WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales

WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales - [2002] NSWIRComm 1 - NSWIRComm 2002 case summary — Zoe

CITATION : WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 3) [2002] NSWIRComm 1 PROSECUTOR WorkCover Authority of New South Wales (Inspector Ronald James Keelty) PARTIES : DEFENDANT The Crown in Right of the State of New South Wales (Police Service of New South Wales) FILE NUMBER: IRC 5721 of 1997 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Prosecution for failure to ensure health, safety and welfare of employees - Two police officers fatally injured during performance of duty - Plea of guilty made after defendant found to have a case to answer at close of prosecutor's evidence - Failure of defendant to provide training in tactics to be employed in high-risk operational situations - Failure of defendant to ensure mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communications - Assessment of appropriate penalty - The sentencing process - Objective nature and quality of offence - Subjective factors - Inherent risks faced by police officers - Prior convictions of defendant Crown generally - No prior convictions of defendant in respect of the Police Service - Training programmes developed and implemented to address safety risks - Whether case appropriate for making of beneficial order, without proceeding to conviction, that charge be dismissed - Offence found to be extremely serious - Conviction entered - Fine imposed - Moiety to prosecutor - Costs. Crimes Act 1900 s 556A Crimes (Sentencing Procedure) Act 1999 s 10 s 22(1) LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) s 51A Occupational Health and Safety Act 2000 s 4 s 8(1) s 12 s 121 Pt 7 cl 13 of Sch 3 Occupational Health and Safety Amendment (Police Officers) Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Tyler v Sydney Electricity [1993] 47 IR 1 WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313 CASES CITED : WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 1) (2000) 50 NSWLR 333, (2000) 102 IR 252 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Keenan) v Crown in Right of the State of New South Wales (Department of Education and Training) (unreported, Schmidt J, IRC98/598, 6 December 1999) WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 WorkCover Authority of New South Wales (Inspector Viesis) v Thiess Contractors Pty Ltd (1996) 85 IR 12 WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 HEARING DATES: 10/06/1999; 10/07/1999; 09/15/2000; 02/05/2001; 02/06/2001; 02/07/2001; 02/09/2001; 02/14/2001; 02/15/2001; 02/16/2001; 02/19/2001; 02/20/2001; 02/22/2001; 10/04/2001; 10/11/2001; 10/22/2001 DATE OF JUDGMENT: 01/07/2002

[14]

· The four-wheel drive police vehicle was reverse parked in the driveway of Mr McGowan's house rather than on the street, presumably some indication that the officers intended arresting Mr McGowan and placing him in the rear of the vehicle through the back door. · The vehicle was fitted with a radio; the officers had a portable radio, but it is not known whether one of them took it on first leaving the vehicle. · Senior Constables Addison and Spears went to Mr McGowan's front door and were confronted by him holding a Ruger self-loading rifle and wearing a hessian smock. · The two officers retreated to the front of the police vehicle nearest the street and shielded on each side of and behind it in crouched down positions. · They called on Mr McGowan to drop the rifle. Mr McGowan fired a number of shots at the officers and they returned the fire. · Senior Constable Addison used the vehicle radio to contact Kempsey Police Station to report in words to the effect of "Kempsey 2. Urgent assistance. Person with rifle". This message was heard by the officer on duty at Kempsey Police Station but the transmission was unclear and affected by static. Thereupon, officers were despatched to proceed to Crescent Head to assist at the scene. · Kempsey Police Station attempted several times to contact Kempsey 2 on the radio but there was no reply. · Senior Constable Spears was fatally shot in the head by Mr McGowan and fell onto his back on the roadway. · Senior Constable Addison used the vehicle radio to advise Kempsey Police Station in words to the effect of "Kempsey 2. Urgent. Shots fired. Officer down." This message was not clear and was not heard by the officer in the radio room at Kempsey Police Station but by another officer as he was preparing to leave for Crescent Head. Kempsey Police Station was then advised by Port Macquarie Police Station of this message from Kempsey 2. · Kempsey Police Station asked Port Macquarie Police Station to assist by calling Kempsey 2 as it had difficulty itself in contacting and hearing Kempsey 2. Port Macquarie Police Station made a number of calls to Kempsey 2 but without success. · In the meantime, Senior Constable Addison left the police vehicle and ran across the road; the events which then occurred concerning him are as set out earlier in relation to Matter No IRC 5288 of 1997 (the speed loader charge), including that Senior Constable Addison unsuccessfully sought at one of the houses to use a telephone. · Senior Constable Addison did not take the portable radio but left it on the dashboard of the vehicle.

[21]

9 The major basis for the defendant's initial resistance to the charge was, as the earlier judgment noted (104 IR at p 274 in par [7]), "that the defendant had not committed any offence under the Occupational Health and Safety Act because any risk to the safety of the two officers was 'created externally from a source over which the employer has no control and no ability to predict' ... the 'situation of risk was created by the unlawful and criminal acts of somebody totally unrelated to the Police Service, namely, McGowan'". That submission, after an extensive review of the nature of the liability created under s 15(1) of the Occupational Health and Safety Act by reference to the authoritative decisions, was rejected by me with the following observations (104 IR at p 293 in par [26]) : [26] It follows, I would conclude, that Mr Hastings' general submission in avoidance of all of the charges, namely, that the relevant risk here was created externally from the defendant by the unpredictable and criminal conduct of Mr McGowan over which the defendant had no control, must fail. I accept as the correct approach that as stated by Mr Crawshaw, to the effect that any failure by the defendant here was its acts or omissions as alleged in each charge in circumstances where the relevant risks to the two officers' safety were not created by Mr McGowan but by the officers being required by the defendant to work in an environment where they were at risk of being shot or otherwise suffering physical harm. In other words, the risks faced by officers engaged on operational type duties were well known to the defendant, even though the specific risk of Mr McGowan may not have been known, and who was therefore responsible under s 15 for its failures in ensuring against those risks. I accept too the submission of Mr Crawshaw that there was no basis for Mr Hastings' submission that the Occupational Health and Safety Act was not directed to risks created by the unlawful actions of a third party. After all, and as Mr Crawshaw said, that was especially the case with police officers whose main role was to deal with unlawful activity: see mission and functions of the Police Service of New South Wales in s 6 of the Police Service Act 1990.

[38]

15 I interpose at this point the important issue of prior convictions. The defendant in respect of the Police Service has no prior convictions whereas in respect of certain of its other operations prior convictions exist, namely, Department of Education and Training, Department of Corrective Services, Department of Agriculture, Department of Public Works, Department of Community Services and Department of Conservation and Land Management. Mr Crawshaw's submission, which Mr P S Hastings QC for the defendant accepted, was to the effect that prior convictions of the Crown as such were relevant even though the most relevant consideration would concern the record of the department concerned. Senior counsel said that the terms of s 121 of the Occupational Health and Safety Act 2000 in dealing with penalties in respect of proceedings against the Crown did not appear to limit in the sentencing process consideration of prior convictions of the Crown generally but was only concerned with determining the maximum penalty against the Crown available to the Court. Therefore, submitted senior counsel, the approach to prior convictions of the Crown adopted by me in WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 at p 22, as follows, still applied : Having in mind the role played by prior convictions for the purposes of determining an appropriate penalty, I think it may be accepted that a most relevant consideration would be if no prior convictions existed in relation to the department concerned; but, in my view, that is not to say that prior convictions of the Crown generally are not relevant as well. I think they are. After all, the Crown is the employer and the fact it may organise the performance of its functions in a particular way, but still to retain responsibility as the employer rather than to establish a separate statutory corporation as the employer, cannot remove the Crown's overall responsibility and liability as such for the acts or omissions of those through whom it performs its functions. That approach was followed by Schmidt J in WorkCover Authority of New South Wales (Inspector Keenan) v Crown in Right of the State of New South Wales (Department of Education and Training) (unreported, IRC98/598 and 601, 6 December 1999).

[48]

19 I have to say that Mr Hastings' submission in mitigation of penalty was based very much, as was his earlier submission in the no-case to answer proceedings, on the premise that the real risk here to the officers' safety was Mr McGowan, a risk against which the defendant could not make provision. That submission was rejected by me in the earlier judgment on liability: see 104 IR at pp 290-293 in pars [22]-[26] and the cases cited therein in support, namely, Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at p 157; Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at pp 49-50; WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 at p 85; WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at p 257; and WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at pp 43-44. I reject it again in the assessment of penalty. One may readily concede, as Mr Hastings urged, that policing is inherently dangerous, but, in my view, that condition is not unique to policing as I observed in the earlier judgment by reference to the building industry and certain other occupations (see 104 IR at pp 291-292 in pars [23]-[24]). In light of Mr Hastings continued reliance on this aspect of the nature of policing, initially in the no-case to answer proceedings and now in mitigation of penalty after a plea of guilty, it is necessary to repeat what I said in the earlier judgment in that respect as being relevant also for present purposes, that is (104 IR at p 292 in par [24]) : [24] Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. ...

[50]

21 After tracing the development of training programmes in the Police Service, particularly as to simmunition training, Mr Hastings emphasised the relevance for present purposes of the fact that "it was not a situation in which the Police Service was doing nothing; it was actively pursuing a system which later became active in 1996, so at this time in 1995 steps were also being taken to remedy the defect described as part of the breach of the Act". Therefore, as senior counsel submitted, the defendant had in place at the relevant time of the incident improvements to the training available so that this was not a case where an accident was needed to make the defendant aware of its responsibilities concerning safety - as senior counsel said, "it was already receptive and had already embarked upon a process by the time the accident occurred". Consequently, Mr Hastings put that this matter was suitable for the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 by finding the defendant guilty but without proceeding to conviction and directing the dismissal of the charge. Whilst acknowledging that it has been said (see, for example, WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at p 101) it would seldom be appropriate in serious cases for a breach of occupational health and safety legislation to receive the benefit of s 556A of the Crimes Act 1900 (the statutory predecessor to s 10 of the Crimes (Sentencing Procedure) Act), Mr Hastings accepted "this is a very serious offence" but added in exculpation of the defendant in committing the offence : It was totally unpredictable circumstances which confronted these officers. There was no warning that there was a human element of risk-taking of the officers on the occasion. Certainly it is an inherent part of the job. As I have said right from the beginning, officers confront a risk, but on the occasion here on some peaceful beach town there was no specific indication that it was an accident waiting to happen because there was no warning to the officers they were going to deal with someone who was prepared to shoot.

[54]

22 Mr Crawshaw opposed the application of s 10 in this case. I think he was correct in so doing and I am well satisfied that the circumstances here do not in any way justify the beneficial approach urged by Mr Hastings. Again, I have to say, Mr Hastings made his submission by reference to the situation created by Mr McGowan and the difficulties in controlling his conduct, rather than, as I have said, by reference to what the defendant was charged with, namely, its failure to provide the relevant training. Given the inherent risks to safety involved in policing, as accepted by the defendant, I consider that fact in itself provides a strong reason for the defendant to ensure officers engaged in operational duties receive the mandatory training in order to enable them to appropriately perform their duties. That that did not occur in this case does not, in my view, provide a basis for mitigating the seriousness of the offence by relying on the inherent nature of the risks involved - to the contrary, in my view, the known nature of such risks made the failure to provide the necessary training all the more serious. The two officers concerned suffered the ultimate injury of death. As Hill J observed in Tyler v Sydney Electricity [1993] 47 IR 1 at p 5 as to the gravity of the damage or injury actually resulting from a breach in dictating the amount of penalty, "the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability". The importance of that dichotomy concerning, on the one hand, the actual death or serious injury and, on the other hand, the relevant failure giving rise to such outcome, was cogently stated by Bauer J in Twynam-Perkins v Maine Lighting (100 IR at p 257) in this way : Whilst in the tragic circumstances where a person was killed in an accident it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in the passage from C I & D Engineering previously quoted. The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare.

[58]

24 In essence, the objective seriousness of the offence here is to be measured by the plain fact that although the relevant mandatory training was available the defendant failed to ensure the two officers concerned received it before they were involved in a high-risk operational situation. It is not to the point to plead that the officers had received basic training and were experienced police officers - all of that is true - they were subject at the relevant time to a situation with the very real potential to compromise their safety without the appropriate training and, importantly, where they were responding in the early hours of the morning to a threat from Mr McGowan that he would kill the woman who had complained; to meet such a contingency, I do not doubt the officers should have been given the required training. It was not that the defendant considered such training was not necessary, indeed it was regarded as mandatory, simply that the defendant did not ensure it was provided in a timely way. The offence so described and the commensurate culpability of the defendant may properly be regarded as of an extraordinarily serious nature. I have in mind in this respect that there was no evidence from the defendant in explanation of the omission to provide the training or as to steps put in place to remedy the deficiency for the future. At most, the emphasis was on the development and availability of the relevant training but without any details of how steps were to be taken to ensure it was given. In that situation, it is apt, I think, to repeat the observations made in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at pp 388-389, as follows: ... Consistently, it has been held by the Court that in determining penalty attention should focus on the nature and degree of seriousness of the relevant detriment to safety, together with the applicable mitigating factors: WorkCover Authority of New South Wales (Inspector Gordon) v Walco Elevators Pty Ltd (unreported, NSW Industrial Court, Cullen J, 13 March 1996) and cases cited therein. In Walco , Cullen J concluded at p 16: "It should be apparent from the authorities cited that breaches of safety, such as occurred in this case, should be penalised significantly. A feature of this case is the need to have particular regard in imposing penalty to the deterrent aspect against any future breaches by the Defendant should it embark upon similar operations in the future. The Court has a duty to ensure that breaches of occupational health and safety legislation are punished with penalties of such magnitude that companies will address occupational health and safety issues before such accidents occur. It is in the public interest that exposure of workers to danger of injury during the installation, operation and maintenance of hoists should be subject to close scrutiny. It is also in the public interest that serious breaches of safety are met with fines that discourage the re-occurrence of such incidents which are clearly avoidable. This is especially so in a situation where companies conduct their activities with haste in order to complete buildings promptly as was the case in the present matter." I respectfully agree with his Honour's remarks and would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Ltd [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: "The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrence of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive."

[62]

27 In reduction of that penalty, the defendant is entitled to consideration of factors subjective to its position. Significant in that respect was its plea of guilty, albeit made quite late in the proceedings. Section 22(1) of the Crimes (Sentencing Procedure) Act provides that in the sentencing process a court may impose a lesser penalty than otherwise would have been the case if a defendant pleads guilty but a relevant consideration is when such plea or intention to so plead was made. Here, the proceedings had a long history during which the defendant steadfastly resisted the charge until after the Court ruled on 2 May 2001 that there was a case to answer; those proceedings occupied two days of hearing on 20 and 22 February 2001 following eight days earlier that month in the hearing of the prosecutor's evidence. It should also be noted that a number of interlocutory decisions by the Court were necessary on unsuccessful attempts by the defendant on matters such as further and better particulars and resistance to summonses for the production of documents. Nevertheless, those interlocutory steps are to be seen in light of the way in which the proceedings developed from initially ten charges against each of three separate defendants concerning the subject incident on 9 July 1995 at Crescent Head but which eventually reduced to a single charge against the present defendant when some charges were withdrawn and others were dismissed. I think it fair to say in assessing the relative lateness of the defendant's guilty plea that the course of these proceedings has had its own difficulties, including the early question concerning the status of police officers as to whether they were employees of the Crown as an employer so as to make the defendant amenable to a charge for a breach of s 15(1) of the Occupational Health and Safety Act - that latter aspect was subject to a hearing on 6 and 7 October 1999 but before judgment thereon the legislature passed the Occupational Health and Safety Amendment (Police Officers) Act 2000 to remove any previous doubts that a police officer was an employee of the Crown for the purposes of the Occupational Health and Safety Act: see Keelty v Police Service (No 2) (104 IR at p 274 in par [6]). Mr Crawshaw submitted, with some force, that "the utilitarian value of the plea would be at the lower end of the scale of discount". On balance, and notwithstanding the apparent lateness of the plea of guilty, I think the circumstances as they have developed justify a lesser penalty being imposed than otherwise would have been the case. I will allow a discount for this of 10 per cent.

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