Inspector Ross Wolf v Rockdale Beef Pty Ltd

Occupational Health and Safety - prosecution under section 8(2) of the Occupational Health and Safety Act 2000

CATCHWORDS: Practice and Procedure - stated case - section 5AE of the Criminal Appeal Act 1912 - questions raised by prosecution - factual foundation for the stated case absent - stated case confined to questions of law - need for questions to be framed with particularity - no general right of appeal - need to express relevant findings of fact in stated case and to provide relevant parts of the evidence - under section 5AE stated case available prior to completion of proceedings - proceedings here not yet complete - questions to be reframed and factual foundation of stated case to be formulated - costs reserved

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

Alexander William Madden (1995) 85 A Crim R 367 Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439 Environment Protection Authority v Land and Environment Court of New South Wales [2004] NSWCA 50 Inspector Ross Wolf v Rockdale Beef Pty Limited and Others [2004] NSWIRComm 244 Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 163 CASES CITED: Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 169 Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 171 Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 Morrison v Peacock, Morrison v Roslyndale Shipping Co Pty Ltd (Unreported, Pearlman J, Land and Environment Court, 10 and 12 December 1999, 1 March 2000) State Pollution Control Commission v Aerosols of Australia Pty Ltd (Unreported, 13 November 1991, Court of Criminal Appeal)

PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

DEFENDANT: Mr GJ Hatcher SC with Mr S Bell of counsel SOLICITORS: Terrett Lawyers

• 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 On 27 May, I gave judgment in this matter, concluding that the proceedings must be permanently stayed, as the continued trial would involve an abuse of process, which justice could not permit (Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 169). Earlier judgments had been given in relation to other matters - Inspector Ross Wolf v Rockdale Beef Pty Limited and Others [2004] NSWIRComm 244, Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 163, Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 171. 2 I deferred making orders, so that the prosecution could consider whether it wished to ask the Court to state a case pursuant to s5AE of the Criminal Appeal Act 1912, which applies to these proceedings by virtue of s196 of the Industrial Relations Act 1996. 3 There was no opposition to that course by the defendant. It has now, however, argued that the questions which the prosecutor seeks to have referred raise no questions of law and/or are not available to be referred, given the limits of s5AE, which is not available to be utilised as an alternative to an appeal. This submission flowed from the decision of the Full Court in Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8, where it was held at [68] that: We find that the Commission in Court Session does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act and s 5F of the Criminal Appeal Act to hear and determine this appeal against an interlocutory judgment or order made in proceedings to which s 168 of the Industrial Relations Act applies. Further, for reasons we have given, the judgment and order of Marks J is not susceptible to appeal under the combined operation of s 196 of the Industrial Relations Act and s 5C of the Criminal Appeal Act . 4 It was argued that s5AE could not now be used in this Court, to circumvent the legislature, which had not acted on the express invitation of the Court in Joy Manufacturing, at [69], to revisit the statutory scheme of appeals in connection with prosecutions brought under the Occupational Health and Safety Act 2000 ('the Act'). 5 The questions sought to be stated were: Judgment of 20 May 2005, [2005] NSWIRComm 163

Whether an allegation of an offence pursuant to s 10 of the Occupational Health and Safety Act 2000 in the alternative to a charge pursuant to s 8 is valid as matter of law?

Whether in order for a charge alleging an offence against s 10 of the Occupational Health and Safety Act 2000 to be valid there must be in the statement of the charge in the Application for Order any or all of those matters which are referred to in subs s 10(3) and s 10(4) of the Act or whether it is sufficient if those matters are alleged in the affidavit in support of the Application for Order.

Was it correct in law to allow the defendant to press the motion filed 13 May 2005 in the absence of full particulars as requested by the prosecution?

Was it correct in law to allow the defendant to press the motion filed 13 May 2005 before the prosecution had finished its case?

Was it correct in law to hold in paragraphs [152] - [162] that there were obligations imposed upon the prosecutor that were not being met in this trial?

Was it correct in law to hold that the prosecution had an obligation to tender 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'?

Was it correct in law to hold in [162] that on the state of the evidence as it was before me it was an abuse of process 'in a case where the identity of the proper defendant is at issue' for the prosecutor to '[advance] a case that the existence of the agency is irrelevant to ascertaining whether it is the defendant or the partnership which is the employer; who conducted the undertaking, and at whose place of work the risk to safety arose' and to '[propose] to do no more than raise the issue in evidence and then to call evidence relevant to the case it advances, leaving it to the defendant, if it wishes to advance a defence, to lead evidence which establishes the agency and that the partnership is the employer, conducted the undertaking and at whose place of work the risks arose'?

Was it correct in law to hold in [162] that the defendant (referred to as 'the accused' in my judgment) would be denied a fair trial if it were to continue? 6 Section 5AE provides: 5AE Point of law stated during summary proceedings

(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 7 The parties relied upon various decisions of the Court of Appeal and the Court of Criminal Appeal, as well as decisions in the Land and Environment Court. Some of these judgments dealt with cases stated under s5B of the Criminal Appeal Act. There can be no room for the view that they are not relevant to what has here arisen for consideration, as the prosecution argued. The two provisions are relevantly identical in content, although dealing with stated cases arising in different situations, as the Court of Criminal Appeal observed in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439 at [27]. Section 5B provides: 5B Case stated from District Court

(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. 8 In Alexander William Madden (1995) 85 A Crim R 367 the Court of Criminal Appeal was dealing with a case stated under s5B. At 369, Hunt CJ referred to 'The facts found by the judge, as set out in the stated case' and later, to the judge's conclusions as to what the prosecution had proved beyond reasonable doubt. At 370, reference was made to the question posed for the Court's determination - 'whether the judge's finding that the offence had been proven was erroneous in law'. Hunt CJ also there observed: That is not an appropriate question to be asked in a Stated Case. The procedure provided by s5B of the Criminal Appeal A ct 1912 is intended to permit the District Court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s122 of the Justices Act . The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge upon that appeal to the District Court, as there is no right of appeal to this Court from that determination. The question asked here is in form no more that an attempt to exercise such a right of appeal. It is for that reason that this Court has said, and often repeated, that it is necessary that the particular question or questions of law upon which advice is to be obtained are specifically stated. (footnotes omitted)

9 His Honour also observed that the Court may not have regard to matters outside the stated case and that: If an appellant wants to rely upon express or implicit findings made by the judge, it is his obligation to ensure that those findings are expressed by the judge in the Stated Case. Sometimes, reasons for judgment given by the judge are attached to the Stated Case for this purpose. It would not, however, be correct to attach a transcript of the evidence. This Court is concerned usually with the facts found by the judge, not with the evidence as a whole. If there is a challenge to the evidentiary basis for any of those findings, the relevant parts of the evidence should be set out in the Stated Case. A judgment given by the judge prior to stating a Case for the opinion of this Court does not always identify every matter upon which the judge relied in making such findings. That is why the relevant parts of the evidence should be set out in the Stated Case if it is necessary to consider the evidentiary basis for any findings of fact. (footnotes omitted)

10 His Honour concluded at 373 that the Court should decline to answer the question originally posed, because: ... it was inappropriate, and also because it cannot be answered upon the material contained in the Stated Case. I propose that the question subsequently formulated for this Court's determination be answered "No", and that an order be made that the Stated Case be returned to the District Court for the hearing of the appeal to that Court to proceed in accordance with the opinions expressed by this Court.

11 In Morrison v Peacock; Morrison v Roslyndale Shipping Co Pty Ltd (Unreported, Pearlman J, Land and Environment Court, 10 and 12 December 1999, 1 March 2000), Pearlman J took the view that questions there proposed by a prosecutor for statement under s5AE of the Criminal Appeal Act were correctly framed and that it was appropriate in that case to append the judgment to the questions 'as setting out the facts upon which the questions are founded'. Her Honour reached that conclusion in the face of a view expressed by Gleeson CJ in State Pollution Control Commission v Aerosols of Australia Pty Ltd (Unreported, 13 November 1991, Court of Criminal Appeal) at 4 - 5, that a stated case should contain a statement of the findings of fact in a summary form and that it 'was normally inappropriate for the stated case to have annexed to it, the reasons for judgment of the judge.' 12 Gleeson CJ described the approach there adopted to the stated case at p2, as involving the annexure of the whole of the transcript and the reasons for judgment, with four questions raised. His Honour regarded this approach as containing fundamental difficulties and observed: A case stated should on its face, and within its own terms, identify the issues of law submitted for determination and set out the findings of fact necessary for a resolution of those issues. On occasions, stated cases also contain matter designed to indicate how it is that the question of law referred to came to arise. 13 The Court consequently declined to deal with the case as not properly identifying and submitting any question of law. The matter was remitted to the Land and Environment Court 'where a decision may be taken as to whether it is desired to attempt to reform the case stated.' 14 In Environment Protection Authority v Land and Environment Court of New South Wales [2004] NSWCA 50, the Court of Appeal was dealing with a case sought to be stated under s5AE of the Criminal Appeal Act in circumstances where the primary judge had announced that he was satisfied that the charge of polluting had been defeated, by the statutory defence having been made out. The judge declined to state a case, even though formal orders had not been made, accepting the defendant's argument that the proceedings had been completed and there was no longer jurisdiction to state a case. The Court of Appeal concluded that until formal orders were made, the proceedings were not complete and that it was appropriate for the prosecution to wait until it was aware that a question of law was going to be decided against it, before stating a case. This was so even though there had been a hearing on the merits in the case and all that was necessary before the proceedings were concluded, was for final orders to be made. 15 It follows from these authorities and the concessions made by the defendant, that, in accordance with s5AE of the Criminal Appeal Act, questions of law 'arising at or in reference to the proceedings' may be stated at this point, the proceedings not having been concluded by formal order. The questions must be properly framed and must have a factual basis provided in the stated case. The process does not involve an appeal from the decisions which I have reached and it is thus not appropriate that the case go forward, as the prosecution suggested, with a number of questions referred and an 'application book', later to be provided.

Questions 1 and 2 16 I turn then to the questions. On 11 May, I announced that: As I indicated yesterday, I propose to announce my conclusion on the matters argued and in due course to give reasons for the decision which I have come to. I have decided that the aspect of the order brought under section 10 of the Act must be dismissed for a variety of reasons and I order accordingly and I am satisfied that the prosecution may continue the aspects of the order brought under section 8. 17 Reasons for those conclusions were given on 20 May (Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163). At [67] I concluded: These are the reasons why I ordered that the offence charged under s10 be dismissed and that the offence under s8 proceed to hearing.

18 The defendant argued that in those circumstances, the questions were not available, given the orders made. I am unable to accept the submission. Formal orders have not been entered and in the words of s5AE, the proceedings in which the charge was dealt with have not yet come to completion. I accept that these two questions raise separate questions of law, each going to the proper construction of the Occupational Health and Safety Act. The case stated must, however, provide a factual foundation which is as yet absent and to which the prosecution must attend, before the matter may be referred to the Full Court.

Questions 3 and 4 19 While both questions are framed in such a way as to suggest that they raise questions of law, it is difficult to see that is what, in truth, the questions raise. Rather, they appear to involve an appeal from discretionary decisions made as to how a trial is to be conducted and the point at which a motion is to be heard. Such an appeal is not available to the prosecutor. The questions may not be stated. 20 The prosecutor always accepted that the defendant had the right to seek the permanent stay of the proceedings, as involving an abuse of process. What the prosecution repeatedly contended however, was that the defendant's application ought not to be heard at that stage of the trial. I disagreed in the particular circumstances, for reasons given. This conclusion did not involve the consideration of any question of law. 21 The defendant's complaint as to abuse of process proceeded on two bases. During the hearing of the application, the prosecution came to complain that it had inadequate particulars of one of these. Particulars were given orally for the defendant and during an adjournment, in writing, but the complaint as to inadequate particulars was maintained. I did not accept that the complaint had a proper foundation and determined to continue hearing both aspects of the defendant's application. Again, this conclusion did not involve the consideration of any question of law, but the consideration of whether the defendant's application could properly be heard in the circumstances then prevailing, given the controversy as to alleged inadequacy of particulars.

Questions 5 to 8 22 The defendant conceded that question 6 concerned a question of law, but it was argued, not one arising in the proceedings, because the prosecutor had not argued the correctness of the law to be applied in the circumstances. All that was in issue was the application of binding precedent to the facts here before the Court. 23 I am unable to accept that submission. While I took the view that there were various relevant authorities, binding upon the Court in relation to the obligations which the prosecutor had in the proceedings, at issue between the parties was both what those obligations were; whether the prosecutor had adhered to them and proposed to adhere to them and lastly, whether, given those obligations, the prosecutor's approach involved an abuse of process, which would warrant a permanent stay of the proceedings. 24 A prosecutor's obligations in proceedings such as this, plainly involves questions of law. Question 6 raises that question. Whether a prosecutor may leave to a defendant, the leading of evidence as to agency, in a case where identity of the employer, who conducted the undertaking and at whose place of work a risk arose, are in issue, also raises a question of law; the question going, as it does, to the prosecutor's obligations in proceedings brought under the Act. Question 7 raises that question. 25 Whether a case where a prosecutor proceeds inconsistently with such obligations involves an abuse of process, namely by denying a defendant a fair trial, also appears to raise a question of law. Question 8 appears to raise that question, at least in part. 26 In Goulburn Wool Scour, however, the Court of Criminal Appeal discussed the importance of the way in which a question of law is phrased at [27] - [33]. The legal issue sought to be agitated must be identified with particularity in the question posed. A question such as whether the judge's finding that the offence had been proved was erroneous in law may not be asked in a stated case (Madden). It seems to me that likewise, a question as to whether the judge's finding that abuse of process had been proved was erroneous in law, may also not be asked in a stated case. 27 It follows that the application of a question of law to the particular facts of the case, is a matter which may not be raised by way of stated case, particularly given the absence of a right of appeal in this statutory scheme. Question 8 therefore needs to be refined, inappropriately raising as it does at present, the application of the law to the facts of this case. Question 5 appears to suffer from a similar difficulty.

The factual foundation for the stated case 28 The stated case may, nevertheless, only go forward on a factual foundation, which is presently absent. Simply providing an 'application book' appending transcript, exhibits and judgments, as if there was an appeal going forward to permit a general review of the proceedings, is not a basis upon which a case may be stated, consistently with the views expressed by the Court of Criminal Appeal, in the cases earlier cited. 29 This must now be properly attended to. The prosecutor must attend to properly framing the facts upon which the questions are to go forward, as well as the recasting of questions 5 and 8. I direct accordingly. I reserve the question of costs.

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.