Salvatore Scevola v Inspector Robert Sealey [2005] NSWIRComm 173 | Case summary

INTRODUCTION 1 In 2002, Mr Scevola was found guilty of a breach of s 244 of the Workplace Injury Management and Workers Compensation Act 1998 by his Honour, Industrial Magistrate Reece, and was fined the sum of $5,000 plus professional costs and court costs. The offence related to Mr Scevola's position as a director of a corporation which had contravened the provisions of s 155(1) of the Workers Compensation Act 1987 in failing to obtain workers compensation insurance. Mr Scevola now seeks leave to appeal only the severity of the penalty imposed and in particular wishes to put forward reasons why it would be appropriate for him to be dealt with pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 and in relation to those matters wishes to call fresh evidence on the appeal. PRELIMINARY ISSUES ON APPEAL 2 On the opening of the appeal, two preliminary and related matters were raised on behalf of Mr Scevola. Firstly, it was submitted that the appeal remained to be dealt with under the provisions of the Justices Act 1902 as the proceedings related to a matter that was dealt with before the provisions of the Crimes (Local Courts Appeal and Review) Act 2001 became operative. That aspect of the matter was not in contest. Mr Scevola however argued that on a proper construction of the Justices Act in combination with the provisions of Chapter 4, Part 7 of the Industrial Relations Act the appeal to the Commission in Court Session was an appeal de novo, not requiring leave, and thus involving a rehearing with the appellant able to call additional evidence to that before the Industrial Magistrate, and to do so as of right. It was submitted that the decisions of two Full Benches in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 and Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246 could be distinguished, or alternatively, were wrongly decided: if necessary, Mr Scevola sought leave to re-argue the correctness of Drake Personnel. It would appear that this course was adopted as Mr Scevola wished to rely on the report of a psychologist and wished to tender additional evidence constituted by character references and a short affidavit of Mr Scevola dealing with his financial position and his employment and community activities after his conviction in 2002. 3 A further issue which added to this complex mix was the fact, conceded by the prosecutor, that his Honour, Industrial Magistrate Reece, had imposed the penalty of $5,000 on Mr Scevola in the mistaken belief that the maximum penalty for this offence was $55,000, when in fact the maximum penalty was $22,000. Mr Scevola had no prior convictions and had raised significant subjective considerations in the evidence and submissions on sentence. It was conceded by the prosecutor that in these circumstances, leave to appeal should be granted although the approach in Drake Personnel should be maintained and that new evidence on appeal could not be allowed as of right. 4 On 4 May 2005, the Full Bench delivered an ex tempore interlocutory judgment granting leave, to the appellant, pursuant to s 191(2) of the Industrial Relations Act 1996, to introduce further evidence, the contents of which are described later in our judgment (see paragraph [14]). We also gave some consequential directions and indicated that we would give reasons in due course. These are our reasons for decision. NATURE AND SCOPE OF THE APPEAL 5 Counsel for Mr Scevola argued that the March 1999 amendments to the Justices Act 1902 affected the nature of conviction appeals to the District Court: under s 132 and s 133 conviction appeals were no longer to be heard de novo as had been the longstanding practice, but such appeals were now to be by way of rehearing on the transcript of evidence before the Local Court unless the District Court directed a person to attend to give evidence in person. Those provisions were in the following form: Section 132(1) An appeal against any conviction or order made by a magistrate is to be by way of rehearing on the transcripts of evidence heard before the Magistrate, except as provided by s 133. ... (3) On such an appeal, new evidence may be given only with the leave of the District Court, if the Court is of the opinion that it is in the interests of justice that the evidence be given. ... Section 133(1) The District Court may direct that a person attend to give evidence in person at an appeal proceeding referred to in s 132 if: (a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the court is of the opinion that there are special reasons why, in the interests of justice, the witness should attend to given evidence, or, (b) in any other case - the court is of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give evidence. 6 The Justices Act was later amended by the introduction of s 131A which dealt with appeals to the District Court against sentence. Section 131A commenced operation on 1 September 1999 and is therefore relevant to these proceedings, and provided as follows: An appeal against the severity of a sentence is to be by way of rehearing of the evidence heard before the Magistrate who imposed the sentence, and new evidence or evidence in addition to, or in substitution for, the evidence given in relation to the sentence appealed against may be given on appeal. 7 In relation to these provisions, the respondent analysed the two Full Bench decisions in Drake Personnel and Blue Mountains Disability Services. The decision in Drake Personnel was made prior to the introduction of s 131A. In that case, a Full Bench of the Commission in Court Session dealing with an appeal from the Chief Industrial Magistrate in relation to proceedings alleging a breach of s 15(1) of the Occupational Health and Safety Act 1983 concluded that an appellant was required to obtain leave to appeal pursuant to s 188 of the Industrial Relations Act 1986 where the appeal was brought under s 197 of that Act and s 47(4) of the Occupational Health and Safety Act. The Full Bench was of the opinion that such an appeal was not to be dealt with as a hearing de novo but required leave and was to be governed by the principles applicable to appeals generally brought under Part 7, Chapter 4 of the Act. 8 In Blue Mountain's Disability Services, an appeal had been lodged in relation to the failure to apply the provisions of a particular State award in proceedings before the Local Court. Again, in these proceedings a question arose as to whether leave to appeal was necessary or whether the appeal lay as of right. 9 When this case was heard the March 1999 amendments had been made to the Justices Act 1902 and although the case did not deal with an appeal against conviction or severity of a penalty imposed by a Magistrate where there was an appeal to the Industrial Relations Commission in Court Session, there was a debate as to whether the decision in Drake Personnel was still good law in light of the March 1999 amendments. While the Full Bench acknowledged (as had the Full Bench in Drake Personnel), the tension between the provisions of s 188(1) and the provisions of the Justices Act imported by s 197(2) of the Industrial Relations Act, ultimately it was concluded that the majority decision in Drake Personnel (with which Peterson J agreed) canvassed in detail a number of relevant authorities dealing with the proper approach to the construction of these legislative provisions and that after reviewing those authorities, the whole of the Court concluded that leave was required under s 188(1) of the Industrial Relations Act 1996. Specifically, that Full Bench concurred with the reasoning of the Full Bench in Drake Personnel and also expressed the view that the later amendments to s 197 did not impact in any way upon the force of the reasoning of the Full Bench in Drake Personnel. 10 The appellant submits that the decisions in Drake Personnel and Blue Mountains Disability Services can be distinguished: Drake Personnel on the basis that it deals with the position prior to the March 1999 amendments to the Justices Act, and, Blue Mountains Disability Services because it deals with a civil proceeding under the Justices Act and not the criminal jurisdiction of the Local Court. Nevertheless, without filing a formal contention seeking to have the decision in Drake Personnel overturned, the appellant submits that the Full Bench analysis effectively overrides the operation of s 197(2) and ignores the provisions of the Justices Act such as to give the subsection effectively no work to do. 11 In both Drake Personnel and Blue Mountains Disability Services, each Full Bench noted the tension between the provisions of the Justices Act and the terms of Chapter 4, Part 7 of the Industrial Relations Act 1996. In each case there is close consideration of the competing contentions and an attempt made to harmoniously bring together the provisions having regard to the fact that the appeals are to be heard by the Commission in Court Session. Each decision notes the difficulty of the task and the unsatisfactory legislative approach of incorporating provisions of another Act into a well established appeal system under the Industrial Relations Act. Those two decisions have now stood for some time and the appellant seeks to re-agitate the rejected arguments at a time when the relevant provisions under s 197(2) are those of the Crimes (Local Courts Appeal and Review) Act 2001, which arguably have a clearer operation than the previous Justices Act provision. In those circumstances, there is no warrant to reconsider the approach of the Court in Drake Personnel and Blue Mountains Disability Services, especially where the 1999 amendments to the Justices Act did not bring about such a fundamental change as to render otiose the decision in Drake Personnel. 12 Counsel for Mr Scevola analysed the provisions of the Justices Act and the provisions under Chapter 4, Part 7 of the Industrial Relations Act but ultimately those arguments were in many respects a re-positioning, with perhaps different emphasis, of the arguments dealt with by the Full Benches in Drake Personnel and Disability Services. Nothing has been put that would call for a reconsideration of those arguments and the Court announced, at the conclusion of argument, that leave would not be granted to re-argue, in particular, Drake Personnel and that the principles laid down in that case (which had been followed on numerous occasions since) would be applied to this appeal. 13 It follows that the appeal in this matter requires leave and any application to call evidence additional to that appearing in the transcript of the Local Court will need to meet the test of s 191(2). APPLICATION TO ADDUCE FRESH EVIDENCE 14 The additional evidence sought to be adduced on appeal by the appellant can conveniently be identified as follows: (a) a further affidavit of the appellant dealing with his work history and living circumstances since 2003 together with a list of public bodies and his involvement with them and an acknowledgement of his error in judgment in not having the courage to stand up to his father in the running of the business and in particular making the payment for workers compensation premiums and some short additional evidence relating to the below mentioned psychologist's report; (b) a number of character references; (c) a medical report of some six pages provided by Mr Ross Colquhoun, a registered psychologist. 15 The respondent opposes the adducing of further evidence by the appellant insofar as that evidence simply restates material that was already before his Honour Industrial Magistrate Reece - that material concerns the appellant's membership of public bodies and his relationship with his father. 16 In relation to the medical evidence, that is totally new. The report from the psychologist proceeds on the basis of facts recounted by the appellant which were not raised in the proceedings before his Honour. Those facts include an allegation of a" traumatic childhood" and that the appellant regularly witnessed his father beating his mother and siblings. The appellant claims that one brother had to leave home at aged 15 to escape the violence and although the appellant was subject to physical abuse, his father was much harder on his brothers and sisters and he thereby learned to obey his father without question and to keep clear from him at an early age. He had learned not to step out of line in order to avoid any physical clash - he was "petrified of him" and his father "struck terror into his heart". There was an allegation that the appellant's father often slept in the lounge room with a loaded gun near him and reported feeling that his father was involved in unsavoury activities and was associated with shady characters. He could only imagine what his father may have done but there were times when relatives or close friends would go missing and he became aware or believed that they had been murdered: he had heard his father talking of "compari" who were shot dead and felt that his father had been involved although he had no direct knowledge of these matters. The appellant said he lived in fear and terror all his life and had learned to keep his head down and present a small target: nevertheless, his father was a "very religious man with the church being paramount in his life". He now felt a sense of despair, helplessness and sorrow in what had happened to his family, as one of his brothers had become addicted to drugs and did so as a direct result of his brutal upbringing - he also felt that his own illness, which nearly killed him, was the result of the stress of working in a family business knowing that things were not being performed properly or ethically. 17 The respondent contended that if the psychologist's report was received, it would wish to rely on a report which cast doubt on the validity of the statements made by the appellant in the absence of verification. 18 In accordance with the provisions of s 191(2) there is no reason why leave should not be given to the appellant to adduce further evidence as to his working history following the proceedings in the Local Court and giving some detail of his current financial circumstances. The character evidence may also be dealt with in a similar way as it confirms that since his conviction the appellant has continued to play an active role in community activities and to be well regarded for his commitment to concepts of social justice. 19 The psychologist's report raises different considerations. The appellant's initial response to the enquiries of Inspectors was that there had been a failure to pay the workers compensation premiums because of his youth and business inexperience. The appellant explained that it was only after his father had died that he was able to recount to the Local Court how he was unable to resist his father's control and direction associated with the business and the direction that the workers compensation premiums were not to be paid. The matters now raised concern physical abuse against the appellant, his siblings and his mother, his father's possession of a gun and possible connection with a criminal culture including the possibility that he was involved in murder. It is appropriate to note that the appellant was self represented in the Local Court proceedings. 20 In order to have the additional evidence admitted on the appeal, Mr Scevola is required to meet the provisions of s 191, and in particular sub-sections (1) and (2), namely: (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. 21 A Full Bench of the Commission has recently considered these provisions and what might constitute "special grounds". In Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch (2003) 130 IR 284, consideration was given to similar provisions in s 75A of the Supreme Court Act 1970 whereby on an appeal by way of rehearing, further evidence would only be received on "special grounds". In relation to those provisions, the Full Bench stated: 74 The leading authority on the admission of further evidence in this jurisdiction is the judgment of the Full Bench in CCH Australia Ltd v Bowen (1998) 79 IR 206 (noting it was adopted by the Full Bench in Knowles v Anglican Church Property Trust No.2 (1999) 95 IR 380). We also note that in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435, the Full Bench refused to admit further evidence as it would not have "further[ed] a determination of the essential issue" on appeal: see [4] - [6].... 79 We agree with the observation of the Full Bench in Bowen that the resolution of an issue relating to further evidence on appeal "must depend upon the appellate court's assessment of what will best serve the interests of justice" and that the approach to the admission of further evidence may be different, depending upon the circumstances in which the further evidence came to light. 81 A leading authority on what may constitute "special grounds" for the purpose of s 75A(8), is the judgment of Clarke JA in Akins v National Australia Bank (1994) 34 NSWLR 155, where his Honour stated at 160: Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.

86 Finally, we would note that in the decision of the High Court in Quade, adopted in Bowen and relied upon by the appellant in the present case, the Court was at pains to emphasise that the observations it was there making were: … not directed to the case where the trial itself has miscarried "through misdirection, misreception of evidence, wrongful rejection of evidence or other error" or to a case of "surprise, malpractice or fraud". Such cases cannot properly be seen as mere cases of "fresh evidence". 87 This case does not involve any "misconduct" on behalf of the appellant. Nor do the circumstances permit a conclusion that the appellant had failed to apply "reasonable diligence" in ascertaining the evidence in the course of preparing for the proceedings below. Whilst we would, in general, agree with the three-pronged "test" in Akins (noting that these observations are consistent with the approach taken in Bowen and in particular point (2)), such observations are of little utility in the present circumstances. 22 Having regard to these authorities, we are satisfied that special circumstances exist in this case and that justice requires that the additional evidence be received. The affidavit evidence and character evidence largely deals with Mr Scevola's continued involvement in community affairs, his dedication to civic duty and his current financial circumstances since the conviction in 2003. This material is uncontroversial and most of it would fit within the second limb of s 191(2). 23 In relation to the psychologist's evidence, the circumstances of the appellant appear to be quite unusual, if not unique. The appellant was unrepresented in the local Court and while he gave evidence together with his mother and one of his brothers as to the domineering role of his father, it is submitted that he had no idea of the depth of his father's controlling behaviour upon his own conduct. It was only when, for the purposes of the appeal and on legal advice, he was assessed by a psychologist that he revealed the full dimensions of his father's controlling behaviour and physical abuse of members of the family, including the appellant's mother, the fact that the appellant had learned to avoid a physical confrontation of his father by complying with his every wish and the revelation that his father appeared to have unsavoury connections was possibly associated with the death of people in his community and had been in the habit of sleeping with a loaded gun by his side. The picture presented by the psychologist's report is not one of simple overbearing behaviour in a patriarchal sense but of a violent and nasty domestic environment in which the appellant had lost the capacity to make his own decisions and felt compelled to make decisions to comply with his father's demands. 24 The psychologist's report is also to be considered in the following context: (a) the appellant contested the breach in the Local Court, relying on much more general evidence about the overbearing nature of his father and his control of the company. On appeal, Mr Scevola accepts his guilt but seeks to address the appropriateness of the penalty; (b) the appropriateness of the penalty is, in any event, required to be considered because his Honour was wrongly informed of the penalty and set the penalty by reference to a much higher maximum penalty regime; (c) being self represented in the Local Court proceedings the appellant was in no position to make decisions as to the necessity or importance of a psychologist's report nor was he equipped to properly understand the possible far reaching consequences of his father's overbearing and controlling behaviour on his own conduct. Indeed, the psychologist's report suggests that he demonstrated a denial of the symptoms of his condition (or at least a lack of insight into them). 25 The prosecutor has indicated that if this evidence is admitted it will introduce evidence of its own expert and will cross-examine the appellant's psychologist as to the basis of the opinions expressed in his report. The evidence as it stands at the moment raises the potential for the Court to find, in the re-sentencing process, that the appellant's mental state was such that he had no ability to withstand the demands and directions of his father and that his culpability as a director of the company for this offence might be measured in that context. It is appropriate, in these extraordinary circumstances, that the appellant be given the opportunity to establish a particular state of mind that directly relates to the way in which the business was conducted and how the business decisions were made. That evidence, realistically, was not available at the time of the Local Court hearing. 26 The appeal has been relisted on 6 & 7 October 2005 to receive the fresh evidence submitted by the appellant and the evidence in response submitted by the respondent and to hear the submissions as to penalty.

Salvatore Scevola v Inspector Robert Sealey

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