Woods v Industrial Relations Secretary on behalf of the Office of the Director of Public Prosecutions

Legal principles

1. Under s 100C(2) of the IR Act, the Commission may decide to allow or disallow the Appeal or make such other decision with respect to the Appeal as it thinks fit.
2. In Marroun v State Transit Authority [2017] NSWCA 273 the Court of Appeal examined the Commission's jurisdiction under Ch 2 Pt 7 of the IR Act. From that decision it is possible to derive the following principles: 1. An appeal under Ch 2 Pt 7 is a fresh hearing of the allegation of misconduct (or an administrative hearing de novo). (In Marroun it was common ground that the proceeding before the Commission was a fresh hearing: at [29]. The Court stated that a conclusion that an appeal under Ch 2 Pt 7 is a fresh hearing was supported by the decision of the High Court in Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60: at [30]; see also [32] and [34].) 2. An appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is a specific charge or complaint before the employer which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: at [35]. In other words, the Commission is to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged; and second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken: at [45]-[47] and [62]. 3. If the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: at [62]. 4. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer: at [35]. The appeal is "a fresh exercise of administrative power"; it is not the exercise of a different power for the first time: at [48], relying on Calman. 5. Post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven: at [56], citing Maritime Services Board v Murray (1993) 52 IR 455. 6. If the Commission allows the appeal, it may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63].
3. The Industrial Relations Secretary ("Secretary") bears the evidentiary burden of establishing that Mr Woods engaged in the alleged misconduct: Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-4.
4. The misconduct must be established on the balance of probabilities. As observed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. …Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
5. The Decision was made pursuant to s 69 of the GSE Act, which relevantly provides: 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: … Misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, … (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. …
6. Section 69 does not seek to define "misconduct" for the purposes of the GSE Act. In Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Button J observed: "106. Secondly, it is true that the concept of misconduct is not defined in the GSE Act, and is in that sense open-ended. It is also true that the section extends the concept to a number of particular circumstances, without being exclusive in that extension. Nevertheless, I think that the nature of the extension is important: it suggests that Parliament regarded the concept of misconduct as not otherwise encompassing those circumstances without the extension. …" (Emphasis in original)
7. I have applied the principles above in determining the Appeal.

Did Mr Woods engage in misconduct?

1. There is no real controversy as to the facts of 5 February 2020. Mr Woods admitted to using the words ascribed to him in the File Note. Under cross-examination he added a detail, asserting that he was responding to a question from SD, "What is Mr Hanna getting at with his questions?". [4]
2. Mr Woods also did not dispute that he made the gestures. He has consistently stated that he did not do so consciously and that he has no recollection of doing so. Under cross-examination he deposed that he had been told by Ms Dowling that he had used the gestures and that as he could not "think of any reason why she would fabricate such an allegation" he accepted that he must have done so. [5] He stopped short of admitting to the conduct. This resulted in some equivocation in his oral testimony. On numerous occasions, when asked to comment on his conduct, Mr Woods qualified his answer with words to the effect "if I did it". As an example, under cross-examination he had the following exchange with Mr De Brennan of counsel, who appeared for the Secretary: [6] "Q. So you accept there, don't you, that your conduct wasn't appropriate on that day? A. If I made that gesture, it was certainly not appropriate."
3. Mr Woods' assertions that he has no recollection of making the gestures are difficult to reconcile with his immediate responses to being challenged over his behaviour. When told by Ms Dowling on 5 February 2020 that he had acted inappropriately he did not ask what he had done; he apologised and stated that he "was just trying to illustrate [his] point". The next day he apologised again to SD. The File Note, which he has repeatedly stated accurately reflects both the events of 5 February 2020 and his conversation with Ms Zsidi, contains nothing to suggest that Mr Woods did not recollect his conduct. The words reproduced at [7] above suggest the opposite.
4. In the circumstances, the only available finding is that Mr Woods engaged in the conduct described at [2]-[1] above, and I so find. The next question is whether that conduct amounted to misconduct on the basis asserted by the ODPP.
5. A problem for the Secretary arises from the way in which the allegations against Mr Woods were cast. Those allegations, both of which were found by Mr Hyland to have been substantiated, were that Mr Woods: 1. "spoke inappropriately" to SD; and 2. in the course of the conversation "made gestures that in context could be considered coaching".
6. As the Court of Appeal in Marroun made clear, where there is a specific charge or complaint before the employer which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: see [21(2)] above.
7. It was conceded by the Secretary at the hearing that of themselves there was nothing inappropriate in the words spoken by Mr Woods. It was submitted that the two allegations "need to be seen collectively" in the sense that "one informs the other". [7] In effect, the words spoken are rendered inappropriate by the accompanying gestures.
8. It is clear from the second allegation that the gestures were to be considered "in context", which can only be a reference to the context of the conversation. On the face of the allegations, the second is informed by the first. I am not persuaded that the reverse applies.
9. The Secretary has not discharged his onus of establishing the first allegation.
10. To paraphrase the second allegation, it contends that during the conversation with SD on 5 February 2020 Mr Woods made gestures which, in the context of the words being said at the time, could be considered coaching. Mr Woods denied any intention to coach the complainant. He claimed that the gestures were made unconsciously, at the end of a long and tiring day. Mr Woods disputed, further, that his conduct amounted to coaching.
11. I accept that in the context in which they were made, Mr Woods' gestures could have amounted to coaching the complainant. They were made in response to SD asking what Mr Hanna was "getting at". They indicated how the complainant should answer the questions being put to her by Mr Hanna: Re Equiticorp Finance Ltd; Ex parte Brock (No 2) (1992) 27 NSWLR 391 at 395.
12. Mr Woods is a solicitor of long standing who, through his evidence, demonstrated an awareness of the standards expected of him. In his letter of 27 March 2020 he stated that he was "appalled" when told what he had done; that his conduct was "totally unacceptable"; and, that it fell short of the "high professional standards" that he sets for himself. In his oral testimony he accepted that making the gestures was "totally inappropriate". [8]
13. In his employment with the ODPP Mr Woods was subject to the ODPP Code of Conduct ("Code"). The version of the Code in evidence is dated December 2019, which Mr Hyland confirmed in his oral testimony was the one on which he relied in making the Decision. While there was some suggestion made by Mr Woods that that version was not promulgated until April 2020, I am satisfied on the evidence that it had been made available to staff, including Mr Woods, in December 2019.
14. The Code relevantly provides: "Overview … These principles and standards are integral to the ODPP fulfilling its role in the NSW criminal justice system as a fair, just and independent prosecution service, and to maintaining public confidence in its integrity. … ODPP Signature Behaviours All work and conduct at the ODPP should be characterised by its Signature Behaviours. These are a key aspect of the ODPP Strategic Plan and a component of staff performance development. The ODPP Signature Behaviours are: • Act with integrity, by behaving ethically and professionally and adhering to public service values… … • Be accountable, by taking responsibility for your actions, adhering to legislation and policy… … • Promote a supportive environment… … Public sector obligations All staff employed under the Government Sector Employment Act 2013 (GSE Act) are also legally obliged to comply with the Ethical Framework for the government sector, which Part 2 of the Act establishes. The Code of Ethics and Conduct for NSW Government employees identifies the mandatory requirements and best practice conduct consistent with the Ethical Framework. … The Framework's core values are integrity, trust, service and accountability. The ODPP's Signature Behaviours align with these values and the two should be read together as a unified set of ethics and values. … Professional conduct Your professional behaviour should uphold the reputation of the ODPP and promote confidence in the integrity of its operations and processes. As outlined in the Signature Behaviours, this means: • acting with honesty, consistency and impartiality … • taking responsibility for your actions … • being prompt, courteous and professional in all communications with colleagues and stakeholders…"
15. Mr Woods' conduct was inconsistent with the Code. It was neither ethical nor professional, and did not promote a supportive environment. It failed to uphold the reputation of the ODPP and promote confidence in the integrity of its operations and processes.
16. Mr Woods was also required to comply with the NSW Charter of Victims [sic] Rights ("Charter"). He accepted in his oral testimony that he understood his obligations under the Charter. The Charter includes the following statement: "A victim will be treated with courtesy, compassion, cultural sensitivity and respect for the victim's rights and dignity."
17. In his conduct on 5 February 2020, Mr Woods failed to meet this standard.
18. I have found that Mr Woods engaged in the conduct described in the second allegation. Having regard to the matters discussed above, I find that it constituted misconduct.

Appropriate disciplinary action

1. In his letter of 13 August 2020 Mr Hyland set out the objective and subjective factors that he took into account in coming to the Decision. In summary, the objective factors were that Mr Woods' conduct: 1. had the "potential to create significant reputational damage to the ODPP"; 2. was crude and caused offence to the complainant, a matter of particular significance given that the gestures were of a sexual nature and the trial was in relation to historical sexual offences committed against the complainant; 3. resulted in the Crown Prosecutor withdrawing two counts on the indictment that were referable to the gestures; and 4. was consistent with a prior complaint, such that it cannot be regarded as an isolated incident.
2. Mr Woods took particular issue with the third and fourth of these factors.

Withdrawal of charges

1. In his letter of 27 March 2020 Mr Woods called into question whether his conduct should have resulted in the two charges being withdrawn. This was further developed in the letter of RJI Legal dated 20 May 2020 into an assertion that Mr Hanna had improperly relied on Mr Woods' conduct as an excuse to withdraw the charges when he should have done so previously and for other reasons, namely the charges "not coming up to proof". That continued to be the case pressed by Mr Woods in these proceedings.
2. Given the way in which the matter unfolded at the hearing, it is not necessary to explore Mr Hanna's conduct or his motivations. Mr Patrick Woods, the solicitor who appeared for Mr Woods, submitted that Mr Hanna is "facing other disciplinary proceedings at the instigation of the Bar Council and I think it can be left to them to deal with Mr Hanna". [9]
3. Mr Hyland stated that his conclusion that Mr Woods' conduct resulted in the withdrawal of the charges was "one factor to consider in determining the objective seriousness of the conduct" [10] . Under cross-examination he accepted that it had informed his decision as to the disciplinary action to take against Mr Woods.
4. In his letter to Mr Woods of 13 August 2020 Mr Hyland wrote: "By reference to the no further proceedings submission of Mr Hanna dated 14 February 2020, a file note of Mr Hanna dated 7 February 2020, an email from Mr Hanna to the accused's representatives dated 7 February 2020 and a file note of Alanna Coxon, Solicitor, dated 6 February 2020 recording disclosure of the conduct to the accused's representatives, I have concluded that the Murwillumbah offences (counts 6 and 13 in the trial indictment) were withdrawn as a result of your conduct."
5. None of the documents to which Mr Hyland referred in his letter are in evidence in these proceedings, and it appears that they were not disclosed to Mr Woods prior to the Decision being made.
6. As the Secretary submitted, I had the benefit of Mr Hyland's sworn testimony. I accept that Mr Hyland formed the conclusion he did and that he regarded it as the proper conclusion based on the evidence before him. However, in circumstances where the Commission "stands in the shoes of" the decision-maker, the question is not whether Mr Hyland's views were genuinely held but whether the evidence allows me to reach those views.
7. It was further submitted by the Secretary that I could draw an inference from the coincidence in timing between the exchange of 5 February 2020 and the charges being withdrawn. I accept those submissions, but they do not provide a complete answer to the concerns raised by Mr Woods.
8. Mr Woods submitted that the withdrawn charges were "backup charges" that would only have become relevant had the prosecution failed on the primary counts. As the defendants were ultimately convicted on the primary counts, the backup charges would have fallen away. I do not consider that this greatly advances Mr Woods' case, being very much a situation of wisdom with hindsight.
9. To the extent that the Secretary contended that the withdrawal of charges was a factor which weighs on the question as to the appropriate disciplinary action to impose on Mr Woods, I have taken it into account. However, the weight I have attributed to this factor reflects the concerns I have raised.

"The 2015 matter"

1. Mr Hyland's letter of 4 May 2020 referred to a finding he had made against Mr Woods in 2015. His letter of 13 August 2020 made reference to "[t]he 2015 matter" which he said placed Mr Woods' conduct on 5 February 2020 "in context in that it cannot be regarded as an isolated incident". For convenience, I will adopt the nomenclature of "the 2015 matter" to refer to the events described below.
2. A significant amount of evidence was led regarding the 2015 matter. It is not necessary that I traverse it all. Suffice it to say, on or about 7 January 2014 a complainant in a criminal matter, who for the reasons set out at [79] below I will refer to as "LS", complained about Mr Woods' conduct during a conference he held with her on 8 November 2012. Mr Woods provided Ms Zsidi with a response to that complaint on approximately 15 April 2014. He denied that his behaviour towards LS was in any way inappropriate. Ms Zsidi wrote to LS on 29 September 2014.
3. This response did not satisfy LS, who on 4 March 2015 wrote to the Director of Public Prosecutions further agitating her complaint. The matter was referred to Mr Hyland by Mr Keith Alder, a Deputy Director, on 27 March 2015, for investigation. Mr Hyland made enquiries of two people who were present during the conference in 2012. Mr Hyland did not inform Mr Woods of the information he obtained from those individuals and did not seek any further information from him in relation to the incident. He relied only on Mr Woods' memorandum of 15 April 2014 in making his determination.
4. On 13 May 2015 Mr Hyland wrote to Ms Zsidi, informing her that he was satisfied that Mr Woods' conduct during the conference on 8 November 2012 "fell short of the standard expected from an ODPP solicitor" and directing her to "address this conduct with Mr Woods and remind him of his obligations as an ODPP solicitor under the Victim's [sic] Charter". [11]
5. In these proceedings, Mr Woods maintained that the LS complaint lacked substance. Further, he argued that there was such a denial of procedural fairness in relation to Mr Hyland's inquiry in 2015 that Mr Hyland should not be permitted to rely upon his findings in assessing the seriousness of Mr Woods' misconduct in 2020.
6. The Secretary correctly submitted that Mr Hyland's investigation in 2015 is not the subject of the present Appeal. I do not propose to conduct an exhaustive analysis of that investigation to determine whether the conclusions reached by Mr Hyland were reasonably available to him or whether, in reaching those conclusions, he denied Mr Woods procedural fairness. The relevance of the 2015 matter is the extent to which it lends "objective seriousness" to Mr Woods' misconduct.
7. As stated, Mr Hyland formed the view that in light of the 2015 matter, Mr Woods' conduct on 5 February 2020 could not be seen as an isolated incident. In his submissions, the Secretary contended: "76. In making the Decision, the Respondent took into account that the Appellant was the subject of a similar complaint regarding inappropriate behaviour towards a complainant, [LS], in 2012. …Nonetheless, given the similarities between the two incidents, the [LS] complaint was seen as relevant to the current matter, in that the current matter could not be seen as an aberration."
8. There are several observations to make. First, while LS complained of inappropriate behaviour by Mr Woods, it is inaccurate to describe it as a "similar complaint". The behaviour about which LS complained is of a different character to that of which SD complained.
9. Second, the complaint by LS was not regarded by Mr Hyland as warranting "a disciplinary process" under the GSE Act, but was rather dealt with "as an internal complaint". [12] This sets it apart from the complaint made by SD. Its weight as a "precedent" needs to be considered in that light.
10. Third, Mr Hyland deposed that as a consequence of the LS complaint Mr Woods had been counselled. He relied on an email that Mr Woods sent to Ms Szidi on 18 May 2015 which Mr Hyland said "indicated that Ms Szidi did counsel Mr Woods as directed". [13] Mr Woods denied that he was counselled.
11. While the email of 18 May 2015 referred to a meeting between Mr Woods and Ms Szidi that day, it makes no reference to counselling. There is no other evidence that Mr Woods was counselled in 2015. Ms Szidi was not called as a witness.
12. Fourth, the complaints made by LS and SD are the only ones in evidence. Considering Mr Woods' 21 years of service, and given the matters already noted, it is perhaps unfair to characterise the SD complaint as "not an isolated incident" or "not an aberration".
13. I have had regard to these matters when considering the weight to be attached to the 2015 matter.

Other "objective features"

1. Another factor which Mr Hyland considered added to the seriousness of Mr Woods' misconduct was that his behaviour was crude and not only likely to cause offence, but did in fact cause offence to SD. I readily accept that the behaviour was crude and could have caused SD offence, particularly in the context in which it occurred. However, this assertion did not form a part of the allegations. It was first made in the letter informing Mr Woods of the Decision, based on a complaint that he had not seen.
2. This reflects concerns I hold as to prima facie failings in the process adopted by the ODPP culminating in the Dismissal. I have referred at [50]-[51] above to certain documents referred to in Mr Hyland's letter of 13 August 2020 that do not appear ever to have been provided to Mr Woods. Mr Hyland's letter of 4 May 2020, reproduced in part at [16] above, made reference to "formal complaints" having been received from SD and NSW Victims Services, which were also not provided to Mr Woods. However, it is clear from his letters that Mr Hyland took the documents to which he referred into account in the process of reaching the Decision.
3. The submission prepared by Mr Richardson made reference to a "collective allegation" having been put to Mr Woods (see [14] above). It may well be that sufficient information was provided to Mr Woods to enable him to properly understand the ODPP's concerns and to respond to them. However, in the absence of the relevant documents being made available to the Commission it is not possible to determine whether or not this is the case. I am left with significant misgivings as to whether, in the process culminating in the Decision, Mr Woods was afforded procedural fairness.
4. Mr Woods acknowledged under cross-examination that his conduct may have caused reputational damage to the ODPP, even if he could not quantify the extent to which it may have done so. I accept that this is a relevant matter for consideration in determining the appropriate disciplinary action.
5. A further matter which is relevant to determining both the seriousness of the misconduct and the appropriateness of any disciplinary action, is that it was not suggested that Mr Woods either deliberately made the gestures or that, in doing so, he intentionally sought to coach the complainant. The apparent absence of intention appears to be reflected in the use of the words "could be considered coaching" in the second allegation. Mr Woods has consistently stated that he made the gestures unconsciously. This has not been challenged by the Secretary.

Other matters

1. For the sake of completeness I observe that in his statement Mr Woods adduced a significant amount of evidence relating to the case of R v O'Keefe, and other matters under the headings "Disclosure requirements of the Criminal Procedure Act 1986" and "Sexual Assault Communication Privilege". At the hearing I queried the relevance of this evidence to my determination of these proceedings. Suffice it to say, it was accepted on behalf of Mr Woods that it was not necessary that I have regard to this evidence. I have accordingly disregarded it.

Determination

1. I have found that the second allegation is substantiated and that Mr Woods engaged in misconduct. I have also found that the Secretary has failed to make out the allegation that Mr Woods "spoke inappropriately" to SD.
2. Having regard to all of the circumstances I do not accept Mr Woods' contention that the Decision be wholly set aside or, in the alternative, that disciplinary action be confined to counselling. That would not reflect the gravity of the misconduct. Equally, the sanction imposed by the Decision is disproportionate to the misconduct.
3. I consider that the more appropriate determination is that Mr Woods be subject to a 12 month reduction in remuneration from Level 2, Step 5 to Level 2, Step 4. I will order accordingly.

Proper respondent

1. In the documents filed in these proceedings the parties consistently referred to the respondent as being the "Office of the Director of Public Prosecutions". At the hearing I queried whether, as a function of s 50 of the GSE Act, the proper respondent should be the Industrial Relations Secretary on behalf of the ODPP. The parties have since confirmed their agreement that this is the case. I will make a direction to change the name of the respondent to these proceedings.

Non-publication order

1. At the outset of the hearing I observed that it seemed unnecessary to name the complainants in either the 2012 prosecution (leading to the 2015 matter) or the 2020 prosecution, and that I was inclined, of my own motion, to make an order under s 164A of the IR Act to prevent the publication of their names. There was no objection to such an order being made, and I so ordered. I directed that to the extent that it was necessary to refer to either person, the complainant in the 2012 proceedings would go by the initials "LS" and the complainant from the 2020 proceedings would go by the initials "SD".

Orders and direction

1. I direct that the named respondent in the proceedings be amended to the Industrial Relations Secretary on behalf of the Office of the Director of Public Prosecutions.
2. I order as follows: 1. The Appeal is allowed. 2. The decision to reduce Mr Woods' remuneration from Legal Level 2 Step 5 to Legal Level 2 Step 3 for 12 months is set aside. 3. Mr Woods' remuneration be reduced from Legal Level 2 Step 5 to Legal Level 2 Step 4 for 12 months, commencing from the first full pay period on or after 27 July 2021. Damian Sloan Commissioner

Endnotes

1. Notice of Appeal - Public Sector Discipline at pp 13-14
2. ibid. at p 14
3. Tcpt, p 41(41)
4. ibid, p 39(42-43)
5. ibid, p 35(45-46)
6. ibid, p 36(16-18)
7. ibid, p 53(4-5)
8. ibid., p 39(48)
9. ibid., p 61(31-32)
10. Statement of Craig Malcolm Hyland, attachment CH-21 at p 86
11. Statement of Peter Gerard Woods, 25 November 2020, attachment 1 at p 43
12. Tcpt, pp 25(49)-26(1)
13. Statement of Craig Malcolm Hyland, 10 November 2020, at par 22 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. Decision last updated: 13 July 2021