NSW YOUNG LAWYERS

2004 ANNUAL EMPLOYMENT AND INDUSTRIAL LAW

ONE DAY SEMINAR

An introduction to the conduct of an OH&S matter, with some

dos and don’ts

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This paper aims to provide an introduction to the conduct of a prosecution or a defence

under the Occupational Health and Safety Act 2000 (‘the Act’), with some practical

advice.

The standing required to prosecute a matter is as set out in s 106 of the Act. The main

prosecuting Authority under the Act is the WorkCover Authority of New South Wales,

through its inspectors. Prosecutions are also brought by the Department of Mineral

Resources, in respect of coal mines, and also sometimes by unions.

Most private practitioners will enter this jurisdiction appearing for defendants, but the

WorkCover Authority of NSW does brief some of its work out to private practitioners, as

do the other prosecutors.

JURISDICTION

Prosecutions under the Act are conducted in either the Industrial Relations Commission

of New South Wales, sitting in court session, or the Chief Industrial Magistrates Court.

There are two essential distinctions between the jurisdictions:

CAUTION – SEE NB AT END OF THIS PAPER

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The fines are higher in the Industrial Relations Commission, being up to $550,000

for first offenders or $825,000 for defendants with a prior conviction under the

Act. The CIM’s court is limited to $55,000.

The ability to obtain costs. Essentially a successful defendant in the Industrial

Relations Commission is entitled to all of their costs on a party/party basis in

accordance with the principles as stated by the High Court in Latoudis v Casey

(1990) 170 CLR 534. In the CIM’s court however there is a threshold test before a

defendant can be awarded costs. This was formerly set out in subsection 81(4) of

the Justices Act and is now in s 214 of the Criminal Procedure Act. In my

experience, for the magistrate to award costs in favour of the defendant there must

be shown some clear basis for the prosecution to have been on reasonable notice

prior to the court hearing that its case was in difficulties.

There is no ability to transfer proceedings between each jurisdiction. Consequently, there

is no ability to offer a plea to a prosecution commenced in the Industrial Relations

Commission, on the basis that it is dealt with in the Magistrates Court with lower

maximum penalties available. From time to time this problem has been highlighted in

practice and there have been rumours of reforms in this area.

TIME LIMITS

Prosecutions must be instituted within two years after the alleged breach, subject to one

area of extension being as set out in s 107(3) of the Act, formerly s 49(4) of the 1983 Act.

This section provides as follows:

107(3) 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

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date the report was made or the inquest or inquiry was concluded.

What would seem to be a simple concept has nonetheless led to a great deal of litigation

where the subsection has been deconstructed and its meaning analysed in detail – see

Inspector Page v Walco Hoist Rentals Pty Ltd (1999) 87 IR 286; WorkCover Authority of

New South Wales (Insp. Keenan) v Lucon (Australia) Pty Ltd 112 IR 332; WorkCover

Authority of New South Wales (Insp. Mansell) v TMG International Pty Ltd & Ors (2002)

116 IR 128; and WorkCover Authority of New South Wales (Insp. Mansell) v Edwards

Madigan Torzillo Briggs, Ove Arup Consult & Ors [2003] NSWIRComm 452.

Briefly, the courts have now given a wide interpretation to the subsection and so long as

there is material revealed in the coronial inquest or inquiry from which it could rationally

be said that the offence as charged against the defendant appeared from all the evidence

before the Coroner to have been committed, proceedings will be held to be within time.

ACTING FOR THE PROSECUTOR

Fundamentally, the touchstone in acting for a prosecutor is the duty to be fair. In

whatever way this duty may be expressed in the Law Society Rules, or Bar Rules, or

practice notes or judgments on procedure, ultimately it comes down to the same thing –

trial by ambush is not allowed, at least on the part of the prosecutor.

The defence is must be told clearly:

what the prosecution’s case is;

what will be relied upon in the trial to prove it; and

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what has been also discovered in the investigation by the prosecution which

although not being relied upon in the trial by the prosecution may be relevant to

the defence.

This duty however does not mean:

that every evidentiary step in proof of the case must be particularised;

that the prosecution has to bind itself at an early stage of the proceedings to a

case that will be unable to be amended or to a body of evidence that will be

unable to be supplemented;

that the prosecution has to scour the ends of the earth in its investigation to find

every possible piece of relevant material;

that the prosecution has to provide every piece of material that comes into its

brief to the defence; nor

that every particular of the charge must be proved beyond reasonable doubt.

Only the elements of the charge, which in OH&S law are now reasonably settled in the

jurisprudence, must be proved beyond reasonable doubt. This is subject to an important

exception. In circumstantial cases, where the proof proceeds through a number of steps,

what is realistically an essential step in the process of inference must also itself be proved

beyond reasonable doubt itself to be able to prove the ultimate inference beyond a

reasonable doubt- see Chamberlain v R (No 2) (1984) 153 CLR 21 and Shepherd v R

(1990) 170 CLR 573.

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The prosecution has legal professional privilege just as much as the defence, and internal

advices within the prosecuting authority are not available to the defence

Further, the exercise of prosecutorial discretions – eg who to charge, what to charge, and

in what jurisdiction to bring the charges, is essentially not reviewable by the defence. See

Maxwell v The Queen (1996) 184 CLR 501.

Sometimes a submission is made by the defence that a normal step taken in the litigation

by the prosecution is somehow oppressive because the case is a criminal one.

Such a submission is however of little weight unless there is some basis for an application

for a stay or other remedy because of some identifiable, and supportable, argument that

there has been an abuse of process. In criminal matters the rules of disclosure for a

prosecutor are of course much more comprehensive than for a plaintiff in a civil case and

the standard of proof is higher, but this is trite, and quite often there is no clear allegation

of a breach of duty of the prosecutor. Also, in contrast to a civil case, the requirements for

the giving of particulars are much less in a criminal case – see eg. WorkCover Authority

of NSW (Insp Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119.

Sometimes also a submission is made, in the context of construing a difficult provision of

the Act, that because it is a penal statute the defendant’s argument should be looked at

more favourably. This argument however holds little water now with the Industrial

Relations Commission. In 1976 Gibbs J (as he then was) stated in Beckwith v. The Queen

(1976) 135 CLR 569, at p 576:

‘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 a 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

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of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567 - 568; Craies

on Statute Law, 7th ed. (1971), pp 529 - 534. The rule is perhaps one of last

resort’.

That statement was adopted by the Full Bench of the Industrial Relations Commission in

WorkCover Authority of New South Wales (Insp. Keenan) v Lucon (Australia) Pty Ltd,

above, [112]-[114].

In the same judgment, and in the later judgment of WorkCover Authority of New South

Wales (Insp. Mansell) v TMG International Pty Ltd & Ors, above, the Full Bench also

endorsed the ‘important cautionary note’ sounded in several judgments in mainstream

criminal law as to the inappropriateness of courts being asked to review what are

essentially prosecutorial discretions – who to prosecute or not, what charges to lay, and in

what jurisdiction, etc.

Courts have always had the power to prevent abuse of their own processes, and are

rightly jealous to protect that power, and the categories of possible abuses by the

prosecution which will attract curial intervention by way of the issuing of a stay are never

to be closed, but there is much jurisprudence already on recognised categories of abuse of

process. There must be some real basis to convince a court that an abuse has occurred,

supported by evidence. Mere complaint that the criminal law is being used against one’s

client is not enough.

These comments are not meant to imply that the prosecution should not act to the highest

standard of fairness. The power of the State to impose substantial fines for absolute

offences, with limited defences where the onus is reversed and after investigation where

compulsion is available, must in any liberal democracy be tempered by appropriate

safeguards. Some of those are expected to be effected by the prosecution without the need

for curial intervention.

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On a prosecution brief the practical applications of these comments requires:

All witnesses to be called should have their proposed evidence reduced to written

proofs, or other notice to the defence. These should be provided to the defence,

including preliminary statements to the police or other authorities which have

come into the hands of the prosecution.

The question of whether or not to confer with witnesses, other than experts, is

something which should be considered very carefully when acting for the

prosecution in a criminal case. It is not the same as acting for the plaintiff in a

civil case. There may be very powerful reasons why one should not confer with a

witness. On many occasions in this jurisdiction, as a matter of reality the witness

is a person who, if not directly in the defendant’s camp, has loyalties and

obligations to the defendant. At the very least it may be embarrassing to further

confer with him or her. Prosecuting counsel may have to cross-examine him or

her, by leave, under s. 38 of the Evidence Act.

Also, in this jurisdiction quite often there are multiple prosecutions arising out of

the same incident, and a witness in one case may be a defendant, or in the

defendant’s camp, in another. It is quite inappropriate, and indeed against the Bar

Rules, and no doubt the Law Society Rules, for a prosecution lawyer to confer

with a defendant, other than by way of a brief inquiry as to whether they have

their statement, had an opportunity to read it and wish to add to or amend it

(which enquiry should be made of every witness before they are called).

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There should already be in the prosecution’s brief by the time it comes to you

proofs of the various witness and it should be anticipated that they will come up to

proof without the need for further conferences.

If however a decision is made to confer with a witness to clear up an ambiguity or

otherwise, any further material obtained relevant to the evidence of that witness

must be immediately disclosed to the defence. This applies also to expert

witnesses.

CONFLICTS

Be very careful of conflicts. ‘Chinese walls’ do not apply in the criminal law. The case of

Rodney Morrison v Joy Manufacturing Co. Pty Ltd [2002] NSWIRComm 366 is

illustrative. That was a judgment of Marks J in the Industrial Relations Commission

where the solicitors retained by the prosecutor had, through different personnel, acted in

insurance matters for the defendant. His Honour upheld an application by the defence that

there was an abuse of process because information obtained by the solicitors in

connection with that retainer had actual and potential relevance to the defence by the

defendant of the OH&S prosecution.

His Honour was of the view that knowledge had flowed back to the prosecutor, and that

this was an abuse of process. As in his opinion even a change of solicitors would not cure

the situation, his Honour ordered a permanent stay of the prosecution.

I understand this decision is under appeal, but the difficulties that can arise are well

illustrated by the judgment, whether or not it survives appeal.

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In Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd & Ors [2003]

NSWIRComm 292, evidence from an expert witness sought to be called by the

prosecution was excluded because of what Staunton J perceived to be a conflict in his

role as an employee of the prosecuting authority, who had been actively involved in the

investigation and charging process, with the duty to assist the court impartially as an

expert. Her Honour said at [59]:

59 It seems to me that it is impossible to excise the role and actions of the

Department of Mineral Resources and its officers in ultimately coming to a

concluded view as to the charges before me. Accordingly, any expert opinion

evidence from an officer of the Department of Mineral Resources, particularly

one who has had a role to play in a process that is of evidentiary importance in

ultimately determining the defendant's culpability, has to be viewed with more

than just the greatest caution. The tendency for such a person, unwittingly or

otherwise, to express an opinion that would have the effect of exacerbating the

culpability of the defendants to the benefit of the Department of Mineral

Resources is real. It is a very real perception that cannot be ignored and has the

danger of creating an unfair prejudice to the defendants.

60 In all the circumstances I am of the view that Mr Anderson's expert opinion is

so tainted by real perceptions both as to partiality and advocacy of his own and

the DMR's cause that its admissibility must properly be considered having regard

to the provisions of s137 of the Evidence Act 1995

CORRECT DEFENDANT

The reason ACN numbers were introduced several years ago into the regulation of

corporations in Australia is because of the difficulty in accurately identifying

corporations by their names only. A corporation can change its name, may have very

similar names to other corporations, particularly if they are in someway connected, and

may be easily confused with another corporation which may be the true offender.

It sometimes happens that the pleadings do not charge the correct defendant company.

Perhaps the investigating inspectors have not followed up sufficiently what are loose

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statements by the injured worker, and sometimes even management in complex company

structures, as to which particular entity employed the relevant workers at the time.

Group Certificates and payslips should always be obtained in an investigation together

with any other evidence relevant to employment, if that is a crucial issue.

If the wrong defendant has been charged under s. 8(1) of the Act as the employer of the

injured worker it still may be liable to conviction for an offence under s. 8(2) of the Act

because of s 30 of the Act, and vice versa. However, if the court is of the view that the

prosecution has been culpable in not properly investigating and framing its case against

the correct employer and that there is any hint of unfairness at all to the defendant, it may

not apply that section – see eg Inspector Taylor v Fletcher International Exports Pty Ltd

[2001] NSWIRComm 155, per Kavanagh J.

Where however the misnaming of the company is evidently just a mistake, in that all of

the pleadings and evidence clearly refer to another entity as having been intended to be

charged, and there is some evidence as to why the papers have issued in the wrong name,

the court may allow a substitution of the correct defendant – see eg Kavanagh J in

WorkCover Authority of NSW (Insp. Glass) v Pacific Concrete and Quarries Pty Ltd

[2000} NSWIRComm 59, upheld on appeal by the Full Bench of the Commission in

Manpack Industries Pty Ltd (formerly t/as Pacific Concrete and Quarries Pty Ltd v

WorkCover of New South Wales (Insp. Glass) [2001] NSWIRComm 190.

Division between legal representatives and investigators

Always be conscious that you act as the legal representative of the prosecutor. You are

not the prosecutor. The Office of the Director of Public Prosecutions was set up to create

a division between the investigative arm of the mainstream criminal law, usually the

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police, and the prosecuting arm. The division is not always rigid, and indeed as you

would all know the Magistrates courts still often have police prosecutors, although there

is care to try to keep the prosecuting branch separate from the investigative branch of the

police.

As a general rule, which has clear recognition in various protocols such as the Guidelines

For Prosecution published by the Director of Public Prosecutions, you should always be

very conscious of the distinction between the investigators of the offence and the legal

representatives briefed to prosecute it.

On occasions, after you have received instructions, and sometimes after prosecutions

have been initiated, an obvious need for further investigation will arise. Send the

inspectors or other investigators to obtain the statements and other information you seek.

Otherwise, you run a major risk of becoming a witness yourself in the case or becoming

subject to other conflicts which may arise.

ACTING FOR A DEFENDANT

Legal privilege

I have seen on several occasions a defendant company conduct an internal inquiry during

which many statements are obtained and other material is gathered and this is then

provided to the prosecution, or otherwise compulsorily obtained by the prosecution.

This may not be a problem and stands to the credit of the company in any sentencing

process in the sense of being co-operation etc, however generally the cloak of privilege

should be used just as much by a defendant in criminal proceedings as in civil

proceedings.

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You should advise your clients to come to you as soon as possible after a possible OH&S

event, usually an accident, so that you can request the investigations and etc, for the

purposes of providing legal advice. Generally the client will then have a privilege under

Part 3.10 Division 1 of the Evidence Act.

In general, do not voluntarily provide information to the prosecution without thinking

through carefully how it may be used, and what privileges may be being waived.

Prosecution investigators have enormous powers, including power to compulsory require

the answering of questions under Part 5 of the Act, and as a general rule it is best to let

them conduct their own inquiries.

Also, you should be aware that admissions in ‘without prejudice’ correspondence may

not be embargoed from use, despite the practice in civil law.

Acting during the investigation

Generally the prosecution investigators will give prior notice of an interview, and even

the questions to be asked, and will allow legal representation of interviewees during the

interview, or with less contentious witnesses, response in writing. This however is a

privilege, not a right, and if abused the privilege may be withdrawn.

In general, when assisting a prospective witness in an interview you will be allowed to

seek clarification, advise your client if there is a genuine right to refuse to answer a

question, explain the effect of documents being provided and so on.

Section 65 of the Act overrides the common law protection against self-incrimination

held by persons (but not corporations – see EPA v Caltex Refining Co Pty Ltd (1993) 178

CLR 477 and s 187 of the Evidence Act) although the statement, information or answer

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given under compulsion is not admissible in evidence against the person in criminal

proceedings if the person objected at the time on the ground that it may incriminate them

or because they were not given adequate warning. Three things however should be

remembered (as well as always taking the objection):

The evidence may still be used against the corporation, even if there is a joint trial

of the person and the corporation – see eg WorkCover Authority of New South

Wales (Insp. Maltby) v Abigroup Contractors Pty Ltd & Luis Bustamante [2003]

NSWIRComm 35.

There is no restriction on ‘derivative use’ of the information – cf s 128 of the

Evidence Act.

If you are present in the interview, it will be harder to prove subsequently that the

interviewee misunderstood a question, or mistakenly didn’t seek the privilege,

than if he or she was unrepresented.

As well as sitting in on interviews and etc, other advice to the client which may be very

helpful during the investigative process is as to whether or not to provide information

voluntarily to the prosecution, as to whether or not to make submissions to the

prosecution as to why charges should not proceed as a matter of discretion, and etc.

Be very careful however to never get into any situation where it could be alleged that you

have assisted a client in relation to the content of answers given to inquiries in such a way

that they are incorrect or misleading. Under s 66 of the Act it is an offence to refuse to

comply with a requirement made or question asked by an inspector, or to give false or

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misleading evidence. The WorkCover Authority has launched several prosecutions under

this section.

Plea of guilty

After advising the client, if the view is taken that the matter is unable to be defended, you

should ensure that a plea of guilty is entered at the earliest time. In this jurisdiction the

discounting for early plea has been quite rigidly formularised, in comparison to

mainstream criminal law. A nominal fine is calculated, and any discount then applied.

A discount of up to 30% or so may be allowed by the sentencing court, but a discount for

that amount would only be given after the earliest plea of guilty and with the clearest

expression of contrition by word and deed subsequent to the offence. There must also be

full co-operation with the authorities.

There is of course still much work to do for a defendant even upon a plea of guilty – see

the notes on sentencing below. Practice Direction 12 in the Industrial Relations

Commission, with its timetable for evidence to be served and its requirement for a

Statement of Agreed Facts, should be noted.

Plea of not guilty

If a decision is made that the matter can be defended, nonetheless you should apply some

rigorous analysis as soon as possible to what precisely should be contested in the trial.

The courts will always appreciate sensible agreement on matters not in dispute. Even if at

the end of the litigation a conviction results, if the matter has been run on the real issues,

with sensible concessions made otherwise, ie. as a ‘litigated plea’, it will go well for your

client on sentencing.

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If the facts are in issue, of course it is essential that as soon as possible you marshal the

appropriate evidence to attack that of the prosecution, including on credit issues.

There is no requirement to disclose anything to the prosecution not asked for under s 62

of the Act, but if a ‘killer’ piece of evidence emerges in the trial which should have been

known to the prosecution if the investigator’s inquiries had been properly answered, the

prosecution may be able to obtain an adjournment to deal with it. Also in that case, and

also if the evidence could have been volunteered in any event, your client may be at risk

of not getting its costs, or at least all of them. See Latoudis v Casey, above.

If expert evidence is to be called by the defence, again technically it need not be served in

advance, but the prosecution will generally be able to obtain an adjournment to deal with

the evidence, if it reasonably needs to do so. In any event, there is usually little point in

withholding expert evidence sought to be relied upon, and it should generally be served

as soon as possible.

Indemnity costs are often asked for against the prosecution in this jurisdiction, but to my

knowledge have not been awarded yet. To get indemnity costs a defendant would have to

show a serious degree of oppressive behaviour by the prosecution. The courts bear in

mind that these prosecutions are launched in the public interest to enforce socially

beneficial legislation, and in which there are often difficulties in the investigation not

caused by the prosecution.

Expert reports should comply with the requirements as in Makita (Australia) Pty Ltd v

Sprowles (2001) 52 NSWLR 705, and also the Supreme Court Rules, which are adapted

into the Industrial Relations Commission.

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Although some common-lawyers still think it is necessary to elect at the close of the

prosecution case as to whether or not make a no case submission or give evidence, in

criminal law a no-case submission can always be made with the option of going into

evidence if it is unsuccessful – see Cross on Evidence, 6th

Australian Edition, at [11095]

and Evgeniou v R (1964) 37 ALJR 508.

If the facts are reasonably clear, there tend to be two main defences to prosecutions. They

are either an attack on proof of causation of the risk, or one of the statutory defences

under s. 28 of the Act.

In practice, quite often these two defences are difficult to distinguish (see eg State Rail

Authority v Dawson (1990) 37 IR 110) and a reasonable doubt as to the causation of the

risk by the actions of the defendant is often all that is required to successfully defend.

However if the court is satisfied beyond reasonable doubt that the risk was caused by

actions of the defence, you will have to then run a case seeking to prove one of the

statutory defences, in respect of which the onus is upon the defence to the civil standard.

Generally the courts approach the question of proof by firstly considering whether the

elements of the offence have been proved beyond reasonable doubt by the prosecution,

and only if that is so, then considering the statutory defences. This approach is well

illustrated in the judgments of WorkCover Authority of New South Wales (Insp Glass) v

Kellog (Aust) Pty Ltd (No 1) (1999) 101 IR 239 and WorkCover Authority of New South

Wales (Insp Bayer) v Cleary Bros (Bondi) Pty Ltd (2001) 110 IR 182, both by Walton J,

in the Industrial Relations Commission.

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Costs

If the prosecution is successful it will be entitled to an order for its costs. In the Chief

Industrial Magistrates Court a schedule of standard costs, with increments for the various

steps in the process, has been agreed by the WorkCover Authority with the profession

and noted by the court, and your client will receive notification of same at the same time

as service of the Court Attendance Notice.

In the Industrial Relation Commission costs are generally payable to the prosecution on a

party/party basis where there is a conviction, although quite often the rates for the

prosecution lawyers are lower than full commercial rates.

When acting for a defendant, as noted above you will get costs in the Chief Industrial

Magistrates Court only if the threshold test of s. 214 of the Criminal Procedure Act is

met.

Costs upon a successful defence of an OH&S prosecution in the Industrial Relations

Commission will generally be awarded on a party/party basis, but not always. If the court

is of the view that the defence has only won by some sort of tactic which requires

disapprobation, it may not get its costs – see eg WorkCover Authority of New South

Wales (Insp. Mauger) v SWR Constructors Pty Ltd [2000] NSWIRComm 115, per

Kavanagh J. In that case, her Honour upheld the defence submission that there was no

prima facie case established because it could not be proved that the defendant was an

employer. However this was because in the trial various witnesses for the prosecution

recanted their statements. Given that the prosecution had only been given notice of the

possibility of this some days before the trial was set to start, her Honour refused to award

the defence any costs at all.

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Bear in mind this is a summary jurisdiction. Consequently, if you win and want an award

of costs to the defendant, you must apply to the Court for costs at the time of dismissal, or

the court will be functus officio thereafter. There has been clear authority for this rule for

some time, but it was only recently applied again, in the case of Rodney Morrison v

Tahmoor Coal [2003] NSWIRComm 280, per Haylen J.

In that judgment his Honour confirmed that jurisdiction to award or make provisions for

costs was available on the day the order dismissing the summons was made and not

afterwards. His Honour held that he had no jurisdiction to deal with the defendant’s late

application for costs.

All that needs to be done at judgment is to at least get the court to reserve its decision on

whether to award costs to the defendant, and how much. Then the court remains seised of

jurisdiction. However an application must be made at the time of judgment.

Sentencing

The judgement of Capral Aluminium Ltd v WorkCover Authority of New South Wales

(2000) 99 IR 29 sets out clearly the principles applicable to sentencing. First of all the

objective seriousness of the offence is weighed. This does not wholly turn on the

consequences of the risk, usually an accident, and the injuries occasioned to persons, but

that certainly is one of the main considerations.

Then the court assesses subjective matters going to aggravate the offence. There also may

be previous convictions, although the court should not double-count the effect of the

previous conviction in the sense that the maximum penalty is already raised pursuant to s.

12 of the Act.

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The court will also look at deterrence, both general and particular, which may increase

the penalty.

Subjective circumstances will also be assessed in relation to mitigation. It is very

important to present material to the court to assist it in weighing up why the offence

occurred, and why it is unlikely to occur again, if that can be submitted. Any financial

difficulties of the client should be submitted (taking care however when acting for a

public company to be delicate about the effect on its share price!), and generally careful

attention should be paid to putting material to the court to seek to minimise what can be

very substantial fines and to obtain the highest possible penalty. You should familiarise

yourself with the provisions of the Fines Act.

An expression of remorse even from a corporation is given weight by the court and there

is much that can be done to mitigate penalties.

Anyone experienced in criminal law will agree that sentencing matters are often the

hardest matters in which to hold a brief. There is no difference even when acting for

corporations and where fines are the prescribed penalty. A sentencing court has enormous

power with a wide discretion and the case presented on the sentencing hearing can sound

in a substantial amount of money. The Industrial Relations Commission has held that

orders under s 10 of the Crimes (Sentencing Procedure) Act should generally not be made

in favour of corporations convicted of offences under the OH&S Act – see WorkCover

Authority of NSW (Insp Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64.

Always ensure that the client has done something between the date of the offence and the

date of sentencing to improve whatever problems led to the prosecution in the first place,

whether or not you are defending the charge. For an example of criticism by the Court,

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which sounded in the greater fine to the defendant of inaction by the defendant between

the date of the offence and the date of sentencing, see WorkCover Authority of New South

Wales (Insp Maltby) v Abigroup Contractors Pty Ltd [2003] NSWIRComm 201 per

Kavanagh J. In that case her Honour said at [37]:

‘37 The court indicated it was not satisfied, from the evidence before it, in its

consideration as to the element of specific deterrence, that there were procedures

in place to make safe from any risk to the safety of employees and others on the

defendant company's construction sites where services must remain connected.

The court noted the offences occurred in December 1995 and by its hearing as to

Penalty in April 2003, seven and a half years has passed and the court still did not

have before it, even in document form, any [evidence that the causes of the

offence as found by her Honour had been addressed].’

Even if a matter is defended, obviously there is always a possibility of losing. The case

should not be being run by the prosecution unless there is a prima facie case upon the

brief. Consequently, try and ensure your client is in a position even if it loses to say that it

has done something to improve its work practices.

Appeals

The prosecution can appeal not only against inadequate sentences, but also against an

acquittal - see s 197A of the Industrial Relations Act 1986. An example of such a

successful appeal is WorkCover Authority of New South Wales (Insp Moulder) v Arbor

Products International (Australia) Pty Ltd [2001] NSWIRComm 50. The appeal is not by

way of a new hearing and is to be determined on the evidence and material adduced at

first instance.

The prosecution can also appeal against a sentence. Pursuant to s 5D of the Criminal

Appeal Act applied by s 196 of the Industrial Relations Act. Again, these are appeals

where error must be established, although a recognised ground of error is manifest

inadequacy.

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As for the defence, an appeal as of right lies against conviction and sentence pursuant to

s. 5AA of the Criminal Appeal Act as applied by s 196 of the Industrial Relations Act.

Since an amendment to that section operative from 26 September 2000, such an appeal

formerly a de novo hearing, is now determined only upon the evidence and material

adduced at first instance, subject to a right to adduce fresh evidence if the test as in eg

Gallagher v R (1985) 160 CLR 392 as to cogency and unavailability at first instance can

be made out. The test is harder to meet in relation to a sentence appeal alone.

There is a power to appeal interlocutory decisions, by application of s. 5F of the Criminal

Appeal Act, pursuant to s. 196 of the Industrial Relations Act, but recent decisions in this

jurisdiction have reinforced the mainstream criminal law jurisprudence that the courts are

reluctant to interfere in the criminal trial process. Under s 5F the prosecution has an

appeal as of right, but the defence requires leave, which is often not granted.

An argument can be constructed by way of interpretation of the Criminal Appeal Act, as

applied in this jurisdiction by the Industrial Relations Act, that there is 28 days to lodge

an appeal after the relevant order is made, but generally 21 days is accepted as the time

limit.

A stay will not always be granted upon the penalty – see eg Abigroup Contractors Pty

Ltd v WorkCover Authority of New South Wales (Insp. Maltby), Full Bench of the IRC, 1

December 2003, unreported.

Appeals against convictions under the Act lie only to the Full Bench of the Industrial

Relations Commission, in court session, past which there is no further right of appeal –

see s 179 of the Industrial Relations Act 1976. This is a tightly drafted privative clause, as

a matter of history not unusual in industrial jurisdictions but perhaps open to some debate

22

about its appropriateness in criminal law proceedings. However such an argument would

require complex analysis of all the issues, which include Chapter III of the Constitution,

and though often threatened by defendants no such appeal has yet been commenced, to

my knowledge.

Peter Skinner

Chambers, 18 February 2004

[NB, 22 December 2010. The law as to procedure for prosecution of OH&S offences in

NSW has been thrown into some disarray since the High Court judgment at the beginning

of this year in Kirk and Anor v Industrial Court of New South Wales and Anor

(2010) 239 CLR 531. This judgment should be read carefully. The effect of it

upon the jurisprudence of the Industrial Court is still being worked through in

various cases.]