Industrial Court of New South Wales CITATION: Mukherjee v WorkCover Authority of New South Wales [2008] NSWIRComm 53 This decision has been amended. Please see the end of the judgment for a list of the amendments. GOPAL MUKHERJEE Appellant PARTIES: WORKCOVER AUTHORITY OF NEW SOUTH WALES Respondent FILE NUMBER(S): IRC 1437 of 2007 CORAM: Schmidt J; Boland J; Backman J Appeal - Application for leave to appeal and appeal - application of section 65 of the Evidence Act 1995 - whether statements made by critical witness who was not available for cross examination were properly admitted - unavailability of witness - whether prosecutor established witness' unavailability - failure to bring witness before Court pursuant to a bench warrant - failure to take other reasonable steps - prosecutor did not establish all reasonable steps taken to secure attendance or to compel witness to give evidence - appeal upheld CATCHWORDS: Evidence - requirements of section 65 of the Evidence Act 1995 - whether witness satisfied the test of unavailability Evidence Act 1995 - s 65 LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998 Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 R v Alchin [2006] ACTSC 53 R v Suteski (2002) 56 NSWLR 182 CASES CITED: R v Taber & Styman [2005] NSWSC 1035 Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported, BC9101644) Sneza Suteski (2002) 128 A Crim R 275 C v Registrar Court of Appeal (Court of Appeal, 10 May 1996, unreported BC9601681) HEARING DATES: 18 March 2008 EXTEMPORE JUDGMENT DATE: 18 March 2008 APPELLANT: Mr RP Greenhill SC SOLICITORS: Avant Mutual Group Limited LEGAL REPRESENTATIVES: RESPONDENT: Mr CP O'Donnell, counsel SOLICITORS: Criminal Law Practice Group WorkCover Authority of New South Wales JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: SCHMIDT J BOLAND J BACKMAN J 18 March 2008 Matter No IRC 1437 of 2007 GOPAL MUKHERJEE v WORKCOVER AUTHORITY OF NEW SOUTH WALES Application by Gopal Mukherjee for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 13.8.2007 in matter no. CIM20004279/06/02 JUDGMENT OF THE COURT EX-TEMPORE [2008] NSWIRComm 53 1 On 13 August 2007, the Chief Industrial Magistrate convicted the appellant, Dr Gopal Mukherjee, of a charge brought under s 253A of the Workplace Injury Management and Workers Compensation Act 1998. The charge concerned an allegation that Dr Mukherjee had falsely claimed that Ms Monica Gamboa had visited him for consultations on ten occasions, after having suffered a workplace injury; and that, consequently, an invoice for some $1,746 had been forwarded to the insurer for payment for those consultations. 2 The charge was defended. In reasons for decision given by the Chief Industrial Magistrate on 1 March 2007, his Honour referred to statements made by Ms Gamboa, which were admitted into evidence, over the appellant's objections. Ms Gamboa was not present in court and was never made available to be cross examined by the appellant. Reasons for his Honour's decision to admit Ms Gamboa's statements had been given ex tempore, during a hearing in November 2006. 3 The conviction was appealed pursuant to s 197 of the Industrial Relations Act 1996 and the Crimes (Appeal and Review) Act 2001. It was claimed that Ms Gamboa's evidence was wrongfully admitted; that the conviction was wrong and against the weight of the evidence; and that the prosecution had failed to prove all elements of the offence charged. 4 His Honour noted in his reasons for decision, that the charge and particulars in question were: "The accused, by deception, attempted to obtain for himself a financial advantage in connection with the Workers' Compensation Scheme under the Workplace Injury Management and Workers Compensation Act, 1998." 1. On 29th August 2003 Monica Gamboa ("the employee") sustained an injury to her back ("the injury") while working as a cleaner employed by B C Serv No. 4 Pty Ltd ("the employer") at Holsworthy High School, Holsworthy, New South Wales. 2. On 15th September 2003 a workers compensation claim form and employer's report of injury in respect of the injury was lodged with Vero Workers Compensation (NSW) Limited ("the insurer"), the employers workers' compensation insurer. 3. The employee visited her nominated treating doctor, Dr V Khuu in relation to the injury on a number of occasions between 1st September 2003 and 18th April 2005. 4. The employee also had two consultations with the accused at the Fairfield District Medical Centre, 147 Polding Street, Fairfield Heights, NSW in relation to the injury on 23rd October 2003 and 4th December 2003, but did not have a consultation with the accused on any other occasion. 5. The accused completed Medicare vouchers that falsely claimed that the employee had visited the accused for consultations in relation to the injury on ten occasions between 6th January 2004 and 10th February 2004 and caused the vouchers to be provided to the accounts clerk at the Fairfield District Medical Centre, Julia Gela, for processing. 6. As a result of being provided with the vouchers, Julia Gela prepared an invoice numbered 576403 and dated 11th February 2004 to the insured ("the invoice") in the amount of $1,746.00 in respect of the ten consultations referred to in paragraph 5 above and forwarded the invoice to the insurer for payment. 7. On 25th February 2004 the insurer forwarded a letter to the accused requesting clarification of the claim in the invoice but never received a response from the accused. 8. The insurer did not pay the amount claimed in the invoice, or any part thereof to the accused." The parties' cases 5 The appellant's case was that Ms Gamboa was a critical witness for the prosecution, without whose evidence the prosecution was doomed to fail. She was the only person who could prove that she did not consult Dr Mukherjee, on the days in question. 6 It was not in issue that Ms Gamboa claimed to have received threats on the telephone, which caused her to fear for herself and her children if she gave evidence. Ms Gamboa had been twice served with a subpoena, but refused to attend court to give evidence. She was finally not called by the prosecution, even though no bench warrant for her arrest was ever sought. 7 Three written statements had earlier been made by Ms Gamboa. When tendered, they were objected to. The prosecution relied on the provisions of s 65 of the Evidence Act 1995. It was the appellant's case on appeal that the statements were admitted, contrary to the provisions of s 65, because it was not established that all reasonable steps had been taken by the prosecutor to compel Ms Gamboa's attendance at court. His Honour had fallen into error in admitting the statements. There was no evidence that Mrs Gamboa had been warned of the Court's authority, the consequences of not appearing in response to a subpoena, or in not answering questions in court. Nor was she informed of the consequences for an uncooperative witness, namely punishment for contempt. 8 It was submitted for the appellant that the outcome of the appeal on this question, would determine the appeal. 9 It was the respondent's case that there was extensive evidence before the Court as to Ms Gamboa's unavailability and the steps taken by the prosecutor to compel her attendance to give evidence. She had been served with two subpoenas and had informed solicitors and investigators employed by the prosecutor that she would not attend court to give evidence because of fears arising out of threats which she had received. This satisfied the test of unavailability. That test did not require all conceivable steps to be taken. 10 It was argued that in the circumstances of this case, the 'reasonable steps' required to be taken by s 65 of the Evidence Act, did not include the issuing of a bench warrant. It followed that his Honour had not erred in the conclusion which he had reached, given the evidence before him. The legislative scheme 11 Section 65 of the Evidence Act relevantly provides: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. ... 12 Unavailability of a person is dealt with in the Dictionary to the Evidence Act, which provides: 4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 13 It was the prosecutor's case that it had established Ms Gamboa's unavailability, consistently with either or both clauses 4(1)(e) or (f) of the Dictionary. The Chief Industrial Magistrate's decision 14 After referring to various relevant authorities, his Honour concluded that: In the present case we do not have a situation described by Connelly J in Alchin . This is not a case where a witness has simply declined to attend for whatever reason. In this case the witness has on two occasion (sic) been subpoenaed to attend and on each occasion has stated that she will not attend and give evidence because of the alleged anonymous threat against herself and her children. The question then is; what is reasonable in all the circumstances: The prosecutor did not, in this case, take the further step of asking the court to issue a bench warrant to have Ms Gamboa brought before the court and directed to give evidence on pain of being prosecuted for contempt of court. The prosecutor could have made application for that step to be taken but did not. The defence submission is that the prosecutor has failed to take all reasonable steps. In the view of the court the prosecutor's decision not to seek the issue of a bench warrant does not disqualify the prosecutor from relying upon cl 4(e) and 4(f) of pt 2 of the dictionary of the Act. In some cases such a step may be considered necessary to satisfy the term "all reasonable steps". Each case must clearly be determined on its own facts. In this case the witness displayed an attitude of full cooperation with the prosecutor until the evening before the scheduled hearing in July 2006 when she contacted the solicitor for the prosecutor and described the alleged threat she had received. Consideration 15 In R v Suteski (2002) 56 NSWLR 182, the Court of Criminal Appeal was dealing with an appeal from Kirby J in Sneza Suteski (2002) 128 A Crim R 275. His Honour had accepted that a witness was not available in circumstances where the witness had been brought before the Court, but had refused to give evidence, either at committal or trial, despite being cautioned that he risked punishment for contempt, a stance which he maintained, even after receiving legal advice. The approach of Kirby J was upheld, it being observed that: [83] Counsel for the appellant, at trial and on appeal, acknowledged that the Crown had taken all reasonable steps to compel Sakisi to give evidence. His Honour regarded that acknowledgement as a recognition that the sanction of contempt was unlikely to make him change his mind. His Honour accordingly found that Sakisi was, for the purposes of the Act, "unavailable to give evidence." Clearly that finding was correct. As emerges from a reading of the Australian Law Reform Commission Report s, the definition of "unavailability" was intended to cover the position of a witness who refused to give evidence (Report 36 at para 218). 16 In R v Alchin [2006] ACTSC 53, a co- offender, who had earlier indicated that he would give evidence, refused to do so at trial. Connelly J made reference to the judgment of Kirby J in Sneza Suteski (but not the Court of Appeal judgment in R v Suteski), observing that: 3. There is authority from the decision of Kirby J in the New South Wales Supreme Court in Sneza Suteski [2002] NSWSC 218; (2002) 128 A Crim R 275, to the effect that a person ought be regarded as being unavailable in the circumstances where they simply do not wish to give evidence and make that clear. Mr Taylor had made it clear he does not wish to give evidence. 17 That description of Kirby J's approach does not take account of the circumstances which his Honour described, where the defendant had been brought before the Court, warned of the Court's powers of contempt and having taken legal advice, still refused to give evidence. Nor did it pay regard to the defendant's concession, that all reasonable steps to compel the witness to give evidence had there been taken. Connelly J went on to conclude: 5. It does seem to me that I am not persuaded that he is clearly wrong. Indeed, there would be a sensible legislative purpose to be achieved by permitting such material to go in. For that reason, I answer the threshold question in the affirmative. That is to say that a record of interview may be admitted in a trial on the basis of the author being unavailable in circumstances where the author has made it abundantly clear that they are not willing, for whatever reason, to give sworn evidence. 18 In R v Taber & Styman [2005] NSWSC 1035, Studdert J was also dealing with a witness who had refused to give evidence when called, despite being directed to answer; being advised that he was in contempt of court by his refusal; being given an opportunity to obtain legal advice; and being charged with contempt. In those circumstances, his Honour also concluded that the Crown had taken all reasonable steps open to compel the witness to give evidence, but had been unsuccesful. 19 The circumstances in Styman and Suteski were very different to those before the Chief Industrial Magistrate in the proceedings below. It was not in issue that Ms Gamboa's evidence was critical to the prosecution case. She had willingly made three statements. She had refused to attend court to give evidence at the trial, however, even in answer to the two subpoenas served upon her, because on her explanation to the prosecutor, of a threat which she had received by telephone on the evening before the hearing. 20 On the evidence before his Honour, a Ms Ottaway had been asked to contact Ms Gamboa when she failed to attend Court on 18 July. She spoke to Ms Gamboa by phone. On Ms Ottaway's evidence: 7. Shortly afterwards on 18 July 2006 Ms Gamboa telephoned me back on my mobile. I had a conversation with her. She was very upset. She said words to the following effect: 'I am not coming to court today. I cannot put my children or myself at risk. I am very worried about the threat made to me last night.' 8. I offered to collect Ms Gamboa by taxi and she said words to the following effect: 'I will not be giving evidence. I told the truth in my statement.' 9. I asked Ms Gamboa some questions about the call she had received the night before, as the solicitor on the record asked me to obtain these details. She said words to the following effect in response to my questions: 'The caller was male. He did not have any particular accent. He maybe was Australian. He rang on the home phone. I don't know whether my home phone is a silent number or not.' 21 Ms Brown, an investigator employed by the prosecutor, attended on Ms Gamboa's home on 18 July. Her evidence was: 6. Upon arrival at that address at 2.45pm I spoke with Ms. Gamboa at the front door. I said, "Monica, It's Elly Brown from WorkCover and this is Brendan Slape. We have come to make sure you are okay after what happened last night. Do you mind if we come in?" Ms. Gamboa said, "Yes, all right." 7. Once seated in the lounge room I said to Ms. Gamboa, "How are you feeling?" She said, "I am upset and worried about me, my kids." I said, "Can you tell me what happened?" She said, "A man threatened me on the phone last night if I went to court today." I said, "Can you tell me what he said to you." She said, "A man's voice said 'Hello Monica .' I said (Gamboa) 'Yes .' He said, 'You have to be careful what you gonna say tomorrow you fuckin bitch ." I said, "Did he say anything else?" She said, "Somethin' about bashing me and my family up and then he said 'Are you listening .' I said, "What happened then?" She said, "He hung up." I said, "Did you recognise the voice?" She said, "No." I said, "Did he have an accent?" She said, "No." I said, "Do you have caller I.D. on your phone. Does the number show on your phone of the person who's calling?" She said, "It was a private number. It rang a couple of times before I he (sic) spoke to me." I said, "What time did you get the call." She said, "It was late. I rang your office number to tell you and then I rang the man's name on the letter and told him." I said, "Do you know his name?" Ms. Gamboa showed me a letter attached to a subpoena and pointed to the name, Greg Spain. I said, "you rang and told Greg Spain did you." Ms Gamboa said, "Yes." 8. I said, "Would you be willing to come with Brendan and I to Court now. We can drive you in and be there while you give evidence." Ms Gamboa said, "No, I just can't do it. I am scared if something happens to me or my family you know. I live here with just my kids what if something happens to them because of this? They know where I live, they have my phone number. Why do I have to go? I told you what happened. I have done the right thing and told you the truth about what happened with Dr. Mukherjee." Investigator Slape said, "It is just part of the Court's process once you sign a statement to say you will be willing to give evidence we need you to tell the Magistrate yourself what happened." Ms Gamboa said 'I cannot do that. I could not live with myself if something happened to of (sic) my kids because of it." 9. Whilst speaking with Ms. Gamboa she appeared to be nervous, physically shaken and upset. Investigator Slape and I then left and returned to the Gosford Office. 22 Mr Slape, another investigator employed by the prosecutor, corroborated that evidence. A phone trace was conducted on Ms Gamboa's phone. There was no evidence that this led to any further steps being taken, or that it had been established that Ms Gamboa's phone records corroborated her statement in relation to phone calls she had received and made, on the evening in question. 23 Ms Gamboa had later spoken with Ms Fiona Miller, a solicitor employed by the prosecutor, on 26 October, about the second subpoena which had been served upon her, requiring her to attend court to give evidence on 22 November. Ms Miller's evidence was that Ms Gamboa advised her that: "I have received a subpoena. I will not be attending Court. My children want me to keep away. My kids were worried last time due to the threats I received. My family was threatened. I do not know why you have sent me a subpoena as I explained to Greg Spain the last time the matter was before the Court what had happened. I want no further involvement and will not attend Court." 24 There was no evidence to suggest that any explanation was given to Ms Gamboa as to why this second subpoena had been served; the obligation which Ms Gamboa had to appear in answer to the subpoena; the risk that a bench warrant would be issued, or that she would be in contempt of court if she did not appear. 25 It follows that there was no evidence before his Honour that Ms Gamboa had ever had explained to her the importance of her evidence to the prosecution case; the obligations which she had to appear in court in answer to the subpoenas served upon her; or the consequences of her failing to do so. It appears that the prosecutor did not contact Ms Gamboa before the second subpoena was served upon her. She was not asked if she had reconsidered her position before that second subpoena was served. Nor was she then told about any of the matters mentioned above. She was never required to appear before the Court, as she could have been, had a bench warrant been issued, so that these matters could have been explained to her, so that she could reconsider her attitude, explain her position to the Court, or take advice. 26 Indeed, to the contrary, when the matter was argued on 22 November before the Chief Industrial Magistrate, initially the prosecutor made an application for a four week adjournment, because the prosecutor: '... needs some time given the non-attendance of Monica Gamboa today to consider whether or not they would instruct me to apply to you for a bench warrant in respect of that witness. I'm not saying that those instructions will necessarily follow. But I make that application, your Honour, given that although the witness has indicated that she would not attend since the subpoena has been issued of course the nature of the subpoena being what it is, I suppose there might have been some faint hope that she would still attend despite that'. 27 That application was opposed by the appellant and, eventually, the adjournment application was abandoned without any explanation as to the reasons for that decision, even though it had earlier been submitted that consideration needed to be given to WorkCover investigator's approaching Ms Gamboa: '... to exercise their compulsory powers of questioning in order that she could at the very least, given that she maintains her refusal to attend court, that she could at the very least adopt in a formal questioning process under the relevant s 238AA of the WIN Act, the three statements that she's made. So that would then further found the application by the prosecution for the admissibility of those statements under s 65(2) (a) of the Evidence Act. That is that she was under a duty to make the statements at the relevant time. That duty of course would be her adoption at the time she's being officially questioned of the three statements.' 28 In later submissions, it was put, however, that Ms Gamboa had already made her statements in accordance with the duty imposed by ss 238 and 238AA of the Workplace Injury and Management and Workers Compensation Act. It was also relevant, the appellant argued, that his Honour had concluded that Ms Gamboa's statements had been made in circumstances to which the provisions of s 65(1)(a), (b) and (c) of the Evidence Act applied. 29 It follows that the circumstances here to be considered were very different to those dealt with in the cases referred to by his Honour in his reasons for decision. Whilst it was submitted for the prosecutor below, that "a refusal to give oral evidence by a person is sufficient to make that person 'unavailable' within the meaning of the Evidence Act", what had to be determined by his Honour, in accordance with the requirements of s 65 of the Evidence Act, was whether 'all reasonable steps' had been taken by the prosecutor, to secure Ms Gamboa's attendance at the trial or to compel her to give evidence, in the particular circumstances. 30 It was also the appellant's argument that Ms Gamboa was aware of the requirement to respond to the subpoenas served on her, because they each advised that 'If you do not comply with this subpoena you may be arrested.' On the evidence of course, the appellant never drew this to Ms Gamboa's attention, or told her that she was a risk of such arrest, so that she would be brought before the Court. In fact, she was never brought before the Court, despite failing to respond to the first subpoena. 31 Contrary to the conclusions reached by his Honour, on the evidence this was clearly not a case where Ms Gamboa was unavailable, or where all reasonable steps had been taken by the prosecutor to bring her before the Court. Rather, this was a case where the prosecutor had decided not to press either of the two subpoenas served upon Ms Gamboa, by issue of a bench warrant, asserting in the submissions advanced that: "... it is not necessarily part of those steps being reasonable that we seek the extra step to be taken of her being arrested pursuant to a bench warrant. It's quite clear in my submission that it would be sufficient to take all reasonable steps to compel her to give evidence simply to have issued on the two occasions now subpoenas requiring her attendance to give evidence in these proceedings. And furthermore to have made the number of requests to her evident from the evidence in the five witnesses statements about this topic, to attend court to give evidence. So in my submission, for the reasons set out there and in addition the first subpoena, I submit that unavailability is established" 32 A decision not to seek a bench warrant is undoubtedly one for a prosecutor to make. However, if an application under s 65 of the Evidence Act is made in circumstances where available steps have not been taken by a prosecutor to secure the attendance of a witness who has critical evidence to give in relation to a serious criminal charge, the prosecutor may face real difficulty in establishing that the requirements of s 65 of the Evidence Act have been established. 33 Attendance at a court in answer to a subpoena, is not a matter of whim, or even choice, of the person to whom the subpoena is directed. In criminal proceedings that is particularly significant especially where, as here, the witness in question is the true source of the charge which had been laid against the defendant. The offence with which the appellant had been charged was a serious one, carrying a maximum penalty of 500 penalty units, or two years imprisonment. The role of witnesses in a criminal prosecution, and the need for them attending in response to a subpoena, has been discussed in the authorities. In C v Registrar Court of Appeal (Court of Appeal, 10 May 1996, unreported BC9601681) Mahoney P said at 1, for example: "... It is the duty of members of the community to give evidence when properly called before a court to do so. Refusal to do so may have serious consequences in the particular case: an innocent person maybe convicted or a guilty one may escape punishment. Equally important, it may be thought in the community that the proper course of justice may be ignored or impeded; public confidence in the due administration of the law may be destroyed". 34 In Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported, BC9101644), it was observed at p 22 that: Many persons who give evidence in criminal proceedings would prefer not to do so. It is not uncommon for witnesses to have a general apprehension that those on trial might in some way cause harm to them. In some cases, the reason for apprehension of this kind goes further. Threats may be made, general or specific, that harm will be done to a person if he gives evidence. In some cases, threats may be made to other persons and that fact may provide a basis for apprehension by the particular witness. But such circumstances do not, in general, constitute duress in the sense of relieving the witness of the obligation to give evidence when properly called upon so to do. 35 In assessing whether the prosecutor had established Ms Gamboa's unavailability, it ought not to be overlooked that there was no explanation given to his Honour, as to why a decision was made by the prosecutor not to seek the issue of a bench warrant. That decision must plainly have been made during the course of the hearing on 22 November when the application for a four-week adjournment was made, so that consideration could be given by the prosecutor as to whether a bench warrant should be sought. The application, however, was abandoned. This may explain why, in his reasons for decision, his Honour did not apparently consider, in the circumstances of the case before him, the available step of seeking a bench warrant, which the prosecutor ought reasonably to have taken. His Honour merely observed that Ms Gamboa appeared to have been fully co-operative, until the alleged making of a threat, on the evening before the hearing and that there was no reason why bringing Ms Gamboa before the Court would alter her refusal to co-operate. 36 The position before his Honour was that the prosecutor did not explain the failure to take the step of seeking a bench warrant, or other obvious and reasonable steps to which we have earlier alluded, and which were referred to in the authorities that his Honour dealt with, in order to secure Ms Gamboa's attendance at Court. 37 This approach can be contrasted with that taken in the proceedings before Hamilton J in Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976. There his Honour explained why, in the particular circumstances of the civil proceedings before him, it would not have been reasonable for the defendants to make application to the Hong Kong Court, to secure the attendance of an unco-operative witness. His Honour dealt with questions such as the trouble and cost of such an application and the evidence as to the witness' aversion to giving evidence and the poor quality of his recollection (at [22] to [26]). 38 Given the requirements of s 65 of the Evidence Act, the onus fell on the prosecutor to establish that 'all reasonable steps' had been taken to compel Ms Gamboa to give evidence, or to secure her attendance. On the evidence, that onus was plainly not met. 39 It follows that the appellant's case must be accepted as having been established. His Honour fell into error in concluding that the requirements of s 65 had been satisfied in relation to Ms Gamboa. On the evidence the appeal must be upheld. Orders 40 The appellant sought orders for the costs of the appeal and the proceedings below, as well as an order for repayment of the fine which the Chief Industrial Magistrate had imposed. 41 The respondent sought and was given an opportunity to file short written submissions as to the costs of the proceedings below, to which the appellant was given an opportunity to reply. We reserved on the question of those costs. The other orders sought by the appellant were made by consent. 42 For the reasons given, leave to appeal must be granted, the appeal upheld and the conviction of the appellant quashed. We order accordingly. The respondent is also ordered to: (i) pay the costs of the appeal, as agreed or assessed, (ii) repay to the appellant the fine imposed by the Chief Industrial Magistrate. ------------------------ AMENDMENTS HISTORY: 15/04/2008 - First word of first sentence 'This' has been amended to become 'The' - Paragraph(s) [36] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.