(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
...
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
116 No evidence was called to show that the document satisfied this requirement. On its face, there were at least two ways in which this could have been done. Either, by tendering the defendant's application to AQIS, if indeed the document resulted from such an application, or by calling evidence from a person with knowledge of the facts in question. Given that Mr Troja, the general manager, was to be called in the prosecution case, the tender of the document could have been deferred until he was called. This was not a course which the prosecutor wished to pursue. The defendant was prepared to concede that it had made an application in certain terms. The prosecution declined to accept the concession, or to itself tender the application for the license, but pressed the tender on the basis that it was open to infer from the terms of the document itself, that the requirements of s69(2)(b) were satisfied. Such an inference was not open.
117 The defendant also argued in the face of the prosecution's refusal to tender the application, or to accept the concession sought to be made, that the tender should be declined in accordance with ss135 and 137 of the Evidence Act, in any event, on the basis that the document, in the absence of the underlying application, would be unfairly prejudicial, misleading or confusing. I invited the prosecutor to tender the application with the document. That course was declined and so, it had to be concluded that s69 was not satisfied and, furthermore, even if it were, the discretion provided by ss135 and s137 had to be exercised.
118 The defendant complained that the prosecution was actively endeavouring to ensure that the relevant primary material was not put before the Court. Mr Skinner argued that there was no difference between primary documents (those emanating from the partnership and the defendant) and secondary documents (those emanating from third parties such as AQIS) as the defendant complained, it was all evidence.
119 It is impossible to see that the approach adopted in relation to the documentary case is consistent with the prosecutor's obligations as discussed in Tran. It also highlights the defendant's complaint that the prosecution simply failed to turn its attention to the primary documents which would throw light on the real nature of the relationships in question and whether, in that context, the legal elements of the offence charged could be made out. Having thought it unnecessary to investigate such material, which was always available to it, the prosecution now proposed to proceed, without putting the relevant material before the Court.
120 Other difficulties emerged. The prosecution having opened on the basis that the abattoir was owned by the defendant, the cross examination of the Inspector soon revealed that the document upon which the prosecution relied had been misunderstood. Mr Skinner finally submitted that "It is trite in this jurisdiction that the consent of ownership is an industrial law concept; it is not property law, it is a concept that has an industrial flavour it is not an aspect of real property law." The submission is incorrect. Properly understood, as the submission was developed in response to questioning, it was being asserted that ownership of land was not necessary to establish that the land was a defendant's place of work - that being one of the legal elements of the offence which must be here proven. I accept that while ownership might be relevant, it is not decisive on that question. Failure to make out that aspect of the opening is not fatal to the prosecution case.
121 Mr Skinner also submitted that ownership of the land was relevant to the question of undertaking, another legal element of the offence That is undoubtedly correct. So too, is the question of the ownership of the abattoir business, another matter about which the defendant complains as to the unfairness of the prosecutor's approach to its obligations.
122 Whether the difficulties about which the defendant complains should lead to a permanent stay of the proceedings is, a matter which requires careful consideration, given the limited circumstances in which such orders may properly be made. In part, the answer to this question depends on whether what has been demonstrated leads to the conclusion that there has been such an inadequate approach in the pre-trial investigation, that the grant of a stay must follow, because there cannot now be a fair trial conducted, given the approach being pursued at trial.
123 Alternatively, whether a possible alteration to the prosecution's approach to the case, inconsistent with how the case has been advanced thus far, is one now available, is another question.
124 An inadequate investigation or lack of appreciation of what the prosecution must establish in a particular case, may of course lead to the prosecution failing to make out what is alleged to the requisite degree, in which event the charge would be dismissed and an order for costs made in favour of the defendant. Potentially this could result without the defendant needing to go into evidence. That the prosecution should be refused the opportunity to attempt to make out the charge at all, is a different matter, as various members of the High Court emphasised in Jago.
125 As Brennan J observed in Jago at 54, the interests of the community and victims of crime in the enforcement of criminal laws, must not be overlooked in considering alleged instances of abuse of process and applications such as this. It is not here alleged that there has been bad faith on the part of the prosecutor, but in reality, such an inadequate approach to the investigation and pursuit of the trial, that a fair trial is not now possible. Whether this is so, must be tested by considering whether steps could now properly be taken, which would ensure that those inadequacies could be overcome, so that the defendant would still be given a fair trial. If so, the circumstances would fall into that class discussed by Deane J at 55, that this "is something which the individual must accept as necessarily flowing from membership of a society in which individual and public rights and interests are protected by laws enforced by penal sanction. In a real world where institutional resources are limited, some undesirable delay in the administration of criminal justice is inevitable." Similarly, some imperfections in a trial process must also be accepted.
126 It follows, that unless it can be concluded that what has transpired 'has passed beyond what can be justified in the due administration of justice', such steps, if available, should be taken.
127 That this is not without difficulty here is abundantly clear. The defendant argued that what the prosecution now proposed raised difficulties of the kind considered by Cahill J in WorkCover Authority of New South Wales (Inspector Lacey) v Donato Timmillo (unreported, 13 February 1998). To permit this course now would permit the pursuit of the charge inconsistently with the limitation period. I am unable to accept that submission. The defendant complains that because of the inadequacy of the investigation, the prosecution is involved in an abuse of process because it has no intention of satisfying the onus which falls upon it as to the matters in issue.
128 In Tummillo, Cahill J was concerned with an attempt, after the limitation period had expired, to abandon the allegation that an offence under s15 had been committed and to prove an offence under s16, it being apparent that the proceedings had been commenced against the wrong legal entity. Cahill J declined the application, finding that :
' ... it is obvious that the prosecution, after considering all the material available to it as a result of WorkCover investigations over a period of almost two years since the accident occurred, made a conscious decision to proceed under s.15(1) against the employer of the deceased employee, Mr Hall, and of Mr Mills. In doing so, the wrong company was mistakenly specified. But there were no proceedings then instituted for breaches of s.16(1) of the Act against either company, Graphic Security Pty Ltd or Graphic Security Protective Services Pty Ltd. The conclusion is inescapable that the prosecution had reached a conscious decision not to proceed against either company alleging a breach of that section.
Section 15(4) cannot operate to save these proceedings. It is patently clear that the circumstances of the present case, as discussed above, are such as to make its application inappropriate or impermissible.'
129 I am unable to come to a similar view in this case. The difficulty in question, it seems to me is of a different kind.
130 I have concluded that the defendant has advanced legitimate complaints, as I have found. The question is whether or not they can be cured.
131 One aspect of the difficulty is the question of the evidence which would be called from witnesses. In the ordinary way, the prosecution has served on the defendant, statements taken from witnesses during the Inspector's investigation before the charge was laid. The defendant has, from the outset, indicated that it has no objection to the tender of those statements, subject only to relevance, and that it does not require them for cross examination.
132 The prosecution has refused that course. It intends to call the witnesses and adduce evidence orally. This is consistent with the approach discussed in WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370 at [86].
133 It has become apparent, however, that the prosecution also intends and the defendant will oppose, the calling of further evidence beyond the matters dealt with in the statements, in relation to the question of the safety of the system of work. Perhaps in part this stems from the difficulties arising from the Inspector's concessions. The defendant already complains that it has no notice of such evidence.
134 Were the prosecution now to alter its approach to the trial, further difficulties of this kind might emerge. It seems to me, potentially at least, that such difficulties might be manageable. The problem is, however, that while the Court may make evidentiary rulings, it does not control the course either party might take in the proceedings, or the evidence they elect to call.
135 What is clear from the prosecutor's submissions, is that it does not intend to recast its case. It insisted that "the management issue cannot found a defence". It has not abandoned its view that the asserted agency is irrelevant to the charge before the Court, despite what has emerged during the hearing of the motion. Indeed, to the contrary, having identified that the capacity in which the defendant took certain action was in issue, Mr Skinner submitted:
But our case fundamentally is, if it is the manager for someone else, it is still liable under Occupational Health and Safety law. We would say, your Honour, that despite my learned friend's submissions that it may be a trustee or a manager or an agent for a disclosed principal and the terms aren't mutually exclusive, into which possible controversy I don't want to enter, we say if it were a trustee, it is clearly liable anyway and there is authority for that recently. But that doesn't really seem to be how it has been pressed on the Court.
136 Assistance for this approach was sought to be drawn from the Full Court's judgment in Solo Waste Aust Pty Limited v Inspector McDonald [2005] NSWIRComm 106, where the Court was dealing with an offence committed by the corporate trustee of a family trust. In truth the case was of no assistance to the prosecutor here. As the Full Court observed at [16], such a trust is not a juristic person. It could not be prosecuted and its property was legally vested in the trustee. There could be no issue that the corporate trustee was the proper defendant in those proceedings.
137 By way of contrast, in this situation, there was nothing to preclude the two partners, here in question, being prosecuted under s8 in relation to the risk to safety at issue, if they were in truth employers and the risk arose at their place of work and during the course of their undertaking - namely, the abattoir business being conducted by their partnership.
138 It was also argued by Mr Skinner that the prosecutor was entitled to reject what the defendant had put and "to lead the evidence going the other way." I am satisfied that the defendant's complaints as to the prosecutor's approach to the evidence was plainly thereby finally confirmed.
139 It was argued, nevertheless, that the defendant's complaint was premature, because it was intended to tender material which would prove the prosecution's allegations. That material had been served. The defendant's complaint was, of course, that the prosecutor did not propose to meet its obligation to put all of the relevant material before the Court on the issues in question - particularly the material which did not support the prosecution case, but which showed that it was the partnership which in truth should have been charged with the offence.
140 Mr Skinner conceded that documents, in evidence on the voir dire, which the defendant had used to advance its case, were not ones in the prosecution's possession when it opened the case. In response to a question as to the two complaints - that such matters were not investigated and that it was not proposed to tender such material, it was said:
Now I have it, I would propose to put it before the court, probably, but I'm one witness into 17, I don't want to cavil with your Honour's ruling, but that highlights how it is almost impossible to assess at this stage of the trial.
141 Mr Skinner agreed that no notice had been given to the defendant as to material of that kind being led at the trial. On his approach, however, the material having been revealed by the defendant, the prosecution was now entitled to form a view as to whether it was relevant and this would most likely occur when Mr Troja was called. If it was to be tendered, s46 of the Criminal Procedure Act, would be relied upon. That the material had been 'pulled out from of the defendant's side of the bar table after the proceedings were charged and the trial commenced' could not found the abuse alleged. The defendant could chose to go into evidence during the conduct of the prosecution case and if it did, that could then be relied on by the prosecution to establish its prima facie case.
142 Mr Skinner was unable to indicate what might be tendered, even when pressed. He took the view, for example, that the management agreement between the defendant and the partnership might go in, as might most of the material tendered by the defendant on the voir dire. Later on, he said that the prosecution would not be trying to withhold it and that "... there is no evidence at all that we ever were, or that the inspector was ...". He accepted that it was relevant and would have to be put before the Court, although, as he later explained it, it was material only relevant to the defendant establishing that it has a defence on that material. Even later, he submitted that "I won't resist it going in and may put it in myself and so on, no problems."
143 What I took all of this to mean was that while the prosecution would not oppose the defendant tendering such material and might itself tender some of it, what would be tendered by the prosecution would depend on the view reached as to its relevance to the prosecution's case, as it developed. As Mr Skinner explained it:
If the proposition is put that we are withholding material that would otherwise prove they're innocent, that begs the question. Your Honour has to be of the view that they are otherwise innocent, that we have prosecuted the wrong defendant. We do not have to put their defences to the court. I cannot see how a prosecutor is ever obliged to do that, unless they throw some evidentiary onus on us in some way in the course of the trial.
144 It was further submitted that all that the prosecution needed to do in its evidentiary case was to raise the matters in issue through the evidence it called. This would be done in the evidence called from Mr Troja, so that he could be cross examined 'which will no doubt be reasonably friendly cross examination on any view'.
145 As to the complaint that the material about which the defendant complained had not been brought forward in the prosecution case, it was submitted of the defendant that "Every inquiry we have been able to make from other parties would support what Mr Wright said. Every inquiry we make of them provokes massive complaint."
146 I do not accept that submission. To the contrary, both correspondence from the defendant and even the Inspector's cross examination suggested that the prosecution received co-operation from the defendant, including both before and after the charge was laid. Even when it objected to the use of the s62 power, shortly prior to the hearing, the defendant produced the documents sought, by the prosecutor, in any event.
147 The real difficulty here, it seems to me, is that while the prosecutor had a basis for a prima facie case when the charge was laid, the foundation for it disappeared, given the defendant's later advice that it was not, in fact, an employer. That necessitated the prosecutor revisiting the charge and considering whether it was the defendant or the partnership which was the employer in the circumstances of the arrangement which they had entered with each other and with the individuals concerned. Given the impact which that question had on the place of work and undertaking elements of the charge, those matters too had to be revisited.
148 The consideration then given to such matters was plainly inadequate, as I have found. It appears that the ordinary way in which the identification of an employer might be approached was not undertaken. For example, Mr Terrett's cross examination showed that there were personnel files maintained, containing letters of appointment which referred to the employer. Such documents seemingly have not been identified by the prosecution as being documents on which it would rely at the trial, nor are they contained in the material tendered by the defendant on the voir dire. No doubt group certificates would have been issued to the employees and they would have filed tax returns. The partnership and the defendant also created various tax documents. Some of those are intended to be led.
149 Indeed, somewhat curiously, income tax records were variously described by Mr Skinner as "the gold standard, if one likes, of evidence for testing employer/employee relationships" and the "main evidence anyone would rely on." Those submissions are plainly incorrect.
150 What has been revealed is the prosecutor embarked at trial on a course which involved it putting before the Court only those documents which assisted its case, having taken the view that the existence of the asserted agency was just irrelevant to what it had to establish. Despite the suggestion that it might tender some or all of the documents tendered by the defendant on the voir dire, if it took the view that they became relevant to the prosecution case as the case advanced, it has not accepted that it is obliged to follow any course other than that upon which it embarked at the outset.
151 While the existence of the controversy as to various factual matters will be revealed in the evidence, particularly that to be led from Mr Troja, the prosecutor does not accept that it has an onus, in its case, to tender the relevant documentary material - both that which supports its view of the facts and that which supports the defendant's view on the matters in issue - so that the proper evidentiary basis is provided for the Court to determine these issues.
152 Contrary to the prosecution's assertion, the prosecutor's obligation is not one which can be approached on the basis that, if it wishes, the defendant can lead such material, in order to make out a defence. This statutory scheme creates certain absolute obligations. It also imposes a particular onus on a prosecutor, who seeks to establish that those obligations have not been met and that an offence has been committed. There are defences provided in the statute, which only arise for consideration, once an offence has been made out. They do not include a defence of the kind asserted by the prosecutor. The onus to make out the case the prosecution alleges, to the necessary criminal standard, can only be met by the prosecution leading in its case, all of the evidentiary material which will provide a fair opportunity for the factual matters in issue between the parties to be determined by the Court.
153 Notwithstanding the conclusion I have reached, I am satisfied that the Court cannot require the prosecutor to depart from the course it has adopted and from which it does not, in reality, resile, despite what has emerged during the hearing of the motion. Just as the Court cannot control the way in which an investigation into a possible offence is conducted, it also cannot control the way in which a prosecutor proposes to meet its obligations at trial. I am also satisfied that the trial, approached as it has been by the prosecutor, who in reality does not resile from that course, will involve an abuse of process which cannot be permitted and which would necessitate the proceedings being stayed.
154 While such a conclusion is reserved for an extraordinary case, it seems to me that this is one such case. As it was put by Brennan J in Walton v Gardner (1992-3) 177 CLR 379 at 415:
In Cox v Journeaux (No 2) (1935) 52 CLR, at 720, Dixon J said:
The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.