INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
INDUSTRIAL COURT CRIMINAL PRACTICE NOTE NO. 1
Issued pursuant to Section 185A of the Industrial
Relations Act 1996 and Section 15 of the Civil Procedure Act 2005.
WORK
HEALTH AND SAFETY ACT PROSECUTIONS
Commencement
1.
This
Practice Note commences on 1 July 2024.
Application
2. This Practice Note applies to all criminal proceedings commenced in the
Court pursuant to s229B(1)(b) the Work Health and Safety Act 2011 (the
WHSA) (WHS prosecutions).
Introduction
3. The purpose of this
Practice Note is to explain the administrative and case management procedures
followed in the Court for WHS prosecutions.
Commencement
of Summary Proceedings
4. Summary Proceedings are to be commenced pursuant to s246 Criminal
Procedure Act 1986 (CPA) and Rule 7C of the Industrial Relations Commission
Rules.
5.
The
Summons will be made returnable on the Monday following 8 weeks from the date
of issue.
6.
The
Summons and a copy of this practice note is to be served on the defendant
within 7 days of the issue of the summons in accordance with Rule 7C.2(4) of
the Industrial Relations Commission Rules.
7.
The
defendant or the defendant’s legal representative is to file with the Court and
serve on the prosecutor a Notice of Appearance (in the approved form) within 7
days of the service of the Summons.
Service
of the Brief of Evidence
8. The prosecutor is to serve the brief of evidence and a statement of
facts on the defendant or the defendant’s legal representative within 2 weeks
of service of the Notice of Appearance or within 28 days of the issuing of the
Summons, whichever is the later.
Before
the first mention
9. The parties are to take the following steps before the first mention to
assist with the efficient progress of the matter:
a) Retain solicitors and/or counsel who will be appearing in the matter to
allow for meaningful and binding forensic decisions to be made;
b) The defendant is to consider the plea that it intends to enter to the charge;
c) The defendant is to consider any representations that it might wish to
make to the prosecutor regarding the particulars of the charge and the facts
that will facilitate a plea of guilty. The defendant should be available on the
first mention date to commit to a timetable for the submission of representations;
d) The defendant is to consider whether the defendant intends to make an
application to the regulator for an Enforceable Undertaking.
At the
first mention
10. The prosecutor is to advise whether service of the brief and the
statement of facts has been given in accordance with the requirements of this
practice note.
11. The defendant is to advise the court of whether it is in
a position to enter a plea, and if so, the nature of that plea, and the
following procedure then applies:
a) If the defendant enters a plea of guilty, the matter will be listed for
a sentence hearing;
b) If the defendant enters a plea of not guilty, the matter will be listed
for defended hearing;
c) If the defendant needs further time to consider the brief of evidence
and/or seek further particulars, the matter will be stood over for 9 weeks,
with any request for particulars to be sent within 2 weeks and responded to
within 3 weeks from the date that it was received.
12. Upon entry of the plea, the parties should be prepared to provide
estimates for the length of any hearing (either interlocutory, sentence or defended)
and any special requirements or directions required for such hearing (e.g. service of expert evidence, requirement for an
interpreter).
13. Where a plea of guilty is likely to be entered, subject to an agreement
on the particulars of the charge and the facts alleged, the following procedure
applies:
a) A direction will be made for the defendant to make representations to
the prosecutor relating to the particulars of the charge and the facts alleged;
b) A direction will be made for the prosecutor to respond to the
defendant’s representations;
c) The matter will be listed for mention, at which time the defendant is to
enter a plea of guilty or not guilty to the charge;
d) In the event that there is still a dispute between the parties as to the facts and/or
particulars alleged by the prosecutor, the defendant can enter a plea of guilty
and the matter will be listed for sentence hearing on the basis that the
disputed facts and/or particulars will be determined at the sentence hearing.
14. Where a plea is entered, and the parties identify the need for an
interlocutory hearing, that hearing will be listed and
a timetable imposed.
15. If the defendant intends to make an application to the regulator for an
Enforceable Undertaking, the procedure at paragraphs 38-41 applies.
At the
second mention
16. The defendant is to advise the court of whether it is in
a position to enter a plea, and if so, the nature of that plea, and the
following procedure then applies:
a) If the defendant enters a plea of guilty, the matter will be listed for
a sentence hearing;
b) If the defendant enters a plea of not guilty, the matter will be listed
for defended hearing.
17. Upon entry of the plea, the parties should be prepared to provide
estimates for the length of any hearing (either interlocutory, sentence or
defended) and any special requirements or directions required for such hearing
(e.g. service of expert evidence, requirement for an
interpreter).
18. Where a plea is entered, and the parties identify the need for an
interlocutory hearing, that hearing will be listed and
a timetable imposed.
19. Where a plea of guilty is likely to be entered, subject to an agreement
on the particulars of the charge and the facts alleged, the procedure set out
at paragraph 13 applies. The Court may
have regard to a failure at the second mention to indicate that a plea of
guilty is likely to be entered when assessing the utilitarian value of any plea
of guilty entered at a later time.
20. If the defendant has made an application to the regulator for an
Enforceable Undertaking, the procedure at paragraphs 40-41 applies.
21. Where no plea is entered the Court will allocate the matter for hearing on the basis of a not guilty plea unless the Defendant or
their legal representative satisfies the Court that the interests of justice
dictate a further adjournment, in which case the matter will be listed for a
third mention within 4 weeks.
At the
third mention
22. Where a plea of guilty is likely to be entered, subject to an agreement
on the particulars of the charge and the facts alleged, the procedure set out
at paragraph 13 applies.
23. Subject to any order being made by the Court, in the absence of a plea
being entered, the matter will be allocated for hearing on
the basis of a not guilty plea.
24. No further adjournments, other than by operation of paragraph 22, will
be allowed except in exceptional circumstances and where the interests of
justice dictate. Any such application should be made by notice of motion
supported by evidence on affidavit.
Breach
of the Court’s directions
25. If there is a breach of the Court’s directions sufficient to cause
slippage in the timetable sufficient to impact upon the listing dates for the
matter, the parties must, in accordance with paragraph 26 below, relist the
matter in the next Monday list. The party in breach, or a legal practitioner
with knowledge of the reasons for the breach, must send to the list Judge’s
associate and serve a letter by no later than 4pm on the preceding Thursday,
identifying the breach, explaining the reasons for the breach
and outlining the proposed directions to be made in consequence of the breach.
Liberty
to Restore
26. Parties have general liberty to restore to the Monday list on 2 working
days’ notice. A party seeking to do so is to make prior arrangement with, or
give appropriate notice to, any other party and notify the List Judge or, once allocated, the Judge case managing the proceedings.
Applications
to vacate hearings
27. Applications to vacate hearing dates by consent are to be made by letter
to the Judge’s associate explaining the reasons for the application. Otherwise, applications to vacate hearing
dates (other than as a consequence of a plea of guilty
being entered by a defendant) are to be by notice of motion with an affidavit
in support explaining the circumstances giving rise to the application.
Expert
evidence
28. Unless the Court otherwise orders, an expert witness’ evidence in chief
must be given by the tender of one or more reports.
29. The provisions of Part 31 rules 23 and 27 Uniform Civil Procedure
Rules 2005 apply to the evidence of expert witnesses and any report of an
expert witness.
Preparation
for sentence hearings
30. Where a plea of guilty is entered, the prosecutor is to file and serve
any sentence bundle on the defendant no later than 4 weeks before the date on
which the matter is listed for sentence.
The sentence bundle should not include documents that are wholly
addressed by agreed facts,
31. If the prosecutor or the defendant seeks an order referred to in
ss236-241 WHSA, the prosecutor or the defendant is to notify the other party in
writing of the terms of the order sought and is to file and serve any affidavit
evidence in support of the order, by no later than 4 weeks before the date on
which the matter is listed for sentence.
32. The defendant is to file and serve any affidavit and supporting
documentation relevant to the issue of capacity to pay a fine (s6 Fines Act
1996) no later than 4 weeks before the date on which the matter is listed for
sentence.
33. The defendant is to file and serve any other affidavit and supporting
documentation no later than 2 weeks before the date on which the matter is
listed for sentence.
34. The prosecution and the defence are to file and serve an outline of
submissions no later than 3 days prior to the sentence date.
35. If there is a change to the conduct or length of the sentence hearing,
the parties are to notify the list judge or, once
allocated, the Judge case managing the proceedings at the earliest possible
stage.
Court
Technology and Evidence
36. If a party intends to adduce electronic evidence during the sentence
hearing, the party must consult the Associate to the Judge hearing the matter
no later than 7 days before the sentence hearing or trial to confirm that the
Court’s technology resources are capable of playing
the evidence.
37. Where the electronic evidence is not in a form that is compatible with the
Court’s technology resources, the evidence must either be converted to formats
used by the Court or the party must bring their own
devices to play the evidence.
Applications
for Enforceable Undertakings
38. Applications to the regulator for an Enforceable Undertaking (EU)
pursuant to Part 11 WHSA must be made by a defendant no later than 12 weeks
after the service of the brief of evidence.
39. The Court will take into account an application for an EU made later
than 12 weeks after the service of the brief of evidence
which is unsuccessful, when assessing the utilitarian value of any plea of
guilty entered at a later time.
40. Matters in which an application for an EU is made will be adjourned for
a preliminary hearing on a date no later than the Monday following 2 weeks
after the next meeting of the Enforceable Undertaking Panel or other convenient
date in the EU process. The parties must, within 2 weeks of a decision by the
regulator to reject an application for an EU, re-list a matter for mention.
41. The making of such an
application will have the effect of pausing the timetable established by this
practice note.
Reckoning
of Time
42. The provisions of Part
1.11 of the Uniform Civil Procedure Rules 2005 apply to criminal
proceedings.
Affidavits
43. The provisions of Part
35 of the Uniform Civil Procedure Rules 2005 apply to affidavits filed
in criminal proceedings.
Motions
44. The provisions of Part
18 of the Uniform Civil Procedure Rules 2005 apply to motions filed in
criminal proceedings.
Summonses
45. The provisions of Part 33 of the Uniform
Civil Procedure Rules 2005 apply to the following summonses filed in
criminal proceedings:
a) summonses to give
evidence under s165(3)(b) of the Industrial Relations Act 1986;
and
b)
summonses for production under s165(3)(c) of the Industrial
Relations Act 1986
Justice I Taylor
President of the Commission
1 July 2024