Industrial Court of New South Wales CITATION: John Cahill v State of New South Wales (Department of Community Services) (No 2) [2007] NSWIRComm 187 PROSECUTOR John Joseph Cahill PARTIES: DEFENDANT State of New South Wales (Department of Community Services) FILE NUMBER(S): IRC 2387 of 2006 CORAM: Boland J Occupational Health and Safety - Interlocutory proceedings - Application by defendant to strike out application for order for abuse of process and invalid delegation of power to institute proceedings - Whether at the time of instituting the proceedings the prosecutor was in possession or command of sufficient admissible evidence capable of establishing each element of charge - Whether proceedings were commenced on 23 May 2006 for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006 - Whether prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings - Consideration of power to stay criminal proceedings where there is an abuse of process - Obligations on a secretary of an industrial organisation in instituting proceedings under the Occupational Health and Safety Act 2000 - Held defendant had not made out grounds in strike out motion - Motion dismissed CATCHWORDS: Practice and procedure - Occupational Health and Safety - Interlocutory proceedings - Application by defendant to strike out application for order for abuse of process and invalid delegation of power to institute proceedings - Whether at the time of instituting the proceedings the prosecutor was in possession or command of sufficient admissible evidence capable of establishing each element of charge - Whether proceedings were commenced on 23 May 2006 for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006 - Whether prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings - Consideration of power to stay criminal proceedings where there is an abuse of process - Obligations on a secretary of an industrial organisation in instituting proceedings under the Occupational Health and Safety Act 2000 - Held defendant had not made out grounds in strike out motion - Motion dismissed Building Societies Act 1976 (WA) Criminal Procedure Act 1986 s 246(1) LEGISLATION CITED: Evidence Act 1995 s 60, s 69, s 82, s 87, s 87(1)(b) Industrial Relations Act 1996 s 168 Occupational Health and Safety Act 2000 s 8(1), s 81(c), s 81(d), s 106(1)(d) Australian Competition & Consumer Commission v Mayo International Pty Ltd & Ors [1998] FCA 808 Barton and others v The Queen and others (1980) 147 CLR 75 Cahill v State of New South Wales (Department of Community Services) (2007) 161 IR 124 Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 Doney v The Queen (1990) 171 CLR 207 DPP v Shirvanian and another (1998) 102 A Crim R 180 Driscoll v The Queen (1977) 137 CLR 517 Environmental Protection Agency v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Environmental Protection Authority v Caltex Refining Co. Pty. Limited (1992) 178 CLR 477 Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128 Inspector Wade v Mid North Coast Area Health Service [2004] NSWIRComm 254 Jago v The District Court of NSW and others (1989) 168 CLR 23 John Holland Group Pty Ltd v Industrial Relations Court of NSW (2006) 153 IR 97 Kelly v The Queen (2004) 218 CLR 216 Maxwell v The Queen (1995) 184 CLR 501 CASES CITED: McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 Metaxas v Ferguson (1991) 4 WAR 272 Philip Giovannone (2001) 119 A Crim R 519 Phillip John Rapson & Anor v William Edwin Wright & Ors (Supreme Court of New South Wales, Matter No 13988 of 1995, 29 May 1998, Hamilton J, unreported) Regina v Cameron John Knight (New South Wales Court of Criminal Appeal, Matter No 060462 of 1988, 18 December 1990, unreported) Ridgeway v The Queen (1995) 184 CLR 19 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128 Smith v NSW Bar Association (1992) 176 CLR 256 The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 Walton v Gardiner (1992) 177 CLR 378 Whitten v Hall and another (1993) 29 NSWLR 680 Williams and others v Spautz (1991) 174 CLR 509 Williams v The Queen (1986) 161 CLR 278 WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd) (2001) 111 IR 362 HEARING DATES: 11, 12 and 13 July 2007 DATE OF JUDGMENT: 3 August 2007 PROSECUTOR: Mr B Docking of counsel Solicitor: Ms A McRobert W. G. McNally Jones Staff LEGAL REPRESENTATIVES: DEFENDANT: Mr P Skinner of counsel Solicitor: Ms M Kelly Crown Solicitors Office JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J Friday 3 August 2007 Matter No IRC 2387 of 2006 JOHN CAHILL v STATE OF NEW SOUTH WALES (DEPARTMENT OF COMMUNITY SERVICES) (NO 2) Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 187 1 John Joseph Cahill, General Secretary of the Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("PSA"), has sought to bring a prosecution under s 8(1) of the Occupational Health and Safety Act 2000 ('the Act') against the Crown in the Right of the State of New South Wales in its capacity as the Department of Community Services ("DOCS" or "the defendant"). The prosecution stems from an incident that occurred on 24 May 2004 at the defendant's premises at Ballina, when it was alleged that employees of the defendant were exposed to risks to their health and safety as a consequence of the conduct of a client of the defendant who threatened staff with a knife. One of the employees was alleged to have been stabbed in the incident and another to have suffered psychological injuries. 2 The defendant has moved the Court to dismiss the proceedings or, in the alternative, to permanently stay the proceedings. The grounds and reasons in support of the motion were that: 1. As at 23 May 2006 when these proceedings were initiated the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged. 2. The inescapable inference from the objective facts as to the state of the prosecution brief as at 23 May 2006 and all the circumstances surrounding institution of these proceedings is that they were commenced on that day for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006. 3. The process of this Honourable Court was thereby employed for a purpose other than the attainment of the claim in the action. This was an abuse of the process of this Honourable Court. 3 Against the prosecutor's objection, the defendant sought to amend its notice of motion by inserting a fourth ground, namely: 4. The prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings. 4 In Cahill v State of New South Wales (Department of Community Services) (2007) 101 IR 124 the Court held it was in the interests of justice to provide the defendant with the opportunity to make a case based on the alleged invalid delegation. Accordingly, leave was granted to the defendant to amend its notice of motion to include the fourth ground. 5 It now falls to the Court to decide whether there has been an abuse of process as alleged by the defendant and/or whether the prosecutor invalidly delegated his authority to decide to institute the proceedings against the defendant. EVIDENCE REGARDING COMMENCEMENT OF PROCEEDINGS 6 As already mentioned, Mr Cahill is the General Secretary of the PSA and that is not disputed. Pursuant to s 106(1)(d) of the Act, as the secretary of an industrial organisation, Mr Cahill is authorised to institute proceedings for an offence under the Act where any member or members of the PSA are concerned in the matter to which the proceedings relate. Proceedings are instituted by way of an application for order pursuant to s 246(1) of the Criminal Procedure Act 1986 as applied by s 168 of the Industrial Relations Act 1996. In his application for order filed on 23 May 2006 (together with a verifying affidavit) Mr Cahill alleged that: On 24 May 2004, at the Ballina Community Services Centre in New South Wales, the State of New South Wales (Department of Community Services) whose address is 4-6 Cavill Avenue Ashfield 2131 Sydney, New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular, Gwen Balchin, Robin Kelly, Natjsia Lapic, Lynn Meehan-Frost, Kylie Philps, Theresa Pisanos, Rhonda Sherrington, Linda Williams and Raymond Hendrikas Wilton in that the defendant did not ensure systems of work and the working environment of the employees were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000 The further particulars of the charge are: a) From time to time clients attended the place of work of the Department of Community Services ("DOCS") for the purpose of being interviewed by DOCS employees. b) There was an actual risk of a DOCS employee suffering trauma, namely, a psychic or physical phenomena, or both, which may occur when an employee is exposed to a violent event involving a client that threatens danger or anxiety, or both, and can be created by being the victim or a witness to an event or restraining any client. c) Aspects of the defendant's unsafe systems of work were any of the following: (i) Failing to prevent the client, Ms Cheryl Cooper ("the client") from attending the place of work for an interview. (ii) Failing to undertake an adequate risk assessment of the client that had a focus on the safety of the employees at the place of work, assessed the risk and assessed what preventative or control measures needed to be in place to prevent or reduce an incident arising or escalating to a more serious stage. (iii) Failing to undertake a Protection Planning Meeting in respect of the client. (iv) Failing to ensure that there were a security guard(s) or police officers(s) present or then attended at the place of work whenever the client attended the place of work. (v) Failing to provide an alert in respect of the client or to warn employees that the client was to attend the place of work, or both. (vi) Failing to have in place adequate interview facilities at the place of work. (vii) Failing to have in place an adequate emergency system. (d) Manifestations of the risk were the stab wounds to Ms Philps and the psychological injuries to Mr Wilton. 7 In his affidavit in support of the application for order Mr Cahill described in the following terms the incident that led to the application being made: I have been informed by Mr Wilson and the PSA's instructing solicitor and verily believe the following: At all material times the defendant: Was an employer; Employed Child Protection Caseworkers, Child Protection Casework Specialists, Managers Casework, Managers Client Services, Senior Customer Services Officers and Administration Officers; Operated the Ballina CSC. At all material times, the defendant employed Mr Wilton and Ms Sherrington at Ballina CSC. At all material times, clients attended the place of work of the Department of Community Services ("DOCS") for the purpose of being interviewed by DOCS employees. On 24 May 2004 Mr Wilton and Ms Sherrington were working at Ballina CSC when at approximately 1.30 pm, excited and raised voices could be heard from the direction of the interview room. At this time Ms Sherrington was walking to the printer, which was adjacent to the interview room. Ms Sherrington observed a client, Ms Cheryl Cooper attacking Ms Kylie Philps, a Child Protection Caseworker. Another Caseworker, Ms Linda Williams attempted to intervene. Ms Williams stumbled out of the interview room, followed quickly by Ms Philps. Ms Sherrington observed this occurring, and noticed a tuft of Ms Philps hair on the floor of the interview room. Ms Sherrington observed that Ms Philps was bleeding and was visibly distressed. Ms Williams was attempting to talk to Ms Cooper. Ms Sherrington then moved between Ms Philps and Ms Cooper. The acting Manager, Client Services at the Ballina CSC, Ms Gwen Balchin moved towards Ms Cooper, and grabbed hold of her wrists. At this time Mr Wilton walked out of his office and into the open plan office area at Ballina CSC, walking in the direction of the switchboard. Mr Wilton then observed Ms Philps, on her knees and elbows with both hands covering her face. Mr Wilton noticed droplets of blood coming from the left side of her face. At the same time Mr Wilton saw Ms Balchin, struggling with Ms Cooper. The struggle took place up against the main entrance door to the open plan office area. Ms Balchin and Ms Cooper were facing each other. Mr Wilton observed that Ms Balchin was holding Ms Cooper by the forearms in an apparent attempt to restrain her. Ms Cooper was holding a knife in her right hand. Mr Wilton heard several workers in the area encouraging Ms Cooper to drop the knife. The struggle ended with Ms Balchin being pushed backwards by Ms Cooper. This was also observed by Ms Sherrington. Around this time Ms Sherrington said words to the effect of: "I am taking Kylie out of this". Ms Sherrington then took Ms Philps through into the area office, which is located immediately next to the Ballina CSC. At this time Ms Philps was bleeding and sobbing. Ms Cooper then stared at Mr Wilton for a couple of seconds, and then started to walk towards him. As Ms Cooper advanced towards Mr Wilton she had the blade of the knife pointed towards him and was chanting incoherently. The only word that Mr Wilton could understand was " Satan ". Ms Cooper looked very angry and determined. Mr Wilton then picked up a beanbag that was sitting beside him on the floor and held it out in front of him to discourage Ms Cooper from attacking him, or anyone else in the room. Ms Cooper then slowly backed into interview room 2. Mr Wilton entered the room after her. When Mr Wilton entered interview room 2, Ms Cooper was standing on the other side of a table that partially divided the room. Ms Cooper then threw the knife at Mr Wilton. The knife made contact with Mr Wilton's left forearm and bounced into the bean bag that he had dropped at the entrance of interview room 2. The blade of the knife that Ms Cooper threw at Mr Wilton was approximately four inches, or about 10 cm long. Mr Wilton picked up the knife and threw it towards the switchboard desk to remove it. At the same time Ms Cooper backed into the foyer area and walked out the front door of the building. Mr Wilton then walked back into the office area. Once Mr Wilton was in the office area he told staff to call an ambulance. Mr Wilton then walked out of the office and stood on the front steps of the building. Ms Cooper was sitting in her car, which was parked outside the office. Mr Wilton watched Ms Cooper for about 5 minutes, as he was concerned she may attempt to re-renter the building, at that time two police officers approached Ms Cooper. One of the Police Officers then approached Mr Wilton, he pointed to Ms Cooper and said words to the effect of: "She has assaulted someone with a knife". The Police Officer then walked back over to Ms Cooper, and the two Police officers each grabbed one of her arms to arrest her. Some time later, Ms Philps was wheeled out of the building on a stretcher by ambulance officers. At that time Ms Philps had bandages on the left side of her face. Ms Cooper was subsequently charged with this incident and convicted and is currently still in gaol. As a result of a series of prior incidents and the incident on 24 May 2004, Mr Wilton was diagnosed with psychological injuries which manifested in both physical and psychological symptoms. Arising from his psychological injuries, Mr Wilton receives on going treatment in the form of weekly counselling sessions and taking daily anti-depressant medication. Mr Wilton lodged a workers compensation claim which was accepted. From May 2005 until February 2006 Mr Wilton was absent from work two days a week to aid in his recovery. In February 2006 this was reduced to one day per week. 8 It was further alleged by Mr Cahill in his supporting affidavit that: DOCS was required to carry out a risk assessment in accordance with its Risk Assessment Policy Guidelines and Procedures document No. 96/65 dated 17 May 1996, and did not do so in this case. DOCS were aware of the risk of trauma to its staff as outlined in its policy document, Procedures for the Management of Threats to Staff document No. 95/148 dated 29 December 1995. The definition of "trauma" in this document is as follows: "Is a psychic and physical phenomena which may occur when a person is exposed to an event that threatens danger and/or anxiety, and can be created by being the victim or witness to an event." DOCS were aware of the specific known risk of an assault as defined in its policy document entitled Departmental Policy on the Effective Management of Client Behaviour to Prevent Injury or Illness to Staff, document No. 92/136 dated 20 November 1992. The definition of "assault" in this document is as follows: " The unlawful physical attack of one person on other; or a threat to inflict hurt upon another person, where there appears to be the ability to carry out that threat. The types of "assault" covered by this document include: (i) all forms of physical assault; (ii) threat of assault, verbal or otherwise; (iii) sexual assault." Mr Wilton confirmed in an interview with Mr Wilson on 13 March 2006, and a subsequent meeting on 15 May 2006, that at the time of the incident on 24 May 2004: (a) The staff at Ballina CSC, including Mr Wilton and Ms Sherrington, were not informed or warned that Ms Cooper would be attending the Ballina CSC on 24 May 2004. (b) There was no written policy or procedure in place to prevent Ms Cooper from attending the Ballina CSC on that day. Prior to 24 May 2004 a work practice had developed at the Ballina CSC whereby potentially violent clients were interviewed in the interview room next to the administration area of the office. This was done so that in the event of an incident a member of the administration staff could contact the Police. Also prior to this incident potentially violent clients were occasionally interviewed at Ballina Police Station, or a security guard was engaged to protect the workers whilst the interview was taking place. (c) During May 2004, but prior to the incident on 24 May 2004, Ms Cooper made death threats against one of the staff members. On 19 May 2004 an email was circulated within the Ballina CSC informing staff that Ms Cooper posed a risk of aggressive and threatening behaviour towards staff. On 21 May 2004 it was reported that Ms Cooper was displaying bizarre behaviour whilst sitting in her car outside the Ballina CSC. On that day Ms Cooper deliberately drove her car into another car, outside the Ballina CSC. This incident occurred directly after Ms Cooper had left the office following an interview with members of the Child Protection Team. (d) There was no risk assessment conducted on Ms Cooper attending the Ballina CSC on that day. (e) There was no Protection Planning Meeting held in respect of Ms Cooper. (f) There was no security guard or police officers present at the Ballina CSC on that day. (g) The interview room, and interview facilities on that day were inadequate including but not limited to the fact that there was no observation window in the interview room. (h) There was no adequate emergency system in place including but not limited to there being no departmental policy about the use of duress alarms; or procedure for responding to a duress alarm once it had been activated, or emergency procedures in place in relation to violence by clients. 9 The application for order filed on 23 May 2006 came at the end of various happenings, if one can use a neutral term, which included investigations by officers of the PSA into the incident on 24 May 2004 and consultations between the PSA and its legal advisors. 10 The investigation of the incident was undertaken by Mr Greg Saunders, an Industrial Officer with the PSA responsible for occupational health and safety, Mr Boyd Kelner the Association's Regional Organiser and Mr Andrew Wilson an Industrial Officer with the PSA. Mr Saunders left the PSA in January 2006 and in the following month Mr Wilson took over the main responsibility for the investigation and liaising with the Association's lawyers. Mr Wilson stated in his affidavit that he understood that he would be required to give evidence as a prosecution witness, that he was prepared to do so and understood that requirement before 23 May 2006 when the charge was filed in the Court. 11 In June and July 2004, Mr Saunders interviewed a number of employees at the Ballina Community Services Centre ('CSC'). Those persons were: Rhonda Sherrington, Child Protection Casework Specialist; Teresa Pisanos, Child Protection Caseworker; Carol Garcia, Child Protection Casework Specialist out of home care program; Ray Wilton, Manager Casework; Val Britton, Child Protection Caseworker; Leanne Purdy, Customer Services Officer; Terry Mitchell-Smith, Disability Services Manager, BASS program; William Palmer, Child Protection Caseworker out of home care program; Malcolm Barratt, Senior Child Protection Caseworker; Lyn Meehan-Frost, Senior Customer Services Officer; Wayne Foye, DADHC Disability Worker; Susan Marsh, DADHC Community Worker. The interviews were all videotaped and later transcribed. 12 On 1 September 2004 Mr Saunders sent a memorandum to Mr Cahill headed "Report on Stabbing Incident at Ballina CSC". In his memorandum Mr Saunders described the incident and its aftermath based on discussions and interviews by Mr Saunders with staff at Ballina. Mr Saunders stated in his memorandum: Following the interviews I conducted with staff and other, I believe that both the Department and Management failed to protect the health and safety of their staff by not having policies and procedures in place to prevent this type of incident occurring. There was not an adequate risk assessment carried out by the Management, which would have highlighted the lead up events and in turn would have allowed Management a better opportunity to assess the dangers and take preventative action. RECOMMENDATION: That the PSA seek legal advice from Jones Staff and Co in relation to the possibility of successfully prosecuting the Department and Management of the Department of Community Services under the Occupational health and Safety Legislation. 13 It was Mr Cahill's evidence that Mr Steve Turner, Assistant General Secretary of the PSA, approved the request for legal advice on 2 September 2004. 14 On 25 July 2005 the General Secretary reported to the PSA's Executive on the Ballina incident. He advised that the Association was awaiting advice from its lawyers. It was recommended: That the report regarding the prosecution of DOCS under the OH&S Act be received and noted, and that any report to Central Council on this matter be held over pending advice from the Association's legal advisors. 15 It appears that the Association's lawyers had sought further information regarding the Ballina incident and it was provided at some time during the second half of 2005. On 11 January 2006, Mr Nick Player, an organiser with the PSA who for a short time took on the responsibility for occupational health and safety, wrote to Mr Turner advising him that Ms Alison McRobert, a solicitor with Jones, Staff & Co (the Association's lawyers), had sought instructions to obtain an urgent opinion from counsel regarding a prosecution. Mr Player noted in his memorandum to Mr Turner: The urgency in this matter relates to the final possible date for prosecution being 24 May 2006. 16 The memorandum had the following notation on it in handwriting: The opinion required is should the application go ahead and if so would the result be a win for the Association. Ayshe Lewis, who was acting in the position of Assistant General Secretary at the time, approved Mr Player's request. 17 On or about 29 January 2006, the Association received written legal advice on the question of prosecution. That advice had initially been the subject of a claim for legal professional privilege but in the earlier interlocutory judgment the Court held the privilege had been waived. Counsel had advised that his "preliminary view" was that: [T]here is likely to be a reasonable prospect of convicting the defendant for failing to ensure that systems of work and the working environment of the employees were safer and without risks to health in contravention of s 8(1) of the Occupational Health and Safety Act 2000. 18 Counsel suggested a conference with PSA officers investigating the matter and recommended what the investigation would need to include. Counsel noted concerns about: [R]epresentations made during previous PSA interviews - see, for example, the interview was confidential and the tape would be destroyed. Counsel advised those representations were incorrect and that the prosecution had a duty to disclose all relevant material. 19 Between February and May 2006, Mr Wilson gave Mr Cahill brief updates on how the investigation was progressing. Mr Wilson said he informed Mr Cahill that he: · had meetings with the Associations' lawyers and Mr Docking of Counsel; · had obtained good advice from Brendan Docking and our lawyers; · was collecting information for the prosecution; and · was obtaining witness statements from Ballina DOCS workers for use in the prosecution proceedings. 20 On 7 March 2006, a conference took place at the offices of Jones Staff & Co to discuss the prosecution. This meeting was attended in person by counsel, Ms McRobert and Mr Wilson, with Mr Ray Wilton and Dr Pam Veivers calling in on teleconference. Dr Veivers took over Mr Saunders' role at the PSA when he left. Mr Wilson stated that he understood one of the purposes of the teleconference was to confirm that Mr Wilton would have to give evidence in any prosecution and that he was willing to do so and clarifying what evidence Mr Wilton could give in relation to the defendant's acts or omissions that were by then the focus of the investigation. Mr Wilton subsequently faxed to Mr Wilson a copy of the statement given by Mr Wilton to NSW Police on 24 May 2004 regarding the incident. 21 Mr Wilson further stated that: I first interviewed Mr Wilton away from Ballina CSC for the purpose of taking a statement on 13 March 2006. I followed the procedure I described above. I used my office computer whilst in my office as opposed to my laptop computer that I used whilst in Ballina. Mr Wilton answered questions that I asked him. I then typed the statement as Mr Wilton provided the answers. During this process, I would show Mr Wilton what I had written and ask for his comments to ensure that the statement I was taking was a true and correct record. 22 Mr Wilton said in his evidence: In relation to the PSA's investigation, I agreed by no later than March 2006, to assist the PSA in that investigation and to give evidence as a prosecution witness. My agreement to be a prosecution witness has continued since that time. 23 On 14 March 2006 Mr Wilson sent to Mr Cahill a memorandum with a copy to Ayshe Lewis, Principal Industrial Officer. The memorandum was in the following terms: Memorandum To: John Cahill, General Secretary From: Andrew Wilson, A/Senior Industrial Officer Health and Welfare CC: Ayshe Lewis, Principal Industrial Officer Level 6 RE: OH&S Prosecution of DOCS due to Ballina Stabbing Incident Issue: Approval to brief Jones Staff and Co and counsel to prosecute the Department of Community Services under the Occupational Health and Safety Act 2000 over the stabbing incident at the Ballina Community Services Centre on 24 May 2004. Background: 1. On 24 May 2004 there was a serious incident in the Ballina Community Services Centre whereby a DOCS Caseworker was stabbed and another two staff were attacked by a knife-wielding client. 2. There has been concern over the Association's ability to prosecute the matter from day one due to the stabbing victim not being a PSA member. However the other staff members attacked are PSA members. The incident also threatened a number of other PSA members. 3. The incident initially was investigated by Greg Saunders. This investigation was inadequate as evidence by repeated requests for additional information from Jones Staff and Co. on the file. 4. I have responded to the requests for specific information from Jones Staff and Co. and Brendan Docking of counsel. The resultant advice is that the PSA has a reasonable prospect of success in an OH&S prosecution against DOCS. Please refer to the advice attached. 5. I have commenced preparing materials for an OH&S prosecution given that a prosecution must lodged by 23 May 2006. Recommendation: 1. That the General Secretary approve the prosecution of the Department of Community Services for failing to ensure a safe system of work at the Ballina CSC and for failing to ensure that the working environment of staff was safe and without risk as per section 81 of the Occupational Health and Safety Act 2000. 2. That the General Secretary approve the briefing of Jones Staff and Co and counsel for the purpose of pursuing this prosecution. Should you require any further information please contact me on Ext: 269. In Unity Andrew Wilson 14 March 2006 24 Beneath the typed text of the memorandum and in the middle of the page appeared the handwritten word "OK" alongside a signature, which was indecipherable but which according to an affidavit of Mr Wilson sworn on 17 November 2006 was the "OK of the General Secretary". On the right hand side of the bottom of the memorandum there was also the words "Rec" and "OK" written by hand over the signature of "A Lewis" and dated "14.3.06". On 6 July 2007, Mr Wilson swore a further affidavit in which he deposed as follows: I refer to paragraph 18 and 19 of my First Affidavit. At the time I made this affidavit I was under the (mistaken) understanding that John Cahill had signed the memorandum from me dated 14 March 2006 (which is annexure AW2 to my First Affidavit). I am informed by the Prosecution's lawyer, Alison McRobert that the signature on annexure AW2 is not John Cahill's signature, but is the signature of Steve Turner, the Assistant General Secretary of the Association. … The reasons that I assumed that annexure (AW2) was signed by John Cahill were that: (a) The memorandum was addressed to John Cahill; (b) The way in which the memorandum was approved ie by writing the word "OK" next to the signature is the same way in which John Cahill usually approves memorandums; (c) Nothing on the document alerted me to the fact that it was not signed by John Cahill himself; (d) I assumed it was his signature and I was not told any differently by anyone; (e) If, for example Ayshe Lewis is acting as the General Secretary and signs a memorandum for legal assistance it is clear from her signature, that she has signed it; (f) I would expect that if Steve Turner signed a memorandum for approval of legal assistance it would be clear on the face of the document that he signed it, and not John Cahill; (g) It is my usual experience that when I have submitted an internal memorandum to the General Secretary for approval, and it is retuned to me, the approval on the memorandum looks like a scrawl therefore the signature on annexure AW2 was consistent with my usual experience. 25 As a consequence of the revelation that it was not Mr Cahill's initials on the memorandum of 14 March 2006, counsel for the prosecutor sought, and was granted, leave to strike out statements in Mr Wilson's affidavit of 17 November 2006 as follows: The factually correct position is that approximately 2 to 3 days after 14 March 2006, the General Secretary approved the prosecution of DOCS for failing to ensure a safe system of work at the Ballina CSC and for failing to ensure that the working environment of staff was safe and without risks to health as per section 8(1) of the OHS Act. The reason I know this is correct is that the General Secretary gave the OK to this recommendation that I personally made on 14 March 2006. Annexed and marked " AW2 " is a copy of my internal memorandum dated 14 March 2006 that contains the subsequent written OK of the General Secretary . 26 In his affidavit sworn on 5 July 2007, Mr Cahill deposed in relation to the 14 March memorandum that: Annexed hereto and marked " JC6 " is a copy of a Memorandum from Andrew Wilson to me dated 14 March 2006. I understand that there has been some mistaken confusion about who approved that Memorandum by way of signing the bottom of the page. Although it was addressed to me as the General Secretary, this Memorandum was approved by Steve Turner. The word "OK" is written by Steve Turner followed by his signature. I recall that either shortly before or shortly after I had a general discussion with Steve Turner about the matter in which he told me that the legal advice we had requested was now to hand and our lawyers were recommending that we go through with the prosecution and we should do it. The signing of Steve Turner of annexure JC6 is consistent with the delegation of my powers to him to sign Memorandums requesting legal advice for the efficient running of the Association, and as a sensible office procedure. By the latter I mean that it is not practical for me to sign each and every Memorandum that is addressed to the General Secretary. 27 Attached to the memorandum of 14 March 2006 was a copy of a letter dated 10 March 2006 to Mr Cahill from Ms McRobert at Jones Staff & Co, to the attention of Mr Wilson. In the letter, Ms McRobert advised that in counsel's view: [T]here is a reasonable prospect of convicting the Defendant for failing to ensure that systems of work and the working environment of the employees was safe without (sic) risk to health in contravention of Section 81 (sic) of the Occupational Health and Safety Act 2000. Please confirm if we are instructed to proceed with the matter including filing and serving summonses under the Occupational Health and Safety Act . We request and (sic) urgent response letter, as discussed the time limitation on this matter runs out on 23 May 2006 (emphasis by Ms McRobert). Counsel's advice of 29 January 2006, referred to earlier, was also attached to the memorandum. 28 On 30 March 2006, Mr Wilton twice sent to Mr Wilson by email copies of his statement, which had been drafted on 13 March 2006. The transmission of the statement followed a visit to Ballina on 29 and 30 March 2006 by Mr Wilson. As well as speaking further with Mr Wilton, Mr Wilson also spoke to a number of potential witnesses including Lynn Meehan-Frost, Kylie Philps, Teresa Pisanos, Carol Garcia and Rhonda Sherrington. Mr Wilson also spoke with other staff who had not witnessed the incident. Mr Wilson stated in his affidavit: Of those who I approached, Ray Wilton, Carol Garcia, Teresa Pisanos and Rhonda Sherrington all agreed to be interviewed and to provide a statement. I interviewed these staff over the course of those two days. I explained to every single person who I spoke to concerning my investigation that anyone agreeing to a statement could be called as prosecution witnesses and the information provided in the statement would be provided to DOCS and their legal representatives. To refresh their memories I provided them with copies of the interviews that they had with Mr Saunders. I did not show them copies of anyone else's interview or statement. With each witness I asked them a series of open-ended questions based on my previous examination of their interviews with Greg Saunders. As each witness answered my questions, the responses were typed directly into a word document on my laptop computer. Each statement was typed in statement form rather than question and answer form. All staff who I spoke to concerning the event, who had previously been interviewed by Mr Saunders, were informed by me that transcripts of these interviews would need to be provided to DOCS if the Association chose to prosecute. Only one witness, Ray Wilton, was interviewed away from Ballina CSC. This occurred in my office on 13 March 2006. 29 On 28 April 2006, Mr Wilson sent to Ms McRobert an email to which was attached Mr Wilton's unsigned draft statement. Mr Wilson indicated in the email he would forward the attachments to the draft statement by the following Monday. Mr Wilson stated in his evidence these attachments were provided no later than 2 May 2006. The attachments included: a sketch of the layout of the Ballina office; the email from Ms Christopher to staff on 19 May 2004 warning them about Ms Cooper; various medical certificates provided by Mr Wilton relating to his psychological injuries received as a consequence of the incident on 24 May 2004; correspondence relating to Mr Wilton's compensation claim; and, a memorandum dated 21 July 2004 from the Regional Director of DOCS to managers regarding interim procedures for dealing with aggressive and/or violent clients together with relevant materials, eg., safety checklists. Mr Wilton's final statement was signed on 6 July 2006. 30 Ms Pisanos also made a statement, a draft of which was sent to her on 10 May 2006 when Mr Wilson asked her to review it and call him. Whether Ms Pisanos did call Mr Wilson is not known but her final statement was signed on 6 July 2006. Ms Garcia provided a statement that was formatted by Mr Wilson and set to Ms Garcia on 5 May 2006. Ms Garcia replied by email on the same day stating, "Yes, that looks fine". Ms Garcia's final statement was signed on 6 July 2006. Ms Sherrington also provided a statement that appears to have been settled by Mr Wilson on 15 or 18 May 2006. Ms Sherrington signed it on 7 July 2006. Ms Philps and Ms Meehan-Frost declined to make statements. Ms Williams indicated she would consider making a statement, but did not. In relation to Ms Balchin and Ms Christopher, Mr Wilson said he attempted to contact them for the purpose of obtaining a statement but was not successful. 31 In addition to the statements obtained by Mr Wilson, he also obtained, prior to 23 May 2006, various business records of the defendant pursuant to requests under s 81(c) and (d) of the Occupational Health and Safety Act. These relevantly included the following: (1) Incident reports made out by: · Linda Williams, a Child Protection Caseworker. On 20 May 2004 Ms Williams reported an incident involving a client of DOCS, Cheryl Cooper, using her car to ram other cars of community workers and then driving off. On 24 May 2004 Ms Williams, who was interviewing Ms Cooper at the Ballina CSC with Kylie Philps, described the attack on Ms Philps by Ms Cooper, noting that Ms Cooper had a knife in her hand and was hitting Ms Philps on the back. · Carol Garcia, who made a report on 18 May 2004 that at the Ballina Hospital she had been informed by Ms Williams and Ms Philps that Ms Cooper had said "I will kill her if I see her in the street. I'll come down to DOCS and sort her out." Under the heading "Preventative Action" Ms Glenda Christopher, the person to whom Ms Garcia made the report, wrote "Alert all staff, notify police, regional director, MCS. Be alert when coming and going from work." · Ms Kylie Philps, a Child Protection Caseworker who was allegedly the main victim of Ms Cooper's attack. Ms Philps described how she was struck in the face by Ms Cooper and stabbed three times in the back. · Ms Gwen Balchin, Acting Manager Client Services, who described how she confronted Ms Cooper after the attack on Ms Philps and how she was punched and had her hair pulled by Ms Cooper whilst Ms Cooper still held the knife. · Ms Rhonda Sherrington who stated that she and other workers had been threatened with a knife. (2) Copies of emails from Ms Christopher to staff and to Ms Balchin dated 19 May 2004 and described as of "high" importance. The emails referred to the incident at the Hospital when Ms Cooper made threats. Ms Christopher advised in the email that Ms Cooper was "very aggressive and threatening." (3) A copy of an Incident Investigation Report into the incident prepared for the defendant by Mr David Troughton of Work Risk Solutions. Mr Troughton investigated the incident and interviewed 15 of the staff, including 8 who had been directly involved in the incident. He summarised his findings regarding the incident and how it occurred. Mr Troughton made a number of recommendations to prevent a re-occurrence of the incident. (4) A copy of DOCS' Occupational Health and Safety Policy issued on 26 September 2003. (5) A copy of DOCS' "Policy on the Effective management of Client Behaviour to prevent Injury or Illness to Staff", dated November 1992. (6) A copy of DOCS' "Risk Assessment and Control Policy, Guidelines and Procedures", dated May 1996. (7) A copy of DOCS' "Procedures for the Management of Threats to Staff", dated November 1995. (8) A copy of DOCS' "Occupational Health and Safety Strategy Plan 2004-7". (9) A copy of DOCS' "Occupational Health and Safety (OHS) Risk Management Policy" and "OHS Risk Management Procedures" issued August 2004. (10) Various documents primarily relating to DOCS' assessment of Ms Cheryl Cooper and the care of her children. 32 A number of what were claimed to be business records obtained by Mr Wilson were duplicated as attachments to Mr Wilton's statement. In addition, Mr Wilton provided other alleged business records of the defendant, which included the following: (1) A series of overhead slides entitled " OHS Awareness for Managers and Supervisors" apparently presented at a training session conducted at Ballina in September 2004. (2) A "Business Unit Site Manual for Ballina CSC" containing information on Security and Emergency Procedures, updated on 6 February 2006. (3) A report by Denis Myers, Regional Director, Northern on "Critical Incident - Ballina" dated 26 May 2004. (4) A copy of an "Annual Hazard Identification" form. (5) A copy of "OHS Awareness for Managers & Supervisors" evaluation form. 33 On 18 May 2006, a further conference took place. This meeting was attended in Sydney by counsel and Ms McRobert, with Mr Wilton and Mr Wilson calling in on teleconference from Ballina. It is apparent from notes made at that conference that there was a discussion about the evidence to be presented and by whom and amendments were made to counsel's initial assessment on 29 January 2006 of what might be the appropriate framing of the particulars of the charge. 34 As to the signing of the application for order and supporting affidavit, Mr Cahill deposed that he signed the application and swore the affidavit on 23 May 2006 as evidenced by his signature that appears on the seventh page of the seven pages of the affidavit. He stated that the making of his affidavit was witnessed by the Association's instructing solicitor, Alison McRobert. He also deposed as follows: I do not now recall the exact content or any specifics of my conversation with Alison McRobert on 23 May 2006 when I signed the Application for Order and swore my Affidavit. My lack of recollection is due to I did not make any notes of the conversation, the passage of time, as well as the many and diverse matters that since that date I have had to deal with as the Association's General Secretary. I do recall these general matters as follows: (a) Alison McRobert attended my office with an unsigned Application for Order and an unsworn affidavit for my review. (b) I was informed and believed that the allegations as to fact and breaches of the OHS Act 2000 had been prepared with the assistance of Industrial Officer Andrew Wilson, the Association's instructing solicitor Alison McRobert and Brendan Docking of Counsel. (c) Alison McRobert provided me with a copy of an unsigned Application for Order and an unsworn affidavit. (d) Alison McRobert outlined the contents of the unsigned Application for Order and unsworn affidavit. (e) I read the unsigned Application for Order and unsworn affidavit. (f) Alison McRobert was available to answer any questions if I did not understand anything or clarification was required (although I cannot now recall if I did ask any questions). (g) After I satisfied myself by way of Alison McRobert's outline and reading their contents that they were appropriate, I signed the Application for Order and swore my Affidavit with the assistance of Alison McRobert. 35 Mr Cahill stated that it was he who made the decision to prosecute. He said without that decision there would have been no prosecution instituted. In his affidavit sworn on 5 July 2007, upon which he was cross examined, Mr Cahill stated: By 23 May 2006 I had instituted two previous OH&S prosecutions and I was familiar with the usual process, which was that the Association's lawyers would provide me with an Application for Order and a detailed Affidavit for the purposes of initiating the proceedings. I was and remain well aware that it is only the General Secretary of the Association who can initiate proceedings under the OH&S Act 2 000. At no time since I have occupied the position of General Secretary have I delegated that power to institute proceedings to anyone else. CASE FOR THE DEFENDANT 36 The defendant's case was that the initiation of the prosecution against it was an abuse of process because as at 23 May 2006 the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged. The inescapable inference, it was contended, was that the proceedings were commenced for the purpose of avoiding the effect of subsection 107(1) of the Act, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006. Further, that the prosecutor did not make the decision to institute proceedings and invalidly delegated his authority in that respect. 37 The main points made in the defendant's case by its counsel, Mr P Skinner, may be summarised as follows: · The only signed statement of any prospective witness in the possession of the prosecution as at 23 May 2006 was a statement by Mr Wilton given to police on 24 May 2004. Mr Wilton did not, however, witness the alleged assault on Ms Philps and was only in a position to describe the aftermath. · The prosecution did not possess any statements from members of the staff (Ms Balchin, Ms Williams and Ms Philps) who witnessed the alleged assault. · The statements provided by Mr Wilton, Ms Sherrington, Ms Pisanos and Ms Garcia were not signed as at 23 May 2006 and, moreover, none of these persons would appear to have been placed a risk on 24 May 2004. · The interview transcripts attached to the statement of Mr Wilson were not admissible. Whilst s 87 of the Evidence Act 1995 provides for an exception to the hearsay rule, s 82 limits the admission exception to the hearsay rule to first-hand evidence of the admission. Mr Wilson did not conduct the interviews, Mr Saunders did but he did not provide a statement to the prosecution. If the transcripts of interview were to be relied upon by the prosecutor as admissions the interviewees had to be called: WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 370. · Whilst the interviews were videotaped the prosecution was not able to locate the tapes until late 2006. · The duties and responsibilities imposed on Mr Cahill, expressly and by implication under the Act, were akin to the duties and responsibilities imposed on a public prosecutor as set out in the "Prosecution Policy of the Commonwealth – Guidelines for the making of decisions in the prosecution process", "Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales" and "Compliance Policy and Prosecution Guidelines" of the WorkCover Authority of NSW. · Specifically, the NSW DPP guidelines provide: The question whether or not the public interest requires that a matter be prosecuted is resolved by determining: (1) whether or not the admissible evidence available is capable of establishing each element of the offence; (2) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not (3) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest. · Not only was there no prima facie case in law, but even if there were, there was "no reasonable prospect of conviction" until the prosecution had signed statements, thus being able to hold their witnesses to their proofs, and that any rational prosecutor operating in accordance with accepted guidelines would have waited till they had those signed statements before initiating the prosecution. The prosecutor was not able to wait for signed statements because he had run out of time; if there had been no time limit the proceedings would not have been instituted until the prosecution had in its possession signed statements. · Instituting the prosecution where there is no reasonable prospect of a conviction because the prosecution lacked not only admissible evidence but also compellable witnesses in circumstances, is an abuse of process. · The question of whether criminal proceedings should be permanently stayed was to be determined by a weighing process: Phillip John Rapson & Anor v William Edwin Wright & Ors (Supreme Court of New South Wales, Matter No 13988 of 1995, 29 May 1998, Hamilton J at 27) referring to Walton v Gardiner (1992) 177 CLR 378 at 395-6 per Mason CJ, Deane and Dawson JJ. The weight of the evidence indicated that the prosecutor was forced to institute proceedings on 23 May 2006 because time had run out and proceedings were not instituted for the reason that the prosecutor was satisfied there existed at the time a prima facie case and reasonable prospects of a conviction. · Mr Cahill did not make a decision to institute the prosecution. It was a collective decision or a decision by Mr Turner on 14 March 2006 in response to a request from Mr Wilson. Both Mr Wilson and the prosecutor's lawyers initially understood the "OK" on the memorandum to be that of Mr Cahill and proceeded on the basis that he had thereby made a decision to prosecute. It was only when Mr Wilson learned that he had been mistaken that reliance was no longer placed on the "OK" but no credible alternative basis for contending Mr Cahill made the relevant decision was put forward. The signing of the application for order was not a manifestation of a decision to institute proceedings. · It would be unfair to put the defendant on trial in the absence of a prima facie case against it: Barton and others v The Queen and others (1980) 147 CLR 75. · Whitten v Hall and another (1993) 29 NSWLR 680 is on point. There it was held that it was an abuse of process to lay an information before a decision to prosecute was made and to delay the issue of the summons to allow further information to be collected. CASE FOR THE PROSECUTOR 38 The main points made by Mr B Docking of counsel for the prosecutor in relation to ground 1 (to be read in conjunction with ground 3) of the defendant's motion were as follows: · A summary of the factors to be considered in determining the present application is to be found in Philip Giovannone (2001) 119 A Crim R 519 at [18]-[19]. In particular that fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed; the grant of a stay of proceedings is discretionary, and the circumstances will usually have to be extreme for such relief to be given; the onus lies on the applicant for a stay to demonstrate that the disadvantage or prejudice which he would suffer by the refusal of a stay is in the relevant sense unacceptable, to the extent that the trial would be unfair; a likelihood that the prosecution will fail is not the same thing as saying that it is doomed to failure. · There are four factors and considerations that the Court should weigh in determining the alleged abuse of process: (i) there is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised (Ridgeway v The Queen (1995) 184 CLR 19 at 32, 75); (ii) interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done: Jago v The District Court of NSW and others (1989) 108 CLR 23 at 49-50 per Brennan J; (iii) the defendant, as the applicant for a stay, is unable to demonstrate any relevant disadvantage or prejudice which it would suffer by the refusal of a stay (Philip Giovannone at [18]); (iv) the Court should not become involved in reviewing the commencement of the prosecution or the performance of the prosecution. · A consideration of the factors referred to in the previous dot point tips the balance in these proceedings against granting a stay. · In order for the defendant to discharge its onus it must convince the Court of the following: a. The prosecution is vexatious and oppressive for the reason that it lacks any proper foundation or enjoys no prospect of success (see, for example, Williams v Spautz per Deane J at 541, 547 and 550). b. A permanent stay may be based upon the conclusion that the proceedings will necessarily fail ( DPP v Shirvanian at 184 referring to Ridgeway (1995) 184 CLR 19 at 41, 42). c. Proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail ( Walton v Gardiner at 392 – 393, 410, 411). · The defendant is unable to discharge these onuses. What may constitute a proper foundation for a prosecution can be distilled from Williams v The Queen (1986) 161 CLR 278 at 300: In the ordinary case of an arrest on suspicion, the arresting officer must have satisfied himself at the time of the arrest that there are reasonable grounds for suspecting the guilt of the person arrested ( Dumbell v. Roberts [1944] 1 All ER 326, at p 329), although the grounds of suspicion need not consist of admissible evidence (see Hussein v. Chong Fook Kam [1970] AC 942, at pp 948-949). If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution (see Mitchell v. John Heine & Son Ltd (1938) 38 SR (NSW) 466, at 469; Commonwealth Life Assurance Society Ltd. v. Brain (1935) 53 CLR 343, at 382; Glinski v. McIver [1962] AC 726, at 766-767). · Alternatively, even adopting the test posited in ground 1 of the defendant's motion, the prosecution as at 23 May 2006 possessed or commanded sufficient admissible evidence capable of establishing each element of the offence as charged. · The defendant argues, "the material in the prosecution's brief cannot support to prima facie level the allegations the elements of the offence as charged". Relevantly on "to prima facie level", Doney v The Queen (1990) 171 CLR 207 at 214 said: It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. · As at 23 May 2006, the prosecution possessed and commanded much more than tenuous or inherently weak or vague evidence (although this level suffices under the defendant's test). · In the case of corporations, their books and documents constitute the best evidence of their business activities and transactions: Environmental Protection Authority v Caltex Refining Co. Pty. Limited (1992) 178 CLR 477 at 504 per Mason CJ and Toohey J. The prosecutor had extensive business records relevant to the prosecution in its possession prior to 23 May 2006. These included the signed incident reports from employees present at the time of the alleged incident and who were eyewitnesses. · Mr Wilton had indicated prior to 23 May 2006 his willingness to testify in the proceedings and to give an eyewitness account. · The prosecution had in its possession, prior to 23 May 2006, videotapes of interviews with 14 employees, transcriptions of those interviews as well as the statements taken by Mr Wilson from a number of those employees who were eyewitnesses. It is wrong to suggest in those circumstances that there was not sufficient admissible evidence available from compellable witnesses. · In respect of employees relevant to the prosecution case who were interviewed on videotape but did not make statements, it is open for counsel to summons those witnesses to give evidence. · There is no duty on the prosecutor to call the assailant, Ms Cooper: Regina v Cameron John Knight (New South Wales Court of Criminal Appeal, Matter No 060462 of 1988, 18 December 1990, unreported, Wood J at 42). · The defendant's contention that the statements made by employees regarding the incident were not admissible under s 87 of the Evidence Act was properly a matter for the trial judge to determine. However, Inspector Wade v Mid North Coast Area Health Service [2004] NSWIRComm 254 is authority for the proposition that s 87 requires a court to admit a representation if it is reasonably open to find that the person was an employee of the party and the representation related to a matter within the scope of the person's employment or authority. Mr Wilton was the defendant's Manager Casework at Ballina. Mr Wilton provided a statement as to what he witnessed on 24 May 2004 in his capacity as manager. Further, Mr Wilson took statements from employees who witnessed the incident on 24 May 2004. Their representations related to matters within the scope of their employment. Mr Wilson's representations were first hand hearsay and not excluded by s 82 of the Evidence Act. See also WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 at [13]-[16] and s 60 of the Evidence Act. · Admissions in the context of s 81 and s 87 need not be written statements: Australian Competition & Consumer Commission v Mayo International Pty Ltd & Ors [1998] FCA 808. 39 Mr Docking then proceeded to identify each of the elements of the alleged offence and the evidence that was said to support each of the elements. He then addressed grounds 2 (to be read in conjunction with ground 3) and 4 of the motion, they being, it will be recalled, that: 2. The inescapable inference from the objective facts as to the state of the prosecution brief as at 23 May 2006 and all the circumstances surrounding institution of these proceedings is that they were commenced on that day for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006. 3. The process of this Honourable Court was thereby employed for a purpose other than the attainment of the claim in the action. This was an abuse of the process of this Honourable Court. 4. The prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings. 40 Mr Docking submitted that the defendant's motion was wholly misconceived because it misunderstood what Whitten v Hall stood for, namely, that it was an abuse of process to lay an information before a decision was made to prosecute and to delay the issue of the summons to allow further information to be collected: DPP v Shirvanian and another (1998) 102 A Crim R 180 at 188; Jago at 58, 332-333. Mr Docking contended Whitten v Hall was distinguishable. 41 Counsel submitted the Court should follow Metaxas v Ferguson (1991) 4 WAR 272 where White AJ held, inter alia, there was no abuse of process as the appellant had decided to proceed with the complaints by the date he swore to them and the fact that the appellant was prepared to entertain submissions as to a possible reason for not proceeding should not have been held to negative that decision. 42 Mr Docking submitted that there was no abuse of process because the evidence in the present proceedings was that Mr Cahill did not delegate the decision to institute proceedings against the defendant and that it was Mr Cahill who made that decision, a fact that he confirmed in cross-examination. Counsel submitted there was no evidence from another witness contradicting the evidence of Mr Cahill. 43 Further, it was submitted, the fact that Mr Wilson met with representatives of the defendant after the application for order had been filed in order for them to explain their position, should not be taken as an indication that no final decision had been taken to prosecute: see Metaxas. 44 Reference was made to WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd) (2001) 111 IR 362. It was submitted that Mr Cahill was in a much stronger position to make a verifying affidavit than Inspector Stewart in Siemens Dematic, yet Haylen J in that case held at [74]-[75] that proceedings were validly instituted. 45 Mr Docking referred to what he understood to be a submission by the defendant that in determining whether a prima facie case existed, the Court should examine the prosecution brief. Mr Docking contended this was wrong, there being Court of Appeal authority for the proposition that it is not open to the Court to even consider a verifying affidavit to determine whether a prima facie case exists: McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127; John Holland Group Pty Ltd v Industrial Relations Court of NSW (2006) 153 IR 97. 46 It was submitted for the prosecutor that defects in an investigation prior to the laying of a criminal charge did not constitute an abuse of process: Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128 at [43]-[48]. 47 As to the defendant's contention that the statements made by employees should have been signed prior to 23 May 2006, Mr Docking submitted there was no requirement for statements to be signed for them to be admissible where the maker of the statement has acknowledged or adopted the document as such: see Kelly v The Queen (2004) 218 CLR 216; Driscoll v The Queen (1977) 137 CLR 517 at 540-541 per Gibbs J. The statement makers in the present proceedings each acknowledged their statement was true and correct to the best of their knowledge and belief. CONSIDERATION Exercise of power to stay proceedings where there is an abuse of process 48 There was no contention that this Court lacked power to permanently stay proceedings as an abuse of process. I, therefore, intend to proceed on the basis that such power exists. 49 The power to stay proceedings as an abuse of process may be exercised where the Court is satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness: Walton v Gardiner at 392. It is not correct that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing: Walton v Gardiner at 395. Abuse of process covers a multitude of ills: DPP v Shirvanian at 184. 50 The question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in conviction of those guilty of crime, and of the need to maintain public confidence in the administration of justice: Walton v Gardiner at 396. 51 A stay, however, will only be granted in the most exceptional circumstances: Jago per Mason CJ at 31, 34. His Honour stated at 34: To justify a permanent stay of criminal proceedings, 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, per Wilson J. 52 Further, in considering whether to exercise the discretion to stay the proceeding, the court has regard not only to the interests of the accused but also to the community's right to expect that persons charged with criminal offences are brought to trial: Jago per Mason CJ at 33. 53 There is High Court authority for the proposition that a decision to prosecute is not susceptible to judicial review. In Maxwell v The Queen (1996) 184 CLR 501 Gaudron and Gummow JJ stated at 534 that: It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute [ Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46; Barton v The Queen at 94-95, 110] to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process — particularly, its independence and impartiality and the public perception thereof — would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what. 54 In Barton v The Queen, Gibbs ACJ and Mason J said at 96: The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial. 55 However, it is apparent that a court always retains power to prevent abuse of its process including its criminal process: Maxwell v The Queen at 535, Barton v The Queen at 95-96, 104, 107 109, 116; Jago at 25, 56, 74-75. 56 In Barton v The Queen, Gibbs ACJ and Mason J stated at 96: There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place. As a result of the speeches in Connelly v. Director of Public Prosecutions [1964] AC 1254 and Director of Public Prosecutions v. Humphrys [1977] AC 1, it is now established in the United Kingdom that although a judge has no power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought, the courts have a general power to prevent unfairness to the accused, even to the extent of preventing an abuse of process resulting from the prosecution of proceedings brought without reasonable grounds. 57 In Maxwell, Dawson and McHugh JJ stated at 512: Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial: see Barton v The Queen (1980) 147 CLR 75 at 90-91, 96. 58 In McConnell Dowell Constructors one of the questions concerned "Is the Director General's Consent Reviewable?" It was said: [24] As Gibbs ACJ and Mason J said in Barton v The Queen (1980) 147 CLR 75 at 94-95: It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced … though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. [25] The significance of the distinction between decisions involved in a prosecution process and issues concerned with the abuse of a court's process has been emphasised by Gaudron , Gummow and Hayne JJ in Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 579, where their Honours said at [21]: The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court's processes (which are the province of the courts) is of fundamental importance. [26] Their Honours went on to quote an extract from the judgment of Gummow and Gaudron JJ in Maxwell v The Queen (1996) 184 CLR 501 at 534 where their Honours identified a number of "decisions involved in the prosecution process" which their Honours concluded were "of their nature insusceptible of judicial review". It may well be that decisions relating to consent to prosecute pursuant to a statutory requirement of such consent, should be added to their Honours' list. It is not necessary or desirable to determine that in this case. [27] However, nothing in the reasoning in Maxwell or DPP (SA) v B restricts the scope of considerations relevant to the exercise by the Court of a power to control abuse of its process. It may be that, in an appropriate case, a defect in the process of seeking consent could be relevant to the exercise of such a jurisdiction by a court. However, nothing in the submissions in this Court suggests any defect of a character relevant to abuse in this case. 59 In Rockdale Beef the claimant sought the intervention of the Court of Appeal in connection with allegations that there had been a defective process of investigation before the laying of the charge, thereby giving rise to an alleged abuse of process. Spigelman CJ at [46] observed that no authority was referred to that suggested that the Court's inherent jurisdiction to protect the administration of criminal justice could extend to the conduct of the investigations by executive agencies. His Honour considered the claimant's case was misconceived. However, his Honour's observations need to be considered in the light of the claimant's failure to make out a case based on existing authority, and they should not to be taken, in my opinion, as authority for the proposition that the Court does not have an inherent power to consider whether a defective process of investigation before the laying of the charge, gives rise to an abuse of process. As the Court of Appeal observed in McDonnell Dowell Constructors, nothing in the reasoning in Maxwell or DPP (SA) v B restricted the scope of considerations relevant to the exercise by the Court of a power to control abuse of its processes and that in an appropriate case a defect in the process of seeking consent to prosecute could be relevant to the exercise of such a jurisdiction by a court. In the present proceedings, it is contended by the defendant that, in effect, the process (which included investigations) culminating in the filing of the application for order was defective in that it did not provide the prosecutor with sufficient admissible evidence capable of establishing each element of the offence as charged. 60 This review of the authorities leads me to adopt the following four propositions as the basis upon which to proceed in relation to grounds 1 and 3 of the defendant's notice of motion: (1) The power to stay proceedings as an abuse of process may be exercised where the Court is satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness. (2) The question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in conviction of those guilty of crime, and of the need to maintain public confidence in the administration of justice. (3) To justify a permanent stay of criminal proceedings, 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'; the grant of a stay of proceedings is discretionary, and the circumstances will usually have to be extreme for such relief to be given. (4) The Court may consider whether, in the continuation or institution of criminal proceedings, there was an abuse of process. Obligations on the prosecutor 61 In contending that the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing all of the elements of the offence as charged at the time the prosecution was instituted, the defendant submitted that the prosecutor had breached prosecutorial ethics, practice and procedure. Reliance was placed on the prosecutorial guidelines applicable to the Commonwealth and New South Wales DPP and to WorkCover. 62 I would make the observation, firstly, that the guidelines relating to the conduct of criminal prosecutions relied upon by the defendant do not apply, in terms, to the prosecutor in this case. However, I am of the view that Mr Cahill, as the secretary of an industrial organisation of employees with authority to prosecute under s 106(1)(d) of the Occupational Health and Safety Act, was acting in a role more akin to a public prosecutor rather than a private informant and, consequently, it would be expected that any proceedings would not be initiated by him unless the evidence supported a prima facie case and that he believed there was a reasonable prospect of conviction. The PSA is an organisation with a large membership throughout the New South Wales public sector. As the secretary of that union, Mr Cahill has an authority to prosecute unimpeded by any requirement to obtain prior written consent in relation to offences under a statute with important public policy objects - for example, "to secure and promote the health, safety and welfare of people at work": s 3(a). Mr Cahill would not, in most cases, have any personal interest in any breach and no personal knowledge of the persons involved or alleged events. He would necessarily have to rely on information provided to him and advice, including legal advice, before instituting proceedings. In instituting proceedings Mr Cahill would be performing an important public duty. 63 I would also make the observation that a breach, per se, of prosecutorial ethics, practice and procedure in instituting or conducting a criminal prosecution will not necessarily amount to an abuse of process. Whether or not a prosecutor acted in accordance with prosecutorial guidelines applicable to executive agencies would not be determinative of whether an abuse of process had occurred. 64 I think the reliance by the defendant on such guidelines that require a prosecutor to determine whether a prima facie case existed and whether there was a reasonable prospect of a conviction, is essentially irrelevant to the question of whether there was an abuse of process in this case. The obligations on Mr Cahill, or his duty in instituting a prosecution under the Occupational Health and Safety Act, might be centrally relevant in determining whether the prosecution was properly brought, but it could only be marginally relevant in determining whether the conduct of the prosecutor, in instituting the proceedings, was such that it involved unacceptable injustice or unfairness thereby leading to an abuse of the Court's process. First and third grounds of defendant's motion 65 Whilst it tended to be confused by the defendant's reliance on a prosecutor's duties under prosecutorial guidelines applicable to executive agencies, I have taken the first and third grounds of the defendant's notice of motion to be a contention that because the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged at the time the proceedings were instituted that, either the prosecution was vexatious and oppressive for the reason that it lacked any proper or reasonable foundation or enjoyed no prospect of success (Williams and others v Spautz (1991) 174 CLR 509 per Deane J at 547, 550; Barton v The Queen at 96 per Gibbs ACJ and Mason J), or the proceedings were foredoomed to fail (Walton v Gardiner at 393 per Mason CJ, Deane and Dawson JJ and 411 per Brennan J) because there was no evidence capable of convicting the defendant and that, consequently, the proceedings were an abuse of process. 66 In considering whether the prosecutor did or did not have in his possession or command, sufficient admissible evidence capable of establishing each element of the offence as charged at the time the proceedings were instituted, I should begin by broadly categorising what material the prosecutor did have. It consisted of the following: Signed statements · A statement signed by Mr Wilton on 24 May 2004 and provided to NSW Police. Mr Wilton did not see Ms Philps being stabbed but saw that she was bleeding. He saw Ms Balchin struggling with Ms Cooper and saw that Ms Cooper was holding a knife. Mr Wilton stated that he confronted Ms Cooper who threw a knife at him. Mr Wilton followed Ms Cooper out of the Ballina office and watched police apprehend Ms Cooper. He saw Ms Philps taken from the office by ambulance officers with bandages to the left side of her face. Unsigned statements · Unsigned statements of Mr Wilton and Ms Garcia, Ms Pisanos, Ms Sherrington. Each of the statement makers indicated that their statement accurately set out the evidence which they would be prepared, if necessary, to give in court, that the statement was true to the best of their knowledge and belief and that they would be liable to prosecution if there was any false statement. · The statements were taken by Mr Wilson. Mr Wilton's unsigned statement reflected his signed statement to a significant degree with additional material going to the absence of a systematic risk assessment prior to the incident, the absence of guidelines concerning interviewing of violent clients, the absence of a written policy concerning the use of the duress alarm, other alleged shortcomings in the defendant's occupational health and safety procedures, steps taken by the defendant following the incident on 24 May 2004 and details of his illness allegedly caused by the incident and the treatment of that illness. Ms Garcia's statement described how she talked with Ms Cooper on 16 May 2004 at the Ballina Hospital and how she assessed Ms Cooper to be "potentially violent". Ms Pisanos stated that she saw Ms Philps come out of the interview room at the Ballina office where the alleged attack took place. She stated she saw Ms Balchin struggle with Ms Cooper while Ms Cooper held a knife in her hand. She stated she saw Mr Wilton confront Ms Cooper. Ms Pisanos referred to the alert that is transmitted to staff via email when clients known to become violent are visiting the office or are in the area. Ms Sherrington stated she saw Ms Philps come out of the interview room and that Ms Philps was bleeding and distressed. Ms Sherrington said she moved between Ms Philps and Ms Cooper. She stated she saw Ms Balchin grab hold of Ms Cooper by the wrists. She stated she saw Mr Wilton confront Ms Cooper. Ms Sherrington described occupational health and safety protocols and procedures that she stated were in place prior to and following the incident on 24 May 2004. Videotape interviews · Videotape interviews of 14 personnel conducted by Mr Saunders in June and July 2004. The persons who gave unsigned statements were involved in the videotape interviews. The interviews were subsequently transcribed. The defendant identified no inconsistencies between the videotape transcriptions and the statements. However, it should be noted that Mr Saunders left the PSA in January 2006. The videotapes of the interviews could not be located in the period after Mr Saunders left the Association. Ms Veivers informed Mr Wilson that she found the tapes on or about 4 September 2006. Ms Veivers provided the tapes to Mr Wilson. A question arises as to whether the prosecutor was entitled to rely on the existence of these tapes if they were not able to be located at the time the proceedings were instituted, but because of the approach I have taken it is not necessary for me to finally decide that question at this stage. Business records · Business records, which included: the incident reports described earlier in this judgment (by Ms Philps, Ms Williams, Ms Garcia, Ms Sherrington and Ms Balchin); the email sent by Ms Christopher to staff on 19 May 2004 advising that Ms Cooper was "very aggressive and threatening"; documentation relating to the defendant's occupational health and safety policies and procedures that existed prior to and following the incident on 24 May 2004 including risk assessment policies and procedures; the investigation report of Mr Troughton into the incident; documents primarily relating to the defendant's assessment of Ms Cheryl Cooper and the care of her children; a sketch of the layout of the Ballina office; various medical certificates provided by Mr Wilton relating to his psychological injuries allegedly received as a consequence of the incident on 24 May 2004; correspondence relating to Mr Wilton's compensation claim; and, a memorandum dated 21 July 2004 from the Regional Director of DOCS to managers regarding interim procedures for dealing with aggressive and/or violent clients together with relevant materials, eg., safety checklists. Advice · Written legal advice from experienced counsel dated 29 January 2006 that it was likely the prosecution had a reasonable prospect of success. Advice from a solicitor with experience in prosecutions under the Occupational Health and Safety Act. · Advice from Mr Wilson who was involved with the investigation of the incident from the outset and took control of it in January 2006. 67 Rather than the Court considering all of the material at the disposal of the prosecutor prior to him instituting the prosecution, it would seem to be sufficient to consider the elements of the offence and to determine whether or not there was any evidence in the material available to the prosecutor that might be admissible and capable of establishing each element of the offence as charged. 68 In Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 the Court stated: [26] In order to succeed in the prosecution the prosecutor must prove the essential factual and legal ingredients of the offence. The prosecutor accepted that he had to prove at least one of the six particulars alleging the manner in which the defendant failed to ensure a safe system of work: EPA v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 485. [27] The prosecutor adopted the elements of the offence I identified in Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128 at [39] in respect of s 15(1) of the Occupational Health and Safety Act 1983 as those he had to prove in these proceedings: 39 The elements of the offence to be proved by the prosecution beyond reasonable doubt are as follows: (1) The defendant was an employer for the purposes of the Occupational Health and Safety Act ; (2) The defendant failed to take steps, as exemplified or particularised in s 15(2) of the Act, to ensure the health, safety and welfare at work of all its employees; (3) One or more of the defendant's employees was exposed to a risk to their health, safety or welfare, whilst at work; and (4) There was a causal relationship between the facts causing the detriment to safety and the defendant's acts or omissions. The elements listed in Covi v Police apply equally to the successor provision to s 15(1), that is, s 8(1) of the 2000 Act. I propose to adopt the approach taken in Covi v Police in these proceedings. I propose to adopt the elements as they were identified in Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128 and Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 . Element 1 - The defendant was an employer for the purposes of the OHS Act 69 In Mr Wilton's signed statement to the NSW Police he stated that he was an employee of the defendant at the Ballina CSC in the position of Manager Casework - Child and Family Service Program out of home care. He stated that he had worked at the Ballina office for 13 years. Mr Wilton's unsigned statement was in similar terms and, in addition, Mr Wilton stated he was a delegate of the PSA. 70 In relation to the signed statement, I am unable to see why it would be inadmissible to prove the first element, especially if Mr Wilton confirmed under oath that it was a true and correct statement. In relation to the unsigned statement, there is no rule that the statement of a witness is inadmissible because it is unsigned. The Court needs to consider all of the relevant circumstances. Moreover, Mr Wilton's unsigned statement contained the following: This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tended in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true. 71 Mr Wilton's unsigned statement contained information clearly relevant in a number of respects to the alleged breach. Mr Wilton was the Manager Casework at Ballina and the PSA delegate. I consider that the identity of his employer was arguably a matter that could be regarded as an admission under s 87(1)(b) of the Evidence Act. Further, Mr Wilton indicated as late as March 2006 that he would be prepared to give evidence in any proceedings and his undertaking to do so has been maintained. In my opinion, at the time the prosecution was instituted the prosecutor was entitled to rely on an expectation that Mr Wilton would give evidence consistent with his statements. 72 In addition to Mr Wilton's statements, there were the incident reports made out by persons identified earlier who indicated on the relevant forms they were employees of the defendant. The incident reports are arguably business records pursuant to s 69 of the Evidence Act and, as such, exceptions to the hearsay rule and admissible. It might be contended that given these are criminal proceedings, the Court would not simply accept the incident reports without corroboration by the persons who made the reports. That would seem to be a matter for the trial judge to decide, but Mr Docking has indicated that it is the prosecutor's intention to summons some, if not all, of those persons who have not made statements in the proceedings and they include persons who are the authors of the incident reports. There is no indication that the authors of the incident reports are other than compellable witnesses. Element 2 - The defendant failed to take steps, as exemplified or particularised in s 8(1) of the Act, to ensure the health, safety and welfare at work of all its employees 73 The charge particularised seven alleged failures on the part of the defendant to ensure the safety, etc., of employees. In order to make out the offence, it is unnecessary for the prosecutor to prove each and every particular: Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 at 485. 74 Taking just the first, fourth and fifth of the alleged failures particularised, the first was that the defendant failed to prevent the client, Ms Cooper, from attending the place of work for an interview, the fourth was a failure to ensure that there was a security guard(s) or police officer(s) present or then attended at the place of work whenever the client attended the place of work and the fifth was a failure to provide an alert in respect of the client or to warn employees that the client was to attend the place of work, or both. 75 Mr Wilton's unsigned statement, and what appeared to be business records of the defendant, provided information relevant to these particulars. For instance, that: · The staff at Ballina CSC, including Mr Wilton, were not informed or warned that Ms Cooper would be attending the Ballina CSC on 24 May 2004. · There was no written policy or procedure in place to prevent Ms Cooper from attending the Ballina CSC on that day. Prior to 24 May 2004 a work practice had developed at the Ballina CSC whereby potentially violent clients were interviewed in the interview room next to the administration area of the office. This was done so that in the event of an incident a member of the administration staff could contact the Police. Also prior to this incident potentially violent clients were occasionally interviewed at Ballina Police Station, or a security guard was engaged to protect the workers whilst the interview was taking place. · During May 2004, but prior to the incident on 24 May 2004, Ms Cooper made death threats against one of the staff members. On 19 May 2004 an email was circulated within the Ballina CSC informing staff that Ms Cooper posed a risk of aggressive and threatening behaviour towards staff. On 21 May 2004 it was reported that Ms Cooper was displaying bizarre behaviour whilst sitting in her car outside the Ballina CSC. On that day Ms Cooper deliberately drove her car into another car, outside the Ballina CSC. This incident occurred directly after Ms Cooper had left the office following an interview with members of the Child Protection Team. · There was no security guard or police officers present at the Ballina CSC on 24 May 2004. · There was no adequate emergency system in place including but not limited to there being no departmental policy about the use of duress alarms; or procedure for responding to a duress alarm once it had been activated, or emergency procedures in place in relation to violence by clients. 76 As I have already stated, on the face of it there is nothing to suggest Mr Wilton's unsigned statement is inadmissible. Further, it is very clear that Mr Wilton maintained throughout a strong interest in the prosecution and a firm commitment to give evidence for the prosecution. The email circulated within the Ballina CSC informing staff that Ms Cooper posed a risk of aggressive and threatening behaviour towards staff, and the incident report regarding Ms Cooper's alleged bizarre behaviour on 21 May 2004, may well be admissible as business records of the defendant. Element 3 - One or more of the defendant's employees was exposed to a risk to their health, safety or welfare, whilst at work 77 What appear to be business records of the defendant refer to the potential for clients to assault members of the defendant's staff. This was done in the context of policies to manage client behaviour to prevent injury or illness to staff. Other documents that may be regarded as business records included the incident reports referred to earlier relating to Ms Cooper's threats to kill Ms Garcia. In addition, Mr Wilton in his unsigned statement stated that as Manager Casework he had been advised of Ms Cooper's threat to kill Ms Garcia and how she had crashed into another vehicle. He said he had formed the view that Ms Cooper had a predisposition to hurt, injure or even kill people and that she posed a risk of violence to staff. 78 In my opinion, the incident reports and policy documents relating to the protection of staff may be admissible under s 69 of the Evidence Act and Mr Wilton's statements admissible under s 87 of that Act. On the face of it, Mr Wilton's statements that he was informed by eyewitnesses about Ms Cooper's threats and behaviour, are admissions made with authority (s 87(1)(b)) based on first hand hearsay (s 82) and, therefore, admissible. It will be recalled that Mr Wilton was the Manager - Casework at the Ballina office and it would appear that the eyewitnesses were staff reporting to Mr Wilton in his capacity as manager about a potentially violent client. If this evidence on its own was considered to be unsafe to rely upon, I note the prosecutor's intention to summons the eyewitnesses and authors of the incident reports. There was no indication that those persons were other than compellable witnesses. 79 In relation to the actual incident on 24 May 2004, there existed prior to the institution of the proceedings: Mr Wilton's signed and unsigned statements that indicate he was an eyewitness to much of the incident, including Ms Balchin struggling with Ms Cooper and that he confronted Ms Cooper with a knife in her hand which she threw at Mr Wilton; and the incident reports of those involved in the incident including Ms Philps, Ms Williams and Ms Balchin. For the reasons earlier given, Mr Wilton's statements and the incident reports would appear to constitute admissible evidence. Element 4 - There was a causal relationship between the facts causing the detriment to safety and the defendant's acts or omissions 80 If, on an assessment of the objective facts, a defendant is shown beyond reasonable doubt to have failed to ensure the health and safety of employees, and that failure was a substantial or significant cause of the risk of assault, such risk to be assessed at the time of exposure to it, or the failure materially contributed to that risk, then the causal connection is made out: The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 at [49]. A defendant cannot escape liability by contending that it did not create the risk: O' Sullivan at [44]. 81 There are reasonable grounds to believe that a court would find a causal relationship between the defendant's acts or omissions in this matter and the risk to safety, that risk being the risk of injury to employees of the defendant by a violent client. 82 I am not satisfied that the defendant has succeeded in proving that the prosecutor was not in possession or command of sufficient admissible evidence capable of establishing each element of the offence as charged. I am satisfied that Mr Cahill believed at the time he decided to institute the proceedings against the defendant that there was a reasonable prospect of a conviction. I note, in particular, the advice provided to Mr Cahill by experienced counsel to this effect. Second and third grounds of defendant's motion 83 The second and third grounds in support of the defendant's motion were to the effect that the proceedings were commenced on 23 May 2006 for the purpose of avoiding the effect of subsection 107(1) of the Act, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006, and that this was an abuse of process. 84 In my opinion, the inference is open that the proceedings were instituted on 23 May 2006 partly for the reason to avoid them becoming statute-barred. Clearly, the investigation process carried out by officers of the PSA was not performed in an efficient and timely manner. There appeared to be a 16-month hiatus between September 2004 and January 2006 when little if anything was done to progress the investigation. That caused the Association's legal advisers to remind the Association, more than once, that it was, in effect, running out of time to commence the proceedings within the time prescribed by the statute. 85 Ordinarily, the statements obtained by Mr Wilson should have been signed. I suspect they were not signed because Mr Wilson ran out of time. However, as I have found, the mere fact the statements were not signed does not mean they are inadmissible. And the fact the prosecutor did not have the statements signed by the time he was required to institute proceedings, or that more evidence was required to be gathered, does not lead to the conclusion there was an abuse of process if it were the case that the prosecutor had decided to prosecute and otherwise had sufficient admissible evidence at his disposal by 23 May 2006 to support a prima facie case. In other words, even though the prosecutor's case was not as complete as it might be but that it was necessary to commence proceedings by a certain date to avoid being statute-barred, provided the prosecutor by that time had made a decision to prosecute on the basis of sufficient available evidence capable of establishing each element of the offence as charge, there is no abuse of process. 86 The defendant relied on Whitten v Hall. However, as the prosecutor submitted, that case stands for the proposition that it is an abuse of process to lay an information before a decision is made to prosecute and to delay the issue of the summons to allow further information to be collected. Whitten v Hall is readily distinguishable. In Whitten v Hall what the informant had effectively sought to do was to create a holding situation whilst further information was obtained and considered. In the present case I am satisfied the prosecutor had decided to institute proceedings before the application for order and verifying affidavit were filed on 23 May 2006. It was Mr Cahill's evidence, which I have referred to earlier, that it was he who decided to institute the proceedings against the defendant. There is no evidence or reliable inference to the contrary. To find that Mr Cahill did not decide to institute the proceedings would be tantamount to finding he had deliberately lied. In Smith v NSW Bar Association (1992) 176 CLR 256 at 268 it was stated (per Brennan, Dawson, Toohey and Gaudron JJ) that: A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on "the single oath of another man, without any confirmatory evidence": R v Hook (1858) Dears & Bell 606 at 616 per Byles J. 87 What I am asked to do by the defendant is draw an inference that Mr Cahill instituted the proceedings, not because he had decided to do so, but because if he did not the proceedings would become statute-barred. However, having weighed the evidence I am of the opinion it overwhelmingly favours the prosecutor. 88 Mr Docking referred to Metaxas. In that case the appellant swore to a number of complaints against the respondent in respect of offences against the Building Societies Act 1976 (WA) and several days later invited the respondent to give an explanation. When the respondent did not reply the appellant issued a summons that was served 26 days after the complaints were sworn. The magistrate dismissed the proceedings as an abuse of process. On appeal, White AJ held inter alia: (1) There was no abuse of process as the appellant had decided to proceed with the complaints by the date he swore to them and the fact that the appellant was prepared to entertain submissions as to a possible reason for not proceeding should not have been held to negative that decision. (2) Substantial delay in issuing a summons after a complaint has been made is contrary to the intention of the legislature in enacting the limitation period in s 51 of the Justices Act 1902. It is implied in ss 52 and 53 of the Act that a summons is to be issued forthwith by the justice of the peace or the clerk of petty sessions before whom a complaint is made. (3) The delay of 26 days in serving the summons after the date of swearing in the circumstances did not amount to an abuse of process warranting dismissal of the complaints without hearing. Mr Docking submitted that there was no abuse of process because the evidence in the present proceedings was that Mr Cahill did not delegate the decision to institute proceedings against the defendant and that it was Mr Cahill who made that decision, a fact that he confirmed in cross-examination. 89 Further, it was submitted, the fact that Mr Wilson met with representatives of the defendant after the application for order had been filed in order for them to explain their position, should not be taken as an indication that no final decision had been taken to prosecute: see Metaxas. 90 In my opinion, it is Metaxas and not Whitten v Hall that is the relevant precedent here. There was no abuse of process, as the prosecutor had decided to institute the proceedings by the date he swore his verifying affidavit and filed the initiating process. Moreover, the application for order and verifying affidavit were served on the defendant on about 29 May 2006 (i.e. six days after the order was made). There was no delay in the issue of any initiating process. Fourth ground of defendant's motion 91 The fourth ground of the motion was that the prosecutor invalidly delegated his authority under s 106(1)(d) of the Act to decide to institute these proceedings. For the reasons I have already touched upon, this ground has not been made out. There is Mr Cahill's uncontroverted evidence that it was he, and no other person, who decided to institute the proceedings against the defendant. He stated in his evidence, which was tested in cross examination, that: By 23 May 2006 I had instituted two previous OH&S prosecutions and I was familiar with the usual process, which was that the Association's lawyers would provide me with an Application for Order and a detailed Affidavit for the purposes of initiating the proceedings. I was and remain well aware that it is only the General Secretary of the Association who can initiate proceedings under the OH&S Act 2 000. At no time since I have occupied the position of General Secretary have I delegated that power to institute proceedings to anyone else. Conclusion 92 I find that the defendant has not made out any of the grounds in its notice of motion to dismiss the proceedings or, in the alternative, to permanently stay the proceedings. The motion is, therefore, dismissed. I so order. Costs are reserved. 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