WorkCover Authority of NSW (Inspector Simpson) v Haddad

[2014] NSWDC 123

District Court

New South Wales

Case Title:	WorkCover Authority of NSW (Inspector Simpson) v Haddad
Medium Neutral Citation:	[2014] NSWDC 123
Hearing Date(s):	1/08/2014
Decision Date:	04 August 2014
Jurisdiction:	Criminal
Before:	Curtis, J
Decision:	The Prosecutor's Motion of 21 July 2014 is dismissed I will hear the parties on costs Parties are to bring in Short Minutes of Order for the further disposition of the matter
Catchwords:	District Court - Notice of Motion seeking related matters be tried separately - Whether previous order of the Court be recinded - Whether defendant be called as a witness in other related matters - Whether joint or separate trials are within the interest of justice
Legislation Cited:	Occupational Health and Safety Act 2000 Evidence Act 1995
Cases Cited:	R v Saunders NSW CCA 29 March 1994, unreported R v Dellapatrona & Duffield (1993) 31 NSWR 123 R v Glover (1987) 46 SASR 310 R v Harbach [1973] 6 SASR 427 R v Demirok [1976] VR 244
Category:	Procedural and other rulings
Parties:	WorkCover Authority of New South Wales (Inspector Simpson) (Prosecutor) Nouri Haddad (Defendant)
Representation
- Counsel:	J Agius SC with C Magee (Prosecutor) D A Lloyd (Defendant)
- Solicitors:	WorkCover Authority of NSW (Prosecutor) Kheir Lawyers (Defendant)
File Number(s):	2013/286382

RULING

Introduction

1. On 17 June 2014 on the application of the defendant I ordered that the hearing date of this matter be vacated and the matter be set down for hearing as a joint trial with the prosecutions of Cement Australia Proprietary Limited, MSS Security Pty Ltd, and Magic Protection Services Pty Ltd.

The Present Application

1. The prosecutor by notice of motion of 21 July 2014 seeks rescission of my previous orders and an order that the proceeding be listed for trial separately, and on a date prior to, the hearing of the proceedings against the other defendants.

Rescission

1. I accept that an interlocutory order of this kind may only be varied or rescinded if it becomes inappropriate due to a change in circumstance or other good reason (R v Saunders NSW CCA 29 March 1994, unreported).

2. I am unpersuaded that there has been a material change in circumstances since my ruling, however, there are good reasons to reconsider.

3. It is patent from the correspondence between the prosecutor and the solicitor for Mr Haddad that Mr Haddad's legal advisers would at some time seek orders for a joint trial of all defendants. Nevertheless, when the matter came before the court for directions on 16 June 2014 the solicitor for the prosecutor who had conduct of the matter believed that the only order sought was a vacation of the trial date set for a separate trial.

4. That solicitor was not available and her associate Mr Diggins appeared at the directions for the prosecutor. Mr Diggins was not familiar with the matter, and had not prepared in advance the arguments for the prosecution resisting a stand alone trial of Mr Haddad.

5. The misunderstanding is plain. The Notice of Motion prepared by Mr Haddad's solicitor and filed at my request on 17 June 2004, after the argument, was amended at the prosecutor's request to delete reference to joinder, and instead ask that the proceeding "be listed with" the matters of the co-defendants.

6. The argument came before the court because Mr Haddad's solicitor wrote an e-mail to the registrar of the court, setting out his arguments for a joint trial, and requesting that the registrar list the matter for directions. This is highly irregular.

7. It is most unsatisfactory that the court should be asked to rule upon contentious issues in the absence of informative pleading and supporting affidavits. Both the respondent to a claim for relief, and the court, should know precisely what order is sought, and why.

8. In the event, the order that I made on 17 June 2014 that this matter be set down for a joint trial with the prosecutions of the corporate defendants was not an order sought by either party. It is appropriate that that order be rescinded.

9. It will be necessary in due course to hear the parties on what order should be made to advance these matters to trial.

Background

1. On 14 October 2011 at 4:50am Mr Amr Baghdadi was fatally injured when he was struck by a cement tank truck at the cement factory at Kandos. Mr Baghdadi was there employed as a security guard charged with recording the particulars of vehicles entering the site. The prosecution alleges that, because of poor lighting Mr Baghdadi was required to move from the front to the rear of a cement truck entering the site to record its registration number, and as he did this he came into contact with part the truck as it moved off from a stationary position.

2. The prosecutor asserts that Mr Baghdadi's death occurred because the three defendant corporations, contrary to their duties pursuant to section 8(1) and section 8(2) of the Occupational Health and Safety Act 2000, failed to ensure his safety, and that Mr Haddad, the controlling director of Magic Protection Services, contrary to his duty pursuant to section 26 (1) of the Act, failed to exercise due diligence in ensuring that that company complied with its duties pursuant to section 8(1).

The Defendants

1. Cement Australia provided management services to Cement Australia (Kandos) Pty Ltd, the company that owned and operated the plant. Those services included the provision of cement trucks and drivers. Cement Australia employed Mr Standing, the driver of the truck involved in the accident.

2. MSS Security had contracted with Cement Australia Group, the owner of Cement Australia Kandos Pty Ltd to provide security at the site. Magic Protection Services was a subcontractor to MSS Security and employed Mr Baghdadi. Mr Haddad was a director and controller of Magic Protection Services.

The Charges

1. Although multiple breaches of duty are alleged, the following is the gist of the failures alleged by the prosecution.

2. Cement Australia is charged with failing to ensure the safety of Mr Baghdadi in that it failed to inform its drivers that security officers had been engaged to monitor the entry of vehicles at Kandos, and failed to provide a protocol for observation by its drivers when entering the premises at Kandos to ensure the safety of the security officers.

3. MSS Security is charged with failing to ensure the safety of Mr Baghdadi in that it failed to ensure that a risk assessment of his duties was undertaken in consultation with Cement Australia and Magic Protection Services, failed to ensure that Magic Protection Services carried out an appropriate risk assessment and properly trained its employees, and failed to provide to Magic Protection Services relevant documentation concerning the safety of security procedures on the site.

4. Magic Protection Services is charged with failing to ensure the safety of Mr Baghdadi in that it failed to conduct a risk assessment of his duties, failed to develop and implement a system for working at night in low visibility, and failed to liaise with MSS Security to develop a system or protocol for safely recording registration numbers of vehicles at night.

5. Mr Nouri Haddad is charged that he failed to exercise due diligence to ensure that Magic Protection Services complied with its duties under section 8(1) of the Act.

6. Although the breaches of duty alleged against each defendant pursuant to the Occupational Health and Safety Act 2000 are several rather than joint, the Statement of Facts filed by the prosecution is common to each matter. The Statement of Facts clearly alleges systemic failures by all defendants with independent and interdependent responsibilities in matters of occupational health and safety.

Prosecutor's Submissions

1. Mr Agius SC for the prosecutor submits that the interests of justice require that Mr Haddad be called in the prosecution case against the other defendants. This is not possible in a joint trial, because section 17(2) of the Evidence Act 1995 provides that as a defendant in those proceedings he is not competent to give evidence for the prosecution.

2. Mr Haddad has made various admissions in relation to the conduct of operations at the site and also made several allegations against Cement Australia and MSS.

3. The prosecution, in the prosecution of the corporate defendants, wants to call Mr Haddad to prove that, before the accident, he complained of the lack of safety to the employees of Magic Protection Services because:

   (a) A greater number of security guards should be employed to ensure safety;
   (b) No designated space was provided for the security guards to shelter in the course of their duties;
   (c) The lighting at the scene of the accident was inadequate;
   (d) Both Cement Australia and MSS failed to provide induction training to the employees of Magic Protection Services.

4. The prosecution also desires that Mr Haddad give evidence that Magic Protection Services was not provided by MSS with certain documents relating to security procedures at the site.

Defendant's Submissions

1. Mr Lloyd for Mr Haddad submits that I should not depart from the general rule that in the interests of justice matters arising out of the same facts should be tried together. Ms Dexter for MSS Security and Mr Lloyd for Cement Australia join in this submission.

Principle

1. The guiding principle in the consideration of whether joint or separate trials should take place in prosecutions concerning common facts is the interest of justice.

2. There is a wealth of authority dealing generally with the principles involved, although the parties have discovered no authority directly in point. This is because the reported cases are concerned with applications by defendants for separate trial, rather than applications by the prosecutor. Nevertheless, the statements of principle to be found in the authorities are sufficiently wide to encompass the present facts.

3. The general rule finds expression in R v Dellapatrona & Duffield (1993) 31 NSWR 123 where the Court of Criminal Appeal said:

   There remains a balance to be struck between the public interest in the efficient despatch of criminal trials and any prejudice which may be caused to the accused. It is desirable to have all those charged in relation to a particular crime tried at the same time unless positive injustice would thereby be caused... .

4. In R v Glover (1987) 46 SASR 310 at 312 King CJ said:

   I take the view that when two accused persons are charged with offences arising out of an incident in which they have both participated, it is, generally speaking, highly desirable in the interests of justice that they should be tried together. It is, generally speaking, very unsatisfactory for juries to have to attempt to arrive at the truth of a matter when only one of the persons alleged to have participated in the criminal conduct is before them. In order to arrive at the truth of the matter it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident. There are cases, of course, in which that important consideration has to give weight to other considerations. There may be circumstances surrounding the case for the prosecution which would be so prejudicial to a particular accused that a separate trial is imperative, but, generally speaking, participants in the same incident alleged to have been of a criminal nature, or to have resulted in or have included the commission of criminal offences, ought to be tried together.

5. In R v Harbach [1973] 6 SASR 427 at 433 the Supreme Court of South Australia (Bray CJ, Mitchell and Sangster JJ) said:

   [Particularly] when each of the accused is seeking to cast the blame onto the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and it should see the person on whom blame is sought to be cast as well as the person seeking to cast it.

6. The policies underlying the general rule are expressed in the judgement of the Supreme Court of Victoria in R v Demirok [1976] VR 244 at 254 where their Honours said:

   The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense occurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues, except in situations where the interests of justice so require. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.

Conclusions

1. I commence from the standpoint that the prosecutor would not have laid the charges against the corporate defendants unless he was possessed of evidence, in the absence of Mr Haddad's allegations, sufficient to prove the charges beyond reasonable doubt.

2. Mr Agius says that the essential gist of the evidence of Mr Haddad is that Mr Haddad put the corporate defendants on notice of the dangers faced by Mr Baghdadi. He concedes that this evidence is not essential to the prosecution of those defendants, because a reasonable person in the position of the corporate defendants would have appreciated the dangers faced by Mr Baghdadi, even if those defendants did not.

3. A joint trial will permit counsel for Mr Haddad to cross-examine not only witnesses called for the prosecution, but witnesses called by the co-defendants. It will obviate the possibility of inconsistent findings that bear upon the culpability of each party; findings that may be relevant to both guilt and penalty in the event of conviction.

4. The policies raised in Demirok, being public expense, the possibility of inconsistent findings, expedition, and the convenience of witnesses all militate towards a joint trial.

5. I am unpersuaded that the prosecution of the corporate defendants will be significantly impeded by the absence of the expected evidence from Mr Haddad. I do believe that a separate trial will occasion injustice to Mr Haddad.

6. In all the circumstances I do not propose to depart from the general rule that matters arising out of the same facts should be tried together.

Orders

1. The prosecutor's motion of 21 July 2014 is dismissed.

   I will hear the parties on costs.
   Parties to bring in short minutes of orders for the further disposition of this matter.