Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Mansell) v Josef & Sons Pty Limited and Others [2003] NSWIRComm 274 Matter Number IRC 5439 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MALTBY) - Prosecutor JOSEF & SONS PTY LIMITED - Defendant Matter Numbers IRC 5484 - 5489 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MANSELL) - Prosecutor ROBERT JOSEF - Defendant Matter Numbers IRC 5496 - 5497 of 1999 PARTIES : WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MANSELL) - Prosecutor DANIEL JOSEF - Defendant Matter Numbers IRC 5498 - 5499 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MANSELL) - Prosecutor CHRISTOPHER STOESKI - Defendant Matter Numbers IRC 5500 - 5501 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MANSELL) - Prosecutor BERNATH ADLER - Defendant FILE NUMBER: IRC 5439, 5484, 5485, 5486, 5487, 5488, 5489, 5496, 5497, 5498, 5499, 5500 and 5501 of 1999 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecutions under sections 17(1)(a), 50(1) and 19(a) of the Occupational Health and Safety Act 1983 - application by prosecutor - whether reasonable apprehension of bias would arise if hearing proceeded - judge to step aside - hearing vacated LEGISLATION CITED : Evidence Act 1995 Occupational Health and Safety Act 1983 Australian National Industries Ltd v Spedley Securities Ltd (In Liq) and Others (1992) 26 NSWLR 411 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Masters, Richards & Wunderlich (1995 A Crim R 445) CASES CITED : Regina v Maxwell (Unreported, Spigelman CJ, Sperling and Hidden JJ, CCA (NSW) 60282/98, 23 December 1998) Re JRL, Ex parte CJL (1986) 161 CLR 342 Re Polites, Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 The Queen v Watson, Ex parte Armstrong (1976) CLR 248 Webb v The Queen (1993) 181 CLR 41 HEARING DATES: 08/20/2003 DATE OF JUDGMENT: 08/22/2003 PROSECUTION: Mr MJ Joseph SC with Mr PM Skinner of counsel SOLICITORS: Moray & Agnew DEFENDANT IN MATTER NUMBERS IRC 5439, 5484- 5489, 5496 - 5497 AND 5500 - 5501 OF 1999 LEGAL REPRESENTATIVES: Mr PR James, solicitor SOLICITORS: James Legal Pty Limited DEFENDANT IN MATTER NUMBER IRC 5498 AND 5499 OF 1999 Mr AR Mednis, Solicitor SOLICITORS: MacElbing Mednis & Associates JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 22 August 2003 Matter Number IRC 5439 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS PTY LIMITED Prosecution under s17(1)(a) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5484 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ROBERT JOSEF Prosecution under s50(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5485 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ROBERT JOSEF Prosecution under s50(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5486 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ROBERT JOSEF Prosecution under s50(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5487 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ROBERT JOSEF Prosecution under s50(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5488 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ROBERT JOSEF Prosecution under s50(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5489 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ROBERT JOSEF Prosecution under s50(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5496 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v DANIEL RICHARD JOSEF Prosecution under s19(a) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5497 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v DANIEL RICHARD JOSEF Prosecution under s19(a) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5498 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v CHRISTOPHER STOESKI Prosecution under s19(a) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5499 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v CHRISTOPHER STOESKI Prosecution under s19(a) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5500 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v BERNATH ADLER Prosecution under s19(a) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5501 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v BERNATH ADLER Prosecution under s19(a) of the Occupational Heath and Safety Act 1983 JUDGMENT 1 A question has been raised by the prosecutor, as to whether or not the hearing of these prosecutions, listed for three weeks commencing in September, should proceed before me. 2 Mr Joseph SC, appearing for the prosecutor with Mr Skinner of counsel, submitted that the question arose in somewhat unusual circumstances, which gave rise to the need to consider whether a reasonable apprehension of bias might arise, if the hearing proceeded. A concern that any actual bias or lack of impartiality might arise, were I to hear these prosecutions, was disavowed. 3 The application was made just before the parties to three other prosecutions were to commence making their submissions. Judgment has now been reserved in those matters. The judgment is in the process of being prepared, but has not yet been given. (Matter Numbers IRC 5427, 5429 and 5430 of 1999 - WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited.) 4 Two of the defendants in these proceedings, Mr Robert Joseph and Mr Daniel Joseph, gave evidence in the AGL proceedings. They were both granted a certificate pursuant to s128 of the Evidence Act 1995, in respect of the entirety of their evidence in those proceedings. The effect of the certificate is that their evidence may not be used against them in proceedings such as these. 5 In those circumstances, it was argued for the prosecutor that while the defendants to these proceedings were prepared to waive their rights to object to the matters proceeding before me, the question of apprehended bias still arose and must, in the circumstances, lead to the result that I should step aside. 6 Reference was made to the approach of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) and Others (1992) 26 NSWLR 411, where the approach of the High Court in cases such as Livesey v New South Wales Bar Association (1983)151 CLR 288 and Re Polites; Ex parte Hoyts Corporation Pty Ltd (191) 173 CLR 78, was considered. That consideration arose in the context of complex, intersecting, commercial litigation being managed by one trial judge, who had declined to step aside, when a question of apprehended bias had been raised. 7 The circumstances in Spedley share some similarities with those which here arise for consideration, although in this case, there has not, as yet, been any judgment given in the AGL prosecution. Nevertheless, it would appear to be inevitable, that active consideration must be given to the evidence in the AGL case, while the hearing of these prosecutions proceeds and when judgment in these matters is reserved. 8 As Mahoney JA discussed in Spedley (at p435), a judges' obligation is to decide each case upon the evidence before him or her in that case, being objective and impartial. Bias and pre-judgment must be avoided. The question which thus arises, is whether in the current circumstances, the principle requires that I step aside. The principle, later described as 'the relevant test' in Polites (at p 85-86), was described in Livesey at pp283-4 as: "…the principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. … Although statements of the principle commonly speak of 'suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning." 9 This test was later re-affirmed in Webb v The Queen (1993) 181 CLR 41. Here, it is undoubtedly important to consider that this is a criminal trial. As observed by the Court of Criminal Appeal in Regina v Maxwell (Unreported, Spigelman CJ, Sperling and Hidden JJ, CCA(NSW), 60282/98, 23 December 1998) the strictness of the application of the test may vary, but "It will be at its most strict for a criminal trial" (at p28). 10 In Spedley, Mahoney JA emphasised (at p437) the importance of the principle that justice must appear to be done. Kirby P, (as he then was), there emphasised the need for a high standard of neutrality and impartiality to be upheld, by reference to the Australian authorities and also Article 14 of the International Covenant on Civil and Political Rights, which particularly emphasises independence and impartiality in the determination of criminal charges (at p418). 11 The authorities also deal with the importance of judges not too readily acceding to applications for disqualification. (See for example Re JRL; Ex parte CJL (1986) 161 CLR 342 at p352.) This is a matter to which I have given some thought in this case, given that it is the prosecution which pressed the application and the defendants who waived their rights in this respect. The length of the delay between the time of the events in question and the hearing now fixed, also gave me some concern, as it would appear almost inevitable, given the Court's lists and the time at which this application came forward, that no other judge of the Court would be available to hear the case on the days fixed. 12 Nevertheless, I have concluded, on balance, that the circumstances are such that a fair minded and reasonable observer might entertain the apprehension of bias discussed in Livesey. I think that it cannot be overlooked in criminal proceedings such as these, where it is the absolute obligations imposed by the Occupational Health and Safety Act 1983 which arise for consideration, that a defendant has no obligation to call evidence in the proceedings and that the onus lies upon the prosecution to make out the case, to the criminal standard. The fact is that I have heard, in other proceedings, the evidence which may not here be used against the defendants, given the provisions of s128 of the Evidence Act. Having in mind the circumstances and issues which arise in these proceedings and those in the AGL case, it must be concluded that the possibility arises that the parties, or the public, might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the questions involved in these proceedings. 13 I do not regard this situation to be akin to that considered by the Court of Criminal Appeal in Masters, Richards & Wunderlich (1995 A Crim R 445), where the approach in Spedeley was not followed (at p465). It is not the credit of the accused or any other issue, already dealt with in another context, which here arises again for consideration, so as to potentially give rise to an apprehension of bias. It is rather, that I have heard evidence given by the accused, which the accused are not bound to give in these proceedings and which may not be used against them. The concern raised is not that the case will be decided adversely against any party. 14 I am also satisfied that the necessity that the public have confidence in the administration of justice, described by the High Court in The Queen v Watson; Ex parte Armstrong (1976) CLR 248 at p263, as of fundamental importance, will also be met by the conclusion which I have here reached. Orders 15 For all of these reasons I order that the hearing of these matters fixed before me be vacated. The file will be returned to the President for re-allocation to another Judge for hearing. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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