Inspector Dall v Caines

Judgment 1Inspector Dall has commenced proceedings pursuant to the provisions of s 136(1)(b) of the Occupational Health and Safety Act 2000 ("the Act"). The proceedings concern events that took place during the course of 3 April 2010 at or around the corner of Park Avenue and Little Street, Coffs Harbour. At this worksite it was charged that the defendant, Andrew James Caines t/as Coral Coatings Contract Painters ("Coral Coatings") intimidated or threatened or attempted to intimidate an authorised official in the exercise of that official's functions under the Act. 2The particulars of the charge were: (1) The authorised official referred to in this charge and these particulars is Inspector Jeffrey Bell, being an Inspector duly appointed under Div 1 of Pt 5 of the Act who was an authorised official within the meaning of s 136(2) of the Act. (2) The function that the official was performing under the Act was the function invested in him by Pt 5 (Investigations) of the Act and in particular, s 50 and s 59 of the Act. (3) The defendant intimidated or threatened or attempted to intimidate Inspector Bell by standing in front of the defendant's vehicle and sticking his second index finger up at the Inspector. (4) The defendant told the Inspector words to the following effect: What the fuck do you think you are doing? Come on over and I will sort you out, hey soft cock, come over here, hey soft cock, fuck off you peanut-head. 3Mr Caines entered a plea of not guilty to this charge. When the matter was called for hearing, Mr Caines appeared in person. During the course of the hearing he stated that he was a bankrupt and that he was unable to afford legal advice or representation for the purposes of this hearing. 4Inspector Bell gave evidence and stated that he was an Inspector appointed under Div 1, Pt 5 of the Act and performed his duties as a WorkCover Inspector in the Coffs Harbour region. Inspector Bell produced a copy of his WorkCover Inspector's badge and a copy of his WorkCover Authority outlining his entry authorisations under the Act. 5On 3 April 2010, Easter Saturday, Inspector Bell was shopping in Coffs Harbour with members of his family. He had parked near the corner of Park Avenue and Little Street, Coffs Harbour and on leaving his vehicle he saw a person performing painting work on a bull-nose awning approximately 3.5 metres above the ground but working without a fall restraint device. The Inspector was able to later identify the person as Mr Jason Drews. Inspector Bell was also able to identify a person moving a mobile aluminium scaffold in front of Mr Drews but the scaffolding was not close enough to provide adequate fall protection from the bull-nose awning nor was it properly secured or tied. The worker on this scaffold later became known to Inspector Bell as Mr Daniel Clifford. 6Although the Inspector was not on duty at the time he said he could not ignore the risks to safety evident from the work being performed by Mr Drews and Mr Clifford. The Inspector stated that he approached these two workers, indicated that he was a WorkCover Inspector and then gave them advice as to moving the scaffolding to a position where it would provide fall protection for the worker on the awning as he felt there was a risk of falling from that awning. The worker on the scaffodling, Mr Clifford, stated that he would obtain a harness for Mr Drews to use while he was working on the awning. The Inspector informed the two men that Mr Drews could not be left on the bull-nose awning without fall protection. As the Inspector left the area, he saw a person who was later identified to him as the defendant, Mr Caines, walking towards Mr Clifford and Mr Drews. The Inspector saw Mr Caines staring at him but he did not know him. The Inspector said, "G'day" to Mr Caines as he walked by but there was no reply. 7Inspector Bell returned to this worksite approximately 30 minutes later and noticed that Mr Drews was still working on the bull-nose awning without using a harness and that the scaffolding was still out of place and not providing fall protection for Mr Drews. The Inspector proceeded to his car and obtained his WorkCover Inspector's badge and WorkCover identification card and entry conditions and a camera and then returned to the worksite where he took a photograph of Mr Drews working on the bull-nose awning. The Inspector attempted to take a photograph of the work vehicle parked in front of the bull-nose awning in order to later identify the owner and the person who might be responsible for the scaffolding. The vehicle was a work utility with words painted on the side, together with what appeared to be contact telephone numbers. From photographs tendered in evidence that utility appeared to have written on the rear driver's side a work name and contact details. The Inspector had proposed speaking to the person who owned that vehicle after he had established the identity of the owner. While in the course of taking the photograph he heard scuffling behind him and turned around and saw Mr Caines with his index finger raised in the air. The Inspector was able to take a photograph of Mr Caines in that pose. He then heard Mr Caines say words to the effect: What the fuck do you think you're doing? Come over here soft cock and I'll sort you out 8Inspector Bell said it was his normal practice to take photographs of an unsafe work situation and then speak to the work supervisor and provide advice about safety precautions to address risks he had observed. On this occasion he looked at Mr Caines "standing there" and noticed there were two people standing behind him. The Inspector said that he felt intimidated. He thought the situation could escalate and as he regarded his own safety as a first priority, he decided to remove himself from the situation; he also began to think of other ways to deal with Mr Caines. There were no other WorkCover Inspectors in town at the time and he thought that the police, who were only a few minutes away, could come to the site but they may not be in the station or able to come until after the work was finished. 9On the following Easter Monday holiday, Inspector Bell telephoned Mr Caines and asked about the job being undertaken in Little Street, Coffs Harbour. Mr Caines stated that he was performing that work and said that "some crazy person" had been there the previous Saturday but stated that he had done nothing wrong. The Inspector identified himself as the so-called crazy person who had been at the site on the previous Easter Saturday. 10When Inspector Bell first attended at the worksite none of the workers had asked for his Inspector's badge or Inspector's ID: if they had, he would have produced that identification. On the first occasion he approached the workers the Inspector said he was doing no more than providing advice to the workers but on the second occasion, because no action had been taken to address the risk, he was prepared to take more official action. On this occasion he heard Mr Drews say words to the effect: "He's back" while Mr Drews was looking at the Inspector. 11In cross-examination by Mr Caines, Inspector Bell accepted that he did not show his badge but stated that he had not been asked to do so. Mr Caines put it to the Inspector that he had called out for the Inspector to come over and that "we will sort it out." The Inspector denied that version and confirmed that the words spoken were: "I will sort you out." He felt intimidated with three men staring at him and Mr Caines with his finger in the air and swearing at him. 12Mr Daniel Clifford was still apprenticed to Mr Caines when he gave evidence. He said he was present at the painting of the bull-nose awning on Easter Saturday, 2010 when Inspector Bell spoke to him in the middle of the day. Mr Jason Drews was also present but no one else was present at that time. Inspector Bell had told Mr Drews to get off the awning because it was unsafe but he could not recall what was said thereafter. He said the Inspector left and then returned but he did not see him when he returned. Nevertheless, when the Inspector returned, Mr Drews and Mr Caines were present as was Mr Clifford. He did not hear anything said at that time nor did he hear words to the effect: "He's back." He did hear Mr Caines say: "Come over here - what are you doing?' He said Mr Caines was " pretty arced up" because the Inspector would not come over and that Mr Caines swore but he could not recall what was said although he later accepted that the word "fuck" was used. Mr Clifford did not see Mr Caines do anything by way of gestures. In cross-examination by Mr Caines, Mr Clifford said he could not recall how Mr Caines was informed about Inspector Bell being present earlier at the site but Inspector Bell was taking photographs and Mr Caines became a "bit confused" about why the Inspector was taking that action. 13Counsel for the prosecutor then put before the Court a number of documents to demonstrate the numerous attempts made to contact Mr Drews and to have him appear as a witness in the proceedings. Solicitors acting for the prosecutor had written to Mr Caines more than two weeks before the hearing giving notice under s 67 of the Evidence Act 1985 for the purposes of s 65 of the Evidence Act (concerning previous representations made by a person unavailable to give evidence of the asserted facts). That notice was accompanied by a transcription of a record of interview with Mr Jason Drews taken by Inspector Bell in July 2010. Having regard to the terms of the notice and the provisions of s 65 and s 67 of the Evidence Act , the Court admitted into evidence the transcription of the record of interview with Mr Drews. That record of interview had been signed by Mr Drews and had been typed by Inspector Bell during the course of the interview with Mr Drews' responses noted and accepted as accurate by Mr Drews' signature and acknowledgement. 14During the course of the interview Mr Drews was shown a photograph that he accepted showed Mr Drews working on the bull-nose awning on 3 April 2010. Mr Drews identified Mr Gavin Buttle as the person working on the scaffolding at the same time. He recalled that Inspector Bell had a conversation with him and Mr Buttle in which he told Mr Drews to get down or he would fine them $1,000. They had asked who he was and Inspector Bell said he was from WorkCover. They later told Mr Caines about that conversation, telling him that "a bloke" was there who said he was from WorkCover and that if Mr Drews did not get down he would fine them $1,000. 15Mr Caines gave sworn evidence about this incident. He said that his workers had told him on the day that a person from WorkCover had visited the site but had not shown any identification. Later, Inspector Bell was seen taking photographs from across the road and Mr Caines twice asked him to come over and they would sort it out but Inspector Bell did not respond. Mr Caines said he then stuck his finger up, told Inspector Bell to fuck off and to leave him alone. Inspector Bell later telephoned him and Mr Caines offered to try to resolve the matter by asking the Inspector to come to his place to sort it all out. Nothing was achieved in that telephone call so he told the Inspector to fuck off. The detail of the exchange with Inspector Bell at the worksite is considered further under the heading "Deliberation."