WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd

PROSECUTOR: Ms F Backman (Barrister) SOLICITORS: WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr T Lee (Solicitor) SOLICITORS: Terrence Lockyer Lee & Assocs

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR LANE) v AUSTRALIAN WINCH & HAULAGE CO PTY LTD Prosecutions under s 15(1) of the Occupational Health & Safety Act 1983

Matters Nos. IRC99/4090, IRC99/4091 and IRC99/4092 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR LANE) v ADAM JAMIE HEMSWORTH Prosecutions under s 50(1) of the Occupational Health & Safety Act 1983

1 The Court has an unusual application before it in these proceedings. The prosecution has moved for an order "that proceedings against the first defendant be heard separately from proceedings against the second defendant". The Court is thus dealing with a prosecution application for separate trials. The unusual nature of the present application is emphasised by the fact that neither Ms Backman of counsel for the prosecutor nor Mr Lee, solicitor, for the defendants, notwithstanding that they are both lawyers very experienced in criminal litigation, were not aware of any previous situation where the prosecution has made a similar application.

2 Because I intend to grant the prosecution application, generally in terms now jointly agreed by the parties, to refer relevant questions of law to a Full Bench of this Court pursuant to s 5AE(1) of the Criminal Appeal Act 1912, which applies to this Court pursuant to s 196 of the Industrial Relations Act 1996, I do not intend to set out in complete detail the background to this matter. It is sufficient to note that the crucial consideration which led to this application was the paragraph appearing in the judgment of a Full Bench of this Court in WorkCover Authority of New South Wales v Seccombe (1998) 43 NSWLR 390 at 403 which is in the following terms: In the present case, in which the charges against both defendants were being heard jointly, the statements sought to be admitted constituted the evidence of Mr Seccombe and, as such, remained the evidence of an individual witness and not that of the corporation by a person duly authorised to testify on its behalf. As Mr Seccombe was properly able to claim the privilege against self-incrimination by not having the statements admitted into evidence, it must follow, in our view, that the statements could not otherwise be admitted as evidence against the corporate defendant . Apart from that, as we have held, it was properly open in her Honour's discretion to exclude the statements against both defendants as a matter of fairness pursuant to s 90 of the Evidence Act . (emphasis added) 3 In making its application, the prosecution's submissions refer to the different situations as to the privilege against self-incrimination. That is, although the privilege is available to a natural person: s 128 Evidence Act 1995; Controlled Consultants Proprietary Limited v Commissioner for Corporate Affairs (1984) 156 CLR 385 and Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477, it is not available to a corporation: s 187 Evidence Act and Environment Protection Authority.

4 The prosecution accordingly submits that, although in a prosecution under the Occupational Health & Safety Act 1983 (the Act), where an incomplete caution under that Act is administered, and any statement obtained as a result of that incomplete caution is not admissible in proceedings (referring to s 31M, s 31N(d) of the Occupational Health & Safety Act and Seccombe at 402) such a statement would nevertheless be admissible against a corporation (s 87 and s 187 of the Evidence Act; s 31M(3) of the Occupational Health & Safety Act and Environment Protection Authority). The only qualification on the admissibility against a corporation that arises from the judgment in Seccombe (at 403) occurs, it is said, when the statement obtained pursuant to an incomplete caution is sought to be admitted in proceedings against the corporation where proceedings against that corporation and a director of that corporation from whom the statement had been obtained are heard together.

5 The prosecution observes that the passage in Seccombe, at 403, does not make clear why it followed that, because the statement was inadmissible against Mr Seccombe, it was also inadmissible against the corporate defendant. Nevertheless, the basis for the approach of the Full Bench was that the proceedings in Seccombe were being heard jointly. It follows, so the prosecution submits, that if the proceedings against the corporate defendant and the natural defendant were to be heard separately, the statement made by the individual or personal defendant, although obtained pursuant to an incomplete caution under the Act, would, in accordance with ordinary legal principles and the current law, be admissible against the corporate defendant.

6 The prosecutor accordingly seeks an order for separate trials because of the prejudice to the prosecution that would occur should the proceedings be heard jointly where it would be expected the trial judge would apply the dictum of the Full Bench in Seccombe. The prosecution also relies upon the judgment of the Court of Criminal Appeal in R v Dellapatrona (1993) 31 NSWLR 123 at 133 - 134. That judgment is authority for a number of general propositions. For example, that it is desirable to have all those charged in relation to a particular crime heard at the same time unless positive injustice would thereby be caused. There remains, however, a balance to be struck between the public interest in the efficient dispatch of criminal trials and prejudice which may be caused to the accused. That does not mean that an applicant for a separate trial must demonstrate that positive injustice would more likely than not be caused by joint trial. Positive injustice may well be established where the evidence admissible against one accused is significantly different to that admissible against another accused, but the mere existence of such difference does not establish positive injustice.

7 The unusual nature of the present application, which has been adverted to earlier, is further emphasised when one observes that the prosecution relies heavily on statements of principle which refer only to the position of accused persons facing trial.

8 The final aspect of the prosecution's submissions relies on the unreported decision of the Chief Industrial Magistrate in Inspector Mackintosh v Phillips (unreported, Case No 91/491, 5 May 1992), and, in particular, this passage from his Worship's judgment: Although a Certificate of Conviction was tendered the prosecutor chose to call evidence to establish again a breach of section 15 of the Act by the corporation in relation to the accident. I found this surprising given the wording of the section. The tender of the depositions of the original hearing together with the Certificate of Conviction would have sufficed without embarking in effect on a new trial against the company. 9 The prosecution submitted that, should its application for separate trials succeed, no prejudice would flow to the respective defendants by reason of, for example, possible inconvenience to witnesses or inconvenience caused in terms of court time or public expense, in the light of the approach of his Worship.

10 The proceedings against the personal defendant in these matters are brought pursuant to s 50 of the Act. The relevant parts of that provision are as follows: 50 Offences by corporations (1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed)

(b) He or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

11 During the course of submissions in this matter, I raised some doubts as to whether the approach suggested by his Worship in Inspector Mackintosh v Phillips was correct. The relevant aspect of his Worship's decision does not appear to have arisen from any detailed submissions or argument on the point. It is to observed that the relevant words in s 50(1) refer to a situation where a corporation "contravenes" a provision of the Act. They do not refer to a situation where the corporation has been convicted of a contravention. Further, proceedings may be taken against a director whether or not the corporation has been the subject of proceedings or has been convicted under the relevant provision - see s 50(2). This at least raises the possibility that the proper construction of the section requires, in proceedings against directors of corporations, actual proof of the contravention and that it is not open to the prosecutor to rely upon mere tender of the conviction pursuant to a relevant evidentiary provision as sufficient to make out the offence. The situation the prosecution contemplates here is that a conviction might be obtained against a corporation under s 15 of the Act based upon evidence that would not have been admissible against the individual defendant and then, having obtained such a conviction, proceeding in a quasi-automatic way against the individual against whom that evidence would not have been admissible. This highlights the significance of the construction issue to these proceedings.

12 In opposing the prosecution's application, the second defendant submits that he is entitled to place every matter in issue should the application for separate trials be granted and should there be an attempt to rely upon a conviction of the corporate defendant in any proceedings against him. I understood that submission is made on the basis that the Chief Industrial Magistrate's decision in Inspector Mackintosh v Phillips was relevantly incorrect. The second defendant submits that the judgment in Seccombe is correct and provides no basis, properly considered, for an application for separate trials. In that regard, reference is made to the absence of any reference in s 50 to the question of separate trials. Reliance is also placed upon the unfairness and the unnecessary waste of time and resources of the court and of public money in placing the second defendant in a situation of being "subjected to the rigor of two trials, [which] would subject him to unnecessary stress, mental suffering and anguish." The defendant relied upon his affidavit filed in relation to such considerations.

13 The second defendant's final submissions, in submitting that the motion should be dismissed with costs, were: … that unless positive injustice is to be caused, it is desirable to have all those charged in relation to a particular offence tried at the same time, and that separate trails should not be granted merely because there is evidence admissible against one defendant but inadmissible against another defendant to whom it is prejudicial: R v Fernando [1999] NSWCCA 66, paras 194 - 226.

It is respectfully submitted that this court should not order separate trials merely because the Applicant/Prosecutor sees some procedural defect in the Act, which the Applicant/Prosecutor sees as diminishing its prospects of gaining a conviction against the Respondent/Second Defendant. 14 I have decided, not without some hesitation, that it is appropriate to refer these matters pursuant to s 5AE(1) of Criminal Appeal Act and s 196 of the Industrial Relations Act. The evidence of the second defendant makes clear that the circumstances of the fatal accident which led to the present proceedings have been stressful to him and that stress is being heightened by the prospect of separate trials being ordered in this matter. I accept his evidence in that regard and consider that I should give significant weight to it. It is clear that whatever decision is made in relation to the motion any proceedings, whether by way of a joint trial or separate trials, will be significantly complicated. It must be observed that in proceedings under the Act, there is scope for appeal even from acquittal: see s 197A of the Industrial Relations Act. Although it may put the prosecution's submissions rather too starkly, their effect nevertheless involves an attempt to navigate a path around the judgment of the Full Bench in Seccombe, and there is at least a suggestion that the crucial passage in that case was obiter dicta and should not be followed. My present view is that the passage referred to in Seccombe is in fact part of the ratio of the judgment and is likely to be considered by any judge of this Court as binding upon him or her. Further, a crucial consideration relied upon by the prosecution is the passage cited from the decision in Inspector Mackintosh v Phillips. I entertain some reservations about the approach of his Worship and whether it involves a correct construction of s 50 of the Act. The major prosecuting authority under the Act however relies upon this decision as a correct statement of the law and the intersection, in these proceedings, of a number of significant issues of construction and of principle leads me to consider that the appropriate course is to refer these matters in the way earlier indicated. I conclude that the personal circumstances of the second defendant, when considered in the light of all of the relevant factors, on balance also makes the reference appropriate.

15 During the course of the extensive, detailed and helpfully made submissions of Ms Backman and Mr Lee, many of the matters referred to above were raised with the parties in the context of whether a reference was appropriate. Subsequent to the conclusion of the submissions and in light of the fact that the legal representatives of the parties were not available prior to the commencement of the new law term to deal with the matter further, the parties conferred and provided to the Court, in agreed form, the terms of a Reference on the Question of Law. The Court has been greatly assisted by the parties in this regard. The draft reference is in these terms and will be made subject to one addition at the end of the first question: Pursuant to Section 5AE(1) of the Criminal Appeal Act 1912 and Section 196 of the Industrial Relations Act 1996, the following questions are submitted by way of reference to the Full Bench of the Industrial Relations Commission in Court Session:

1. Whether a record of interview dated 28 August 1997 of the second defendant which is inadmissible against the second defendant on the basis that: 1.1 The second defendant claimed privilege pursuant to Section 31M(2)(a) of the Occupational Health and Safety Act 1983 (the "Act"); and

1.2 The second defendant was not given a proper warning as contemplated by Sections 31M(2)(b) and 31N(d) of the Act, is nonetheless admissible against the first defendant if the proceedings against the first defendant and second defendant were heard jointly. 2. If proceedings against the first defendant were held separate to the second defendant, whether a Certificate of Conviction of the first defendant obtained pursuant to Section 178 of the Evidence Act 1995 is admissible against the second defendant in a subsequent separate proceeding pursuant to Section 50(1) of the Act when the evidence against the first defendant included the record of interview of the second defendant described in paragraph 1 above. 3. If proceedings against the first defendant were held separate to the second defendant, whether a transcript of proceedings against the first defendant, obtained pursuant to Section 157 of the Evidence Act 1995 is admissible against the second defendant in separate subsequent proceedings pursuant to Section 50(1) of the Act, when the evidence against the first defendant included the record of interview of the second defendant described in paragraph 1 above.

16 I lastly deal with the question of costs. The second defendant strenuously submitted that the costs of the motion and any reference that might be made arising from it should be borne by the prosecutor. The prosecutor resisted that submission and submitted that the question of costs should be reserved.

17 As indicated at the hearing of the motion, the question of costs of the hearing of the reference will be reserved and will be dealt with either by the Full Bench as part of the reference proceedings or after the Full Bench has dealt with those proceedings. However, in deciding to reserve the question of costs I consider that the prosecution should consider carefully the particular circumstances of this matter. It has sought to structure a mechanism to deal with and distinguish in a significant way a considered judgment of a Full Bench of this Commission and also sought in its approach in this matter to rely upon a decision of the Chief Industrial Magistrate significant to proceedings under s 50 of the Act. The combined importance of those matters has led to the reference and whatever be the answer given to the questions referred, the determination of those questions will be of significance to the WorkCover Authority in further proceedings under the Act. It is the major prosecuting body in this area. In those circumstances, and although the outcome of the questions referred will be of great significance to both of the defendants in these proceedings, the outcome will have a greater and longer term significance to the WorkCover Authority. Such considerations, together with relevant public interest considerations, would indicate that it is appropriate that the prosecution reconsider its earlier view on this issue and attempt to reach agreement on this issue with the defendants. In making this observation, I refer only to the significance of the issues the subject of the reference, and the public interest considerations of them being authoritatively dealt with. I am in no way being critical of the approach adopted by the WorkCover Authority in the proceedings.

18 I accordingly make the following orders: A. Pursuant to Section 5AE(1) of the Criminal Appeal Act 1912 and Section 196 of the Industrial Relations Act 1996, the following questions are submitted by way of reference to the Full Bench of the Industrial Relations Commission in Court Session: 1. Whether a record of interview dated 28 August 1997 of the second defendant which is inadmissible against the second defendant on the basis that: (i) the second defendant claimed privilege pursuant to Section 31M(2)(a) of the Occupational Health and Safety Act 1983 (the "Act"); and (ii) the second defendant was not given a proper warning as contemplated by Sections 31M(2)(b) and 31N(d) of the Act,

is nonetheless admissible against the first defendant if the proceedings against the first defendant and second defendant were heard jointly; or alternatively separately. 2. If proceedings against the first defendant were held separate to the second defendant, whether a Certificate of Conviction of the first defendant obtained pursuant to Section 178 of the Evidence Act 1995 is admissible against the second defendant in a subsequent separate proceeding pursuant to Section 50(1) of the Act when the evidence against the first defendant included the record of interview of the second defendant described in paragraph 1 above.

3. If proceedings against the first defendant were held separate to the second defendant, whether a transcript of proceedings against the first defendant, obtained pursuant to Section 157 of the Evidence Act 1995 is admissible against the second defendant in separate subsequent proceedings pursuant to Section 50(1) of the Act, when the evidence against the first defendant included the record of interview of the second defendant described in paragraph 1 above. B. The costs of the motion and of the reference to the Full Bench are reserved.

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