Inspector Fiona Stewart v Siemens Dematic Pty Ltd [2001] NSWIRComm 285 | Case summary

Inspector Fiona Stewart v Siemens Dematic Pty Ltd [2001] NSWIRComm 285 | Case summary | Zoe

[9]

1 By order dated 24 January 2001 a judicial member of the Industrial Relations Commission of New South Wales in Court Session ordered the defendant to appear before a Judge of the Commission to answer the offence alleged by the prosecutor set out in the application for order filed in the Industrial Registry on 12 January 2001. That application alleged a breach of s 16(1) of the Occupational Health and Safety Act 1983 in that on 14 January 1999, at its factory premises at 24 Narabang Way, Belrose in the State of New South Wales, the defendant, being an employer, failed to ensure that persons not in its employment, and in particular, Shalishkumar Patel, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. The particulars of the charge were specified as follows: (a) the defendant was at all material times an employer and employed persons. (b) the defendant was at all material times in possession and control of its factory premises at 24 Narabang Way, Belrose in the State of New South Wales. (c) the defendant contracted BMP Electrical Pty Ltd [ACN 000569 620) to carry out electrical work at the said premises; (d) BMP Electrical Pty Ltd at all material times was an employer and employed Shalishkumar Patel; (e) the defendant failed to ensure that a place of work under its control, to wit, the main factory electrical switchboard room at the premises, was maintained in a condition that was safe and without risks to health and in particular: (i) failed to ensure that water did not leak on to the main electrical switchboard situated in the said room from overhead air conditioning pipes; (ii) failed to ensure that the floor space around the main switchboard was clear of stored material. (f) the defendant failed to maintain means of access to and egress from the said switchboard room that was safe and without risks to health; (g) as a result of the said failures, Shalishkumar Patel sustained fatal injuries.

[10]

2 On the Thursday before the five day hearing which was to commence on the following Tuesday after the intervention of a long weekend, the defendant filed and served a notice of motion. The motion sought that the summons be dismissed or, alternatively, that the proceedings be stayed permanently. The notice of motion specified the following grounds and reasons: 1. On 24 January 2001, Her Honour Justice Kavanagh pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 ordered the Defendant to appear to answer the offence alleged set out in the Application for Order filed on 12 January 2001. 2. The offence alleged was that Mannesmann Dematic Colby Pty Limited had 'failed to ensure that people not in its employment … were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work'. 3. Particulars of that charge included: (e) that Mannesmann Dematic Colby Pty Limited failed to ensure that a switchboard room under its control was maintained in a condition that was safe and without risks to health, and in particular: (i) failed to ensure that water did not leak onto the switchboard from overhead air conditioning pipes; and (ii) failure to ensure that the floor space around the main switchboard was clear of stored material; and (f) that Mannesman Dematic Colby Pty Limited failed to maintain a means of access to and egress from the said switchboard that was safe … (g) as a result of the said failures, Shalishkumar Patel sustained fatal injuries. 4. The omissions of the Defendant that constitute the offence as pleaded are: (i) failure to ensure that water did not leak, (ii) failure to ensure the floor was clear of stored material and (iii) failure to maintain safe means of access to and egress from the said switchboard each of which is said to have resulted in the death of Shalishkumar Patel. 5. The allegation of three offences in the same Summons is bad for duplicity. As the Prosecutor has declined to elect upon which of the charges she seeks to proceed, the Summons should be dismissed. 6. The Prosecutor on 18 September 2001 has purported to expand the charge by the addition of four sets of factual matters not referred to in the Application for Order or the Affidavit in Support, and has asserted her intention to adduce evidence in support of those additional matters. 7. No order had been made in respect of those additional matters. For the Prosecutor to proceed upon them amounts to an abuse of process.

[53]

42 In relation to the challenge based upon duplicity, the defendant noted that the allegation under s 16(1) of the Act alleged certain acts or omissions on 14 January 1999, but it would be demonstrated from other material that the date moved around quite considerably. The defendant saw the particulars as alleging three separate matters: that water leaked on to the switchboard; that the floor space was not clear; and, that the defendant failed to maintain means of access. 43 It was said to be appropriate to recognise that in a broad general sense these matters arose at the same time and at the same place but only in a broad sense. The first particular about the water dripping was now said to come from air conditioning pipes and that is a part of the switchboard and in the switchboard room associated with the top section of the switchboard. The particulars then moved from the overhead section to the floor of the switchroom, which was not clear of stored material. This is said to have impeded the exit of Mr Patel or perhaps required him to pass by an area of danger in order to get out. Thirdly, the particulars asserted that the defendant failed to maintain means of access that were safe. That is said to flow from the fact that an outside door was locked, and from other documents supplied to the defendant, it became clear that it was locked from the outside. It was also said a piece of rope secured the door in a closed position - that rope itself being on the inside of the door. The defendant submitted that these were three different propositions, but accepted that it may be said by the prosecution that they all arose out of the one set of circumstances, seeking to invoke s 49A of the 1983 Act or, alternatively, s 31 of the new Act. This required consideration of the fact that the new Act repealed the 1983 Act with certain savings. The defendant submitted that the savings provisions, found in Sch 3 of the new Act, which came into operation on 1 September 2001, resulted in the savings provisions being limited to Pt 7 of the new Act. That did not include s 31.

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56 The report also raised a wholly new idea, namely, the possibility that a screwdriver could have dropped, might be excluded by the presence of "interphase barriers". That was a wholly new idea which had to be considered, firstly, as to whether they were present in the switchboard and whether they could act in such a way as to exclude the possibility of a dropped screwdriver causing the electrical explosion. The report proceeded on the basis that there was some sparking or arcing occurring in the switchboard which Mr Patel had attempted to move away from very quickly. Up until this material had been received, the defendant was proceeding on the basis that the switchboard exploded in consequence of which Mr Patel suffered fatal injuries. A statement was repeated that water was coming from a joint above the switchboard. This appeared to be an expert making a case based upon water leaking from toilet pipe joints, which was entirely new and carried with it potential argument about pollution, that is, the water not being pure and therefore being a conductor. A further idea was then canvassed as to the advisability of having turned the power off before this work was started. This seemed to be a notion since picked up in more recent correspondence by the prosecutor. A notion was also introduced of an insulated electrician's screwdriver, a proposition, the defendant said, which had not emerged until that time. The report then dealt with extensive technical matters. There were pages of such material requiring the defendant to scrutinise it in order to see what use was being made of the material. There was also introduced discussion about insulation in a way that had not been canvassed previously. A further suggestion was that the circuit breaker settings should have been changed so as to cut in more effectively and more quickly. This appeared to have been an idea picked up in a later particularisation served by the prosecution in its letter of 18 September 2001. In short, it was said that there were new ideas raised, all at variance with everything understood about the facts by the defendant, and conveyed to the defendant during the considerable period of time it had been otherwise being preparing the case on an understood and established basis.

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68 The defendant's argument proceeds on the basis that Inspector Stewart had no knowledge of the investigation, or otherwise was so removed from the process of evaluation of material relevant to whether or not a prosecution should be launched as to make it impossible for her to properly swear a verifying affidavit in accordance with the provisions of the Rules. On a consideration of all of the evidence, I am not convinced that the defendant's contention in this regard is correct. The position might be different if there was no more to consider than Inspector Stewart's sworn evidence. Her evidence was that she understood Inspector May had conducted an investigation into this incident, but she could not recall whether Inspector May asked her to fulfil the role involved in initiating the proceedings in the Commission, nor did she have any specific recollection of signing the documents which were filed in the Commission's registry but which she was able to identify as carrying her signature. She could not recall when she was asked to see the solicitor from WorkCover, Ms Reid, nor did she have any recollection of being involved in the case. She could not recall being involved in a conference with Ms Reid and she was unsure of what documents were shown to her by Ms Reid when she attended the legal branch offices of WorkCover. She could not recall the exact conversation she had with Ms Reid nor did she have a recollection of actually reading through the documents provided to her by Ms Reid. She was not sure if she simply signed the documents. She did understand the documents prepared by Ms Reid to accurately set out the outcome of the investigations of the accident by Inspector May and that they were to form the allegations made on behalf of the WorkCover Authority as a result of that investigation. Inspector Stewart knew of the case and that Inspector May was working on the case, and that the statutory time limit was coming up soon because of working with Inspector May and having a general interest in the work carried out by Inspector May as a colleague.

[83]

74 Although concerned with the previous stipulations of r 219, consideration needs to be given to the judgment of the Full Court in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156. In that matter, the defendant sought orders setting aside or dismissing the summons or, in the alternative, a permanent stay of the proceedings on the grounds that the accompanying affidavit did not verify the application as was required by r 219 in that it did not verify that the alleged offence arose as a result of the appellant's undertaking, that it did not verify in what respects an undertaking was conducted by the appellant, and it did not verify that the alleged offence occurred at the appellant's place of work. Thus it was said that the affidavit failed to verify properly the allegations in the application and the consequent summons was bad. At first instance it was held that, although involving a criminal prosecution, the provisions of the Industrial Relations Act may well allow the Court to give orders in proceedings for further clarifying steps to be taken by a prosecutor and this may even involve curing defects through the application of s 6 of the Supreme Court (Summary Jurisdiction) Act 1967. On appeal, the Full Court stated that s 4(1) of the Summary Jurisdiction Act, when read with r 219(1) of the Commission's Rules required the proceedings to be commenced by the filing in the registry of an application for summons stating the various matters set out in the rule. On the proper construction of those provisions it was held that the proceedings were properly and validly commenced when, without more, the application is filed in the registry. It was noted that this construction was supported by the judgment in the Court of Criminal Appeal in McGerty v Dairy Farmers Co-Operative Limited (1989) 43 A Crim. A 308. (see par 28 - 32 inclusive). The necessary step to commence the proceedings was the filing of an application for an order and the issuing of a summons. If there was any irregularity, such as with the verifying affidavit, that could be considered as an irregularity and should not invalidate proceedings which have been duly commenced within time. On the approach of the Full court in Ridge, if there was an invalidity or irregularity in the verifying affidavit of Inspector Stewart, that was a matter, if necessary, which could be cured by the application of s 6 of the Supreme Court (Summary Jurisdiction) Act with s 170 of the Industrial Relations Act. It should, however, be noted that the rule being considered by the Full Court in Ridge was somewhat more stringent than the provisions of r 217B which applies to the present case. I accept the prosecutor's submission that it would be an odd and unintended result for the provisions of r 217B to be treated in such a way as to lead to the result that this summons be regarded as a nullity or that the proceedings be otherwise stayed because of some irregularity found in the verifying affidavit. It may therefore be of little moment whether or not the evidence supports the conclusion that I have reached as to the state of Inspector Stewart's knowledge and capacity to swear a verifying affidavit because, if there was any such irregularity in that verifying affidavit consistent with the judgment of the Full Court in Ridge, it is a matter that could be rectified.

[90]

81 There is no novelty in provision being made for a number of offences to be dealt with in the one information or summons. In Newbury v Smith (1991) 36 IR 314, Gray J referred to the rules of the Federal Court dealing with prosecutions noting they were to be commenced by summons upon information and were to contain specified matters. His Honour then repeated an observation he had made in Steele v Mayne Nickless Ltd (1990) 34 IR 112 at 113: As I read the provisions of Order 49 of the Federal Court Rules and the forms referred to in the Schedule to those Rules there appears to me to be no difficulty about the inclusion in an information or a summons of reference to more than one offence. To the extent to which the Court in Dillon v Chin made reference to the existence of a practice, whereby only one charge could be the subject of a single proceeding, my experience as to a practice in relation to the bringing of criminal proceedings, in this Court differs substantially from that statement. His Honour then continued: Since making those remarks in Steele's case, my conviction that what was said in Dillon v Chin is wrong has been fortified. In Evans v Federated Ironworkers Association of Australia (1968) 11 FLR 437, the Commonwelath Industrial Court deplored the practice of making each separate charge the subject of a separate information and summons. In Linehan v Australian Public Service Association (4th Division Officers) (1982) 2 IR 470 at 479; 66 FLR 90 at 107, Fitzgerald J said: One minor complication which has intruded when the dispute has concerned the process of inferior courts has been that, in such cases, statute has required not merely that each charge or count relate to only one offence but that each information or summons be similarly confined. The basis for the additional restrictions seems to have been to ensure a separate hearing for each separate offence, perhaps to avoid embarrassment to magistrates … the current practice of commencing separate proceedings in this Court even in respect of what are plainly connected activities, as in the present matters, presumably stems from a misconception that separate process for each separate offence is a general aspect of duplicity and uncertainty, and is in my view unwarranted. I do not consider that such a course is required by the use of the singular number in Order 49, Rule 1(1) and Rule 2(1) of the Court's Rules. Compare Bowling v General Motors-Holden's Pty Ltd (1975) 8 ALR 197, at 219 from which it appears that the Australian Industrial Court was prepared to permit three alleged offences to be tried on a single information provided that they were separately charged. This case does no more than indicate that, by provisions such as s 49A of the Act or Order 49 of the Federal Court Rules, procedures may be permitted whereby arguably more than one offence is dealt with in the same summons. My reference to Newbury should not be taken as an acceptance that, in this case, except for the operation of s 49A, the summons would be duplicitous: but full effect is to be given to s 49A of the Act.

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82 Finally, it is worth referring to the often cited judgment in Regina v Naismith [1961] 1 WLR 952. In that case, which was heard by three judges sitting at a Courts Martial Appeal Court, a question was raised as to whether a charge was duplicitous because it alleged that the appellant caused grievous bodily harm to a named person with intent to do him grievous bodily harm or to maim, disfigure or disable him. The court noted that the Army Rules Procedure provided that each charge should state one offence only. In dealing with a submission that more than one offence was charged on a proper consideration of the charge sheet the court stated: It then becomes necessary to look at s 18 of the Offences against the Person Act, 1861, to see what it provides. It seems to this Court that that section provides for three species of assaults, and provides for a number of possible intents with which those assaults may have been committed. It is urged on behalf of the appellant that by a process of arithmetic one may find enmeshed in the provisions of that section something like fifteen or twenty possible alternative offences. It seems to this Court that the proposition with which Mr Garth Moore started his argument is the right approach. That approach is to keep in mind the distinction between a section creating two or more offences and a section creating one offence but providing that that offence may be committed in more than one way. It seems to this Court that so far as the intents specified in Section 18 are concerned, they are variations of method rather than creations of separate offences in themselves. It is probably true to say that the species of assault mentioned in that section, of which there are three, are each in themselves different offences, that is to say, wounding, causing grievous bodily harm and shooting, but that difference does not affect the result of this case in the least because the only act or species of assault alleged was causing grievous bodily harm. The duplicity, if there be any, is said to arise out of the alterative intents which are mentioned in the particulars. If this were a matter to be tried at assizes, there is no doubt that an indictment containing a count mutatis mutandis with this charge sheet would be perfectly good. Rule 5 of the Indictments Rules was inserted to cover this sort of case. It provides: '(1) where an enactment constituting an offence - I pause to emphasise the singular - states the offence to be the doing or the omission to do any one of any different acts in the alternative, or the omission to do any act in any one of any different capacities, or with any one of any different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities, or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the court charging the offence.' I emphasise again that it is the count charging the offence, albeit, there are alternatives stated in that count. It is a single charge and a single offence.

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84 A further submission was made by the defendant that neither s 49A of the 1983 Act nor s 31 of the new Occupational Health and Safety Act 2000 would be effective to permit duplicitous charges because the 1983 Act was repealed by the 2000 Act and the Savings and Transitional provision in Sch 3 had limited application. The submission seems to be that the Savings and Transitional provisions of the new Act only preserved those matters found in Pt 7 of the new Act; s 31 of the new Act, which is the equivalent of s 49A of the 1983 Act, is not to be found in Pt 7 of the new Act; therefore, on the repeal of the 1983 Act, the flexibility permitted by s 49A was not preserved. A closer examination of the 2000 Act, in my view, does not yield such a surprising result. The 2000 Act was assented to on 26 June 2000 and was proclaimed to commence on 1 September 2001 (Gazette 129 of 24 August 2001). Section 139(1) of the 2000 Act repeals the Acts specified in Schedule 1. Schedule 1 includes the Occupational Health and Safety Act 1983. Section 141 of the 2000 Act makes provisions for savings and transitional matters and provides that Schedule 3 has effect. Clause 13(1) of Schedule 3 provides as follows: Part 7 (Criminal and Other Proceedings) extends (subject to this clause) to proceedings in connection with the former Act in the respective offences committed against the former Act before its repeal in respect of any related matter that continues to have force or effect . (2) This clause applies whether any such proceedings are pending on the repeal of the former Act or whether the proceedings are instituted after that repeal. (3) Part 7 applies with such modification as are prescribed by the regulations or are as necessary for the purposes of applying that Part to any proceedings. (4) … (5) in this clause, former Act includes any Act or provision of an Act that is repealed by this Act. Part 7, Criminal and other Proceedings, of the 2000 Act deals with a variety of matters including summary procedure for offences (s 105), authority to prosecute (s 106), time for instituting proceedings for offences (s 107), penalty notices for certain offences (s 108), evidentiary statements (s 109), onus of proof concerning reasonable excuse (s 110). Part 7 also deals with court orders in connection with offences, proceedings against the Crown and Government Agencies and sentencing guidelines. The equivalent of s 49A of the 1983 Act, which is s 31 of the 2000 Act, clearly does not fall within Pt 7. However, the savings and transitional provisions do not stop, in a relevant sense, at cl 13. Clause 17 of Sch 3 is entitled "General Saving" and provides as follows: Anything done under an Act or a provision of an Act repealed by this Act that has any force or effect immediately before its repeal is taken to have been done under the corresponding provision of this Act subject to any express or implied provision to the contrary in this Act or the regulations made under this Act. I cannot accept that cl 13 operates as an express or implied provision in relation to s 49A so as to detract from the general operation of cl 17 of Sch 3. The legislature had introduced a particular amendment to the 1993 Act when introducing s 49A in 1997. Wright J, President spoke of that history in Coombs v Patrick Stevedores (supra, especially at par 25). The introduction of the provision occurred at a time when there were a number of proceedings in the Commission raising the issue of duplicity in proceedings under the 1983 Act. The clear legislative purpose of s 49A was to provide some flexibility in commencing a proceeding for one offence but in a way which would permit a number of contraventions arising out of the same factual circumstances to be charged. The utility of that approach is obvious and seems consistent with the provisions referred to by Gray J in Newbury v Smith . Given that legislative history in relation to the 1983 Act it would require clear and unambiguous language to bring about an effective suspension of s 49A on the repeal of the 1983 Act for matters which were already commenced but which would permit precisely the same provision in s 31 to apply to actions commenced under the 2000 Act. I was directed to nothing in the relevant second reading speech or in the explanatory memorandum accompanying the Bill which touches on this matter or which would support the defendant's submission. I am therefore unable to accept the approach urged by the defendant on this matter.

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85 It is next appropriate to consider two matters which appear to be related. Firstly, the defendant complains that on the material that has more recently been supplied by the prosecutor in support of the various particulars, including the new particulars, the time when the offences are alleged to have taken place has become somewhat fluid. This appears to be a specific reference to an allegation that dripping water may have built up over a period of time through a process of dropping onto and into the switchboard, picking up some contaminants such as dust and then drying, with the same process repeated day after day. Consideration of the charge clearly demonstrates that it alleges an offence under s 16(1) of the Act that, on 14 January 1999, at its factory premises at 24 Narabang Way, Belrose the defendant, being an employer, failed to ensure that persons not in its employment and in particular, Shalishkumar Patel, were not exposed to risk to their health or safety arising from the conduct of its undertaking while they were at its place of work. I accept the prosecutor's submission that this is one offence and it specifies, the time, place and manner in which the offence was committed. Further, as recognised by the Wright J, President in Coombs, it does not necessarily follow that particulars provided as to a process of work or the like which is said to have commenced outside the period of charge is necessarily unavailable as a proper particular. His Honour could envisage circumstances where fairness to the defendant might require a particularisation of events outside the limitation period. For the same reasons, although the particular incident took place at a nominated date, that should not prevent the prosecutor from supplying to the defendant, and relying upon, material which pre-dates that time and which explains or assists in offering an explanation of what occurred on the nominated date. I see no irregularity in this approach by the prosecutor. The related matter is whether or not the prosecutor may properly add the additional particulars contained in the letter of 18 September of which only two are now pressed. I accept the analysis conducted by the prosecutor that the two additional particulars do not raise totally new matters but deal with matters that were clearly exposed to the defendant in the various documents contained in the Brief of Evidence and, indeed, mentioned in Inspector Stewart's affidavit in support of the Application for an Order. It is clear from decisions in this jurisdiction, more recently Concrete Constructions Group Limited v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16, where the Full Court adopted the approach of Walton J, Vice-President, in WorkCover Authority (NSW) (Inspector Penfold) v Fernz Construction Materials Limited (1999) 91 IR 119 at 126 for the proposition that the common law does not require that the information contain all material that the defendant may require upon an application for particulars for preparation of a defence, citing De Romanis v Sibraa [1977] 2 NSWLR 264 at 291 and itself applying Ex parte N. Ormsby and Sons Pty Limited; re Mason (1964) 81 WN(Pt 1) NSW 286 at 290-291. Once it is accepted that particulars are not be equated with the charge itself, made under s 16 of the Act, then it must also be accepted that the charge is not being added to by the supply of further and better particulars. The late supplying of further and better particulars or the late addition of particulars in certain circumstances may cause unfairness to the defendant, and a variety of relief may be available to the court ranging from a refusal to permit reliance on the additional particulars, because they involve an abuse of process, to an adjournment on suitable conditions to allow the defendant to properly prepare its case. Subject to matters raised later in this judgment, I can see no impediment to the addition of the two particulars arising from the prosecutor's letter of 18 September last, especially in view of the fact that it appears that some notice of these matters was given in various material supplied to the defendant prior to that date. 86 The final matter concerns the application for a stay because of procedural irregularity and the oppressive conduct alleged of the prosecutor. The principles applicable to such an application were not contested in these proceedings. In Jago v The District Court of New South Wales (1989) 168 CLR 23 the High Court dealt with the basis upon which a criminal trial would be stayed permanently as an abuse of process brought about by delays. Mason CJ stated that, subject to statutory provisions to the contrary, a court possesses the power to control and supervise proceedings brought in its jurisdiction and that power included powers to take appropriate action to prevent injustice: justice in this context has a limited meaning, although the power is not to be confined to closed categories. The Chief Justice went on to state: In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare; re Cooney (1987) 31 A Crim.R. 256 at pp 263 - 264. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'; Barton (1980) 140 CLR at p 111, per Wilson J [at 34]. Earlier in his judgment the Chief Justice noted that the power was discretionary and would be used in the most exceptional circumstances to order that a criminal prosecution be stayed. Having identified the purpose of preventing injustice to the accused, the Chief Justice noted that it necessarily followed that other orders may be made in cases of undue delay in order to prevent injustice. There was no reason to confine the discretionary power of the court by arbitrarily stipulating that a stay is the only proper remedy for undue delay. In relation to the test of fairness his Honour stated: The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (1980) 147 CLR at pp 102 - 106; Sang (1980) [AC at p 437]; Carver v Attorney-General (NSW) 1987 29 A.Crim.R 24 at pp 31 - 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged [at 33]. Brennan J stated that the power to stay a criminal prosecution served a dual purpose of preventing an abuse of process or the prosecution of a criminal proceeding in a manner which would result in a trial which is unfair when judged by reference to accepted standards of justice. However his Honour noted: A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimise prejudice to either party. Examples of such an exercise of discretionary power were offered in Bell v Director of Public Prosecutions. It was the power exercised in Barton, the power to adjourn a trial until the committal proceedings were held. A power of temporary adjournment is commonly exercised to prevent injustice … When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice the accused might otherwise suffer [at 46, 47].

Inspector Fiona Stewart v Siemens Dematic Pty Ltd

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