Maurice Michael O'Sullivan v The Crown in the Right of the State of New South Wales - [2003] NSWIRComm 74 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

Maurice Michael O'Sullivan v The Crown in the Right of the State of New South Wales

[2003] NSWIRComm 74

Industrial Relations Commission (NSW)|2003-07-01|Before: Walton J, Ms J, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Walton J, Ms J, Mr J

Catchwords

11/15/2001
11/22/2001
02/01/2002
04/02/2002

Source

Original judgment source is linked above.

Catchwords

11/15/200111/22/200102/01/200204/02/200204/03/200205/28/200206/04/2002 DATE OF JUDGMENT: 03/31/2003

Judgment (246 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Maurice Michael O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 74 PROSECUTOR Maurice Michael O'Sullivan PARTIES : DEFENDANT The Crown in the Right of the State of New South Wales (Department of Education and Training) FILE NUMBER: IRC 607, 608, 609, 610, 611 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Assault of teachers aide special at special purpose school - Charges as to failures in relation to human resources, information, training, counselling and equipment - Plea of not guilty - Findings of fact - Incident occurs during teachers strike - Information in relation to students - Functional assessment of students - Human resources at school - Duress alarms - Training arrangements - Relevant general principles - Contention risk arose before alleged failures - Causal nexus - "unpredictable" or "uncontrollable" risk - Nature of risk - Manner employer exposes employee to risk - Unnecessary to eliminate entire risk - Particular aspects of charges - Jones and Dunkel issues - Defences - Offences in Matter Nos. IRC607, 608 and 609 of 2001 proven - Defendant not guilty of offences in Matter Nos. IRC610 and 611 of 2001 - Matter to be set down for sentence. LEGISLATION CITED : Occupational Health and Safety Act 1983 s15(1) Anti-Discrimination Act 1977 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Drake Personnal Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Dyers v The Queen (2002) 192 ALR 181 Environmental Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 Haynes v CI&D Manufacturing Pty Ltd (1994) 60 IR 149 CASES CITED : Jones v Dunkel (1959) 101 CLR 298 R v Riscuta, R v Niga [2003] NSWCCA 6 WorkCover Authority of NSW (Inspector Bernard) v Rail Infrastructure Corporation (2001) 109 IR 209 WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust.) Pty. Ltd (No 1) (1999) 101 IR 253 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State Police of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 1) (1999) 91 IR 119 HEARING DATES: 11/14/2001; 11/15/2001; 11/22/2001; 02/01/2002; 04/02/2002; 04/03/2002; 05/28/2002; 06/04/2002 DATE OF JUDGMENT: 03/31/2003

[18]

The defendant operated the Kurrambee School for Specific Purposes. 2. The defendant employed Lorraine Kay Griffiths, Janelle Crompton and Carmel Muggleton (the employees) as Teacher's Aides Special. 3. There was a potential risk to the health, safety and welfare of the employees, in that there was a risk of the employees being assaulted by student(s) demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. 4. On 9 February 1999, Ms Griffiths suffered assaults by student AK occasioning her physical and/or mental harm. 5. In or about March 1999, Ms Muggleton suffered assaults by student AK occasioning her physical harm. 6. The defendant's failures and/or omissions were any or all of the following: (a) Allowing the number of teachers and/or Teacher's Aides Special to comprise the available human resources. (b) Failing to provide additional human resources. 7. There was a causal nexus between the risk to the health, safety and welfare of the employee as dealt with in paragraph 3 above, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 6 above. 8. Additionally, or in the alternative, there was a causal nexus between any or all of the injuries to the employee as dealt with in paragraphs 4 and 5, and any, or all, of the aspects of the defendant's failures and/or omissions as deal with in paragraph 6. 5 The charge in Matter No. IRC 608 of 2001 was as follows: On 9 February 1999 at the Kurrambee School for Specific Purposes, Werrington, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Lorraine Kay Griffiths, in that there was not in place adequate emergency equipment to call for assistance contrary to section 15(1) of the Occupational Health and Safety Act 1983. 6 The particulars of that charge were: 1. The defendant operated the Kurrambee School for Specific Purposes. 2. The defendant employed Lorraine Kay Griffiths (the employee) as a Teacher's Aide Special. 3. There was a potential risk to the health, safety and welfare of the employee, in that there was a risk of the employee being assaulted by student(s) demonstrating aggressive and/or challenging behaviour and thereby suffering physical and/or mental harm. 4. On 9 February 1999 the employee suffered assaults by students SH and AK occasioning her physical and/or mental harm. 5. The defendant's failures and/or omissions were any or all of the following: (a) Allowing the employee to work in a classroom in which there was only an ordinary telephone system. (b) Allowing the employee to work in a classroom in which there was not fitted any form of duress alarm system. (c) Failing to provide the employee with a personal duress alarm. (d) Failing to provide the employee with a personal mobile telephone. 6. There was a causal nexus between the risk to the health, safety and welfare of the employee as dealt with in paragraph 3 above, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 5 above. 7. Additionally, or in the alternative, there was a causal nexus between any or all of the injuries to the employee as dealt with in paragraph 4 above, and any, or all, of the aspects of the defendant's failures and/or omissions as deal with in paragraph 5.

[26]

14 On 22 June 2001, the defendant pleaded not guilty to each of the charges and raised no objection to the prosecutions being heard together. On 14 November 2001, the prosecutor advised the Court that he did not intend to press the fifth particular of the charges in Matter Nos. IRC607 and 609, which asserted an assault suffered by Ms Muggleton. However, in response to issues raised by the defendant, the prosecutor advised that it did not intend to remove the earlier references in the charges to Ms Muggleton, to the effect that during the charge period she was an employee exposed to risk. Following the prosecution's opening submissions, the defendant agreed that, in view of the prosecution's stance, it would make submissions as to prejudice arising from any evidence extending beyond the particulars, if and when the need arose. No such submission was made by the defendant and the matter requires no further attention in this decision. 15 The defendant also made the preliminary submission that the last particular of each of the charges, alleging a causal nexus between injuries to employees and a failure by the defendant, raised an issue which was extraneous to liability under the Act. The correct issue for determination, the defendant submitted, was pleaded in the penultimate paragraph of the charges: whether there was a causal nexus between the risk and any failure by the defendant. When invited by the Court to resolve the issue, the defendant elected to raise it again during the course of the proceedings should the need arise. The issue was not raised again. The evidence 16 The Court was assisted by the evidence of two employees of the defendant who had been at Kurrambee for approximately twenty years: the Principal, Mr Harry Terry, and the victim of the assaults, Mrs Lorraine Griffiths, a Teachers' Aide Special. Three other employees of the defendant gave evidence: Dr Jennifer Stephenson, Assistant Principal at Kurrambee from 1997 to 1999, and Mr McKenzie and Mrs Sparrow, both teachers at Kurrambee. Dr Stephenson had been head-hunted by Mr Terry in 1996, the year in which she completed her doctorate in augmentative and alternative communication for children with severe intellectual disabilities. She commenced at Kurrumbee in 1997 and was then released from teaching in 1998 in order to carry out functional assessment (a programme described later in the judgment). Dr Stephenson left Kurrumbee in 1999 to commence a post at the University of Technology as Senior Lecturer in Special Education in 2000. 17 In addition to these employees of the defendant, the following witnesses gave evidence for the prosecution: the prosecutor; Mr Hannan, an industrial officer of the Public Service Association; Ms Merelles, a clinical psychologist who treated Mrs Griffiths; Mr Petrie, behavioural consultant to the Department of Community Services; and Mr White, a probation officer. Neither Ms Crompton nor Ms Muggleton was called to give evidence. No evidence was called by the defendant. The parties agreed to refer to the students throughout the proceedings by their initials, rather than full names. 18 In closing submissions the defendant agreed that the facts were "pretty clear … and largely uncontested" and that there was no issue as to the credit of any of the witnesses. The defendant further submitted that although some areas of evidence were less clear than others because of varying recollections, it did not intend to rely upon any of those discrepancies. In any event, I find that the facts as found below in the judgment have been proven beyond reasonable doubt. 19 There were several reserved rulings as to the admissibility of evidence, or the basis upon which some exhibits should be admitted. 20 Exhibits 7 and 8 (outcomes from behavioural meetings on 5 November 1998 and 16 November 1998); 11 (facsimile from Mr Terry to Mr Manwarring dated 20 May 1999); 18 (Dr Stephenson's course outline for dealing with challenging behaviour); and paragraph 34 of exhibit 24 (Mr Terry's briefing notes) were admitted provisionally on the basis that the defendant may object to their relevance, depending upon future oral evidence. Similarly, the Court's ruling on the relevance of exhibit 13 (the report of clinical psychologist Ms Merrelles) and paragraph 63 of exhibit 2 (Mrs Griffith's first affidavit) was reserved on the basis that, in the absence of any such objection, the documents were to be treated as having been tendered for all purposes. In the event, the defendant did not maintain its objection to these documents on the basis of relevance. 21 Further, the issue of whether exhibit 21 (affidavit of Mrs Sparrow) and exhibit 25 ("briefing notes" of Mr Terry) should be admitted pursuant to s81 or s87 of the Evidence Act, as contended by the prosecutor, was reserved to be dealt with in submissions but not then raised.

[56]

41 It seems that both parties approached the matter of Mr Petrie's report on the basis that the defendant bore the responsibility of providing adequate information (such as that report) to those who most needed it (those directly involved in the supervision of AK) which clearly did not happen. Neither party raised the manner in which the report was to have been provided as a matter relevant to the determination of culpability or any defence under s53 of the Act. The defendant did not suggest at any time that it had in fact provided the report to the school, or that it was impracticable to do so, either in cross-examination of Mr Terry or in submissions. Nor did the prosecutor ask for an affirmative finding on this point. In that sense, the issue does not strictly require resolution, but in view of my later discussion in relation to the information charge, I will deal briefly with the matter. I have no doubt on the evidence that at the time of the assault on 9 February 1999, Mr Terry and his staff were unaware of the existence of Mr Petrie's report. Nor do I have any doubt that the experienced, dedicated staff of Kurrumbee, sensitive to the issue of aggressive behaviour in severely intellectually disabled students and aware that AK came from an institution for students with severe behavioural problems, were actively searching for such information. Before AK's first day at school Mr Terry made enquiries of Mrs K; enquires were made either by Mr Terry or by his deputy of the defendant; and, in the first week, Mrs Griffiths advised Mr Terry of AK's worrying behaviour and asked Mr Terry if there was any relevant information on AK to which he replied there was not. Finally, I accept Mr Terry's evidence that he was advised by the defendant, either first or second-hand, in response to these enquiries for information, that information was difficult to obtain. I am prepared to infer from these circumstances that the defendant did not provide the report to the teachers and aides who would be responsible for supervising AK. Indeed, I consider any inference to the contrary would be inconsistent with Mr Terry's evidence, in the context of his active search for information.

[74]

57 The circumstances of 9 February 1999 provoked Mr Terry to take the unusual step of "immediately" asking JB's carers, upon arrival, to take him home again, believing that it was not safe for students, teachers, aides or JB himself, should he remain without adequate supervision. Under cross-examination Mr Terry stated that: There was no way we could provide a safe environment for him [JB], nor the other students in his class. AK's behaviour was not known to me of the same intensity. The notion of asking a parent or carer to take a student home was foreign to the culture of the Department and certainly foreign to me and I felt ill at ease doing so, but when doing a quick mental risk assessment I found it was intolerable to have JB at school and therefore I had to get him out of the school for everyone's protection, including his own. 58 Mr Terry referred to this decision in a somewhat ambiguous manner in a letter to his supervisor, Mr Robert Manwarring, dated 19 February 1999. This letter was not put to Mr Terry in cross-examination, and does not contravene his evidence, which I accept. The fact that Mr Terry communicated this decision to JB's carers as they arrived to deliver JB indicated that he had made the decision beforehand, or that it was such an obvious requirement it could be made immediately, should JB present. Mr Terry gave evidence that had he known of AK's behaviour, he would have had "no hesitation" in making the same request of AK's carers and that, in view of AK's violence, he "would not have been able to come to any other decision". JB's carers declined to take responsibility for this decision and Mr Terry had to make three telephone calls to track down the appropriate DoCS officer in Katoomba and then wait for him to obtain approval from a more senior officer and call back. In all, Mr Terry was away from Mrs Griffiths' classroom for approximately 15 minutes during which time JB was in the double classroom, apparently under the supervision of Ms Crompton, until he absconded. Just why JB was placed in the general school population in these circumstances, rather than being the subject of special care, was not explained.

[164]

Defendant's Submissions as to Particular Charges 125 In relation to the particulars of each charge, the defendant made the following submissions: 1. Matter No. IRC 607 of 2001 - Human Resources (i) In written submissions, the prosecutor specifically excluded the day of the strike from the first particular of this charge: "allowing the number of teachers and/or teachers' aides special to comprise the available human resources". Instead, the prosecutor asserted that this particular alleged inadequate resources to perform functional analysis and "individualised education programs" and inadequate resources generally. The defendant submitted that there was no evidence to support the proposition that functional assessment would "guarantee or make certain" that a risk of aggressive or violent behaviour would not arise in some students. (ii) The prosecution did not lead any evidence to establish insufficient staff at Kurrumbee other than for 9 February 1999. Further, none of the evidence supported a finding that providing extra teachers or teachers' aides would eliminate the risk of violent or aggressive behaviour. The evidence indicated different views as to the appropriate general level of staff in a school for disabled children, but even if there was a view that the level should be greater, that did not establish to the criminal standard that the staffing at Kurrumbee was insufficient and there was no evidence that any level of staffing on 9 February would have ensured the absence of violent acts. (iii) As to the second particular of this charge, "failing to provide additional human resources", in written submissions the prosecutor limited this particular to the day of the strike. The defendant submitted that there was no evidence to suggest that additional teachers or aides in Mrs Griffiths' room on 9 February 1999 would have prevented the risk of aggressive or violent behaviour from having arisen; Mrs Griffiths' evidence showed that the events which exhibited the risk commenced at a time when Mrs Crompton was present in the combined classroom. 2. Matter No. IRC 608 of 2001 - emergency equipment (i) The charges in relation to failure to provide duress alarms were flawed: such alarms only operate in circumstances once the risk of violent or aggressive behaviour had already arisen. The assaults of 9 February 1999, relied upon by the prosecutor, were the result of the risk having arisen: in written submissions the prosecutor conceded that a mobile telephone or duress alarm would have been activated after Mrs Griffiths first became concerned for her safety. According to the defendant, there was no way that such alarms could prevent the risk arising. Further, the prosecutor did not suggest how the provision of a personal duress alarm could have any relevance to the events of 8 March 1999. (ii) In any event, there was no evidence that, on the day of the strike, the activation of a mobile telephone or personal duress alarm would have prevented Mrs Griffiths from being exposed to injury, or indeed, would have made a difference. 3. Matter No. IRC 609 of 2001 - inadequate information in relation to AK (i) It was submitted the evidence did not support the conclusion that the provision of information would have guaranteed that AK would not engage in random aggressive or violent acts. (ii) Further, the prosecution had ignored the evidence that behavioural information is not static and must be made relevant to the particular physical circumstances: in this case, the Kurrumbee School environment. There was no proper opportunity between enrolment and 9 February 1999 to carry out the type of assessment considered appropriate by Dr Stephenson. (iii) There was no allegation of inadequate information in relation to SH and JB, both well known to Mrs Griffiths, and yet both of these students exhibited challenging (and in the case of SH, violent) behaviour on 9 February 1999 before AK did. (iv) Although the prosecution relied heavily upon Mr Petrie's report on AK, the plan did not purport to be a behavioural plan relevant to the school environment and the triggers referred to in that report were not evident on 9 February 1999. It could not be maintained that the information of the type in Mr Petrie's report would do other than identify a particular student's capability and Mrs Griffiths was already aware that AK was capable of, and had exhibited, violent behaviour. (v) There was no evidence to support the assertion made by the prosecution that AK should only be supervised by males. In fact, there was nothing to indicate that a man in Mrs Griffiths' stead on 9 February 1999 would not have been exposed to a risk of aggressive or violent behaviour from AK or other students. Further, the particular as pleaded, if followed by the defendant, may lead to a charge of discrimination under the Anti-Discrimination Act 1977. To the extent that the Act required any such action on the part of the defendant (which was denied) there may be a conflict between the two Acts. 4. Matter No. IRC 610 of 2001 - inadequate counselling (i) This charge must fail on the basis that there was no allegation that Mrs Griffiths was denied counselling "at work" and, therefore, a fundamental element of a charge under s15 of the Act had not been made out. There was no suggestion that the defendant should have done something in relation to counselling or assistance on 9 February 1999 or for the period Mrs Griffiths was at work in March and, therefore, no finding against the defendant to the criminal standard could be made. (ii) In the alternative, there was no evidentiary basis for the assertion that the defendant required Mrs Griffiths to return to work in March 1999; on the contrary, Mrs Griffiths determined herself that she was able to return to work, at the time making no complaint to the defendant that she required any assistance in so doing. (iii) In oral submissions, the defendant elaborated that the prosecution could not show that any failure by the defendant to provide counselling was a causative factor. 5. Matter No. IRC 611 of 2001 - inadequate training (i) The prosecution alleged that between 9 February 1999 and 8 March 1999 the defendant did not provide Mrs Griffiths with any adequate training in the nature of "self-protection" or "communication strategies". Provision of training in that period could not be relevant where Mrs Griffiths was away from work from 9 February 1999 to 1 March 1999. (ii) In any event, self-protection courses could only be relevant as a reaction to the type of risk specified in the charges, not as a preventative measure. Further, there was no suggestion that "communication strategies" played any role in relation to JB's assault on 8 March 1999. (iii) The prosecution's assertion that functional skills would "go some way towards reducing challenging behaviour" identifies the weakness in the prosecutor's case: such skills would not eliminate the asserted risk.

[179]

Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 138 Hungerford J then rejected the defendant's general submissions in avoidance of all the charges that the relevant risk was created externally from the defendant by unpredictable and criminal conduct over which the defendant had no control, preferring instead the prosecutor's stance. Due to the importance of his Honour's analysis in this aspect of his judgment I shall set out in full the relevant passages (at [22] - [24]) as follows: 22 The general submission made by Mr Hastings on which his no-case application was based as to all charges was that the relevant risk to safety here was Mr McGowan over whose unpredictable and unlawful conduct the defendant had no control; and, so senior counsel submitted, there was no causal nexus of the defendant to the detriment to safety of the two officers. In my view, that submission cannot be sustained. Mr Hastings went further and submitted that the significance of Mr McGowan's role was such that there was nothing the defendant could have done to obviate the risk caused by Mr McGowan; as senior counsel said - "There is nothing to provide the employees with safety in those circumstances". Even given, which I think clearly was the case, that Mr McGowan presented as a risk to the officers' safety, that is not what any of the charges were directed to. The charges identified what were alleged to be risks existing to the safety of the two officers apart from the ultimate actions of Mr McGowan in causing their deaths. The answer to Mr Hastings' submission in this respect is simply that it concentrated on the incident itself, that is the fatal shooting of the two officers by Mr McGowan, rather than the situation in which the officers were placed while performing operational duties at the time and place of the incident in terms of risks to their health and safety occasioned by the particular detriments identified in each of the charges. In other words, the defendant's submission fell into the same vice by concentrating on the incident itself as the Full Court in Haynes v C I & D Manufacturing found occurred there at first instance. 23 I do not doubt, and neither do I think does the defendant, that police officers engaged on operational duties will be faced with risks to their safety. However, it is no answer to say, but as did Mr Hastings , that "the objective facts causing the detriment to safety were not the absence of speed loaders or a pistol or any deficiencies in the radio communication system or training, but the actions of McGowan, with which there was no causal connection to the employer" and: "it is impossible to guarantee or to ensure the health and safety of police officers, and you can provide them with all the equipment under the sun short of an armoured vehicle and they will always be exposed to risk. Even if you did all the things that the prosecution has alleged were not done here ... those things had absolutely no bearing on the safety of Senior Constable Spears because he was simply surprised and ambushed before any of these factors had any capacity to come into play".

[180]

Workplaces in very many industries have the potential to be unsafe and, to meet that situation in the interests of the well-being of employees, the legislature has created the absolute duty on employers in s 15, subject to the s 53 defence, to ensure the health, safety and welfare of those employees at their place of work. A corresponding duty on employers, I might add, has been created by s 16 of the Occupational Health and Safety Act to ensure the health and safety of persons other than employees at the employer's place of work. The point may be made by reference to the following observations made by me as to building sites in Kirkby v A & M I Hanson (55 IR at pp 49-50) : I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s 5(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Accident prevention is unquestionably one of the modern responsibilities of an employer". The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty. Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer."

[243]

190 The defendant faintly contended that the prosecutor should have led evidence from Mr Hamilton, Ms Crompton and Ms Muggleton. However, the submission was merely responsive to the prosecutor's submission seeking that the Court draw a Jones v Dunkel inference. It is also not clear whether the complaint was directed to a failure of a prosecutional duty or put as a contention concerning Jones v Dunkel. If it was the latter proposition, there was a failure to identify just what significance the omitted evidence may have in these proceedings. In the result, I do not propose to accept the defendant's submission (to the extent pressed) in this respect. I note that it would appear that, as a general proposition, the defendant (in contrast to the prosecutor) may not be precluded from advancing such a submission (albeit unsuccessfully), even though Gaudron and Haynes JJ expressed a contrary view in Dyer at [6] - see the decision of Heydon JA in R v Riscuta; R v Niga [2003] NSWCCA 6. Whether or not the judgment of Gaudron and Haynes JJ in Dyer in this respect may be applicable in a case where the defendant relies upon a Jones v Dunkel inference advanced in the context of a defence raised by the defendant under s53 of the Act will require further consideration in some later judgment. Conclusions 191 I make the following findings and determinations: (a) the offence has been proven in Matter No. IRC 607 of 2001, although the prosecutor did not sustain the charge in relation to particular (a). Failure to establish a particular is not fatal to a prosecution: Environment Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 at 484. In relation to Matter No. IRC 607 of 2001, I find that no defence is available to the defendant under s53 of the Act; (b) the offence has been proven in Matter No. IRC 608 of 2001; (c) the offence has been proven in Matter No. IRC 609 of 2001 (although the prosecutor did not sustain particular (c)); (d) the defendant's concessions on the subject of potential defences in Matters No. IRC 608 or 609 mean that effectively no issue was raised as to a defence in relation to these matters; and (e) finally, I find the defendant not guilty of the charges in Matter Nos. IRC 610 and 611 of 2001.

Maurice Michael O'Sullivan v The Crown in the Right of the State of New South Wales

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Judgment (246 paragraphs)

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Cases Cited (22)

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