(a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or
(b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b),
that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person's obligation extends.
(3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not).
66 In McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464, the Full Bench considered a charge laid under s 17(1)(b) of the Act. In that case, the defendant, an engineer, provided advice to an engineering company in relation to work carried out on a particular site and the safety of plant equipment. The engineer provided incorrect advice about the safety of that plant equipment. The unsafe equipment collapsed and injured some people. The engineer contended that he gave his advice on 16 March 1994 and further advice on 21 May 1994. When the accident occurred on 6 July 1994, he no longer had any control over the plant or substance over which he had given advice. The prosecutor contended (at 477) that the engineer's submission "ignores the fact that the control exerted by the appellant to any extent did not arise until some act in reliance upon the admittedly erroneous advice" and that "it ignores the continuing nature of the obligation contractually assumed by the appellant".
67 The Full Bench held at 478:
The answer to the problem, on our approach, requires determination as to whether the concept of "control" in s 17 comprehends a continuing liability to ensure safety beyond the actual giving of the advice. If it does, then the prosecution here is sustainable as being within time; if it does not, then the charge must be dismissed as being statute barred.
68 Later, at 481, the Court stated:
Put another way, control must be shown to have been present on 6 July 1994 when the operative act or omission constituting the offence occurred.
69 The appellant contended that the analysis in McMillan Britton and Kell is relevant in this case to determine the interplay between s 17(1) and s 49(1) of the Act. The appellant submitted the operative act or omission constituting the offence as found by his Honour did not occur between 1 to 3 September 1998.
70 At the time of the accident on 3 September 1998 or at 1 or 2 September 1998, the appellant was not present at the premises. He had not been at the premises since 27 July 1998. In our view, he had no control at all over the premises or what was happening at the premises. He had not spoken to the builders or Mr Agapiou since 31 July 1998. Mr Papaianni's evidence was that the appellant was to be contacted by Mr Agapiou when the builders were ready for an inspection of the steel work. Mr Papaianni's evidence in the appeal proceedings is that he had never spoken to the appellant about the fact that there was to be an excavation in the rear of the premises. The appellant had no input into the activities being undertaken at the premises for the weeks prior to the accident. He had not been asked to provide any advice at any time after the work on the premises had commenced, nor had he provided any advice since the work on the premises had commenced. We therefore find that between 1 and 3 September 1998, the conduct of the appellant's undertaking had no real or substantial connection with the premises. We consider that the s 17 charge is therefore not made out.
71 The second ground of appeal advanced by the appellant was that his Honour failed to direct himself properly as to the burden and standard of proof and failed to make findings in accordance with the burden and standard of proof.
72 The essence of the appellant's criticism in respect of this ground of appeal is the language used by his Honour. In particular, the appellant pointed to his Honour's use of the word "prefer" submitting that such language is strongly suggestive of and consistent with findings on the civil standard but not the criminal standard. However, it seems to us that his Honour was clearly cognisant of the appropriate standard of proof and indeed found matters proved to that standard. In this regard, his Honour observed at [218]:
… These are the primary findings, which satisfy me, to the requisite standard, that a breach of s 16 against the defendant has been made out.
73 Furthermore, in written submissions provided to his Honour, the appellant submitted "[i]n order to succeed under s 16(1), the prosecution must prove, beyond reasonable doubt". The defendant submitted "[t]he elements of the offence created by this section, which must be established to the criminal standard of proof …".
74 His Honour made specific reference to the prosecutor's submissions in this regard at [139].
75 This ground of appeal is not made out.
76 The next ground of appeal was that there had been a miscarriage of justice in that:
(a) the prosecutor called Michael Papaianni as a witness in the proceedings in circumstances where he was being prosecuted by the WorkCover Authority of New South Wales ("WorkCover") under s 15(1) of the OH&S Act and that such prosecution was an abuse of process of the Court; and
(b) the prosecutor failed to advise the appellant or his lawyers before judgment that the proceedings against Mr Papaianni had been withdrawn or dismissed.
77 In order to deal with this ground of appeal, it is necessary to briefly set out the history of the proceedings against Mr Papaianni.
78 On about 10 March 2000, proceedings were brought by Christine Zaronias and her two dependent children in the Compensation Court of New South Wales. The proceedings were brought under section 25 of the Workers' Compensation Act 1987 ("the WC Act"). The application sought a declaration that Mr Zaronias ("the deceased") was a "worker" within the meaning of the WC Act. WorkCover was the second and fourth respondent to those proceedings because the first and third respondent, Michael Papaianni and Carl Hamilton were uninsured. WorkCover filed answers to the Application in which it denied that it was liable to pay the applicant the compensation claimed upon the ground that it did not admit that the deceased was a worker or a deemed worker within the meaning of the WC Act. At the hearing of the Application, Mr Candy, who appeared for WorkCover, called evidence from Andrew Lazars the effect of which was that the deceased was only a volunteer rather than a worker when he appeared at the premises on 3 September 1998.
79 On 28 May 2001, Acting Judge Burke found there was no contract of service between the deceased and Mr Papaianni, and therefore the applicant was not entitled to an award under the WC Act because he was a volunteer and not a worker.
80 On 31 July 2002, the Court of Appeal dismissed an appeal by the applicant. In his reasons Meagher JA (with whom Forster AJA and Ipp AJA agreed) held that the findings of fact made by Burke AJ were entirely open to him and were unsurprising. His Honour held at [8] that "once his Honour made his primary findings of fact by believing what Mr Papaianni said, the question "employee or volunteer" could only be answered one way, i.e. volunteer".
81 In separate proceedings on 1 September 2000, the respondent in this matter, Inspector Carmody, commenced proceedings against Mr Papaianni under section 15(1) of the OH&S Act. In the application for summons, it was alleged that Mr Papaianni employed the deceased to work as a general hand/labourer at the premises between 27 July 1998 and 2 September 1998. In the supporting affidavit by Inspector Carmody sworn on 31 August 2000, Mr Carmody deposed that "during the period on and prior to 3 September 1998 the builders employed Jim Zaronias (the "worker") as a casual labourer to work at the premises".
82 On 13 September 2000, Hungerford J ordered Mr Papaianni to answer the offences alleged by the prosecutor.
83 On 30 August 2002, Mr Papaianni sought orders that the summons against him under section 15(1) of the OH&S Act be dismissed as an abuse of process.
84 The appellant contended that WorkCover adopted two totally conflicting positions in relation to the legal relationship between Mr Papaianni and Mr Zaronias. In the Compensation Court proceedings, its position was that Mr Papaianni was not an employer and there was no contract of service between Mr Papaianni and the deceased. In the proceedings before the Industrial Relations Commission of New South Wales in Court Session, WorkCover took the opposite position.
85 Nextly, it was argued that his Honour had fallen into error by refusing to give Mr Papaianni a certificate under s 128 of the Evidence Act 1995.
86 On 25 March 2002, the hearing of the prosecution against both the Appellant and Mr Papaianni commenced. On the first day of the hearing, Mr Papaianni appeared without legal representation. His Honour adjourned the matters against Mr Papaianni to enable him to obtain legal advice. The matter was adjourned until 14 June 2002. Mr D Sibtain, who appeared as counsel for the appellant, applied for Mr Papaianni to give evidence "in relation to these proceedings against my client and for the production of a certificate [under s 128 of the Evidence Act]". …In view of the fact that he was no longer facing prosecution today, I would ask that a certificate be issued".
87 On 29 August 2002, Mr Papaianni was sworn. Immediately, there was a argument as to whether he should be required to answer questions and whether he should be given a certificate under s 128 of the Evidence Act.
88 During the course of argument, Ms P Lowson of counsel, who appeared for the prosecutor stated:
Mr Papaianni is called as part of the prosecution case essentially to avoid any inference being drawn from his non-attendance or his not being called because he was a person involved in the building works. …in terms of what we apprehend Mr Papaianni's evidence to be, none of it is directly linked to the prosecution against Mr Tsougranis that arises out of Mr Agapiou but because those various links it was my view that it was necessary to call Mr Papaianni to establish what he was doing and when and what was said when, to avoid any adverse inference being drawn.
89 The next day, Ms Lowson modified her position and stated that the prosecution was calling Mr Papaianni on certain matters to prove certain facts in the prosecution's favour. She cited as an example the issue of the receipt of the structural plans. She also stated that Mr Papaianni may give evidence that will be used to rebut a defence that would otherwise be raised.
90 During examination-in-chief, Ms Lowson began to ask Mr Papaianni questions about what work he had done on the premises. Counsel asked "did you dig the footing trenches in the backyard?" Mr Glover, solicitor, who appeared for Mr Papaianni objected to the question and applied for a certificate to be issued under s 128 of the Evidence Act.
91 There then followed very lengthy debate about whether Mr Papaianni should give evidence and whether he should be given a certificate. Both the prosecutor and counsel for the appellant submitted that it was in the interests of justice for Mr Papaianni to give evidence. Counsel for Mr Papaianni submitted that it was not in the interests of justice.
92 Mr Sibtain's submission was that Mr Papaianni should give evidence and that he should be given a certificate. He said that he would ask questions of Mr Papaianni, and:
Those answers to those questions will be fundamental to the issue that needs to be resolved in these proceedings which is the causal connection between the conduct of my client, and risk, which obtained at the site.
Now it will be fundamental to any attack that my client will be entitled to make on that causal connection that he can explore other relevant causal matters arising by reason of the conduct of others. That will include the conduct of this witness and the conduct of other witnesses will proceed on a similar basis as Mr Agapiou but they are in a different position by reason of the state of his proceedings but the same necessity obtains in respect of this witness as it did and does with Mr Agapiou.
93 During the course of lengthy argument, Mr Sibtain said that the appellant would suffer prejudice if the evidence of Mr Papaianni and Mr Hamilton could not be given. He said that his Honour should compel the witnesses to give evidence.
94 In the course of his judgment, Haylen J referred to the cross-examination that Mr Sibtain proposed to pursue, which would involve asking Mr Papaianni questions about the work he performed on the site and especially the work performed in digging the trenches in front of the wall that collapsed.
95 Haylen J found that Mr Papaianni had established that he has reasonable grounds for his objection to giving evidence. His Honour also found that it was not "in the interests of justice" that Mr Papaianni should give evidence pursuant to section 128(5) and (6) of the Evidence Act.
Withdrawal of proceedings against Mr Papaianni
96 On 12 December 2002 the evidence in this matter concluded before Haylen J.
97 On 11 February 2003, the prosecution against Mr Papaianni was dismissed by consent in proceedings before Staunton J.
98 Haylen J's judgment was delivered on 10 April 2003 when his Honour determined the issue of the appellant's guilt.
99 Neither the appellant nor his instructing solicitors were informed prior to 10 April 2003 that the proceedings against Mr Papaianni had been dismissed.
100 The appellant submitted that the conduct of the prosecution was questionable because in the Compensation Court, WorkCover had submitted that there was no contract of service between Mr Papaianni and the deceased whereas they were required to prove precisely the opposite in the prosecution against Mr Papaianni. First, the appellant contended that it was misconduct to call Mr Papaianni as a witness in the appellant's hearing in circumstances where the prosecutor knew that there was a serious risk that Haylen J would not require him to give evidence. At the very least, it was submitted, the prosecutor's duty of fairness required that the matter should have been canvassed at the commencement of the hearing. If Haylen J ruled that Mr Papaianni was not required to give evidence, the prosecution should have prosecuted Mr Papaianni before it commenced its prosecution against the appellant.
101 Secondly, it was submitted the prosecutor breached its duty to both the Court and the appellant in failing to disclose that the proceedings against Mr Papaianni had been dismissed.
102 The appellant, in effect, submits that the test as to whether the failure to disclose the withdrawal of the proceedings against Mr Papaianni resulted in a miscarriage of justice is whether, as a result of that failure, the appellant lost a fair or real chance of acquittal.
103 The respondent conceded in respect of this ground of appeal that the prosecutor called Mr Papaianni as a witness in the proceedings in circumstances where he was being prosecuted by the prosecutor under s 15(1) of the OH&S Act and that this had the effect of limiting the evidence he gave in the trial and that the prosecutor failed to advise the appellant or his lawyers before the judgment on 10 April 2003 that the proceedings against Mr Papaianni had been withdrawn or dismissed.
104 Furthermore, the respondent conceded that if the fresh evidence given by Mr Papaianni on appeal would have changed the result of the trial, the appellant is entitled to succeed on appeal.
105 In light of the decision that we have reached, it is not necessary for us to determine the issue concerning Haylen J's refusal to issue a certificate under s 128 of the Evidence Act. That issue, in effect, became hypothetical as the appeal developed. The circumstances became quite different to those that existed at the relevant time before Haylen J. There was no longer any prosecution pending against Mr Papaianni and the circumstances have been further overtaken by the Full Bench permitting the issue of a summons requesting Mr Papaianni to give evidence.
106 We now turn to the appellant's allegation of a miscarriage of justice and associated matters raised in the amended notice of appeal concerning the conduct of the prosecution. We have earlier referred to the observations of the Full Bench in the interlocutory judgment and the apparent tactical approach taken by the respondent. However, subject to one matter, and notwithstanding our misgivings as to the respondent not calling further evidence in the appeal, we do not consider the issues raised in this regard by the appellant have been made out. We are concerned at the apparent difference in approach taken by the prosecutor in these proceedings and by the WorkCover Authority in the Compensation Court and the Court of Appeal. Nevertheless, although the prosecutor was an officer of the WorkCover Authority, there is no evidence to suggest that he had any role in the proceedings in the other jurisdictions and certainly had no control over them. In these circumstances, we cannot conclude that the differential approach in the respective jurisdictions involved a miscarriage or prosecutorial misconduct.
107 We do, however, consider that a miscarriage occurred because of the failure to advise the appellant of the dismissal of the proceedings against Mr Papaianni at a time prior to the appellant being either found guilty of the offence alleged against him, or convicted and fined in respect of the offence. Nevertheless, we discern no basis to make any adverse finding against the prosecutor's legal representatives, at first instance, since we understand counsel in these proceedings had returned the brief in the proceedings concerning Mr Papaianni and alternate counsel had been briefed; nor is there any suggestion that counsel was involved in the proceedings in other jurisdictions.
108 It may be appropriate to make some general observations as to the duties of a prosecutor. Those duties were recently considered by the Court of Criminal Appeal in R v Kneebone (1999) 47 NSWLR 450 which summarised various applicable judgments of the High Court, see particularly the observations of Greg James J at [39] - [45] as concurred with by Spigelman CJ).
109 It is well recognised that a failure of a prosecutor to comply with his/her duty as prosecutor (as discussed by the High Court in the cases referred to in Kneebone) may amount, depending on the circumstances, to a miscarriage and the ordering of a new trial.
110 Whilst the cases discussed above dealt expressly with the question of the failure of the prosecutor to call a witness to give evidence, it was emphasised that the responsibility of the Crown prosecutor is to "act with fairness and detachment… and of helping to ensure that the accused's trial is a fair one": see Whitehorn v The Queen (1983) 152 CLR 657 at 663 - 664.
111 Similar considerations also apply when a question of the disclosure to the defence of documentary material in the possession or power of the prosecutor arises and such material would tend to assist the defence case. The deliberate withholding of such material could well constitute a miscarriage of justice when viewed against the conduct of the whole trial and so lead to the setting aside of the conviction: R v Reardon (No 2) (2004) 60 NSWLR 454 and R v Spiteri (2004) 61 NSWLR 369.
112 It may well be important where the prosecutor is a person such as an inspector of the WorkCover Authority of New South Wales and where the Authority is taking a certain, or different, position on the facts and the law in other proceedings which relate even indirectly to the prosecution, to advise a defendant of all relevant circumstances, irrespective of where the proceedings have reached.
113 The remaining ground of appeal seeks to raise whether his Honour erred in failing to give himself appropriate warnings, cautions, or directions, concerning the evidence of Messrs Papaianni, Hamilton and Agapiou.
114 The appellant here relies upon s 133 of the of the Criminal Procedure Act 1986 which provides: