Inspector Wolf v Rockdale Beef Pty Ltd and Ors

DEFENDANT: Riverina Agency Contracting Services Pty Limited (ACN 075 022 445)

PROSECUTOR: WorkCover Authority of New South Wales (Inspector Wolf)

DEFENDANT: Rockdale Beef Pty Limited (ACN 003 789 991)

FILE NUMBER(S): IRC 6126, 6127 and 6128 of 20032006

CATCHWORDS: Occupational Health and Safety - notice of motion - apprehended bias - trial permanently stayed at first instance - abuse of process - overturned on appeal - reasonable apprehensionof bias by lay observer - orders accordingly

LEGISLATION CITED: Occupational Health and Safety Act 2000

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 (6 December 2006) David's Distribution Pty Ltd v National Union of Workers (1999) FCR 463 CASES CITED: Kwan v Kang & 2 Ors [2003] NSWCA 336 Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 169 Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 289

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

DEFENDANT IN IRC 6128 OF 2006 Mr GJ Hatcher of counsel SOLICITORS: Terrett Lawyers

Matter No IRC 6126 of 2003 INSPECTOR ROSS WOLF v NAIQ PTY LIMITED Prosecution under section 10(2) of the Occupational Health and Safety Act 2000 Matter No IRC 6127 of 2003 INSPECTOR ROSS WOLF v RIVERINA AGENCY CONTRACTING SERVICES PTY LIMITED Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

Matter No IRC 6128 of 2003 INSPECTOR ROSS WOLF v ROCKDALE BEEF PTY LTD Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT

1 In a judgment given on 27 May 2005, I dealt with a motion filed by the defendant, Rockdale Beef Pty Ltd, seeking orders that a prosecution brought under s 8 of the Occupational Health and Safety Act 2000 be permanently stayed as involving an abuse of process. (See Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 169.) I concluded that the course adopted in the proceedings by the prosecutor was such that a fair trial could not be assured, but acceded to a request made by the prosecutor that reasons be given before orders were made, so as to preserve the possibility of the prosecutor having a case stated on various of the matters which had arisen for determination during the course of the proceedings. 2 A number of questions of law were later referred to the Full Court for its consideration. (See Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 289.) Judgment in the reference was given on 31 August 2006 (See Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280.) The matter was remitted to me to be dealt with in accordance with the reasons there given. 3 The prosecutor later made an application that the hearing not proceed before me, on the basis of apprehended bias. On 6 December 2006, a motion was filed seeking that:

The Honourable Justice M. Schmidt to excuse herself from the trial, and any other hearing of the charges in these proceedings.

4 The motion was supported by an affidavit sworn by Margaret Simpson, a solicitor of the WorkCover Authority of New South Wales. 5 For its part, the defendant sought a stay of the proceedings because it had commenced proceedings in the Court of Appeal, seeking that the judgment of the Full Bench be quashed, or that the Court be prohibited from further hearing the proceedings. Its motion was filed on 9 November and was supported by an affidavit sworn by Peter Anthony Terrett, the defendant's solicitor. A hearing in the Court of Appeal has now been fixed for 28 March 2007. 6 The High Court recently reiterated the law applicable to an apprehended bias application. In Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55 (6 December 2006) it was observed by Kirby and Crennan JJ at [110] to [112] that: [110] The appeal involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy [119] in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ...

[111] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits."

[112] In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the "second step" in Ebner v Official Trustee in Bankruptcy [120]) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [121]: "Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly , Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."

[113] Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case[122]. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias[123].

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.

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. 11 These observations led me to conclude:

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. 12 I further concluded:

156 This prosecution, in reality, proceeds on a basis inconsistent with the obligations imposed on a prosecutor, including the obligation to disclose exculpatory material and to fairly put the relevant material before the Court in its case, as discussed in Tran .

157 Perhaps it might have been possible for the prosecution to consider, as in Jago , firstly whether, in all the circumstances, it wished to continue pressing this charge. If it did, to put the defendant on notice of the additional material upon which it intended to rely at the trial, which have now come to its attention through the voir dire process. Such an exercise, if approached on a basis which sought to ensure that the prosecution met its obligation to put the relevant material before the Court as to the matters here in issue, might have addressed the problems which have been revealed.

158 The prosecution however, persisted with its view that firstly, the question of whether the defendant was an agent for the partnership is irrelevant to the charge and secondly, that it was a matter for the defendant to tender material going to show that it undertook various matters as an agent, as a part of its defence. That being so, I am satisfied that a fair trial cannot be assured, given the course upon which the prosecution has embarked and proposes to proceed.

159 The defendant is not obliged to go into evidence. It is for the prosecution to bring forward and prove to the requisite degree, the various factual matters which underpin the contested elements of the offence alleged. This cannot be done if the relevant material, both that pointing to the case the prosecution seeks to make out and that which does not, is not put before the Court in the prosecution case. This includes the question of whether it was the defendant, or the partnership, which was the employer, whose place of work and during the course of whose undertaking, the risk in question arose.

13 The Full Bench came to a contrary view, observing at:

84 There may be some legitimate basis for criticism of the prosecution for not being in the position to deal with the material and that criticism stems from what her Honour obviously considered to be the inadequate pre-trial investigations conducted by the prosecution. We note, in passing, her Honour was also critical of the defendant, as it had to "accept its own share of responsibility for what occurred to the point of the charge being laid": [109].

85 Whatever criticisms may be made of the prosecutor in relation to the pre-trial investigations, this is not a case of non-disclosure. The evidentiary material that the defendant asserted should be tendered by the prosecution was material in the possession of the defendant. The defendant's complaint was that the prosecution had sought impermissibly to avoid its prosecutorial obligations in respect of the case it had to make out by refusing to tender material relating to the existence of the agency and leaving it to the defendant to raise as a defence.

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:

In applying this test, it is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342, at p 352 : "It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [14] and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way."?

19 The observations of the Full Federal Court in David's Distribution Pty Ltd v National Union of Workers (1999) FCR 463 at [131] were also pointed to: There are two further points which should be particularly noted in the context of the present appeal. In the first place, the High Court has repeatedly warned that a judge should not accede to an application for disqualification, as it were, on demand. That would involve a failure to shoulder a burden of the judicial office. Mason J made the point strongly in Re JRL at 352: "Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

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.

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