Information for families: What happens at the District Court

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Information for Families

What happens at the District Court

Disclaimer

This publication may contain work health and safety and workers compensation information. It may include some of your obligations under the various legislations that WorkCover NSW administers. To ensure you comply with your legal obligations you must refer to the appropriate legislation.

Information on the latest laws can be checked by visiting the NSW legislation website (www.legislation.nsw.gov.au).

This publication does not represent a comprehensive statement of the law as it applies to particular problems or to individuals or as a substitute for legal advice. You should seek independent legal advice if you need assistance on the application of the law to your situation.

What happens at the District Court?

In matters where there is sufficient evidence to warrant a prosecution for alleged breaches of the work health and safety legislation including the Work Health and Safety Act 2011, and it is in the public interest, WorkCover may commence a prosecution. Prosecutions may be commenced in the District Court, the Industrial Court or the Chief Industrial Magistrate's Court depending on the seriousness of the alleged breaches.

The District Court is located at Level 4, Downing Centre, 143-147 Liverpool Street, Sydney NSW 2000.

The Industrial Court is located at 47 Bridge Street, Sydney NSW 2000.

The Chief Industrial Magistrate's Court is located at Level 4, Downing Centre, 143-147 Liverpool Street, Sydney NSW 2000.

WorkCover have up to two years from the date of the incident to file a prosecution in the matter. An extension of this period may follow a coronial inquest or inquiry if evidence of an offence is disclosed. Following a prosecution being filed, it could be some months before the matter is set down for hearing.

Depending on the evidence and the circumstances of each case, WorkCover may prosecute an individual, a company and/or the director of a company. It may be that a prosecution for work health and safety breaches is not filed as there is not sufficient admissible evidence to prove an offence to the criminal standard of proof.

The court process

The first hearing, at a date set by the court, is called a mention where WorkCover and the defendant meet briefly in court to determine whether the defendant will enter a plea to the charge at that time. Sometimes this hearing is adjourned on the request of one of the parties. This process can happen on a number of occasions before a plea is entered.

If the defendant pleads 'guilty' to the charge, then the matter will proceed to a sentence hearing.

If the defendant pleads 'not guilty' then the matter will proceed to a defended hearing (also called a trial).

At the conclusion of either of the above hearings, the court may reserve its decision. In that case, the court will notify WorkCover and the defendant when the decision is going to be issued.

Following a defended hearing, if the defendant is found 'guilty' of the offence, the court will set another date for the sentence hearing.

Attending court

Family members may attend court for any of the hearings and may listen to the proceedings. The court process is formal as in any other court and it is usual to avoid eating or drinking in the courtroom. It is courteous to bow to the judge on leaving and entering the court.

You may want to bring someone with you when you attend court. Alternatively, the WorkCover Coordinator, Counselling and Liaison can provide court support if required.

Defended hearing

If the defendant enters a plea of 'not guilty' the court will list the matter for a formal hearing. The hearing usually takes place over a number of days; witnesses are called and are cross-examined. WorkCover is required to prove to the criminal standard (beyond reasonable doubt) that the defendant has committed an offence.

After the hearing is concluded the court will adjourn the proceedings to consider and write the judgment which will determine whether the defendant is guilty of committing the offence alleged.

If the court finds that the defendant is guilty of the offence, the proceedings are listed for a sentence hearing.

Sentence hearing

The purpose of a sentence hearing is for the judge to hear a summary of the prosecution (WorkCover's) case, and the defendant's response.

WorkCover may be represented by a WorkCover lawyer or barrister (known as counsel).

The WorkCover representative will give a summary of the prosecution's case, also known as a submission, where he or she will discuss objective factors such as, the seriousness of the offence including the degree of risk and the degree of foreseeability (how likely it was that the defendant should have anticipated or foreseen the risks). The submission will also include reference to specific and general deterrence.

This has to be taken into consideration by the judge in working out the sentence to be imposed. It means the judge gives consideration to determining a penalty that will act as a deterrent to the individual or company, but also to any other companies or individuals doing the same sort of work.

The submission also draws the judge's attention to any prior convictions that the individual or company may have.

The defendant's counsel will discuss subjective factors – such as whether the defendant is a good corporate citizen, personal circumstances and any action that the defendant has taken since the incident in terms of workplace safety. They may also include in this submission any support that the defendant may have provided to the family.

The court will consider the submissions and then issue a formal judgment, convicting the defendant and imposing a penalty.

What family may need to know

It is important to understand that, because these are criminal proceedings, the WorkCover prosecution is made on behalf of the Government of NSW, for all people in NSW. It is different in its nature to any proceedings an individual or family might take in the civil system.

The work health and safety legislation is designed to ensure that people at work are not exposed to risks to their safety. Consequently, the WorkCover prosecution is about the nature and degree of risk, not the outcome of the risk, which was the tragic death of a loved one.

It can be distressing listening to the defendant's legal representative discuss subjective factors relating to the defendant. This process allows for the defendant's side of the story including their personal, medical or financial situation. This process happens in every court, and is part of established sentencing procedures.

Looking after yourself

It can be difficult for some family members to listen to the evidence from the defendant's legal representative whose job it is to try and reduce the defendant's degree of responsibility for the offence.

It is not a reflection of the importance the court places on the loss of a loved one, it is simply a part of the legal process. Remember, you can leave the courtroom at any time and have a break; you don't have to stay to hear all of the material if you find it distressing.

Victim impact statements

Where a defendant has pleaded or been found guilty, after conviction but before sentence, eligible family members are able to submit a victim impact statement (VIS). This is a document that allows for family members to tell the court how the incident and the loss of their loved one has affected them.

A VIS cannot be used to grant a harsher penalty, and the absence of a VIS cannot be used to grant a more lenient sentence. The VIS is a way of giving family members a voice in the legal proceedings. Otherwise, they are not, in a legal sense, a part of the proceedings.

It is entirely up to family members whether they wish to submit a VIS, and support is available in the preparation of one by contacting the WorkCover Coordinator, Counselling and Liaison who can guide you through the sometimes difficult process of writing your VIS and help you ensure that it is appropriate and acceptable to the court.

It is important to liaise with your legal representative or the Coordinator, Counselling and Liaison before providing the VIS to WorkCover to be handed up in court. It is unusual, but possible that you could be asked in court about your VIS. Your VIS may be edited if the legal representative for either WorkCover or the defendant, consider that it contains information outside the scope and purpose of a VIS.

Family members can also read out their VIS in court. You may also have a friend or support person read out the VIS on your behalf.

Some family members have said they found the process of writing the VIS helpful, others have chosen not to. It is a very personal decision.

Judgment on sentence

If a defendant is found guilty the court will impose a penalty on the defendant. In determining the penalty, the judge will also consider factors such as the seriousness of the offence and whether they entered an early plea. The judge will also consider whether they are of good character, or have shown remorse (by making an early guilty plea for example).

Defendants who are sentenced will have a criminal record in addition to a fine imposed against them.

When the sentence is handed down, the judgment is on the public record.

Appeals

WorkCover or the defendant may file an appeal challenging the sentence if it is alleged that a legal error has been made in the court's reasoning in coming to the decision. The defendant is also able to appeal the finding of guilt.

After court

For many families, the District Court represents the end of a series of legal processes.

For some, the involvement with various authorities can mean continually having to revisit the tragic circumstances of the loss of a loved one. The conclusion of the District Court proceedings represents a time where you can begin to integrate the loss of your loved one, more privately, in your daily life.

Reaching the end of the legal processes can also leave some family members feeling sad or disappointed. This is understandable given that the prosecution has featured so prominently in your life, and is now concluded.

Some people have found that planning a holiday, organising a memorial services or a simple family ritual to mark the conclusion of the legal process can be helpful. Whatever you decide to do, remember you have honoured your loved one by participating and you deserve some congratulations for getting through what can be a stressful and difficult time.

Counselling and referral support is available at all stages of a WorkCover investigation and prosecution, including after any final court proceedings.

If you would like to attend a sentence hearing or a defended hearing but you cannot afford to do so, please discuss your situation with the Coordinator who may be able to organise for some assistance in attending the hearing.

WorkCover's Coordinator, Counselling and Liaison is available on 1800 806 626 (freecall).

 


Catalogue No. WC03871
WorkCover Publications Hotline 1300 799 003
WorkCover NSW, 92-100 Donnison Street
Gosford, NSW 2250
Locked Bag 2906, Lisarow, NSW 2252
WorkCover Assistance Service 13 10 50
Website workcover.nsw.gov.au
ISBN 978 1 74341 198 8
© Copyright WorkCover NSW 1012

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