WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Ltd [2001] NSWIRComm 21

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Ltd [2001] NSWIRComm 21 PROSECUTOR WorkCover Authority of New South Wales (Inspector Rech) PARTIES : DEFENDANT Walter Construction Group Ltd FILE NUMBER: IRC 5406 of 2000 CORAM: Marks J CATCHWORDS : Occupational Health and Safety Act prosecution - Dismissal of charge at close of prosecution case - Held no tribunal could safely convict. LEGISLATION CITED : Occupational Health & Safety Act 1983 s 14(1) CASES CITED : The Queen v Prasad (1979) 23 SASR 161 HEARING DATES: 12/21/2000; 01/05/2001; 02/02/2001 DATE OF JUDGMENT: 02/23/2001

PROSECUTOR Mr P M Skinner of counsel SOLICITORS WorkCover Authority of NSW

LEGAL REPRESENTATIVES: DEFENDANT Mr S J Archer and with him Mr R E Dubler of counsel SOLICITORS Corrs Chambers Westgarth

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: MARKS J

Friday 23 February 2001

Matter No IRC 5406 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RECH) v WALTER CONSTRUCTION GROUP LTD Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT ON WHETHER UNSAFE TO CONVICT

1 The prosecutor Inspection Rick Rech of the WorkCover Authority of New South Wales initially brought three prosecutions against the defendant Walter Construction Group Ltd arising out of an incident which occurred on 24 October 1997 at Botany. In a judgment given on 13 December 2000 I dismissed the charges in Matters Nos IRC 5404 and 5405 of 1999 holding that the defendant had no case to answer in each of them. I held that there was a case to answer in the third matter, the subject of these proceedings, but invited the parties to make written submissions as to whether the proceedings should nevertheless be dismissed because on the state of the evidence no reasonable tribunal could safely convict the defendant. In taking this approach I relied on the authority of a line of cases typified by The Queen v Prasad (1979) 23 SASR 161. 2 Before dealing with the evidence I should first deal with some submissions made by Mr Skinner of counsel who appeared for the prosecutor which concerned the appropriate and proper approach to be taken to the evidence having regard to the state of the proceedings; the prosecution case had closed and the defendant had not stated whether it would go into evidence. Mr Skinner's submissions centred around the approach to the acceptance of facts and the drawing of inferences upon those facts. 3 I propose to approach the evidence and the state of the evidence without having regard to the fact that the defendant has not at this stage made any determination as to whether or not it will go into evidence. As I understand the approach which is typified by Prasad and the other cases to which I referred at some greater length in my judgment of 13 December 2000, the exercise involves an evaluation of the evidence including its weight and reliability in determining whether any reasonable tribunal could safely convict on it. This examination is one which I have instigated and which I am entitled to instigate at this stage of the proceedings as is made clear in Prasad and the other relevant authorities. Accordingly, the position taken by the defendant in terms of any evidentiary case which it may or may not wish to mount becomes irrelevant. This point applies also to any inferences which may be drawn from the factual circumstances. 4 The charge brought against the defendant under s 15(1) of the Occupational Health and Safety Act 1983 is in the following terms: On 24 October 1997 at 30 Friendship Road, Botany in the State of New South Wales, the defendant contravened Section 15(1) of the Occupational Health and Safety Act 1983, in that being an employer it failed to ensure the health, safety and welfare at work of all its employees and in particular Neil Peter, Neville Ngawati, Peter Brownett, Robert McMekin, Phil Trainor, Julian Osmond, Barnie Osmond, Bruce Lindop, Darryn Wenlock, John Eldridge, Mark Bunk and Willy Ross.