Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 169 (27 May 2005)

Last Updated: 31 May 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 169

FILE NUMBER(S): IRC 6128

HEARING DATE(S): 12/05/2005, 13/05/2005, 14/05/2005, 16/05/2005, 17/05/2005, 20/05/2005, 23/05/2005

DECISION DATE: 27/05/2005

PARTIES:

PROSECUTOR:

Inspector Ross Wolf

DEFENDANT:

Rockdale Beef Pty Limited

ACN 003 789 991

JUDGMENT OF: Schmidt J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr PM Skinner of counsel

SOLICITORS:

Legal Group

WorkCover Authority of New South Wales

DEFENDANT:

Mr GJ Hatcher SC with Mr S Bell of counsel

SOLICITORS:

Terrett Lawyers

CASES CITED: Connelly v Director of Public Prosecutions [1964] AC 1254

Environment Protection Authority v Caltex Refining Co Pty limited (1992-1993) 178 CLR 477

Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543

General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125.

Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145

Gorman v Fitzpatrick (1987) 32A Crim R 330

HC Buckman and Son Pty Limited v Flanagan and Anor (1974) 133 CLR 422

International Harvester Co if Australia Pty Ltd v Corrigan's Hazeldene Pastoral Co (1958) 100 CLR 644

Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163

Jago v The District Court of New South Wales (1989) 168 CLR 23

King v The Queen (1986) 161 CLR 423

Mooney v Williams (1905) 3 CLR 1

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Ors (2004) 205 ALR 1

Montgomerie v United Kingdom Steamship Association [1891] 1 QB 370

R v Sang [1980] AC

Ratten v The Queen (1974) 131 CLR 510

Richardson v The Queen (1974) 131 CLR 116 at 119

RPS v The Queen (2000) 199 CLR 620

Solo Waste Aust. Pty. Limited v Inspector McDonald [2005] NSWIRComm 106

Stephen George Kirkby v A& MI Hanson Pty Limited (unreported, Matter Number CT 1121 of 1993, Hungerford J, 13 September 1994)

Subramaniam v R (2004) 211 ALR 1

Tran v The Queen (2000) 105 FCR 182

Whitehorn v The Queen (1983) 152 CLR 657

Whitten v Hall (1993) 29 NSWLR 680

WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited (unreported, Matter Number CT 1025 of 1993, Schmidt J, 18 March 1994)

WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370

WorkCover Authority of New South Wales (Inspector Lacey) v Donato Timmillo (unreported, Cahill J, 13 February 1998).

WorkCover Authority of New South Wales (Inspector Ford) v. Warrah Ridge Pastoral Co Pty Limited (unreported, Matter Number CT 1109 of 1993, Bauer J, 23 September 1994)

LEGISLATION CITED: Clean Waters Act 1979

Criminal Procedure Act 1986

Evidence Act 1995

Occupational Health and Safety Act 2000

Interpretation Act 1987

Partnership Act 1892

Scaffolding and Lifts Act 1912

JUDGMENT:

- 56 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Schmidt J

27 May 2005

Matter No IRC 6128 of 2003

INSPECTOR ROSS WOLF v ROCKDALE BEEF PTY LTD

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT

[2005] NSWIRComm 169

1 Rockdale Beef Pty Ltd is defending a prosecution brought under s8 of the Occupational Health and Safety Act 2000 ('the Act'). The prosecution arose out of events which occurred in October 2001, when a Mr Poole was seriously injured while operating a machine at an abattoir at Yanco.

2 This judgment concerns a motion filed by the defendant seeking orders that the prosecution be permanently stayed, as involving an abuse of process. I had earlier rejected a similar application, made before the prosecution had even opened its case (See Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163). The point at which this second application was made, was immediately after the conclusion of the evidence given by the prosecuting Inspector, Mr Wolf. While a number of exhibits had been tendered by then, the prosecution had not closed its case. It intends to call other witnesses and to tender other documents in its case.

3 The particulars provided in the motion upon which the defendant moved were:

1. There was no evidence available to the prosecutor at the time of the laying of the charge and the expiration of the limitation period to support the charge as laid.

2. No further material has been disclosed to the defence which would or could lead to an offence being found.

3. Either material exists which has not been disclosed or no material exists and the prosecution is pressed in the hope that evidence will merge.

4. In either event the proceedings are an abuse. The defendant to a fair trial will be put on notice of the material to be lead against him and that material must be sufficient to enable a Court to convict.

5. In order for the prosector to succeed he needs to provide beyond reasonable doubt that a major fraud has been engaged in by substantial international companies who are not respondent to these proceedings.

6. In seeking to establish such a fraud, which is not specifically pleaded as would be required in a court of civil jurisdiction and no particulars of which are provided as would be required in civil proceedings, those acting on behalf of the prosecutor have not to put before the Court, or the prosecutor himself, primary materials establishing the primary fact in issue but rather have attempted to lead secondary materials in some cases unfairly obtained to prove fraud.

7. For all of the above reasons the ongoing prosecution of this matter is oppressive and vexatious and ought to be stayed.

4 I began hearing the motion, having refused the prosecution's application that hearing of the motion be deferred until it had called all of its evidence. I took the view that to adopt this approach would be, in effect, to refuse to hear the defendant on the motion and to restrict it to a no case to answer submission. I took the view that the defendant was entitled to be heard on the motion. In reaching this conclusion, I had in mind the nature of the application and the observations of Kirby P, as he then was, in Gorman v Fitzpatrick (1987) 32 A Crim R 330 at 340:

It is arguable, that if a party to proceedings can demonstrate that the further prosecution of those proceedings would amount to an abuse of process, a supervisory court does not have a discretion. It is then obliged, the preconditions being established, to provide a permanent stay. This proposition can be tested by referring to the unacceptability of the suggestion that, notwithstanding a demonstration of an abuse of process, the court would, in the exercise of its “discretion” permit the case to continue and countenance an abuse of its process by denying relief.

5 I did then grant an adjournment which the prosecutor sought and the defendant did not oppose. When the hearing resumed, the defendant called Mr Peter Terrett, the defendant's company secretary and the solicitor on the record in the proceedings. This was in order to enable the prosecution to cross examine Mr Terrett, who had sworn an affidavit annexing various correspondence between he and the prosecutor, upon which the defendant relied in support of the application and so that an objection to documents which the prosecution ultimately did not press, could be dealt with.

6 During the course of this cross examination, the prosecution then took two steps. Firstly, it made a further application that part of the defendant's motion not be heard, which I refused, taking the view that while the application raised serious, or even extraordinary matters, it was one which the defendant was entitled to raise and have determined. Secondly, the prosecution sought further particulars of the matters raised on the motion. The request was answered orally, but the prosecution pressed for the answers to be provided in writing and for an adjournment to consider those answers, before the cross examination of Mr Terrett proceeded. The defendant did not oppose the application and agreed to the request that the particulars be put in writing. The hearing accordingly adjourned again.

7 On resumption the prosecution complained that it had received inadequate answers to the particulars it had sought and again pressed its application that the second aspect of the defendant's motion not be heard. I declined the motion indicating:

The prosecution complains, in pursuit of the application, that I not hear the motion in part or in whole, that it is an extraordinary one. I agree, but I am satisfied that it is one which the defendant is entitled to put, raising, as it does, an allegation that there has been an abuse of process, so as to warrant a permanent stay of the proceedings even before the prosecution case has concluded.

Various complaints are made as to both pre-trial abuse and abuse during the course of the trial.

The second aspect of the defendant's motion is quite clear, it seems to me, namely, that a consequence of the case advanced is that there must have been a fraud committed by the principal, or alleged principal, a partnership and its agent, the defendant. The prosecution complains that it has inadequate particulars of this aspect of the motion.

I am satisfied that the particulars provided are adequate to permit the argument to go forward. If the prosecution is correct in its complaints as to the deficiencies and difficulties in the application the defendant makes, namely, that it has been made prematurely, the motion will no doubt be dismissed.

I am satisfied, nevertheless, that the hearing of the motion, which is presently part-heard, must be concluded. I am equally satisfied that what has been said by the Full Court in Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 cannot detract me from the conclusion which I have reached. That case was concerned with different issues to those which were here raised by the defendant's motion.

8 This view, I would finally observe, appears to accord with that of the High Court in Subramaniam v R (2004) 211 ALR 1 at [26]- [27] where it was said:

It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed (Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Dean and Dawson JJ; see also Jago v District Court (NSW) (1989) 168 CLR 23 at 31 per Mason CJ, 74 per Deane J, 77 per Gaudron J; Barton v R (1980) 147 CLR 75 at 95–96 per Gibbs ACJ and Mason J). As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner ((1993) 177 CLR 378 at 393), the inherent power of a superior court to stay proceedings on the ground of "abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."

9 The defendant's case was that the prosecution involved an abuse of process; the wrong defendant had been prosecuted; the defendant had always made known to the prosecution that it did not own or operate the abattoir at which the accident occurred; that it had no assets or employees; and that the abattoir was not its undertaking, nor its place of work. It had from the outset of the investigation disclosed that it was the agent for the partnership which owned and operated the abattoir, known as 'Rockdale Beef' and that the two partners were substantial corporations, Renod Holdings Pty Limited and MC Meats (Rockdale) Pty Limited, which also owned the land on which the abattoir and feedlot which the partnership operated was located.

10 Despite this and despite the considerable assistance provided by the defendant to the prosecutor in the investigation, the prosecutor failed to investigate the identity of the relevant employer; the ownership of the abattoir and land; the entity undertaking the abattoir business, or the nature of the system of work operating at the abattoir. Inspector Wolf acknowledged these deficiencies in his cross examination. To permit the prosecution to proceed in the face of those concessions would involve an abuse of processes, particularly given the way in which the case had been opened.

11 The abuse of process involved in the prosecution had manifested itself in two further ways. Firstly, that a consequence of the case upon which the prosecution had embarked, was that it would have to demonstrate that the arrangements which the partners had entered with the defendant were a sham, which involved fraud of various kinds, including in relation to the taxation system.

12 It was entirely open to a prosecutor to attempt to make out such a case. It was also open to a Court to find that there was such a sham, if the necessary evidence were led. The prosecution had, however, not embarked on such a course. It had, in effect, sought to 'fit up' the defendant with the charge, both by the approach adopted to the investigation and by refusing to put before the Court at the trial, the primary records of the various entities involved, in order to demonstrate the sham it necessarily alleged. It had wrongly sought to make out its case on the basis of secondary materials, such as licenses issued by Commonwealth Government agencies, without putting before the Court primary material such as the defendant's application for the license, which would have confirmed the existence of the agency. The prosecution had even sought to prevent the defendant from putting that material before the Court. All of the relevant material was available to the prosecution if only it had asked for it. It should have been investigated before the prosecution was bought. It was not. Nor was it to be put into evidence by the prosecution, in order that its obligation to put the facts fairly before the Court was met.

13 It was accepted that given some of the prosecution's submissions, the prosecution's approach might have flowed from an entire misunderstanding of the law of contract and agency. It had simply not been appreciated that a partnership could own and operate an abattoir; that it could employ staff and pursue an undertaking and that it could do so through an agent such as a defendant, but, that the acts of the agent would be those of the principal, the partnership. To permit the prosecution to proceed, would, nevertheless, involve a serious injustice.

14 The second manifestation of the abuse of process involved in the pursuit of the charge was said to be a s62 notice issued by the prosecutor to Mr Terrett after the initiation of the proceedings. Arguably this also involved a contempt of the Court.

15 The prosecution's case was that there had been no abuse. The evidence demonstrated that the Inspector had a prima facie basis for the view that the offence charged had been committed by the defendant. That being approached on the basis of the material relied upon being accepted at that point, at its highest and he being reasonably of the view that the material on which he was relying, could be admitted at trial. This flowed in part from information which the defendant had itself provided in the investigation and upon which the Inspector was entitled to rely.

16 Once the error alleged in the information provided by the defendant was revealed, to the prosecutor's surprise, after the charge had been laid, the Inspector nevertheless revisited, with the assistance of his legal advisers, the question of whether the legal elements of the offence charged could be proven. He was not obliged to accept what the defendant asserted. If the view then reached by the prosecution was incorrect, the charge would be dismissed, but the Court was obliged to hear the case put.

17 It was denied that there had been any abuse, either pre trial or at trial. The defendant's complaint was argued to have been advanced at the wrong time, when the prosecution had only just opened its case. Evidence was to be led from many witnesses, including Mr Troja, which included evidence adverse to the prosecution case. His statement referring to the existence of the agency, was already in evidence. It would be open to the defendant to run a defence case, or to put a no prima facie case submission, at the close of the prosecution case. There would be no abuse in such a course. It was accepted that relevant material had come forward from the defendant on the voir dire. It was put that this was material which the defendant could put into evidence as a part of its defence, although it was conceded that now that this material had come to the prosecution's attention, at least some of it might be tendered in the prosecution case, given the onus which fell upon it. It was submitted that there could be no complaint about such a course from the defendant, given that the material in question came from it.

18 It was also argued that applications such as this were confined to only extraordinary cases and what had been demonstrated did not fall into that category.

The charge

19 The charge provided:

ROCKDALE BEEF PTY LIMITED (ACN 003 789 991), ("the defendant"), a company whose registered office is located at Suite 702, St Martins Tower, 31 Market Street, Sydney in the State of New South Wales

1. being an employer, on 27 October 2001, at Regulator Road Yanco, in the State of New South Wales, failed to ensure that people other than its employees, in particular Christopher Poole, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, contrary to Section 8(2) of the Occupational Health and Safety Act 2000.

Particulars:

(a) The defendant failed to provide or maintain systems of work that were safe and without risks to health in relation to the operation of a Danaflex Bagging Machine, Cryovac machine and associated drag chain conveyor;

(b) The defendant failed to provide to Christopher Poole such information, instruction, training and supervision as was necessary to ensure his health and safety at work;

(c) The defendant failed to ensure that plant, to wit a drag chain conveyor, provided for the use of Christopher Poole at work, was safe and without risk to health when properly used, in that it was not adequately guarded.

The evidence

20 In evidence in the prosecution case were various documents, including a statement made by the Inspector in July 2002; his accident report of October 2001; various photographs he had taken at the time of his inspection; a factual inspection report prepared in December 2001; various documents concerning NAIQ Pty Limited ('NAIQ'), a labour supplier to the abattoir; an agreement between the defendant and NAIQ; statements made by the injured worker Mr Poole; a further statement sworn by the Inspector in March 2005, annexing documents obtained from the Australian Quarantine Service ('AQIS') and Leeton Shire Council; statements made by Mr Glenn Wright, Mr Garry Thomas; and ASIC searches in relation to the defendant; correspondence from the defendant and Mr Terrett to the Inspector and workers compensation insurers; and payroll information in relation to the partnership and the defendant.

21 The affidavit sworn by the Inspector in support of the application for order filed in October 2003, verified that the allegations made in the application were based on his investigation and were true and correct for reasons specified. They included that the defendant was an employer; that it failed to ensure that non-employees were not exposed to risks arising from the conduct of its undertaking while at its place of work and that it failed to ensure that plant over which it had control was safe when used properly; that the abattoir where these events occurred was owned by the defendant; that it had a number of employees on site involved in various administration and supervision roles; that the defendant had failed to conduct any safety training for non-employees; that it had commissioned an assessment of OHS issues prior to the accident, which had identified a safety issue with the plant in question; that improvement notices had been issued by WorkCover to the defendant in May 2001 that required a risk assessment and that the defendant had engaged another entity to conduct that assessment.

22 The Inspector's oral evidence was that he had sworn that affidavit after his investigation had concluded in August 2002 and after later consultation with the WorkCover legal department and his superiors, as to the instigation of these proceedings, before the prosecution was launched. The affidavit had been drafted with their assistance and the Inspector had the prosecution brief before him, when he swore the affidavit. These matters were later revisited, after the prosecution was commenced, given information which had been received that the defendant might not be the employer.

23 In cross examination, the Inspector agreed that the nip point injury suffered by Mr Poole was most unusual. In his 18 years of investigations, he had never before seen such an injury resulting from an elbow being caught in a nip point. Mr Poole told him that he did not remember what happened when he was injured. He said that he had been caught in the machine until Mr Dole turned off the machine. Mr Dole's statement suggested, however, that Mr Poole was not caught in the machine. While not mentioned in his affidavit, the Inspector recollected that Mr Poole had a crush injury to his arm consistent with a nip point injury. On reflection, the Inspector agreed that Mr Poole may not have had a nip point injury, but an injury as the result of a shear hazard on the cradle of the machine.

24 Having examined photographs of the conveyor in the bone room, the Inspector accepted that in his inspection he had not identified the existence of a limit switch, which would have stopped the conveyor if meat fell off the cradle. He also accepted that his affidavit would have more accurately explained the operation of the machine in question, by reference to the operation of an emergency stop on the bagging machine being operated by Mr Poole and the limit switch.

25 While initially indicating that he did not understand the system of work in operation, the Inspector agreed that his investigation had revealed that Mr Poole should have pressed the emergency stop button on the bagging machine, before he got off the catwalk, to retrieve a bag of meat which had fallen off the conveyor. The Inspector was unsure whether the meat would have hit the limit switch when it fell and he was not sure how the switch worked, but he expected that once tripped, the system would not start again automatically, it would have to be restarted manually.

26 The Inspector explained that in his investigation, he had tried to understand how the process and machinery worked. He understood that the operator of the bagging machine had to hit the emergency stop button, if he was to leave his position at the machine. His investigation revealed that while this was the first time Mr Poole had operated the bagging machine, he had been shown how to operate the machine, which operated as part of a continuous process. Mr Tora advised the Inspector that he had instructed Mr Poole on how to operate the machine, including the operation of the stop button. The Inspector agreed that the five to eight minutes taken to give that training to Mr Poole was sufficient.

27 In his investigation, Mr Watson told the Inspector that after the accident, Mr Poole told him that he should have pushed the stop button, before he picked up the meat. The Inspector had no reason to doubt that Mr Watson was telling him the truth. He interviewed Mr Poole three times. Mr Poole told the Inspector that he had been shown the operation of the stop button. The Inspector did not raise with Mr Poole what he had told Mr Watson. The Inspector agreed that if Mr Poole had pressed the stop button before he picked up the meat, the conveyor would not have been moving and if he had followed that procedure, there was no risk to safety. The Inspector agreed that his affidavit did not indicate to the Court when moving for ex parte orders, that Mr Poole had been told to follow a procedure which was safe, to the contrary, he had sworn in the affidavit that the system was unsafe.

28 The Inspector explained that the affidavit had been prepared by the legal department. He understood his non-delegable duty to be candid when approaching the Court for ex-parte orders. It was a matter for him to agree or disagree with an affidavit so prepared. It was finally his decision as prosecutor, to decide whether a prosecution would be launched, although he made the decision with assistance. He could decline to prosecute if he thought it was unfair.

29 The Inspector explained that his understanding was that: "When a person uses a machine properly they are not at risk of being injured." He agreed that if Mr Poole had used the stop button he would have been using it properly and he would not have been injured.

30 The Inspector had inspected a number of abattoirs. He agreed that this abattoir was relatively modern, described the operation as first class and agreed that someone had turned their mind to ensuring that it operated safely.

31 The Inspector described the steps he had taken to satisfy himself that the defendant owned the land at which the abattoir was situated, understanding that the question of its ownership was at issue in the proceedings. To the best of his recollection, he had first seen the title documents tendered in the prosecution case after February 2005. I observe at this point that there appears to be no question that these documents are not, however, the title deeds to the land on which the abattoir is situated.

32 The Inspector explained that while he was not a corporate lawyer, he had some understanding of the principles of agency. He also explained, however, that when he saw a reference to the defendant, as a 'pty limited company' in various documents his understanding was that the defendant was the employer. He also saw repeatedly, reference in various documents to the defendant in its capacity as manager for and on behalf of the Rockdale Beef partnership. He discussed with the legal department what this might mean. He agreed that the arrangement had been explained in correspondence from the defendant, but this did not put him on enquiry as to what capacity the defendant might be involved in the operation.

33 The Inspector concluded his factual investigation about a year before the prosecution was launched. Afterwards, he met with the legal department to consider the question of the proper defendant, correspondence having been received from the defendant. He was uncertain when some documents as to the corporate arrangements had been obtained. Some he saw for the first time in the witness box. In one instance, he had asked for enquiries to be made of Leeton Shire Council as to who 'owned or who paid the rates for the Rockdale Beef abattoir in Regulator Road, Yanco'. It was only while giving his evidence that he realised the document produced, did not relate to the abattoir at all, even though it indicated that the property was 'unused'.

34 The Inspector was taken to a variety of documents which he had not uncovered in his investigations, but which he agreed would have been of assistance in understanding the arrangements between the entities involved in the abattoir. They included certificates of title to the property on which the abattoir and associated feedlot were located and the financial records of the various entities alleged to be involved in the agency arrangement, as well as various agreements. He agreed that he had been advised by Mr Terrett that the defendant owned nothing and explained that he was trying to counter that in his investigation. He believed he could have obtained this material by using his powers under s62 of the Act. (It later became evidence on the voir dire).

35 The Inspector explained he had asked AQIS to produce information regarding the abattoir operated by the defendant. He had not asked for any application forms. He did not seek to discover in his investigation what the repeated references to 'acting for and on behalf of the Rockdale Beef partnership' might mean. He believed the defendant had committed the offence, but accepted that perhaps he should have investigated the meaning of that phrase. He could not recall that he had.

36 The Inspector was asked:

If you had had the benefit in October 2003 that you had over the last day or so in the witness box of going through the statements in some detail and examining exactly what was said and how it related together, you wouldn't have sworn the affidavit that you did in October 2003, would you?

A. Well, I don't swear an affidavit lightly. As you know, they're legal documents.

Q. I'm not suggesting that?

A. I'm still not totally convinced that the system of work was right, but you put the question to me in that manner. I have either got to answer yes or no, and your question was "I wouldn't have signed the affidavit that way"?

Q. That's right?

A. I have to answer your question yes.

37 The Inspector was also asked if it was a matter for him to drop a case, at a time such as this. He explained:

As you can understand that's a difficult question to put to me. You are going to examine or cross examine other witnesses who may have more information that I'm not aware of in regards to the system of work as they understood it was at the time. I'm still under the understanding that, through my training it may be inadequate, in regards to company structures the Pty Ltd company is a legal entity in this State. Now, in regards to, as manager on for and behalf of and all that. Again, right, you are asking me a question. I have to answer it the best I can.

Q. If you wish to continue please do. It's clear you, with respect, you didn't understand?

SKINNER: I object. Let the witness continue.

WITNESS: My information I had at the time of signing it I still think it's correct because Glen Wright and Gary Thomas were employees of Rockdale Beef, and for and on behalf of the management structure, as a legal entity, my understanding is that a legal entity is Rockdale Pty Ltd employed those persons. The conduct, I mean it said Mr Troja did inform me also in his letters that Rockdale Beef operated the abattoir for and on behalf of Rockdale Beef Partnership. But Rockdale Beef, as the legal entity, still operated the abattoir from the information I had. I think what you are trying to do, not through this thing but through the Court case, is prove that Rockdale Beef didn't do that. I think that's up for your Honour to decide that and not me. What you are saying is, you are putting to me you think there is enough evidence there that I should drop the case. I think that's up to her Honour to make the decision.

Q. That wasn't the question I asked you inspector?

A. My answer is no, I don't think the matter should be dropped.

Q. That wasn't the question I asked either. The question I asked you was whether you could drop it if you wanted to?

A. Here right on the spot I think it would have to be fair to me that I would have to check with the WorkCover Authority. They are my employer. I know you have pointed out I'm the prosecutor and I understand that and I understand what my role is, but still I work for the State Government and they have an authority who I'm employed by, and I would have to check with them before I would be allowed to do something like that.

38 Various documents were tendered on the voir dire by the defendant, material it complained the prosecution ought to bring to the Court's attention, consistently with its prosecutorial obligations. It had no intention of doing so, given the case as opened. This meant that there could be no fair trial. The prosecution tendered the prosecution brief, amongst other documents.

Consideration

39 What has so far emerged in the trial has made it clear that amongst other things, there are issues between the parties as to whether the defendant was an employer; and whether the risks to safety alleged arose during the course of its undertaking and at its place of work. These issues raise for consideration a business arrangement which involves a partnership between two companies, which has entered an agreement with the defendant under which the defendant manages the partnership's abattoir.

40 The case opened for the prosecutor was:

Your Honour will hear from the Inspector and see him. I propose to tender the usual material and lead the usual evidence about his observations at the scene, how it came to his attention that there had been an accident and possibly an offence. I propose to tender many of the documents with evidence in relation to the labour system that was at work in this abattoir. I propose to tender the documents unless there are admissions in this regard establishing that the defendant owned the land, establishing that the defendant is a company, establishing that the defendant conducted a business of the processing of meat from the live cattle through to parcels of meat and that business involved even export to quite high standards that the defendant had the necessary qualification or licences required under the Australian Foreign Team Service, that it conducted a quality assurance system that, in short, there is no doubt that this was its undertaking, and whatever arrangements it had this was its place of work in that boning room.

I think there have been legal developments since 1991 which have changed the common law in relation to employment but nonetheless whether or not that stands this defendant was not able to contract out of the occupational health and safety in respect of the incident that occurred to Mr Poole that day.

Your Honour will hear something also to establish this control type share of activities of the defendant and assessment of work safety by it some time prior to the accident, that is around about May 2001 and issues in that regard. Unless there are admissions, your Honour, your Honour will hear quite a deal of evidence that this defendant was indeed an employer.

There has been correspondence between the parties and it has been put and your Honour sees it, I am not opening in anticipation of a defence, it would seem it is on the record now that they will be running a defence along the lines as indicated in annexure D to Mr Terrett’s affidavit, annexure C, which broadly would seem to be a defence on the proposition that this defendant has no effective legal entity in that it stands only as a representation for another entity being some partnership called Rockdale Beef partnership, the partners of which are a Japanese company, but we don’t know who they are. Our case is that that is an extraordinary admission. It is not good in law. It will overturn, as I understand it, the common law and statute law involving partnerships. Rockdale Beef exists, whoever put funds into it, whoever the shareholders are. With respect, it is a nonsense to say it has no capacity to be said to own the premises, run the business or comply with the Occupational Health and Safety Act. It has assets, there is a land title search showing that. It has employees and an enormous number of employees’ tax records. There are also a great many group tax records. There are statements from at least two men - Mr Thomas and Mr Wright - that they were employed from Rockdale Beef.

There are admissions made on behalf of the company and there is a deal of evidence to indicate there is a working entity on behalf of who we know of. It may not be the employer of Christopher Poole, but that is not necessary to prove. Consequently it has breached section 8 of the Occupational Health and Safety Act in the way charged.

41 It was also later submitted that:

SKINNER: It is irrelevant to the prosecution case as to whether Rockdale Beef Pty Limited conducts it's undertaking and controls its place of work as agent or trustee for any other entity or entities. Submission we will come to this sooner or later. We might as well do it now. That is totally irrelevant to liability of Rockdale Beef Pty Limited.

HER HONOUR: That is an issue between you.

SKINNER: I am not trying to disprove that. In my submission it is true there is a lot of documents to show it is an agent in some way. In my submission, that is irrelevant and it doesn't concern the prosecution to prove it one way or the other.

42 The meaning of the term agency is well established. As described in Halsbury's Laws of Australia Vol 1(2) at [15-5] it 'connotes an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties.' International Harvester Co if Australia Pty Ltd v Corrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652.

43 The common law principle underpinning agency is also well known. It is that "The contract is the contract of the principal, not that of the agent, and prima facie at common law the only person who can sue is the principal and the only person who can be sued is the principal." (See Montgomerie v United Kingdom Steamship Association [1891] 1 QB 370 at 371.) The Rule can be expressly or impliedly excluded - a question of intention and a matter of construction of the relevant contract in each case. In Cheshire and Fifoot's Law of Contract, Third Edition it is said at 567:

To infer the intention of parties is seldom a simple matter, but in this particular context the chief sources of enlightenment are, first, the description of the parties in the body of the contract and, secondly, the signature of the agent.

If in both places the agent is referred to as agent, it is almost impossible to regard him as a contracting party, but if in neither place is there any mention of the agency, it is almost impossible to deny that he is a contracting party.

If he is described as agent in one part of the contract only, whether in the body or in the signature, it is presumed that he is not a contracting party, but the presumption may be rebutted from the context.

44 That is not to say that an agent may not have obligations under the criminal law, including the Act here in question. Nevertheless, in determining whether the Act imposes obligations upon a principal or an agent in a particular case, it may well be necessary to establish the capacity in which a person or entity is acting in a given context, before it can be ascertained whether or not an obligation under the Act exists or has been breached.

45 To take an example. In this case the prosecution proceeds under s8 of the Act, which imposes obligations upon employers. It follows that if an agent is not an employer, it will have no obligations under the section. If it has entered into a contract of employment as the agent of a principal, the principal is the employer under the contract and the obligations imposed by the Act by s8 will thereby fall upon the principal. The agent may have other obligations under the Act, but they will not be obligations under s8.

46 It is relevant in this context that predecessor safety legislation in this State made express reference to the obligations which a principal might have for the acts of an agent. For example, in HC Buckman and Son Pty Limited v Flanagan and Anor (1974) 133 CLR 422 the provisions of the Scaffolding and Lifts Act 1912 were being considered. Regulations 73 of the regulations made under that Act imposed obligations on persons who directly or by servants or agents carried out building work. The High Court drew a distinction between the acts of an agent, in respect of which the principal had obligations under the legislation and those of an independent contractor, for whose acts no such responsibility arose in law. That current safety legislation imposes safety obligations in general terms, rather than the more particular approach adopted in the past, does not mean that questions as to the consequences of an agency arrangement in relation to the obligations imposed by the Act will not arise for determination in proceedings brought under that legislation.

47 I also note, in passing, that agency does not ordinarily require disclosure. The High Court has described the making of a contract by an undisclosed agent as 'a very ordinary practice' (See Mooney v Williams (1905) 3 CLR 1 at 8 per Griffith CJ). There is a difference, however, in the two cases as to the consequences for the agent. In the case of a disclosed agent, it is only the principal who may sue or be sued in respect of the contract. In the case of an undisclosed agent, both the principal and the agent may sue or be sued. (See discussion in Cheshire and Fifoot's Law of Contract third edition at 574).

48 Whether a partnership exists in a particular case is also a matter of construction of the partnership agreement and the true intention of the partners. (See Halsbury's Laws of Australia, Vol 19 [305-45]. ) The term is defined in the Partnership Act 1892 as 'the relation which exists between persons carrying on a business in common with a view of profit' (s1(1)). If a partnership exists, it may certainly employ people. An employee of a partnership is an employee of all of the members of the partnership. (See Halsbury's Laws of Australia Vol 10 [165-20].)

49 As to trust arrangements, it is clear that an agent may be a trustee of the principal. Again, the concept of 'trust' is discussed in Halsbury's Laws of Australia Vol 27 at [430-1]. A person who holds property or rights which he, she or it is bound to exercise for or on behalf of another person, or for the accomplishment of a particular purpose, holds that property or those rights on trust.

50 From what has emerged thus far in these proceedings, it is evident that all of these concepts are relevant to a determination of various of the factual matters which lie at issue here between the parties. The defendant complains that the prosecution, both in its investigation and at trial, seeks impermissibly to avoid its prosecutorial obligations in respect of the case it has to make out. These are not matters available to be left to a defendant to raise as a defence.

51 This complaint emerged under a statutory scheme, where WorkCover Inspectors are not only given wide powers of investigation of breaches of the obligations imposed by the Act (under Part 5 Investigations), but also have statutory authority, with certain others, to prosecute breaches of those obligations under s106. It is self evident in such a scheme that an understanding of the various legal concepts raised in this case, may be important for any investigator or prosecutor, in order to ensure that futile prosecutions are not brought, as the result of inadequate investigations, or because of a lack of understanding of relevant principles of law.

52 The defendant's case is that the existence of the agency arrangement between it and the partnership appears from the management agreement which they entered, which required that any contract or agreement which it entered be made for the partners and disclosed by the words 'as manager for and on behalf of Rockdale Beef Partnership'. In accordance with that agreement, the defendant's letterhead used this phrase; it was used in various agreements which it entered and it was an arrangement disclosed to the prosecutor in the investigation before the prosecution was launched. The arrangement and its consequences were, however, never investigated and now sought to be ignored at trial by the prosecutor.

53 In its case, the prosecution not only asserted that the defendant was an employer conducting the undertaking of the abattoir in question at its place of work, but that the existence of the disclosed principal and agency relationship between the defendant and the Rockdale Beef partnership is irrelevant to the offence charged. That is put in issue by the defendant, which also argues that what is before the Court reveals an abuse of process, sufficient to warrant a permanent stay of the proceedings.

54 There is no doubt that the Court has power to grant such a stay. Such an order will however only be granted in exceptional circumstances. The discussion of the High Court in Jago v The District Court of New South Wales (1989) 168 CLR 23 is relevant to a consideration of what has here arisen.

55 At 29-31, Mason CJ observed:

The New Zealand Court of Appeal has recognised the inherent power of a superior court to stay or dismiss a prosecution for abuse of process in terms consistent with the view of Lord Devlin, in Moevao v Department of Labour [1980] 1 NZLR 464 at 470–1, 473–6, 478–82. While the members of the court focused upon the concept of abuse of process, it is clear that they took a wide view of what might constitute such an abuse. The approach is best exemplified in the judgment of Richardson J, who stated (at 481):

It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the court is protecting its ability to function as a court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the court’s processes may lend themselves to oppression and injustice.

In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.

For the reasons given, I agree with the approach of Richardson J as I have explained it. Bearing in mind his Honour’s relatively broad view of what may amount to an “abuse of process”, I agree also with his explanation of the rationale for the exercise of the power to stay a prosecution. His Honour stated (at 482):

The justification for staying a prosecution is that the court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the court.

The continuation of processes which will culminate in an unfair trial can be seen as a “misuse of the court process” which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.

56 This was further explained, his Honour observing at 34, that a permanent stay necessitated a finding that "... there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton ((1980) 147 CLR 75 at 111), per Wilson J."

57 At 46, Brennan J observed that the High Court had not yet decided that a Court could grant a permanent stay when proceedings are brought without reasonable cause. (The issue before the Court was unreasonable delay.) At 50, his Honour agreed with the view expressed by Lord Morris of Borth-y- Gest in Connelly v Director of Public Prosecutions [1964] AC 1254 at 1304, that it " ... be an unfortunate innovation if it were held that the power of a court to prevent any abuse of its process or to ensure compliance with correct procedure enabled a judge to suppress a prosecution merely because he regretted that it was taking place." He also referred to the views expressed by other members of the Court in Connelly, which gave no indication that the notion of abuse of process extended to "the prosecution of a case against an accused for the first time on evidence sufficient to support a conviction." At 52, his Honour referred to R v Sang [1980] AC at 454-455, where it was observed that the trial judge is concerned with the conduct of the trial, except for the "very rare situation" of abuse of process of the Court and where it was observed that "The right to prosecute and the right to lead admissible evidence in support of its case are not subject to judicial control."

58 Such rare cases were addressed by Deane J at 57, where his Honour gave examples of "where the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused." At 71, Toohey J discussed the difference between an abuse of process which can only be remedied by a stay and other prejudice, which may be cured by evidentiary rulings, for instance.

59 Gaudron J explained at 76, the permanent stay of proceedings as involving a refusal to exercise jurisdiction, which must only be exercised in exceptional circumstances, given the "prima facie right in the person invoking the jurisdiction to have it exercised". On her Honour's approach at 77, such a stay would not be granted "on the basis of an opinion that an indictment should not have been presented."

60 In Tran v The Queen (2000) 105 FCR 182, the Full Federal Court summarised the duties of a prosecutor at 202-3. They include the duty to present the case fairly and as Murphy J put it in King v The Queen (1986) 161 CLR 423 at 426 "not to use any tactical manoeuvre legally available in order to secure a conviction." There is a duty to disclose exculpatory material; to call all witnesses who may give relevant evidence whether or not it assists the prosecution case; to formulate the basis upon which it puts its case and to adhere to it and not to proceed upon a theory which cannot properly be sustained. As to the opening it was observed at 202:

In the conduct of a trial, the prosecutor's duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is intended to inform them briefly of the elements of the offence or offences charged, the facts which constitute each offence, and the witnesses the prosecution intends to call to prove those facts. The prosecutor will ordinarily make clear, in outlining the elements of the offences to be proven, that directions regarding the applicable law are the province of the judge. A prosecutor must not make any reference to proposed evidence where its admissibility is in dispute. A prosecutor should not advance any theory, or make any submission, which does not carry conviction in the prosecutor's own mind. Importantly, although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation or conjecture.

61 As I have noted, here the complaints advanced by the defendant went both to alleged deficiencies in the investigation, so that an abuse of process resulted and resulting deficiencies in the approach adopted at the trial, which also amounted to an abuse.

62 The complaints about the investigation began with the allegation that there had, in reality, been a decision to gather material relevant to the prosecution of the defendant, rather than to investigate whether an offence had been committed by the defendant, or by the principal it had revealed to the prosecutor it represented. This led the Inspector to ignore relevant and available material in his investigation, of which he had been given notice, which showed that the defendant had not committed the offences charged.

63 The second part of this aspect of alleged pre-trial abuse went to the Inspector swearing an affidavit in support of the application for order, which misrepresented the information he had obtained in his investigation. This was demonstrated by the Inspector's concessions in his evidence, that his inspection, in reality, showed that the system of work in question was safe; the training provided in the operation in question was adequate and that the plant, when used properly, was also safe.

64 The third aspect of the alleged pre-trial abuse went to misuse of the powers of investigation granted to Inspectors under the Act, when it was appreciated, after the prosecution had been launched, that the investigation had been deficient. Further material was then sought to be gathered pursuant to the powers granted an Inspector by s62 of the Act, so that the defendant could be convicted. This was an abuse because such powers of investigation were not available to be used after a prosecution had been commenced.

65 The abuse at trial, was said to arise from the prosecution's failure to meet head on the question of whether it was the defendant, or its principal, the Rockdale Beef Partnership, which employed those working at the abattoir; which owned the land on which it was situated; which pursued the undertaking of the abattoir and which controlled the plant in question. Given the disclosure of the agency arrangement, it was open to the prosecutor to attempt to show at trial that the arrangement was a sham and that it was the defendant, which, in reality, employed those working at the abattoir; which owned the land on which it was situated; which pursued the undertaking of the abattoir and which controlled the plant in question. The prosecutor could not, however, ignore the onus which fell upon it in the proceedings to make out the facts it alleged, nor could it seek to meet that onus, by failing to put the relevant material before the Court.

66 That the last submission must be accepted as accurate cannot be doubted. There are issues between the parties as to these factual matters. The onus falls on the prosecutor to establish, to the requisite degree, that the facts were as portrayed in its opening. The prosecutor has an obligation to put the relevant material before the Court, which will permit those factual issues to be determined. In meeting that obligation it cannot ignore or fail to tender material which does not assist the prosecution case. To so approach the proceedings would involve an abuse, which the Court would not permit.

67 It is difficult to conclude, that the prosecutor accepted this obligation, repeatedly and inaccurately referring to the defendant being entitled to make out a defence as to these matters. There ought to be no confusion. At the heart of the factual controversy is that the wrong defendant has been prosecuted. The existence of the asserted agency relationship was known before the prosecution was launched, but the view was reached that the defendant was an employer and that the abattoir was its place of work and its undertaking. The possibility this was incorrect came to light, or came to be appreciated by the Inspector, after the prosecution was commenced, when drawn to his attention by his legal advisers. The Inspector's evidence was that there was then some further consideration of those issues as a result, including in relation to the assertion that the defendant was not the employer. Further information was procured and as a result, the prosecution adheres to its view of the facts. It has an onus in the proceedings to demonstrate, to the requisite standard, the various elements of the offence including that the defendant was an employer at the time of the offence. Consistently with the prosecutorial obligation, this will require it to bring the relevant material forward, which includes the material which points to the employer being the partnership, so that the Court may come to a proper finding on the issue.

68 Given the evidence led by the defendant on the voir dire, which it complained was material relevant to this issue, which the prosecutor had neither investigated, nor intended to lead in its case, the basis for the complaint was made clear. This included material such as the partnership agreement; the agreement between the defendant and the partnership; title documents and financial records. The Inspector conceded in his evidence that the material was relevant to his investigation. He had not seen much of it. He also explained that:

Well, my training over a period of time has always alerted me to the fact that a Pty Limited company is usually, is the employer, and I saw that so my understanding was that the Pty Limited Rockdale Beef was the employer.

69 This approach is not good in law. While a company must act through people, there is no legal principle which requires such people to be the company's employees. The nature of any relationship depends upon the agreement which the parties to the alleged contract have, in truth, made. As the prosecutor conceded in cross examination, he could place limited reliance on an employee's answer as to the correct name of his or her employer. It required further evidence than that.

70 That the difficulty which, in reality, confronted it, given the complaints advanced, finally came to be appreciated by the prosecution, became apparent during the course of the submissions put. Mr Skinner indicated that now that the information about which the defendant made complaint had come to the prosecutor in this way at trial, namely as evidence on the voir dire, the prosecution proposed to lead, at least some of it, in its case. The defendant did not, however, accept that this would cure the abuse it complained of.

71 I turn then to deal with the various complaints advanced and submissions made by the parties.

Was there a prima facie case when the prosecution was launched?

72 The prosecution accepted, correctly in my view, that if the prosecution brief did not disclose a prima facie case for the offence in respect of which the prosecutor had approached the Court for orders, a stay must issue. The prosecution sought to demonstrate, on the basis of the material in the brief, that the four elements of the s8 offence charged, were made out to the prima facie level. There was no issue that a risk to safety had arisen. The three areas of controversy went to the question of whether the defendant was an employer; whether the risk in question had arisen at its place of work and whether it had arisen in the course of its undertaking.

73 The prosecution brief was in evidence. I am satisfied that there was a prima facie basis for the offence charged in the prosecution brief, having in mind also the affidavit sworn by the Inspector in support of the application for order. There is no doubt that the existence of the relationship here at issue came to the Inspector's attention during his investigation.

74 The brief also, however, contained two statements given to the Inspector by Mr Wright, the human resources director. He told the Inspector that while plant and equipment was owned by the partnership, his employer was the defendant. This was later confirmed in writing by Mr Terrett, the defendant's company secretary and legal representative, on instructions from Mr Troja, the general manager, that certain information be provided to the Inspector in response to questions he had raised with Mr Troja. Mr Terrett there also mentioned a second employee.

75 It was plainly open to the Inspector to act on that advice. There is no reason in law why a company acting as an agent for others may not have employees. It advised the Inspector it had them. He was entitled to proceed on the basis that the advice was correct.

76 The defendant had also advised the Inspector that it was the manager of the abattoir owned by the partnership. I am satisfied that this material provided a prima facie basis for the view that the abattoir where the accident had occurred was the defendant's place of work and that it had occurred in the course of its undertaking. That the defendant was also disclosed to be the partnership's agent, could not preclude the possibility that it was also pursuing an undertaking at the abattoir and that it was the defendant's place of work. This flowed naturally from the defendant's advice that it had employees and that they were working at the abattoir.

77 This material could not, however, be relied upon at trial to establish the offence charged to the requisite degree, given what later emerged, as the prosecutor accepted. It required further investigation and eventual proof, as a result of what was then raised by the defendant.

Alleged abuse of the s62 power

78 I turn to the defendant's complaints about pre-trial abuse of process. It is convenient to first consider the complaint about abuse of the s62 power. The section appears in Part 5 Investigations, Division 2 Powers of Inspectors. It provides:

62 Power of inspectors to obtain information, documents and evidence

(1) An inspector may, by notice in writing served on a person, require the person to do any one or more of the following things if the inspector has reasonable grounds to believe that the person is capable of giving information, producing documents or giving evidence in relation to a possible contravention of this Act or the regulations:

(a) to give an inspector, in writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any such information of which the person has knowledge,

(b) to produce to an inspector, in accordance with the notice, any such documents,

(c) to appear before an inspector at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents.

(2) A notice under this section must contain a warning that a failure to comply with the notice is an offence.

(3) An inspector may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document.

(4) An inspector may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an inspector to be a true copy.

(5) A certified copy provided under subsection (4) is receivable in all courts as if it were the original.

(6) Until a certified copy of a document is provided under subsection (4), the inspector who has possession of the document must, at such times and places as the inspector thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document.

79 The Inspector's authority to prosecute appears in Part 7, Criminal and Other Proceedings, Division 1 Proceedings for Offences generally. The question raised is whether or not, once an Inspector has commenced criminal proceedings, his investigation is at an end and the powers granted by s62 are no longer available to be exercised, so that the gathering of evidence relevant to the prosecution then before the Court, must thereafter be conducted consistently with the Court's ordinary processes.

80 On its face, the section is not expressed in terms which immediately suggest the limitation for which the defendant contended. Nevertheless, once understood in the context of the scheme established by the Act, I am satisfied that it must be concluded that the contention is correct.

81 The question is one of statutory construction. As the High Court observed in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Ors (2004) 205 ALR 1 at 4, it must be approached from the point of view of purpose, consistently in New South Wales, with s33 of the Interpretation Act 1987. The relevant precepts of statutory interpretation are:

In Newcastle City Council v GIO General Ltd [(1997) 191 CLR 85 at 112. McHugh J observed:

"[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context."

His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. There, Brennan CJ, Dawson, Toohey and Gummow JJ said at 408:

"It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent."

[footnotes omitted]

82 Section 33 of the Interpretation Act provides:

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

83 The defendant argued that the construction urged by the prosecutor would provide a financial incentive to an Inspector not to conclude an investigation within the limitation period. This also requires consideration.

84 The legislature has established a statutory scheme which not only imposes onerous obligations on certain persons to ensure safety, but has provided for an investigation system under which Inspectors are given extraordinarily wide powers to investigate possible breaches of those obligations. For example, those powers expressly abrogate a person's rights in relation to self incrimination (s65). It is also relevant that not all those who are entitled to bring prosecutions under the Act have such powers (See s106).

85 Nor are the powers granted under s62 entirely at large. They are given only 'in relation to a possible contravention' of the Act. That is not a defined term, but they are words of limitation, which must be given effect. If the power was entirely at large, available to be exercised for any purpose and at any time, the words would be entirely otiose and have no work to do. They plainly must be given meaning, consistent with the statutory scheme.

86 That scheme requires that proceedings for an offence under the Act be instituted within a limited time, generally within two years (s107). It follows, logically, that the legislature envisaged that an investigation would be conducted and a conclusion reached as to whether an offence had been committed, within that time frame. By that time any person with powers of prosecution under the Act must have come to a view as to whether or not an offence has occurred. A 'holding charge', may not be laid in order to permit an investigation to continue. (Whitten v Hall (1993) 29 NSWLR 680.)

87 While the prosecution argued that s62 imposed no time limit on an investigation, in my view it follows from the statutory scheme, that the s62 power can no longer be exercised by an Inspector, once a prosecution has been commenced. Again, logically, the investigation into the 'possible contravention' of the offence would have been concluded at that time. Such prosecutions must be pursued before a Magistrate, or this Court. Where proceedings are commenced is a decision for a prosecutor to make. Section 246 of the Criminal Procedure Act 1986 now governs applications for an order '... that a person alleged in the application to have committed an offence ...' (s246(1)(a)). The application must be made in accordance with the Court's Rules.

88 When approaching this Court, Rule 217B of the Court's Rules requires that an application be made identifying both the act and section under which the defendant is alleged to have committed an offence and the nature of the offence alleged. Applications in respect of offences under this Act are supported by an affidavit verifying the allegations in the application. This process permits the Court to deal with the application for such an order 'in the absence of one or both parties' (s246(3) of the Criminal Procedure Act).

89 It follows that at the time of the making of the application the prosecutor approaches the Court ex-parte, seeking orders to bring the defendant before the Court to answer the charge, the prosecutor having formed the view that an offence has been committed and that he or she has gathered material sufficient to demonstrate that the offence has been committed, on a prima facie basis. The Court will issue the order, if it accepts what the prosecutor is advancing. What then remains is a hearing, at which the Court will determine whether or not, on the evidence led, the prosecutor has made out the charge, to the criminal standard.

90 I do not accept that when so approaching the Court, the prosecutor must appraise the Court of the nature of any issues which might have to be determined by the Court at trial, if the charge is defended and the offence is to be proven. At this stage, the prosecutor and the Court are concerned with whether or not there is a prima facie basis for the offence alleged. That is what the prosecutor's affidavit must be directed to.

91 If the Court refuses to issue the order and the limitation period has not expired, further investigation of 'a possible contravention' of the Act is plainly still available to a prosecutor. If the limitation period expires before an order is issued, no further investigation could be pursued by an Inspector under s62. There is no reason to think a different result follows, if orders are issued by the Court before the expiry of the limitation period, it being satisfied that the prosecutor has a prima facie basis for the view that an offence had been committed. In my view, when the Court issues an order which brings the defendant before it to answer the charge, the investigation of 'a possible contravention' of the Act is thereby brought to an end. At the latest, such an investigation must conclude when the limitation period expires, although in my view, if an order is earlier issued, thereby the investigation of a 'possible breach' of the Act has been bought to an end.

92 If this were not so, some curious consequences would follow. There would be nothing which would preclude an Inspector issuing a notice under s62 to a defendant charged with an offence, which required the production of documents not available under the Court's processes. Summonses to issue documents are, of course, concerned with the production of documents which are relevant to issues in the particular proceedings. This enables a prosecutor to seek production of a wide range of documents, but within certain well known limits, which the Court will determine in a particular case, if necessary. In this way, the Court supervises its processes, including the costs incurred in the litigation as a result. Notices issued under s62 are not so confined or controlled.

93 Questions such as relevance, oppression or even legal professional privilege in relation to advice given in respect of the offence charged, would not appear, on the face of s62, to be available to be raised before the Court, while the case was being prepared for hearing. Section 66 would make it an offence for a defendant to fail to comply with such a notice. The prosecutor submitted that a refusal to produce such a privileged document, would fall within the provisions of s66(1), as providing a 'reasonable excuse' for not providing such documents. I am not convinced that this view is correct.

94 The abrogation of legal professional privilege cannot result without 'clear words' or ' necessary implication'. (See Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 - a case seemingly concerned with such privilege prior to the institution of criminal proceedings). In my view, unlike the express provision made in s65 in relation to self incrimination, neither clear words nor necessary implication in this statutory scheme, leads to the conclusion that the legislature intended to abrogate legal professional privilege - particularly once criminal proceedings are instituted. This approach is consistent with the view I take of the proper construction of s62. It does not require resort to s66.

95 In Environment Protection Authority v Caltex Refining Co Pty Limited (1992-1993) 178 CLR 477, a case which was concerned with an investigation continuing after criminal proceedings were launched, the High Court was considering whether notices to produce documents under s29 of the Clean Waters Act 1970 might be issued. By majority, (Mason CJ, Toohey, Brennan and McHugh JJ), the High Court concluded that such notices could issue. The question was caught up with the related question of whether corporations had a privilege against self incrimination. (That is not an issue here, given the provisions of the Evidence Act 1995). Mason CJ and Toohey J observed at 507 that the question was one of statutory construction and also concluded that once it was accepted that production of the documents could be compelled under the processes of the Land and Environment Court, resort to the statutory power for the same purpose could not be an abuse of the Court's processes. It was thought to be an artificial distinction under that statutory scheme, to say that documents could be produced to ascertain whether an offence had been committed, but not to provide evidence of such a breach.

96 Deane, Dawson and Gaudron JJ, took the view at 537, that legislation 'must be clear before it can be construed as empowering a prosecutor to obtain compulsorily from a defendant, after the prosecution has been commenced, the evidence which it requires to discharge the onus cast upon it to prove its own case'. They also had regard to whether the Act was drafted so as to govern the manner in which a prosecution is to be conducted. It was concluded that production for the purposes of a prosecution was not 'in the exercise of the officer's powers under the Act' and a matter for the Court's procedures.

97 McHugh J took the view at 557 that there was nothing in the particular provision which would compel the view that the power to obtain evidence under the section 'is spent once proceedings against that person have been commenced'. There was no reason for reading such a limitation into the section. At 558 however, his Honour also observed that 'in the absence of clear legislative indication to the contrary, a statute should not be read as authorising an interference with the course of justice'. He also considered circumstances in which the use of such a power might constitute a contempt of Court - when a party exercised the power in such a way that it interferes with the course of justice'.

98 It is relevant that these views were reached in the context of the provisions of s29 of the Clean Waters Act 1979. It was concerned with the production of particular documents to 'an authorised officer', unconfined as to time or reason. By way of contrast, s62 deals with the powers of an Inspector given authority to investigate 'a possible contravention' of the Act, in a scheme which also empowers the Inspector to institute proceedings for an offence within a prescribed limitation period.

99 In my view, unlike the statutory provision which arose for consideration in Caltex, given the words of the section, the power to issue a s62 notice (in relation to the offence charged) is no longer available, once a prosecution has been launched, or more generally, after the limitation period provided in s107 has expired. In the former case, the proceedings must be conducted in accordance with the Court's procedures, whether they are initiated by an Inspector with power to issue notices under s62, or by one of the other persons who may initiate such prosecutions, consistently with s106.

100 That this is a balance which the legislature thought fit to strike in this legislative scheme, seems consistent with the nature of the obligations imposed; the broad investigative powers provided before a prosecution is commenced; the range of persons who are empowered to bring prosecutions under the Act; the avenues available to secure further evidence while a case is being prepared for trial, given the Court's own processes and the defences available to a defendant.

101 It also seems consistent with the scheme whereby a prosecuting Inspector has a right to seek a moiety of any fine imposed. (See Geoff Derrick v ANZ Group Limited (No. 2) [2005] NSWIRComm 145; Stephen George Kirkby v A& MI Hanson Pty Limited (unreported, Matter Number CT 1121 of 1993, Hungerford J, 13 September 1994); WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited (unreported, Matter Number CT 1025 of 1993, Schmidt J, 18 March 1994); and WorkCover Authority of New South Wales (Inspector Ford) v. Warrah Ridge Pastoral Co Pty Limited (unreported, Matter Number CT 1109 of 1993, Bauer J, 23 September 1994). The practice which has developed in this jurisdiction is that WorkCover Inspectors seek and are granted such a moiety. Such applications are rarely opposed, consistently no doubt, with the important purpose underlying this legislation - the prevention of injury at work.

102 The Act thus gives Inspectors wide powers of investigation of possible breaches of the Act. It also empowers them to prosecute offences. They then receive a moiety of any fine imposed. The obligation imposed on all prosecutors is to act with fairness and detachment in the context that the trial should be directed at ascertaining the whole truth. (Whitehorn v The Queen (1983) 152 CLR 657 at 663.) The possibility that a prosecuting Inspector might be placed in a position of conflict, plainly arises. On the one hand, there is the need to meet the prosecutorial obligation. On the other, an interest in obtaining a conviction and maximising penalty, with obvious consequences for any moiety granted. This is an unusual situation for any prosecutor to be placed in and one which cannot be overlooked in this context.

103 It seems to me that any construction of the legislation which might encourage an Inspector not to conclude an investigation of 'a possible contravention' of the Act, within the limitation period which the legislature has prescribed, is one which must be approached with caution. This is another consideration which has confirmed the view which I have otherwise reached on the proper construction of s62 of the Act.

104 I note that the question of the production here sought under the s62 notice was in fact earlier resolved by agreement between the parties - the defendant produced certain documents in Court and answered a call then made by the prosecutor, which enabled the hearing to proceed. Nevertheless, the defendant relied on the misuse of the s62 power, to advance its complaints about the prosecutor's alleged pre-trial abuse of process.

105 The s62 notice was issued to Mr Terrett by the Inspector on 24 March 2005, it was said, 'in the course of his investigations'. This was relied upon to advance the argument that the proceedings were launched without proper foundation and in the hope that necessary evidence would become available after the proceedings were initiated.

106 I have already dealt with the question of whether there was a prima facie basis for the charge laid. I am also satisfied that a misunderstanding of the powers available to the Inspector to further investigate by use of the s62 powers, the matters raised by the defendant after the charge was laid, cannot amount to an abuse of process, particularly when the proper construction of this part of the Act has not previously arisen for consideration. The documents sought were produced by the defendant in answer to a call. It was not suggested that they could not have been obtained under the Court's processes. This cannot amount to either abuse warranting a stay of the proceedings or contempt of Court, as discussed in Caltex.

Abuse in the investigation

107 I turn then to the complaint advanced as to the nature of the investigation conducted in this case. It was not alleged that the Inspector had intended to abuse the Court's processes. Rather, the submission, as pressed, was that due to the Inspector's lack of understanding of the applicable legal principles, he did not appreciate the relevance of the defendant's disclosed principal, to the elements of the offence which he was investigating. This led him into such error, that the prosecution amounted to an abuse.

108 It is difficult to understand the Inspector's evidence in any way other than displaying a certain lack of understanding of the possibility that the partnership asserted to be the defendant's principal, may in law have been the entity which employed the relevant persons. The Inspector seemingly investigated various matters, after the prosecution had been launched, once it was appreciated that it was being said by the defendant that the wrong defendant was being prosecuted. This included whether the defendant owned land, held certain licenses, had made workers compensation arrangements and so on. It was complained, however, that this was done, in effect to 'fit up' the defendant, the orders having already issued from the Court and the limitation period having expired, not to establish whether it was in fact the defendant, or the partnership, which was the employer, whose undertaking the abattoir was and whose place of work it was. It was this approach which it was argued resulted in relevant material, such as the agreements between the various entities and their financial affairs, not being investigated or understood.

109 Given the evidence as it emerged on the voir dire, as I have noted, it is not difficult to understand this complaint, although the defendant must also accept its own share of responsibility for what occurred to the point of the charge being laid, even if it be correct that the wrong defendant has been charged. As it accepted, there is material which points to the possibility that the defendant was an employer. Even the management agreement contemplated that the defendant might engage employees. The defendant was at pains to make clear that it was not here advancing an argument flowing from the High Court's judgment in General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125.

110 It was, as I have earlier concluded, the allegedly incorrect information which the defendant gave to the prosecutor through Mr Terrett, before the prosecution was launched, which provided a prima facie basis for the charge which the defendant faces in these proceedings. Mr Terrett candidly accepted in cross examination that the error was his and that he should have made clear to the Inspector that it was being asserted that it was the partnership which was the employer, not the defendant, given the relationship of principal and agent which existed between the defendant and the partnership, which had already been disclosed and explained to the Inspector.

111 Nevertheless, as the prosecution accepted, once the error had been raised with it, the prosecution was obliged to consider and come to a view about the matters asserted, given the onus which fell upon it in the proceedings. It is difficult to see that the approach then adopted was adequate, on the material now in evidence.

112 What appears to have occurred is that the issues which thus arose, were tested by the prosecution seeking to ascertain, for example, whether the defendant owned land, made arrangements for workers compensation and acquired licenses relevant to the abattoir business. Consistently with the prosecution case advanced at trial, no consideration was given as to whether it took these steps as principal, or agent. Whether this was merely an inadequate approach to the investigation required at that point, or an abuse which must now properly lead to the conclusion that a permanent stay of these proceedings must result, is a matter to which I will return.

113 It was also argued that the Inspector's evidence in cross examination showed abuse of process, given that he agreed that having been taken to various aspects of his investigation, he would not now swear the affidavit which supported his application for orders in its present form.

114 In cross examination, the Inspector certainly made a number of concessions which will not assist the prosecution case. I am unable to conclude, however, that the Inspector's concessions permit the conclusion that in the affidavit filed in support of his application to the Court for orders, he misrepresented information obtained in his investigation, so that the hearing of the charges amounts to an abuse. The Inspector was not re-examined, but his view that the system of work in question was not safe, despite his various concessions, cannot be ignored.

Abuse at the trial

115 The difficulties in the pre-trial investigation soon manifested themselves at the trial. For example, the attempted tender of a document obtained from AQIS, during the Inspector's evidence in chief, indicating that certain licenses were held by the defendant, illustrates the problem. There was an objection to the tender. It was argued the document was admissible as a business record. The tender was unsuccessful, because the requirements of s69(2)(b) of the Evidence Act 1995 were not satisfied. It provides:

69 Exception: business records

...

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

...

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

116 No evidence was called to show that the document satisfied this requirement. On its face, there were at least two ways in which this could have been done. Either, by tendering the defendant's application to AQIS, if indeed the document resulted from such an application, or by calling evidence from a person with knowledge of the facts in question. Given that Mr Troja, the general manager, was to be called in the prosecution case, the tender of the document could have been deferred until he was called. This was not a course which the prosecutor wished to pursue. The defendant was prepared to concede that it had made an application in certain terms. The prosecution declined to accept the concession, or to itself tender the application for the license, but pressed the tender on the basis that it was open to infer from the terms of the document itself, that the requirements of s69(2)(b) were satisfied. Such an inference was not open.

117 The defendant also argued in the face of the prosecution's refusal to tender the application, or to accept the concession sought to be made, that the tender should be declined in accordance with ss135 and 137 of the Evidence Act, in any event, on the basis that the document, in the absence of the underlying application, would be unfairly prejudicial, misleading or confusing. I invited the prosecutor to tender the application with the document. That course was declined and so, it had to be concluded that s69 was not satisfied and, furthermore, even if it were, the discretion provided by ss135 and s137 had to be exercised.

118 The defendant complained that the prosecution was actively endeavouring to ensure that the relevant primary material was not put before the Court. Mr Skinner argued that there was no difference between primary documents (those emanating from the partnership and the defendant) and secondary documents (those emanating from third parties such as AQIS) as the defendant complained, it was all evidence.

119 It is impossible to see that the approach adopted in relation to the documentary case is consistent with the prosecutor's obligations as discussed in Tran. It also highlights the defendant's complaint that the prosecution simply failed to turn its attention to the primary documents which would throw light on the real nature of the relationships in question and whether, in that context, the legal elements of the offence charged could be made out. Having thought it unnecessary to investigate such material, which was always available to it, the prosecution now proposed to proceed, without putting the relevant material before the Court.

120 Other difficulties emerged. The prosecution having opened on the basis that the abattoir was owned by the defendant, the cross examination of the Inspector soon revealed that the document upon which the prosecution relied had been misunderstood. Mr Skinner finally submitted that "It is trite in this jurisdiction that the consent of ownership is an industrial law concept; it is not property law, it is a concept that has an industrial flavour it is not an aspect of real property law." The submission is incorrect. Properly understood, as the submission was developed in response to questioning, it was being asserted that ownership of land was not necessary to establish that the land was a defendant's place of work - that being one of the legal elements of the offence which must be here proven. I accept that while ownership might be relevant, it is not decisive on that question. Failure to make out that aspect of the opening is not fatal to the prosecution case.

121 Mr Skinner also submitted that ownership of the land was relevant to the question of undertaking, another legal element of the offence That is undoubtedly correct. So too, is the question of the ownership of the abattoir business, another matter about which the defendant complains as to the unfairness of the prosecutor's approach to its obligations.

122 Whether the difficulties about which the defendant complains should lead to a permanent stay of the proceedings is, a matter which requires careful consideration, given the limited circumstances in which such orders may properly be made. In part, the answer to this question depends on whether what has been demonstrated leads to the conclusion that there has been such an inadequate approach in the pre-trial investigation, that the grant of a stay must follow, because there cannot now be a fair trial conducted, given the approach being pursued at trial.

123 Alternatively, whether a possible alteration to the prosecution's approach to the case, inconsistent with how the case has been advanced thus far, is one now available, is another question.

124 An inadequate investigation or lack of appreciation of what the prosecution must establish in a particular case, may of course lead to the prosecution failing to make out what is alleged to the requisite degree, in which event the charge would be dismissed and an order for costs made in favour of the defendant. Potentially this could result without the defendant needing to go into evidence. That the prosecution should be refused the opportunity to attempt to make out the charge at all, is a different matter, as various members of the High Court emphasised in Jago.

125 As Brennan J observed in Jago at 54, the interests of the community and victims of crime in the enforcement of criminal laws, must not be overlooked in considering alleged instances of abuse of process and applications such as this. It is not here alleged that there has been bad faith on the part of the prosecutor, but in reality, such an inadequate approach to the investigation and pursuit of the trial, that a fair trial is not now possible. Whether this is so, must be tested by considering whether steps could now properly be taken, which would ensure that those inadequacies could be overcome, so that the defendant would still be given a fair trial. If so, the circumstances would fall into that class discussed by Deane J at 55, that this "is something which the individual must accept as necessarily flowing from membership of a society in which individual and public rights and interests are protected by laws enforced by penal sanction. In a real world where institutional resources are limited, some undesirable delay in the administration of criminal justice is inevitable." Similarly, some imperfections in a trial process must also be accepted.

126 It follows, that unless it can be concluded that what has transpired 'has passed beyond what can be justified in the due administration of justice', such steps, if available, should be taken.

127 That this is not without difficulty here is abundantly clear. The defendant argued that what the prosecution now proposed raised difficulties of the kind considered by Cahill J in WorkCover Authority of New South Wales (Inspector Lacey) v Donato Timmillo (unreported, 13 February 1998). To permit this course now would permit the pursuit of the charge inconsistently with the limitation period. I am unable to accept that submission. The defendant complains that because of the inadequacy of the investigation, the prosecution is involved in an abuse of process because it has no intention of satisfying the onus which falls upon it as to the matters in issue.

128 In Tummillo, Cahill J was concerned with an attempt, after the limitation period had expired, to abandon the allegation that an offence under s15 had been committed and to prove an offence under s16, it being apparent that the proceedings had been commenced against the wrong legal entity. Cahill J declined the application, finding that :

' ... it is obvious that the prosecution, after considering all the material available to it as a result of WorkCover investigations over a period of almost two years since the accident occurred, made a conscious decision to proceed under s.15(1) against the employer of the deceased employee, Mr Hall, and of Mr Mills. In doing so, the wrong company was mistakenly specified. But there were no proceedings then instituted for breaches of s.16(1) of the Act against either company, Graphic Security Pty Ltd or Graphic Security Protective Services Pty Ltd. The conclusion is inescapable that the prosecution had reached a conscious decision not to proceed against either company alleging a breach of that section.

Section 15(4) cannot operate to save these proceedings. It is patently clear that the circumstances of the present case, as discussed above, are such as to make its application inappropriate or impermissible.'

129 I am unable to come to a similar view in this case. The difficulty in question, it seems to me is of a different kind.

130 I have concluded that the defendant has advanced legitimate complaints, as I have found. The question is whether or not they can be cured.

131 One aspect of the difficulty is the question of the evidence which would be called from witnesses. In the ordinary way, the prosecution has served on the defendant, statements taken from witnesses during the Inspector's investigation before the charge was laid. The defendant has, from the outset, indicated that it has no objection to the tender of those statements, subject only to relevance, and that it does not require them for cross examination.

132 The prosecution has refused that course. It intends to call the witnesses and adduce evidence orally. This is consistent with the approach discussed in WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370 at [86].

133 It has become apparent, however, that the prosecution also intends and the defendant will oppose, the calling of further evidence beyond the matters dealt with in the statements, in relation to the question of the safety of the system of work. Perhaps in part this stems from the difficulties arising from the Inspector's concessions. The defendant already complains that it has no notice of such evidence.

134 Were the prosecution now to alter its approach to the trial, further difficulties of this kind might emerge. It seems to me, potentially at least, that such difficulties might be manageable. The problem is, however, that while the Court may make evidentiary rulings, it does not control the course either party might take in the proceedings, or the evidence they elect to call.

135 What is clear from the prosecutor's submissions, is that it does not intend to recast its case. It insisted that "the management issue cannot found a defence". It has not abandoned its view that the asserted agency is irrelevant to the charge before the Court, despite what has emerged during the hearing of the motion. Indeed, to the contrary, having identified that the capacity in which the defendant took certain action was in issue, Mr Skinner submitted:

But our case fundamentally is, if it is the manager for someone else, it is still liable under Occupational Health and Safety law. We would say, your Honour, that despite my learned friend's submissions that it may be a trustee or a manager or an agent for a disclosed principal and the terms aren't mutually exclusive, into which possible controversy I don't want to enter, we say if it were a trustee, it is clearly liable anyway and there is authority for that recently. But that doesn't really seem to be how it has been pressed on the Court.

136 Assistance for this approach was sought to be drawn from the Full Court's judgment in Solo Waste Aust Pty Limited v Inspector McDonald [2005] NSWIRComm 106, where the Court was dealing with an offence committed by the corporate trustee of a family trust. In truth the case was of no assistance to the prosecutor here. As the Full Court observed at [16], such a trust is not a juristic person. It could not be prosecuted and its property was legally vested in the trustee. There could be no issue that the corporate trustee was the proper defendant in those proceedings.

137 By way of contrast, in this situation, there was nothing to preclude the two partners, here in question, being prosecuted under s8 in relation to the risk to safety at issue, if they were in truth employers and the risk arose at their place of work and during the course of their undertaking - namely, the abattoir business being conducted by their partnership.

138 It was also argued by Mr Skinner that the prosecutor was entitled to reject what the defendant had put and "to lead the evidence going the other way." I am satisfied that the defendant's complaints as to the prosecutor's approach to the evidence was plainly thereby finally confirmed.

139 It was argued, nevertheless, that the defendant's complaint was premature, because it was intended to tender material which would prove the prosecution's allegations. That material had been served. The defendant's complaint was, of course, that the prosecutor did not propose to meet its obligation to put all of the relevant material before the Court on the issues in question - particularly the material which did not support the prosecution case, but which showed that it was the partnership which in truth should have been charged with the offence.

140 Mr Skinner conceded that documents, in evidence on the voir dire, which the defendant had used to advance its case, were not ones in the prosecution's possession when it opened the case. In response to a question as to the two complaints - that such matters were not investigated and that it was not proposed to tender such material, it was said:

Now I have it, I would propose to put it before the court, probably, but I'm one witness into 17, I don't want to cavil with your Honour's ruling, but that highlights how it is almost impossible to assess at this stage of the trial.

141 Mr Skinner agreed that no notice had been given to the defendant as to material of that kind being led at the trial. On his approach, however, the material having been revealed by the defendant, the prosecution was now entitled to form a view as to whether it was relevant and this would most likely occur when Mr Troja was called. If it was to be tendered, s46 of the Criminal Procedure Act, would be relied upon. That the material had been 'pulled out from of the defendant's side of the bar table after the proceedings were charged and the trial commenced' could not found the abuse alleged. The defendant could chose to go into evidence during the conduct of the prosecution case and if it did, that could then be relied on by the prosecution to establish its prima facie case.

142 Mr Skinner was unable to indicate what might be tendered, even when pressed. He took the view, for example, that the management agreement between the defendant and the partnership might go in, as might most of the material tendered by the defendant on the voir dire. Later on, he said that the prosecution would not be trying to withhold it and that "... there is no evidence at all that we ever were, or that the inspector was ...". He accepted that it was relevant and would have to be put before the Court, although, as he later explained it, it was material only relevant to the defendant establishing that it has a defence on that material. Even later, he submitted that "I won't resist it going in and may put it in myself and so on, no problems."

143 What I took all of this to mean was that while the prosecution would not oppose the defendant tendering such material and might itself tender some of it, what would be tendered by the prosecution would depend on the view reached as to its relevance to the prosecution's case, as it developed. As Mr Skinner explained it:

If the proposition is put that we are withholding material that would otherwise prove they're innocent, that begs the question. Your Honour has to be of the view that they are otherwise innocent, that we have prosecuted the wrong defendant. We do not have to put their defences to the court. I cannot see how a prosecutor is ever obliged to do that, unless they throw some evidentiary onus on us in some way in the course of the trial.

144 It was further submitted that all that the prosecution needed to do in its evidentiary case was to raise the matters in issue through the evidence it called. This would be done in the evidence called from Mr Troja, so that he could be cross examined 'which will no doubt be reasonably friendly cross examination on any view'.

145 As to the complaint that the material about which the defendant complained had not been brought forward in the prosecution case, it was submitted of the defendant that "Every inquiry we have been able to make from other parties would support what Mr Wright said. Every inquiry we make of them provokes massive complaint."

146 I do not accept that submission. To the contrary, both correspondence from the defendant and even the Inspector's cross examination suggested that the prosecution received co-operation from the defendant, including both before and after the charge was laid. Even when it objected to the use of the s62 power, shortly prior to the hearing, the defendant produced the documents sought, by the prosecutor, in any event.

147 The real difficulty here, it seems to me, is that while the prosecutor had a basis for a prima facie case when the charge was laid, the foundation for it disappeared, given the defendant's later advice that it was not, in fact, an employer. That necessitated the prosecutor revisiting the charge and considering whether it was the defendant or the partnership which was the employer in the circumstances of the arrangement which they had entered with each other and with the individuals concerned. Given the impact which that question had on the place of work and undertaking elements of the charge, those matters too had to be revisited.

148 The consideration then given to such matters was plainly inadequate, as I have found. It appears that the ordinary way in which the identification of an employer might be approached was not undertaken. For example, Mr Terrett's cross examination showed that there were personnel files maintained, containing letters of appointment which referred to the employer. Such documents seemingly have not been identified by the prosecution as being documents on which it would rely at the trial, nor are they contained in the material tendered by the defendant on the voir dire. No doubt group certificates would have been issued to the employees and they would have filed tax returns. The partnership and the defendant also created various tax documents. Some of those are intended to be led.

149 Indeed, somewhat curiously, income tax records were variously described by Mr Skinner as "the gold standard, if one likes, of evidence for testing employer/employee relationships" and the "main evidence anyone would rely on." Those submissions are plainly incorrect.

150 What has been revealed is the prosecutor embarked at trial on a course which involved it putting before the Court only those documents which assisted its case, having taken the view that the existence of the asserted agency was just irrelevant to what it had to establish. Despite the suggestion that it might tender some or all of the documents tendered by the defendant on the voir dire, if it took the view that they became relevant to the prosecution case as the case advanced, it has not accepted that it is obliged to follow any course other than that upon which it embarked at the outset.

151 While the existence of the controversy as to various factual matters will be revealed in the evidence, particularly that to be led from Mr Troja, the prosecutor does not accept that it has an onus, in its case, to tender the relevant documentary material - both that which supports its view of the facts and that which supports the defendant's view on the matters in issue - so that the proper evidentiary basis is provided for the Court to determine these issues.

152 Contrary to the prosecution's assertion, the prosecutor's obligation is not one which can be approached on the basis that, if it wishes, the defendant can lead such material, in order to make out a defence. This statutory scheme creates certain absolute obligations. It also imposes a particular onus on a prosecutor, who seeks to establish that those obligations have not been met and that an offence has been committed. There are defences provided in the statute, which only arise for consideration, once an offence has been made out. They do not include a defence of the kind asserted by the prosecutor. The onus to make out the case the prosecution alleges, to the necessary criminal standard, can only be met by the prosecution leading in its case, all of the evidentiary material which will provide a fair opportunity for the factual matters in issue between the parties to be determined by the Court.

153 Notwithstanding the conclusion I have reached, I am satisfied that the Court cannot require the prosecutor to depart from the course it has adopted and from which it does not, in reality, resile, despite what has emerged during the hearing of the motion. Just as the Court cannot control the way in which an investigation into a possible offence is conducted, it also cannot control the way in which a prosecutor proposes to meet its obligations at trial. I am also satisfied that the trial, approached as it has been by the prosecutor, who in reality does not resile from that course, will involve an abuse of process which cannot be permitted and which would necessitate the proceedings being stayed.

154 While such a conclusion is reserved for an extraordinary case, it seems to me that this is one such case. As it was put by Brennan J in Walton v Gardner (1992-3) 177 CLR 379 at 415:

In Cox v Journeaux (No 2) (1935) 52 CLR, at 720, Dixon J said:

The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.

Injustice is “unnecessary” when it is a burden other than and additional to the burden necessarily borne by a party to litigation properly instituted and conducted. The rule of law depends on the certain performance by the court or tribunal of its duty to exercise its jurisdiction. To admit a power in the court or tribunal to decline to exercise its jurisdiction in a case instituted on reasonable grounds for a proper purpose is to assert a power to elevate abstract notions of unfairness or want of justification above the law itself. The administration of justice is not contingent on judicial satisfaction that the prosecution of a proceeding is not unfair and not unjustifiable — provided the proceeding is instituted on reasonable grounds for a proper purpose and is prosecuted in due compliance with the court’s procedure. Justice is administered according to law, and the exercise by courts and tribunals of their respective jurisdictions for the purposes for which they are conferred is the administration of justice. Section 23 of the Supreme Court Act does not alter or authorise the Supreme Court to alter that meaning of “the administration of justice” whenever it is of the opinion that justice, viewed in the abstract, might be better administered without regard to the governing law or that the regular prosecution of particular proceedings for a legitimate purpose is “unfair” or “unjustified”. Those are terms which, in the context of the law relating to abuse of process, import no more definite criterion than idiosyncratic opinion. I would use the words of Dixon J (In Dey v Victorian Railways Commissioners (1949) 78 CLR, at 92) to stress that it is important “to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose”.

155 I am satisfied that this is the nub of the difficulty in this case. The prosecutor's approach involves both 'unnecessary injustice' and a failure to adhere to 'due procedure appropriate for the purpose of these proceedings'.

156 This prosecution, in reality, proceeds on a basis inconsistent with the obligations imposed on a prosecutor, including the obligation to disclose exculpatory material and to fairly put the relevant material before the Court in its case, as discussed in Tran.

157 Perhaps it might have been possible for the prosecution to consider, as in Jago, firstly whether, in all the circumstances, it wished to continue pressing this charge. If it did, to put the defendant on notice of the additional material upon which it intended to rely at the trial, which have now come to its attention through the voir dire process. Such an exercise, if approached on a basis which sought to ensure that the prosecution met its obligation to put the relevant material before the Court as to the matters here in issue, might have addressed the problems which have been revealed.

158 The prosecution however, persisted with its view that firstly, the question of whether the defendant was an agent for the partnership is irrelevant to the charge and secondly, that it was a matter for the defendant to tender material going to show that it undertook various matters as an agent, as a part of its defence. That being so, I am satisfied that a fair trial cannot be assured, given the course upon which the prosecution has embarked and proposes to proceed.

159 The defendant is not obliged to go into evidence. It is for the prosecution to bring forward and prove to the requisite degree, the various factual matters which underpin the contested elements of the offence alleged. This cannot be done if the relevant material, both that pointing to the case the prosecution seeks to make out and that which does not, is not put before the Court in the prosecution case. This includes the question of whether it was the defendant, or the partnership, which was the employer, whose place of work and during the course of whose undertaking, the risk in question arose.

160 It was observed by Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen (2000) 199 CLR 620 at 632 that while in a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence 'it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused.'

161 It is in that context that the obligation to prove a case beyond reasonable doubt has to be understood. The prosecutor's case has to be presented with fairness to the accused. (Richardson v The Queen (1974) 131 CLR 116 at 119.) The judge is not permitted to take any part in the evidentiary contest at trial. Each party is "free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross examination shall be asked; always, of course, subject to the rules of evidence." (Ratten v The Queen (1974) 131 CLR 510 at 517.)

162 None of these observations contemplate what the prosecution has here embarked on - a disavowal that the prosecution's obligations will be met. In a case where the identity of the proper defendant is at issue, the prosecutor advances a case that the existence of the agency is irrelevant to ascertaining whether it is the defendant or the partnership which is the employer; who conducted the undertaking and at whose place of work the risk to safety arose. Having adopted that attitude, it proposes to do no more than raise the issue in evidence and then to call evidence relevant to the case it advances, leaving it to the defendant, if it wishes to advance a defence, to lead evidence which establishes the agency and that the partnership is the employer, conducted the undertaking and at whose place of work the risk arose. I am satisfied that this involves an abuse of process at trial which the Court cannot remedy. If the trial were to continue, it would result in the accused being denied what it is entitled to and which society has the right to expect - a fair trial.

163 As requested I will relist the matter at 10am on Tuesday, 31 May 2005. The prosecution pressed that I give reasons for the conclusions which I reached, before making any orders, it wishing to preserve the possibility of having a case stated on the matters which have arisen for determination.

164 I have acceded to that request, but take the view that the prosecution should now promptly inform the defendant of the course which it proposes to take, prior to the further listing I have fixed, so that it will also have an opportunity to consider its position.

165 I will give further consideration as to the disposal of the defendant's motion and any orders which should be made, when the matter comes on again on 31 May 2005.

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LAST UPDATED: 27/05/2005