This recent piece in the Australian newspaper caught the attention of some people: “Workplace safety principles under attack" by: Ken Phillips From: The Australian May 11, 2012 12:00AM
WHEN a judge refers to the behaviour of a prosecutor as conducing “persecution” rather than “prosecution”, this should be treated as a warning signal.
When this is followed by a High Court judge commenting that another prosecutor is conducting “sport” with an accused, there is cause to become concerned about the conduct of justice.”
The article uses two cases to pick up on one of the critical matters that is at the heart of the debate about whether the current drafting of the harmonized OHS laws is adequate. The two cases the author refers to are that of Kirk v NSWIRC and the more recent Baiada Poultry Pty Ltd v The Queen  HCA 14 case. I have previously written up the Kirk decision and a number of spin-off decisions from Kirk (in fact I have a category titled “the Kirk Spin-off”).
The facts in Baiada were reasonably straightforward. As Heydon J put it:
“…The appellant [Baiada] processed chickens at its plant. It made arrangements to raise, catch, crate, load and deliver them to that plant. Mr and Mrs Houben raised chickens for the appellant [Baiada]. The appellant arranged to collect some chickens from the Houben farm on 4 December 2005. The appellant provided a trailer containing empty crates into which the chickens were to be placed. The appellant also engaged two subcontractors. One was DMP Poultech Pty Ltd. It was to provide a forklift and driver to unload the empty crates. It was also to provide chicken catchers who were to catch the chickens on the farm, fill the crates, and load the full crates onto the trailer. The other subcontractor was Azzopardi Haulage Pty Ltd. It was to provide a driver and a prime mover to convey the loaded trailer from the Houben farm to the appellant’s plant. One of the chicken catchers, who was not licensed to drive a forklift, began to do so while the trailer was being loaded. In the course of this activity Mr Azzopardi, the principal of Azzopardi Haulage Pty Ltd, was killed.
Baiada was convicted by a jury and appealed to the VSCA. In a decision 2:1 the VSCA (Neave JA and Kyrou AJA, Nettle JA dissenting) dismissed the appeal. Baiada appealed to the High Court.
At trial Baiada had raised two defences:
- They argued that they did not have control over the forklift loading and unloading;
- However if they were found to have control then they had exercised measures which were reasonably practicable in ensuring a working environment that was safe by engaging specialist contractors.
Baiada was found guilty. They appealed on the grounds the trial judge had not directed the jury on their second defence. In the appeal before the VSCA the Court found unanimously that they were in control of the forklift operation (so Defence 1 failed) and found that Defence 2 had not been properly left to the jury. However (and this is where the split in the court emerged) the majority said this didn’t lead to a miscarriage of justice whereas Nettle JA said it did.
At the Special Leave application Baiada was successful – but only on the failure to leave Defence 2 point – which is really a criminal justice procedural fairness matter.
Baiada was not successful in getting special leave on the control point raised by Defence 1. The HCA noted that all thee judges in the VSCA had found against Baiada on this point.
As a result the High Court did not say anything to resolve the disputes posed as to control between Reilly v Devcon (WASCA) and R v ACR (VSCA) which Baiaida had urged (I have summaries off both cases on the blog in previous posts).
So Baiada does not really say too much about control. But the article is right on the point when it talks about the schism over whether to adopt the harmonized laws. That debate goes on. At this stage who knows if Victoria will opt in.