the Court for leave to appeal against conviction and leave to appeal against sentence ... [i]n my opinion, it must be shown that the interests of justice require that the application be heard before the Court should be prepared to hear such an application. Similar observations were made by Marks J. 14 We are also of a similar mind to that of the Full Court in DeMarchi that as a matter of practice this Court ought not entertain an application for leave to appeal against conviction before sentence unless the interests of justice dictate that it should. We think, however, that it is undesirable to lay down specific criteria which may constitute a binding rule. There may be cases, and Rail Infrastructure Corporation v Inspector Page is one, where the Court will be persuaded that it should deal with an application for leave to appeal a conviction before sentence has been determined. Such cases, it seems to us, would require some special features such as Mason CJ observed in Yates. The position is a fortiori when there is an appeal, as in this case, from a decision of the Chief Industrial Magistrate which can only be heard by a Full Bench of this Court. In those circumstances, the considerations discussed in Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 would come into play. 15 In this matter, the GEO Group has not suggested any features which would indicate the desirability of fragmenting the first instance proceedings. Accordingly, we propose to grant the motion in this instance. Orders

(1) The application for leave to appeal and appeal in Matter No IRC 267 of 2008 is stayed pending sentencing by the Chief Industrial Magistrate in the matter of WorkCover Authority of New South Wales (Inspector Ian Hannah) v The GEO Group Australia Pty Limited (t/as Junee Correctional Centre), Case No. 20173945/06/2.

(2) The GEO Group shall pay the applicant's costs of the motion as agreed or, failing agreement, as assessed.

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