Inspector Wolf v Rockdale Beef Pty Ltd and Ors

Inspector Wolf v Rockdale Beef Pty Ltd and Ors - [2006] NSWIRComm 408 - NSWIRComm 2006 case summary — Zoe

[22]

7 In this case, what must be considered is a question of apprehended bias, claimed to have arisen in circumstances where, during the course of a criminal trial, when considering a motion filed by the defendant seeking the permanent stay of the proceedings, the view was reached by the trial judge that the prosecutor's approach to the proceedings was such, that a fair trial could not be assured by the Court and that the proceedings must be stayed. 8 Amongst other things, in issue between the parties at trial, is whether or not the defendant was an employer. That arose in circumstances where the defendant had conceded to the investigating Inspector that it was an employer, but later informed him that the concession had been made in error; and that it was the partnership of which it was the disclosed agent which was the employer. 9 The conclusion that a fair trial could not be assured, rested on a number of considerations, including the approach adopted by the prosecutor to the tender of documents, which the defendant complained involved an active endeavour by the prosecution to ensure that material relevant to a determination of whether or not it was an employer, given the disclosed agency, was not put before the Court and the prosecutor's announced intention, not to put in evidence material which did not support the prosecution case. 10 At [147] - [153] of the judgment I observed: 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.

[35]

86 At the stage the proceedings had reached it was not open, as we have explained, for the trial judge to find the prosecutor had refused to tender relevant evidentiary material "which will provide a fair opportunity for the factual matters in issue between the parties to be determined by the Court": [152]. Accordingly, it was not open to her Honour to find there had been an abuse of process justifying the grant of a permanent stay. 14 The Full Bench reached the view that it was not open to conclude that the prosecutor had refused to tender relevant evidentiary material and that the finding that there had been an abuse of process justifying a permanent stay was not open. 15 It was the prosecutor's submission that in these circumstances, a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question of whether or not the defendant committed the offence with which it was charged. The approach of the Court of Appeal in Kwan v Kang & 2 Ors [2003] NSWCA 336 at [69] to [76] and [91] to [94] was particularly referred to. 16 Two matters were relied upon by the prosecutor to advance the submission. The first, statements in the judgment which were capable of leading a fair-minded lay observer to the conclusion that I do not accept that the prosecutor will carry out its obligations according to law and that I do not accept the integrity of the prosecutor, or that it will meet its obligations, and present the prosecution with fairness to the accused. The second matter relied on related to prejudgment of a central issue in the case, which flowed from the observations made at [147] of the judgment quoted above. 17 Even though the Full Bench disagreed with the conclusions which I had reached at first instance and referred the matter back, so that the trial could proceed, that did not overcome the difficulty that the views which I had reached would be perceived as not allowing an impartial mind to be brought to the resolution of the matters which would inevitably arise, as the trial proceeds. That was because of the conclusions already reached about the future conduct of the prosecution and the ongoing necessity to consider whether or not the prosecutor was meeting its obligations, as the trial advances. As to this, it was submitted that the prosecutor intended to embark on no different course to that which it had already taken in the proceedings to date. 18 The defendant's attitude to the application was that it would not be acceded to. Of necessity, to do so would involve an acceptance that as the trial judge in this case, the views of the Full Court on Appeal would not be accepted and acted upon. Such a submission would not be accepted. Reference was also made to the observations of the High Court in Re Polites and Another; Ex Parte the Hoyts Corporation Pty Limited and Ors (1991) 173 CLR 78 at 86:

[38]

Consideration 20 Having carefully considered the prosecutor's application, even though it is regrettably one which arises during the hearing of a criminal trial, which will consequently have to be re-allocated as a result of this decision, I am satisfied that it must be granted. 21 As I observed in the May 2005 judgment, the conclusion which I reached, that the proceedings should be stayed because an abuse of process had arisen with the result that a fair trial could not be assured, must be 'reserved for an extraordinary case' (at [154]). Having concluded that this was such a case, I formed the view that justice required the stay of the prosecution. The Full Bench has taken a different view and, of course, its decision is binding. While in the ordinary course there is nothing unusual in a trial judge being overturned on appeal and then continuing to hear a case in accordance with the decision of the appeal bench, it is unusual for a criminal trial to be brought to an end because of the view taken by the trial judge that the prosecutor has refused to abide by its prosecutorial duties, with the result that there has been such an abuse, that a fair trial could not be assured by any steps available to be taken by the Court. 22 The reasons which I gave for the conclusions which I reached in the May judgment were firm ones and were expressed accordingly. That was necessarily so, given the nature of the questions which arose for determination and the circumstances in which they came to be argued. Had the conclusions been tentative, or the reasons for which they were reached tentative, the defendant's motion would have been dismissed. 23 The Full Court has taken the view that the hearing must continue, given that it came to a different view to that which I had reached on the evidence. As the judgment of the Full Court reveals, the question of whether the trial is a fair one, will, however, still be one which may arise again, as the trial continues. In those circumstances, having published the reasons for which I came to the view that a fair trial could not be assured in this case, which have been rejected by the Full Bench, I accept that a lay observer may reasonably conclude that this would preclude me from approaching the balance of the trial and the matters which may arise for determination during the trial, with an impartial mind. 24 I do not accept the submission that a lay observer may reasonably conclude that any aspect of what must be decided at trial, in order to determine whether or not the offences here in question were committed, has been prejudged. The question of whether or not the defendant was an employer is in issue. While the prosecutor relied on the observations made at [147] of the judgment, to support that submission, it must be recollected that what I was there dealing with, was how it was that the issue of whether or not the defendant was an employer came to be one which falls for decision in the case. 25 Given the defendant's initial concession, as I observed at [147], the prosecutor had a basis for a prima facie case when the charge was laid. Once the error as to the concession was raised, as I observed, 'the foundation' for that prima facie case disappeared, necessitating further investigation. The issue still remains alive in the proceedings, and so, as I later observed at [151] ' the controversy' will have to be determined on the basis of the evidence led at the trial. Those observations could not, in my view, lead any reasonable lay observer to the conclusion that there had been any prejudgment as to that matter. 26 The problem which led to the stay of the proceedings was concerned with the prosecutor's approach to the evidence, whereby this controversy was to be resolved by the Court, not the question of whether or not the defendant was an employer. 27 Despite having rejected one of the bases upon which the apprehended bias application was pressed, I am satisfied that in all of the circumstances that I have outlined, the proper course is for me to accede to the prosecutor's application. This is not to accede to the prosecutor's application 'on demand', but to accept that a fair-minded observer might reasonably entertain the apprehension raised, in these unusual circumstances. 28 It is therefore not appropriate that I deal with the defendant's motion for a stay of the proceedings, as to which the defendant asked that the motion be stood over, with liberty to apply. I accept that is an appropriate course in the circumstances and order accordingly. Orders 29 For the reasons given, the matter will be returned to the President for re-allocation.

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties

Cases Cited (7)