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

Industrial Relations Commission (NSW)|2000-07-01|Before: Hungerford J

For the reasons given as to the earlier items, I am satisfied, but only marginally so, that these items relate to the particular concerning mandatory training in the use of radio communication equipment and I will, therefore, allow them but with modifications. I vary each of the items concerned by deleting references to the geographical location and the time period from 1990 to 1999 and adding the words "in the Crescent Head area during 1995". 37 Item 9: This item concerns documents as to any policy, procedure or direction applicable to police transferred from one location to another being given annual training in the handling of firearms and in the use of radio communication equipment before performing duty at the new location. It was not limited either in time or location. Whilst the documents here may well be relevant also to other charges made, on their face they relate to a present particular, namely, "failing to implement systems of monitoring and of enforcement to ensure that Police undertook the training that was available".

The defendant complained that the item did not specify any period for the documentation required. The prosecutor submitted that the time period should be read as 1990 to 1999; also, the documents sought were said to be relatively few in number over that period, they were specified with reasonable particularity and the defendant was not required to exercise fine judgments regarding the relevance of the documents.

I accept that this item is within the particular stated. However, in light of the nature of the charge itself it should be appropriately limited both in time and location. I would allow this item subject to it being re-worded as follows - "Any policy, procedure or direction for the procedures to ensure that police being transferred during 1995 from one location to operate in the Crescent Head area have been given the annual training in handling of firearms and in the use of police radio communication equipment before being placed on duty in the Crescent Head area." 38 Items 10, 11 and 12: These items covered directions and training manuals effective over the period from 1990 to 1999, including training assessment results for the two police officers involved in the present incident for the period from 1990 to 1995, in the use of firearms, torches, radio communication equipment, the arrest of persons and attendance at high risk situations.

The defendant objected to the length of the period. The prosecutor emphasised the limited nature of the documents as relating to the training to be given to police so that the documents were readily identifiable and easily collated from the training unit. The particulars of the charge to which they related were "failing to provide training, to wit, the content of which addressed in a practical way the tactics to the employed in high risk situations", "failing to implement systems of monitoring and of enforcement to ensure that Police undertook the training that was available" and "failing to ensure that mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communication was undertaken". Again, the documents sought may relate to certain of the other charges.

In my view, and whilst the documents are relevant to the charge brought here, they should be restricted and focus upon a proper time scale. I would therefore allow items 10 and 11 but by deleting the reference to the time period and substituting the words "as in force during the year 1995 in the Crescent Head area". I would allow item 12 as covering the period from 1990 to 1995 because it is specifically directed towards the assessment results for the two officers concerned and, I think, the most recent results may only properly be seen comparably to those achieved during the previous few years. 39 Item 13: The documents sought under this item covered the duty statements and job descriptions for the two officers concerned in the July 1995 incident at Crescent Head. The defendant's objection was limited to the undue length of the period from 1990 to 1995. The prosecutor also related the documents to an alleged failure to provide adequate training systems and needs as covered by other charges against the defendant; otherwise the call was maintained as to this charge.

Whilst on their face the documents may seem to be somewhat remote from the present charge, I am satisfied they reasonably relate to the particulars concerning training and the tactics to be employed in high risk situations; in any event, they provide the relevant employment context in which the two officers performed duty and in respect of which the charge concerning the working environment relates; like item 12, in assessing the position in 1995 it is necessary to view the officers' experience in the immediately preceding few years. I allow this item. 40 Item 14: This item sought the production of documents and things, namely, "the current portable radio communication equipment, torch, and firearms weapon that is provided to police for use in undertaking their duties for the year 2000". The defendant objected that the Police Service utilised a diverse range of equipment in relation to various functions and within various areas of the State, some of which is not in use in the Crescent Head area. The prosecutor claimed that being current equipment it was readily identifiable and available. It was said to be particularly relevant to the charge in another matter concerning the failure to provide adequate radio communication equipment for operational police in the Crescent Head area.

It would seem that the things sought under this item are intended to be used in a comparative exercise to establish that the equipment provided to the two officers concerned in 1995 at Crescent Head was inadequate to ensure their safety - in the absence of evidence, this is speculation on my part. However, no claim was made for the production of those things which were in existence in 1995 and issued to the two officers. Also, whilst these things may well be relevant to a particular concerning the adequacy of equipment issued I do not see how they could be relevant to the particulars of the present charge which focused upon training and the monitoring and enforcement of systems. I do not consider this item discloses sufficient relevance. It should be set aside. 41 Item 15: This item sought the brief of evidence prepared for the coronial inquest into the deaths of the two officers concerned. No objection was taken to it. I would allow this item. 42 Item 16: This item seeks the production of all documents collected, created and seized during the investigation into the deaths of the two officers. The defendant claimed this was a "fishing expedition" and should not be allowed. The prosecutor pressed the call on the basis that the documents were all in one place with the brief of evidence and were readily ascertainable; also, they were obtained by the defendant as a result of the investigation into the deaths of the two officers, but, although not relevant to the brief prepared for the coroner, the documents may be relevant to this prosecution.

The claim in item 16, in my view, is far too wide and is of a fishing nature. It should be set aside. 43 For the foregoing reasons, I find the summons for production of the documents and things to be competent as making the defendant Crown liable to comply as a body corporate. However, the summons should be set aside in part and certain of the items claimed should be varied in the manner I have indicated in this judgment. I make orders accordingly. The costs of the motion are reserved. I appoint 9.30 am on Monday, 27 November 2000 as the return date for the production of the documents in light of the rulings made. _______________

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Real Property Act 1915(Vic)

Practice and Procedure - Summons for production of documents and things by defendant Crown charged with breach of occuptional health and safety legislation - Motion to set aside - Reliance on privilege against self-incrimination and privilege against self-exposure to a penalty - Crown held to be a body corporate and unable to rely on the said privileges - Whether otherwise summons for production should be set aside as too wide, oppressive and a substitute for discovery - Whether summons disclosed a legitimate forensic purpose - Apparent relevance to issues - Summons set aside in part and partly varied. Corporations Law The s 57A s 65 s66A Evidence Act 1995 s 7 s 187 Evidence Act 1995 (Cth) s 187 Industrial Relations Act 1996 s 165(3)(c) s 404 LEGISLATION CITED : Interpretation Act 1897 s 21(c) (repealed) Interpretation Act 1987 s 4 s 21(1) Occupational Health and Safety Act 1983 s 6 s 15(1) Real Property Act 1915 (Vic) Pt II Statute of Limitations Industrial Relations Commission Rules 1996 r 94(1) Admiralty, The v Owners of the Steamship Divina (The Truculent) [1952] P 1 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584 Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 Bristol v Water Conservation and Irrigation Commission [1975] 2 NSWLR 643 Calderwood v SCI Operations Pty Ltd (1995) 130 ALR 456 Clarke v Tweed District Ambulance Committee of the Tweed District Ambulance Service [1965] AR (NSW) 8 Commissioner for Railways v Small [1938] 38 SR (NSW) 564 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Finnie v Dalglish [1982] 1 NSWLR 400 CASES CITED : Hubbard Association of Scientologists International v Attorney-General for the State of Victoria [1976] VR 119 Lucas Industries Ltd v Hewitt [1978] 45 FLR 174 Maddison v Goldrick [1976] 1 NSWLR 651 Martin v Treacher (1886) 16 QBD 507 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd (1925) 36 CLR 230 National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (unreported, 10956/98 and 10969/98, Sully J, 11 May 1998) Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 R v Saleam (1989) 16 NSWLR 14 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96, (1994) 123 ALR 503 HEARING DATES: 09/15/2000; 10/24/2000 DATE OF JUDGMENT: 11/16/2000

(f) Paragraph 16 is a fishing expedition. 9 Senior counsel for the prosecutor, Mr S Crawshaw SC, put the basic proposition that the defendant was a corporation sole and hence a body corporate: see Hubbard Association of Scientologists International v Attorney-General for the State of Victoria [1976] VR 119 at pp 122-123 and cases cited therein. Even if the defendant was not a corporation so as to make s 187 of the Evidence Act inapplicable, the reasons for denying to a corporation the privileges against self-incrimination and exposure to a penalty, as outlined by Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining (178 CLR at pp 489-490, 498-505), were equally applicable to the defendant having in mind its nature and structure: see also Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at p 346 per Murphy J where his Honour observed that "the history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities". The prosecutor accepted the contention that a summons should necessarily state with reasonable particularity the documents which were sought to be produced and that it will be set aside as abusive if great numbers of documents be called for which were not sufficiently relevant. Here, however, the documents were sufficiently stated so as to meet the test laid down in that respect in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at pp 720-721. The defendant's argument that the documents sought did not demonstrate any legitimate forensic purpose was, as Mr Crawshaw submitted, not established because it was at least "on the cards" that such documents would assist the prosecution's case: see Attorney-General v Stuart (34 NSWLR at p 681). 10 In the course of argument, both Mr Hastings and Mr Crawshaw analysed Environment Protection Authority v Caltex Refining by reference to the various views expressed in the separate judgments as to the application to a corporation of both types of privilege against the obligation to positively answer a summons to produce documents. It is unnecessary, in the view I take, to review those analyses prior to a determination as to whether the defendant is a corporation and so affected by s 187 of the Evidence Act . That section states : 187 No privilege against self-incrimination for bodies corporate (1) This section applies if, under a law of the State or in a proceeding, a body corporate is required to: (a) answer a question or give information, or (b) produce a document or any other thing, or

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