Michael Dalzell v Andrew James Ferguson

Industrial Relations Commission (NSW)|2009-07-01|Before: Walton J, Kavanagh J, Haylen J, Backman J

For the reasons given above in these Reasons for Decision, I find that none of these allegations is made out. I find that Mr Dalzell was not acting on any genuine or reasonably held belief that Mr Quirk and Mr Whitehead were attending the site for the purpose he has alleged. 29 His Honour found that the appellant's conduct was motivated by a determination to stop a legitimate and duly authorised site safety inspection from taking place. An allegation made by the appellant that the right of entry permits presented by the two men to Mr Khoury might have been revoked was described by his Honour as "ludicrous", and the allegation conveyed to the police that the two men had "stormed onto the site", as false. His Honour also found that the appellant's allegations (that he was threatened by Mr Whitehead and by Mr Quirk), were false and that his actions in spraying both men with the water hose was a "highly provocative and foolish course of action", as were his attempts to push or shoulder the two men in the direction of the entry gates. 30 The offence with which the appellant had been charged, his Honour held, was made out by the prosecution beyond reasonable doubt, except for particulars (v) and (vi) which his Honour found had not been made out to the requisite standard. Leave to appeal

31 The appeal is brought under s 197(1)(b) of the Industrial Relations Act and s 105(3) of the 2000 Act. It was accepted by both parties to the appeal that leave to appeal is required: Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 446-449; Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 248 at 248-250. We consider that if leave to appeal is required to bring this appeal, it should be granted. Two factors warrant this conclusion. First, the grounds of the appeal raise the application of the "defence" of honest and reasonable mistake of fact to an offence under s 136. Both parties to the appeal assert that an offence under s 136 of the 2000 Act is one of strict liability and thereby accept that the defence was available in this case. We consider that it is appropriate, nonetheless, to consider the proposition. Secondly, the operation of s 136 has not previously been the subject of a determination by a Full Bench of this Court. Is s 136(1)(a) an offence of strict liability?

32 The raising of a "defence" of an "honest and reasonable mistake of fact" is more accurately described as "a ground of exculpation" (see He Kaw Teh v The Queen (1985) 157 CLR 523 at 573, 592-593; Von Lieven v Stewart Kemish v Godfrey and Another (1990) 21 NSWLR 52 at 64 per Handley JA) rather than a defence. A recent description of the "defence" is found in CTM v The Queen [2008] HCA 25 at [8] where it was said by Gleeson CJ, Gummow, Crennan and Kiefel JJ: Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word "innocent" means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be "outside the operation of the enactment" [19]. As explained in He Kaw Teh v The Queen [20], the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution: The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact. 33 In CTM reliance was placed upon the view expressed by Dixon J in Proudman v Dayman (1941) 67 CLR 536 at 541 where his Honour held: The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. 34 Street CJ, in R v Wampfler (1987) 11 NSWLR 541 at 546 relied upon He Kaw Teh v The Queen as authority for the proposition that, for the purposes of considering criminal intent, statutory offences fall into three categories: (1) those in which there is an original obligation on the prosecution to prove mens rea. (2) those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt. (3) those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence. 35 Taking into account the above authorities and the relevant legislative provisions of the Industrial Relations Act and the Occupational Health and Safety Act, for the "defence" to operate in this statutory context, the following elements must be present: (i) it is incumbent upon a defendant to introduce material in evidence which gives rise to an honest and reasonable belief in the existence of facts, which, if true, would render the impugned act or conduct innocent; (ii) once a defendant has discharged that evidential burden, the onus falls on the prosecution to negative, beyond reasonable doubt, that the belief was reasonably held; (iii) the notion of honest and reasonable belief contains within it both a subjective element consisting of facts within the knowledge of a defendant; and an objective element in that it must be measured or assessed against the evidence, by the tribunal of fact. As To The Defence

36 Neither party contended that an offence under s 136 falls into the first or third categories of offences identified in Wampfler. Rather, the parties contended that the offence is more accurately construed as one which falls within the second category. Gibbs CJ, in He Kaw Teh (at 532-535) described this type of offence as a "middle course" between imposing absolute liability and requiring proof of guilty knowledge or intention. 37 In He Kaw Teh at 529-530, the High Court considered whether the presumption that mens rea was an essential ingredient of an offence had been displaced by s 233B(1)(b) of the Customs Act 1901 (Cth). Under s 233B(1)(b) of the Customs Act it is an offence to import goods (that are narcotic goods). The section is silent as to whether mens rea is a constituent element of the offence. Gibbs CJ, in deciding whether the presumption had been displaced held that regard had to be had to the words of the statute creating the offence; the subject matter with which the statute deals; and whether a strict liability would assist in assessing the mischief (at which the statute is aimed).

38 With regard to the third matter identified by Gibbs CJ the issue before the Court, on appeal, requires consideration as to whether putting the appellant under strict liability will assist in promoting or effecting the purpose of s 136(1)(a).

39 Section 136 of the Act contains no indication as to whether the legislature intended the presumption to be displaced. The provision forms part of a statutory regime which is concerned with the entry and inspection powers of authorised officers or representatives defined under s 76 of the 2000 Act. Section 76 appears in Division 3 of Part 5. That Part contains a number of offence provisions, which, like s 136, deal with offences relating to the exercise of official functions or duties of an authorised representative. Section 84, for example, provides that a person must not "without reasonable excuse" refuse or fail to comply with a requirement made by an authorised representative. Section 92 provides that a person who "without reasonable excuse" fails to comply with a requirement imposed by an improvement notice commits an offence. Section 94, in similar terms to s 92, makes it an offence to "without reasonable excuse" fail to comply with a requirement imposed by a prohibition notice. The absence of the words "without reasonable excuse" in s 136 raises the proposition that no reasonable excuse will avail a defendant at premises who obstructs an authorised representative attending those premises. If so, this would lead (in the absence of some other defence or excuse being available), as Gibbs CJ in He Kaw Teh pointed out in the context of s 233B(1)(b) of the Customs Act, to an absurdly draconian result. In this circumstance, a person who unwittingly hindered or obstructed an authorised representative who was exercising an official function under the 2000 Act, could be found guilty and liable to pay a substantial fine. 40 We consider that the words "hinder, obstruct, or impede" as they appear in s136, are not of themselves indicative of a criminal act. An owner or occupier of premises has a right (ordinarily) to hinder or obstruct persons entering those premises without permission or other kind of authorisation: (Federation of Air Pilots v Australian Airlines Limited (1991) 36 IR 194 at 207, 208 per Gray J). The offence, with which s 136 is concerned, places a focus on the conduct of a defendant in circumstances where authorised representatives enter premises, occupied by the defendant, for the purpose of exercising an official function under the 2000 Act. 41 Discerning the subject matter of s 136 also requires a consideration of the inter-relationship between that provision and other provisions of the 2000 Act. Under s77, an authorised representative is granted the power to enter any premises if he has reason to believe it is a place of work where members of an industrial organisation, or persons eligible to be members work, for the purpose of investigating any suspected breach of the 2000 Act. Under s 78, the authorised representative may enter the premises without notice but if he does so, the occupier of the premises must be notified as soon as reasonably practicable of the entry. Under s 78(2), there are exceptions to this latter requirement where notification of entry would defeat the purpose for which entry was effected or would cause unreasonable delay in a case of urgency prior to the occupier being notified in advance. Under s 79, the power to enter premises may not be exercised unless the authorised representative is in possession of an authority issued under Chapter 5, Part 7 of the Industrial Relations Act. In addition, under s 79(2) entry may only be effected at a reasonable time in daylight hours and when work is carried on or usually carried on at the premises. 42 Sections 77 to 79 are intended to be enabling or beneficial provisions (cf Federation of Air Pilots at 208). The rights conferred on an authorised representative under the provisions are significant and play an important role in ensuring the safety of members of an industrial organisation (and those eligible to be members) at work. They also play a vital role in facilitating the investigation and enforcement of suspected breaches of occupational health and safety law. Section 136, on the other hand, creates a criminal offence which is punishable by a fine. The two sets of provisions, although exhibiting a degree of tension, nevertheless operate, in combination, to fulfill an important function. 43 In Federation of Air Pilots, Gray J concluded that similar provisions in combination operated to remove the presumption that an occupier of premises could hinder or obstruct a person entering those premises for the purpose of carrying out an inspection. His Honour found that the purpose of one provision (which was to assist with the enforcement of awards by authorising an officer of a union to enter premises for the purposes of inspection or interview) pointed towards the related offence provision being one of strict liability, and that the nature of the intrusion into what would otherwise be the rights of an employer pointed to a requirement of some mental element. 44 We would similarly conclude in considering provisions of the Industrial Relations Act in relation to the combined operation of ss 77 to 79 and s 136 of the 2000 Act. Given that important rights of an owner or occupier of premises are subject to the provisions of ss 77 to 79, and that the owner or occupier becomes criminally liable for a breach of s 136, we are of the view that some mental element is required in order to make out the breach. 45 As to the third matter referred to by Gibbs CJ, it seems to us that there would be little utility in convicting a person under s 136 who hinders or obstructs an authorised representative in the exercise of his official functions, but who holds a genuine and reasonable belief that the authorised representative is not properly authorised to enter the premises or is not at those premises for the purpose of exercising an official function under the 2000 Act. This consideration, in our view, also serves to provide an indication that the offence under s 136 requires some form of mental element, such as the holding of an honest and reasonable but mistaken belief, that the person entering the premises is either not properly authorised or not entering for an official purpose under the Act. 46 We are also of the view, although we have not been asked to decide the point, that the offence under s 136 does not fall into the first category of offences identified in Wampfler. An owner or occupier of premises as we have earlier observed ordinarily has a right to hinder or obstruct persons entering their premise. It would be difficult therefore, to prove, directly or inferentially, the state of mind of a defendant who obstructed or hindered an authorised official in the exercise of his or her official function under the 2000 Act: Federation of Air Pilots at 208. In undertaking an analysis of whether a similar offence provision under consideration in Federation of Air Pilots fell into the first category, Gray J distinguished the case of assault on a police officer, where the assault itself is an offence, (see also Environment Protection Authority v N (1992) 26 NSWLR 352 at 356 per Hunt CJ at CL). As we earlier observed, conduct amounting to obstruct or hinder on the part of an owner or occupier of premises does not, of itself, constitute conduct which is criminal under s 136. Under the provision, it is the hindering or obstruction of the authorised representative exercising an official function which is the gravamen of the offence. 47 A further consideration raised during oral hearing on the appeal concerns the impact of the defences under s 28 of the 2000 Act on a construction of s 136(1)(a) as an offence of strict liability. Section 28 provides: 28 It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 48 Section 28 operates to provide two defences to offences under the 2000 Act. In terms, it purports to apply to all offence provisions in the 2000 Act. We have earlier referred to a number of offence provisions contained in the 2000 Act which expressly provide for the defence of "without reasonable excuse". Other offence provisions contained within the 2000 Act expressly import mens rea as an element of those offences. Section 24(1)(a), for example, prohibits conduct of a person who intentionally hinders or obstructs the giving or receiving of aid to an injured worker. 49 Even if the offence provisions set out in the 2000 Act contained no express indication that mens rea is a constituent element, it does not follow that the defences in s 28 are otherwise available or that those other offence provisions are offences of absolute liability. In this regard, we would agree with the observation made by Black CJ in Chief of the General Staff v Stuart (1995) 58 FCR 299 at 305 that: As He Kaw Teh shows, the existence of a statutory defence does not mean that the presumption that mens rea must be proved is necessarily displaced with respect to the offence for which such a defence is provided. 50 In Environment Protection Authority v N, the legislation under consideration (Environmental Offences and Penalties Act 1989), provided a defence under s 7 in identical terms to s 28(b) of the 2000 Act. In the judgment, Hunt CJ at CL (with whom Enderby and Allen JJ agreed) held that s 5(1) of the Environmental Offences and Penalties Act had not displaced the common law presumption of mens rea. With regard to the defence provided under s 7, Hunt CJ at CL, described the provision as a blanket provision, and one which often poses a problem of a logical nature. 51 It is not necessary, to our consideration of this present issue, to offer comment on the nature and application of the defence provided under s 28(b) of the 2000 Act which is in identical terms to s 7. 52 The application of the s 28 defences raises a logical difficulty in utilising those defences against an offence under s 136 which has been proved by the prosecution. Section 28(a) is concerned with the concept of reasonable foreseeability, which is decided on an objective basis, that is, whether the particular act constituting the offence provision was foreseeable to the reasonable person in the position of the defendant, see Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. Section 28(b) refers to causes, rather than acts, over which a defendant has no control. Neither defence clearly deals with a defendant who refuses entry to premises, for example, because he mistakenly believes that the authorised official is not properly authorised or is not attending those premises in the exercise of his official functions. 53 The words "hinder" and "obstruct" carry with them the notion of awareness (of the act of obstructing or hindering). The act of obstructing (or hindering), as we have already observed, does not, of itself, constitute criminal conduct. There must exist a connection between the concept of obstruction or hindrance, and the nature of the activity being obstructed or hindered before a defendant may be held criminally liable: Curran v Thomas Borthwick & Sons (Pacific) Ltd (No 1) (1990) 33 IR 6 at 20, per Gray J. 54 In that judgment, Gray J considered some examples where an obstruction or hindrance may constitute a criminal act and where it may not. The examples, as his Honour noted, recognise the necessary connection between the act (of obstructing and hindering) and the nature of the activity obstructed or hindered. One example concerned users of a highway. Since the space occupied on a highway cannot be used simultaneously, occupation of that particular space by a user is technically an obstruction. But since the legitimate purpose of the highway is passage and re-passage, the user of the highway occupying the space for that legitimate purpose cannot be said to be obstructing it: Schubert and Another v Lee (1946) 71 CLR 589 at 594 to 595. 55 By way of analogy, in the context of s 136, a refusal to provide the key to a locked cabinet containing documents of interest to the authorised official exercising official functions under the 2000 Act may not constitute an obstruction or hindrance of that officer if the reason for the refusal was a lost key to the cabinet. A defendant may adduce evidence to establish the fact of the lost key but that evidence would be relevant to the issue of liability. In such circumstances the defences under s 28 would have no work to do. 56 We would add, although not relevant to the disposition of the appeal, that in our view a "defence" of honest and reasonable mistake of fact is available to corporate defendants as well as natural defendants. The issue assumes relevance in the context of an offence under s 136 which carries penalties against corporations as well as individuals. Whether a corporation may be able to rely on the "defence" depends upon whether the person operating under the mistaken belief was the "directing mind and will" of the corporation: see for discussion of the phrase, Presidential Security Services of Australia Pty Ltd v Brilley (2008) 67 ACSR 692 per Ipp JA (with whom Allsop P and Beazley JA agreed) at [115], [140] and [155]. The issue falls to be decided by reference to the facts and circumstances of each case. Presidential Security Services of Australia provides a useful illustration of when the acts, conduct or state of mind of an individual may be attributed to a corporate defendant, such that liability for those acts, conduct, or state of mind attaches to the corporate defendant (at [156] - [158]). 57 We turn now to consider the two grounds of appeal.

Ground 1 58 According to the appellant, shortly after he arrived at the premises, Mr Quirk "shoulder charged" him, forcing him through the office doorway and into a shed. His Honour considered the appellant's account of events and described it as falling, "far short of establishing that Mr Quirk assaulted Mr Dalzell or threatened him in any way". Following this finding, his Honour observed: Any physical contact in the doorway, if it occurred, is just as likely to have been the result of Mr Dalzell pushing past Mr Quirk in an aggressive manner rather than being initiated by Mr Quirk. 59 The appellant contended that the observation constituted an erroneous finding because there was no evidence that Mr Dalzell pushed past Mr Quirk in an aggressive manner. According to the appellant, what happened at the doorway was critical to the appellant's honest and reasonable belief as to the purpose of Mr Quirk's visit to the premises. It was therefore incumbent upon the prosecution to negative the evidence going to that belief, once it was raised, beyond reasonable doubt, and it was not open to the learned Chief Industrial Magistrate to accept that a contrary factual finding was "just as likely". 60 We agree that there was no evidence to sustain a finding that Mr Dalzell pushed past Mr Quirk in an aggressive manner. The observation, however, was not a finding but supposition which was not used as a basis for the rejection by his Honour of the appellant's claim that one of the purposes of Mr Quirk's visit to the premises was to do the appellant some harm or damage. The appellant's version of events as to what occurred at the doorway was rejected for other reasons. The version was uncorroborated. It was denied by Mr Quirk. The combination of adverse factual findings made against the appellant and the identification by his Honour of a number of factors with respect to the claim were relied upon by his Honour as the basis upon which the claim was rejected. These factors have earlier been set out by us in some detail and it is not necessary to repeat them. 61 The learned Chief Industrial Magistrate was also said to have fallen into error by making two directly inconsistent findings concerning the alleged assault of Mr Quirk. The alleged inconsistency appears to derive from Mr Whitehead's account when he first encountered the appellant in the shed. According to Mr Whitehead, at that time the appellant made no complaint about being assaulted. Mr Whitehead said that later he overheard the appellant informing the police, by telephone, that he was being, "threatened and intimidated and feared for his safety because two union officials had stormed onto the site". His Honour found that the information provided to the police by the appellant was, "clearly false". 62 In our opinion the evidence of Mr Whitehead on this issue does not reveal an inconsistency. The initial encounter between Mr Whitehead and the appellant was said to have occurred at an earlier point in time to the complaint made to the police. The two events concerned different parties at different times. The fact that a complaint was made to the police does not, without more, confirm the accuracy of that complaint. It was in any event rejected by his Honour on the basis of Mr Whitehead's evidence which was that both he and Mr Quirk had not stormed onto the site but had spoken civilly and cooperatively to Mr Khoury for some 20 minutes following their arrival at the premises. 63 The appellant also contended that the finding that, "the information provided to the police by Mr Dalzell was clearly false", disclosed a "substantial wrong". This was said to be because it was never put to the applicant by either the respondent or his Honour that the information provided was false. The failure to do this according to the appellant amounted to a denial of natural justice requiring correction on appeal. It was asserted by the appellant in support of the contention that allegations of illegality must be clearly stated and plainly put and that the finding that the information provided was false was tantamount to a finding that the appellant had engaged in criminal conduct which in turn infected the adverse findings of fact made against him. 64 An extract from the judgment of Re Refugee Review Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82 at [100] was relied upon in support of the contention. In the extract McHugh J (in dissent, but not on this issue) said: If the second Tribunal had simply failed to take into account the "Federal Court papers", it would not have breached the fair hearing rule. Its function was to consider the case put to it by the prosecutor. He had the responsibility of putting the contents of the four statements to the second Tribunal. If he failed to do so, no blame could be attached to the Tribunal for not taking them into account. But the Tribunal did more than fail to take account of evidence which the prosecutor should have put before it. It found that he had concocted evidence without informing him that it might do so and without indicating to him that that finding might be made. 65 In the following two paragraphs of the judgment his Honour said: One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding [164] . In the present case, the prosecutor was given no warning that the second Tribunal might find that he had concocted his evidence. But the risk of that finding inhered in the issues and in his various accounts of the real estate transactions. Given the issues and the inconsistency between what the prosecutor told the delegate and the first Tribunal and what he told the second Tribunal, he could not complain that the Tribunal did not warn him that it might reject his evidence concerning the incriminating contracts and the Tehrani agreement. Nor did the more serious finding of concoction require a warning that it might be made. The prosecutor had given inconsistent accounts. The second account was much more favourable to his case. 66 One of the issues in Aala was whether the prosecutor (the applicant before the Refugee Review Tribunal) had been denied procedural fairness because the Tribunal had made an adverse factual finding against him following both an earlier decision by the Tribunal, differently constituted, that the applicant did not meet the prescribed criteria for a protection visa, and a review in the Federal Court of that Tribunal decision. In the Federal Court the prosecutor had raised a new claim in support of his application for a protection visa. After an appeal to the Federal Court the matter was remitted to the Tribunal for a second hearing. At that second hearing the Tribunal member informed the prosecutor that she had the prosecutor's departmental file, the file from the first Tribunal hearing, "plus all of the Federal Court papers". At the second hearing the prosecutor gave sworn evidence during which he repeated in substance the claim first raised before the Federal Court. The Tribunal affirmed the decision not to grant the prosecutor a protection visa. The decision recorded a finding that the prosecutor had not raised the new claim prior to the second Tribunal hearing. A further finding was made that the prosecutor, "concocted this evidence and [the Tribunal] places no weight on it". 67 It was against this background that McHugh J's observations were made. We do not however read the particular extract upon which the appellant has placed reliance in this appeal, as providing support for the contention that the appellant was denied natural justice because the allegation that the information provided to the police was false was never put to him. Adopting the observations of McHugh J, the state of the evidence before the learned Chief Industrial Magistrate was such that there was a risk that an adverse finding could be made concerning the information provided. His Honour preferred Mr Whitehead's account of the events concerning the encounter with the appellant at the premises. That account directly contradicted the appellant's version. There was therefore no obligation to forewarn the applicant and no denial of procedural fairness. 68 The appellant also sought to place reliance on the Court of Appeal judgment in Maritime Services Board v Murray (1993) 52 IR 455, in support of the issue. In particular, the appellant relied upon the remarks of Kirby P (with whom Handley and Sheller JJA agreed) at 466: It is a rule of law and of professional ethics that fraud must be stated with clarity and put plainly to the person accused so that he or she will have the opportunity to deny it and to put the contrary case. 69 The context in which the remarks were made was that the case presented on the appeal was different from the case put at the primary hearing before a tribunal. An issue was whether that course was permissible especially when it concerned allegations of fraud and illegality. 70 No such issue arises on this appeal. The contention may be disposed of, however, for a different reason, which is simply that allegations of fraud and illegality give rise to quite different considerations from those involving adverse factual findings made at first instance as to whether a statement made was false. Ground 2

71 The appellant's second ground of appeal relied on error in the Chief Industrial Magistrate's disposition of the "defence" on the basis of what Messrs Quirk and Whitehead believed, and a failure to apply the "subjective/objective" test raised by the defence as well as erroneously holding that the onus rested on the appellant to establish certain facts on the balance of probabilities. 72 In developing this ground of appeal the appellant relied on two judgments. The first, R v Mrzljak (2004) 152 A Crim R 315 dealt with s 24(1) of the Criminal Code Act 1989 (Qld). That section provided: A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. 73 Williams JA, with whom Holmes J agreed, said of the section (at [53]): The critical fact for a defence based on s 24 is the offender's belief. For the defence to arise the belief held by the offender must be both honest and reasonable. Whilst that means that the belief must be based on reasonable grounds it is nevertheless the belief of the offender which is critical. That must mean, in my view, that the critical focus is on the offender rather than a theoretical reasonable person. It is the information available to the offender which must determine whether the belief was honest and also was reasonable. That must mean that factors such as intellectual impairment, psychiatric problems and language difficulties are relevant considerations though none would be necessarily decisive. 74 The second judgment, Aubertin v The State of Western Australia (2006) 33 WAR 87, concerned s 24 of the Criminal Code Act 1913 (WA). That section provided: A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. 75 McLure JA with whom Roberts-Smith JA agreed provided the following commentary on the section (at [43]): For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive. 76 In this appeal the appellant contended that the beliefs or motives of Mr Quirk and Mr Whitehead were irrelevant to the appellant's belief. The issue before his Honour was whether the respondent had negatived the appellant's belief beyond reasonable doubt. The failure to focus on the appellant's beliefs as to the purpose of the site visit by the two union officers therefore was an error. 77 A particular paragraph of the decision at first instance was selected by the appellant as illustrative of the error. It is convenient for the purpose of addressing the contention to reproduce the paragraph in full: For the reasons given above in these Reasons for Decision, I find that none of these allegations is made out. I find that Mr Dalzell was not acting on any genuine or reasonably held belief that Mr Quirk and Mr Whitehead were attending the site for the purposes he has alleged. On evidence before me, I am satisfied, on the contrary, that Mr Dalzell was activated by a determination to stop a legitimate and duly authorised site safety inspection from taking place by whatever method he could find. This included the somewhat ludicrous allegation that the right of entry permits presented by the two men to Mr Khoury might have been revoked, and therefore be invalid, by his aggressive insistence that both men leave the site immediately, by his false allegations that he was being threatened by Mr Whitehead and Mr Quirk when in fact their stance was essentially passive, by his action in spraying them with water which appears to have been a highly provocative and foolish course of action, and by his attempts to push or shoulder the two men in the direction of the entry gate which was also a provocative and foolish action for him to take. 78 The immediately preceding paragraph contained the following observations: In this case, the Defendant readily admits that he took a number of steps to obstruct, hinder and prevent Mr Whitehead and Mr Quirk from carrying out their stated objective of carrying out a site safety inspection. He did so knowing that they were union officials and had on their persons right of entry permits which had been sighted by Mr Khoury, the site manager of the premises. Notwithstanding the fact that the offence is one of strict liability, there is a potential defence based on evidence established by the Defendant to the effect that he was, whilst so conducting himself, motivated by a genuine and reasonably held belief that the union officials in question were there for purposes other than the purposes referred to in Section 77, and that as a consequence to obstruct them was not an offence under Section 136. As indicated, there were three broad limbs relied upon by the Defendant in this regard. One was the claim that Mr Quirk and Mr Whitehead had come to the site for the purpose of causing him harm and damage. The second limb was the allegation that Mr Dalzell had a genuine belief that Mr Quirk had come to the site with Mr Whitehead for the purposes of unlawfully soliciting bribes, and the third limb of the Defendant's case in this regard, was that there were in fact no safety problems on the site and that any claim on the part of Mr Quirk in particular that he had observed safety problems on the site, was merely a bogus invention for the purposes of using Section 77 of the Act for other purposes. 79 In Mrzljak and Aubertin an issue which arose for consideration was whether the reasonable belief under the respective statutory provisions was to be assessed by reference to the accused person's belief or by reference to the hypothetical reasonable or ordinary person in the same circumstances. No such issue arises in these proceedings. It should also be borne in mind that the two provisions in issue in the two judgments cast the defence in different terms from the common law "defence". Both sections refer to the relevant belief, "in the existence of [a] state of things" as opposed to fact. In Ostrowski v Palmer (2004) 78 ALJR 957 at 973 (per Callinan and Heydon JJ) a reasonable belief "in the existence of [a] state of things" was held to imply, "a concept somewhat wider and different from a mere mistaken belief of a fact or a fact exclusively" (see also R v Mrzljak at [75] per Holmes J). 80 In the present proceedings the learned Chief Industrial Magistrate focused correctly on the appellant's belief as to the purpose, or purposes, of attendance at the site by the two officers. In focusing on the appellant's belief (the subjective element) his Honour was entitled to examine the evidence in support of, and contrary to that belief (the objective element). The issue was whether the respondent had established beyond reasonable doubt either that the appellant did not have the belief he claimed or that the belief was not reasonably held. In addressing that issue his Honour was entitled to consider, as part of the evidence, the motives and conduct of the two officials and make findings in relation to that evidence. We have earlier set out in detail his Honour's analysis of the evidence and findings with respect to the three claims advanced by the appellant as the basis of his honest and reasonable belief. We perceive no error in his Honour's approach. 81 Having expressly found that none of the appellant's claims were made out his Honour added that he was satisfied, "on the contrary that Mr Dalzell was activated by a determination to stop a legitimate and duly authorised site safety inspection from taking place by whatever method he could find. This included the somewhat ludicrous allegation that the right of entry permits presented by the two men to Mr Khoury might have been revoked... his aggressive insistence that both men leave the site immediately". According to the appellant this conduct (if true) did not negate the belief held by him that both officials were not exercising functions consistent with the 2000 Act, and the finding highlights the failure by his Honour to focus on his positive beliefs. 82 We agree that the conduct adverted to by his Honour did not negate, in the sense that it was not relevant to, the appellant's belief as asserted by him, but the finding was made after the critical finding rejecting the appellant's three claims which founded the basis of the asserted belief. 83 The final matter which requires consideration under this ground of appeal concerns the appellant's contention that the decision disclosed error by reason of his Honour's finding that the appellant had failed to establish certain facts on the balance of probabilities. This particular finding occurs in the earlier part of the judgment where his Honour said (at [38]): Consequently, to the extent that the Defendant relies upon evidence that his conduct followed an assault upon him, or a threat made to him, or constituted self-defence, or an apprehension that Mr Quirk or Mr Whitehead or both of them had come to the site with an intention to cause him some harm or damage, I find that the evidence does not support any such proposition, and falls far short of reaching the standard of the balance of probability. I am satisfied that the Prosecutor has established beyond reasonable doubt that the aggressive and assaultive behaviour which occurred on the site that day was carried out by Mr Dalzell alone... 84 At oral hearing the appellant relied on paragraph 63 of the decision which revealed, it was said, the same error. The paragraph has been earlier set out by us. The following paragraph 64 records the finding: I find on the evidence before me that the prosecution has made out beyond reasonable doubt that the offence described in the Court Attendance Notice and particularised in the short particulars of the Court Attendance notice, has been established subject only to short particulars (v) and (vi) not being made out in their entirety. 85 This finding indicates that his Honour had the correct onus of proof in mind when considering whether the offence under s 136 had been made out by the respondent beyond reasonable doubt. Other matters

86 Two related issues which arose during oral hearing were whether the respondent was required to prove that the appellant relevantly obstructed both Mr Quirk and Mr Whitehead (as alleged in the charge) and whether the conviction could stand if the appellant could successfully raise the ground of exculpation against only one of the two men. According to the appellant, because the respondent elected to bring one charge against him in respect of the alleged obstruction against both men, the respondent cannot now resile from that election. Any attempt by the respondent to do so by suggesting that the charge could be made good by proving that the appellant obstructed Mr Quirk, but not Mr Whitehead, would mean that the charge was objectionable for duplicity. 87 No application was made in the proceedings below to amend the charge in order to cure any duplicity. No doubt that was because the respondent's case was that the appellant had obstructed both Mr Quirk and Mr Whitehead. The decision proceeded on the basis that the allegation involved both men. As we have found, the approach taken by the learned Chief Industrial Magistrate with regard to the "defence" does not disclose error. His Honour found that the respondent had successfully negatived the ground of exculpation by the appellant against both men. Orders

88 We make the following orders: (1) To the extent required, leave to appeal is granted. (2) The appeal is dismissed. (3) The appellant is to pay the respondent's costs of the appeal in an amount as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Criminal Code Act 1989(Qld)

Criminal Code Act 1913(WA)

Industrial Relations Act 1988(Cth)

Aubertin v The State of Western Australia (2006) 33 WAR 87 Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246 Chief of the General Staff v Stuart (1995) 58 FCR 299 CTM v The Queen [2008] HCA 25 Curran v Thomas Borthwick & Sons (Pacific) Ltd (No 1) (1990) 33 IR 6 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Environment Protection Authority v N (1992) 26 NSWLR 352 CASES CITED: Federation of Air Pilots v Australian Airlines Limited (1991) 36 IR 194 He Kaw Teh v The Queen (1985) 157 CLR 523 Maritime Services Board v Murray (1993) 52 IR 455 Ostrowski v Palmer (2004) 78 ALJR 957 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 67 ACSR 692 Proudman v Dayman (1941) 67 CLR 536 Re Refugee Review Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82 R v Mrzljak (2004) 152 A Crim R 315 R v Wampfler (1987) 11 NSWLR 541 Schubert and Another v Lee (1946) 71 CLR 589 Von Lieven v Stewart Kemish v Godfrey and Another (1990) 21 NSWLR 52

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