Update on Morrison v Graham Anthony Chevalley; Morrison v Hilton Ross Grugeon

Sam Witton writes:

At the resumption of proceedings (previously reported on here) on Friday 9 April 2010, the submission in reply of the prosecutor, WorkCover NSW, that appeared to garner the most interest from the bench was the proposition that section 170 of the Industrial Relations Act 1996 (NSW) (IR Act) would, even if the charges against Mr Chevalley and Mr Grugeon were incorrectly pleaded, allow the IRC the power to amend the charge at any stage of the proceedings “in the interest of justice” which would, necessarily, include the interests of the community.

It was submitted that the reason why the prosecution against Kirk failed was because the case proceeded to conviction before the errors in the charge were realised. Had the charge been amended at some stage prior to conviction, the prosecution would have succeeded.

In addition, it was submitted by the prosecution that section 16 of the Criminal Procedure Act 1986 (NSW) (CP Act) sets out the legislative scheme to ensure that charges are not deemed invalid for want of matters to be proved or implied. It may well be the case therefore that the IRC will find a way through cases that have commenced by using its powers under the IR Act and the CP Act to allow charges to be amended and for the charged to be informed of the measures they could have taken at any stage up to the conviction of the defendant.

Submissions in reply were adjourned until 26 May 2010.


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