Metro Trains Melbourne Pty Ltd v Paciocco
[2017] VSC 778
•19 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 04123
| METRO TRAINS MELBOURNE PTY LTD | Plaintiff |
| v | |
| PAUL PACIOCCO (TRANSPORT SAFETY VICTORIA) | First Defendant |
| THE SAFETY DIRECTOR (TRANSPORT SAFETY VICTORIA) | Second Defendant |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2017 |
DATE OF JUDGMENT: | 19 December 2017 |
CASE MAY BE CITED AS: | Metro Trains Melbourne Pty Ltd v Paciocco |
MEDIUM NEUTRAL CITATION: | [2017] VSC 778 |
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JUDICIAL REVIEW — Committal proceeding — Orders for prohibition against informant — Accrediting agency as prosecuting agency — Abuse of process — Denial of procedural fairness — Conflict of interest — Prosecutorial duty — Fragmentation of criminal proceedings— Whether exceptional or special circumstances justifying fragmentation.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Neal SC with Mr R W Taylor | Herbert Smith Freehills |
| For the Defendants | Ms L A Taylor QC with Ms R L Harper | Transport Safety Victoria |
HIS HONOUR:
Introduction
This is an application for orders in the nature of prohibition seeking to prevent the defendants from taking any further step in committal proceedings currently being conducted in the Magistrates’ Court of Victoria. The committal relates to two charges brought by the first defendant (‘the Informant’) against the plaintiff alleging a breach of ss 20 and 21 of the Rail Safety Act2006 (the ‘RSA’).[1] Declarations are also sought that there is a conflict of interest on the part of the defendants and that their continuation in the committal would be procedurally unfair.
[1]Now titled Rail Safety (Local Operations) Act 2006. The parties agreed that the authorised version of the RSA in force at the time of the charges was version 23 incorporating amendments as at 28 June 2012.
The charges allege that the plaintiff failed to ensure the safety of its train operations by reducing the gap between its trains and the platform at the Heyington station,[2] and by failing to implement a device —referred to as indefinite interlocking traction — which would prevent its trains from moving while the train doors remain open.[3] The charges followed the death of a passenger who fell between a train and station platform after attempting to alight a departing train that had its doors forcibly kept open by some passengers who were already on board the train.
[2]Charge 1.
[3]Charge 2.
The plaintiff alleges that the defendants have a conflict of interest because the second defendant (‘the Safety Director’) accredited the plaintiff under the RSA in the knowledge first that there were gaps between the train and platform at various stations and secondly that the plaintiff operated some trains that did not have indefinite interlocking traction. In short, it is alleged the defendants cannot, in the circumstances of this case, be both accrediting agency and prosecutor.
For the reasons that follow, I have concluded that the defendants do not have a conflict of interest that would preclude them from continuing with the committal. In these reasons, I shall first set out the statutory provisions and facts relating to the charges; second, deal with the plaintiff’s accreditation which is said to give rise to the conflict of interest; and finally, address the plaintiff’s arguments and explain why I have been unable to accept them.
Background: The parties
At the relevant time,[4] the plaintiff operated the rail passenger service within metropolitan Melbourne. For that purpose it was accredited by the Safety Director[5] as both a rail infrastructure manager and a rolling stock operator under the provisions of the RSA. The former accreditation authorised it to undertake rail infrastructure operations and the latter authorised it to use specified rolling stock for the purpose of conducting the metropolitan rail service. I shall deal in more detail with the accreditation process below.
[4]The charges allege breaches of ss 20 and 21 of the RSA between 31 May 2011 and 22 February 2014.
[5]Defined in s 3 of the RSA to mean the Director, Transport Safety within the meaning of s 3 of the Transport Integration Act 2010.
The Safety Director had various powers and duties under the RSA including the accreditation of rail operators. The Safety Director also had an enforcement function under the Act including through the power to give directions that railway operations stop,[6] to undertake disciplinary action against a rail operator,[7] and to bring proceedings including criminal proceedings.[8]
[6]RSA s 30.
[7]RSA div 5 of pt 5.
[8]Transport (Safety Schemes Compliance and Enforcement) Act 2014 s 105.
A transport safety officer had various powers including the express power given by s 105 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 (the ‘Enforcement Act’) to commence proceedings. This is the power relied on by the Informant to bring the charges and to conduct the committal.
In both its written submissions and in oral argument before me, the plaintiff referred to Transport Safety Victoria (‘TSV’), describing it as the prosecuting agency. The plaintiff submitted that the defendants were relevantly indistinguishable because they were both part of TSV and the Safety Director had overall control and responsibility for the conduct of persons attached to TSV.
Background: The statutory provisions relevant to the charges
The main purpose of the RSA is to provide for safe rail operations in Victoria.[9] Its objects included the promotion of the safety of rail operations and the effective management of safety risks in rail operations.[10] Part 2 of the RSA, entitled ‘Principles of Rail Safety’, contained six principles including the ‘principle of shared responsibility’.[11] Section 13 provided that rail safety is the shared responsibility of various entities including ‘rail operators’[12] and the Safety Director. Section 13(2) provided that the level and nature of responsibility that an entity has for rail safety is dependent on the nature of the risk to rail safety that the person creates from the carrying out of an activity (or the making of a decision) and the capacity that person has to control, eliminate or mitigate that risk. I note that s 11(2) provided that the Parliament did not intend by pt 2 (including s 13) to create in any person any legal right or give rise to any civil cause of action.
[9]RSA s 1.
[10]RSA s 11(1).
[11]RSA s 13.
[12]Defined in s 3 to mean a rail infrastructure manager or rolling stock operator.
Division 2 of pt 3 set out the safety duties of rail operators. Section 20 of the RSA relevantly provided that a rail infrastructure manager must, so far as is reasonably practicable, ensure the safety of rail infrastructure operations carried out by it. Section 20(2) provided a non-exhaustive list of circumstances in which a rail infrastructure manage would contravene s 20(1) including where the rail infrastructure manager failed to provide or maintain rail infrastructure that is, so far as is reasonably practicable, safe.
Section 21 applied to a rolling stock operator in similar terms and, again, the operator was, so far as is reasonably practicable, required to ensure the safety of rolling stock operations carried out by the rolling stock operator. Both ss 20 and 21 were indictable offences.
Section 19 is relevant to what is reasonably practical in a given case. It provided:
19 The concept of ensuring safety
(1)To avoid doubt, a duty imposed on a person under this Act or the regulations to ensure, so far as is reasonably practicable, safety requires the person to—
(a) eliminate risks to safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of Divisions 2 and 3 or regulations made for the purposes of those Divisions, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring safety—
(a) the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
By s 105 of the Enforcement Act a proceeding, including a proceeding for an offence against a transport safety law[13] could only be commenced by the Safety Director, or a transport safety officer,[14] or a police officer.[15] Section 105(3) provides that a transport safety officer who commences a proceeding may conduct the proceeding before the court.
[13]This includes the RSA.
[14]With the written authorisation of the Safety Director.
[15]Section 105(6) states that despite s 105(1) the DPP may commence a proceeding for an indictable offence against a transport safety law.
The charges
Charge 1 is in the following terms:
Between 31 May 2010 and 22 February 2014 at Toorak in the State of Victoria, pursuant to section 20(1) of the Rail Safety Act 2006 you committed an offence in that as a rail infrastructure manager you failed, so far as was reasonably practicable, to ensure the safety of rail infrastructure operations carried out by you as the rail infrastructure manager when in contravention of section 20(2)(a) you failed to provide or maintain rail infrastructure that was, so far as was reasonably practicable, safe:
Particulars
a)Failure to undertake platform reconstruction to reduce the gap between the platform and the train.
b)Failure to undertake realignment works to reduce the gap between the platform and the train.
c)Failure to install rubber strips to reduce the gap between the platform and the train.
d)It was reasonably practicable for Metro Trains Melbourne to provide platform reconstruction, track realignment and rubber strips in the alleged period as these measures were implemented by Metro Trains Melbourne subsequent to the incident at a cost of $823,361.
Charge 2 is in the following terms:
Between 31 May 2010 and 22 February 2014 at Toorak in the State of Victoria, pursuant to section 21(1) of the Rail Safety Act 2006 you committed an offence in that as a rolling stock operator you failed, so far as was reasonably practicable, to ensure the safety of rolling stock operations carried out by you as the rolling stock operator when in contravention of section 21(2)(b) you failed to provide or maintain systems of rail safety work that were, so far as was reasonably practicable, safe.
Particulars
a)Failure to implement an indefinite traction delay to its X’Trapolis rolling stock.
b)Failure to apply a consistent interlocking traction delay across all Metro Trains Melbourne rolling stock in circumstances where the X’Trapolis fleet operated with a 60 second delay while the Siemens fleet operated with an indefinite delay.
c)It was reasonably practicable to implement interlocking traction delay to the X’Trapolis fleet where the entire fleet modification cost was estimated at not more than $1.2 – $1.5 million
The incident that precipitated the charges occurred on 22 February 2014 at Heyington station, Toorak. As already noted, in that incident a passenger was fatally injured when he fell between a moving train and the platform. The passenger was attempting to board the moving train while passengers inside the train forcibly held the carriage doors open.
It is not in dispute in this proceeding that the Informant is a transport safety officer who has a general written authorisation from the Safety Director to institute proceedings, including proceedings for an offence.[16] He thus comes within the limited class of persons who may bring a proceeding for an offence against ss 20 and 21 of the RSA.
[16]The plaintiff has reserved its position to argue at the committal or trial that the Informant does not have the necessary authorisation but no issue is taken in this proceeding.
The Magistrates’ Court proceeding
The charges were filed on 4 January 2017 and the offences are indictable.[17] Section 96 of the Criminal Procedure Act 2009 required that a committal be held and set out a detailed procedure for the conduct of the committal. An Informant had various obligations under the Criminal Procedure Act including serving on the accused a copy of a hand-up brief that complies with s 110. Section 110 required the hand-up brief to contain various items including a list of the persons who have made statements that the Informant intends to tender at the committal hearing together with copies of those statements and a legible copy of any document which the prosecution intends to produce as evidence.[18]
[17]RSA ss 20(3), 21(3).
[18]Sections 110(d)(iv), (vii).
The hand-up brief must also contain a list of the persons (including experts) who have made statements relevant to the alleged offence which the prosecution does not intend to tender at the committal hearing and a copy of every document relevant to the alleged offence that the prosecution does not intend to tender.[19] Section 111 imposed an obligation of continuing disclosure.
[19]Criminal Procedure Act2009 ss 110(e)(i), (iii).
At the conclusion of all the evidence and submissions, s 141(4) provided for three possible outcomes:
(a) if in the opinion of the Magistrate the evidence is not of sufficient weight to support a conviction for any indictable offence, discharge the accused;
(b) if in the opinion of the Magistrate the evidence is of sufficient weight to support a conviction for the offence charged, commit the accused for trial in accordance with s 144; or
(c) if in the opinion of the Magistrate the evidence is of sufficient weight to support a conviction for an indictable offence other than an offence charged, adjourn the committal to allow the informant to file a charge-sheet in respect of that other offence and, if a charge sheet is filed, commit the accused for trial in accordance with s 144.
The evidence before me discloses that a hand-up brief has been prepared and served, case directions notices have been prepared and filed under s 118 and the committal is listed for hearing in July 2018.
To the extent that the orders sought by the plaintiff seek to prevent the Informant from taking any further step in the committal, it is possible to identify in the Criminal Procedure Act the steps that an informant is required to take. The Plaintiff did not identify any particular step that the Informant is required to take that would result in any practical unfairness to the plaintiff. The plaintiff does complain that the hand-up brief is deficient in that it does not include statements from three witnesses who the plaintiff regards as material. It is noted that the Informant has provided a statement and will be cross examined.
It is not clear what role, if any, the Safety Director will play in the committal or what steps, if any, he intends to take. There is no evidence for example that the Safety Director has given instructions in relation to the committal. I accept that, given his statutory functions, the Safety Director has the capacity to provide instructions to the Informant and to the lawyers within TSV in relation to the prosecution of the charges.
The statutory scheme: Accreditation
Part 5 of the RSA dealt with accreditations of rail infrastructure managers and rolling stock operators. The same entity may hold both accreditations. As already noted, the plaintiff was both a rail infrastructure manager and a rolling stock operator and was thus a ’rail operator’.
Section 35 described the purpose of accreditation as follows:
35 Purpose of accreditation
The purpose of accreditation under this Part is to attest that a rail operator has demonstrated to the satisfaction of the Safety Director that the rail operator has the competence and capacity to manage the risks to safety associated with the rail operations for which accreditation was sought.
Section 36 of the RSA made it an offence for a rail infrastructure manager to operate rolling stock on rail infrastructure it controls unless the rail infrastructure manager is accredited under pt 5 or holds an exemption under s 63. Similarly, s 37 made it an offence to operate rolling stock unless the rolling stock operator is accredited under pt 5 or holds an exemption under s 63.
Part 5 of the RSA set out a detailed process for accreditation as a rail operator. The power to accredit is given to the Safety Director. An accreditation is given in respect of rail infrastructure and rolling stock.
Rail infrastructure is defined in s 3(1) to mean:
the facilities that are necessary to operate a railway safely and includes, but is not limited to, railway track, associated track structures and works (such as cuttings, tunnels, bridges, stations, platforms, tram stops, excavations, land fill, track support earthworks and drainage works), over-track structures, under-track structures, service roads, signalling systems, rolling stock control systems, communications systems, notices and signs, overhead electrical power supply systems, and associated buildings, workshops, depots, yards, plant, machinery and equipment, but does not include rolling stock
Rolling stock is defined to mean:
a vehicle or a part of a vehicle that operates on or uses a railway track, and includes a locomotive, carriage, rail car, rail motor, light rail vehicle, train, tram, light inspection vehicle, road/rail vehicle, trolley, wagon or monorail vehicle but does not include a vehicle or a part of a vehicle designed to operate both on and off a railway track when the vehicle is not operating on a railway track[20]
[20]RSA s 3(1) (definition of ‘rolling stock’).
The power given to the Safety Director to accredit was conditioned on satisfaction as to various matters. Relevantly, under s 39 the Safety Director was obliged to accredit if the Safety Director was satisfied that the rail infrastructure manager had the competence and capacity to carry out the rail infrastructure operations safely and has taken all reasonable steps to comply with div 3 of the RSA. Section 40 made similar provision in relation to the accreditation of a rolling stock operator.
Division 3 of pt 5 set out a number of risk management requirements that must be satisfied in order to obtain accreditation. Section 50, which is contained in div 3, required the rail infrastructure manager or rolling stock operator to undertake a hazard or risk assessment by which the manager or operator identified incidents which could occur and all hazards that could cause or contribute to those incidents. That assessment required an examination and analysis of the identified hazards and incidents and provide the rail operator with a detailed understanding of all aspects of risk to safety associated with the incidents including:
(a) the nature of each hazard and incident;
(b) the likelihood of each hazard causing an incident;
(c) in the event of an incident occurring-
(i) its magnitude; and
(ii) the severity of the consequences of the incident; and
(d) the range of control measures considered.
By s 51 a rail operator was required to adopt measures that eliminate or, if it is not practicable to eliminate, that reduce, so far as reasonably practicable the likelihood of an incident occurring or if an incident occurs its magnitude and severity.
I note that under div 5 of pt 5 the Safety Director could suspend an accreditation if the Safety Director considered it necessary to do so in the interests of public safety or to protect the safety of rail safety workers. Under s 59 the Safety Director could take disciplinary action against an accredited rail operator. The grounds for such action included a contravention of the RSA.
The accreditation of the plaintiff
The plaintiff was accredited in 2009 as both a rail infrastructure manager and rolling stock operator.
Under its rolling stock accreditation, the plaintiff was accredited to operate a fleet of trains that included Comeng, Siemens and X’Trapolis trains on the metropolitan rail network. Its X’Trapolis fleet did not have indefinite interlocking traction, instead those trains were fitted with a time limited locking system that prevented traction for a period of 60 seconds.[21] Once that period had expired, the trains could commence traction and depart the station.
[21]The point at which the 60 seconds commences is not clear from the evidence
Under its infrastructure accreditation the plaintiff was given control over and could use rail infrastructure, including track and stations that had been leased to it under a lease between the plaintiff, the Director of Public Transport and Victorian Rail Track. The rail infrastructure that was the subject of its accreditation included the station, tracks and railway infrastructure at Heyington station, Toorak.
On 15 October 2012, the Safety Director imposed a condition on the accreditation of the plaintiff, as follows:
The Comeng train fleet will reach the end of its design life of 35 years progressively between 2017 and 2024. Comeng trains are not to operate beyond their design life unless Metro implements the following modifications to reduce the risk of incidents of passengers being caught in train doors, passengers forcing train doors and trains departing stations with the passenger doors open:
·Installing a mechanism to lock the passenger doors.
·Installing a more sensitive obstacle detection/ door closing force control on passenger doors.
·Removing the external and internal door handles and installing a mechanism to power doors in both the opening and closing directions.
·Installing a traction interlock, to prevent trains from departing stations until all doors are confirmed locked.
In a letter dated 15 October 2012 accompanying the condition the then Safety Director stated:
The proposed condition of accreditation requires a traction interlock, to prevent trains from departing stations until all doors are confirmed locked. This is consistent with the configuration and operation of the passenger doors on X’trapolis and Siemens trains.
The proposed condition of accreditation does not require a traction interlock to apply the brakes if the passenger doors are opened whilst the train is in motion, which potentially could result in incidents of trains disabled in section. TSV understands that in the event that a passenger door on a Metro train is forced open whilst the train is in motion, an indicator light on the train driver’s dashboard will activate. The train driver is then expected to respond to this flashing light when it is safe to do so.
To clarify TSV’s expectation in relation to this part of the condition of accreditation, we would expect the traction interlock, to prevent trains from departing stations until all doors are confirmed locked, be configured to operate to the same standard as currently operating on X/Trapolis and Siemens trains.
Relying on material contained in the hand-up brief, part of which has been tendered in evidence before me,[22] the plaintiff submitted that persons within TSV were aware of the 60-second traction delay and were involved in the decision to impose the 2012 condition. Those persons included Mr Alan Osborne, Safety Director at the time of accreditation and through the period covered by the charges, Mr Andrew Doery, previously Acting Director Rail Safety, and Mr Chris McKeown, former Safety Director. The plaintiff has asked the Informant to provide statements from these witnesses for the committal. The Informant has refused to do so and maintains that they are not relevant to the prosecution.
[22]Some of the hand-up brief is exhibited to the further affidavit of Steven Mark Bell, sworn on 31 October 2017.
I am satisfied that, at least by September 2011, the then Director Transport Safety (Mr Osborne) and other officers within TSV including Mr Doery were aware that a large number of trains operated by the plaintiff did not have indefinite traction locking but a 60-second traction device that permitted traction (and therefore locomotion) after 60 seconds or when all doors are detected closed and locked, and that the absence of an indefinite locking device constituted a risk to safety.[23]
[23]Further Affidavit of Steven Mark Bell, 31 October 2017, Exhibit SMB-7.
For example, an internal TSV memorandum from Mr Doery to Mr Osborne dated 16 September 2011[24] documented the basis for a rail safety recommendation from the Safety Director to the plaintiff. That memorandum noted the Hitachi, Comeng and X’Trapolis fleet did not have indefinite traction locking but allowed traction (and therefore movement) after 60 seconds or when all doors are detected closed and locked. The memorandum records an observation from the plaintiff that:
None of our trains currently have interlocking between doors and brakes. Whenever a door is forced open on any of our trains, and the driver has requested the door to be closed, the closed door light on the driver’s dash will flash. This is located centrally in front of the driver. The driver needs to react to this flashing light at a time when it is safe to do so.
The train driver’s control panel on these trains is equipped with an indicator light that should activate when closed train doors are forced open.
[24]First affidavit of Steven Mark Bell sworn on 12 October 2017, Exhibit SMB-7.
The memorandum went on to note that potential control measures that were available to deal with the safety risk of doors remaining open on moving trains included traction interlock either by increasing the period of interlock from the existing 60 seconds or making the interlock operate for so long as the doors remain open. The memorandum went on to recommend the installation of indefinite traction interlocking.
The significance of accreditation to the prosecution of the charges
There is a dispute between the parties as to the meaning and effect of the accreditation and the 2012 condition and as to their relevance to the issues in the committal. The plaintiff submitted that by granting the accreditation, the Safety Director must be taken to have been satisfied that the plaintiff had taken all reasonable measures available to eliminate or reduce the likelihood of safety incidents. That conclusion is said to follow from the criteria for accreditation in ss 39 and 40 of the RSA and from the knowledge that the Safety Director and other officers within TSV had about the potential risk and the reasonableness of introducing further traction interlocking controls.
On the other hand, the defendants submitted that accreditation is only concerned with the competence and capacity to manage safety risks rather than a conclusion that all reasonably practicable steps have already been taken to reduce risk. They submitted that accreditation says nothing about ongoing compliance with the separate, general and ongoing duties in pt 3 of the RSA including ss 20 and 21. They submitted that the fact of accreditation does not provide an answer to, indeed is irrelevant to, a charge of failing to ensure the safe operation of infrastructure and rolling stock.
It is the interplay between the accreditation and the subject matter of the charges that gives rise to the alleged conflict of interest and it is to that which I now turn.
The challenge to the participation of the defendants in the committal proceedings
There is no challenge to the validity of the charges brought by the Informant or the decision to lay them. Indeed, the plaintiff submits that it would be open to the Director of Public Prosecutions (‘DPP’) to continue the committal proceeding in the Magistrates’ Court. Its complaint is the identity of the Informant and the role of the Safety Director and the legal officers employed within TSV during the committal process.
Consistently with that position, on 14 August 2017 the plaintiff wrote to the DPP seeking that the DPP take over the committal. The DPP has declined to do so but, in the event that the plaintiff is committed for trial, the DPP will conduct the prosecution.
In its submissions the plaintiff did not distinguish between the Safety Director and TSV staff, including legal staff, who are presently engaged in the committal proceeding. Rather it invited me to treat TSV as the prosecuting agency.
Rather than pointing to any personal knowledge or role of the Informant in the accreditation process, or of the current Safety Director, who did not hold that position at the time of the accreditation of the plaintiff or at the time the subject of the charges, the plaintiff submitted that there is an institutional bias given that the Safety Director was both the accrediting agency and the officer in charge of TSV to which both the Informant and the relevant legal staff are attached. The evidence shows that TSV legal staff are instructing solicitors in the committal. Independent counsel have been briefed to appear and conduct the committal instructed by TSV legal officers.
In that context, the plaintiff submitted that TSV, including the Safety Director and staff within TSV, were so deeply involved in assessing the risks to safety of the rolling stock and the rail infrastructure, and the measures to control those risks at the time of accreditation and the 2012 condition, that they cannot be independent and impartial in the conduct of the committal.
The applicable principles
In order to succeed, the plaintiff needs to establish that the Informant and/or the Safety Director have a conflict of interest in the proceeding and that to continue with the proceeding would constitute an abuse of process or be inconsistent with the due administration of justice amenable to orders from this Court in its supervisory jurisdiction.
The plaintiff submitted that the test is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice required that the Informant and/or the Safety Director be restrained from acting to protect the integrity of the judicial process and the due administration of justice because they would not bring an impartial and independent mind to the prosecution of the committal in accordance with the duties of a prosecutor.[25] Underpinning the submission was an argument that the defendants are subject to the same duties and obligations as a prosecutor. The defendants accepted that this was the correct test and I am prepared to proceed on that basis.
[25]This is the test applied in Grimwade v Meagher [1995] 1 VR 446, 455; Kallinicos v Hunt (2005) 64 NSWLR 561, 582 [76]; R v MG (2007) 69 NSWLR 20, 42.
This formulation is similar to that which is applied in the context of ostensible and actual bias on the part of decision makers including judges. In Ebner v Official Trustee in Bankruptcy[26] the High Court dealing with allegations of apprehended bias against a judge by reason of financial interest stated the test as follows:
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[27]
[26](2000) 205 CLR 337 (‘Ebner’).
[27]Ibid 344 [6] (citations omitted).
The test that has been applied in respect of counsel involves an assessment of whether a reasonable observer wold conclude that the person acting would not bring an independent or impartial mind whereas the principle explained in Ebner applies where the observer might apprehend that the judge might not bring an impartial mind. This difference reflects the high hurdle that must be overcome in order to prevent a party from having the lawyer of their choice.
That difference aside, the similarity between that test and the one I am called on to apply is not surprising given that both are engaged where there is, by reason of association, interest or other matter, a lack of independence and impartiality. That is not to say that prosecutors are in the same position as judges. Plainly they are not. It is not the role of the prosecutor to adjudicate on the issues raised in a prosecution; a prosecutor is entitled to vigorously but fairly present the case in favour of conviction.
It is also useful to recall that in the case of bias it is not sufficient merely to identify an interest. The High Court explained the need for a two-step analysis in the application of the principle:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[28]
[28]Ibid 345 [8].
I am prepared to assume that an informant is subject to the duties of a prosecutor in the conduct of a committal. Prosecutors owe a duty to the court to act fairly and impartially.[29] The prosecution has a duty to disclose all relevant material.[30] A failure of proper disclosure, or a failure to call material witnesses, can result in a miscarriage of justice.[31]
[29]Ismail-Zai v Western Australia (2007) 34 WAR 379 [36]; Cannon v Tahche [2002] 5 VR 317, 339–41 [56]–[59].
[30]Cannon v Tahche [2001] 5 VR 317, 339–41 [56]–[59]; R v Farquson (2009) 26 VR 410, 464 [210].
[31]R v Apostilides (1984) 154 CLR 563, 575.
It is clear that, in an appropriate case, this Court could enjoin a prosecutor from continuing to prosecute a matter where necessary to protect the integrity of the judicial process.[32] It may be necessary to do so where a reasonable observer would conclude the prosecutor, by reason of association or past conduct, would not bring an impartial and independent mind to the prosecution of the committal in accordance with the duties of a prosecutor.
[32]Grimwade v Meagher [1995] 1 VR 446; R v Khazaal (2006) 167 A Crim R 565; Ismail-Zai v Western Australia (2007) 34 WAR 379; R v MG (2007) 69 NSWLR 20.
In order to establish a disqualifying conflict, it is in my opinion not sufficient simply to point to an interest or association on the part of the prosecutor or Informant. There must be a logical connection between the matter giving rise to the conflict and the feared deviation from the course of prosecuting the case on its merits.
In R v MG[33] the NSW Court of Criminal Appeal held that previous public statements by a Crown Prosecutor demonstrated a lack of objectivity that stood in the way of an impartial and objective prosecution of a related trial. The Court of Criminal Appeal held that it was reasonable to conclude that the prosecutor would conduct the trial in a way to vindicate her earlier publically expressed views about the accused and the trial process.
[33](2007) 69 NSWLR 20.
In Grimwade[34] this Court restrained Senior Counsel from acting in a civil proceeding, having acted as prosecutor in an earlier related criminal proceeding. Mandie J concluded:
It is readily apparent that, in the unique, extraordinary and highly exceptional circumstances of this case, any member of counsel in the shoes of the first defendant, no matter how vigilant and self-controlled, might unconsciously or subconsciously succumb to the temptation to seek to use the said action as a vehicle to justify his conduct of the prosecution or to answer criticisms made in respect thereof and to attack the plaintiff or might be unable to properly distinguish between such personal interests and his duty to his clients. [35]
[34][1995] 1 VR 446.
[35]Ibid 454.
His Honour concluded that the ‘unique, extraordinary and exceptional circumstances’ of the case
would in my view cause a fair-minded observer to apprehend a real risk that the first defendant would be unable to appear in the said action and act with that objectivity and detachment which the court expects of counsel appearing before it and a real risk that the first defendant would be unable to properly distinguish or avoid a conflict between his personal interests and his duty to his clients in the said action. Alternatively, to adopt the test propounded by [counsel for the defendant] I consider that there is a real and sensible risk of a lack of objectivity by the first defendant which not only gives rise to an undue risk of unfairness or disadvantage to the plaintiff but gives rise to a substantial concern that a fair trial would not be had and hence gives rise to a concern for the integrity of the judicial process and the due administration of justice. [36]
[36]Ibid.
In both Grimwade and R v MG the relevant court identified a conflict between the interests of the lawyer in vindicating a previously expressed view or previous conduct and the performance of the fair, impartial and objective duties of counsel. There was a logical connection between the interest or association and the diversion from the proper discharge of counsel’s duties.
The application of these principles to the Safety Director is more difficult. The principles have their source in the protection of administration of justice in relation to persons who are involved as counsel or as informant. In relation to prosecutors and, by extension informants, they are based on the role played in the administration of justice. Those principles do not readily translate to a person who is not a party or practitioner.
The plaintiff sought to extend the obligation to act fairly and impartially to the Safety Director on the basis that the Informant is an officer within TSV and subject to the overall control of the Safety Director. The plaintiff submitted that the two defendants cannot be distinguished and are both manifestations of TSV as the prosecuting agency. Although not named in this proceeding the plaintiff also seeks to enjoin lawyers employed within TSV who are acting in the committal on the basis that they too are part of TSV and under the ultimate control of the Safety Director. The plaintiff seeks an order to cover those persons on the basis that they are servants or agents of the second defendant.
I accept that, in an appropriate case, the protection of the administration of justice would empower this Court to make an order preventing a person from taking any steps in relation to a proceeding, including a committal that would result in an abuse of process even if they were not a party or practitioner. However, it is difficult to see how a person who is not a party to, or acting in, a proceeding would have a conflict of interest of the type considered by the authorities.
The factual basis for the claimed conflict
The factual basis for the alleged conflict of interest on which the abuse of process argument depends rested on three matters.
First, at the time of accreditation and during the period covered by the charges the Safety Director was aware that the rolling stock operated by the plaintiff would be operated on the network where gaps between trains and platforms existed in a similar scale as existed at the Heyington station; and the relevant rolling stock operated with a 60-second traction delay interlock as opposed to an indefinite interlock.
Second, the Safety Director had imposed the 2012 condition in circumstances where he had specifically considered the 60-second interlock delay and the Safety Director did not require the introduction of a traction interlock on the entire Comeng fleet until 2017, and the letter accompanying the condition explicitly benchmarked the X’Trapolis train fleet (which had a 60-second interlock) as meeting TSV’s expectation for compliance.
Third, in imposing the accreditation condition the Safety Director at least impliedly permitted part of the fleet operated by the plaintiff to be operated with the same 60-second traction delay interlock system as the X’Trapolis fleet until 2017 and for some trains until 2024.
It is said that the conflict is manifest in two ways. First, the Informant’s failure to call relevant witnesses on the committal. Second, an interaction between a solicitor within TSV and an expert witness, Mr Evans, retained by TSV for the committal.
In relation to the failure to provide relevant statements, the plaintiff submitted that given the overlap between the accreditation decisions, including the decision to impose the 2012 condition, under s 46 of the RSA, fairness dictated that the Informant obtain statements from three witnesses within TSV: Mr Doery, Mr Alan Osborn and Mr Chris McKeown. I have already noted the submission of the plaintiff that each of them was aware of the limitations in the configuration of the rolling stock and were actively involved in the decision making relating to accreditation and the 2012 condition.
It is said by the plaintiff that each of those witnesses had significant roles in the accreditation decisions of the plaintiff. It is said those witnesses are relevant to:
(a) the actual knowledge of the plaintiff as to the risks attending the fleet and rail infrastructure and the controls that were available to deal with those risks;
(b) industry knowledge of those matters;
(c) the duty owed by the Safety Director pursuant to the principle of shared responsibility in s 13 of the RSA; and
(d) the political and financial practicability of implementing particular measures.
The plaintiff submits that this evidence is relevant to whether the plaintiff had failed, as far as is reasonably practicable, to ensure the safety of the infrastructure operations and rolling stock operations.
It is relevant here to note that statements have been obtained and supplied to the plaintiff in the hand-up brief from various officers employed by TSV. These include:
(a) the Informant, who will give evidence as to his inquiries made regarding the incident and the investigation carried out by TSV, including documents and information he obtained;
(b) Jocelyn Crawford, who was at the relevant time Deputy Director, Rail Safety Operations within the Rail Division of TSV;
(c) Geoff Bell, an Infrastructure Safety Engineer;
(d) James Duskovic, a Rolling Stock Engineer;
(e) George Lekkas, Senior Investigator; and
(f) Fabio Laves, Safety Information Reporting and Analysis Manager.
In addition, the prosecution have provided statements from three experts: Mr Andrew Evans, Mr David Edwards and Mr Paul Holmes. The committal hearing is yet to commence but the plaintiff has sought leave to cross examine each of these witnesses which is not opposed by the Informant.[37]
[37]Section 124 of the Criminal Procedure Act requires leave before an accused may cross-examine a witness.
The facts in relation to the second alleged manifestation of conflict are as follows. The Informant, through Ms Elizabeth Muhlebach, a lawyer within TSV who I infer has carriage of the committal, has retained a Mr Andrew Evans from Imperial College London to provide expert evidence in the committal proceeding. On 29 June 2016, Mr Evans sent an email to Ms Muhlebach attaching a three page note outlining his thoughts on safety after the fatality.
At point 3 Mr Evans said:
Wide gaps between trains and platforms are commonplace. They are caused in particular by the need to provide clearances for different types of train including freight trains, and by curved platforms, either convex or concave. For Great Britain, the RSSV (2015, page 13) estimate that only 7% of platform gaps conform to modern standards. Therefore it seems hard to fault MTM for the situation at Heyington.
On 28 July 2016, Ms Muhlebach wrote to Mr Evans advising that his opinion was being sought in relation to the rolling stock but not the platform configuration. She said:
I have been able to speak with our Senior Counsel this week and confirm that we would like to proceed with our request for a detailed expert report from you on the matters I previously outlined and as contained in your note.
However, I would also note that we are seeking your opinion only in relation to MTM’s role as a rolling stock operator and its compliance with its safety duties as such – as opposed to MTM’s role as a rail infrastructure manager and the points contained in section 3 of your note in relation to the train/platform gap – as Counsel has specifically advised us that an expert opinion should be sought in relation to the rolling stock operator’s obligations and the relevant issues of reasonably practicability.
The plaintiff submitted that this demonstrated a lack of impartiality on the part of the defendants and officers within TSV.
Consideration
I do not accept that there is a disqualifying legal or factual conflict on the part of the defendants or the legal officers or other staff within TSV that would preclude the defendants from acting in the committal as Informant or in the case of the Safety Director in providing instructions. I reach the same conclusion whether the position is analysed from the perspective of the individual defendants or from the perspective of TSV as a whole.
The Informant
Dealing first with the Informant, it is important to note that there is no evidence that the Informant played any role in the accreditation of the plaintiff. More specifically, there is no suggestion that he had any involvement with the three matters on which the plaintiff relies which I have set out at [68]-[70].
I am unable to conclude that a fair minded reasonably informed member of the public would conclude that by reason of being an employee of TSV the Informant would not bring an independent and impartial mind to the discharge of duties as an Informant including obtaining relevant evidence and dealing fairly and impartially with witnesses.
The defendant submitted that in bringing the charge (or prosecuting the committal) the Informant acts as the agent of the Safety Director. I do not accept that submission. First, s 105 of the Enforcement Act confers a power to bring a proceeding on a transport safety officer in his or her own right. That tells against a suggestion that such an officer does so as agent for the Safety Director. Moreover, there is no evidence that the Informant laid the charges at the direction of, or on behalf of, the Safety Director.
The plaintiff submitted that the conflict arose because the Informant is an employee of TSV under ultimate control of the Safety Director. I do not consider that the fact of employment alone is enough to establish that the Informant would not bring an independent mind to the prosecution. As I explain below, I am not satisfied that the Safety Director or TSV generally is conflicted in the conduct of the committal. However, even if some officers were conflicted I do not consider that such a conflict can be imputed to the Informant merely because he is an employee within TSV.
In making that assessment I appreciate that there is a dispute about the relevance to the committal of the knowledge of officers within TSV about the accreditation of the plaintiff and the 2012 condition. However, I am not able to conclude that the failure to provide statements of three witnesses in the hand-up brief or the interaction with the expert Mr Evans is evidence of, or a product of, a conflict of interest on the part of the Informant.
The dispute between the parties about the relevance of the accreditation is a legal rather than a factual one. The plaintiff did not suggest that there is a controversy between the parties as to what happened so much as a disagreement as to its relevance within this statutory scheme. The existence of that dispute does not entail that the Informant will not prosecute the committal impartially and with appropriate detachment. I am not persuaded that the fact of accreditation or the 2012 condition provide a logical reason for the Informant not to provide relevant statements or to conduct the committal in a partial or biased way.
In coming to this view, the statutory setting of the RSA which gives both a regulatory and an enforcement role to officers within TSV is important.
I was not taken to any authority to support the proposition that officers who are authorised by statute to bring a proceeding are in a position of disqualifying conflict because decisions and conduct of other officers within the same agency may be relevant to the hearing and determination of the charges. Acceptance of such a contention would severely undermine statutory schemes, such as that embodied in the RSA, that combine both regulatory and enforcement roles.
The defendants submitted, correctly in my view, that the RSA confers both an accreditation and enforcement role on the Safety Director. It would undermine that scheme to preclude a transport safety officer from commencing a prosecution against an accredited rail operator merely because they were accredited by the Safety Director. Similarly it would undermine the scheme if a transport safety officer was precluded from continuing with a committal of a charge properly brought because the accused wished to rely on aspects of the accreditation process in defending the proceeding.
It is reasonable to suppose that the Safety Director and transport safety officers have statutory authority to initiate and conduct proceedings because they have relevant expertise and knowledge of rail safety. It would be expected that such knowledge will have been obtained from accrediting rail operators. It would be a striking result if the expertise obtained in those processes would render a transport safety officer attached to TSV incapable of conducting a prosecution by reason of an imputed conflict of interest based on accreditation decisions made by other officers attached to TSV.
That would mean that a committal would have to be conducted by a police officer[38] or the DPP[39] neither of whom would be expected to have the relevant expertise in transport safety.
[38]Enforcement Act s 105(1)(c).
[39]Enforcement Act s 105(5).
It follows that I am not satisfied that the Informant has a disqualifying conflict of interest.
The Safety Director
In relation to the Safety Director and the agency more generally including the Informant, the plaintiff submitted that by the accreditation process, and in the circumstances of this case, the Safety Director knew the configuration of both the trains and platforms that were to be operated by the plaintiff and proceeded to accredit the plaintiff under ss 39 and 40. In effect it was submitted that the Safety Director has given his imprimatur to the very conduct that forms the subject matter of the charges.
I accept that the process of accreditation as it was applied to the plaintiff was designed to give, and did in fact give, the Safety Director and officers within TSV an understanding of the risks associated with the plaintiff’s rail operations and the control mechanisms that were in place on the X’Trapolis fleet and at Heyington station. The evidence shows there was concern within TSV including by the then Safety Director Mr Osborn about the need to install indefinite traction delay on all trains within the fleet and to take steps to reduce platform gaps.[40] Yet notwithstanding that concern the plaintiff remained accredited to operate the X’Trapolis fleet at the relevant time.
[40]As to the latter see eg the letter dated 21 July 2012 from Mr Osborne Safety Director, to Mr Lezala, CEO of the plaintiff, in which Mr Osborne requested the plaintiff to advise TSV of any short or long term initiatives to deal with gaps between train doors and platforms.
Where, as in this case, it is alleged that the rail operator has not done all that is reasonably practicable to ensure safety it is entirely possible that an operator will argue that it has done what it is authorised to do under its accreditation. In this case, it is likely the plaintiff will seek to defend the current charges on the basis that it was specifically accredited to operate trains with a 60-second interval lock and that this is relevant to whether it had done what was reasonably required of it.
The fact that an accused may seek to rely on the terms and effect of its accreditation, and that the parties are in disagreement about the relevance of those matters, does not without more give rise to a disqualifying conflict on the part of the Safety Director, a transport safety officer or officers within TSV more generally for the purpose of laying a charge and conducting a committal.
The plaintiff did not suggest that part of its defence to the charges would be to impugn the accreditation or any other decision of the Safety Director. There is no suggestion of wrong doing on the part of those involved in the accreditation process. This is not a case where TSV is being asked to justify its actions or is being criticised for wrong doing. Indeed, the plaintiff has foreshadowed that it will rely on the accreditation as in effect an imprimatur or at the very least relevant to the matters to which s 19 directs attention.
In the present case, I am not persuaded that the Safety Director or other officers within TSV have any personal or conflicting interest by reason of their involvement in, or knowledge of the accreditation process involving the plaintiff. I am not persuaded that the participation in the accreditation process would divert the Safety Director or other TSV officers from the proper discharge of their responsibilities in relation to the committal. The disagreement as to relevance, which is essentially a legal disagreement about how the scheme works, does not prevent the plaintiff from challenging and responding to the evidence that the Informant will tender on the committal.
That conclusion is consistent with that reached by the Court of Appeal in Tran v Magistrates’ Court.[41] In that case, the appellant was charged with a number of offences including assaulting police and rescuing prisoner in the custody of police. After being taken into custody for the principal offences the police alleged that he committed a further assault on police in an interview room in a police station. The appellant alleged that in fact he had been assaulted by the police when he was in custody. The Magistrate accepted the police account of what had occurred at the police station and the appellant was convicted of assault.
[41][1998] 4 VR 294.
The appellant argued that the criminal proceedings should have been stayed as an abuse of process on the grounds that the police who were alleged by the appellant to have assaulted him took part in the investigation of the principal offences and one of the policeman who was alleged to have assaulted the appellant was the informant who laid the charges against the appellant. The appellant argued that the police were in a conflict of interest on the basis that they were under a duty to dispassionately investigate and proceed in respect of the charges against the appellant yet they had a vested personal interest in the appellant being found guilty of both the principal offences and the later offence of assault in the police station.
Having noted that there was a significant time delay between the events and the hearing of the charges that would have dissipated any animus, Buchanan JA, with whom Batt and Kenny JJA agreed, said:
the existence of a motive on the part of the police to present the appellant in a bad light, which remained from first to last a motive which was not shown to have led to any improper conduct by the police, did not render the proceedings against the appellant an abuse of process.[42]
[42][1998] 4 VR 294, 297.
His Honour went on to note:
No authority was cited for the proposition that proceedings are an abuse if earlier investigations are carried out by a person accused by the defendant of wrongdoing to him or if such a person acts as informant, and I do not find the absence of such authority surprising.
Our court system is robust enough to deal with the matter. If the investigators or the informant do not act properly, that can be dealt with in the course of the proceedings themselves. Indeed if an informant has a personal motive to secure a conviction, that renders him vulnerable to attack in the proceedings.[43]
[43][1998] 4 VR 294, 298.
With respect, I would apply the same reasoning to this case.
Finally, in relation to the lawyers within TSV, there is no evidence that would allow me to conclude that their employment within TSV would prevent them from discharging their obligations to the court. I am not prepared to infer that legal officers would be diverted from their professional responsibility merely because officers within the agency in which they are employed may be called to give evidence or played a role in the events leading to the alleged offences. That is particularly so in the absence of any material that shows that the legal officers had any personal role or position in the accreditation process undertaken in relation to the plaintiff. There is no basis for me to conclude that lawyers within TSV lack the degree of independence necessary to maintain professional standards.
Not an abuse of process that would justify a stay
Even if there were some conflict of interest on the part of those within TSV, including the Safety Director and the Informant, that impinged on the independence and impartiality of the Informant and those within TSV instructing counsel on the committal, I do not consider that this would, in the present circumstances, justify any intervention by this Court.
There are a number of reasons for that conclusion.
First, as a matter of principle, this Court is extremely reluctant to interfere in an ongoing criminal process. Fragmentation of the criminal process is to be avoided unless absolutely necessary. In Rozenes v Beljajev[44] the Full Court of this Court observed, in considering whether it was appropriate for the Supreme Court to grant declarations in respect of questions arising from a trial that was about to commence in the County Court:
In the criminal jurisdiction an important consideration will be the need to observe and not fragment the ordinary, and orderly, process of a committal or trial. That consideration would apply with particular force ‘where proceedings are in charge of a judge who at this very moment is beginning the trial’. Such fragmentation should be avoided unless there are exceptional or special circumstances. …… These considerations apply whether the application be for a declaration or other form of judicial review such as relief in the nature of certiorari.[45]
[44][1995] 1 VR 533.
[45]Ibid 571 (citations omitted).
I am not persuaded that the present case is either special or exceptional. This court would only be justified in intervening in the running of a committal to prevent unfairness if it were satisfied that there was no other option or that the interests of the accused could not be protected either by the Magistrate or by the trial judge at any trial. In this case, I am not satisfied that the continuation of the prosecution at the committal stage results in unfairness of that nature or degree.
Second, although framed within the rubric of abuse of process I do not regard the contentions advanced by the plaintiff as engaging the principles that are applicable to preventing an abuse of process.
The essential contention made by the plaintiff is that there is a denial of procedural fairness in the committal by reason of the identity of the Informant and TSV as prosecuting agency. The plaintiff has not sought to establish either that the charges are flawed because they are brought for some improper purpose or that the plaintiff could not get a fair trial if it is committed. There is to my mind a significant and important distinction between unfairness in a committal in respect of a charge validly brought and a contention that the plaintiff cannot get a fair trial in the event it is committed.
In reaching that conclusion I accept that committal proceedings are an important part of an entire criminal process which includes the proceedings on a trial to which an order of committal naturally, but not inevitably, leads.[46] However, unfairness in a committal will only lead to an abuse of process where the continuation of the process will result in an unfair trial.[47] That may occur where for example the charge is brought for some improper purpose or there is some irremediable prejudice caused by the way a committal is run that would infect any future trial.
[46]Williams v Spautz (1992) 174 CLR 509, 532.
[47]Jago v The District Court of NSW (1989) 168 CLR 23, 30 (Mason CJ).
The plaintiff has not sought to persuade me that any subsequent trial would be unfair because of the identity of the Informant or the role that the Safety Director may play in the committal. Given the nature of the prejudice that the plaintiff identifies, namely failure to provide relevant statements in the hand-up brief, such a contention would be premature. In the event that the plaintiff is committed, the trial judge would have a range of powers to address any contention that relevant witnesses were not called on the committal. Moreover the assessment of what witnesses are to be called on the trial will rest with the prosecutor on the trial instructed by the DPP.[48] As Buchanan JA noted in Tran in the passages cited above at [99], the court system both at committal and more importantly at trial, is robust enough to deal with any manifestations of conflict that may have the effect of diverting a prosecutor from an objective, fair and impartial prosecution.
[48]R v Apostilides (1984) 154 CLR 563; Whitehorn v R (1983) 152 CLR 657.
In Jago v The District Court of New South Wales[49] Deane J stated that not every unfairness to an accused in a trial or in pre-trial processes amounts to an abuse of process. His Honour gave examples of where an abuse may arise involving default or impropriety on the part of the prosecution in pre-trial procedures, including where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. However his Honour went on to note that the effect of these matters can ordinarily be addressed by appropriate orders at trial. An abuse of process will only arise if the impugned conduct had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one. That is not this case.
[49](1989) 168 CLR 23, 57.
Further, I am not satisfied that as matters presently stand there is any practical injustice that would require this court to intervene. The committal hearing has not yet occurred. A number of TSV witnesses and the experts will be cross examined. I am not persuaded that the committal will be unfair to the accused or that if any unfairness is later demonstrated that such unfairness cannot be remedied.
Conclusion
Given that the plaintiff has not established the basis for the relief it seeks the proceeding will be dismissed. That being so it is not necessary for me to consider whether, in the event that an abuse the plaintiff were established, prohibition would have been available or whether an injunction or stay of the committal proceedings would have been the appropriate form of relief.
The proceeding will be dismissed.
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