Inspector Dall v Caines

DELIBERATION 16Section 136 of the Act, in its entirety, is in the following terms: 136 Offence of obstructing or intimidating inspectors and others exercising functions under Act (1) A person must not: (a) obstruct, hinder or impede any authorised official in the exercise of the official's functions under this Act, or (b) intimidate or threaten or attempt to intimidate any authorised official in the exercise of the official's functions under this Act. Maximum penalty: (a) in the case of a corporation (being a previous offender)-750 penalty units, or (b) in the case of a corporation (not being a previous offender)-500 penalty units, or (c) in the case of an individual (being a previous offender)-225 penalty units, or (d) in the case of an individual (not being a previous offender)-150 penalty units. (2) In this section: "authorised official" means an inspector, an authorised representative (within the meaning of Division 3 of Part 5), a member of an OHS committee, an OHS representative or other person authorised to exercise functions under this Act or the regulations. 17In addresses, some legal questions were raised with counsel for the prosecutor. Mr Caines was not legally represented and of course, therefore, did not participate in relation to the discussion about these issues. In those circumstances the Court intends to apply established authority where appropriate. 18Counsel for the Inspector submitted that the defendant had not raised any defence of honest and reasonable belief that the conduct in question was not criminal. It would be unreasonable, however, to take a strict view of what was put by Mr Caines in circumstances where he was appearing for himself without legal advice or representation. The Court is prepared to treat Mr Caines' submission, in the context of a plea of not guilty, as raising the issue that all he wanted to do was to speak with the Inspector, have the Inspector identify himself so that they could then talk about the issue and resolve any safety concerns held by the Inspector. Approached this way, Mr Caines was saying that what he had done was a reasonable approach and therefore he could not be guilty of a breach of s 136(1)(b). It is not possible in this case, however, nor should the Court be placed in the position of having to construct a reasonable and honest belief defence for Mr Caines. There are a variety of ways in which such a defence might be constructed and a live issue inevitably would be whether Mr Caines' conduct was reasonable in all the circumstances 19The next issue concerns the nature of s 136 and in particular sub-section (1)(b). Counsel for the prosecutor submitted that the offence created by the section was, "at least", within the second category, referred to in the judgment of R v Wampfler ("Wampfler") (1987) 11 NSWLR 541 at 546 applying the approach in He Kaw Teh v The Queen (1985) 157 CLR 523, namely, an offence where mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of an honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt. It was also submitted to be arguable that the s 136(1)(b) offence fell within the third category identified in Wampfler , namely, it was an offence in which means rea played no part and where guilt was established by proof of the objective ingredients of the offence. The submission continued that this offence was not in the first category where there was an original obligation on the prosecution to prove mens rea. 20In Michael Dalzell v Andrew James Ferguson [2009] NSWIRComm 81, a Full Court of the Industrial Court proceeded on the basis that a breach of s 136(1)(a), concerning the obstruction, hindrance and impeding of an authorised officer, was a strict liability offence in the second category referred to in Wampfler . In that case, no party suggested that the offence fell within the first or third categories of offences identified in Wampfler . The Full Court considered the section in its own terms in relation to both sub-sections 1(a) and (b) and also in the context of the overall operation of the Act, including its aims and objectives. In the circumstances of this case it seems appropriate that I should follow the approach and conclusion of the Full Court in Dalzell whereby mens rea will be presumed unless and until material evidence is advanced by the defence of the existence of an honest and reasonable belief that the conduct in question was not criminal in which case the prosecution must then undertake the burden of negativing such belief beyond reasonable doubt. 21A further issue raised with counsel for the prosecutor was whether s 136(1)(b) created one offence or more than one offence with a possibility of three separate offences being created. The Court accepts, however, that s 136(1)(b) creates one offence of intimidation that may be particularised as intimidation, threatened intimidation or lastly, attempted intimidation of an authorised official. That construction appears to be consistent with the approach and analysis in Regina v Naismith (1961) WLR 952. 22Having formed these views it is then appropriate to consider the evidence. The Inspector's evidence was given in a straightforward manner and did not appear to be exaggerated or over-emphasise any particular elements of Mr Caines' alleged conduct. The photograph showing Mr Caines, with his arm and finger raised in an offensive gesture to the Inspector, suggests an angry and intimidatory frame of mind. 23Mr Caines' version of the events and in particular what was said in this fairly brief encounter with the Inspector was, initially, somewhat different to that of the Inspector and as particularised but during the course of cross-examination, step-by-step, it became very much closer to the version given by the Inspector in his evidence and as particularised. There was some difference between the Inspector's evidence and the alleged words particularised in the statement of offence: viewing all of the evidence, however, there was little difference between the various accounts at the conclusion of the proceedings. The gist of Mr Caines' evidence was that his employees had told him that a person from WorkCover had attended the premises, told them to get down from the bull-nose awning unless fall protection was provided or they could be fined $1,000. In answer to his query his workers informed him that the person who made that statement did not produce any identification. 24Mr Caines then spotted the Inspector taking photographs from across the road: he said that he then merely invited the Inspector to cross the road and talk about the issue and sort it out but after offering this invitation twice and receiving no response, he admitted to becoming somewhat agitated and shouted at the Inspector but not necessarily using the words, "soft cock" although admitting that a person who did not accept such an invitation would be regarded as "soft." Mr Caines suggested that he had merely said to the Inspector, "What the hell are you doing?" then, "Mate, what are you doing" and then screaming, "What the fuck are you doing? Why are you taking photos of me?" and then because the Inspector had not responded to any of these invitations he simply stuck his finger up at him and told him to fuck off and get lost saying, "Fucking peanut-head, fuck off out of here, leave me alone." 25In cross-examination he accepted that, after his first two or three invitations to cross the road to speak about the issue had not been responded to by the Inspector, he may have challenged the Inspector and it was "fair enough" to describe what he had done as challenging the Inspector to cross the road to discuss what he was doing. Indeed, he had used that description when writing to WorkCover after the incident. After accepting that he challenged the Inspector it was put to Mr Caines that he had, "arced up" to which he agreed. He said that he had seen somebody taking photographs of him in public and he did not like it and that had caused him to "arc up." The online Urban Dictionary defines "arc up" as meaning "get angry; display irritation (possibly from the sometimes violent way a spark (aka electrical arc) can jump between two electrodes").The Court would understand that in everyday, informal speech, the term "arced up" would be used to convey that meaning. 26Mr Caines admitted that he did not seek any identification from the Inspector but if the Inspector had responded to his invitation and crossed the road to where Mr Caines was standing, he would have asked for that identification if the Inspector said he was from WorkCover. Mr Caines denied he immediately became aggressive on seeing the Inspector taking the photographs. He had become aggressive after the Inspector refused to cross the road to talk about the issue as he had been asked to and then said, "I give it to him." He denied ever saying to the Inspector, "What the fuck do you think you're doing? Come over and I will sort you out", asserting that he used the words "sort it out" meaning the issues between them. Mr Caines further said that he felt intimated by the Inspector's conduct. 27Mr Clifford's evidence did not greatly advance an understanding about what had occurred on this day. Mr Clifford was in the unenviable situation of still being apprenticed to Mr Caines yet being called by the prosecutor to give evidence against his employer. He seemed uncomfortable and ill at ease during the course of giving his evidence but had little recollection of what had occurred on the day. He did remember that, on that day, they were painting an awning and someone that he now knew to be an Inspector had come along and had spoken to them. That probably happened in the middle of the day and Mr Jason Drews was there when that occurred. The Inspector said to get off the scaffolding or he would be back and said that the scaffolding was unsafe - Mr Drews was told to get off the bull-nose awning but he did not recall whether the Inspector said it was dangerous. 28The Inspector returned approximately 90 minutes later and Mr Clifford said he did not see him. He did not hear anybody say anything when the Inspector returned nor did he hear Mr Drews say anything. He did not hear anybody say words to the effect: "He's here." He did hear Mr Caines say, "Come over here, what are you doing?" and "those sorts of things" and described Mr Caines as getting, "pretty arced up" when the Inspector would not cross the road. Mr Caines swore but Mr Clifford could not remember the words he used. When pressed Mr Clifford said that he believed Mr Caines used the word "fuck" but he did not see Mr Caines using any gestures in the direction of the Inspector. In cross-examination, Mr Clifford said that Mr Caines had asked Inspector Bell to cross the road and that Mr Caines was "a bit confused" why the Inspector was taking photographs. 29In his record of interview Mr Drews stated that the Inspector had told them to get down from the bull-nose awning or they would be fined $1,000. He and Mr Clifford had asked who he was and the Inspector said he was from WorkCover. Mr Drews said that he and Mr Clifford told Mr Caines about that conversation and that a fellow had been to the worksite and said he was from WorkCover and if they did not get down from the scaffold he would fine them $1,000. 30Having regard to the totality of the evidence the Court accepts that the words particularised or to similar effect were spoken by Mr Caines on the day, together with the aggressive gestures that accompanied them. The effect of the evidence of Mr Clifford and Mr Caines himself was that he had become angry, was shouting and swearing at Inspector Bell and wanted him to cross the road. No explanation was ever given why Mr Caines did not go across to Inspector Bell if all he wanted was simply to talk to him, see his identification and try to sort out the problem about working on the bull-nose awning. Any desire to sort out a safety problem, as asserted by Mr Caines, must rest firmly on an acceptance that Inspector Bell was, or was likely to be, a WorkCover Inspector. Indeed, his workers had informed Mr Caines that the person who told them to get off the bull-nose awning said he was from WorkCover. In terms, Mr Caines did not argue or suggest that he had no reason to believe that Mr Bell was a WorkCover Inspector: such suggestion is, in any event, untenable given the information passed to him by his employees. The taking of photographs by Inspector Bell was consistent with his asserted status. 31In relation to how this description of Mr Caines' conduct (including verbal, abuse, physical stance and gestures), amounted to a breach of s 136(1)(b), the prosecutor drew attention to the decision of Simpson J in Meller v Low (2000) 48 NSWLR 517. In that case her Honour was dealing with a provision under the Crimes Act 1900 providing that a person who assaults, stalks, harasses or intimidates a police officer while in the execution of the officer's duty, although no actual bodily harm was occasioned to the officer, was liable to penal servitude for five years. Her Honour held that a conviction for an offence of that section required proof that a police officer, acting in the execution of his duty, was put in fear or apprehension, was forced into or deterred from some action by being put in fear or was overawed or cowed. 32Although Inspector Bell was off duty at the time of the incident he had authority under Pt 5 of the Act to investigate a risk to safety that he had observed and to give directions concerning what steps should be taken to avoid the risk. Under s 50 of the Act he had authority to enter any premises he had reason to believe was a place of work and under s 59 had a wide variety of powers available on entry to such a worksite. Under s 63 he had powers to require a person who he reasonably suspected had committed an offence under the Act or the regulation, to state the person's full name and residential address and to require reasonable proof of the person's identity. Under s 66, a person was not, without reasonable excuse, to refuse or fail to comply with a requirement made or to answer a question asked from an Inspector in accordance with the provisions of Div 3, Pt 5 of the Act. 33On this occasion the Inspector was initially giving advice to the workers concerning the risks of working at height without fall restraint gear and had pointed out the inadequacy of the method of scaffolding being used. They were told to get down from the bull-nose and the scaffolding until these issues were addressed. When he returned and those issues had not been addressed he obtained his WorkCover badge and identification card containing his powers of entry together with his camera with a view to taking more official action. He had power to issue notices under the Act, including prohibition notices and indeed, on another day, did issue a penalty notice and an improvement notice in relation to this worksite. When Inspector Bell was confronted by an angry Mr Caines who was shouting abuse at him, gesturing rudely and in anger challenging the Inspector to cross the road, the Inspector noticed two men standing behind Mr Caines and a photograph in evidence supports his testimony. 34The Inspector thought that the situation had reached a point where his personal welfare and safety were at risk and instead of performing his duties (including conducting inspections, taking any statements and giving directions as to the manner in which the work should be performed) he withdrew to his vehicle and left the site. The Court accepts that the anger and abusive behaviour of Mr Caines was such as to leave the Inspector to reasonably fear for his safety and to have a reasonable apprehension as to his safety if he continued to pursue his duties. He was thereby forced into leaving and deterred from taking those actions he was authorised to take as an appointed WorkCover Inspector in relation to safety on the site. The action and language adopted by Mr Caines was not benign, as he asserted. At the very least, the actions taken by Mr Caines were an attempt to intimidate the Inspector in the exercise of his functions under the Act and at its highest, it did amount to actual intimidation. Having reached those conclusions, Mr Caines is found guilty of a breach of s 136(1)(b) of the Act as particularised in the Application for Order. 35It might be mentioned at this point that Mr Caines' submissions presume that Inspector Bell was required to wear a uniform that identified him as a WorkCover Inspector and that the Inspector was required to produce proof of his status before he was able to exercise any of his powers. I accept the submission of counsel for the prosecutor that the provisions of the Act do not work in that manner. It was pointed out that s 52(1) of the Act, dealing with the exercise of the Inspector's powers of entry, provided that those powers were not to be exercised unless the Inspector was in possession of the identification card issued to him and produces that card "if required to do so by the occupier of the premises." The evidence establishes that at no stage did either of the two men working on or around the bull-nose awning, nor later in the day, Mr Caines, ever ask the Inspector to produce his identification card. The unchallenged evidence was that the Inspector had his badge and entry identification with him. Nothing in the Act requires him to wear a uniform and identify himself as a WorkCover Inspector before he performs any function. Quite apart from these matters, that are important in depriving Mr Caines' submissions of any force on this aspect, it is clear that Mr Caines' conduct, as described above, was fuelled by anger and aggression and had nothing to do with seeking a rational conversation with the Inspector so that Mr Caines and the Inspector could solve the safety problems. 36During the preparation of this judgment the Court came to consider the formalities of the charge. The Application for Order alleged that Andrew James Caines "t/as Coral Coatings Contract Painters, Coffs Harbour" ("Coral Coatings") contravened s 136(1)(b) at the worksite at the corner of Park Avenue and Little Street, Coffs Harbour. 37Section 136 creates an offence when "a person" undertakes the prohibited conducted specified by the section. The "person" does not have to be an employer. There was some but not a great deal of evidence that Mr Caines was an employer but no evidence that he traded as Coral Coatings. The lack of evidence of that matter ultimately means little because it is not a requirement of the offence that he be an employer or that he undertake any specified type of work. This variance between the charge and the evidence is able to be overcome by operation of s 16 (in particular sub-section 1(b)) of the Criminal Procedure Act 1986. The evidence demonstrates that Mr Caines employed Mr Clifford at the time of giving evidence with an inference that the employment was in existence as at the date of the alleged offence. In his evidence Mr Caines spoke of two of his employees at this site informing him of the activities of the Inspector. He also responded, without demur, to the questions about his employees at the site on the day in question. In his record of interview, Mr Drews initially described himself as employed by Coral Coatings on the day in question then referred to himself as a contractor. He said nothing in detail about his business relationships with Mr Caines nor did he refer to Mr Caines as trading as Coral Coatings. 38As already indicated, the failure to prove that Mr Caines traded as Coral Coatings should have no consequences for the prosecution. To the extent that it may be thought necessary, the evidence established that Mr Caines was at and connected with the worksite with some of his employees when he conducted himself in the way particularised in the charge. He had sufficient connection with the site to render his actions in breach of s 136(1)(b) when he conducted himself in the manner found above and did so by directing that conduct at Inspector Bell. 39It is appropriate that sentencing in this matter be at least listed at the same time as the s 8(2) offence alleged against Mr Caines, a matter that has stood adjourned to await finalisation of these matters and in which a plea of guilty has been entered. The legal representatives of the parties should contact my Associate regarding suitable dates for the sentencing hearing in these matters. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2011