John Cahill v State of New South Wales - [2007] NSWIRComm 187 - NSWIRComm 2006 case summary — Zoe

NSWNSWIRComm

John Cahill v State of New South Wales

[2007] NSWIRComm 187

Industrial Relations Commission (NSW)|2006-05-23|Before: Boland J

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Court

Industrial Relations Commission (NSW)

Decision date

2006-05-23

Before

Boland J

Source

Original judgment source is linked above.

Judgment (115 paragraphs)

[1]

CITATION: John Cahill v State of New South Wales (Department of Community Services) (No 2) [2007] NSWIRComm 187

[2]

PROSECUTOR John Joseph Cahill PARTIES: DEFENDANT State of New South Wales (Department of Community Services)

[3]

Occupational Health and Safety - Interlocutory proceedings - Application by defendant to strike out application for order for abuse of process and invalid delegation of power to institute proceedings - Whether at the time of instituting the proceedings the prosecutor was in possession or command of sufficient admissible evidence capable of establishing each element of charge - Whether proceedings were commenced on 23 May 2006 for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006 - Whether prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings - Consideration of power to stay criminal proceedings where there is an abuse of process - Obligations on a secretary of an industrial organisation in instituting proceedings under the Occupational Health and Safety Act 2000 - Held defendant had not made out grounds in strike out motion - Motion dismissed CATCHWORDS: Practice and procedure - Occupational Health and Safety - Interlocutory proceedings - Application by defendant to strike out application for order for abuse of process and invalid delegation of power to institute proceedings - Whether at the time of instituting the proceedings the prosecutor was in possession or command of sufficient admissible evidence capable of establishing each element of charge - Whether proceedings were commenced on 23 May 2006 for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006 - Whether prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings - Consideration of power to stay criminal proceedings where there is an abuse of process - Obligations on a secretary of an industrial organisation in instituting proceedings under the Occupational Health and Safety Act 2000 - Held defendant had not made out grounds in strike out motion - Motion dismissed

[5]

Australian Competition & Consumer Commission v Mayo International Pty Ltd & Ors [1998] FCA 808 Barton and others v The Queen and others (1980) 147 CLR 75 Cahill v State of New South Wales (Department of Community Services) (2007) 161 IR 124 Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 Doney v The Queen (1990) 171 CLR 207 DPP v Shirvanian and another (1998) 102 A Crim R 180 Driscoll v The Queen (1977) 137 CLR 517 Environmental Protection Agency v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Environmental Protection Authority v Caltex Refining Co. Pty. Limited (1992) 178 CLR 477 Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128 Inspector Wade v Mid North Coast Area Health Service [2004] NSWIRComm 254 Jago v The District Court of NSW and others (1989) 168 CLR 23 John Holland Group Pty Ltd v Industrial Relations Court of NSW (2006) 153 IR 97 Kelly v The Queen (2004) 218 CLR 216 Maxwell v The Queen (1995) 184 CLR 501 CASES CITED: McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 Metaxas v Ferguson (1991) 4 WAR 272 Philip Giovannone (2001) 119 A Crim R 519 Phillip John Rapson & Anor v William Edwin Wright & Ors (Supreme Court of New South Wales, Matter No 13988 of 1995, 29 May 1998, Hamilton J, unreported) Regina v Cameron John Knight (New South Wales Court of Criminal Appeal, Matter No 060462 of 1988, 18 December 1990, unreported) Ridgeway v The Queen (1995) 184 CLR 19 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128 Smith v NSW Bar Association (1992) 176 CLR 256 The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 Walton v Gardiner (1992) 177 CLR 378 Whitten v Hall and another (1993) 29 NSWLR 680 Williams and others v Spautz (1991) 174 CLR 509 Williams v The Queen (1986) 161 CLR 278 WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd) (2001) 111 IR 362

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1 John Joseph Cahill, General Secretary of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("PSA"), has sought to bring a prosecution under s 8(1) of the Occupational Health and Safety Act 2000 ('the Act') against the Crown in the Right of the State of New South Wales in its capacity as the Department of Community Services ("DOCS" or "the defendant"). The prosecution stems from an incident that occurred on 24 May 2004 at the defendant's premises at Ballina, when it was alleged that employees of the defendant were exposed to risks to their health and safety as a consequence of the conduct of a client of the defendant who threatened staff with a knife. One of the employees was alleged to have been stabbed in the incident and another to have suffered psychological injuries. 2 The defendant has moved the Court to dismiss the proceedings or, in the alternative, to permanently stay the proceedings. The grounds and reasons in support of the motion were that: 1. As at 23 May 2006 when these proceedings were initiated the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged. 2. The inescapable inference from the objective facts as to the state of the prosecution brief as at 23 May 2006 and all the circumstances surrounding institution of these proceedings is that they were commenced on that day for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006. 3. The process of this Honourable Court was thereby employed for a purpose other than the attainment of the claim in the action. This was an abuse of the process of this Honourable Court. 3 Against the prosecutor's objection, the defendant sought to amend its notice of motion by inserting a fourth ground, namely: 4. The prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings. 4 In Cahill v State of New South Wales (Department of Community Services) (2007) 101 IR 124 the Court held it was in the interests of justice to provide the defendant with the opportunity to make a case based on the alleged invalid delegation. Accordingly, leave was granted to the defendant to amend its notice of motion to include the fourth ground. 5 It now falls to the Court to decide whether there has been an abuse of process as alleged by the defendant and/or whether the prosecutor invalidly delegated his authority to decide to institute the proceedings against the defendant. EVIDENCE REGARDING COMMENCEMENT OF PROCEEDINGS

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Operated the Ballina CSC. At all material times, the defendant employed Mr Wilton and Ms Sherrington at Ballina CSC. At all material times, clients attended the place of work of the Department of Community Services ("DOCS") for the purpose of being interviewed by DOCS employees. On 24 May 2004 Mr Wilton and Ms Sherrington were working at Ballina CSC when at approximately 1.30 pm, excited and raised voices could be heard from the direction of the interview room. At this time Ms Sherrington was walking to the printer, which was adjacent to the interview room. Ms Sherrington observed a client, Ms Cheryl Cooper attacking Ms Kylie Philps, a Child Protection Caseworker. Another Caseworker, Ms Linda Williams attempted to intervene. Ms Williams stumbled out of the interview room, followed quickly by Ms Philps. Ms Sherrington observed this occurring, and noticed a tuft of Ms Philps hair on the floor of the interview room. Ms Sherrington observed that Ms Philps was bleeding and was visibly distressed. Ms Williams was attempting to talk to Ms Cooper. Ms Sherrington then moved between Ms Philps and Ms Cooper. The acting Manager, Client Services at the Ballina CSC, Ms Gwen Balchin moved towards Ms Cooper, and grabbed hold of her wrists. At this time Mr Wilton walked out of his office and into the open plan office area at Ballina CSC, walking in the direction of the switchboard. Mr Wilton then observed Ms Philps, on her knees and elbows with both hands covering her face. Mr Wilton noticed droplets of blood coming from the left side of her face. At the same time Mr Wilton saw Ms Balchin, struggling with Ms Cooper. The struggle took place up against the main entrance door to the open plan office area. Ms Balchin and Ms Cooper were facing each other. Mr Wilton observed that Ms Balchin was holding Ms Cooper by the forearms in an apparent attempt to restrain her. Ms Cooper was holding a knife in her right hand. Mr Wilton heard several workers in the area encouraging Ms Cooper to drop the knife. The struggle ended with Ms Balchin being pushed backwards by Ms Cooper. This was also observed by Ms Sherrington. Around this time Ms Sherrington said words to the effect of: "I am taking Kylie out of this". Ms Sherrington then took Ms Philps through into the area office, which is located immediately next to the Ballina CSC. At this time Ms Philps was bleeding and sobbing. Ms Cooper then stared at Mr Wilton for a couple of seconds, and then started to walk towards him. As Ms Cooper advanced towards Mr Wilton she had the blade of the knife pointed towards him and was chanting incoherently. The only word that Mr Wilton could understand was " Satan ". Ms Cooper looked very angry and determined. Mr Wilton then picked up a beanbag that was sitting beside him on the floor and held it out in front of him to discourage Ms Cooper from attacking him, or anyone else in the room. Ms Cooper then slowly backed into interview room 2. Mr Wilton entered the room after her. When Mr Wilton entered interview room 2, Ms Cooper was standing on the other side of a table that partially divided the room. Ms Cooper then threw the knife at Mr Wilton. The knife made contact with Mr Wilton's left forearm and bounced into the bean bag that he had dropped at the entrance of interview room 2. The blade of the knife that Ms Cooper threw at Mr Wilton was approximately four inches, or about 10 cm long. Mr Wilton picked up the knife and threw it towards the switchboard desk to remove it. At the same time Ms Cooper backed into the foyer area and walked out the front door of the building. Mr Wilton then walked back into the office area. Once Mr Wilton was in the office area he told staff to call an ambulance. Mr Wilton then walked out of the office and stood on the front steps of the building. Ms Cooper was sitting in her car, which was parked outside the office. Mr Wilton watched Ms Cooper for about 5 minutes, as he was concerned she may attempt to re-renter the building, at that time two police officers approached Ms Cooper. One of the Police Officers then approached Mr Wilton, he pointed to Ms Cooper and said words to the effect of: "She has assaulted someone with a knife". The Police Officer then walked back over to Ms Cooper, and the two Police officers each grabbed one of her arms to arrest her. Some time later, Ms Philps was wheeled out of the building on a stretcher by ambulance officers. At that time Ms Philps had bandages on the left side of her face. Ms Cooper was subsequently charged with this incident and convicted and is currently still in gaol. As a result of a series of prior incidents and the incident on 24 May 2004, Mr Wilton was diagnosed with psychological injuries which manifested in both physical and psychological symptoms. Arising from his psychological injuries, Mr Wilton receives on going treatment in the form of weekly counselling sessions and taking daily anti-depressant medication. Mr Wilton lodged a workers compensation claim which was accepted. From May 2005 until February 2006 Mr Wilton was absent from work two days a week to aid in his recovery. In February 2006 this was reduced to one day per week. 8 It was further alleged by Mr Cahill in his supporting affidavit that: DOCS was required to carry out a risk assessment in accordance with its Risk Assessment Policy Guidelines and Procedures document No. 96/65 dated 17 May 1996, and did not do so in this case. DOCS were aware of the risk of trauma to its staff as outlined in its policy document, Procedures for the Management of Threats to Staff document No. 95/148 dated 29 December 1995. The definition of "trauma" in this document is as follows: "Is a psychic and physical phenomena which may occur when a person is exposed to an event that threatens danger and/or anxiety, and can be created by being the victim or witness to an event." DOCS were aware of the specific known risk of an assault as defined in its policy document entitled Departmental Policy on the Effective Management of Client Behaviour to Prevent Injury or Illness to Staff, document No. 92/136 dated 20 November 1992. The definition of "assault" in this document is as follows: " The unlawful physical attack of one person on other; or a threat to inflict hurt upon another person, where there appears to be the ability to carry out that threat. The types of "assault" covered by this document include:

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12 On 1 September 2004 Mr Saunders sent a memorandum to Mr Cahill headed "Report on Stabbing Incident at Ballina CSC". In his memorandum Mr Saunders described the incident and its aftermath based on discussions and interviews by Mr Saunders with staff at Ballina. Mr Saunders stated in his memorandum: Following the interviews I conducted with staff and other, I believe that both the Department and Management failed to protect the health and safety of their staff by not having policies and procedures in place to prevent this type of incident occurring. There was not an adequate risk assessment carried out by the Management, which would have highlighted the lead up events and in turn would have allowed Management a better opportunity to assess the dangers and take preventative action. RECOMMENDATION: That the PSA seek legal advice from Jones Staff and Co in relation to the possibility of successfully prosecuting the Department and Management of the Department of Community Services under the Occupational health and Safety Legislation. 13 It was Mr Cahill's evidence that Mr Steve Turner, Assistant General Secretary of the PSA, approved the request for legal advice on 2 September 2004. 14 On 25 July 2005 the General Secretary reported to the PSA's Executive on the Ballina incident. He advised that the Association was awaiting advice from its lawyers. It was recommended: That the report regarding the prosecution of DOCS under the OH&S Act be received and noted, and that any report to Central Council on this matter be held over pending advice from the Association's legal advisors. 15 It appears that the Association's lawyers had sought further information regarding the Ballina incident and it was provided at some time during the second half of 2005. On 11 January 2006, Mr Nick Player, an organiser with the PSA who for a short time took on the responsibility for occupational health and safety, wrote to Mr Turner advising him that Ms Alison McRobert, a solicitor with Jones, Staff & Co (the Association's lawyers), had sought instructions to obtain an urgent opinion from counsel regarding a prosecution. Mr Player noted in his memorandum to Mr Turner: The urgency in this matter relates to the final possible date for prosecution being 24 May 2006. 16 The memorandum had the following notation on it in handwriting: The opinion required is should the application go ahead and if so would the result be a win for the Association.

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· had meetings with the Associations' lawyers and Mr Docking of Counsel; · had obtained good advice from Brendan Docking and our lawyers; · was collecting information for the prosecution; and · was obtaining witness statements from Ballina DOCS workers for use in the prosecution proceedings. 20 On 7 March 2006, a conference took place at the offices of Jones Staff & Co to discuss the prosecution. This meeting was attended in person by counsel, Ms McRobert and Mr Wilson, with Mr Ray Wilton and Dr Pam Veivers calling in on teleconference. Dr Veivers took over Mr Saunders' role at the PSA when he left. Mr Wilson stated that he understood one of the purposes of the teleconference was to confirm that Mr Wilton would have to give evidence in any prosecution and that he was willing to do so and clarifying what evidence Mr Wilton could give in relation to the defendant's acts or omissions that were by then the focus of the investigation. Mr Wilton subsequently faxed to Mr Wilson a copy of the statement given by Mr Wilton to NSW Police on 24 May 2004 regarding the incident. 21 Mr Wilson further stated that: I first interviewed Mr Wilton away from Ballina CSC for the purpose of taking a statement on 13 March 2006. I followed the procedure I described above. I used my office computer whilst in my office as opposed to my laptop computer that I used whilst in Ballina. Mr Wilton answered questions that I asked him. I then typed the statement as Mr Wilton provided the answers. During this process, I would show Mr Wilton what I had written and ask for his comments to ensure that the statement I was taking was a true and correct record. 22 Mr Wilton said in his evidence: In relation to the PSA's investigation, I agreed by no later than March 2006, to assist the PSA in that investigation and to give evidence as a prosecution witness. My agreement to be a prosecution witness has continued since that time. 23 On 14 March 2006 Mr Wilson sent to Mr Cahill a memorandum with a copy to Ayshe Lewis, Principal Industrial Officer. The memorandum was in the following terms: Memorandum To: John Cahill, General Secretary From: Andrew Wilson, A/Senior Industrial Officer Health and Welfare CC: Ayshe Lewis, Principal Industrial Officer Level 6 RE: OH&S Prosecution of DOCS due to Ballina Stabbing Incident

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(g) It is my usual experience that when I have submitted an internal memorandum to the General Secretary for approval, and it is retuned to me, the approval on the memorandum looks like a scrawl therefore the signature on annexure AW2 was consistent with my usual experience. 25 As a consequence of the revelation that it was not Mr Cahill's initials on the memorandum of 14 March 2006, counsel for the prosecutor sought, and was granted, leave to strike out statements in Mr Wilson's affidavit of 17 November 2006 as follows: The factually correct position is that approximately 2 to 3 days after 14 March 2006, the General Secretary approved the prosecution of DOCS for failing to ensure a safe system of work at the Ballina CSC and for failing to ensure that the working environment of staff was safe and without risks to health as per section 8(1) of the OHS Act. The reason I know this is correct is that the General Secretary gave the OK to this recommendation that I personally made on 14 March 2006. Annexed and marked " AW2 " is a copy of my internal memorandum dated 14 March 2006 that contains the subsequent written OK of the General Secretary . 26 In his affidavit sworn on 5 July 2007, Mr Cahill deposed in relation to the 14 March memorandum that: Annexed hereto and marked " JC6 " is a copy of a Memorandum from Andrew Wilson to me dated 14 March 2006. I understand that there has been some mistaken confusion about who approved that Memorandum by way of signing the bottom of the page. Although it was addressed to me as the General Secretary, this Memorandum was approved by Steve Turner. The word "OK" is written by Steve Turner followed by his signature. I recall that either shortly before or shortly after I had a general discussion with Steve Turner about the matter in which he told me that the legal advice we had requested was now to hand and our lawyers were recommending that we go through with the prosecution and we should do it. The signing of Steve Turner of annexure JC6 is consistent with the delegation of my powers to him to sign Memorandums requesting legal advice for the efficient running of the Association, and as a sensible office procedure. By the latter I mean that it is not practical for me to sign each and every Memorandum that is addressed to the General Secretary.

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29 On 28 April 2006, Mr Wilson sent to Ms McRobert an email to which was attached Mr Wilton's unsigned draft statement. Mr Wilson indicated in the email he would forward the attachments to the draft statement by the following Monday. Mr Wilson stated in his evidence these attachments were provided no later than 2 May 2006. The attachments included: a sketch of the layout of the Ballina office; the email from Ms Christopher to staff on 19 May 2004 warning them about Ms Cooper; various medical certificates provided by Mr Wilton relating to his psychological injuries received as a consequence of the incident on 24 May 2004; correspondence relating to Mr Wilton's compensation claim; and, a memorandum dated 21 July 2004 from the Regional Director of DOCS to managers regarding interim procedures for dealing with aggressive and/or violent clients together with relevant materials, eg., safety checklists. Mr Wilton's final statement was signed on 6 July 2006. 30 Ms Pisanos also made a statement, a draft of which was sent to her on 10 May 2006 when Mr Wilson asked her to review it and call him. Whether Ms Pisanos did call Mr Wilson is not known but her final statement was signed on 6 July 2006. Ms Garcia provided a statement that was formatted by Mr Wilson and set to Ms Garcia on 5 May 2006. Ms Garcia replied by email on the same day stating, "Yes, that looks fine". Ms Garcia's final statement was signed on 6 July 2006. Ms Sherrington also provided a statement that appears to have been settled by Mr Wilson on 15 or 18 May 2006. Ms Sherrington signed it on 7 July 2006. Ms Philps and Ms Meehan-Frost declined to make statements. Ms Williams indicated she would consider making a statement, but did not. In relation to Ms Balchin and Ms Christopher, Mr Wilson said he attempted to contact them for the purpose of obtaining a statement but was not successful. 31 In addition to the statements obtained by Mr Wilson, he also obtained, prior to 23 May 2006, various business records of the defendant pursuant to requests under s 81(c) and (d) of the Occupational Health and Safety Act. These relevantly included the following: (1) Incident reports made out by: · Linda Williams, a Child Protection Caseworker. On 20 May 2004 Ms Williams reported an incident involving a client of DOCS, Cheryl Cooper, using her car to ram other cars of community workers and then driving off. On 24 May 2004 Ms Williams, who was interviewing Ms Cooper at the Ballina CSC with Kylie Philps, described the attack on Ms Philps by Ms Cooper, noting that Ms Cooper had a knife in her hand and was hitting Ms Philps on the back. · Carol Garcia, who made a report on 18 May 2004 that at the Ballina Hospital she had been informed by Ms Williams and Ms Philps that Ms Cooper had said "I will kill her if I see her in the street. I'll come down to DOCS and sort her out." Under the heading "Preventative Action" Ms Glenda Christopher, the person to whom Ms Garcia made the report, wrote "Alert all staff, notify police, regional director, MCS. Be alert when coming and going from work." · Ms Kylie Philps, a Child Protection Caseworker who was allegedly the main victim of Ms Cooper's attack. Ms Philps described how she was struck in the face by Ms Cooper and stabbed three times in the back. · Ms Gwen Balchin, Acting Manager Client Services, who described how she confronted Ms Cooper after the attack on Ms Philps and how she was punched and had her hair pulled by Ms Cooper whilst Ms Cooper still held the knife. · Ms Rhonda Sherrington who stated that she and other workers had been threatened with a knife. (2) Copies of emails from Ms Christopher to staff and to Ms Balchin dated 19 May 2004 and described as of "high" importance. The emails referred to the incident at the Hospital when Ms Cooper made threats. Ms Christopher advised in the email that Ms Cooper was "very aggressive and threatening."

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36 The defendant's case was that the initiation of the prosecution against it was an abuse of process because as at 23 May 2006 the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged. The inescapable inference, it was contended, was that the proceedings were commenced for the purpose of avoiding the effect of subsection 107(1) of the Act, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006. Further, that the prosecutor did not make the decision to institute proceedings and invalidly delegated his authority in that respect. 37 The main points made in the defendant's case by its counsel, Mr P Skinner, may be summarised as follows: · The only signed statement of any prospective witness in the possession of the prosecution as at 23 May 2006 was a statement by Mr Wilton given to police on 24 May 2004. Mr Wilton did not, however, witness the alleged assault on Ms Philps and was only in a position to describe the aftermath. · The prosecution did not possess any statements from members of the staff (Ms Balchin, Ms Williams and Ms Philps) who witnessed the alleged assault. · The statements provided by Mr Wilton, Ms Sherrington, Ms Pisanos and Ms Garcia were not signed as at 23 May 2006 and, moreover, none of these persons would appear to have been placed a risk on 24 May 2004. · The interview transcripts attached to the statement of Mr Wilson were not admissible. Whilst s 87 of the Evidence Act 1995 provides for an exception to the hearsay rule, s 82 limits the admission exception to the hearsay rule to first-hand evidence of the admission. Mr Wilson did not conduct the interviews, Mr Saunders did but he did not provide a statement to the prosecution. If the transcripts of interview were to be relied upon by the prosecutor as admissions the interviewees had to be called: WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370. · Whilst the interviews were videotaped the prosecution was not able to locate the tapes until late 2006. · The duties and responsibilities imposed on Mr Cahill, expressly and by implication under the Act, were akin to the duties and responsibilities imposed on a public prosecutor as set out in the "Prosecution Policy of the Commonwealth - Guidelines for the making of decisions in the prosecution process", "Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales" and "Compliance Policy and Prosecution Guidelines" of the WorkCover Authority of NSW. · Specifically, the NSW DPP guidelines provide: The question whether or not the public interest requires that a matter be prosecuted is resolved by determining: (1) whether or not the admissible evidence available is capable of establishing each element of the offence;

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(3) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest. · Not only was there no prima facie case in law, but even if there were, there was "no reasonable prospect of conviction" until the prosecution had signed statements, thus being able to hold their witnesses to their proofs, and that any rational prosecutor operating in accordance with accepted guidelines would have waited till they had those signed statements before initiating the prosecution. The prosecutor was not able to wait for signed statements because he had run out of time; if there had been no time limit the proceedings would not have been instituted until the prosecution had in its possession signed statements. · Instituting the prosecution where there is no reasonable prospect of a conviction because the prosecution lacked not only admissible evidence but also compellable witnesses in circumstances, is an abuse of process. · The question of whether criminal proceedings should be permanently stayed was to be determined by a weighing process: Phillip John Rapson & Anor v William Edwin Wright & Ors (Supreme Court of New South Wales, Matter No 13988 of 1995, 29 May 1998, Hamilton J at 27) referring to Walton v Gardiner (1992) 177 CLR 378 at 395-6 per Mason CJ, Deane and Dawson JJ. The weight of the evidence indicated that the prosecutor was forced to institute proceedings on 23 May 2006 because time had run out and proceedings were not instituted for the reason that the prosecutor was satisfied there existed at the time a prima facie case and reasonable prospects of a conviction. · Mr Cahill did not make a decision to institute the prosecution. It was a collective decision or a decision by Mr Turner on 14 March 2006 in response to a request from Mr Wilson. Both Mr Wilson and the prosecutor's lawyers initially understood the "OK" on the memorandum to be that of Mr Cahill and proceeded on the basis that he had thereby made a decision to prosecute. It was only when Mr Wilson learned that he had been mistaken that reliance was no longer placed on the "OK" but no credible alternative basis for contending Mr Cahill made the relevant decision was put forward. The signing of the application for order was not a manifestation of a decision to institute proceedings. · It would be unfair to put the defendant on trial in the absence of a prima facie case against it: Barton and others v The Queen and others (1980) 147 CLR 75. · Whitten v Hall and another (1993) 29 NSWLR 680 is on point. There it was held that it was an abuse of process to lay an information before a decision to prosecute was made and to delay the issue of the summons to allow further information to be collected. CASE FOR THE PROSECUTOR

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c. Proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail ( Walton v Gardiner at 392 - 393, 410, 411). · The defendant is unable to discharge these onuses. What may constitute a proper foundation for a prosecution can be distilled from Williams v The Queen (1986) 161 CLR 278 at 300: In the ordinary case of an arrest on suspicion, the arresting officer must have satisfied himself at the time of the arrest that there are reasonable grounds for suspecting the guilt of the person arrested ( Dumbell v. Roberts [1944] 1 All ER 326, at p 329), although the grounds of suspicion need not consist of admissible evidence (see Hussein v. Chong Fook Kam [1970] AC 942, at pp 948-949). If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution (see Mitchell v. John Heine & Son Ltd (1938) 38 SR (NSW) 466, at 469; Commonwealth Life Assurance Society Ltd. v. Brain (1935) 53 CLR 343, at 382; Glinski v. McIver [1962] AC 726, at 766-767). · Alternatively, even adopting the test posited in ground 1 of the defendant's motion, the prosecution as at 23 May 2006 possessed or commanded sufficient admissible evidence capable of establishing each element of the offence as charged. · The defendant argues, "the material in the prosecution's brief cannot support to prima facie level the allegations the elements of the offence as charged". Relevantly on "to prima facie level", Doney v The Queen (1990) 171 CLR 207 at 214 said: It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

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· As at 23 May 2006, the prosecution possessed and commanded much more than tenuous or inherently weak or vague evidence (although this level suffices under the defendant's test). · In the case of corporations, their books and documents constitute the best evidence of their business activities and transactions: Environmental Protection Authority v Caltex Refining Co. Pty. Limited (1992) 178 CLR 477 at 504 per Mason CJ and Toohey J. The prosecutor had extensive business records relevant to the prosecution in its possession prior to 23 May 2006. These included the signed incident reports from employees present at the time of the alleged incident and who were eyewitnesses. · Mr Wilton had indicated prior to 23 May 2006 his willingness to testify in the proceedings and to give an eyewitness account. · The prosecution had in its possession, prior to 23 May 2006, videotapes of interviews with 14 employees, transcriptions of those interviews as well as the statements taken by Mr Wilson from a number of those employees who were eyewitnesses. It is wrong to suggest in those circumstances that there was not sufficient admissible evidence available from compellable witnesses. · In respect of employees relevant to the prosecution case who were interviewed on videotape but did not make statements, it is open for counsel to summons those witnesses to give evidence. · There is no duty on the prosecutor to call the assailant, Ms Cooper: Regina v Cameron John Knight (New South Wales Court of Criminal Appeal, Matter No 060462 of 1988, 18 December 1990, unreported, Wood J at 42). · The defendant's contention that the statements made by employees regarding the incident were not admissible under s 87 of the Evidence Act was properly a matter for the trial judge to determine. However, Inspector Wade v Mid North Coast Area Health Service [2004] NSWIRComm 254 is authority for the proposition that s 87 requires a court to admit a representation if it is reasonably open to find that the person was an employee of the party and the representation related to a matter within the scope of the person's employment or authority. Mr Wilton was the defendant's Manager Casework at Ballina. Mr Wilton provided a statement as to what he witnessed on 24 May 2004 in his capacity as manager. Further, Mr Wilson took statements from employees who witnessed the incident on 24 May 2004. Their representations related to matters within the scope of their employment. Mr Wilson's representations were first hand hearsay and not excluded by s 82 of the Evidence Act. See also WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at [13]-[16] and s 60 of the Evidence Act.

[72]

41 Counsel submitted the Court should follow Metaxas v Ferguson (1991) 4 WAR 272 where White AJ held, inter alia, there was no abuse of process as the appellant had decided to proceed with the complaints by the date he swore to them and the fact that the appellant was prepared to entertain submissions as to a possible reason for not proceeding should not have been held to negative that decision. 42 Mr Docking submitted that there was no abuse of process because the evidence in the present proceedings was that Mr Cahill did not delegate the decision to institute proceedings against the defendant and that it was Mr Cahill who made that decision, a fact that he confirmed in cross-examination. Counsel submitted there was no evidence from another witness contradicting the evidence of Mr Cahill. 43 Further, it was submitted, the fact that Mr Wilson met with representatives of the defendant after the application for order had been filed in order for them to explain their position, should not be taken as an indication that no final decision had been taken to prosecute: see Metaxas. 44 Reference was made to WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd) (2001) 111 IR 362. It was submitted that Mr Cahill was in a much stronger position to make a verifying affidavit than Inspector Stewart in Siemens Dematic, yet Haylen J in that case held at [74]-[75] that proceedings were validly instituted. 45 Mr Docking referred to what he understood to be a submission by the defendant that in determining whether a prima facie case existed, the Court should examine the prosecution brief. Mr Docking contended this was wrong, there being Court of Appeal authority for the proposition that it is not open to the Court to even consider a verifying affidavit to determine whether a prima facie case exists: McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127; John Holland Group Pty Ltd v Industrial Relations Court of NSW (2006) 153 IR 97. 46 It was submitted for the prosecutor that defects in an investigation prior to the laying of a criminal charge did not constitute an abuse of process: Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128 at [43]-[48]. 47 As to the defendant's contention that the statements made by employees should have been signed prior to 23 May 2006, Mr Docking submitted there was no requirement for statements to be signed for them to be admissible where the maker of the statement has acknowledged or adopted the document as such: see Kelly v The Queen (2004) 218 CLR 216; Driscoll v The Queen (1977) 137 CLR 517 at 540-541 per Gibbs J. The statement makers in the present proceedings each acknowledged their statement was true and correct to the best of their knowledge and belief. CONSIDERATION

[77]

53 There is High Court authority for the proposition that a decision to prosecute is not susceptible to judicial review. In Maxwell v The Queen (1996) 184 CLR 501 Gaudron and Gummow JJ stated at 534 that: It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute [ Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46; Barton v The Queen at 94-95, 110] to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what. 54 In Barton v The Queen, Gibbs ACJ and Mason J said at 96: The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial. 55 However, it is apparent that a court always retains power to prevent abuse of its process including its criminal process: Maxwell v The Queen at 535, Barton v The Queen at 95-96, 104, 107 109, 116; Jago at 25, 56, 74-75. 56 In Barton v The Queen, Gibbs ACJ and Mason J stated at 96: There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place. As a result of the speeches in Connelly v. Director of Public Prosecutions [1964] AC 1254 and Director of Public Prosecutions v. Humphrys [1977] AC 1, it is now established in the United Kingdom that although a judge has no power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought, the courts have a general power to prevent unfairness to the accused, even to the extent of preventing an abuse of process resulting from the prosecution of proceedings brought without reasonable grounds. 57 In Maxwell, Dawson and McHugh JJ stated at 512: Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial: see Barton v The Queen (1980) 147 CLR 75 at 90-91, 96. 58 In McConnell Dowell Constructors one of the questions concerned "Is the Director General's Consent Reviewable?" It was said: [24] As Gibbs ACJ and Mason J said in Barton v The Queen (1980) 147 CLR 75 at 94-95: It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced … though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. [25] The significance of the distinction between decisions involved in a prosecution process and issues concerned with the abuse of a court's process has been emphasised by Gaudron , Gummow and Hayne JJ in Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 579, where their Honours said at [21]: The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court's processes (which are the province of the courts) is of fundamental importance. [26] Their Honours went on to quote an extract from the judgment of Gummow and Gaudron JJ in Maxwell v The Queen (1996) 184 CLR 501 at 534 where their Honours identified a number of "decisions involved in the prosecution process" which their Honours concluded were "of their nature insusceptible of judicial review". It may well be that decisions relating to consent to prosecute pursuant to a statutory requirement of such consent, should be added to their Honours' list. It is not necessary or desirable to determine that in this case.

[78]

[27] However, nothing in the reasoning in Maxwell or DPP (SA) v B restricts the scope of considerations relevant to the exercise by the Court of a power to control abuse of its process. It may be that, in an appropriate case, a defect in the process of seeking consent could be relevant to the exercise of such a jurisdiction by a court. However, nothing in the submissions in this Court suggests any defect of a character relevant to abuse in this case. 59 In Rockdale Beef the claimant sought the intervention of the Court of Appeal in connection with allegations that there had been a defective process of investigation before the laying of the charge, thereby giving rise to an alleged abuse of process. Spigelman CJ at [46] observed that no authority was referred to that suggested that the Court's inherent jurisdiction to protect the administration of criminal justice could extend to the conduct of the investigations by executive agencies. His Honour considered the claimant's case was misconceived. However, his Honour's observations need to be considered in the light of the claimant's failure to make out a case based on existing authority, and they should not to be taken, in my opinion, as authority for the proposition that the Court does not have an inherent power to consider whether a defective process of investigation before the laying of the charge, gives rise to an abuse of process. As the Court of Appeal observed in McDonnell Dowell Constructors, nothing in the reasoning in Maxwell or DPP (SA) v B restricted the scope of considerations relevant to the exercise by the Court of a power to control abuse of its processes and that in an appropriate case a defect in the process of seeking consent to prosecute could be relevant to the exercise of such a jurisdiction by a court. In the present proceedings, it is contended by the defendant that, in effect, the process (which included investigations) culminating in the filing of the application for order was defective in that it did not provide the prosecutor with sufficient admissible evidence capable of establishing each element of the offence as charged.

[84]

62 I would make the observation, firstly, that the guidelines relating to the conduct of criminal prosecutions relied upon by the defendant do not apply, in terms, to the prosecutor in this case. However, I am of the view that Mr Cahill, as the secretary of an industrial organisation of employees with authority to prosecute under s 106(1)(d) of the Occupational Health and Safety Act, was acting in a role more akin to a public prosecutor rather than a private informant and, consequently, it would be expected that any proceedings would not be initiated by him unless the evidence supported a prima facie case and that he believed there was a reasonable prospect of conviction. The PSA is an organisation with a large membership throughout the New South Wales public sector. As the secretary of that union, Mr Cahill has an authority to prosecute unimpeded by any requirement to obtain prior written consent in relation to offences under a statute with important public policy objects - for example, "to secure and promote the health, safety and welfare of people at work": s 3(a). Mr Cahill would not, in most cases, have any personal interest in any breach and no personal knowledge of the persons involved or alleged events. He would necessarily have to rely on information provided to him and advice, including legal advice, before instituting proceedings. In instituting proceedings Mr Cahill would be performing an important public duty. 63 I would also make the observation that a breach, per se, of prosecutorial ethics, practice and procedure in instituting or conducting a criminal prosecution will not necessarily amount to an abuse of process. Whether or not a prosecutor acted in accordance with prosecutorial guidelines applicable to executive agencies would not be determinative of whether an abuse of process had occurred. 64 I think the reliance by the defendant on such guidelines that require a prosecutor to determine whether a prima facie case existed and whether there was a reasonable prospect of a conviction, is essentially irrelevant to the question of whether there was an abuse of process in this case. The obligations on Mr Cahill, or his duty in instituting a prosecution under the Occupational Health and Safety Act, might be centrally relevant in determining whether the prosecution was properly brought, but it could only be marginally relevant in determining whether the conduct of the prosecutor, in instituting the proceedings, was such that it involved unacceptable injustice or unfairness thereby leading to an abuse of the Court's process. First and third grounds of defendant's motion

[87]

Unsigned statements · Unsigned statements of Mr Wilton and Ms Garcia, Ms Pisanos, Ms Sherrington. Each of the statement makers indicated that their statement accurately set out the evidence which they would be prepared, if necessary, to give in court, that the statement was true to the best of their knowledge and belief and that they would be liable to prosecution if there was any false statement. · The statements were taken by Mr Wilson. Mr Wilton's unsigned statement reflected his signed statement to a significant degree with additional material going to the absence of a systematic risk assessment prior to the incident, the absence of guidelines concerning interviewing of violent clients, the absence of a written policy concerning the use of the duress alarm, other alleged shortcomings in the defendant's occupational health and safety procedures, steps taken by the defendant following the incident on 24 May 2004 and details of his illness allegedly caused by the incident and the treatment of that illness. Ms Garcia's statement described how she talked with Ms Cooper on 16 May 2004 at the Ballina Hospital and how she assessed Ms Cooper to be "potentially violent". Ms Pisanos stated that she saw Ms Philps come out of the interview room at the Ballina office where the alleged attack took place. She stated she saw Ms Balchin struggle with Ms Cooper while Ms Cooper held a knife in her hand. She stated she saw Mr Wilton confront Ms Cooper. Ms Pisanos referred to the alert that is transmitted to staff via email when clients known to become violent are visiting the office or are in the area. Ms Sherrington stated she saw Ms Philps come out of the interview room and that Ms Philps was bleeding and distressed. Ms Sherrington said she moved between Ms Philps and Ms Cooper. She stated she saw Ms Balchin grab hold of Ms Cooper by the wrists. She stated she saw Mr Wilton confront Ms Cooper. Ms Sherrington described occupational health and safety protocols and procedures that she stated were in place prior to and following the incident on 24 May 2004.

[101]

· The staff at Ballina CSC, including Mr Wilton, were not informed or warned that Ms Cooper would be attending the Ballina CSC on 24 May 2004. · There was no written policy or procedure in place to prevent Ms Cooper from attending the Ballina CSC on that day. Prior to 24 May 2004 a work practice had developed at the Ballina CSC whereby potentially violent clients were interviewed in the interview room next to the administration area of the office. This was done so that in the event of an incident a member of the administration staff could contact the Police. Also prior to this incident potentially violent clients were occasionally interviewed at Ballina Police Station, or a security guard was engaged to protect the workers whilst the interview was taking place. · During May 2004, but prior to the incident on 24 May 2004, Ms Cooper made death threats against one of the staff members. On 19 May 2004 an email was circulated within the Ballina CSC informing staff that Ms Cooper posed a risk of aggressive and threatening behaviour towards staff. On 21 May 2004 it was reported that Ms Cooper was displaying bizarre behaviour whilst sitting in her car outside the Ballina CSC. On that day Ms Cooper deliberately drove her car into another car, outside the Ballina CSC. This incident occurred directly after Ms Cooper had left the office following an interview with members of the Child Protection Team. · There was no security guard or police officers present at the Ballina CSC on 24 May 2004. · There was no adequate emergency system in place including but not limited to there being no departmental policy about the use of duress alarms; or procedure for responding to a duress alarm once it had been activated, or emergency procedures in place in relation to violence by clients. 76 As I have already stated, on the face of it there is nothing to suggest Mr Wilton's unsigned statement is inadmissible. Further, it is very clear that Mr Wilton maintained throughout a strong interest in the prosecution and a firm commitment to give evidence for the prosecution. The email circulated within the Ballina CSC informing staff that Ms Cooper posed a risk of aggressive and threatening behaviour towards staff, and the incident report regarding Ms Cooper's alleged bizarre behaviour on 21 May 2004, may well be admissible as business records of the defendant. Element 3 - One or more of the defendant's employees was exposed to a risk to their health, safety or welfare, whilst at work 77 What appear to be business records of the defendant refer to the potential for clients to assault members of the defendant's staff. This was done in the context of policies to manage client behaviour to prevent injury or illness to staff. Other documents that may be regarded as business records included the incident reports referred to earlier relating to Ms Cooper's threats to kill Ms Garcia. In addition, Mr Wilton in his unsigned statement stated that as Manager Casework he had been advised of Ms Cooper's threat to kill Ms Garcia and how she had crashed into another vehicle. He said he had formed the view that Ms Cooper had a predisposition to hurt, injure or even kill people and that she posed a risk of violence to staff.

John Cahill v State of New South Wales

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