WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors.

PROSECUTOR Mr M J Joseph QC with Mr P Skinner of counsel SOLICITORS Moray & Agnew

DEFENDANTS Ms E Collins of counsel with Mr D Villa of counsel for Edwards Madigan Torzillo Briggs Pty Ltd LEGAL REPRESENTATIVES: SOLICITORS Minter Ellison

Mr R J Grady of counsel for Ove Arup Consult Pty Ltd, Arup Partners Pty Ltd and Ove Arup Pty Ltd SOLICITORS Phillips Fox

JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

12 December 2003 Matter No IRC 5451 of 1999 WorkCover Authority of NSW (Inspector Mansell) v Edwards Madigan Torzillo Briggs Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5452 of 1999 WorkCover Authority of NSW (Inspector Mansell) v Edwards Madigan Torzillo Briggs Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5453 of 1999 WorkCover Authority of NSW (Inspector Mansell) v Edwards Madigan Torzillo Briggs Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5466 of 1999 Inspector Mansell v Ove Arup Consult Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983

Matter No IRC 5467 of 1999 Inspector Mansell v Ove Arup Consult Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5470 of 1999 Inspector Mansell v Ove Arup Consult Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5473 of 1999 Inspector Mansell v Arup Partner Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983

Matter No IRC 5475 of 1999 Inspector Mansell v Arup Partner Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5477 of 1999 Inspector Mansell v Arup Partner Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5480 of 1999 Inspector Mansell v Ove Arup Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983

Matter No IRC 5482 of 1999 Inspector Mansell v Ove Arup Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5483 of 1999 Inspector Mansell v Ove Arup Pty Ltd. Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 452

1 These proceedings, by way of notice of motion, in essence seek a permanent stay of prosecutions commenced by Inspector Mansell of the WorkCover Authority under s 17 of the Occupational Health and Safety Act 1983. The prosecutions relate to the members of a joint venture who were involved in upgrading work of a number of facilities of the State Rail Authority of New South Wales including what has been referred to as the Kogarah Station upgrade. These particular proceedings have been marked by a number of interlocutory challenges such that the events which gave rise to the prosecutions which occurred in December 1995, in 2003 remain at this preliminary stage. The matter now before the Court revolves around the proper construction of s 49(4) of the Occupational Health and Safety Act 1983 and whether, properly approached, the proceedings are out of time. Some understanding of how the matter has taken so long to get to this stage is provided by the fact that the Coroner's Inquiry began in December 1996, was concluded in May 1997 with findings been delivered in October 1997. The prosecutor applied for each of the summons in October 1999.

2 The background to these prosecutions can best be described by reference to the Full Court's decision in WorkCover Authority of New South Wales (Inspector Mansell) v TNG International Pty Ltd and ors (2002) 116 IR 128. In that case, the Full Court set out the history thus: 2 On 4 December 1995 at about 2.00 pm an explosion and fire occurred in Railway Parade, Kogarah. Two people died as a result of the explosion and fire and a number of others, including members of the New South Wales Police Service, were injured. A second explosion occurred about one and a half hours after the first and several fire fighters were injured. 3 It appears that the explosion and fire were caused by the ignition of gas escaping from a natural gas pipeline in, or in the vicinity of, a construction site associated with upgrading works at the Kogarah Railway Station. 4 A coronial inquest and inquiry was held during the period 9 December 1996 and 14 May 1997 into the deaths and the explosions and fire. The Coroner handed down his findings on 17 October 1997. 5 On 12 October 1999, 77 prosecutions in connection with the events of 4 December 1995 were initiated or purported to be initiated by the appellant and another inspector of the WorkCover Authority in the Industrial Registry pursuant to the Occupational Health and Safety Act 1983. The four respondents to this appeal (TMG International Pty Ltd, Ove Arup Pty Limited, Arup Partners Pty Limited, Ove Arup Consult Pty Limited) were each charged with offences under s 16(1) and s 17(1) (a) of the statute. 6 The four respondents were participants in an unincorporated joint venture under the registered business name Capital Works Management (CWM). They had been engaged by the State Rail Authority of New South Wales (SRA) for the design, the contract tender process and the supervision to completion of the upgrading work of a number of SRA facilities, including the Kogarah Station upgrading (KSU). In October 1995, Abigroup Contractors Pty Ltd was engaged by the SRA to perform construction work at the Railway Station. In November 1995 Abigroup engaged Josef & Sons Contracting Pty Limited to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah as part of the Railway Station upgrade. It was alleged in each of the summonses served on the respondent that: CWM had control of the KSU to a degree pursuant to the terms of engagement with the SRA and had a duty to supervise the performance of the work to ensure that the work was done in a safe manner and without risk to health.

SUBMISSIONS FOR THE APPLICANTS 3 It was the submission on behalf of Ove Arup that for the prosecutor to invoke the extension of time contained in s 49(4) of the 1983 Act, the prosecutor had to show that it was apparent from the Coroner's Report alone that the Ove Arup companies committed an offence under s17(1) of the Act. Only the Report could be relied upon because s 49(4) provided that either the material produced at the Coronial Inquiry or the Coroner's Report was to be relied upon but not both. It was clearly only the Report that was prepared within two years of the commencement of the s 17(1) prosecution. Even if the prosecutor could rely on all material before the Coronial Inquiry and the Coroner's Report, the absence of any reference to Ove Arup in the material and the Report precluded any reliance by the prosecutor on s 49(4).

4 Further, on the proper construction of s 49(4), something "new" or "fresh" had to appear in the Coroner's Report or in the proceedings for s 49(4) to apply. It was submitted, at best, there was a re-appearance in the Coronial proceedings of matters known to the prosecutor by early 1996. It was not appropriate to construe s 49(4) to provide an extension of time to commence proceedings more than three and a half years after such information was available to the prosecutor. It was accepted that this approach had been rejected by the Full Bench in Page v Walco Hoist Rentals Pty Ltd (1999) 87 IR 286.

5 A further point was that the standard of evidence necessary to make it appear from the Coroner's Report or proceedings that an offence had been committed, was a prima facie standard, founded upon evidence admissible in criminal proceedings. In this respect it was again submitted that the Full Bench in Walco Hoist was wrong in deciding to the contrary. In the alternative, it was submitted that the required standard should be such that the prosecutor had reasonable cause to suspect the commission of an offence by the defendants. There was, however, no evidence from the prosecutor or anyone else to suggest that such a reasonable cause existed.

6 It was said that apart from s 49 of the Act, the other relevant legislation was s 22 and s 33 of the Coroner's Act 1980. Section 22 of the Coroner's Act required the Coroner holding an inquest concerning the death of a person or concerning a fire or an explosion, at its conclusion or termination, to record in writing his or her findings. Any record made shall not indicate or in any way suggest that an offence had been committed by any person. Under s 33 of the Coroner's Act, the Coroner holding an inquest or inquiry shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law.

7 The need for the Report or the Coronial proceedings to identify the defendants as having committed an offence under s 17(1) of the Act was an argument rejected by Schmidt J in WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271 at paragraphs 44-48 inclusive. However, Kavanagh J in WorkCover Authority of New South Wales (Inspector Maltby) and anor v Abigroup Contractors Pty Ltd and Luis Bustamente [2003] NSWIRComm 35 was clearly of the opposite view. In paragraphs 31, 35, 44, 53 and 62 of that judgment, Kavanagh J clearly linked the offence alleged with the defendant. It was accepted that s 49(4) of the Act did not specify against which party proceedings could be instituted and it did not specify which party must have committed the apparent offence but those omissions gave rise to ambiguities in the interpretation of the section. As a matter of strict construction, it was submitted that the party it was apparent had committed the offence must be the same party against which proceedings may be instituted.

8 It was significant in the Occupational Health and Safety Act 2000 that s 107(3), dealing with the same matter as dealt with by s 49(4) of the 1983 Act, made it clear that the identify of the defendant need not be apparent. That amendment itself, it was submitted, served to demonstrate the existence of an ambiguity as the section was previously worded: it supported the construction of s 49(4) contended for and it was appropriate to adopt that construction because the proceedings were criminal in nature. On this approach the proceedings must be dismissed against Ove Arup because of the absence of any reference to the Ove Arup companies anywhere in the Coroner's Report or in other material before the Coronial Inquiry. Further, there was no suggestion in either the Report or the Inquiry that the Ove Arup companies had committed an offence.

9 Because s 49(4) of the Act was a provision dealing with a limitation extension within penal legislation, the presumption of a construction of the penal provision favourable to the defendants may prevail unless the meaning was plain and unambiguous (Cole v Parker [1979] TASR 256 at 258). It was accepted that in a determination of a penal statute the ordinary rules of construction should apply but where ambiguity or doubt remained it was to be resolved in favour of the subject by refusing to extend criminal liability (Beckwith v The Queen (1976) 135 CLR 569 at 576, cited with approval in WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Ltd (2002) 112 IR 332 at paragraphs 112 and following). An ambiguity which persisted after the application of the ordinary rules of statutory construction should be resolved in favour of the accused (Barker v R (1983) 153 CLR 338 at 355 per Brennan and Deane JJ; Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 at 139; Maxwell on Interpretation of Statutes, 12th ed. (1969) p.239; Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 116; Watson v Marshall and Caden (1971) 124 CLR 621 at 629 and 649; WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Ltd ).

10 Two judges of the Commission had expressed opposing views on the proper construction of s 49(4) on what should or should not "appear" from the Report or proceedings and that situation revealed the existence of ambiguity in the section.

11 A further ambiguity arose from the final words of the provision, "… within two years after the date the report was made or the inquest or inquiry was concluded, as the case may be". The proper construction of the final five words of this provision had been the centre of much debate in the earlier hearing of this application (WorkCover Authority of New South Wales v State Rail Authority of New South Wales). On one clear interpretation, the prosecution was required to decide whether it was relying on the report on the one hand or the proceedings on the other, as the case may be: the latter words made it clear that both could not be relied upon by the prosecutor. 12 The change in wording between s 49(4) of the 1983 Act and s 107(3) of the 2000 Act served to highlight the observance by the legislature of the endemic ambiguities as discussed above. The amendments specifically abolished any perceived need for a defendant to be identified when considering whether or not an offence "appears" from the report or the proceedings to have been committed and also removed completely the words "as the case may be".

13 A limitation provision that derogates from the rights of individuals should be rigorously constructed. The Court of Appeal in Newman v Australian National Airlines Commission (1985) 2 NSWLR 573, cited with approval in Australian National Airlines Commission v Newman (1987) 162 CLR 466 at 471 and 476) held that limitation provisions should be strictly construed where it protected the interests of a statutory authority at the expense of individual rights.

14 It was submitted that where the Coroner issued a Report it must appear from that Report that the offence had been committed. That was the purpose of the closing words "as the case may be". In the present case the prosecutor could only rely on material contained in the Coroner's Report as giving rise to the appearance of an offence having been committed. Where the Coronial proceedings were relied upon rather than the Coroner's Report, the extended time period provided by s 49(4) commenced to run at the conclusion of the proceedings and not from the time of the delivery of the Coroner's Report. In the present case the prosecutor would be precluded from relying upon evidence tendered in the proceedings which concluded more than two years (that is, in May 1997) before the applications for summons were filed (that is, October 1999).

15 In relation to the submission that something "new" or "fresh" must appear in the Coroner's Report or from the proceedings to enliven the provisions of s 49(4) it was submitted that the provision was not intended to provide the prosecution with "unnecessary additional time" to commence proceedings on the basis of evidence which it had in its possession well in advance of the Coronial Inquiry and which was not added to or otherwise clarified during the Inquiry. If this approach was not adopted then s 49 would simply operate to invite delay in prosecutions quite contrary to the intention of the limitation provisions of the Act. It was submitted that the Full Bench in Walco Hoist was wrong when it held that "appear" also meant "re-appear" for the purposes of s 49(4) of the Act. It was pointed out that Gleeson CJ in R v Hull (1989) 16 NSWLR 386 (394), when dealing with the question of limitation in the initiation of proceedings stated: Time bars in relation to the prosecution of indictable offences may, as was submitted on behalf of the Crown, be relatively rare, but they are by no means unknown. What must be extremely rare, however, are time bars which operate at the discretion of prosecuting authorities . 16 This was precisely the mischief which s 49(4) would create if given the interpretation accorded to it by the Full Bench in Walco Hoist. It allowed a prosecutor, (having soon after the incident giving rise to the offences) sufficient admissible evidence to commence proceedings against a known offender, to simply sit back and await the outcome of the Coronial Inquest or Inquiry which might be held many years after the occurrence or the incident been investigated, before commencing proceedings against the offender.

17 Further, the approach of the Full Bench in Walco Hoist effectively rendered void the limiting mechanism of s 49(1) of the Act in circumstances of death, fire, explosion or the like. This followed because where a Coroner's Inquest or Inquiry was convened the prosecutor was able to procrastinate until two years after the conclusion of the Inquest or Inquiry before commencing a prosecution with evidence which was in its possession all along.

18 Limitation periods such as found in s 49(1) were enacted to provide the prosecuting authority with reasonable opportunity to investigate the incident giving rise to the commission of the suspected offence and the commencement of the proceedings while relatively fresh evidence was available to be presented to the court. The period laid down in s 49(1) was therefore enacted to provide the prosecutor with a reasonable opportunity to investigate any matters arising during the coronial proceedings which may have been unknown to or obscured from the prosecutor when carrying out its investigations to that time. In the present proceedings, the prosecutor could not demonstrate that anything appeared from the Inquest or the Coroner's Report that was not well know to him before the Inquest: there was nothing fresh to investigate or consider. There was nothing to give rise to a need for an extension of time. It was in these circumstances that it was appropriate to dismiss the proceedings.

19 Where the evidence identified in the Coroner's Report or Inquiry gave rise to the appearance of an offence, that evidence had to be sufficient to ground a prosecution for the offence alleged. It was accepted that in the context of penal legislation the word "appears" in s 49(4) of the Act did not define with precision either the standard of the evidence required to give rise to the appearance of an offence or the quality of that evidence. The unwavering rule in criminal proceedings, however, was the application of the "prima facie" standard, founded on evidence of sufficient quality to be admissible pursuant to the Evidence Act in criminal proceedings.

20 It was again recognised that in Walco Hoists the Full Bench rejected a similar argument. Leave was sought to re-visit the issues raised in that case as it appeared, in the context of penal legislation, that relevant authorities were not raised for consideration when this issue was previously argued and dealt with by the Full Bench. For example, it was suggested that other dictionary definitions of the word "appear" as found in the Shorter Oxford Dictionary gave meanings that were strongly suggestive of a more stringent test than was adopted in relation to the word "appear" in Walco Hoists.

21 In Walco Hoists it was incorrectly considered that proof to a prima facie level would render the competence of the summons dependent upon the charge being ultimately proven. Proof to a prima facie standard, however, did not require the Court to be satisfied on the evidence before it that the prosecutor would succeed, if no other evidence was tendered. An information might be dismissed after a prima facie case was found and no further evidence tendered. The onus did not shift to the accused on a prima facie case being established (May v O'Sullivan (1955) 92 CLR 654 at 656 - 9). The issue became more complex when it was understood that the Coroner's Court was not bound by the rules of evidence or usual court procedure. There was an obvious danger in permitting inadmissible evidence to facilitate the "appearance" of an offence in coronial proceedings in the context of s 49(4) of the Act. It was commonplace in the Coroner's jurisdiction for purely hearsay evidence and/or unsupported observation, opinion or estimate to be tendered. Witnesses often gave evidence of matters factually beyond their knowledge or expertise.

22 If reliance was to be place upon inadmissible opinion or observation under s 49(4), it might "appear" or "seem" from the record or the proceedings that an offence has been committed. By purporting to rely upon such "evidence" a prosecutor was able, if so inclined, to extend the section 49(1) statutory limitation period without ever moving to investigate or probe that "evidence". The result would be an extension of the s 49(1) limitation period at the whim of the prosecutor. Parliament would not, without providing a clear indication of its intentions, seek to alter a principle of criminal law.

23 In the alternative, a prosecutor should have reasonable cause to suspect the commission of an offence based on fresh evidence in coronial proceedings. The test of reasonableness was well known to the criminal law and would require something more than reliance on inadmissible opinion, observation and speculation such as arose at the Coroner's Inquiry in respect of the incident involved giving rise to the present proceedings. Anything less than this approach would be foreign to the system of criminal justice and would open the way for an accused person to be placed in a position of jeopardy by the consideration of "evidence" which was no more than pure speculation and which could never be admissible in criminal proceedings.

24 The thrust of the submissions for the Ove Arup companies was supported by the defendant Edwards Madigan Torzillo Briggs Pty Ltd (EMTB).

25 EMTB submitted that the proceedings against it had not been brought within two years of the relevant date as required by s 49 the Act. This position arose, so it was submitted, in summary because of the following: (a) it does not appear from either the proceedings before the Coroner or from his findings delivered on 17 October 1997 that the offences with which EMTB had been charged, had been committed. The relevant limitation period was therefore that provided by s 49(1) which expired prior to the institution of the proceedings. This was because: (i) neither the material before the Coroner nor the Coroner's findings made any reference to EMTB; (ii) neither material before the Coroner nor the Coroner's findings made any reference to EMTB being a member of the Stations Upgrade Joint Venture, or a proprietor of the business name Capital Works Management (CWM); (iii) neither the material before the Coroner nor the Coroner's findings made any reference to EMTB having control of the construction site; (iv) there was nothing in the material for the Coroner nor the Coroner's findings that was capable of supporting the conclusion that EMTB had control of the construction site; (v) neither the material before the Coroner nor the Coroner's findings made any reference to obligations EMTB had in respect of the construction site. (b) In the alternative, if it did appear that the offences charged had been committed, then that appearance arose from the proceedings before the Coroner not from the Coroner's findings. The relevant limitation period was therefore that period provided by s 49(4), being two years from 14 May 1997, which expired prior to the institution of the proceedings; (c) in the further alternative, the decision of the Full Bench in Page v Walco Hoists was wrong to the extent that it held that s 49(4) did not require that something emerge from the proceedings or the Report for the first time.

26 In relation to the three charges, the essential elements were: (a) EMTB had, to any extent, control of non-domestic premises namely the Kogarah Railway Station and adjoining areas (KSU); and (b) EMTB failed to ensure that the KSU was safe and without risk to health, in that it had a charged gas supply line situated in an area where construction was designed to occur. 27 It was submitted that the first issue raised by the charges was whether there was material before the Coroner relating to control by EMTB of the KSU on or about 10 November 1995 or 4 December 1995 or in the interim. The allegations had been particularised by the prosecutor as follows: (a) EMTB was a participant in an unincorporated joint venture known as the Stations Upgrade Joint Venture. (b) the participants of the Joint Venture registered a business name, Capital Works Managements (CWM) which name was used for the purpose of identifying the Joint Venture in its trading activities; (c) the State Rail Authority of New South Wales engaged EMTB and the other participants in the CWM for the design, the contract tender process and the supervision to completion of the upgrading work of a number of State Rail Authority facilities, including the KSU; (d) CWM had control of the KSU to a degree pursuant to the terms of engagement with the State Rail Authority and had a duty to supervise the performance of the work and ensure that the work was done in a safe manner and without risks to health; (e) pursuant to the terms of the engagement, CWM appointed a superintendent charged with the duty of ensuring the work was conducted in accordance with contracts in a safe manner and without risk to health.

28 In relation to these particulars, EMTB pointed that the findings of the Coroner constituting the "Report" made no mention of EMTB or for that matter mentioned CWM. The material before the Coroner or the proceedings at the Inquest contained no reference to EMTB. There was no material before the Coroner or in the Coroner's Report that EMTB was a participant in an unincorporated Joint Venture. 29 The allegation that EMTB and the other participants in CWM were engaged by SRA for "the supervision and completion of the upgrading work including KSU" was not supported by the material relied upon by the prosecutor. Firstly, it said nothing about EMTB at all. Secondly, to the extent that it said anything about CWM, a fair reading of the material suggested that any "supervision" was in the capacity of a contract manager, rather than having a physical presence on the site. Thirdly, to the extent that it said anything at all about the participants in CWM, it identified persons who were not employees of EMTB and for whom EMTB was not responsible as a matter of law.

30 The allegations that CWM had control of the site was meaningless. CWM had no legal personality and therefore could not control anything. For the particulars to be meaningful they must be read as an allegation that EMTB had control of the site which was an element of the offence itself. The Coronial material said nothing about EMTB having control of the site. To the extent that the material related to CWM, it did not establish that CWM had control over the site.

31 As alleged in the particulars, CWM appointed a superintendent pursuant to its terms of engagement with the SRA but the contract between the SRA and the participants in CWM was not before the Coroner. There was nothing in the material relied upon which referred to or supported any inference that one of CWM's responsibilities under the terms of engagement was to appoint a superintendent who was charged with the duty of ensuring the work was conducted in accordance with the contracts in a safe manner and without risk to health. To the extent that a superintendent was appointed, that superintendent was not an employee of EMTB nor was he a person for whom EMBTB was responsible as a matter of law. There was nothing in the material before the Coroner to suggest that the power to superintend carried with it a power to direct how the construction was to occur. Further, CWM was not a party to the construction arrangements between SRA, Abigroup and Josef & Sons.

32 The allegation that EMTB failed to ensure that the KSU was safe and without risk to health in that it had a charged gas supply line situated in an area where construction work was designed to occur was not the subject of reference in the material before the Coroner. There was no reference in any of the material relied upon by the prosecutor to EMTB doing, or failing to do, anything that amounted to a breach of the Act. Indeed, there was no reference in any of the material relied upon by the prosecutor to CWM doing or failing to do anything that amounted to a breach of the Act. Evidence that there was in fact a charged gas line situated within or close to the KSU was not enough.

33 In relation to the requirements of s 49(4) of the Act, it was submitted that on its proper construction the sub-section required an appearance that EMTB had committed the offences with which it was charged and it was not permissible to point to material at large which may infer that an offence had been committed by someone. If that appearance was gleaned from the proceedings at the Inquest, and not from the Report, an extension of time conferred by s 49(4) expired two years after the proceedings. In the present case the proceedings were commenced more than two years after the Coroner's proceedings. Further, s 49(4) effectively conferred an additional period of time in which criminal proceedings may be instituted. It defied reason to construe that provision so as to permit a prosecutor to let the primary time period in which proceedings must be commenced to elapse but obtain an indulgence by reason of a reference to material before the Coroner already known to the prosecutor.

34 It was accepted that in two decisions, Schmidt J had held that the operation of s 49(4) did not require the identify of the defendant to appear from the Corner's Report or the proceedings (see WorkCover Authority of NSW (Inspector Maltby v State Rail Authority of NSW; WorkCover Authority of NSW (Inspector Maltby) v AGL Gas Networks Ltd [2003] NSWIRComm 28). It was submitted that in this respect the two decisions of Schmidt J were wrongly decided. In the State Rail Authority case, her Honour concluded that s 49(4) was concerned with the offence and not the offender, rejecting a submission for the defendant that the defendant needed to be identified in the Report or in the proceedings. In reaching this conclusion her Honour referred to what she saw as the difficulty in establishing whether a particular person was an employee or a contractor or if in employment, who the employer was and also referred to s 22 and s 22A of the Corner's Act which operated so as to preclude a Coroner from identifying a person who appeared to have committed an offence.

35 It was submitted that the difficulties which might be encountered in establishing whether or not a person was an employee or a contractor or an employer were of little relevance to a construction of s 49(4). WorkCover was confronted with such difficulties irrespective of whether or not there was an Inquest. These matters may not be the focus of the Coroner's ultimate findings (which are directed towards determining time, manner and cause of death) but are matters that are regularly the subject of evidence before the Coroner and found in witnesses' statements and other evidence put before the Inquest. Section 22 and s 22A of the Coroner's Act did not have the effect of precluding a Coroner from identifying a person who appeared to have committed an offence. The sections precluded the Coroner from making a finding that an offence had been committed by any person but that did not prevent the identification of the persons whose conduct may constitute an offence. Thus, in this case the Coroner's Report identified Josef and Sons and Abigroup and found their conduct to demonstrate a clear lack of care with regard to work place safety on the construction site. The Report did not find that Josef and Sons and Abigroup contravened their obligations under the Occupational Health and Safety Act.

36 It was submitted to be essential to the application of s 49(4) that it appeared that an offence had been committed and it must be that offence which is charged. The requisite appearance could not be satisfied unless each element of the offence appeared in the Coroner's Report or in the proceedings. The first and fundamental element of any offence was the identification of the alleged offender. The essential elements of the offence under s 17(1) required a person to have control of premises and required a person to have failed to ensure the safety of non-employees who were working on those premises.

37 The next matter raised was the fact that s 49(4) referred to two different points in time: the appearance of an offence arising from the Coroner's Report or the proceedings at the Inquest. It distinguished between the making of a Coroner's Report and the conclusion of the Inquest. Under the Coroner's Act 1980 it was submitted that there was no provision for the making of a "Report" by the Coroner: the reference to "the date the Report was made" in s 49(4) was a reference to the making of findings under s 22 of the Coroner's Act including any recommendations under 22A. This approach had been taken by Schmidt J in State Rail Authority (see paragraph [80]).

38 At common law, an Inquest "closed" upon the delivery of a verdict (whether by a jury or by the Coroner) and its certification in an inquisition. Under the scheme of the Coroner's Act, therefore, the Inquest would close upon the making of findings under s 22. The reference in s 49(4) to the Inquest being concluded was to be taken as a reference to the conclusion of the "proceedings" at the Inquest, and not to the closing of the Inquest by the Report of the Coroner's findings. In this case, the Inquest was concluded, therefore for the purposes of s 49(4), on 14 May 1997. A similar argument was rejected by Schmidt J in the State Rail Authority case. It was submitted that her Honour's decision should not be followed. Her Honour appeared to see difficulties where the possibility of an offence having been committed appeared from the proceedings but was not referred to in the Corner's Report.

39 On the defendant's approach to the construction of s 49(4), the prosecuting authority was simply required to bring its prosecution within two years of such material being made available to it. It was to be kept in mind that the purpose of a limitation period was to prevent stale charges being brought. The extension being provided by s 49(4) was intended, on its face, to provide WorkCover with the same opportunity to prosecute once it became aware of the possibility of an offence having been committed as a result of either evidence adduced during the Inquest or as a result of the Coroner's findings.

40 The only circumstances in which an Inquest might be brought to an end other than by being closed upon the recording of the Coroner's findings under s 22 was by being terminated under s 19. If the word "conclude" was intended to encompass circumstances where an Inquest came to an end other than by the making of findings, the appropriate wording for the section would have referred to the "termination" of the Inquest rather than the Inquest having been "concluded". This approach provides further support for the submission that "concluded" was a reference back to the "proceedings at the Inquest" in the opening words of s 49(4).

41 The defendant also made a formal submission that the word "appears" in s 49(4) means "first appears", a proposition rejected by the Full Bench in Page v Walco Hoist Rentals Pty Ltd.

THE EFFECT OF THE 2000 OCCUPATIONAL HEALTH AND SAFETY ACT 42 During the course of argument the prosecution became aware of a judgment delivered by Wright J, President in Inspector Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161 delivered on 29 May 2003 and just a few weeks before the oral argument in these matters was listed for hearing. The prosector considered the effect of that judgment to be that of the Occupational Health and Safety Act 2000, which repealed the 1983 Act, was such that s 49(4) of the 1983 Act was replaced by a plain English version of the same provision in the 2000 Act, namely, s 107(3) which specified that the identify of the offender did not have to be disclosed in the Coroner's proceedings or Report and where the final five words of s 49(4), "as the case may be" were deleted. It was submitted that reference to the transitional provisions indicated that s 107 was in a Part of the 2000 Act which would have effect on matters already initiated such as the present prosecutions against the defendants in this case.

43 The provisions of s 107, dealing with the time for instituting proceedings for offences, under the 2000 Act is as follows: SECTION 107 TIME FOR INSTITUTING PROCEEDINGS FOR OFFENCES 107(1) [Within 2 years] Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section. 107(2) [Offence against sec 11 or 86] This subsection applies to an offence against section 11 (Duties of designers, manufacturers and suppliers of plant and substances for use at work) or section 86 (Notification of accidents and other matters). Proceedings for any such offence may be instituted: (a) within 6 months after WorkCover first becomes aware of the act or omission alleged to constitute the offence, or (b) within 2 years after the act or omission alleged to constitute the offence,

whichever provides the longer period to institute proceedings 107(3) [Coronial inquest or inquiry] If a coronial inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded. 107[4] [Applications of section] This section applies despite anything in any other Act

For the purposes of the present argument, it is necessary to also consider s 107 of the 2000 Act in the context of the transitional provisions contained in Schedule 3. Clause 13 of that Schedule deals with criminal and other proceedings for offences under the former Act and provides as follows: CLAUSE 13 CRIMINAL AND OTHER PROCEEDINGS FOR OFFENCES UNDER FORMER ACT 13(1) Part 7 (Criminal and other proceedings) extends (subject to this clause) to proceedings in connection with the former Act in respect of offences committed against the former Act before its repeal or in respect of any related matter that continues to have force or effect. 13(2) This clause applies whether any such proceedings are pending on the repeal of the former Act or whether the proceedings are instituted after that repeal. 13(3) Part 7 applies with such modifications as are prescribed by the regulations or as are necessary for the purposes of applying that Part to any such proceedings. 13(4) Division 3 of Part 7 does not authorise any such proceedings against the Crown or any agent of the Crown if those proceedings would not have been authorised under the former Act. 13(5) In this clause, former Act includes any Act or provision of an Act that is repealed by this Act

44 In Inspector Forster v Osprey Manufacturing Pty Ltd the President, Wright J, was considering an interlocutory issue in a prosecution brought pursuant to the provisions of s 18(2)(a) of the Occupational Health and Safety Act 1983. The defendant in that matter had filed a Notice of Motion seeking the dismissal or permanent stay of the proceedings, appropriate declarations and costs on the basis that the proceedings were brought out of time. A good deal of the argument was centered on whether or not the offence was of a continuing nature but in the course of these considerations, the President Wright J gave consideration to the provisions of s 107 and the transitional provisions contained in Schedule 3 and in particular the provisions of Clause 13.

45 In paragraph [47] his Honour referred to the effect of the transitional provisions and stated: Clause 13 resulted in the application of Part 7 of the 2000 statute to proceedings under the 1983 statute (cl 13(1)) and requires that Part 7 apply even if the proceedings: (a) have commenced prior to the repeal of the 1983 Act; (b) are instituted after the repeal (cl 13(2)). In paragraph ]49] his Honour referred to the "plain terms of clause 13" and concluded that s 107(2) applied to the proceedings and not s 49(2) of the 1983 Act. His Honour then went on to state, in the context of the argument in that case centering around the provisions of s 18 of the 1983 Act, as follows: Although s 107 in its drafting shows some re-wording and re-arrangements of the earlier section I do not consider that the terms or structure of the new provision produces any different result in these proceedings to that reached by consideration of s 49 of the 1983 statute. 46 The prosecutor has submitted that the 2000 Act repealed the 1983 Act and that an Act that repeals and re-enacts a section to make its meaning clearer should not be regarded as a repealing Act (Coulton v Holcombe (1990) 20 NSWLR 138 at 174D - 175C). Section 107 essentially re-enacts s 49 of the 1983 Act - the difference in wording was to be characterised as an amending provision which cleared up the meaning of s 49.

47 The prosecutor accepted that if a limitation defence was assumed to be a "right" then generally there was a presumption against the retrospective operation of changes to substantive legal rights and liabilities brought about by amending legislation: the presumption however could be displaced by clear words of expressing the intention of the legislature. It was also accepted that there was no doubt that in respect of the criminal law the presumption was strong but it was not irrebuttable.

48 It was submitted, however, that the Occupational Health and Safety Acts were not obviously penal statutes. Attention was drawn to the decision of Waugh v Kippin (1986) 160 CLR 156 concerning the construction of the Factories Shops and Industries Act 1960. A breach of the provisions of that Act could lead to a conviction and the majority of the Court (Gibbs CJ, Mason, Wilson and Dawson JJ) stated that in interpreting the meaning of a provision of such an Act, the following needed to be considered: A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with further industrial safety. In that character it should be construed 'so as to give the fullest relief which the fair meaning of its language will allow' to use the words of Isaacs J in Bull v Attorney-General (NSW); see also Pearce Statutory Interpretation Australia, 2nd 1981. On the other hand there is the consideration to which McPherson J referred that a breach of clause 25 is attended with a penal sanction. The modern approach in construing penal statutes was stated by Gibbs J (as he then was) in Beckwith v The Queen as follows: The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of the penal statute, the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams: Craies on Statute Law. The rule is perhaps one of last resort. In the course of that argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with the primary task of extracting the intention of the legislature from the fair meaning of the words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended he should have: … in such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a fork tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as is Sovar v Henry Lane Pty Ltd (1967) 116 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purpose of a civil action (at 164-165). 49 The 1983 Act and the 2000 Occupational Health and Safety Act were to be regarded as remedial in nature and provisions such as the limitation provisions were not to be read as if in a penal statute. In Inspector Forster v Osprey Manufacturing Pty Ltd, the President had referred to authorities in the Commission describing the nature and purpose of the Occupational Health and Safety Act. In particular, reference had been made to Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 465 at 469-70 and Rice v Henley (1914) 19 CLR 19 where Isaacs J commented at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think that one should endeavour to carry out the objects of the legislation as far as the language of the Act will reasonably permit. 50 After referring to that part of the President's judgment in Osprey Manufacturing which applied s 107 of the 2000 Occupational Health and Safety Act to proceedings previously covered by the 1983 Act, the prosecutor drew attention to the provisions of clause 13(3) of the Transitional Provisions. That clause made it clear that the new Part 7 applied "with such modifications as are prescribed by the regulations or are necessary for the purpose of applying that part to any such proceedings". It was then submitted that a strict application of s 49(4) of the 1983 Act was subject to the modifications of s 107(3) of the 2000 Act.

51 The prosecutor pointed to the decision of the Full Court in WorkCover Authority of New South Wales v Lucon for the proposition that the commencement of a prosecution within the prescribed time limit was not an element of the offence and there was no requirement that an indictment show compliance with the limitation requirement on the face of the indictment, adopting what was said by Thomas J in R v Cooling. The limitation period was therefore no more than a rule directed to governing or regulating the mode or conduct of court proceedings and was procedural in nature. The substantive legal obligations and penalties arising in respect of breaches under the former Act were contained within Part 2 of the 2000 Act, and not in part Part 7 of the 2000 Act. In this way the Act itself indicated what were substantive provisions and what are procedural provisions.

52 The prosecutor also relied upon the provisions of clause 17, General Savings, which was in the following terms: Anything done under an Act or a provision of an Act repealed by this Act that has any force or effect immediately before its repeal is taken to have be done under the corresponding provisions of this Act, subject to any express or implied provision to the contrary in this Act or the regulations made under this Act. In particular it was submitted that any defence available to the defendants was not a matter that was "done under an Act" or "a provision of an Act" having effect immediately before the repeal of the 1983 Act.

53 In relation to the submission that the operation of the transitional provisions and that the effective of Clause 13 of Schedule 3 was plain and that s 107 governed the proceedings after the introduction of the 2000 Act, the prosecutor relied upon the judgment in Attorney General (Q'ld) v Australian Industrial Relations Commission (2002) 76 ALJR 1502. It was noted that Gleeson CJ, speaking of the effect of the Interpretation Act, stated: The purpose of [Interpretation Acts] is to resolve uncertainties about legislative intention; not to create them. In the present case, the intention appears to me to be plain. That was said to be the position in relation to the operation of the 2000 Occupational Health and Safety Act. Further, reference was made to paragraph [6] of the Chief Justice's judgment in the following terms: When a statute changes the law, the effect of the change upon existing rights, liabilities, claims or proceedings is determined by the meaning of the statute. The common law developed rules of statutory construction as an aid to discovering that meaning. Such rules involve presumptions; but, being rules of construction, they were subject to any contrary intention evinced with sufficient clarity in the statute (Maxwell v Murphy (1957) 96 CLR 261 at 267 and 270 per Dixon CJ. When expressed in summary form, those rules distinguished between retrospective and prospective effect, and between procedural provisions, and provisions affecting rights or liabilities. However, such distinctions are not always clear-cut. The terms retrospective and prospective may often be a convenient shorthand, but in a given case it may be necessary to identify more precisely the particular application of the alterations to the law in question. And, as the present case shows, there may be rights which, in their nature, are closely bound up with procedures and remedies. 54 For the Ove Arup defendants it was submitted that s 107(3) of the 2000 Act had no retrospective application to the initiation of proceedings commenced before the repeal of the 1983 Act. The provisions relevant to the initiation of the present prosecutions therefore were s 49(4) of the 1983 and upon its proper interpretation that required the identification of the offender from the Coronial Report or proceedings. On 12 October 1999, when the summons was filed, the prosecutor had to satisfy the provisions of s 49(4). The failure to do so rendered the proceedings invalid and liable to be struck out up to and including 31 August 2001.

55 The commencement of the 2000 Occupational Health and Safety Act on 1 September 2001 provided for a new regime to operate thereafter, but there was no provision that the new Act which operated to validate something that was invalid from the very beginning.

56 In relation to the provisions of Schedule 3 to the 2000 Act, it was submitted that the intention, as was usual for such provisions, was to provide continuity and a smooth transition. Section 107(3), however, had no application to the proceedings that had already been instituted prior to the commencement of the Act. Such an effect would conflict with the provision that was in operation at the relevant times. There was nothing in Schedule 3 that required the provisions of Part 7 to override or be substituted for the provisions that were earlier applicable and governed the commencement of proceedings. This approach was consistent with the operation of other provisions of the Act.

57 It was further submitted that nothing in clause 13 could be construed as displacing the general rule of the common law which the Interpretation Act reinforces, that in general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary those rights. Clause 13 was not to be afforded a construction which effectively extinguished a right accruing to the defendant as a result of an invalidly initiated prosecution. The right identified was a valid defence or plea in bar. Relying on the decision in Maxwell v Murphy (1957) 96 CLR 261, the defendants contended that the availability of a valid defence or plea in bar was a substantive right and the provision giving rise to that right was a substantive provision. There was nothing in clause 13 of Schedule 3 which clearly evidenced the parliamentary intention to extinguish the defendant's substantive right to a valid defence or plea in bar.

58 The Ove Arup defendants then submitted that if they were right in their general contentions, then s 107(3) of the 2000 Act must be seen as a substantial amendment to s 49(4) of the 1983 Act. A presumption against retrospective operation of the amending provision therefore arises. The approach of the President, Wright J in Inspector Forster v Osprey Manufacturing, made apparently without the benefit of relevant authority or the assistance of considered submissions by the parties, ought not be followed insofar as the decision might be understood to suggest that an offence committed against the 1983 Act, where proceedings were commenced in July 2001, was subject to the application of s 107 of the 2000 Act and not s 49 of the 1983 Act.

59 To the extent that the prosecutor relied upon the judgment of Gleeson CJ in Attorney-General (Q'ld) v Australian Industrial Relations Commission, it was submitted that the decision required close scrutiny. The provisions of the legislation thereunder consideration showed the mandatory form of the language of the amending Act and thus this example was far removed from the present transitional provisions found in clause 13 of schedule 3 to the 2000 Occupational Health and Safety Act.

60 The defendant EMTB submitted that the proceedings against it were instituted at a time when the 1983 Act was in force and were pending at the time that the 1983 Act was repealed and the 2000 Act commenced, namely, 1 September 2001. It was contended, however, that s 107(3) of the 2000 Act had a different meaning to s 49(4) of the 1983 Act in not requiring the offender to be identified in the Coronial material. This was a significant point in the present proceedings as it was common ground that nowhere in the Coronial material was there to be found a reference to EMTB. If EMTB's construction of s 49(4) was accepted, then the 2000 Act brought about a material change in the limitation provisions governing the institution of proceedings within two years of the conclusion of the Coronial Inquiry.

61 If one assumed that EMTB's construction of s 49(4) was correct, then the prosecution was statute barred at the time the proceedings were instituted by reason that it did not appear from the Coronial material that an offence had been committed. If the prosecutor's contention was right as to the effect of clause 13 of Schedule 3 to the 2000 Act, namely to effectively replace, retrospectively, s 49(4) of the 1983 Act, then the ability of the prosecutor to maintain the proceedings had been revived by the 2000 Act.

62 While EMTB accepted that Part 7 of the 2000 Act applied to the present proceedings now, there was nothing in s 107 or in Schedule 3 evincing an intention to displace the presumption that a statute changing the law ought not, unless the intention appears with reasonable certainty, apply to facts or events which have already occurred in such way as to confer or impose or otherwise affect rights and liabilities which the law had defined by reference to past events, citing Maxwell v Murphy. Section 107(4) did not evince an intention that s 107 was to have retrospective operation. It indicates that the legislature intended the s 107 have precedence over any other statutes containing limitation provisions for the commencement of proceedings.

63 While it was not accepted, the prosecutor proceeded on the basis that Part 7 of the 2000 Act was procedural. Even if this was so, the presumption against retrospectivity still applies where the Act or provision can be said to affect accrued rights. EMTB describe the relevant "right" as the availability of a defence or a bar to the prosecution if it was instituted outside the limitation period.

DELIBERATION 64 I propose to deal firstly with the submissions concerning the application of the 2000 Act to the present prosecutions. The defendants appear to accept that the 2000 Act applies to each prosecution but argues that there is no retrospective application of the new Act such as to apply the provisions of s 107(3) rather than the provisions of s 49(4) of the 1983 Act. The submission for the defendants treats s 107(3) as a distinctly different provision to s 49(4) and they assert a right to have their challenge to the validity of each prosecution determined on the application of s 49(4). On this approach, the alterations brought about by s 107 are to have no application in the absence of a clear statutory intention that the Act 2000 and s 107 are to apply.

65 Although there was considerable debate about the issue I am prepared to proceed on the basis that each defendant had a relevant "right" which might be protected by the provisions of the Interpretation Act although the High Court in Attorney-General (Q'ld) v Australian Industrial Relations Commission closely scrutinised the asserted notion of an accrued "right". The primary issue, however, is discerning the statutory intention when introducing the 2000 Act with its transitional provisions.

66 As to the application of the 2000 Act to the present prosecutions, I believe the approach of the President, Wright J, in Inspector Forster v Osprey Manufacturing Pty Ltd is correct. The transitional and other provisions set out in Schedule 3 contain provisions for dealing with proceedings which are already on foot, such as the proceedings in these cases. As the President Wright J held at paragraph [47] Clause 13 results in the application of Part 7 of the 2000 Act to proceedings under the 1983 Statute and requires that Part 7 apply even if the proceedings had commenced prior to the repeal of the 1983 Act. The 1983 Act is repealed and the 2000 Act applies. There is no provision, as is sometimes found, preserving the operation of the previous Act for proceedings commenced but not concluded (see for example in relation to this jurisdiction GIO Australia Ltd v O'Donnell (1996) 70 IR 1). In this respect the intention of the legislature appears to be clear and unambiguous (see Attorney-General (Q'ld) v Australian Industrial Relations Commission).

67 Having formed the view that the 2000 Act and specifically s 107 of the 2000 Act applies to the present proceedings and that s 49(4) does not apply to the proceedings, the points raised by the defendants regarding s 49(4) must therefore fail. This result follows whether or not s 107 brought about a significant alternation to the provisions of s 49(4) of the 1983 Act, because of the clear statutory intention that the new Act and Part 7 of the new Act is to apply to proceedings commenced under the 1983 Act but not yet concluded.

68 In deference to the detailed argument, I will deal with the defendant's submission as to the proper application of s 49(4) and the consequences which are said to flow from such a construction in light of the repeal of the 1983 Act and the introduction of the 2000 Act. It should be immediately stated at this point that I am bound by the conclusions of the Full Bench in Inspector Page v Walco Hoist Rentals Pty Ltd (1999) 87 IR 286. The consequence of that position is that on a proper construction of s 49(4) it is not necessary to identify the offender in the material before the Coroner or in the Coroner's Report, nor is it necessary for the prosecutor to rely on one only of the Coronial proceedings or the Coroner's Report but not both. Further, there is no requirement that the material before the Coroner or found in the Coroner's Report should appear therefore for the first time and be in addition to the information and detail already in the hands of the WorkCover Authority. Similarly, Walco Hoist is binding in rejecting the proposition that the evidence before the Coroner needs to establish a prima facie breach of the Occupational Health and Safety Act or that all the necessary elements of the offence have been established. Finally, the Full Bench held that there was no ambiguity arising from the provisions of s 49(4), contrary to the submissions now made by the defendants. These matters, of course, lie at the heart of the defendants' case and in pursuing the arguments before the Court as presently constituted it was recognised that the decision of the Full Bench would be binding and that leave would be sought to re-argue the decision in Walco Hoist, presumably on appeal.

69 In dealing with these submissions it is appropriate to consider the role of the prosecutor and the extent to which it is proper for the Court to be involved in an inquiry as to whether the decision to prosecute was properly made. 70 Section 49 of the 1983 Act deals with the time for institution of proceedings for offences under the Act and requires such proceedings to be instituted within the period of two years after the act or omission alleged constituted the offence. In sub-sections 2 and 3 in relation to proceedings for an offence against s 18 or s 27, the time limit is set as two years after the act or omission alleged to constitute the offence or within six months after the WorkCover Authority first becomes aware of the act or omission alleged to constitute the offence, "whichever provides the longer time for proceedings to be instituted".

71 It is in this context that sub-section 4 is to be considered, noting that the extensions of the time limit in sub-sections (2) (3) and (4) were all inserted by the same amending Act in 1995. Sub-section (4) is in the following terms: If a Coroner's Inquest or Inquiry is held and it appears from the Coroner's report or proceedings at the Inquest or Inquiry that an offence has been committed against this Act or the Regulations, proceedings in respect of that offence may be instituted despite anything to the contrary in this section, within two years after the date the report was made or the Inquest or Inquiry was concluded, as the case may be. 72 Although it is obvious that a defendant will have an interest in ensuring compliance with the time limits specified by s 49, the section is primarily directed to the decisions made by a prosecutor to commence proceedings for an alleged breach of the Act. Within the time specified the prosecutor is to determine whether or not there is sufficient material to warrant the institution of proceedings for a breach of the Act. In one sense, where sub-section 4 speaks of "… it appears from the Coroner's report or proceedings … that an offence has been committed against this Act …", is must firstly appear so to the prosecutor. It is accepted, by reference to such cases as Whitten v Hall (1993) 29 NSWLR 680 that proceedings cannot be commenced merely to keep the clock running where there has been no final decision made as to whether or not the evidence available justifies the commencement of the proceedings. At this point of the discussion it is appropriate to consider the extent of the discretion exercised by a prosecutor, especially in relation to the decision to prosecute and the extent to which the exercise of that discretion may be scrutinised by a Court.

73 Many of the cases that deal with the discretion of a prosecutor arise in circumstances where there has been a challenge based upon the failure of the prosecutor to call a particular witness and an examination of the circumstances to establish whether or not there has been as a result a miscarriage of justice. One of the best known statements in this context, is that of the joint judgment of Barwick CJ, McTiernan and Mason JJ in Richardson v The Queen (1974) 131 CLR 116 at 119-120, as follows: Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution . He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.

What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformable with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor had a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word "discretion" signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned.

It is, therefore, a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. The misconception has arisen, we venture to think, from treating some observations in the decided cases, which had been made with the intention of offering guidance to prosecutors in how they are to approach their task, as the prescription of an inflexible duty to call all material witnesses, subject to certain exceptions or to special circumstances. Although the pursuit of certainty may have its advantages, the rigid circumspection of a practical decision to be made by the Crown prosecutor in the conduct of the Crown case is not to be numbered among them. 74 In Richardson the crown prosecutor had declined to call as a witness a girl who had been an eye-witness to the events, who was associated with the accused and who had been called in the Local Court in circumstances where the Magistrate had expressed the view that her evidence was unsatisfactory, commenting that she was not a very convincing witness and that her demeanour in the witness box was such that a very real issue arose as to her credibility. The court referred to that matter in the following passage: In the present case there is no basis on which it could be held that the Crown Prosecutor was guilty of misconduct or that any misconduct on his part gave rise to a miscarriage of justice. Ms Gardiner's evidence before the Magistrate seems to have been unsatisfactory and to have justified the conclusion, if justification be needed, that she was not a credible or reliable witness. Moreover, she was an associate of the accused, in particular of Colin Dickinson, and there was evidence from the principal Crown witness that she encouraged the accused in their vicious and unprovoked assault. No dictate of fairness to the accused could properly require that she be called as a Crown witness free from cross-examination by the Crown. Proper presentation of the Crown case required that she be called, if at all, by the defence. There was therefore no basis for any criticism of the Crown Prosecutor" (at 122)

It seems from this observation that the court was of the view that the Crown Prosecutor need not be required to justify the decision not to call the witness but, rather, as an objective fact that decision may be regarded by the court as proper or appropriate or importantly as not involving a miscarriage of justice.

75 The issue of a prosecutor's discretion in the context of deciding whether or not to call a witness was again visited by the High Court in The Queen v Apostilides (1984) 154 CLR 563. The court then expressed its view as to general propositions that were applicable to the conduct of criminal trials, stating as follows: We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia: 1 The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. 2 The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3 Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. 4 When charging a jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge. 5 Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasises that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from which the defendant wished to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined. (575-576)

76 The discretion of a prosecutor not to call a witness was more recently examined by the Court of Criminal Appeal in R v Kneebone (1999) 47 NSWLR 450. In dealing with the position where the evidence of a witness might be inconsistent or contradict other evidence, Greg James, J (with whom Spigelman CJ and Smart A-J agreed): 49. Since both experience and logic confirm that merely because witness' evidence is consistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call on a material witness on the ground of unreliability: see R v Apostilides (at 576): … at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion. 50. In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness' evidence is seen as not fitting the prosecution's view of the case is likely to lead to a miscarriage of justice. R v Apostilides deals with the consequences of such an approach. A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly … 77 James J went on to note that, even in the Court of Criminal Appeal, the Crown had not exposed the prosecutor's reasons for not calling the witness. His Honour went on to observe at paragraph [57]: In summary, it is the duty of a prosecutor to determine what witnesses will be called. He has the responsibility for ensuring that the Crown case is properly presented. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused and to the court. He does not perform that duty by seeking to avoid having placed before the court evidence which he is not entitled to regard as unreliable and yet which ill accords with the theory of the accused's guilt. … [59] Not calling the witness without having a principled basis for not so doing accorded ill with the traditional notion of the functions of a prosecutor for the Crown …

78 These cases underscore both the role of the prosecutor and the discretions exercised by the prosecutor. There are limits upon the extent to which the court should intrude upon the discretion exercised by a prosecutor: as with the cases dealing with failure of a prosecutor to call a witness, the court does not compel the prosecutor to explain the reasons behind the exercise of that discretion (but is obviously much assisted where that occurs) but the court then looks to the existence of identifiable factors which may justify the decision. In this case, dealing with a decision to commence a prosecution under the Occupational Health and Safety Act 1983, it is beyond the role of the court to investigate the state of the material held by the prosecutor at the point that the Inquest concluded and the relative strength of its case at that point in order to determine if something new has been exposed: likewise, it is not open to the court to investigate what additional evidence might arise from the Coronial Inquest and/or the decision of the Coroner that might assist or strengthen the prosecutor's case against a defendant or supply the missing evidentiary link which the prosecutor thought was or might be missing.

79 Approaching s 49(4) of the Act in this way, it is a decision for the prosecutor whether or not to commence proceedings under the Act. Where s 49(4) refers to the fact that "it appears from the Coroner's report or proceedings" that an offence has been committed against this Act, initially that must appear to be so to the prosecutor. When a defendant challenges such a decision taken by the prosecutor the court will enquire as to whether there are identifiable factors which may justify that decision by a reference to the Coronial proceedings and/or the Coroner's Report. (see Inspector Maltby v Abigroup Contractotrs Pty Ltd. and anor., Kavanagh J, [2003] NSWIRComm 35; Inspector McMartin v Oakbridge Pty Ltd., Staunton J [2003] NSWIRComm 214). That task does not warrant an intrusion into the prosecutorial role and care must be taken as to the form and extent of the Court's inquiry. 80 In McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 the Court of Criminal Appeal held that a judge was not required by the Land and Environment Court Rules 1996 to be satisfied there was a prima facie case before making an order under s 41(1) of the Land and Environment Court Act 1979 ordering the appearance of a person alleged to have committed an offence under the Act to appear and answer the charge. In the course of that consideration, the court held that if a prima facie case was required then it was to be expected that the rules of court would specifically state that necessity. Spigelman CJ, in this context, went on to consider the role of the prosecutor and the extent to which the court might become involved in that role: [69] The reasoning of Cripps J in Baker v Macleod which highlights the undesirability of the court becoming involved in reviewing the sufficiency of evidentiary material, or the performance of the prosecutor, is reminiscent of the reasoning of the High Court, particularly in the cases of Barton, Maxwell and Director of Public Prosecutions (SA) v B, concerning the undesirability of judicial involvement in the prosecution process, to which I have referred above in relation to question 3(i). [70] As Viscount Dilhorne put it in Director of Public Prosecutions v Humphrys [1977] AC 1 at 26: 'a judge must keep out of the arena. He should not have nor appear to have any responsibility for the institution of a prosecution".

[71] It is true that the jurisdiction of the Land and Environment Court contains a unique admixture of judicial functions and the functions of an administrative tribunal. However, this court should be slow to construe the constituting act of, or rules of, a court in a manner that may give the appearance that the judges of the court perform a function that is closely associated with prosecution process. The independence and impartiality, and particularly the public perception of that independence and impartiality, of the judicial process should not be compromised in any manner with respect to the exercise by a court of a criminal jurisdiction. Clear words are required before the court will adopt a construction of a court's acts or rules, which may have any such tendency. [72] … [73] There are two significant points of distinction between an application under s 41 and a committal proceeding. Under s 41 proceedings are ex parte and the judicial officer does not conduct the preliminary examination for the purpose of a trial in another court. Furthermore, nothing in s 41 suggests that only one application for an order can be made. Accordingly, if a judge has to assess the affidavit material as to its adequacy on a prima facie case, or some other test, an appearance may be given that the judge is in some sense supervising the prosecutorial process. In such a context the court should not, unless compelled to do so, construe a rule in the manner for which the defendant contends.

81 In Baker v McLeod (Land and Environment Court, Cripps J, 1 August 1986, unreported), his Honour had held that there was no requirement upon a prosecutor to furnish an affidavit concerning the nature of the case sought to be made against the defendant before an order could be made for the issue of a summons under s 41 of the Act. His Honour had said that it was no part of the judge's function to adjudicate upon factual matters which must be established if the prosecution is to succeed. His Honour concluded: In my opinion there is an obligation on the court before directing issue of a summons, to satisfy itself that the offence charged is an offence known to the law and within the jurisdiction of the Land and Environment Court and (if appropriate) the proceedings were duly authorised. It may be that the court would also need to satisfy itself of the existence of a condition precedent to the commencing of proceedings as for example, the existence of an order of the court. The court would, of course, need to satisfy itself by evidence on oath that it was appropriate to order the apprehension of a person for the purpose of that person being brought before a judge to answer an offence charged. But it is no part of the function of the court to embark upon an assessment of the quality of the prosecutor's case. In my opinion, it is undesirable that the court should be seen to be supervising the performance of prosecutors or to be tendering advice in terms, or by implication, as to the sufficiency of evidentiary material in respect of matters calling for later determination. This passage was reproduced in paragraphs [60] and [61] in McConnell. 82 Earlier in the unreported portion of the Chief Justice's judgment, his Honour stated: [24] As Gibbs ACJ and Mason J said in Barton v The Queen (1980) 147 CLR 75 at 94-95:

It has generally been considered to be undesirable that the court, whose ultimate function is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced … though it may be that in exercising its powers to prevent an abuse of process, the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. [25] The significance of the distinction between decisions involved in a prosecution process and issues concerned with the abuse of a court's process has been emphasised by Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 579, where their Honours said at [21]: The line between, on the one hand, the decision whether to institute or continue criminal proceedings (which are decisions of the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court's processes (which are the province of the courts) is of fundamental importance. [26] Their honours went on to quote an extract from the judgment of Gummow and Gaudron JJ in Maxwell v The Queen (1996) 184 CLR 501 at 534 when their honours identified a number of 'decisions involved in the prosecution process' which their honours concluded were 'of their nature insusceptible of judicial review'. It may well be that decisions relating to consent to prosecute pursuant to a statutory requirement of such consent, should be added to their honours' list. It is not necessary or desirable to determine that in this case.

83 In The DPP (SA) v B, Gaurdon, Gummow and Hayne JJ considered what aspects of the role of prosecutor might be open to judicial review: [ 21] The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court's processes (which are the province of the court) is of fundamental importance. As was said in Maxwell v The Queen: It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. -------------- They include decisions whether or not to prosecute , to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof, would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what. (emphasis added)

84 This survey of the cases underlines the inappropriateness of the court becoming too closely associated with the commencement of proceedings by the prosecutor. There is nothing in s 49(4) which requires the level of intervention by the court as argued for by the defendants. Section 49(4) does not, by its terms, require the offender to be identified and does not require a prima facie case to be made out when a prosecutor wishes to rely on material obtained from Coronial proceedings. In my view, s 49(4) requires nothing more than the prosecutor being able to point to identifiable factors which can justify a decision to commence the prosecution. In this case, the prosecutor has pointed to some aspects of the proceedings and the Coroner's Report which show that the joint venture was to superintend the work and had that role under contractual arrangement with Abigroup as the head contractor. There was, to that extent, control of the site: it would be contrary to established principle for the Court to become involved in assessing the quality of that prosecution case. The prosecutor has made its own enquiries as to the identity of the participants in the joint venture and has commenced these proceedings. The evidence before the Coroner showed that there were employees of others working at the site (being non domestic premises) and demonstrated the existence of a risk to those employees while working on the site, which had been made available to them as a place of work. Speaking generally, in relation to these aspects that was as much as was required to justify the commencement of the proceedings. I deal with these matters in more detail from paragraph [104].

85 Regard has to be had to the purpose of the amendments to s 49 which extended the limitation period from a period of two years after the act or omission alleged to constitute the offence. Sub-sections 2 and 3 provided a generous period within which a prosecution may be commenced, that is, within six months of the act or omission becoming known to the Authority. Section 49(4) was introduced at the same time and extended the period for initiation of proceedings where it appeared from the Coroner's Report or proceedings before the Coroner that an offence had been committed. The language of the provision is general and there is no warrant to read into it the requirements proposed by the defendants (namely, the need for the defendant to be identified, the need for evidence admissible in a criminal proceeding to support the alleged breach, and the requirement that a prima facie case be established). These propositions are so detailed and amount to such important and particular requirements that they cannot be simply inferred as necessary requirements. The legislature has not specified these requirements and it is contrary to the usual cannons of construction to infer such provisions in the absence of clear words to that effect appearing in the sub-section.

86 The amendment has to be considered in its context of extending the time within which prosecutions may be commenced. As the President, Wright J said in Inspector Forster v Osprey Manufacturing Pty Ltd, it is not to be assumed that Parliament intended impractical or unlikely situations, citing Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cwth) (1981) 147 CLR 297 at 320-321. There is nothing in the provision which restricts the prosecution from using evidence already in its possession which is necessary, even essential, in establishing a breach of the Act when the Coroner's Inquiry reveals sufficient material to suggest that there has been a breach of the Act. The prosecutor is not to be limited to particulars which themselves must also come out of the Coroner's proceedings - those proceedings may add or clarify points that were being considered by a prosecutor in deciding whether or not to commence a prosecution. Information may come forward which persuades the prosecutor that a breach should not be assumed in relation to a person hitherto under consideration for breach action.

87 The realities of an investigation of a breach of the Act, which may involve complex issues of fact and/or law, cannot be ignored. It is unlikely that Parliament would extend the time limit on the one hand but then tie the prosecutor precisely to those matters revealed in the Coronial proceedings and Report. The Coroner's Inquiry is not be converted by s 49(4) into something akin to committal proceedings under the Occupational Health and Safety Act. The information obtained from the Coroner's proceedings is simply treated as a means by which the decision to prosecute may be enhanced by information and clarification of surrounding facts and circumstances. So long as it appears that an offence has been committed, then the longer time limit is available. It defies commonsense and the language of s 49(4) to construe that provision in such a way that a prosecutor in a complex case having possession of many facts but lacking one or more vital facts, could be precluded from commencing the prosecution after a Coroner's Inquiry because not all the essential facts relating to the offence were established in the Coroner's proceedings. Waiting for coronial proceedings or a Report would be reduced to a roll of the dice by the prosecutor: the policy reasons behind such an approach are unimaginable.

88 Consideration of the statutory context also requires recognition of the truly hybrid nature of the Occupational Health and Safety Act. The legislation addresses the important social objective of securing health and safety in the workplace. The very substantial penalties available for a breach of its provisions are placed within the framework of a criminal prosecution and the requirement to establish such a breach beyond reasonable doubt. The seminal case of Carrington Slipways treated the legislation as remedial in nature, with the rules of construction to proceed on that basis when considering the meaning of its various provisions. This approach is not unusual: in Mathews v Goulburn Wool Processors Pty Ltd (1987) 10 NSWLR 419, Samuels JA (with whom Priestley JA agreed) in dealing with a prosecutor under the Clean Waters Act, 1970, described the legislation as "remedial". In DPP v Ancon Travel Towers Pty Ltd (unreported, 6 December 1998), Judge Mullaly of the County Court Victoria referred with approval to an earlier judgment of Judge Villeneuve-Smith concerning the Occupational Health and Safety Act 1985 and the need to give effect to the legislative intent set out in the objects clause: … namely that it is a piece of social legislation, designed to promote and, indeed, enforce standards of behaviour by employers which will directly and indirectly secure or conduce to the safety of employees in a given industry by the provision of a safe working environment appropriate to it. This is the type of legislation where it may be legitimately said that there is a public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised ( Ridgeway v The Queen (1995) 184 CLR 19 at 32, 75). These considerations also tell against the construction contended for by the defendants.

89 Finally, having concluded that s 49(4) does not operate as contended by the defendants, it appears that no alteration or change to the position of a defendant is brought about by the provisions of s 107(3) of the 2000 Occupational Health and Safety Act. Even accepting the contention that the defendants had a relevant "right", that right was not adversely affected by the introduction of s 107(3) and its application to proceedings already on foot by clause 13 of Schedule 3. To the extent that the 2000 Occupational Health and Safety Act is presented in plain English, the re-formulation of s 49(4) by s 107(3) represents no more than a clarification of what was originally meant by the legislature. A similar conclusion was reached by Staunton J in Inspector McMartin v Oakbridge Pty Ltd and Schmidt J in Inspector Maltby v AGL Gas Networks [2003] NSWIRComm 28.

90 If s 49(4) had any or all of the elements contended for by the defendants, nevertheless s 107(3) and the operation of the transitional provisions in clause 13 of Schedule 3 speak in intractable language - current proceedings are to be treated as covered by the new Act and nothing, relevantly, is saved to continue under the operation of the 1983 Act (see Attorney-General (Q'ld) v Australian Industrial Relations Commission per Gleeson CJ at [13]: "if the parties … had a right, then there was manifested plainly a legislative intent to affect that right").

91 In relation to the words "as the case may be" so heavily relied upon by the defendants, there is force in the view that in the 1983 Act the legislature was merely dealing with the occurrence, from time to time, of the Coroner making no "report". Indeed, the defendants point out that in the Coroner's Act there is no reference to a "report" as such: the broad approach of the Occupational Health and Safety Act is thereby highlighted.

92 The construction of s 49(4) that I favour is also confirmed by the views that I have already expressed, that the defendants' construction of the provision would involve the Court in too closely supervising the prosecutor and impermissibly involving the Court in the decision of whether or not to prosecute. The well established principles against such an approach cannot have been put aside by the legislature by the adoption of such general words in s 49(4).

ABUSE OF PROCESS 93 The Ove Arup defendants, quite apart from the issues of construction raised in connection with the operation of s 49(4) of the Act, have separately challenged the prosecutions as an abuse of process. This challenge commences with the general statement that in a criminal prosecution the prosecutor must have formed, at the time of initiating the proceedings against the defendant, a bona fide opinion as to the existence of evidence sufficient to support that charge. To initiate a charge without having formed such an opinion is an abuse of process. For that reason, where there are statutory time limits involved in criminal proceedings, it is not open to a prosecutor to commence a prosecution against a defendant within the limitation period simply for the purpose of "preserving" the prosecution, knowing that further enquiries or investigations need to be made after the exploration of the limitation period in order to obtain sufficient evidence of the commission of the offence charged against the defendant (Whitten v Hall; R v Brentford Justices; ex parte Wong [1981] QB 445 at 450). Where this conduct is shown, a prosecutor has effectively extended the time limit set by the statute by an impermissible practice. Once an abuse of process is found there is no discretion but to provide a permanent stay (Gorman & McLaurin v Fitzpatrick & Barrett (1987) 32 A Crim R 330 at 340 per Kirby P).

94 The defendants' submission then seeks to establish what was or what was not in the mind of the prosecutor at the time of initiating proceedings by closely observing the behaviour of the prosecutor in respect to the defendant's request for particulars as to the matters which appeared in the Coroner's proceedings or Report which resulted in the appearance of a breach of the Act having been committed. In WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of NSW [2000] NSWIRComm 170, Schmidt J observed in relation to the earlier proceedings that there was no evidence that the prosecutor was satisfied, at the outset, that the prosecution proposed was not beyond time. There was nothing in the application, the proposed summons nor the prosecutor's affidavit which mentioned those matters at all and the prosecutor was not called to give evidence in those proceedings. Further, the prosecutor had refused to give the defendant particulars of what it was in the Report or the proceedings on which the prosecutor had relied in coming to the view that it appeared the offence with which they had been charge, had been committed. It was said that during the proceedings before Schmidt J the defendants had continually pressed for the provision of these particulars but those requests were met by a consistent refusal by the prosecutor to provide such particulars. Before Schmidt J the defendant contended that it was a defect in the prosecution's conduct to fail or refuse to call any evidence from the prosecutor as to having formed a view that it appeared from the Coronial Report or proceedings that an offence had been committed.

95 Schmidt J had observed that it was an odd thing that the prosecutor had not supplied the particulars and thus put the defendants in a position to deal with the issues. Her Honour urged the prosecutor to reconsider its position and fulfil its obligations to provide particulars in light of the complaints made and raised by the defendants. The defendants stated that Schmidt J had found that: (a) there was no evidence that the matter had been considered by the prosecutor before the proceedings were commenced; (b) despite specific requests from the defendant, the prosecutor had failed to provide to the defendants the material from which it appeared an offence had been committed; (c) even after a motion to dismiss the proceedings was filed and affidavits served, no evidence from the prosecution was put forward; (d) when the matter came on for hearing and complaints were made, no effort was made by the prosecution to lead evidence of the matter; and (e) even after that approach was criticised strongly by her Honour in the first judgment, no further effort was made to lead such evidence and, most importantly, the particulars provided failed to illustrate the proceedings against these defendants were brought within time. It was submitted that her Honour was not satisfied with the conduct of the prosecutor but gave the prosecutor a last opportunity to address the issues.

96 It was submitted that the prosecutor's conduct could be made a matter open to examination by the Court when it impacted upon the Court's process as illustrated in Whitten v Hall. Here, the defendants were entitled to question, with a degree of scepticism, the inability or reluctance of an experienced prosector to provide the particulars so persistently sought by the defendants and the court if those particulars were within the prosecutor's contemplation at the time the charges were laid. If there was some simple explanation for that inability or reluctance, again the defendant and the court could question sceptically why it had not been proffered to this time. If the prosecutor had actually turned his mind to the sufficiency of the evidence available to be tendered against specific defendants at the time of instigating the prosecutions, he should have been in a position to readily provide the particulars sought by the defendants and the court when they were called for: yet he was unable or unwilling to do so. The irresistible inference was that the prosecutor had not turned his mind to that issue prior to the instigation of these proceedings.

97 The submission continued: if the prosecutor had failed to turn his mind to the sufficiency of evidence to support the charges commenced against the defendants, then it must be doubted that the prosecutor ever turned his mind to what, if anything, may appear from the Coronial proceedings or the Coroner's Report that the offence with which these defendants were charged had been committed. If he had done so in the six weeks between the date that the Coroner delivered his Report (17 October 1997) and the date on which the s 49(1) limitation expired (4 December 1997) he would surely have been in a position to provide the particulars sought by the defendants and the court between 1999 and 2000. In the face of the inability or failure to provide the particulars it is more likely that the prosecutor simply relied on s 49(4) of the Act to provide a blanket extension of the s 49(1) limitation period by relying on the fact that a Coroner's Inquest had been held. It was likewise open to inference that the repetitive presentation and content of the particulars, when they were eventually provided, was due to the prosecutor having for the first time sifted thoroughly through all the available material to satisfy himself of the content of the brief and of the record of the Coroner's proceedings and Report.

98 It was also submitted that other recent events suggested that the prosecutor had failed to properly turn his mind to the existence of or the sufficiency of evidence to commence or maintain the proceedings. The following matters were referred to: (a) the issue and service of a notice under s 62, Occupational Health and Safety Act 2000, (dated 13 May 2003) upon the solicitors for Group One Interiors Pty Ltd, to produce "all documents relating to the Stations Upgrade Joint Venture, later known as Capital Works Management, dating from June 1994, held by Group One Interiors Pty Ltd and/or its legal representatives". (b) the interview of, and resulting record of interview/statement obtained from, Mr John Alexander, dated 14 May 2003 - recently served upon the defendant.

99 The s 62 notice sought the production of "an enormous quantity of documentation concerning the Joint Venture" at a point some seven and a half years since the date of the incident giving rise to the various charges and over five and a half years since the date the Coroner handed down his Report. Nevertheless, this was the first time the prosecutor had endeavoured to obtain or inspect records which might provide a link in the chain of evidence concerning which entity within the Joint Venture bore the responsibility for certain tasks and/or specific obligations at the Kogarah Railway Station. The failure to consider crucial material served to illustrate again the failure by the prosecutor to turn his mind to the sufficiency of the evidence prior to filing the application to prosecute. 100 The statement obtained from Mr John Alexander related to his engagement by Capital Works Management between October 1994 and June 1996. At the time, his company, Waterford Pty Ltd, of which he was an employee, contracted to other companies. Capital Works Management was a client. The Ove Arup defendants submit that on a number of issues, including site inspections and site activities, the answers given by Mr Alexander were vague and made in relation to questions requiring an independent recollection. The inability of Mr Alexander to fully recollect or recollect in detail the various events about which he was asked illustrated the "negative aspect of failing to properly investigate alleged offences". A tardy investigation could often have far more serious ramifications for a defendant than a prosecutor: the interview at this late stage, of a witness whose particulars were known to the prosecutor from at least the time of the Coronial Inquest, was a further indication that the prosecutor had failed to turn his mind to the sufficiency of available evidence prior to commencing the prosecution.

101 It is well accepted that the decision to prosecute is one for the Executive and is generally not reviewable by a court. A case such as Whitten v Hall illustrates that a decision made to commence proceedings simply to bring a prosecution within a limitation period with a view to considering at a later time whether there was sufficient evidence to continue with the proceedings, is not only an abuse but is reviewable by the courts. In that example, there was, in fact, no decision made to prosecute, but merely a decision to commence proceedings in order to avoid the effect of a limitation provision. The failure to call witnesses in the proceedings directly affects the processes of the Court and those decisions are reviewable on objective indications where a miscarriage of justice might occur. I am not convinced, on the material before the Court in this matter, that this particular challenge falls into a category which permits or requires the Court to review the decision to prosecute. Ultimately, that issue need not be resolved as I am of the view, even if the decision to prosecute was reviewable, the material relied upon by the defendants is equivocal and tends to point with a wavering finger in a number of possible directions. The refusal of the prosecutor to give particulars of the matters arising in the Coroner's proceedings or Report which gave the appearance of the commission of an offence may have just as easily resulted from a firm view that the prosecutor was not required to supply such particulars and the decision to prosecute could not be open to such a challenge. Similarly, the prosecutor may have taken the view that his evidence and cross-examination was not required and reference to what was shown objectively to exist from the Coroner's material would suffice. The decision may also have been influenced by the debate over the proper meaning of s 49(4) and a view that encouragement should not be given to the taking of such points by the prosecutor acquiescing in the provision of particulars. It seems, for instance, that the prosecutor took the view, at least in part, that if the commencement of the proceedings were to be challenged on the ground raised by the defendants in this matter, then it was for the defendants to outline the nature of the challenge and make good its challenge while clearly the defendants were of the view that they could call upon the prosecutor to particularise the matters raised in the proceedings or in the Report which were relied upon to establish the appearance that an offence had been committed. Whether or not the stance taken by the prosecutor was justified or not, that material was ultimately particularised and in the present proceedings a number of extracts from the evidence and statements of witnesses has been relied upon as supporting the commencement of the prosecution pursuant to the provisions of s 49(4).

102 The issue raised by the s 62 notice and the interview of Mr Alexander appears to suggest a Walton v Gardiner [1992] 177 CLR 378 delay issue, but that point was not developed. It is well established that a permanent stay of criminal proceedings is granted in only exceptional cases ( Watson v Attorney-General (NSW) (1986) 8 NSWLR 685; Gorman & McLaurin v Fitzpatrick & Barrett (1985 ) 32 Crim R 330. The present case, on the material relied upon by the Ove Arup defendants, is not one of those rare occasions, as referred to in Barton v R, where the court would intervene to consider whether or not a prosecution should be permitted to continue. In Gorman , Priestley JA was moved to comment: "There has in this case been a good deal of fumbling and bumbling by the prosecuting authorities, their performance especially in regard to particulars showing little grasp of fundamentals, but certain features of the case seem to require the conclusion by the Court that no abuse of process has been shown". A similar conclusion is available here. This case, however, is not like Whitten or the Brentford Justices where there was openly accepted a deliberate but mistaken view by the prosecutor that proceedings could be commenced within the relevant time limit and evidence necessary for deciding whether or not to prosecute could then be obtained after the proceedings had been commenced. As I have earlier stated, there may be a number of reasons why the prosecutor took the approach it did to particulars (and the gathering of further evidence): the inferences sought to be drawn by the defendants are too equivocal to justify a conclusion that there was an abuse of process.

103 The defendants' concentration on what was or was not in the mind of the prosecutor at the time that the proceedings were commenced and the failure of the prosecutor to give evidence about these matters was said to raise the inference that no real decision to prosecute had been made at that time. This inference was said to be supported by further investigations carried out by the prosecutor well after the proceedings had been commenced. The cases already cited dealing with the discretion of a prosecutor to commence proceedings and the undesirability of the Court becoming too closely involved in the process of commencing a prosecution, tends to support the view that it would be inappropriate for a prosecutor to give evidence as to the state of the investigation when the decision was made to prosecute. The matters relied upon by the defendants might raise legitimate queries but I am not satisfied that the inferences sought to be made by the defendants are actually made out on the material relied upon. In those circumstances, I am not prepared to dismiss or permanently stay the proceedings as an abuse of process

WAS THERE AN APPEARANCE OF AN OFFENCE? 104 The issue remains, on the basis of the various points of construction referred to above, to decide whether there was any objective or identifiable material in the proceedings before the Coroner which led to the appearance of a breach of the Act, here s 17(1) of the 1983 Act.

105 The s 17(1) charges allege at various dates at Kogarah the defendants having, to any extent, control of non domestic premises, namely, the Kogarah Railway Station and adjoining areas which had been made available to persons, not being the defendants' employees, as a place of work, contrary to s 17(1) of the Act failed to ensure that the premises were safe and without risk to health in that it had a charged gas supply line situated in an area where construction work was designed to occur. The particulars referred to the following matters: The defendants' participation in an unincorporated joint venture known as the Stations Upgrade Joint Venture which ultimately operated under the registered business name, Capital Works Management; the SRA had engaged the defendants and the other participants in CWM for the design, contract tender process and supervision to completion of the upgrading work of a number of SRA facilities including the Kogarah Station Upgrading; that in October 1995, Abigroup Contractors Pty Ltd was engaged by the SRA to perform construction work on the KSU; that in or about 8 November 1995, Abigroup engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of shops 3, 5 & and 9 Railway Parade, Kogarah as part of the KSU; the workplace at the KSU presented acute safety problems because of its situation adjacent to a railway station being continuously used by passenger trains in the centre of Kogarah shopping centre; that CWM had control of the KSU to a degree pursuant to the terms of the engagement with SRA and had a duty to supervise the performance of the work and ensure that the work was done in a safe manner and without risk to health; that pursuant to the terms of the engagement CWM was appointed as superintendent charged with the duty of ensuring the work was conducted in accordance with its contracts in a safe manner without risk to health; on 10 December an employee of AGL Gas Networks Ltd attended the KSU and cut and capped the gas supply line to Shop 7, Railway Parade; that the cutting and capping left approximately 2 metres of the charged gas supply line within the KSU where construction was designed to occur and that the gas supply line remained charged; the existence of the charged gas supply line in an area where construction was to occur was inherently dangerous; the defendant failed to ensure the charged gas supply line at the KSU was adequately protected, adequately identified, adequately marked and failed to ensure that the KSU over which it had control to a degree, was safe and without risk to health. It was also alleged that there was a failure by the defendant to adequately supervise Abigroup and Josef in the performance of their duties to ensure that the KSU was safe and without risk to health, a failure by the defendant to adequately inspect the KSU or to have a regime of reporting about the conduct of construction work so that the KSU could be kept safe and without risk to health, a failure by the defendant to have the demolition site examined by competent specialists for the purposes of determining explosive material or conditions which would be a risk to health and safety and a failure by the defendant to record the nature of the gas hazard and the proposed method of dealing with the hazard in the work method statement. In relation to EMTB these particulars were made in the context of: an exposure of the gas supply line prior to 4 December 1999 when excavation removed footings; the use of a stake to mark the gas supply line after it was exposed; the use of an excavator on 4 December 1999 to create a batter in the area where the supply line was situated; a failure to prevent this work close to a gas line and the occurrence of a gas explosion when the gas line was detached.

106 The width of the term "control … to any extent" was emphasised by Peterson J in WorkCover Authority (Inspector Page) v Growth Equities Services Pty Ltd (unreported, 9 September 1994). In that case the defendant was the manager of a retail store complex where Woolworths had used columns found within its leased area as dividers in a public display area. The defendant was found to have de facto control of the columns and may have had actual legal control under the terms of the lease but that point was not necessary to finally determine. The liability of the defendant was not diminished by the fact that Woolworths also had control, to an extent, over the placement and use of the columns. In McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464, the Full Bench dealt with the requisite degree of control contemplated by s 17(1). The degree of control of a defendant was said to be the extent to which that person was able to ensure safety by guaranteeing securing or making certain. Control was not used in the sense of merely being able to "sway" or by "checking" or "restraint" but was used in the sense of "directing action" or "command" - the ability of a person to compel corrective action to ensure safety, having in mind the context and purpose of the statute.

107 In dealing with the material before the Coroner, the defendants have largely focused on their preferred construction of s 49(4) and the requirement that the offender be identified, that there be evidence admissible in a criminal trial to support the charge and that the alleged offence be established prima facie. For reasons already outlined, I have rejected that approach and I have rejected the proposition that all the particulars of the charge have to appear from the Coronial proceedings. The defendants' submission seemed to accept, by implication, that if the strictness of approach they contend for is not available, then not a great deal may be needed for it to be established on an objective basis that there is the appearance of an offence having been committed. It is undesirable to describe what is required to permit a prosecutor to commence proceedings in circumstances dealt with by s 49(4) by the use of terms which are too prescriptive. In my view no more need be said than, when challenged by a defendant, the prosecutor must be able to make out a case that there is sufficient material on an objective analysis of the proceedings or to point to identifiable matters to suggest that there has been a breach of the Act.

108 One of the continuing points made by the defendants is that although there was reference in the Coronial proceedings to CWM, there was no identification of the corporations which made up the joint venture nor was there any material identifying the actual control exercised by each defendant or even the nature of their participation in the joint venture. The Court was taken to numerous references in the transcript of the proceedings before the Coroner, and to statements made by witnesses. Much of the material had also previously been considered by Schmidt J in the SRA case (Inspector Maltby v State Rail Authority [2001] NSWIRComm 120). From these extracts, the following matters were revealed: (a) the management of the Station Upgrading Programme was out sourced to a Joint Venture made up of four companies who were awarded a contract by State Rail for management of the Station Upgrading Programme; (b) the four companies were formally awarded the management contract on 1 August 1994 and had since renamed themselves as Capital Works Management. The responsibilities of the contract with CWM required it to arrange tendering of projects through State Rail's contract facilities, then manage all site works to completion; (c) during the early part of 1995, CWM in conjunction with State Rail's contract division and the designing architect compiled the technical documentation for extensive upgrading works at Kogarah Station. The plans required, amongst other things, for the demolition of three shops owned by SRA along Railway Parade; (d) the superintending organisation for the Abigroup contract was nominated as CWM. CWM appointed Gary Dilly as the contract superintendent; (e) CWM were to manage agreed projects from initiation of concept drawings through site construction to the final commissioning and handing over; (f) during the early part of 1995, CWM in conjunction with State Rail and the designing architect put together the specification for the major upgrading works which were to take place at Kogarah Station; (g) in the contract between State Rail and Abigroup, the superintendent was CWM and their appointed representative was Mr Dilly; (h) one of the roles of Mr Blackwell, senior project manager, Station Upgrading, SRA, in the Station Upgrading Group was to carry out random site inspections to examine site safety and report to CWM and the contractor on site any potential safety problems that may occur; (i) the CWM submissions to the Coroner stated that in late July 1994, CWM was appointed by the SRA to provide project management services to the SRA in relation to the Station Upgrade Project which included the refurbishment and development of the Station. CWM was appointed superintendent to the contract between SRA and Abigroup. The role of CWM as superintendent was to ensure that the conditions of the contract between SRA and Abigroup were being carried out satisfactorily. CWM did not contract with any party other than SRA. CWM was not the developer of the site, not the occupier of the site and the only work it performed on the site was that of superintending the contract between SRA and Abigroup. CWM had no sub-contractors; (j) Mr Peter Deane, general manager, Abigroup, told Inspector Maltby that during the course of the demolition works, Abigroup site personnel and CWM, the project manager, were on site discussing protection of services and public safety on a continual basis. The superintendent had no problems with Abigroup's set up; (k) Mr Blackwell said in cross-examination that the day to day running of the project was the responsibility of the superintendent, CWM; (l) Mr Dilly regularly attended the work site to observe the general activities of Abigroup although claiming it was not the Joint Venture's responsibility to supervise the demolition work; (m) site diaries referred to cable search in the presence of Mr Sibley from CWM; (n) part of the contract between SRA and Abigroup, which the Joint Venture was supervising, identified the duty of Abigroup to identify the location of all underground services prior to the commencement of work on site by undertaking site inspections and where identified, the duty of the contractor to take all necessary precautions against damage to the services when any excavations were made. The contractor was also to assume that some of the services were unrecorded. The contractor was to take all necessary steps to protect them from damage due to construction work; (o) Mr Dilly was the superintendent of the contract and Mr Roger Sibley was the superintendent's representative for that contract at Kogarah. Mr Alexander, who also worked for CWM, was involved in the platform extension work. CWM had an office in Station Street and there were fortnightly project review meetings with CWM, covering all the projects that were under their control.

109 The material relied upon by the prosecutor tends to support, in an objective way, that CWM, in its role as superintendent as described, had to some extent control over the construction site. The nature of that control exercised as superintendent appears to go to the extent of permitting CWM to compel, direct or command that steps be taken in relation to safety at the site. There was no suggestion by the defendants that there was no risk to the employees of others because of the exposure of the gas line at the construction site: this risk, in any event, appeared from the materials before the Coroner.

110 If it is correct, as I have held, that it is not necessary to identify the offender from the material before the Coroner, it must follow that s 49(4) and s 107(3) contemplated that there was other material available to the prosecutor to identify who was responsible for the breaches disclosed in the Coronial material. At its simplest level, both s 49(4) and s 107(3) require no more than the appearance or suggestion that an offence has been committed against the Occupational Health and Safety Act. Here, a lot more is disclosed, namely, the existence of a Joint Venture with a registered business name that was appointed as the superintendent of the project. The prosecutor proceeds on the basis that it knows who are the corporate entities comprising the Joint Venture. The prosecutor moves from the fact of the Joint Venture and their involvement in this project as indicative of their joint liability. In addition, the prosecutor argues that as between the Joint Venturers the principle of vicarious liability operates. These are matters which must be left to the trial. To the extent that the prosecutor needs to identify material which, objectively, suggests or from which appears that a breach of the Act has occurred, then the prosecutor has satisfied that requirement.

111 For the above reasons, each of the notices of motion pursued by the defendants is dismissed. I will hear the parties at a convenient time on the question of costs.

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