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Inspector Wade v North Coast Area Health Service


[2005] NSWIRComm 349 (5 October 2005)
Last Updated: 7 October 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Wade v North Coast Area Health Service [2005]


NSWIRComm 349

FILE NUMBER(S): IRC 3146, 3147, 3148, 3149, 3150 and 3151

HEARING DATE(S): 23/05/2005, 25/05/2005, 26/05/2005, 30/05/2005, 01/06/2005,


06/06/2005, 07/06/2005, 08/06/2005, 16/06/2005

DECISION DATE: 05/10/2005

PARTIES:

PROSECUTOR

WorkCover Authority of New South Wales (Inspector Wade)

JUDGMENT OF: Staff J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr M Joseph SC with Mr M Cahill of counsel

Solicitor: Mr G Diggins

WorkCover Authority of New South Wales

DEFENDANT
Mr G Inatey SC with Mr AA Henskens of counsel

Solicitor: Mr A Riordan

Colin Biggers & Paisley

CASES CITED: Abigroup Contractors Pty Ltd v WorkCover (Inspector Maltby) [2004]
NSWIRComm 270

ACCC v MUA (2001) 187 ALR 487

Adelaide Steamship Co Ltd & Anor v Spalvins & Ors (1998) 152 ALR 418

Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant)
70 IR 99

Cameron v R (2002) 209 CLR 339

Camilleri Stock Feeds Pty Limited v Environment Protection Authority (1993) 32


NSWLR 683

Capral Aluminium Ltd v WorkCover Authority of New South Wales (Insp Mayo-
Ramsay) (2000) 49 NSWLR 610

Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd
(1999) 92 IR 8

Director of Public Prosecutions v Esso Australia Pty Ltd (2001) 107 IR 285

Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales
(Inspector Ch'ng) (1999) 90 IR 432

Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of


Australia (1999) 201 CLR 49

Federal Commissioner of Taxation v Spotless Services Limited (1996) 186 CLR 404

Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales


(Inspector Steven Jones) [2002] NSWIRComm 364

Fisher v Samaras Industries Pty Limited (1996) 82 IR 384

Fletcher Construction Australia Limited v WorkCover Authority of New South Wales


(Inspector Fisher) (1999) 91 IR 66

Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271
Inspector Vosu v Ace-Semi Trailer Sales Pty Ltd [2005] NSWIRComm 222

Inspector Wade v Mid North Coast Area Health Service [2004] NSWIRComm 254

Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm
266

Law v Deed [1970] SASR 374

Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales


(Inspector James Ch'ng) (1999) 90 IR 464

Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector
Charles) [2000] NSWIRComm 239

Markarian v R (2005) 215 ALR 213

Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332

Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96

Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61

Pearce v R (1998) 194 CLR 610

Postiglione v R (1997) 189 CLR 295

R v Gallagher (1991) 23 NSWLR 220

R v Jobson [1989] 2 Qd R 464

R v Thomson; R v Houlton (2000) 49 NSWLR 383

Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416

Siganto v R (1998) 194 CLR 656

Singapore Airlines Limited v Sydney Airports Corporation Limited [2004] NSWSC 380

Somerville v Australian Securities Commission (1995) 60 FCR 319

South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005]
NSWIRComm 116

Southern Cross Airlines Holdings Ltd (In Liquidation) v Arthur Andersen & Co (a firm)
and Others (1998) 84 FCR 472
State Rail Authority of New South Wales v Dawson (1990) 37 IR 110

Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways [2005]
NSWCA 47

Sydney County Council v Coulson (1987) 21 IR 477

Veen v R (No 2) (1998) 164 CLR 465

Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR


326

Waugh v British Railways Board [1980] AC 521

Wong v R (2001) 207 CLR 584

WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2004] 135 IR
166

WorkCover Authority of New South Wales (Inspector Barnard) v Rail Infrastructure


Corporation (2001) 109 IR 209

WorkCover Authority of New South Wales (Inspector Katf) v Skilled Warehousing


(NSW) Pty Ltd and APC Socotherm Pty Ltd [2005] NSWIRComm 296

WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the
State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR
268

WorkCover Authority of New South Wales (Inspector Lancaster) v Burnshaw


Constructions Pty Ltd (2002) 121 IR 119

WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks
Limited [2005] NSWIRComm 188

WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering
Constructions Pty Ltd (No 2) (2001) 109 IR 347

WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty
Limited (No 2) (2000) 99 IR 163

WorkCover Authority of New South Wales (Inspector Petar Ankucic) v Macdonalds


Australia Limited and Anor (2000) 95 IR 383

WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area
Health Service (2002) NSWIRComm 44
WorkCover Authority of New South Wales (Inspector Stewart) v Central Sydney Area
Health Service (2001) 111 IR 216

WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of
New South Wales (Department of Education and Training, Department of Juvenile
Justice and TAFE) [2002] NSWIRComm 259

WorkCover Authority of NSW v Air Express International (Australia) Pty Limited (1996)
83 IR 64

WorkCover Authority of NSW v Thora Sawmilling Pty Limited (unreported, Matter No


CT 1186 of 1993, Schmidt J, 7 April 1994)

LEGISLATION CITED: Australian Securities Commission Act 1989

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Health Administration Act 1982

Health Services Act 1997

Mental Health Act 1990

Occupational Health and Safety Act 1983

Occupational Health and Safety Act 2000

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Staff J

5 October 2005

Matter No IRC 3146 of 2003

INSPECTOR PAUL WADE v NORTH COAST AREA HEALTH SERVICE

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983

Matter No IRC 3147 of 2003


INSPECTOR PAUL WADE v NORTH COAST AREA HEALTH SERVICE

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

Matter No IRC 3148 of 2003

INSPECTOR PAUL WADE v NORTH COAST AREA HEALTH SERVICE

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983

Matter No IRC 3149 of 2003

INSPECTOR PAUL WADE v NORTH COAST AREA HEALTH SERVICE

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

Matter No IRC 3150 of 2003

INSPECTOR PAUL WADE v NORTH COAST AREA HEALTH SERVICE

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983

Matter No IRC 3151 of 2003

INSPECTOR PAUL WADE v NORTH COAST AREA HEALTH SERVICE

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2005] NSWIRComm 349

INDEX

INTRODUCTION

THE CHARGES AND PARTICULARS

THE TENDER OF DR BARCLAY'S REPORT

Objection - Privilege

Reasons for Admitting Dr Barclay's Report

Section 119 of Evidence Act


The Evidence re Claim for Privilege

Legal Professional Privilege

Loss of Privilege

AGREED STATEMENT OF FACTS

THE PROSECUTOR'S EVIDENCE

Tender of Dr Barclay's Report - Objection - Relevance

Dr Barclay's Report

Dr Barclay's Oral Evidence

DEFENDANT'S EVIDENCE

SUBMISSIONS OF PROSECUTOR

SUBMISSIONS OF THE DEFENDANT

CONSIDERATION

The Instruction and Training Charges

The Safety and Security Charges

The Duress Alarm Charges

ORDERS

INTRODUCTION

1 On 12 June 2003, Inspector P Wade of the WorkCover Authority of New South Wales
("WorkCover") charged the North Coast Area Health Service (formerly the Mid North
Coast Area Health Service) with three breaches of s 15 of the Occupational Health
& Safety Act 1983 ("the OH&S Act") and three breaches of s 16 of the OH&S Act.

THE CHARGES AND PARTICULARS

2 The charges can be grouped into three. The first group of charges, those in matter Nos
IRC 3150 of 2003 and IRC 3151 of 2003 allege a failure on the part of the defendant to
provide adequate instruction and training as necessary to staff in relation to an admission
policy which was current at the Kempsey District Hospital at the time of the incident
("the instruction and training charge").
3 The charge laid against the defendant, pursuant to s 16(1) of the Act (IRC 3150 of
2003) allege:

On 2 and 3 July 2001 at Kempsey District Hospital, River Street, Kempsey in the State of
New South Wales, the defendant MID NORTH COAST AREA HEALTH SERVICE ,
being an employer, failed to ensure that Eunice Benedek, a person not in the defendant's
employment, was not exposed to risks to her health and safety, arising from the
conduct of the defendant's undertaking at the defendant's place of work, in contravention
of section 16(1) of the Occupational Health and Safety Act 1983.

4 The particulars of the charge are:

(a) At all material times the defendant was a body corporate constituted by provisions of
the Health Services Act 1997 (NSW).

(b) At all material times the defendant undertook the care and hospitalisation of patients
at the Kempsey District Hospital which consisted of a general hospital, community
health and mental care facilities.

(c) At all material times 149 Unit was a psychiatric inpatient ward located within the
confines of the Kempsey District Hospital.

(d) At all material times the defendant employed Paul Anthony Carter ("Carter"), Gordon
Turner ("Turner"), Valerie Elaine Hyland ("Hyland") as registered nurses with psychiatric
qualifications working in 149 Unit.

(e) At all material times the defendant employed Doctor Simon Lee Winder ("Winder") as
a medical practitioner working in the emergency department of Kempsey District
Hospital.

(f) At all material times the defendant employed Robert Lance Whatmough
("Whatmough") as a registered nurse in the emergency ward, and Susan Kay Smith
("Smith") as a registered nurse and Elizabeth Avery as an enrolled nurse working in the
surgical ward.

(g) At all material times the defendant employed Gail June Bateman ("Bateman"), a
registered nurse, as a Nurse Manager/Co-ordinator at Kempsey District Hospital.

(h) At all material times Eunice Benedek ("Benedek"), a 72 year old female with a
bipolar disorder, was an inpatient in 149 Unit.

(i) At all material times Victor Roy Trimarchi ("Trimarchi") was an inpatient in 149 Unit.

(j) The defendant's failures and/or omissions were failures to provide adequate
information, instruction, supervision and training as necessary to staff at Kempsey
Hospital including Carter, Winder, Turner, Bateman and Hyland in relation to Inpatient
Psychiatric Service Operational Policies for the Macleay Valley Health Services
which was the current policy for the admission of patients to the 149 Unit at Kempsey
District Hospital ("the Admissions Policy").

(k) As a result of these failures Trimarchi was inappropriately admitted to 149 Unit in that
he was inadequately assessed upon arrival at Kempsey District Hospital; he was not
categorised in accordance with the Admissions Policy; his belongings were not searched;
no attempt was made by staff to contact Westmead Hospital concerning a previous
admission; and he was not examined or assessed or placed under the care of a specialist
psychiatrist or nominee.

(l) At approximately 3.45am on 3 July 2001 Trimarchi assaulted Hyland and Bateman
and threatened with violence Smith and Avery. He then assaulted Benedek who received
massive head injuries and died as a result of the assault.

(m) As a result of the said failures and/or omissions there was a potential risk to the
health and safety of Benedek in that there was a risk of her being assaulted by
Trimarchi at Kempsey District Hospital.

5 The charge laid against the defendant pursuant to s 15(1) of the OH&S Act (IRC 3151
of 2004) allege:

On 2 and 3 July 2001 at Kempsey District Hospital, River Street, Kempsey in the State of
New South Wales, the defendant MID NORTH COAST AREA HEALTH SERVICE ,
being an employer, failed to ensure the health , safety and welfare of all its employees,
in particular Valerie Elaine Hyland, Gail June Bateman, Susan Kay Smith and Elizabeth
Avery, contrary to section 15(1) of the Occupational Health and Safety Act 1983.

6 The particulars of the charge are the same as set out above with the exception of
particulars (h), (i), (j) and (k) which are in the following terms:

(h) At approximately 3.45am on 3 July, 2001 Victor Roy Trimarchi ("Trimarchi"), an


inpatient of 149 Unit, assaulted Hyland and Bateman and threatened with violence Smith
and Avery. As a result of the assault Hyland suffered a fractured cheekbone and bruising
to her face, trunk and arms. As a result of the assault, Bateman suffered bruising to her
face and upper body.

(i) The defendant's failures and/or omissions were failures to provide adequate
information, instruction, supervision and training as necessary to staff at Kempsey
Hospital including Carter, Winder, Turner, Bateman and Hyland in relation to Inpatient
Psychiatric Service Operational Policies for the Macleay Valley Health Services
which was the current policy for the admission of patients to the 149 Unit at Kempsey
District Hospital ("the Admissions Policy").

(j) As a result of these failures Trimarchi was inappropriately admitted to 149 Unit in that
he was inadequately assessed upon arrival at Kempsey District Hospital; he was not
categorised in accordance with the Admissions Policy; his belongings were not searched;
no attempt was made by staff to contact Westmead Hospital concerning a previous
admission; and he was not examined or assessed or placed under the care of a specialist
psychiatrist or nominee.

(k) As a result of the said failures and/or omissions there was a potential risk to the
health , safety and welfare of the employees in that there was a risk of the employees
being assaulted by Trimarchi at Kempsey District Hospital.

7 Particular (l) was not repeated in respect of the s 15(1) charge.

8 The second group of charges, those in matter Nos IRC 3148 of 2003 and 3149 of 2003,
allege a failure of the defendant to implement at Kempsey District Hospital the
requirements of the New South Wales Health Policy "Safety and Security - Minimum
Standards for Health Care Facilities" dated September 1998 ("the safety and security
charge").

9 The charge and the particulars were in similar terms to the earlier charges brought
pursuant to s 16(1) of the OH&S Act. (Particular (l) was not repeated from IRC No 3150
of 2003 resulting in a re-lettering of the particulars). Particulars (j), (k) and (l) are in the
following terms:

(j) The defendant's failures and/or omissions were the failures to implement at Kempsey
District Hospital the requirements of the NSW Health policy "Safety and Security -
Minimum Standards for Health Care Facilities" September 1998, particularly those
provisions relating to annual security surveys, implementation of a security induction and
training programme, identification of staff working in high risk areas, identifying areas
which might be classified as isolated areas and ensuring staff do not work alone in
isolated facilities or units; provision of training for staff in minimisation and management
of aggression.

(k) As a result of these failures Trimarchi was able to move freely and without restrictions
within 149 Unit and in and out of 149 Unit and without any supervision at Kempsey
District Hospital.

(l) As a result of the said failures and/or omissions there was a potential risk to the
health and safety of Benedek in that there was a risk of her being assaulted by
Trimarchi at Kempsey District Hospital.

10 The charge brought pursuant to s 15(1) is in the similar terms to the first charge
brought under s 15(1). Particulars (i) and (j) are in the following terms:

(i) The defendant's failures and/or omissions were the failures to implement at Kempsey
District Hospital the requirements of the NSW Health policy "Safety and Security -
Minimum Standards for Health Care Facilities" September 1998, particularly those
provisions relating to annual security surveys, implementation of a security induction and
training programme, identification of staff working in high risk areas, identifying areas
which might be classified as isolated areas and ensuring staff do not work alone in
isolated facilities or units; provision of training for staff in minimisation and management
of aggression.

(j) As a result of these failures Trimarchi was able to move freely and without restrictions
within 149 Unit and in and out of 149 Unit and without any supervision at Kempsey
District Hospital.

11 The remaining particulars are in similar terms to those set out in the first section 15(1)
charge.

12 The third group of charges, those in IRC 3146 of 2003 and IRC 3147 of 2003, allege a
failure to provide safe systems in that there was no adequate policy, procedure or training
in place at Kempsey District Hospital to ensure a timely and appropriate response to the
activation of duress alarms in emergency situations ("the duress alarm charge").

13 The third charge brought under s 16(1) of the OH&S Act is in similar terms to the
earlier s 16(1) charges. Particulars (h), (i), (j) and (k) are in the following terms:

(h) At all material times Smith was the nurse in charge of the surgical ward and was a
casual employee.

(i) At all material times Eunice Benedek ("Benedek"), a 72 year old female with a bipolar
disorder, was an inpatient in 149 Unit.

(j) At all material times Victor Roy Trimarchi ("Trimarchi") was an inpatient in 149 Unit.

(k) The defendant's failures and/or omissions were failures to provide systems of work
that were safe and without risk to non-employees in that there was no adequate policy,
procedure or training in place at Kempsey District Hospital to ensure a timely and
appropriate response subsequent to the activation of duress alarms in emergency
situations.

14 In all other respects, the particulars were identical with the particulars referred to in
the earlier s 16(1) charges.

15 The third section 15(1) of the OH&S Act charge was in similar terms to the earlier s
15(1) charges. Particulars (f), (h) and (j) are in the following terms:

f) At all material times the defendant employed Robert Lance Whatmough


("Whatmough") as a registered nurse in the emergency ward, and Susan Kay Smith
("Smith") as a registered nurse and Elizabeth Avery as an enrolled nurse working in the
emergency department.
h) At all material times Smith was the nurse in charge of the surgical ward and was a
casual employee.

j) The defendant's failures and/or omissions were failures to provide systems of work that
were safe and without risk to the employees in that there was no adequate policy,
procedure or training in place at Kempsey District Hospital to ensure a timely and
appropriate response subsequent to the activation of duress alarms in emergency
situations.

16 In all other respects the particulars were identical insofar as relevant to this charge to
the particulars in the first and second s 15(1) charges.

17 The defendant initially pleaded not guilty to the charges and eight days were reserved
for the hearing of the matter to commence on Monday 19 July 2004.

18 At the commencement of the hearing on 19 July 2004, the defendant sought an


adjournment of the proceedings because of the late service of expert reports. The
application was refused. On 27 July 2004, the prosecutor sought to tender the record of
interview between Inspector Wade and Nurse Watman pursuant to s 87(1)(b) of the
Evidence Act 1995 ("EA"). Mr A Henskens of counsel, who initially appeared for the
defendant raised a threshold question of the admissibility of the transcript of the record of
interview and the tapes of the interview. (Later in the proceedings, Mr Inatey SC
appeared with Mr Henskens). Mr Henskens sought a voir dire in respect of Inspector
Wade and Nurse Watman in relation to the admissions, particularly in respect of whether
"the circumstances in which the admission was made were such as to make it unlikely
that the truth of the admission was adversely affected" (s 85(2) EA). Extensive argument
ensued regarding s 85, s 87, s 90, s 135 and s 137 of the EA. The argument occupied six
days and I delivered judgment on 31 August 2004. See Inspector Wade v Mid North
Coast Area Health Service [2004] NSWIRComm 254.

19 The matter was listed for further hearing to commence on Monday 23 May 2005 with
four weeks being reserved to conclude the matter.

20 On Friday 20 May 2005, the Court was advised that the defendant pleaded guilty to
the charges.

THE TENDER OF DR BARCLAY'S REPORT

Objection - Privilege

21 When the hearing resumed, Mr M Joseph SC with Mr M Cahill of counsel appeared


for the prosecutor. Mr Joseph sought to tender a report of Dr William Barclay, a
psychiatrist ("the Barclay report"). Dr Barclay had been engaged by the defendant to
conduct a review and report on the incident that occurred at Kempsey District Hospital
involving Mr Trimarchi.
22 Mr Henskens objected to the tender of the Barclay report on the grounds of privilege
relying on s 119 and s 122 of the EA.

23 Having heard arguments in respect of the tender of the Barclay report, I ruled that the
report was not protected by s 119 of the EA and that the provision of Dr Barclay's report
to Dr Raphael, the Health Care Complaints Commission and the Coroner, had resulted
in the loss of client legal privilege pursuant to s 122 of the EA.

Reasons for Admitting Dr Barclay's Report

24 The reasons for this ruling are now set out.

25 The prosecutor sought to tender a report of Dr William Barclay dated March 2003. Mr
Henskens objected to the admission of the report into evidence. He submitted that the
evidence was subject to a privilege under s 119 of the Evidence Act ("EA") submitting
that the Barclay report was prepared for the dominant purpose of the defendant being
provided with professional legal services related to and anticipated Australian
proceedings (this prosecution).

26 Mr M Joseph SC submitted that the report of Dr Barclay did not attract privilege
because the dominant purpose for preparing the Barclay report was not for the purpose of
legal proceedings. In addition, Mr Joseph submitted that the disclosure of the Barclay
report to Professor Raphael, Director, Centre for Mental Health, the Health Care
Complaints Commission ("the HCCC") and the Coroner caused the report to lose client
legal privilege pursuant to s 122 of the EA.

27 As this argument occurred after the defendant had formally entered pleas of guilty, I
raised with counsel whether the Court should make a direction pursuant to s 4(2)(a) of the
EA that the provisions of the EA apply to these proceedings. The defendant sought such a
direction although it was opposed by the prosecutor. This was raised at the conclusion of
the submissions which had proceeded on the assumption that the EA applied. In
deference to the way in which the submissions were advanced, I made the requisite
direction under s 4(2) that the provisions of the EA apply to these proceedings and
approach the matter in the light of those provisions.

28 The facts relating to the Barclay report and the claim made for legal professional
privilege are complex. It is necessary, in my view, to set out the chronology of events to
fully understand the circumstances that gave rise to the claim for privilege.

29 At approximately 3.45 pm on 3 July 2001, Mr Trimarchi, a patient of Kempsey


District Hospital who had been admitted to the 149 Unit of the Hospital (a psychiatric
unit) assaulted Nurses Hyland and Bateman and threatened Nurses Smith and Avery. Mr
Trimarchi then assaulted a patient, Mrs E Benedek, who received massive head injuries
and died as a result of the attack.
30 The Chief Executive of the defendant at the time, Mr Clout, initiated a clinical review
after the incident.

31 On 1 August 2001, Professor Raphael, the Director, Centre for Mental Health , New
South Wales Health Department, engaged Dr Barclay to investigate Mr Trimarchi's
assault. Dr Barclay commenced his initial clinical review of the homicide of Mrs
Benedek by Mr Trimarchi on 21 August 2001. Shortly after 21 August 2001, Dr Barclay
prepared a "Confidential Discussion Document - Preliminary Conclusions Regarding
Each Of The Fatal Incidents" for Professor Raphael.

32 In March 2002, a Report in Progress into Fatal Incidents in Various Area Health
Regions was prepared by Dr Barclay and Professor E White and forwarded to Professor
Raphael on 25 March 2002. On or about 27 May 2002, the HCCC requested a report
from the defendant with respect to the Trimarchi incident. On 4 June 2002, Mr Clout
sought advice from Professor Raphael in respect of the HCCC complaint relating to the
Trimarchi matter. On or around 30 August 2002, Dr Barclay was asked to prepare
individual reports in respect of each homicide including the Trimarchi matter. On 30
September 2002, Dr Barclay submitted six reports to the legal officer for the Centre for
Mental Health . On 29 October 2002, Mr Clout wrote to the HCCC concerning a
complaint from Legal Aid regarding Mr Trimarchi. Mr Clout advised that a meeting had
been arranged with Professor Raphael and the Commissioner for Legal Aid to discuss
issues concerning the release of information regarding the Trimarchi matter.

33 In November 2002, Mr Clout met with Professor Raphael and Commissioner A Adrian
of the HCCC regarding the release of information provided to the HCCC.

34 On 28 January 2003, Dr Barclay was contacted by Professor Raphael and requested to


provide a report into the Trimarchi incident. It is contended by the defendant that it
engaged Dr Barclay to prepare the additional report although it is acknowledged that the
formal request to Dr Barclay was made by Professor Raphael.

35 On 30 January 2003, Mr Clout received a letter from the WorkCover Authority of


New South Wales advising of a possible prosecution in respect of the Trimarchi incident.
On or about 13 February 2003, Mr Sheehan, Area Human Resources Director of the
defendant, telephoned Dr Barclay and requested that he "prepare the report for and
address the report to our lawyers to enable them to advise us in a possible WorkCover
prosecution arising out of the incident". Dr Barclay was requested to forward the report to
Colin Biggers & Paisley Solicitors retained by the defendant. Dr Barclay observed that "it
(the report) will be completed within the next couple of weeks".

36 On 19 February 2003, Mr Clout wrote to the HCCC advising that a "copy the report
will be forwarded to you as soon as possible", this being a reference to Dr Barclay's
report.

37 On 4 March 2003, Dr Barclay forwarded his report to Colin Biggers & Paisley. On 7
March 2003, Dr Barclay forwarded a copy of his report to Dr Raphael.
38 On 14 March 2003, Mr Clout forwarded a copy of the Barclay report to Dr Paton,
Area Clinical Director, Mental Health of the defendant, to consider for the purposes of
completing a report to the HCCC. Mr Clout requested Dr Paton prepare a draft letter to
the HCCC for his consideration and he advised "given my view about open disclosure of
information, I anticipate such reply would provide both Dr Barclay's report and the
advice you provide to me".

39 On 14 May 2003, Professor Raphael released Dr Barclay's report to the HCCC. On 20


May 2003, the HCCC forwarded a copy of Dr Barclay's report to Mr J Abernethy, the
New South Wales State Coroner.

40 On 21 May 2003, Mr Clout provided a copy of Dr Barclay's report under cover of


letter drafted by Dr Paton for Mr Clout to the HCCC, together with a copy of the Barclay
report. The concluding paragraph of Mr Clout's letter to the HCCC was in the following
terms:

I have no objection to this letter and Dr Barclay's report being made available to
party(ies) the Commission considers should have access to them. It would seem to me
appropriate however for such release to occur once the Commission has completed its
investigation/considerations.

41 On 2 June 2003, the HCCC wrote to the New South Wales State Coroner in the
following terms:

PRIVATE AND CONFIDENTIAL

Re: Complaint by Mr Trimarchi concerning Kempsey Hospital and the death of the late
Eunice Benedek

Dear Mr Abernethy,

I refer to our previous correspondence in which I forwarded a copy of the investigation


report into this matter organised by the Centre for Mental Health , NSW Department of
Health . I am now forwarding a copy of the report received from the Mid North Coast
Area Health Service . This report details the action the Area has taken to address the
problems with the Mental Health services and facilities in their responsibility.

The Commission is reviewing the reports and will be determining if further action is
required.

...

42 On 1 November 2003, Dr Barclay, at the request of Colin Biggers & Paisley prepared
a chronology in respect of the Trimarchi incident. On 12 February 2004, Colin Biggers &
Paisley, on behalf of the defendant, wrote to the HCCC. This letter, in part, stated:
...

At the time the copy of the report was furnished to you on 21 May 2003 by Mr Clout of
the Service , Mr Clout had not obtained legal advice and was unaware that provision of
the Barclay Report may have the effect of waiving legal professional privilege in the
report. Had he been aware of that fact he would not have supplied the report to you.

In light of the foregoing, there has been an inadvertent provision to you of privileged
material. We request that you identify all copies of the Barclay Report which have been
made by you and deliver them to us. Further, we request that you identify any third
persons to whom copies of the Barclay Report have been provided.

We note that the consent of Mr Clout to provide copies of the report to third parties was
(notwithstanding his misapprehension in terms of legal professional privilege) expressed
to be at the conclusion of your investigation. It would appear that prior to the completion
of your investigation, a copy of the report was provided to the legal representatives of Mr
Trimarchi. This of course was only possible due to the inadvertent waiver of privilege
(see Hooker Corporation Limited and Darling Harbour Authority (1987) 9 NSWLR
538). Privilege in the report has not been waived.

43 It will be recalled that Mr Clout had caused Mr Sheehan to contact Dr Barclay on or


around 13 February 2003 to request that the Barclay report be forwarded to Colin Biggers
& Paisley. However, he subsequently distributed the report to the HCCC.

44 On 10 May 2004, the HCCC wrote to Colin Biggers & Paisley in the following terms:

In relation to the Barclay Report, the Commission was sent two copies of this report
from:

(i) Professor Beverley Raphael, Director, Centre for Mental Helath, (sic) NSW
Department of Helath (sic) with correspondence dated 14 May 2003

(ii) Mr Terry Clout, CEO, Mid North Coast Area health Service with correspondence
dated 21 May 2003.

Professor Raphael advised that the Commission could release this document to Mr John
Abernethy, NSW State Coroner in her correspondence to the Commission. A copy of the
report was sent to the Coroner on 20 May 2003.

The Commission further provided a copy of this report to Mr Doug Humphreys, Director,
Criminal Law, Legal Aid of NSW on 17 June 2003.

...

45 It is against this background that the defendant contends that the Barclay Report dated
March 2003 is the subject to privilege under s 119 of the EA and that pursuant to s 122
the disclosure of the Barclay Report to Professor Raphael, the HCCC and the subsequent
disclosures by the HCCC to Legal Aid, and to the Coroner did not result in the loss of
privilege by reason of s 122 of the EA.

Section 119 of Evidence Act

46 I deal firstly with the claim for privilege pursuant to s 119 of the EA. Section 119 of
the EA provides:

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing
the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a
lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services
relating to an Australian or overseas proceeding (including the proceeding before the
court), or an anticipated or pending Australian or overseas proceeding, in which the client
is or may be, or was or might have been, a party.

47 Mr Henskens contended that the defendant was clearly "the client" submitting that the
request by Mr Clout to Professor Raphael to obtain a report from Dr Barclay and
Professor White should be construed as the report being commissioned on behalf of the
defendant. Mr Henskens also pointed to Dr Barclay forwarding his invoice for the report
to the defendant and the defendant paying for the report.

48 The difficulty with this submission is that it seems to me the Department of Health
is a separate body to the defendant.

49 In order to deal effectively with this issue, it is necessary to have regard to the
statutory structure which is to be found in the Health Services Act 1997.

50 An Area Health Service is constituted by s 17 of the Act as a body corporate and


comprises particular Local Government areas specified in the schedule to the Act. By s
22 an Area Health Service has perpetual succession and is, in effect, constituted as a
body corporate. The functions of Area Health Services are described in s 10 as
including the conduct and management of public hospitals, health institutions,
health services and health support services under its control, which in turn is a
reference to those institutions and services provided within its geographic area. By s
33 an Area Health Service is empowered to "appoint and employ such employees as
may be necessary for the purpose of exercising its functions".
51 The New South Wales Health Service which I take to mean the New South Wales
Health Department is said by s 16 to consist of all persons employed by each Area
Health Service, by each statutory health corporation and as members of staff by
affiliated health organisations. Thus, the New South Wales Health Service is
constituted by the persons who provide, in general terms, health services throughout
New South Wales. It should be noted that s 16 specifies in connection with Area Health
Services that it is persons employed under s 33 of the Act to which reference has earlier
been made. Accordingly, s 16 refers back to employment by an Area Health Service .

52 Section 115 of the Health Services Act describes the role of the Health
Administration Corporation within the New South Wales Health Services . This body
is constituted by the Health Administration Act 1982. Pursuant to s 115(3)(c), the
Health Administration Corporation is taken to be the employer of employees in the
New South Wales health services for the purpose of any proceedings before a
competent tribunal having power to deal with industrial matters. Such powers may be
delegated pursuant to s 115(4).

53 In my view, the effect of s 115(3) is to allow the Health Administration


Corporation to enter into certain industrial agreements and to undertake certain other
functions as if it were the employer of employees within the New South Wales Health
Service but for no other purpose. Accordingly, the "relevant public health
organisation" which by s 7 of the Health Services Act is defined to be, among other
things, an Area Health Service , remains the employer for all other purposes. It
therefore seems to me that the report obtained by Professor Raphael was on behalf of the
New South Wales Health Department and the defendant. However, it is not necessary
because of the view that I have taken in respect of the question of whether the report is
privileged to finally determine this issue.

54 It was not in dispute that as at 30 January 2003 there was a real prospect of litigation
being commenced by the WorkCover Authority of New South Wales against the
defendant as distinct from a mere possibility: Mitsubishi Electric Australia Pty Ltd v
Victorian WorkCover Authority (2002) 4 VR 332 at [3], [17] - [20].

55 It was common ground that the test of what is "a dominant purpose" was an objective
test, but that the subjective intention of the person responsible for the document coming
into existence was entitled to weight. In Esso Australia Resources Limited v
Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49,
Callinan J said at 107:

Whether a purpose is a dominant purpose, is, in my view, a matter to be objectively


determined but the subjective purpose will always be relevant and often decisive.
(Footnote omitted).

56 The test of "dominant purpose" has been expressed in terms of "clear paramountcy"
(see Waugh v British Railways Board [1980] AC 521 at 543, Mitsubishi Electric
Australia Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at 336 - 337). In a
different context, the High Court said in Federal Commissioner of Taxation v Spotless
Services Limited (1996) 186 CLR 404, at 416 (Brennan CJ, Dawson, Toohey, Gaudron,
Gummow and Kirby JJ):

... In its ordinary meaning, dominant indicates that purpose which was the ruling,
prevailing, or most influential purpose.

57 In Singapore Airlines Limited v Sydney Airports Corporation Limited [2004] NSWSC


380 McDougall J considered the issue of the time at which the question of privilege had
to be determined, that is, was it at the time that the report was commissioned or at the
time that the report was prepared? His Honour adopted the former. Although his Honour's
decision was the subject of an appeal, this matter did not arise on the appeal: Sydney
Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways [2005] NSWCA
47.

58 I respectfully agree with his Honour.

59 It was submitted by Mr Henskens that for the purposes of this matter, "prepared"
referred to the Barclay report in its final form. It was submitted it was in its final form
when it was sent to the defendant and this is the document the subject of the claim for
privilege. Mr Henskens pointed to the evidence of Mr Sheehan on or about 13 February
2003 that made it clear that the report was not finalised at that time. Mr Henskens also
pointed to the date that the report was received being on or about 5 March 2003 as
evidence that the report was not ready as at 13 February 2003. It is this date from which
the defendant asserts that the purpose of the preparation of the report changed. I reject
this submission. As I have earlier stated in my view the time that the report was
commissioned is the relevant time to determine dominant purpose.

The Evidence re Claim for Privilege

60 Mr Clout gave evidence as to the circumstances in which the Barclay report was
brought into existence. Mr Clout was at the relevant time the Chief Executive Officer of
the defendant. Mr Clout's affidavit evidence was that on or about 27 May 2002, he
received a letter from the HCCC, seeking, among other things, a report in respect of the
Trimarchi incident at Kempsey District Hospital. Mr Clout wrote to the Department of
Health on 4 June 2002 seeking guidance on how to respond to the HCCC request. In
cross-examination, Mr Clout agreed that some time around January 2003, he asked
Professor Raphael if she could obtain a report from Dr Barclay.

61 As to why Mr Clout didn't seek the report himself, he was unsure. The following
exchange occurred during cross-examination:

JOSEPH:

Q. In January 2003 there were many reasons why the Mid North Coast Area Health
Service would want this report from Dr Barclay?
A. There are a number of reasons, yes.

Q. The most obvious reason, prior to January of 2003, is contained in your letter of June
2002, annexure B, isn't it; namely the complaint from the Health Care Complaints
Commission or the investigation of the complaint from the Health Care Commission?

A. There is no question at the time I commissioned Dr Barclay to provide a report to me


that that was one reason for asking for the report. That's true.

Q. Indeed, back in June 2002 that was the only reason for you seeking that report?

A. No.

Q. Sorry?

A. No.

Q. What was the other reasons to which you would seek that report in June 2002?

A. I was the Chief Executive Officer of an Area Health Service that needed to get as
much information and advice as I could from as many places as I could to ensure that
Mental Health Services across the area were being provided in the most efficient,
appropriate, safe manner and if there were any issues that anyone could give me advice
about, that could assist me in taking decisions that would improve the manner in which
those services were provided, then I would seek the advice.

Q. Well, was there another reason in June 2002, looking at annexure B?

A. Just let me get annexure B, please. That's the letter of 4 June?

...

Q. The third reason was - I am looking at .3 - possibly other matters of insurance and the
like; was that relevant at that time?

A Not at the time. At that time, no, no.

Q. In any event, those concerns, those issues remained reasons for obtaining that report
by January 2003, is that right?

A. Yes.

Q. And by January 2003, an additional reason had come forward, namely, the possibility
of a prosecution?

A. There's no question that when I was aware that--


Q. Is that correct or not, an additional reason had come forward by January 2003.

A. Yes, yes.

Q. And despite all of those reasons, you thought rather than you directly asking for that
report, you would ask Prof Raphael to ask Dr Barclay for the report?

A. No, that's incorrect.

Q. Well, can I just ask you what role did Prof Raphael have with Dr Barclay that caused
you to ask her - I am looking at annexure C, - that meant that you would ask her to
provide you with a report?

A. I am accountable to, as Chief Executive, to the Director General of Health . As such


I have absolute statutory obligations to do two things, first of all certain statutory
requirements in terms of reporting and in any major issues or critical issues, I have an
absolute obligation to advise and involve the senior people within the Department of
Health who are the delegates of the Director General in the carriage of those matters.

Q. Your Honour could I interrupt. I want you to direct your mind to the question. Why
did you think that Prof Raphael had contact with Dr Barclay sufficient to get her to get
the report for you?

A. Because she is the Director of the Centre For Mental Health , number one. Number
2, she is a leading psychiatrist in New South Wales and has much more direct access to
knowing how to get in contact with people like Dr Barclay than I have.

Q. Are you seriously suggesting that you could not have lifted up the phone in January
2003 and found out where Dr Barclay was and who he was and simply asked him to send
the report to you, if it was you, it was through your organisation that you were seeking
the report?

A. I am not suggesting that at all. I could well have done that and had done in the past.
The fact is I didn't. But the fact that I didn't doesn't mean that I didn't commission the
report.

Q. It does suggest to you, can I put to you, Mr Clout, that Dr Barclay's work was not
commissioned by you, but in fact was commissioned by at least Prof Raphael or the
Department of Health or both the Department of Health and you, and that you
chose simply to use the offices of Prof Raphael to get the report?

A. I can see that it may infer that, but that's not the fact.

Q. Can you take us to any document that suggests that it was the Mid North Coast Area
Health service that commissioned this report from Dr Barclay?
A. Probably not, but that's my answer to the question and that's honestly how it happened.

62 And later, in cross examination:

Q. So, any request from Prof Raphael to Dr Barclay for a report for you as at 28 January
2003 had nothing to do with pending legal proceedings?

A. That's correct.

Q. And that remained the situation, didn't it, as to your need for the report from Dr
Barclay thereafter?

A. No, it did not.

Q. So, you say there was an additional reason requiring a report from Dr Barclay, namely,
the fact that you were told there was to be a prosecution?

A. Yes.

Legal Professional Privilege

63 Having regard to the evidence of Mr Clout, it is not open to me to find that the Barclay
report was brought into existence for the dominant purpose of obtaining legal advice with
respect to litigation then reasonably contemplated. The dominant purpose or purposes
when the report was commissioned were those stated by Mr Clout and did not include the
purpose of obtaining legal advice.

64 In addition, no further information was provided to Dr Barclay regarding the possible


prosecution. Dr Barclay proceeded to prepare his report on the information provided to
him by Professor Raphael. He did not know the nature of the prosecution, nor was he
provided with any documents concerning the prosecution. The report he prepared relied
on information that he had gathered during an earlier investigation and opinions he had
collected since 2001.

65 In the event that I am wrong about this aspect of the claim for privilege, I turn to
consider the additional arguments raised in respect of loss of privilege.

Loss of Privilege

66 Section 122 of the EA is concerned with the "loss of privilege" aspect of client legal
privilege. Section 122 is in the following terms:

122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the
client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a
client or party has knowingly and voluntarily disclosed to another person the substance of
the evidence and the disclosure was not made:

(a) in the course of making a confidential communication or preparing a confidential


document, or

(b) as a result of duress or deception, or

(c) under compulsion of law, or

(d) if the client or party is a body established by, or a person holding an office under, an
Australian law—to the Minister, or the Minister of the Commonwealth, the State or
Territory, administering the law, or the part of the law, under which the body is
established or the office is held.

(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an
employee or agent of a client or party or of a lawyer unless the employee or agent was
authorised to make the disclosure.

(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if
the substance of the evidence has been disclosed with the express or implied consent of
the client or party to another person other than:

(a) a lawyer acting for the client or party, or

(b) if the client or party is a body established by, or a person holding an office under, an
Australian law—the Minister, or the Minister of the Commonwealth, the State or
Territory, administering the law, or the part of the law, under which the body is
established or the office is held.

(5) Subsections (2) and (4) do not apply to:

(a) a disclosure by a client to another person if the disclosure concerns a matter in relation
to which the same lawyer is providing, or is to provide, professional legal services to
both the client and the other person, or

(b) a disclosure to a person with whom the client or party had, at the time of the
disclosure, a common interest relating to a proceeding or an anticipated or pending
proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness
has used to try to revive the witness’s memory about a fact or opinion or has used as
mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence by police
officers).
67 Dr Barclay forwarded his report to the defendant and also to Professor Raphael.

68 By its terms, s 122 results in the loss of the privileges granted by s 118, s 119 and s
120 where a client waives the privilege either voluntarily or impliedly. The learned author
of Uniform Evidence Law, Mr S Odgers, (Lawbook Co 2004, 6th Edition) at p 474, takes
the view that s 122(4) applies when the disclosure is other than by the client or party. This
is to be contrasted with s 122(2) which specifically relates to the disclosure of the
privileged material by a client or party. Mr Henskens submitted that to read the
subsections otherwise means that they cover the same field but with different tests which
is an unlikely Parliamentary intention. The defendant's submissions proceeded on the
basis of the Odgers construction of s 122(2) and s 122(4).

69 Subsection (4) of s 122 of the EA deals with the disclosure by third parties. It is
subject to s 122(5) which provides that the privilege will not be lost by reason of a
disclosure of the privileged material to a person with whom the client had a common
interest. The report was sent to Professor Raphael in her position as Director, Centre for
Medical Health , New South Wales Department of Health . Mr Clout as Chief
Executive of the defendant was accountable to the Director General of Health . As
such, it was contended by Mr Henskens his reporting to Professor Raphael, who held a
senior position in the Department of Health was in effect reporting to the Director
General or his delegate. There was no evidence before me to this effect. It followed, so it
was submitted, that there was a sufficient common interest between the defendant and the
Department of Health for s 122(5) to apply. Common interest in terms of s 122(5) is a
legal interest, such as disclosure by insured to insurer, partner to partner, co-tenant to co-
tenant.

70 During cross examination, Mr Clout's evidence was as follows:

JOSEPH:

Q. I take it you acknowledge that you told - you told us you reported in part to Prof
Raphael?

A. Yes.

Q. I take it as she was the director of the centre for mental health ?

A. When you say "report" I report to the director general. I work with Prof Raphael in
respect of mental health matters, yes.

Q. You delegate mental health to her?

A. Yes, but we have a working relationship that is one of equal, a statutory working
relationship.

Q. She was the person you looked to to get the report of Dr Barclay to be sent to you?
A. Yes.

Q. I take it you do not dispute she had authority to send that same report to the coroner?

A. She had authority to do it.

Q. Thank you?

A. I do not think there is any doubt about that.

Q. She had authority to do it as the director of the centre for mental health ?

A. I think that is right.

71 Mr Henskens submitted that, pursuant to s 122(5), privilege will not be lost by reason
of a disclosure of the privileged material to a person with whom the client had a common
interest. Counsel submitted the report was sent to Professor Raphael in her position as a
senior figure in the Department of Health and by reason of Mr Clout reporting to
Professor Raphael and the fact that he had a duty to keep the Department of Health
informed, and therefore her, informed of any legal proceedings relating to a sentinel
event, there was a sufficient common interest for s 122(5) to apply.

72 The difficulty I have with this submission is that Mr Clout was required to report to
the Director General of the Department of Health . He may have had a general duty
keep Professor Raphael informed. However, what I am concerned with here is the legal
obligation. It is the words of s 122(5) that govern the question now in issue. All that is
required for s 122(5)(b) to apply is that there be a disclosure by a person entitled to claim
legal professional privilege to another with whom the privileged claimed "had, at the time
of the disclosure, a common interest relating to" the action. I do not accept that Professor
Raphael and Mr Clout could be said to have one and the same interest. Professor
Raphael's interest, as a representative of the Department of Health was independent of
that of Mr Clout. In my view they were not the same. Mr Clout was the Chief Executive
of an independent statutory organisation. Professor Raphael is, in broad terms, the
Department of Health . A common interest in, as referred to in s 122(5), is a reference
to legal interest.

73 In Southern Cross Airlines Holdings Ltd (In Liquidation) v Arthur Andersen & Co (a
firm) and Others (1998) 84 FCR 472 Drummond J considered whether a common interest
existed between a liquidator and creditors. At 12 - 13, his Honour stated:

...If a liquidator, as here, makes a report to creditors on the progress of his administration,
which includes a report on possible avenues of recoupment of funds on behalf of the
company which will augment the funds available for distribution to creditors, a disclosure
in such a report that the liquidator has good grounds for pursuing claims against a third
party is, in my opinion, a disclosure by the liquidator to persons, viz, the creditors, who
have a common interest with the liquidator within s 122(5)(b) relating to anticipated
action by the liquidator against that third party.

74 In Somerville v Australian Securities Commission (1995) 60 FCR 319, the Australian


Securities Commission claimed common law legal professional privilege under the
litigation limb of that privilege in respect of legal advice obtained by it prior to
commencement of the action it brought in the names of various injured persons pursuant
to s 50 of The Australian Securities Commission Act 1989 (C'th). The Full Court of the
Federal Court held that the Commission was not a party to such litigation and that there
could be no client with respect to the litigation who could properly claim legal
professional privilege in respect of the Commission's documents in question until the
action was actually commenced. It was also held that the ASC did not have a common
interest with others in litigation, brought by it under s 50 for the benefit of those others,
sufficient to attract privilege those others could claim to the Commission's own
documents. It was said that the Commission, in addition to not being a party to the
litigation, had no interest in its fruits (p 325) and that it was at 329:

Simply the statutory vehicle to commence and conduct litigation in the public interest. It's
interest in the litigation is the furtherance of the public interest by assisting wronged
plaintiffs to recover loss or damage or property that has been caused by the wrongful
activities of persons whose conduct has been investigated by the Commission pursuant to
its investigatory powers. The Commission's position has nothing to do with the role of
persons who claim to have common interest in litigation.

75 Drummond J further observed in Southern Cross Airlines at 13 - 14 as follows:

As is made clear by Lockhart J's discussion in Somerville of the position of the ASC in an
action brought by it under s 50 in the name of and for the benefit of an injured party, the
ASC does not have either the same or even a similar interest in the successful outcome of
such litigation with the beneficiary of the Commission's action. The latter's interest is in
the Commission's action being successful. The Commission's interest is solely in
ensuring, not that that person's pecuniary interests are vindicated, but that the litigation
provides an appropriate vehicle for vindication by the Commission of the public interest
in ensuring that misconduct uncovered by a Commission investigation is not left
unremedied by action being taken, whatever be the outcome of that action. See
Somerville at 324 - 325 and Australian Securities Commission v Deloitte Touche
Tohmatsu (1996) 70 FCR 93 at 114 - 120.

The cases relied on for this view in Somerville were more recently considered in Farrow
Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601; Sheller JA
(Wardell A-JA agreeing and Meagher JA expressing no opinion) said, at 609, that
common interest privilege at common law is not a rigidly defined concept, that "[a] mere
common interest in the outcome of litigation will be sufficient to enable any party with
that interest to rely on it".
76 Here, in my view the defendant and Professor Raphael did not each have "a mere
common interest in the outcome of litigation" brought by the WorkCover Authority of
NSW against the defendant. In my view, neither has a common interest in the subject
matter of the report and the prospects of a prosecution by the WorkCover Authority that is
sufficient to ensure that the communication of any privileged report between them will
not destroy the privilege.

77 Mr Henskens further submitted that the disclosure of the report to the HCCC did not
defeat the privilege. In summary, counsel submitted that pursuant to s 122(2)(a) of the
EA, privilege is not lost if the document was disclosed in the course of making a
confidential communication. Counsel submitted the document was marked confidential
and that Mr Clout's evidence was that he considered the communication to the defendant
to be confidential. Secondly, it was submitted that the disclosure to the HCCC was not
done voluntarily and knowingly. Thirdly, it was submitted that s 122(2) requires the
document to be produced to another person. Counsel submitted that there is an
artificiality in the extreme to consider the disclosure by the defendant, a Government
owned Area Health Service to the HCCC, another Government established statutory
authority, as separate persons for the purposes of the EA.

78 The difficulty that I have with these submissions is that by letter dated 21 May 2003,
Mr Clout wrote to the HCCC enclosing a copy of Dr Barclay's report. The initial draft of
this letter had been prepared by Dr Michael Paton and did not contain the following
paragraph which only emerged in the letter forwarded to the HCCC:

... I have no objection to this letter and Dr Barclay's report being made available to
party(ies) the Commission considers should have access to them. It would seem to me
appropriate however for such release to occur once the Commission has completed its
investigation/considerations.

Yours faithfully

Terry Clout

Chief Executive Officer

cc Professor Beverley Raphael, Director Clinical for Mental Health

79 Mr Clout clearly indicates that he has no objection to his letter to the HCCC and Dr
Barclay's report being released. The only issue that he left to the discretion of the HCCC
was the timing of the release of the letter and the report which he suggested should occur
at the completion of the HCCC's investigation/considerations. This approach was
consistent with evidence given by Mr Clout that he generally believed in open disclosure.

80 In my view, in light of Mr Clout's comments in the last paragraph of his letter of 21


May 2003 to the HCCC, it cannot be suggested that he did not knowingly and voluntarily
agree to the release of the Barclay report to third parties.
81 The HCCC forwarded a copy of the Barclay report to the solicitors for Mr Trimarchi
prior to the completion of its investigation which Mr Henskens submits did not defeat the
privilege because of the limitation Mr Clout placed on the release of the report. However,
that seems to me to overstate the observation Mr Clout made in the last paragraph of his
letter of 21 May 2003 in respect of when it may be appropriate to release the report. On a
proper reading of the last paragraph of Mr Clout's letter, he left the timing of the release
of the report to the HCCC.

82 However, if I am wrong, it seems to me that privilege has been lost pursuant to the
provisions of s 122(4) of the EA. All that is required for s 122(4) to apply is that there be
a disclosure with the express or implied consent of the client or party to another person.
Mr Clout expressly consented to the disclosure of the Barclay report.

83 The HCCC disclosed the report to Legal Aid. To my mind, in view of the express
consent of Mr Clout in respect of the disclosure of the Barclay report, privilege is
similarly lost pursuant to s 122(4) of the EA.

84 The Barclay report was also disclosed by Professor Raphael to the Coroner and the
HCCC. Mr Henskens submits that Mr Clout was not aware of these disclosures and
contends that such disclosure was expressly contrary to the terms under which Professor
Raphael was provided with the Barclay report.

85 On 7 March 2003 Dr Barclay forwarded a copy of his report to Professor Raphael


under cover of the following letter:

Re Kempsey District Hospital Critical Incident Involving Victor Trimarchi

I forward a copy of my report re this matter.

I was advised by Mr Terry Clout that Colin Biggers and Paisley, Lawyers, who are
representing the Mid North Coast Area Health Board in matters relating to this critical
incident raised by WorkCover, requested that this report be prepared for them for their
use in connection with those matters.

This document may well be subject to legal privilege. Accordingly I supply it for your
information alone and on the basis that it contains only information and opinions of
which you are already aware from my previous reports to yourself.

I sent a copy to Mr Clout representing as he does the Area Board as defendant in any
possible legal action.

Yours faithfully

William Barclay
86 It is clear from the evidence that Dr Barclay forwarded a copy of his report to the
defendant's solicitors, Colin Biggers & Paisley and also to Professor Raphael. Mr Clout
was, at all times aware that Dr Barclay had forwarded a copy of his report to Professor
Raphael. Each report therefore had its own independent existence. I have already found
that the report forwarded to Colin Biggers & Paisley was not privileged. In my view, the
forwarding by Dr Barclay of his report to Professor Raphael resulted in that report never
attracting privilege. This report, to my mind, had an independent status to the report
forwarded to the defendant's solicitors. Professor Raphael represented an independent
authority and was entitled to do whatever she chose with the report. It is clear from the
evidence that Mr Clout knew that Professor Raphael received a copy of Dr Barclay's
report. Mr Clout was in active discussions with Professor Raphael and the HCCC in
respect of releasing information regarding the Trimarchi incident.

87 Assuming that I am incorrect about the status of the Barclay report held by Professor
Raphael, to my mind, there can be no doubt that when Professor Raphael wrote to the
HCCC enclosing a copy of the Barclay report on 14 May 2003, the disclosure of the
report by Professor Raphael was done with either the express, or at the very minimum,
implied consent of Mr Clout, assuming of course that such consent was needed in any
event.

88 Mr Henskens advanced similar submissions in respect of the disclosure of the Barclay


report by the HCCC to the Coroner. As I have already determined, Mr Clout authorised
the HCCC to "make available to the parties" the Barclay report. Pursuant to s 122(4) of
the EA the disclosure by the HCCC to the Coroner of the Barclay report resulted in the
loss of privilege.

89 Finally, it was submitted by Mr Henskens that the disclosure by one Government


controlled health entity (the HCCC) to another arm of Government (the Coroner) is
not a disclosure to another person for the purposes of s 122(2) of the EA. Mr Henskens
submitted that the Coroner performs an inquisitorial function and not a judicial function
with regard to fatalities. I reject this submission. It is a nonsense to suggest that the
HCCC and the Coroner are one and the same as the Department of Health or the
defendant. Each is an independent statutory body and the release of the Barclay report to
those bodies resulted in the loss of privilege attached to the report pursuant to s 122(4) of
the EA.

90 Finally, it was submitted by Mr Joseph that the release of Dr Paton's report for which
no claim for privilege was sought and which contained references to Dr Barclay's report
then meant that once that body of information is released with it goes Dr Barclay's report.
Counsel submitted you can't disclose the substratum of a report and claim that report is
still privileged.

91 Mr Henskens submitted that Dr Paton's report does not establish the wholesale
inclusion of Dr Barclay's report, in particular, what he had to say about specific matters.
Counsel submitted that the Paton report falls well short of the alleged disclosure of Dr
Barclay's report. The question that arises here is whether the substance, in the context of s
122, of the Barclay report has been disclosed. See for example the discussion by the Full
Court of the Federal Court in Adelaide Steamship Co Ltd & Anor v Spalvins & Ors
(1998) 152 ALR 418 at 430 - 431; Southern Cross Airlines Holdings Ltd (in liq) at 484.

92 In light of the ruling that I have earlier made that the Barclay report is not privileged,
it is unnecessary for me to determine this issue.

93 Similarly, in light of the earlier ruling that the Barclay report is not privileged, it is
unnecessary to determine the question as to where the copy of the Barclay report that
came into the prosecutor's possession emanated from. It could have only come from three
sources, those being, the Legal Aid Commission, the HCCC or the Coroner. Mr Henskens
submitted that the onus was on the prosecutor in respect of any contended loss of
privilege pursuant to s 122 of the EA. This included proving where the copy of the
Barclay report obtained by the prosecutor had emanated from. If the copy of the Barclay
report was from a privileged document, it was submitted that you cannot give to the copy
any better status than you can to the document that was copied. It is unnecessary to
determine this issue in light of the earlier findings made that the Barclay report,
regardless of which source it emanated from to the WorkCover Authority, does not attract
privilege.

AGREED STATEMENT OF FACTS

94 The prosecutor tendered an agreed statement of facts for all matters.

95 To state the facts in an introductory way, at some time during the morning of 2 July
2001, Victor Roy Trimarchi allegedly threatened his wife at home with violence. He
produced a machete and Mrs Trimarchi was fearful Mr Trimarchi was going to hit her as
he had spoken of decapitating people. The Police took Mr Trimarchi into custody and at
about 10.30 am Mr Trimarchi, in Police custody and handcuffed, arrived at the
Emergency Department of Kempsey District Hospital.

96 Mr Trimarchi was assessed by a psychiatric nurse who arranged for a non-specialist


medical practitioner (Dr Winder) on duty in the Emergency Department of the hospital to
undertake a second assessment. Neither was of the view that Mr Trimarchi should be
scheduled under the Mental Health Act 1990. During the assessment process Mr
Trimarchi was handed an admission agreement form which dealt with admission as a
patient to Kempsey District Hospital. Mr Trimarchi signed the form but it was neither
witnessed nor dated. At about 1.30 pm Mr Trimarchi was taken to Unit 149, a psychiatric
inpatient unit in the hospital, where he was allocated a bed. At about 5.00 pm Mr
Trimarchi asked to be signed out of the hospital. This request was declined on the basis
that although Mr Trimarchi was a voluntary patient, if he left the hospital, the hospital
would be required to contact the police who would return him to the hospital which, it
was suggested, would almost certainly result in him being scheduled.
97 At about 6.00 pm the police arrived at the hospital and served an interim apprehended
violence order ("AVO") and a statement by Mrs Trimarchi on Mr Trimarchi. These
documents were placed on Mr Trimarchi's file.

98 At about 1.00 am on 3 July 2001, Mr Trimarchi began displaying bizarre behaviour


and threatened another patient. This patient was removed from the ward.

99 At about 3.00 am Mr Trimarchi assaulted a nurse, striking her in the face and knocking
her to the floor. A second nurse was punched in the face and knocked to the floor. Both
nurses were kicked whilst they were lying on the floor.

100 Mr Trimarchi returned to Unit 149 where he severely assaulted a patient who later
died of her injuries.

101 The agreed statement of facts tendered in the proceedings was in the following terms
(formal parts and annexures omitted):

2. At all material times the NORTH COAST AREA HEALTH SERVICE is a body
corporate, constituted pursuant to the Health Services Act 1997 (NSW), and is
responsible for the liabilities of the Mid North Coast Area Health Service
("MNCAHS") by reason of an amalgamation of that health service with the former
Northern Rivers Area Health Service under the provisions of Schedule 4 of the said
Act .

BACKGROUND MATTERS

3. At all material times MNCAHS undertook the care and hospitalisation of patients at
the Kempsey District Hospital (“the Hospital”) which consisted of a general hospital,
community health and mental care facilities.

4. At all material times there was a psychiatric in-patient unit, known as “the 149 Unit”,
located within the confines of the Hospital.

5. At all material times MNCAHS employed Paul Anthony Carter ("Carter"), Gordon
Turner ("Turner"), Valerie Elaine Hyland ("Hyland") as registered nurses with psychiatric
qualifications working in the 149 Unit. Each had been psychiatric nurses for a long
period of time and had considerable experiences with psychiatric patients. Hyland had
worked as a psychiatric nurse for over 40 years and both Carter and Turner had each
worked as psychiatric nurses for at least 10 years prior to the date of the offences.

6. At all material times Doctor Simon Lee Winder ("Winder") was a legally qualified
medical practitioner employed by MNCAHS to work in the Emergency Department of
the Hospital.

7. At all material times MNCAHS employed Robert Lance Whatmough ("Whatmough")


as a registered nurse in the Emergency Department of the Hospital
8. At all material times MNCAHS employed Susan Kay Smith ("Smith") as a registered
nurse. At all material times, Smith was a casual employee. On the overnight shift,
commencing 2 July 2001, Smith was the Nurse in charge of the Surgical Ward at the
Hospital and had responsibility for supervising the 149 Unit during that overnight shift.

9. At all material times, MNCAHS employed Elizabeth Avery as an enrolled nurse in the
Surgical Ward at the Hospital.

10. At all material times MNCAHS employed Gail June Bateman ("Bateman"), a
registered nurse, as a Nurse Manager/Co-ordinator at the Hospital.

11. The Hospital’s Admissions Policy required early assessment of psychiatric patients,
including identification of assaultative potential and History. [Ex P4 appendix G at page
3.]

12. At all material times Samuel Kenneth Jerome (Jerome) was a neighbour of Victor Roy
Trimarchi (“Trimarchi”) and his family in Third Avenue, Stuarts Point near Kempsey in
the State of New South Wales. Further, at all material times, Jerome was employed as
Registered Nurse at the Hospital. (The defendant objects to the relevance of this
paragraph but not to its accuracy.)

13. At all material times Eunice Benedek ("Benedek"), a 72-year-old female with a
bipolar disorder, was an inpatient in 149 Unit.

HISTORY LEADING TO PRESENTATION AT THE HOSPITAL

14. At about 5.30pm 1 July 2001 Victor Roy Trimarchi (“Trimarchi”) went to the house
of Jerome’s house (sic), at 2 Third Avenue, Stuarts Point, and spoke with Jerome. In the
course of that conversation, Trimarchi told Jerome that Jerome’s wife was corrupt and
that he could not allow her to live. Trimarchi also told Jerome that he was going to
dismantle two men, Sandy and Mack, and that he was going to kill a third man called
“Paul". (The defendant objects to the relevance of this paragraph but not to its accuracy)

15. In the early hours of the morning of 2 July 2001 Trimarchi woke his wife up and told
her that he was various religious figures such as “Gabriel”, “Michael”, “the destroyer”
and “God”. Trimarchi then produced a machete. Mrs. Trimarchi told the police that she
was fearful that Trimarchi was going to hit her as Trimarchi had spoken about
decapitating people. After further conversation Trimarchi threw the machete across the
room past his wife 8 feet away from her. Mrs. Trimarchi told the police that if Trimarchi
had wanted to hit her with the machete he could have easily done so but he did not. After
the machete landed on the floor, Trimarchi stated: “Satan is coming to kill you and kill
you like this.”. Trimarchi then drew his finger across his neck. [See Ex P15]

16. Shortly thereafter Mrs. Trimarchi went to a neighbour’s house and called the police.
17. In the interim Trimarchi attended at a neighbour’s house and requested that his friend
drive him out of the area. The neighbour gave Trimarchi some clothes because Trimarchi
was naked and then drove Trimarchi in his car until the vehicle was stopped by police.
The police then took Trimarchi into custody.

PRESENTATION AT THE HOSPITAL

18. At about 10.30am Trimarchi, still in police custody and handcuffed, arrived at the
Emergency Department of Kempsey District Hospital. On presenting Trimarchi at the
Emergency Department, the attending police requested that Trimarchi be examined for
the purpose of Trimarchi being considered for involuntary admission to a gazetted mental
facility under the Mental Health Act 1990 (NSW) [i.e. being “scheduled”].

19. The arresting officer told the triage nurse, Whatmough, that if Trimarchi “goes to the
149 unit, I would look at first charging him with something, once we see what his wife
says, and then place him on bail conditions.”

20. Later that day in the afternoon, Mrs. Trimarchi made a statement to Police in which
she said:

“I don’t want Victor charged with anything but I want something to protect me. Victor is
becoming totally insane and I am scared that he is going to hurt Geraldine [the daughter
of the marriage] and me.”

[See: Ex P15.]

21. At about 930 am (sic) to 10 am, Jerome called the Kempsey District Hospital and
spoke to Carter, who was on duty in the 149 Unit. Jerome reported to Carter that in his
opinion, he considered that Trimarchi should be scheduled and transferred to a suitable
mental institution. (The defendant objects to the relevance but not the accuracy of this
paragraph.)

22. At about 10.30 am Trimarchi arrived at the Emergency Department of Kempsey


District Hospital in police custody and handcuffed.

23. Before the handcuffs were removed, Whatmough asked whether he was in any danger
from Trimarchi if the handcuffs were removed. Senior Constable Hennessy (“Hennessy)
replied that “He hasn’t been violent in the past. It’s more that he thinks he is god.” Then
the handcuffs were removed. Whatmough noted in Trimarchi’s clinical notes that
Trimarchi “reported”:

(i) he was God;

(ii) he was recruiting the 12 Apostles;

(iii) he was being persecuted by the neighbour across the road, and
(iv) he had been admitted to Westmead Psychiatric Hospital following a drug overdose

[See Ex P15.]

Trimarchi told Carter shortly afterwards that the Westmead admission was 14 – 15 years
prior to the 2 July 2001.

After the examination, Whatmough asked Hennessy “Did he resist you when you got
him” and Hennessy replied “No”. Whatmough asked “Was he violent towards anybody?”
and Hennessy replied “No. He did have a machette (sic) at the house but he did not
threaten anybody with it.”

24. But, at no time during her dealings with Trimarchi did Hennessy think Trimarchi was
violent or a danger to others.

25. Whatmough then arranged for Carter, who was on duty in the 149 Unit, to assess
Trimarchi. [Ex P1 para 16 and 29].

A short time later, Carter attended at the Emergency Department. Carter spoke with the
arresting officer and was informed that Trimarchi had been showing signs of religious
delusions. Carter then undertook an assessment of Trimarchi. During the assessment
Trimarchi reported that he had been physically abused by his father as a child and that he
had also been sexually abused by an uncle. Carter recorded notes of his assessment in
Trimarchi’s clinical notes. Carter did not make any notation of the information that had
been provided to him by Jerome. [See Ex P15.]

26. Constable Hennessy states that following that she spoke with the nurse after the
assessment in the following terms:

The Nurse said: “A doctor will have to see him but I don’t think that he will be scheduled.
We will look at having him [as] a voluntary patient in 149.”

Hennessy said: “I think he should be scheduled because at any time he can walk out of
149 and go home. If he goes to 149 I would look at first charging him with something,
once we see what his wife says and then placing him on bail conditions.

The Nurse said: “So in other words what your (sic) trying to say is that it is in his best
interests to be a voluntary schedule.”

Hennessy said: “Yes.”

The Nurse said “I don’t think he is violent so we would not require a police escort. After
he sees a doctor we will organize hospital staff and convey him to Coffs Harbour by
hospital car. I’ll go back in and advise him to be a voluntary schedule.”
27. Carter maintains that he was of the view that Trimarchi was not a danger to himself or
others and that Trimarchi should not be scheduled.

28. Trimarchi was left on a day bed in the Emergency Department.

29. The police officers who brought Trimarchi to the Emergency Department left the
premises following Carter’s assessment of Trimarchi. Before leaving the Emergency
Department Constable Hennessey delivered Trimarchi’s briefcase into the male psych
nurse’s custody and recommended that the contents of the bag be read both by the nurse
and by the psychiatrist.

30. Sometime later Trimarchi was assessed by Winder who was the medical officer on
duty in the Emergency Department.

31. As at 2 July 2001 Winder had been working in the Hospital as a locum in the
Emergency Department since January 2001. [ROI Q22] Winder was a qualified medical
practitioner of 5 years standing with general medical and clinical training in psychiatric
medicine and assessment. Winder had some clinical experience in assessing psychiatric
patients as part of his general medical training and whilst working in emergency
departments at other hospitals. [ROI Q142 -143] Winder had not previously received
specialist training in psychiatric medicine prior to commencing work in the Emergency
Department and had not seen [ROI 135ff] or received any training in relation to the
Policy. But before he assessed Trimarchi he was aware that psychiatric patients who were
“even remotely violent” were not to be admitted to the 149 Unit. [ROI 90; see also ROI
138 (sic)]

32. Winder recorded in the clinical notes of his assessment that:

(i) the police wanted Trimarchi “scheduled”;

(ii) Trimarchi was “alleged” to have threatened his wife with a machete;

(iii) Trimarchi’s “...claim to be god was when understood in its proper context was not
unreasonable”;

(iv) Trimarchi was paranoid about a neighbour trying to get him; and

(v) Trimarchi displayed flight of ideas and pressure of speech.

[See Ex P15.]

33. Winder spoke with Paul Carter and “[t]he upshot of that was there was some
psychosis going on and that we would therefore send him off to ....Port Macquarie or
Coffs Harbour. That was the plan, that is because there was no beds available..”. A bed
subsequently became available in the 149 Unit and Trimarchi was admitted “for
assessment”
34. Winder was of the opinion that Trimarchi was not a danger to himself or others and
was not suitable to be scheduled.

35. At the time of his assessment, Winder recorded no diagnosis of any kind in
Trimarchi’s clinical notes. Similarly, Winder did not specify any medication plan. The
medical notes indicate that Trimarchi was to be admitted for observation to the 149 Unit.
[See Ex P15.]

36. During the assessment process, Trimarchi was handed a Kempsey District Hospital
Admission Agreement form. [See Ex P15] The form dealt with admission as a patient to
the Hospital. In particular, the form provided that if the patient breached the Agreement,
the patient would be discharged from the Hospital immediately (after consultation with
his medical officer).

37. At about 1.30pm Trimarchi was taken to the 149 Unit where he was allocated a bed in
the two-bed area designated for male patients. The other bed in that area was occupied by
a young male named Jade Barnett. A two-bed area at the other end of the unit was
designated for female patients. A bed in that area was occupied by Benedek. The other
bed was unoccupied.

38. Shortly after, the police arrived at the149 (sic) Unit and had discussions with Carter
about a pending apprehended violence order ("AVO") being taken out against Trimarchi.

39. Carter, at some stage after Trimarchi was admitted to the 149 Unit and prior to the
end of his shift at about 2 30 pm (sic), attempted unsuccessfully to contact Dr Jim
Holmes (“Holmes”), the only specialist psychiatric consultant to the 149 Unit and the
Kemspey (sic) Hospital, in order to advise him that Trimarchi had been admitted to the
Unit.

40. At the handover to Turner, Carter asked Turner to continue to attempt contact with Dr
Holmes about Trimarchi (Carter Q 154).

41. At about 5.00pm Trimarchi requested of Turner that he be signed out to go to a family
member in Newcastle. Turner advised Trimarchi that although he was a voluntary patient,
if he left the hospital Turner would have to contact the police who would bring him back
to the Hospital. This, Turner told Trimarchi, would almost certainly result in Trimarchi
being scheduled because two admissions in the one day would probably be enough to
convince the doctor in emergency that he was a danger maybe to himself and other
people (Turner Q 63). Trimarchi agreed to stay in the hospital.

42. At about 5.45pm Jerome became aware that Trimarchi had been admitted to the 149
Unit. Jerome called the hospital and spoke with Turner in the 149 Unit in the following
terms:
Jerome said “What is victor (sic) doing there. He is totally delusional and psychotic and
had been running around Stuart’s Point naked and threatening people and professing to
people that he is the lord.”

Turner said: “Well he presented as normal and asked for help and public admission.”

Jerome said: “I can’t accept that. There is enough evidence to suggest that he needs
constant supervision and monitoring. For God’s sake. Keep an eye on him, if he get’s
(sic) out he is going to come back and dismantle his wife. I am convinced that is what he
is going to do.”

Turner said: “He is playing the game at the moment but he cant (sic) for much longer in
my opinion if he has been displaying all these symptoms.”

Jerome said: “For god’s sake keep an eye on him and let all staff know how far out this
gut is and how volatile this bloke is. Don’t give him a foot in the door. Could you let the
supervisor know and get a male wardsman if one is available to be outside or near him.
I’m not kindding (sic).”

Jerome also says that Turner indicated he would relay Jerome’s fears to the staff.

(The defendant objects to this as irrelevant but not with its accuracy.)

43. Jerome’s call was not recorded in Trimarchi’s hospital notes; nor was Jerome’s
concern relayed to the Shift Supervisor. (The defendant objects to this as irrelevant)

44. At about 6pm Hennessy with Constable Packwood attended Kempsey Hospital, spoke
to Trimarchi, read the conditions of the AVO to him and served it on him.

45. At the time of the delivery of the AVO by Hennessey there was no nurse in the 149
Unit. Hennessey then spoke with Nurse Gill, who was stationed in the reception area of
the medical ward. Nurse Gill told Hennessey that Turner was on a meal break and that
Turner would be contacted.

46. A short time later, Turner attended and a copy of Mrs. Trimarchi’s statement in
support of the AVO was handed to Turner (Hennessy para 26). Turner placed the AVO
and statement with Trimarchi’s clinical records.

47. At about 6.30pm Holmes was advised of Trimarchi's admission by Turner. At no stage
did Holmes have any direct contact with Trimarchi on 2 July 2001. Rather, Dr Holmes
indicated that he would examine Trimarchi in the course of his normal rounds on the
following morning at about 7 am.

48. During Nurse Turner’s shift on 2 July 2001 in the 149 Unit, Trimarchi was not
inappropriate in behaviour and was polite and sociable with the other patients.
49. At about 7 pm that night Trimarchi showed Turner the contents of his briefcase.
Turner considered the contents and noted in Trimarchi’s hospital notes that;

(i) The contents disclosed the obvious religiosity of Trimarchi’s delusions; and

(ii) Summons (Kempsey L. Court 3/7 0900) will have to be deferred until treatment takes
effect.

At the time of this entry Trimarchi had not received any treatment, including anti-
psychotics, and no provision was made in his treatment plan for any medication of that
kind should his mental state deteriorate. Turner did not attempt to bring the contents of
the bag or his reassessment of Trimarchi’s mental state to the attention of supervisory
staff or to the attention of Dr Holmes. (The defendant objects to this material as
irrelevant).

50. Subsequently, Trimarchi’s mother, Mrs. Carter attended at the hospital and spoke with
Turner by telephone on a number of occasions. Mrs. Carter maintains that she told Turner
that she was very concerned about her son’s state of mind and the nature of his delusions.
In particular, Mrs. Carter told Turner that Trimarchi thought he was “on a mission, he
thinks he’s God, Jesus, the Victor, Victor Christ.. Jesus was crucified and he has to take
on from there the job that he didn’t get done. And so I said, if those thoughts come back
to him he’s gunna . (sic) try to get out and do what he’s got to do.” (The defendant objects
to this material as irrelevant).

51. Turner did not record the content of the telephone calls or the concerns Mrs. Carter
expressed regarding the potential risk Trimarchi posed. Turner did not bring this
information to the attention of supervisory staff and/or medical staff on duty at the
Hospital; nor did Turner attempt to bring Mrs. Carter’s concerns to the attention of Dr
Holmes. (The defendant objects to this material as irrelevant).

52. At 10.30pm Hyland replaced Turner on duty in the 149 Unit. At this time there were
four patients admitted to the 149 Unit, three males and one female. As the unit only had
enough bed space for two male patients, one of the male patients was physically located
in 151 Surgical Ward. This ward was located directly across the corridor from the 149
Unit.

53. Mrs. Carter also spoke with Hyland following the shift changeover. Again Mrs.
Carter’s concerns were not recorded. Again Mrs. Carter’s concerns were not brought to
the attention of supervisory staff and/or medical staff on duty in the Hospital; nor was any
attempt made to convey the information to Dr Holmes. (The defendant objects to this
material as irrelevant).

54. As the 149 Unit was not a secure ward, there was physical access to the Surgical
Ward as well as to most other parts of the Hospital.
55. At about 1.00am on 3 July 2001 Trimarchi began displaying bizarre behaviour.
Trimarchi took all his clothes off, gave Hyland his tobacco, spread his jacket on the floor
for his apostles and sat cross legged in his bed. During the course of this behaviour
Trimarchi called Jade Barnett “the devil” and threatened to "get" him. Trimarchi retired
back to bed when asked. Hyland consulted Bateman, the Nurse Manager on duty in the
Hospital, and a decision was made to transfer Barnett across the hall to room in the 151
Surgical Ward.

56. No action was taken to move the elderly female patient in 149 Unit, Eunice Benedek,
out of that ward.

57. At this time Hyland and Bateman also discussed whether Trimarchi should be
“scheduled”. Bateman then requested one of the doctors on duty, Dr Cook (“Cook”), to
come and assess Trimarchi.

58. However, when Cook arrived at the 149 Unit, Trimarchi was in his bed and appeared
to be asleep. Cook, Bateman and Hyland considered that, as Trimarchi appeared to be
asleep, he should not be disturbed and a further assessment – including scheduling
Trimarchi -- should be left until the morning.

59. At about 2.00 am Bateman was called and advised that the security officer rostered on
until 2.00 am was ready to go. Bateman was in the 149 Unit when she took the call and as
Trimarchi was still in bed, Bateman felt that it was ‘okay’ for the security officer to leave
the hospital.

60. At about 3.00am Trimarchi again exhibited bizarre behaviour. Smith, on duty in 151
Surgical Ward, heard loud voices and went to the 149 Unit to speak to Hyland. While
there, Smith suggested to Hyland that they should summon assistance. Hyland assured
Smith that things were all right. Hyland said she had her duress alarm if something went
wrong and there was also a Cardiac Arrest alarm on the wall she could use. Smith then
returned to the Surgical Ward, across the hall, leaving Hyland alone in the 149 Unit.

61. Trimarchi, who had been having a shower, came out of the shower recess, threatened
and then hit Hyland in the face knocking her to the floor. Hyland pressed her duress
alarm and then went out in the corridor between the 149 Unit and the Surgical Ward with
Trimarchi following her.

62. Uncertain as to whether or not the duress alarm had activated, Hyland stepped back
into 149 Unit and, with her back to Trimarchi so that he could not see what she was
doing, again pressed her duress alarm and saw a small red light on the ceiling which
indicated that the alarm had worked. Hyland then stepped back into the corridor.
Trimarchi, still in the corridor, knocked her to the ground and kicked her.

63. Smith and Avery, both in the Surgical Ward, heard Hyland screaming. Neither Smith
nor Avery had a duress alarm. Avery picked up a telephone intending to call police.
Trimarchi saw Avery and moved to stand on the other side of the desk from both nurses.
Trimarchi warned Smith and Avery not to move or touch anything and threatened both of
them.

64. Shortly thereafter, Smith rang "000" for police assistance.

65. As at 2 and 3 July 2001, MNCAHS had in place a system for responding to activation
of a duress alarm on night shift. This system required the Nurse Manager to carry the
receiver and on receipt of a signal indicating that a duress alarm had been activated, to
respond by attending at the site indicated on the receiver unit. MNCAHS’s system
provided that the Nurse Manager was to attend in company with another staff member
and on arriving at the scene, the Nurse Manager was to assess the situation with a view to
calling in appropriate backup, for example the police. [See: Ex P9.]

66. When Hyland activated her duress alarm at about 3.00am on 3 July 2001, Bateman
was attending in the Intensive Care Unit (“ICU”) to assist the on-duty medical staff with
an emergency medical procedure. The ICU was located on the next floor directly above
the 149 Unit. The wardsman on duty was also in attendance at the ICU and assisting with
the subject procedure.

67. As a consequence, no other staff member was available to immediately respond to the
duress alarm in company with Bateman because they were attending to a medical
emergency in the ICU.

68. On activation of the duress alarm receiver Bateman immediately responded alone to
the duress alarm and ran to the 149 Unit. Bateman arrived and saw Hyland leaning
against a door opposite the 149 Unit. Bateman thought Hyland was having a heart attack.
As Bateman assisted Hyland, Trimarchi came from behind Hyland and pushed her again,
knocking her to the floor. Trimarchi then kicked Hyland whilst on the floor.

69. Bateman screamed at Trimarchi to stop. Bateman called out to the surgical ward
nurses “call the police” and Smith responded “I have dialed 000.” He then punched
Bateman in the face, knocking her glasses off. As Bateman bent to pick up her glasses,
Trimarchi attempted to stamp on them with his foot. Bateman stood up and screamed at
Trimarchi “Get, just get, get” and he then went back into the 149 Unit.

70. Dr Cook arrived in the corridor shortly thereafter. None of the staff were prepared to
follow Trimarchi into the Unit. No security staff was on duty at the hospital after 2.00am.
Staff could hear loud noises, the sound of furniture being broken and the raised voices of
Trimarchi and Benedek coming from inside the 149 Unit.

71. The police responded within minutes of the call by Smith. When the police entered
the 149 Unit they found Benedek had been severely assaulted by Trimarchi. Benedek
later died of her injuries.

72. The police discovered that Trimarchi had broken through an external door and
escaped. Trimarchi was later apprehended by police and charged with the murder of
Benedek. Trimarchi was subsequently found not guilty of murder because of his
psychiatric state at the time of the homicide.

THE ADMISSIONS POLICY

73. At the time of the incident MNCAHS had a current policy, formulated in 1991, for the
admission of patients to the 149 Unit. This policy was entitled "Inpatient Psychiatric
Service Operational Policies for the Macleay Valley Health Services " ("the Policy").
[Ex P5.]

74. As at the time of the subject incident, none of the nursing staff on duty in the 149 Unit
on 2 July 2001 and/or 3 July 2001 had been given adequate training, instruction or
information in relation to the Policy.

75. Similarly, Winder had no adequate training in relation to the Policy.

76. As noted above, as at 2 July 2001 Winder did not hold any specialist qualifications
with respect to psychiatric patients. Similarly, Winder had not undertaken any advanced
or additional training with respect to psychiatric patients.

77. However, Winder had undertaken the general training provided to all medical students
in the course of obtaining their general medical qualifications. Winder also had received
some practical experience with respect to the handling of potential psychiatric patients
whilst working at Liverpool Hospital and Fairfield Hospital. But, at those hospitals,, (sic)
Winder had access to assistance from psychiatric registrars, or alternatively the patients
were referred to a specialist clinic [i.e. the Macquarie Clinic at Liverpool Hospital] for
assessment as he had the opportunity at Kemspey (sic) where Dr Holmes could be
contacted by phone and would come in if necessary.

78. In the present case, Winder understood that Trimarchi would be re-assessed by Dr
Holmes, the consultant psychiatrist, during his rounds on the following morning.

79. Section 2.1.8 of the Policy stated: "All admissions must be under the care of
Specialist Psychiatrist or nominee". As at 2 July 2001 Kempsey District Hospital had no
full-time specialist psychiatrist. Patients were admitted to the 149 Unit, following an
assessment by the Unit’s on-duty psychiatric nurse and the medical officer on duty in the
Emergency Department who was a legally qualified medical practitioner with general
psychiatric training similar to Dr Winder. Upon admission following this procedure, Dr
Holmes was advised and he would attend the patient on his normal morning rounds.
Trimarchi was “assessed” by Carter and Winder. Dr Holmes was advised of his admission
at about 6.30pm on 2 July 2001.

At no time while Trimarchi was at the Hospital (over the course of the 17 hours he was
there) was he seen or assessed by a psychiatrist.
80. Prior to and at the time of the subject incident Dr Holmes was available outside his
normal morning rounds to be consulted, by telephone, on an ad hoc, informal basis.
When Dr Holmes was contactable by telephone outside his normal hours Dr Holmes
would take calls from the Hospital and if it appeared necessary, Dr Holmes would attend
the Hospital.

81. Upon admission, Carter unsuccessfully attempted to contact Dr Holmes and, as noted
above, at 630 pm (sic) Turner made Dr Holmes aware of Trimarchi’s admission. The
hospital notes record Dr Holmes as the Admitting Doctor and the AMO.

82. According to the Policy, persons may be admitted voluntarily either at their own
request, at the request of a relative, friend or carer, or at the request of the person's doctor
or counsellor. In addition, where the admission was not at the person's own request, the
person must have agreed to the admission. [The defendant objects to the relevance of this
material but agrees it accurately states the policy].

83. As noted above, whilst Trimarchi was being assessed on 2 July 2001 he signed a
Patient Admission form. The hospital notes record that Trimarchi was for “voluntary
admission ...to 149 for observation.” The hospital notes record that if he left the hospital
he would be arrested and charged. [The defendant objects to the relevance of this material
but if allowed into evidence, it agrees to the facts stated].

84. Later, Trimarchi asked Turner if he could sign himself out of the hospital. Turner
warned him that if he left the hospital, the police would be advised and he would be
apprehended and returned to the Hospital where it was likely that he would be
“scheduled” because two admissions in the one day would probably be enough to
convince the doctor in emergency that he was a danger maybe to himself and other
people (Turner Q 63). Trimarchi agreed to say (sic) in the hospital.

85. When Trimarchi arrived at the Hospital on 2 July, he was handcuffed and not carrying
a briefcase. Senior Constable Prott brought Trimarchi’s brief case after Trimarchi had
been assessed by Whatmough [ex p1 para 17]. Police informed Hospital staff of the
contents of the briefcase after the police had conducted a search. The briefcase contained
papers, including items written by Trimarchi relating to his religious delusions.

86. Later and after his initial assessment, Police attended at the Hospital and Carter was
informed that Trimarchi's wife was taking out an AVO against him.

87. At about 6 pm Turner was provided with a copy of the AVO and a copy of a statement
signed by Trimarchi's wife that detailed his behaviour towards her. The statement was
attached to Trimarchi's clinical notes.

88. The Policy required, in the event of admission to the 149 Unit, that a patient be
categorised in accordance with appendix B to the Policy.
89. Appendix B dealt with two categories, "A - Special" and "B". In relation to patients in
Category A - Special, the decision to categorise a patient as Category A – Special could
only be made by the psychiatrist/medical superintendent in consultation with unit staff
and the Mental Health Team. Involuntary patients pending transfer and, in certain
limited circumstances, voluntary patients could be classified as Category A – Special
patients. All patients classified as “Category A - Special” had to have a registered
psychiatric nurse with him or her at all times, and maintaining eye contact at all times,
even whilst toileting.

90. All involuntary, or “scheduled” patients had to be transferred to secure psychiatric


units, such as the Jordon Centre at Port Macquarie or the James Fletcher Hospital at
Newcastle.

91. Trimarchi was not categorized at the time of his initial assessments by Carter and
Winder in the Emergency Department, nor at any other time while he was in the 149 unit
as category A – Special or B under the policy.

92. Further, the patient care plan was to admit Trimarchi to the 149 Unit for observation
and assessment by Dr Holmes.

SECURITY SURVEYS, SECURITY TRAINING, DURESS RESPONSE ETC.

93. MNCAHS at the time of the incident had a current security policy set out in a
document entitled, "Safety & Security - Minimum Standards for Health Care
Facilities" ("the Safety & Security Manual") [Ex P4.]. The Safety & Security Manual
came into existence in September 1998 and was issued by the NSW Health
Department.

94. Chapter 3 of the Safety and Security Manual, entitled "Security Surveys", required all
health care facilities to conduct a yearly security survey and inspection. The chapter
contained a checklist to be used as the basis for conducting surveys. Some of the items on
the checklist include access, staffing numbers, alarms and emergency procedures.

95. A security survey by an external consultant was commissioned and conducted


between 16 and 18 February 2001 and but was not the subject of a report to the Hospital
until 4 July 2001.

96. Chapter 4 of the Safety and Security Manual, entitled "Security Education &
Training", required health care facilities to develop security education and training for
all staff. It emphasised, amongst other things, training for staff in high-risk areas and in
this regard contained a policy that management must ensure that all staff who work in
high-risk areas are provided with appropriate training. This policy specifically included
staff at risk of aggression in psychiatric units and emergency departments.

97. The Safety and Security Manual in Chapter 4 also required management to ensure
that "Minimisation and Management of Aggression" training and "Duress Response"
training was provided for all patient-contact staff in high-risk areas. With respect to the
Nursing Staff on duty on the Night Shift at the Hospital on 2 July 2001:

i) Hyland had attended a 5 day training course in relation to "Minimisation and


Management of Aggression". This was conducted in Sydney in approximately 1999.
Hyland had not received any further training whilst working at Kempsey District
Hospital. [See Ex P14.]

ii) Bateman had attended a management and prevention of aggression course on 19


November 1998. Bateman had not received any other training in the interim. [See Ex
P14.]

iii) Smith had attended a security orientation course on 26 February 2001.

Further, Hyland and Batemen were each trained in the operation of the Hospital’s
wireless duress alarms when they commenced working at the hospital. But none of the
staff on duty at the time of and directly involved with the incident had attended any other
training as required by the Safety and Security Manual in relation to duress response.

98. The details of the training supplied by MNCAHS to staff at the Hospital with respect
to:

(i) The Security Orientation [required in accordance with The Safety & Security Manual.
See: Ex P4 at 4.2]

(ii) [Annual] Mandatory Security Education [required in accordance with The Safety &
Security Manual. See: Ex P4 at 4.2]

(iii) Management and Prevention of Aggression [required in accordance with The Safety
& Security Manual. See: Ex P4 at 4.3]

Are set out in Ex P14.

99. Chapter 13 of the Safety and Security Manual, entitled “Duress alarm systems”,
contained a policy requiring the installation and regular review of alarm systems to
ensure staff were not exposed to the risk of violence. Chapters 4 and 13 of the Manual
also required the provision of Duress Alarm Response training.

100. There was no regular review of duress alarm systems at the Hospital.

101. An external security review had been undertaken in the 12 months prior to the date
of the offence although the report was only delivered by the consultant shortly after the
date of the offence. [See: Ex P2]

102. Further, the only written policy and/or procedure relating to the use of and response
to the activation of duress alarms was set out in MNCAHS’s document entitled
“Kempsey District Hospital Orientation Programme Nursing Administration (Shift Co-
Ordinator)”. [See Ex P9.]

103. Part of this policy was that the duress alarms were to be checked daily at the hand-
over of shifts in the afternoon and that policy was implemented.

104. At the time of the incident involving Trimarchi on 3 July 2001 Bateman, as the
Nurse Manager on duty, carried a portable paging unit which was activated in response to
a member of staff in the hospital activating a personal duress alarm. This was the only
responding unit in to indicate that a duress alarm had been activated. There was no other
monitoring of the duress alarm system either on or off site. When Hyland activated her
duress alarm after the first assault on her by Trimarchi, Bateman was in the ICU
responding to a call to assist medical and other staff to perform an intubation of a patient.
Bateman responded immediately to the alarm. But there was neither a security guard on
duty nor any member of staff available to accompany her on the response as indicated in
the Orientation Programme. [See Ex P9.]

105. As a consequence, Bateman had to respond alone.

106. Further, neither Smith nor Avery, who were on duty in the Surgical Ward, had duress
alarms; nor did Smith and Avery have a direct emergency telephone number for Kempsey
Police Station. But they were aware of 000.

107. After Avery and Smith were confronted and threatened by Trimarchi, Smith rang the
000 emergency number. The police responded within minutes.

108. In 2000 MNCAHS commissioned Amtac Professional Services Pty Ltd to


undertake a review of existing security measures and to identify vulnerabilities which
may expose MNCAHS to security-related risks. The review was conducted between 16
and 18 February 2001 although a final report ("the Amtac Report"), Ex P2, was not made
available to MNCAHS until after the incident. Relevantly the Report discloses:

(i) Absence of clearly documented security policies and procedures [p.9]

(ii) No evidence of policies and procedures relating to duress alarms could be identified
[p.10]

(iii) Low level of security awareness [p.12]

(iv) Lack of a formal security program, security policies and procedures [p.12]

(v) Major concern about the absence of any restriction on patient’s movements in and out
of the 149 unit; [p. 15]

(vi) Concern about the availability of suitably trained and prepared duress response with
respect to the 149 unit; [p.11, p. 15 and p. 18]
109. This was the only security review that was conducted at the Hospital, by or on
behalf of MNCAHS, after the introduction of the Safety and Security Manual – Minimum
Standards for Health Care Facilities was introduced by the Department of Health
in 1998. [See Ex P4]

110. In a report dated 6 August 2001 Fauna Tyne, MNCAHS’s Area Risk Manager,
concluded that:

iv) There was inadequate training of staff both in the admission/discharge procedures for
patients of Unit 149;

v) [T]here was inadequate training of relevant staff in aggression minimization and in the
use of and response to duress alarms;

vi) Security procedures especially for the Shift Co-Ordinator and those staff who could
become isolated in the event of an incident need immediate review and action.

In the report Ms Tyne also provided a number of recommendations aimed at resolving the
failings identified by Ms Tyne in the course of her investigations. [The defendant objects
to this material as not being relevant to the elements of the offence, although it may be
relevant to the assessment of penalty].

111. The Safety & Security Manual also provided that MNCAHS was to ensure that two
nurses were rostered on each shift in isolated facilities or units. The Manual further
provided that where a second nurse was not available to be rostered on duty in isolated
facilities or units, MNCAHS should hire a security guard or ensure that other appropriate
personnel were in attendance. [Ex P4 at 7.3]

112. As at 2 June 2001 MNCAHS had identified the 149 Unit as an “isolated unit” for the
purpose of the Duress Alarms procedures set out in its “Orientation Programme” for
Nursing Administration (Shift Co-ordinators). [Ex P9 ] But, MNCAHS had not identified
the 149 unit as isolated unit for the purposes of Chapter 7.3 of the Manual and had not
provided for staffing of the unit so as to ensure that two appropriate personnel were
always rostered on in the unit.

PATON’S REPORT

113. MNCAHS caused Michael Paton, the Area Clinical Director, Mental Health
Services , to prepare a report with respect to the subject incident incorporating
MNCAHS’s responses to the issues raised in Dr Barclay’s report. A copy of Dr Paton’s
report dated 16 May 2003 is annexed, marked with the letter “F”. A copy of MNCAHS’s
revised Mental Health Services Area Policy Statement is also annexed, marked with
the letter “G”. [The defendant objects to this material as not being relevant to the
elements of the offence, although it may be relevant to the assessment of penalty].

THE PROSECUTOR'S EVIDENCE


102 The prosecutor tendered the following documents:

1. Statement of Snr Constable Janice Anne Hennessy dated 4 July 2001.

2. Review of security - Kempsey District Hospital by Amtac Professional Services Pty


Ltd.

3. Letter from Terry Clout to Mr Paul Wade dated 12 December 2001.

4. Safety & Security Minimum Standards for Health Care Facilities by NSW Health .

5. Inpatient Psychiatric Service Operational Policies.

6. Circular No 98/31 being Policy Guidelines for the management of patients with
possible suicidal behaviour for New South Wales Health staff and staff in private
hospitals facilities.

7. Floor Plan of Part of Kempsey District Hospital 149 Unit.

8. Kempsey District Hospital Paging Messages Report dated 3 July 2001.

9. Mid North Coast Area Health Service Kempsey District Hospital Orientation
Programme Nursing Administration (Shift Coordinators).

10. Actual Rosters.

11. Mid North Coast Area Health Service Security Policy Guidelines.

12. Mid North Coast Area Health Service Security Policy.

13. Nurses Registration Board of NSW Practising Certificate of Mrs V E Hyland.

14. Email from Jutta Flynn to S A Ashton dated 4 July 2001.

(i) Kempsey District Hospital Admitting Form - Victor Roy Trimarchi.

(ii) Kempsey District Hospital Admissions Agreement between defendant and Victor
Trimarchi.

(iii) Interim Apprehended Violence Order dated 2.7.01 - Amelia Trimarchi and another
(applicants) Victor Roy Trimarchi (defendant).

(iv) Kempsey District Hospital Emergency Department Clinical Record - Victor Roy
Trimarchi dated 2 July 2001.
15. Instrument of Appointment of Paul Kenneth Wade known as Paul Wade WorkCover
Authority of New South Wales.

16. Agreed Statement of Facts.

17. Dr Barclay's Report dated March 2003.

18. Dr Barclay's field notes entitled "Homicidal Incident Review Kempsey Hospital re 21
August 2001".

19. Preliminary Conclusions regarding each of the fatal incidents re Victor Trimarchi;
Kempsey District Hospital - 3.7.01 by Dr W Barclay and Professor White.

20. Risk Management Unit Mid North Coast Area Health Service Memorandum from
Ms F Tyne, Area Risk Manager, to Mr J Pattinson, Area Director, District Hospitals dated
31 October 2001.

21. Memorandum to Mr T Clout, Area Chief Executive, Mid North Coast Area Health
Service from Dr Michael Paton, Clinical Director, Medical Health , Mid North Coast
Area Health Service dated 16 May 2003.

22. Letter to Health Care Complaints Commission from Mr T Clout, Chief Executive
Officer, Mid North Coast Area Health Service dated 21 May 2003.

23. Mid North Coast Area Health Service, Mental Health Services Area Policy
Statement, December 2002.

24. Mid North Coast Area Health Service , Kempsey District Hospital Policy
Statement in respect of Triage, Assessment, Crisis, Access and Referral dated October
2001.

25. Mid North Coast Area Health Service , Kempsey District Hospital, Nursing
Division Policy Statement re Minimisation and Management of Aggression dated August
2001.

26. Mid North Coast Area Health Service , Kempsey District Hospital, Nursing
Division Policy Statement re Duress Alarm Response Team dated September 2001.

27. Mid North Coast Area Health Service , Kempsey District Hospital, Risk
Assessment to identify all areas within the Hospital that may be regarded as "high risk"
areas in terms of exposure to violence and/or aggression dated 4 September 2001.

28. Review of Nursing Services , Kempsey District Hospital, dated June 2001.

Tender of Dr Barclay's Report - Objection - Relevance


103 The prosecutor called Dr William Barclay and tendered a report of Dr Barclay ("the
Barclay report") dated March 2003. The defendant objected to the tender of the report on
the grounds of relevance. Prior to hearing argument as to the relevance of Dr Barclay's
report, I determined, in accordance with s 4(2) of the EA that the EA should apply. It will
be recalled that Dr Barclay was requested by Professor Beverley Raphael to prepare a
report on a critical incident at Kempsey District Hospital in relation to the events of 2 and
3 July 2001. Mr Inatey opposed the tender of the report on the basis that it was not
specific to the relevant events and that the recommendations made in the report no longer
mattered because a new facility had been built submitting that the report is irrelevant and
unconnected to the charges.

104 Mr Inatey then undertook a detailed analysis of the report submitting that it was
prejudicial because it didn't relate to any of the issues as it focused primarily on
inappropriate clinical assessment leading to what Dr Barclay contended to be an
inappropriate admission based upon valued judgments. In addition, the report dealt with
what risk assessment tools are used throughout the Medical Hospital system which led
Mr Inatey to submit that there was nothing to which this material attaches in the charges.

105 Mr Inatey submitted that the report does not bear upon anything in respect of the
charges and the prosecutor should be allowed to in effect adduce evidence through the
back door on a plea of guilty and rely on information which is irrelevant to the charges
which have been made. Mr Inatey further submitted that nowhere in the report could one
see how Dr Barclay's view as to alternative clinical judgment in any way can be tied back
to any supposed breach by the defendant of the OH&S Act. The core of Mr Inatey's
objection was that the defendant did not consent to the tender to the extent that the report
appeared to be an enlargement of the charges against the defendant.

106 Mr Joseph submitted that the core of the charges revolved around the Admissions
Policy and that the charges related to 2 and 3 July 2001.

107 Mr Joseph submitted that the defendant in its plea, admitted a failure to provide
adequate information, adequate instructions, adequate training as necessary observing
that the words "as necessary" are critical words because they provide the opening for a
qualitative assessment as to whether what the defendant did was adequate or not. This, it
was submitted, allowed the prosecutor to look in the fashion that Dr Barclay did in his
report as to whether whatever was done was necessary in relation to the admission of a
patient pursuant to the Admissions Policy. Mr Joseph further submitted that the
particulars of charge which contended that an inappropriate admission had occurred in
respect of Mr Trimarchi due to inadequate assessment, the failure to place Mr Trimarchi
under the care of a specialist psychiatrist and to categorise him in accordance with the
policy opens up the interrelationship between what took place between the staff and the
patient on admission and that Dr Barclay's report was clearly relevant because it
comments on the Admissions Policy and whether the hospital provided the instruction,
information and training as necessary to implement that policy.
108 Mr Joseph undertook a detailed analysis of the Admissions Policy submitting that Dr
Barclay's report is relevant because it shows the deprivation and the failure of the
defendant's employees.

109 Mr Joseph tendered a statement of agreed facts noting that in certain respects the
defendant had reserved its rights to argue the issue of the relevance of some of those
facts. One such paragraph is paragraph 42 of the agreed statement of facts. Mr Joseph in
arguing that the Barclay report was relevant referred to this paragraph submitting that Mr
Jerome knew certain facts including that the patient Trimarchi was dangerous. It was
submitted that in order to properly assess psychological factors of a patient, it is
necessary that the mental health professionals have been properly trained and
instructed. This should have included that the health professionals made enquiries that
would have revealed information suggesting that Mr Trimarchi was a dangerous man
despite his presentation. This was dealt with by Dr Barclay. Mr Joseph submitted that the
requirement to properly assess patients was a requirement of the Admissions Policy.

110 Furthermore, Mr Joseph submitted that Dr Barclay had conducted an investigation,


independent of WorkCover, and had spoken to Dr Winder and made an assessment of Dr
Winder's training and experience. Mr Joseph observed that the Admissions Policy states
that health professionals will be appropriately qualified and experienced. Mr Joseph
submitted that Dr Barclay came to the view that Dr Winder was not so qualified and
experienced a view which was open to Dr Barclay; Dr Barclay also observed that Dr
Winder made the mistake that is often made, namely, relying too much on what the
patient told him, that being, because of a lack of training.

111 It was contended that Dr Barclay's report raises the whole question of training,
qualifications, which are also raised by the Admissions Policy.

112 Mr Joseph also submitted that in assessing the objective seriousness of the breach, it
was inappropriate for it to be left to the conjecture of the parties that there were admitted
failures but how they interact with the consequences is not explained.

113 In reply, Mr Inatey submitted that a badly particularised case doesn't get any better
because the defendant doesn't seek particulars of it. It was further submitted that the
defendant had not pleaded to the particulars, only the essential ingredients of the offence,
relying on Law v Deed [1970] SASR 374, particularly at 377. Mr Inatey submitted that
much of what Mr Joseph had submitted amounted to saying that there was deficiency in
the Admissions Policy and that other criteria should have been within the Admissions
Policy and that if a proper Admissions Policy had been in place, a misdiagnosis would
not have occurred. Mr Inatey observed that there is no reference anywhere to any
complaint about the Admissions Policy. It was further submitted that what Dr Barclay
seeks to do is to substitute his own opinion for those of the hospital. Mr Inatey submitted
that on any reasonable reading of Dr Barclay's report, it extends well beyond any matters
being particularised by way of this offence.
114 Although there is some force in the submissions put by Mr Inatey, as Dr Barclay, an
expert in forensic medicine had conducted an investigation of the incident on 2 and 3 July
2001 and noting the defendant's plea of guilty, on balance, I admitted the report. Clearly,
there is logical connection between Dr Barclay's evidence, the Admissions Policy and the
events that occurred on 2 and 3 July 2001, and in my view, therefore, the evidence is
relevant.

Dr Barclay's Report

115 It is necessary to summarise the evidence provided by Dr Barclay in his report (the
Barclay Report) which was admitted into evidence. The report stated as follows:

1. Description of incident

116 Mr Trimarchi was admitted to the emergency department at 10:30 am 2 July 2001.
He was brought by the police following threats to his wife. The police intended to charge
him with criminal offences (Dr Barclay admits the agreed facts are different to what is
stated in his report) and his wife was in the process of issuing an Apprehended Violence
Order (AVO) against him at the time. The police stated that if Mr Trimarchi left the
hospital, they should be immediately informed and they would arrest him.

117 Mr Trimarchi was admitted to unit 149. The unit could not be secured and he was
contained in general surgical ward.

118 About 3 am on 3 July 2001, Mr Trimarchi became psychotically disturbed. He


attacked two nurses. One of the nurses was on duty, the other came to her assistance. Mr
Trimarchi barricaded himself inside Unit 149 and attacked an elderly female patient.
Subsequently she died of her injuries. The other patient in the unit, a male, had been
moved earlier because of Mr Trimarchi's disturbed behaviour.

2. Clinical information

119 The emergency department clinical record provides the following information from
nurse Whatmough's triage on Mr Trimarchi:

(i) VT (Mr Trimarchi) believes he is God

(ii) He is recruiting the 12 apostles

(iii) He believes that a neighbour is persecuting him

(iv) He manifests flights of ideas and pressured speech

(v) Denied previous admission to psych hospitals, but now admits to a three day
admission to Westmead.
(vi) Police report wife has been held against her will; (she was) forced to pray (and)
forced to drink olive oil.

120 The next entry on the same record is by Nurse Paul Carter who records:

(i) Mr Trimarchi is teary and emotionally unstable. Talked about at length physical abuse
from father and sexual abuse by uncle.

(ii) Admits to being delusional - son of God, neighbour is the son of the Devil

(iii) Presents very well, however may be guarded or telling me what I want to hear.

(iv) Police report from wife that Mr Trimarchi has been suffering delusions for the past
six months.

(v) Police seeking for Mr Trimarchi to be scheduled or he will charged with having
threatened wife with machete. Mr Trimarchi denies this. He is accepting of being
admitted on a voluntary basis.

(vi) Police request that they be notified if he leaves hospital, he was brought to hospital in
handcuffs.

121 The Emergency Department Doctor, Dr Winder records:

Mr Trimarchi gave a long and complicated history as to how he came to be in police


custody. Police want a schedule or to charge him. Already threatened wife with machete
(the evidence is "allegedly", not "already", Dr Barclay accepted his error). (Displays)
flight of ideas and pressure of speech.

Mr Trimarchi was paranoid about neighbour threatening him and his family. Alleged wife
tried to overdose him on Panadeine. Demanded a blood test to prove the same. Admitted
to use of marijuana. A history of one prior admission to psychiatric unit following
overdose is reported. Confirmed background of physical and sexual abuse. A physical
examination revealed no abnormalities.

Dr W recorded in conclusion, "For voluntary admission to 149 for observation. He is


aware that if he leaves Hospital he will be arrested and charged."

122 Additional information concerning background events and the mental state of Mr
Trimarchi was obtained by interviews with staff involved. One of those interviewed was
Nurse Carter who stated that:

(i) Mr Trimarchi was fearful that the man across the road had taken his wife and child.

(ii) Mr Trimarchi took off his clothes because he thought the man might use his dog to
sniff him out.
(iii) Mr Trimarchi's mood was calm and he gave explanations Dr Winder and nurse Carter
regarded as reasonable explanations for delusion.

(iv) Mr Trimarchi was settled, although his mood was unstable and fluctuated between
tearfulness and rationality. He was not agitated, a likable fellow and not fearful.

(v) Information was to hand that Mr Trimarchi had been found naked, had threatened his
wife and had religious delusions.

123 Dr Barclay stated that on this evidence, a diagnosis of Acute Psychosis aggravated or
caused by marijuana use could have been made. Further, he stated that it would be
difficult at this stage to make a definitive diagnosis between manic disorder,
schizophrenic disorder or delusional disorder. The occurrence of delusions over some
months indicates at least delusion. The unstable mood with episodes of apparent
rationality suggests a bipolar disorder.

124 Dr Winder told the review team that he thought it was a domestic matter and it was
bizarre. He believed it was evidence of mild psychosis. Dr Winder wrote in his case notes
"his claim to be God when understood in its proper context is not unreasonable".

125 No psychotropic medicine prescribed for Mr Trimarchi. He was admitted for


observation as a voluntary patient.

3. Progress of events

126 At 5:30pm on July 2 2001, the wife of Mr Trimarchi telephoned unit 149 and gave
evidence of her fear of her husband saying that he had threatened her with destruction as
an agent of Satan and he had a collection of delusional writings in his suitcase. This was
confirmed in the case notes of nurse Gordon Turner, who had inspected the contents of
the suitcase.

127 At 6:30pm on July 2 2001 Dr Holmes, the consultant psychiatrist, was advised of Mr
Trimarchi's admission. Dr Holmes was given an outline of how the police brought him in
and his assessment by Dr Winder and Nurse Carter. He was informed that Mr Trimarchi
was settled. He told the nurse to settle the patient and he would review him in the
morning. No medication prescribed by Dr Holmes.

128 The AVO document was received at the hospital before 10:30pm. Nurse Turner told
the night nurse, Val Hyland, to read it. This document was not communicated to Dr
Holmes. Within that document it contained the following additional evidence:

Mr Trimarchi had symptoms of mental illness for 10 years; he believed he is God, Jesus
and every spiritual person, and it contained explicit description of extremely psychotic
behaviour and threats of violence to his wife.
129 Dr Barclay notes that there were several paragraphs within the document which
contained very explicit description of extremely psychotic behaviour and explicit threats
of potentially fatal violence towards the wife.

130 At 1 am on 3 July 2001, Mr Trimarchi's behaviour became threatening. A male


patient was moved from the ward because of risk of harm. The night supervisor Nurse
Gail Bateman raised the issue of scheduling and Nurse Val Hyland agreed.

131 The medical officer on call, Dr Cook, was paged but by the time he arrived at ward,
Mr Trimarchi was asleep and the decision was made not to wake him.

132 Mr Trimarchi woke about 3am and challenged the nurse on duty that "she had let
people in". He then assaulted nurse Hyland, striking her several times. She sounded the
alarm and nurse Gail Bateman came her aid, and she was in turn assaulted. Mr Trimarchi
retreated into the psychiatric ward and there assaulted the female patient who
subsequently died of her injuries.

4. Conclusions

133 Too much reliance on demeanour of patient at time of admission and not enough
weight on the history of events, bizarre behaviour and evidence of delusions.

134 The assessment of the patient was characterised by a naive view of the delusional
material. There was no risk assessment performed.

135 No written information accompanied the patient. The AVO document and the
statement by the patient's wife arrived subsequently. Dr Barclay wrote that the police
should give a brief account in writing of the background and events in every case which
they are forced to intervene.

136 Dr Winder, the emergency department medical officer, was not trained in mental
health assessment. He stated that there was no protocol for such assessments.
Ultimately it is the doctor's decision whether to admit. Mental health staff likewise did
not have a risk assessment instrument or protocol to apply.

137 Lack of awareness in the instability of mood which accompanies acute psychotic
states and the rapidity with which a calm demeanour can transform into psychotically
driven and potentially homicidal rage.

138 The patient should have been scheduled from the Emergency Department. Dr
Barclay suggested that even if a contrary view was accepted that there was not sufficient
certainty to schedule, the contents of the AVO document should have been reviewed by
Dr Holmes. This review would have resulted in a likely outcome to schedule the patient.

139 Unit 149 not suitable, insecure environment to manage such a patient.
140 As in the other reviewed cases, too much reliance was placed on assessments of staff
who lack sufficient training and/or sufficiently experienced for the tasks undertaken. The
information received by the consultant psychiatrist is only good as the information
collated in the first place. The ideal situation would be to have all patients personally
assessed within a short time by a psychiatrist. That is not always possible.

141 To potentially improve risk assessment, a standard risk assessment protocol


accompanied by training in risk assessment and management is necessary. This will guide
the staff to undertake the most appropriate course of action. Where the risk is assessed as
high the only prudent course of action is to have the patient reviewed in a face to face
interview by a psychiatrist.

5. The Application of a Risk Assessment Tool

Various risk assessment tools are listed:

Appendix A - South Eastern Area Health Service . More comprehensive than protocols
used in other areas.

Appendix B - Resnick.

Appendix C - Barclay and White.

Clinical Risk Assessment of Mr Trimarchi based on data available at time of admission to


Emergency Department

Historical Factors

142 The police allege threats of violence towards his wife as a significant factor for their
intervention on this admission. The wife is currently applying for an AVO. The police say
that is Mr Trimarchi is to be discharged from hospital they are to be notified because it is
their intention to charge him with certain offences. Mr Trimarchi is said to have
threatened his wife with a machete.

143 Mr Trimarchi is to have suffered physical and sexual abuse as a child..

144 Initially Mr Trimarchi denied any previous major mental illness, but later admitted to
a three day admission to Westmead psychiatric unit following an overdose. The police
stated that his wife admitted he has been suffering from symptoms of mental illness for
the past six months.

145 Mr Trimarchi admitted to recent use of marijuana and denied use of intravenous
drugs.

Clinical factors
146 Mr Trimarchi demonstrated the following:

Active symptoms of major mental illness such as delusions. He believes he is God. Police
state his wife has been held against her will and forced to drink olive oil. Other symptoms
are mentioned above in clinical information.

Nurse Paul Carter stated that Mr Trimarchi "appears to have insight into delusional
ideation".

He suffered from negative attitude. He appears to blame his father and uncle for his
problems.

Situational factors

147 The only known situational factors for Mr Trimarchi are the conflicts with his
neighbour, his wife and the threat of police action.

Summary and conclusions

148 Mr Trimarchi has symptoms of Acute Psychosis. He has delusions of religious and
persecutory nature. He has incorporated his neighbour into his delusional system
believing that he is the son of the devil. Has demonstrated bizarre behaviour in that he
stripped off his clothes because he believed that his neighbour was using his dog to "sniff
him out". Apparently, the police had found him naked.

149 Mr Trimarchi made threats against his wife. He is said to have threatened her with a
machete, forced her to pray and made her drink olive oil. It is more probable than not that
he will be found to have delusions in respect of his wife. He believes his wife tried to
overdose him with tablets of Panadeine. She is taking an AVO against him.

150 Dr Barclay stated in his report that the focus of delusions on specific persons and the
making of threat towards those persons places those persons at risk.

151 Mr Trimarchi has pressured speech, flight of ideas and lability of mood. His mood
fluctuates between tearfulness and rationality. His presentation is characteristic of a
person with bipolar disorder with psychotic delusions. Such person are prone to sudden
mood swings and episodes of violence driven by delusion.

152 Mr Trimarchi satisfies the criteria of the Mental Health Act to be detained as a
mentally ill person under the schedule. He is at risk of committing an act of harm to
others. His conditions is at risk of deterioration into psychotic rage. Marijuana use could
have aggravated his psychosis.

Progress of events with respect to risk assessment


153 The phone call from Mr Trimarchi's wife to the Psychiatric Unit nurse at 5:30pm on
2 July 2001 confirmed her fear of her husband. She says that he has threatened her "with
destruction as an agent of Satan". This information confirmed that she was at risk.

154 By 10:30pm, the application for the AVO against Mr Trimarchi was discovered in the
case file. This statement confirms and reinforces many relevant risk factors.

155 Mr Trimarchi had displayed symptoms for mental illness for ten years. He has been a
regular smoker of marijuana and had become more paranoid in the last month. He
believes his work is to save the world by collecting eleven (sic) apostles.

156 During the 24 hours prior to his attack he has experienced a visual hallucination, his
pseudo religious activity has become more intense and bizarre. He has threatened his wife
with destruction.

157 Mr Trimarchi has spoken to his wife about decapitating people using his religious
powers. He threatened her with a machete and threw it in her direction. She feared for her
life. (Dr Barclay conceded in oral evidence that Mr Trimarchi did not actually threaten
his wife with a machete).

6. Risk Assessment and Risk Management Training and Protocols

158 There are four components of risk assessment of potentially dangerous patients who
have been brought to a hospital or clinic for assessment.

1. Initial Triage.

2. Assessment of Risk of Immediate Aggression/Violence.

3. Assessment of Risk of Harm to Others in the near future (next 24 hours to three
months).

4. Assessment of Long Term Dangerousness

Assessment of Long Term Dangerousness

159 Dr Barclay states that the issue of long term dangerousness is not an issue for this
report.

Triage and Assessment of Risk of Mental Health Patients

160 Dr Barclay was uncertain to what documents and protocols were available at
Kempsey Hospital at the time of the Trimarchi matter. Documents setting out triage
procedures for mental health patients were almost certainly in use in various area
health services .
161 Robert Whatmough, the duty triage nurse in emergency department, attended a two
day course in Port Macquarie for triage nurses. He stated that "there should be more of
it".

162 Dr Winder stated to Dr Barclay that he was relatively inexperienced in emergency


work and by August 2001 he had not received any formal training in the position. At the
time of Mr Trimarchi's assessment there was no standard protocol for mental patient
assessment in the emergency department. Dr Winder stated that he would like such a
protocol implemented.

163 In response to request for documentation relating to admission procedures and


assessments in the emergency department a set of documents titled "Inpatient Psychiatric
Services Operational Policies" was presented.

164 There is nothing in these documents which set out triage procedures or deal with risk
assessment, nor does it meet with the requirements of NSW Health Circular No 90/94
for psychiatric facilities. There are no documents which set out guidelines for the
assessment and management of potentially dangerous patients in the procedures' manual
of Kempsey Hospital.

Assessment of the Risk of Immediate Aggression/Violence

165 Dr Barclay's report is uncertain in respect of any Kempsey Hospital staff receiving
the training set out in circular 90/94 - "Expert staff training and education in the
prevention and management of assaultative behaviour...". There was no evidence
presented to the review team that such requirements were met.

166 Such training has been available since January 1997. Rozelle Hospital provides a five
day course titled "Critical Incident Positive Outcomes". However this training does not
deal with Risk Assessment of dangerous behaviour in short term.

Short Term Risk Assessment

167 Clinical risk assessment has been a regular component of inpatient psychiatric care
for many years. The recording of such has been rudimentary and usually does not display
the factors considered or the reasoning behind the decisions reached. The risk rating was
used to assist decision making about security and observation levels required for the
patient being assessed.

168 Northern Health Service , Queanbeyan Hospital and Coombes and Martin have
produced documents in respect of clinical risk assessment. The Coombes and Martin
paper has wide currency in mental health in NSW.

169 There is no evidence in the clinical case file of Mr Trimarchi or in the documentation
provided that such documents or recommended procedures had been incorporated into
the clinical mental health policies and procedures of Kempsey Hospital by July 2001.
7. Application of the Mental Health Act to High Risk Patients

Introduction

170 The assessment and management of Mr Trimarchi in the emergency department is


illustrative of a practice and attitude that is common to many acute services which
assess acute psychiatric patients. Great consideration is given to the patient's statements
and demeanour at the time of admission even though these factors contrast with
information supplied from police and relatives.

171 Although a doctor must satisfy himself or herself that the patient meets the
requirements of the Mental Health Act to write a schedule, the doctor is not bound to
only take into evidence what is said by the patient. Information by others should be taken
into account.

172 The standard required to schedule under the Mental Health Act is not onerous.
The doctor must be satisfied the patient suffers a mental illness defined under the Mental
Health Act and that owing to that illness there are reasonable grounds for believing
that care treatment and control of the person is necessary.

173 Mental illness as defined by Schedule 1 of the Mental Health Act requires only
the presence of any one or more of the defined symptoms namely:

(a) Delusions.

(b) Hallucinations.

(c) Serious disorder of thought.

(d) A Severe disturbance of mood.

(e) Sustained or repeated irrational behaviour indicating the presence of any one or more
of the symptoms referred to in paragraphs (a)-(d).

174 The above words are to be read in their plain English meaning.

175 Section 9(2) of the Mental Health Act provides for the continuing condition
including any likely deterioration of the patient's condition to be taken into account viz:

"In considering whether a person is a mentally ill person, the continuing condition of the
person, including any likely deterioration in the person’s condition and the likely effects
of any such deterioration, are to be taken into account".

176 Hence the continuing condition of the person, including any likely deterioration must
be taken into account. It cannot be disregarded.
177 By these standards patients who have attempted suicide or threatened harm to others
and have had a serious disturbance of mood, other defined symptom, or behaviour
indicative of such symptoms, meet the criteria of the Act for continued detention. If their
condition is likely to deteriorate and there is a likelihood that they will be non-compliant
with treatment, it is reasonable to detain high risk patients for further assessment and for
additional information to be obtained about their mental condition, behaviour and
personal background.

178 Notwithstanding the views expressed by Nurse Carter and Dr Winder, there was
ample basis to schedule Mr Trimarchi and to hold him in a secure setting while additional
information was sought from his wife and other sources.

Clinical Application of the Mental Health Act

179 Often too much reliance is placed on the view of the patient obtained on the Mental
Status Examination. Consideration is not made for fluctuations that can occur in a
patient's condition and for the fact that patients can disguise with respect to their object of
suicide, homicide or getting out of hospital. Section 9(2) requires that such fluctuations
and potential for likely deterioration to be taken into account.

180 According to Dr Barclay, it is not possible in complex cases to obtain accurate and
comprehensive information in a single interview. Nor is it unreasonable to detain a
patient who presents a potential suicide or homicide risk to allow additional time to
observe any fluctuations in the patient's condition and for comprehensive assessment to
occur. Such patients are rarely safe to be detained on a voluntary basis.

181 The Mental Health Act was amended in 1997 because there was public concern
"that the Mental Health Act was not making appropriate provision for the care of
people with mental illness when they were not well enough to make safe decisions for
themselves".

182 Mental health staff should be assured that if they act in good faith with that
principle in mind, their decisions will be respected. Furthermore, the Mental Health
Act provides mechanisms for judicial review. The decisions relating to detention and
treatment do not have to be established beyond reasonable doubt or even to the civil
standard of balance of probabilities. The Mental Health Act only requires reasonable
grounds under s 9(1).

183 Staff should be reminded that the requirement is qualified by the provision that the
environment must enable care and treatment to be given effectively. For a homicidal
patient that means being in a secure situation until the risk is reasonably assessed to have
passed.

184 Annexed to Dr Barclay's report were the following appendices:

A. The South Eastern Area Health Service Risk Assessment Form


B. Factors Predisposing to Risk of Harm to Others, Presented by P.J. Resnick, February
2001 at RANZCP Congress, Brisbane, May 2002.

C. Harm to Others and Harm to self (suicide) Risk Assessment Charts by Dr Barclay and
Professor White.

D. An extract from a report by Dr Barclay on Two Critical Incidents at St George and


Kempsey Hospitals (much of the material contained in this appendix in respect of the
Kempsey Hospital duplicates the material set out in the Barclay Report).

Dr Barclay's Oral Evidence

185 Dr Barclay was called to give evidence in the proceedings and was cross- examined.
His evidence can be summarised as follows:

186 Dr Barclay stated that the original request for the report on the critical incident at
Kempsey Hospital (the Barclay Report) came from Professor Raphael. In the first
instance, a telephone request was made, then later a written request was made on the 15
February 2003.

187 At the beginning of 2001, Dr Barclay was asked by Professor Raphael to prepare a
review, together with Professor Edward White, of four homicide cases committed by
psychiatric patients under care. A homicide at the Kempsey Hospital was included in the
review (Trimarchi matter).

188 In preparing the Barclay report, Dr Barclay stated that he referred to notes taken from
interviews with staff at Kempsey Hospital connected to the Trimarchi matter.

189 Dr Barclay stated that the substance of his opinion in the Barclay report concerning
the assessment process at Kempsey Hospital would not be changed if the facts in the
statement of facts were taken to be correct.

190 According to Dr Barclay, Appendix A (Risk Assessment Tool) of his report was in
existence "before these events" and was used by the staff within the South Eastern
Sydney Area Health Service in their emergency department and in their psychiatric
inpatient unit for the assessment of risk with respect to psychiatric patients, either being
triaged in the emergency department or assessed on admission to the inpatient unit.

191 Documents similar to Appendix A were completed in the St George and Kempsey
Hospitals by the staff for patients examined by Dr Barclay during his review. The
documents were completed by different staff. Most commonly it was done by the senior
experienced nurse. It would be reviewed with one of the doctors as on a basis of making
decisions about the categorisation of the patient for security purposes in the wards.

192 The information that was contained in Appendix B (which set out factors
predisposing of risk of harm to others) of the Barclay report was generally available prior
to July 2001 (prior to the Trimarchi matter). Dr Barclay admitted that the information had
been available for decades. Further, he admitted that "it is the sort of material that is made
available to psychiatric trainees and doctors working in the psychiatric area because it is
key information about, as it is described, factors predisposing to risk of harm to others."
Some of the factors referred to in Appendix B are those which come from sources other
than the patient.

193 Dr Barclay explained hospital staff would be alerted to the factors outlined in
appendices B and C of the Barclay Report (risk of harm to others) as every psychiatric
medical trainee and trainee psychiatric nurse would be trained in the importance of
obtaining family history, background information of the patient and information from the
relatives when a patient was admitted. In his opinion, the best information about the
patient and their illness was often gathered from these sources as the patient is often
unreliable.

194 On the issue of training, Dr Barclay stated that the staff were trained in service
courses in hospitals; nurses were trained in universities and Doctors were trained through
the institute of psychiatry. Training was audited by quality assurance departments. Most
area health services have such departments who review the training regularly. Dr
Barclay was uncertain as to whether the defendant had such a system in place. However,
he acknowledged that they had a safety officer.

195 Dr Barclay agreed with Mr Joseph in respect of the need of protocols. Protocols are
essential in reminding the staff of the issues for patients. These reminders in turn, are
needed for staff in dealings with certain patients and certain events. The type of protocols
envisioned by Dr Barclay in his report were not the subject of evidence.

196 The expert staff training and education in the prevention and management of assaults
by patients stated in his report on page 11 is provided by Rozelle Hospital through its
"Critical Incident Positive Outcomes" course. It is a five day workshop for health
workers working in mental health facilities. This course has been conducted since
January 1997 and all area health boards are encouraged to send their staff members.
Dr Barclay understood that one of the nurses from Kempsey Hospital, Ms Hyland,
attended the course.

197 Dr Barclay admitted that the Mental Health and Outcome and Assessment tool is
a tool developed by the centre for mental health and is in wide use throughout the
whole of the mental health system. He agreed with Mr Joseph that the tool had been
in existence before July 2001 and from his investigation he acknowledged that the tool
was not utilised in respect of Mr Trimarchi's matter. The purpose of the tool is to remind
the staff the issues that need to be covered in taking a psychiatric history when assessing
patients and outcomes, and to standardise the information collected from the entire
mental health system in order to measure the outcomes.

198 When asked by counsel whether psychiatry is objective, Dr Barclay replied that "not
much in psychiatry is objective".
199 Dr Barclay agreed with Mr Joseph that psycho-social history, risk assessment and
risk factors listed in his report are covered by this tool.

200 In cross-examination, Dr Barclay admitted that the circumstances of Mr Trimarchi's


admission was the usual protocol for both psychiatric and surgical patients. He accepted
that the admitting doctor, in this case Dr Holmes, is not necessarily the doctor who in fact
admits the patient on the day of admission. Dr Barclay agreed with Mr Inatey that
although Mr Trimarchi was not seen by Dr Holmes, he was under his care and that there
was nothing unusual in the admitting process.

201 Although the admission policy stated that all admissions must be under the care of a
specialist psychiatrist or nominee, Dr Barclay agreed with counsel that the admission of
Mr Trimarchi is encompassed within the admission policy.

202 Although Dr Barclay could not speak of the curriculum for current university
training, he believed that registered psychiatric nurses would be taught to obtain detailed
history of patients from as many sources as possible and he thought that the psychiatric
nurses he had interviewed for the purpose of his report would have received such
training.

203 Dr Barclay agreed with counsel that part of the ethos of the hospital was for the staff
to obtain information from the patient and others and that both doctors and nurses are
well aware of that ethos. Taking the history of the patient would be first action to taken
by staff.

204 Dr Barclay stated that depending on the circumstances it would be normal for a
relative to be interviewed and a history to be recorded at the time of admission. However,
he agreed with counsel that assumptions must be made that relatives or others are
available at admission or shortly after admission.

205 Despite the investigation at Kempsey Hospital, Dr Barclay was uncertain whether Dr
Winder had any exposure to psychiatric work.

206 Dr Barclay acknowledged that the history of the patient was taken from Mr
Trimarchi and some history was taken from the police officers who escorted him to the
hospital. He later admitted that the procedure undertaken for Mr Trimarchi's admission
was "the usual thing to do".

207 A risk assessment which followed the procedure in Appendix A had been undertaken
by the staff at St George Hospital in October 2001 for a similar case to the Trimarchi
matter. However the protocol in Appendix B, which sets out factors predisposing of risk
of harm to others, was not followed at St George Hospital. Dr Barclay considers
Appendix B to be an educational tool. He agreed that the knowledge from Appendix B
would assist in filling out Appendix A.
208 Dr Barclay agreed with Mr Inatey that St George Hospital had in place education
protocols for nurses and medical staff such as the ones at Rozelle Hospital. They had
regular meetings and discussed the issues in Appendices A and B.

209 St George Hospital, despite its larger size, had a similar admissions policy to
Kempsey Hospital. Dr Barclay confirmed that the admission systems were the same. A
medical officer and a member of the nursing staff would see the patient, make an
assessment and obtain information. The patient would be admitted under the care of a
psychiatric specialist who may see the patient at admission or later in hospital. The same
procedure is followed in Kempsey Hospital.

210 According to Dr Barclay's assessment of the incident at St George Hospital, the tools
and protocols, including the risk assessment systems in Appendices A and B, were
followed.

211 Although St George Hospital undertook a process of education of nurses and training
in terms of risk management and assessment in the manner discussed by Dr Barclay, the
hospital had to confront a situation where a man murdered his wife, attempted to murder
his children and committed suicide.

212 Dr Barclay conceded to Mr Inatey in cross-examination that regardless of the system


in place, ultimately it comes down to a subjective assessment by those on the ground.
Also despite all the risk assessments and protocols in place, a person must make an
assessment on the available information.

213 Ultimately, Dr Barclay admitted, global clinical judgment should be made based on
identifiable risk factors to determine the level of risk through the usage of Appendix A,
rather than using numerical scores.

214 Dr Barclay agreed in making a judgment there must be regard to both the
information available and constraints under the Mental Health Act 1990. He admitted
that in having regard to all the information available, Mr Trimarchi should have been
scheduled and not been admitted as a voluntary patient. Although subsequently he
conceded that it would have been difficult in making that assessment at the time of
admission. Further, Dr Barclay agreed with counsel that Mr Trimarchi was admitted for
only a short period of time.

215 Although Dr Barclay admitted the necessity of obtaining detailed information of


history from family and others, he conceded it is not necessarily done at the time of
admission, but could be done during the course of admission.

216 Dr Barclay agreed with counsel that a doctor treating someone like Mr Trimarchi is
faced with competing views about his condition from those who bring him in or are
associated with him, and problems are experienced by treating doctors in such cases as
Mr Trimarchi, in the context of family disputes between husband and wife. He also
agreed with Mr Inatey that complaints about the use of force had to be judged carefully as
it might be coloured by the wife's then particular view. The Mental Health Act
recognises that the pecuniary interest of family members should be kept in mind by
doctors when family members are making complaints about their relatives and their
psychiatric state.

217 Dr Barclay conceded that although a judgment may ultimately be wrong, a judgment
might not be incorrect at the time of admission.

218 In his report, Dr Barclay viewed the fact that Mr Trimarchi had threatened his wife
and that the police were going to arrest him if he was not dealt with in hospital as an
important matter. However subsequently he admitted that he was not aware that at the
time of admission the police said to the nurse on duty that Mr Trimarchi had not been
violent and had not threatened anyone. Dr Barclay accepted this evidence as an important
matter and that this would colour the judgment of his admission.

219 Dr Barclay conceded that for the purpose of his report, he had assumed that the
police said that they were going to charge Mr Trimarchi unless he was kept at Kempsey
Hospital. At the time of admission, the police were alleged to have said "Unless you keep
him here we will find something to charge him with, assuming his wife agrees to it".

220 Under further cross-examination, Dr Barclay agreed with counsel that paragraph 19
of the agreed statement of facts is different to what he assumed for his report and that it
does not suggest that the police would in fact charge him.

221 Dr Barclay considered that the police evidence of Mr Trimarchi's non-violent


behaviour and that he would be charged conditionally were factors that would reduce the
weight of detaining Mr Trimarchi indefinitely.

222 Dr Barclay accepted that what he had written in page 2 of his report: "The police are
seeking for VT to be scheduled or he will be charged, having threatened his wife with a
machete", is different to what actually happened. Later he admitted that a doctor or nurse
receiving this information would have come to a different conclusion than that reached in
his report regarding the manner of Mr Trimarchi's treatment.

223 In respect of Dr Winder's notes, Dr Barclay acknowledged that he had incorrectly


assumed for the purposes of his report that Mr Trimarchi had "already threatened" his
wife although Dr Winder's notes stated that Mr Trimarchi had "allegedly threatened his
wife with a machete" .

224 For the purpose of his report, Dr Barclay admitted that he had made further
assumptions at the time of admission that the hospital staff were informed of the
Apprehended Violence Order (AVO) against Mr Trimarchi. He accepted that if the
hospital staff received information of Mr Trimarchi's AVO after his admission in the
afternoon, it would impact on their assessment.
225 When questioned by counsel on the admission policy of Kempsey Hospital, Dr
Barclay agreed that he did not criticise or analyse the admission policy, other than a
reference on p15 of his report. The admission policy divides patients into two categories:
voluntary or involuntary.

226 An involuntary patient in category A is a patient who requires to be scheduled. Dr


Barclay stated that the admitting doctor makes the determination whether a patient is
involuntary or voluntary.

227 Dr Barclay agreed with Mr Inatey that the for the purposes of scheduling, the criteria
in the Mental Health Act is the same as the criteria in Kempsey Hospital's admission
policy. Further, Dr Barclay agreed that any medical practitioner can schedule a person for
the purposes of scheduling under the Mental Health Act and therefore Dr Winder had
the power under the Act to schedule.

228 Although Dr Barclay admitted previously that the definition of a category B patient
(general patient privileges) varies between hospitals, he acknowledged that Mr Trimarchi
was a voluntary patient and was not scheduled under the Mental Health Act.

229 Dr Barclay agreed with counsel that the 149 Unit was not intended to accommodate
patients who should otherwise in review be scheduled and be moved to secure facilities
elsewhere. In addition, he agreed that the intent of the hospital was to move scheduled
patients as soon as possible, though he admitted that it was very difficult at times to
immediately find a location.

230 In respect of Dr Winder's notes, Dr Barclay accepted that Dr Winder had seen and
noted what had been said by nurse Carter and that "a history appears to be taken from the
patient". There was evidence of Mr Trimarchi's previous admission of 14 or 15 years ago.
Dr Barclay agreed that the absence of any other admission puts very little weight on that
admission.

231 Dr Barclay agreed that despite a history of psychiatric disturbances, there was no
evidence on the hospital records from any source which indicated Mr Trimarchi had
committed any previous acts of violence.

232 Although Dr Barclay disagreed with the approach taken by Dr Winder "to observe
but not schedule", he stated that it was open to Dr Winder make that judgment. He stated
that during the course of admission, more and more information came in which could
have led to a different decision being made about Mr Trimarchi.

233 According to Dr Barclay, the implementation of risk assessment, protocols, educative


processes and other matters would help in the process of assessment. Subsequently, he
admitted that if the protocols and educative processes were implemented before the
Trimachi incident, a different decision may have been reached, but it may not have
resulted in a different assessment. It depends on the clinical results at the time.
234 Dr Barclay agreed with counsel that historical factors cannot inform a person of the
current risk of a patient. Furthermore, he agreed with the proposition that Dr Winder
would have placed greater emphasis upon such clinical and situational factors of the
patient and that Dr Winder made a judgment about these matters in relation to whether or
not he should or should not involuntarily detain a patient.

235 Further, Dr Barclay accepted that the clinical features on presentation are the features
of immediate relevance to detention and treatment. It was open to Dr Winder upon a
reasonable basis to decide not to schedule Mr Trimarchi.

236 To schedule a patient under the Mental Health Act, Dr Barclay stated, the doctor
does not require evidence which is beyond reasonable doubt or on the balance of
probabilities, there only needs to be reasonable cause. However, Dr Barclay admitted,
many doctors are reluctant to schedule due to inexperience and lack of knowledge.

237 Dr Barclay acknowledged section 9 of the Mental Health Act must be satisfied
before scheduling of patients. To satisfy s 9, a person must be determined to be suffering
from a mental illness; and there are reasonable grounds for believing that care, treatment
or control of the person is necessary; and that it is necessary to protect the person, either
himself or herself or others from serious harm.

238 To make a determination of involuntary detention under the Act, Dr Barclay stated
that significant judgments must be made. There must be a substantial risk according to
the doctor and a judgment must be made in accordance with sections 4 and 9 of the
Mental Health Act.

239 Dr Barclay agreed the admission procedure undertaken by the staff at Kempsey
Hospital is the standard for a hospital without a psychiatrist or a psychiatric registrar on
its staff, it was the only arrangement they could have.

240 Dr Barclay noted that there was no real urgency immediately after admission to
contact Dr Holmes, who was the psychiatrist on-call for Kempsey Hospital. An attempt
was made at 2:50pm but Dr Holmes was not available. Later Dr Holmes was contacted
and advised of the admission at 6:30pm.

241 Dr Barclay was unsure of what information Dr Holmes was told by the hospital staff.
He was uncertain whether Dr Holmes received the information set out in p4 of his report
(the AVO, mental illness symptoms for 10 years etc). According to Dr Barclay, on the
information provided, Dr Holmes was justified in his approach not to schedule Mr
Trimarchi.

242 Dr Barclay admitted that Dr Holmes had been informed of the symptoms of mental
illness including that Mr Trimarchi had the belief he was God and that he was collecting
11 apostles to save the world. However, Dr Holmes was not informed of the AVO.
243 Dr Barclay agreed with Mr Inatey that when Mr Trimarchi was assessed too much
reliance was placed upon the demeanour of the patient at the time of admission, which
was a subjective matter.

244 When questioned in respect of his report, Dr Barclay admitted that it was his own
subjective conclusion and it was open to another doctor to come to another reasonable
subjective conclusion based on the available material.

245 There was nothing written in the file to indicate to Dr Barclay that risk factors had
been considered and weighed and accepted or rejected in the Trimachi matter. A history
and matters which affect risk profiles were considered. However, it is unknown whether
any risk assessment was undertaken.

246 Dr Barclay rejected the proposition put by Mr Inatey that nothing could be done if
there was no written information accompanying the admission of a patient. Dr Barclay
recommended that for example, information from police or other sources such as family
should be recorded at the time of admission. Dr Barclay recommended a systematic
recording of information relevant at the time of admission which would clarify the risk.

247 However, Dr Barclay did concede that the doctors receiving the information could
ignore it or consider it in detail and determine that it was of not much interest. A different
approach would not necessarily result in different results. A similar tragedy to the
Trimarchi matter had occurred at St George Hospital in spite of risk assessment profiles
being undertaken.

248 Although Dr Barclay suggested a preferred course of action in the Trimarchi matter
in his report, he accepted that a contrary view was reasonably available at the time.

249 Dr Barclay admitted that though the application of protocols and educational matters
improve the quality of risk assessment and that things could have been done to clarify the
situation, it may not make a difference when it comes down to a subjective matter.

250 The response by the Kempsey Hospital nursing psychiatric staff to not schedule Mr
Trimarchi on 3 July 2001 as a result of his psychotic, bizarre and threatening behaviour
was deemed by Dr Barclay to be appropriate. Dr Barclay stated that the decision made by
the staff to allow Mr Trimarchi to remain asleep in the early hours of 3 July 2001 was
understandable at that point in time, though he stated that he may have come to a
different conclusion.

251 Dr Barclay agreed with psychiatric nurse W Hyland that even in the most secure unit,
a tragedy such as the Trimarchi matter could occur. He acknowledged that the incident
could happen despite the best endeavours of the team and their risk assessment and their
education protocols in the most secure unit.

252 In re-examination Dr Barclay agreed that very secure or secure units have the
advantages of higher staff to patient ratios. Such units normally have single rooms, so
that patients are not sleeping in rooms together and therefore have a high degree of 24
hour observation. Furthermore, he agreed that they are designed and staffed in such a way
as to reduce the risk of acts of violence perpetrated by one patient on another. In his
opinion, although all possible risk cannot be eliminated, the idea was to minimise the
risk.

253 Dr Barclay stated that the longer the period of time in assessment, the more
information will be gathered. However, a risk assessment should be done when the doctor
sees the patient. This assessment may change over time as a result of additional
information. Risk assessment is a continuous process which should be repeated at
intervals during the care of the patient.

254 Dr Barclay agreed with Mr Joseph that the period of time of Mr Trimarchi's
admission was a significant period of time over which a risk assessment could have been
made in respect of Mr Trimarchi.

255 When questioned by Mr Joseph in respect of the objective nature of psychiatry, Dr


Barclay stated that unlike other branches of medicine, psychiatry (with the exception of
organic brain syndromes) does not have objective tests such as pathology,
electrocardiograms or x-rays to inform the doctor of the disease. Psychiatrists are reliant
on asking the patient questions and then evaluate the answers against what they know to
be normal behaviour and subsequently make decisions about a patient. The evaluation of
the patient is done against a body of substantial knowledge. Various factors present in the
patient are added up and their level of risk is assessed.

256 Dr Barclay agreed with Mr Joseph that to determine whether someone should be
scheduled under the Mental Health Act, first regard must be had to the symptoms of
the patient.

257 According to Dr Barclay, there was no direct indication that a decision was made that
Mr Trimarchi did or did not have a mental illness. He could have a mental illness defined
under the Mental Health Act and still be admitted as voluntary patient or he might not
have a mental illness defined under the Act.

258 Dr Barclay outlined the constraints of a doctor to schedule under the Mental Health
Act. The scheduling doctor must certify that they do not have a pecuniary interest
directly or indirectly in an authorised hospital and is constrained from being a near
relative of the person being scheduled. If these matters apply, the doctor cannot write a
schedule. Further, doctors are constrained by the definition of mentally ill under section
11 of the Mental Health Act.

259 Dr Barclay stated that if it was known at the time of admission that the wife of Mr
Trimarchi was actively seeking an AVO against her husband her reasons for making that
application would have been important. In Dr Barclay's opinion the reason should have
been ascertained as soon as possible.
260 Dr Barclay was asked about the relationship between Mr Trimarchi's initial
presentation at Kempsey Hospital and the fact of his serious delusions and stated that a
person such as Mr Trimarchi with serious delusions indicates that he is psychotic. Such
persons can change their mood and behaviour very rapidly and they are susceptible to
become very violent under little or no provocation. Further, Dr Barclay stated that there
was enough material to suggest that he had a serious psychotic illness. In Dr Barclay's
opinion, Mr Trimarchi had the capacity to change in a flash, which may be triggered by
an external or internal factor.

261 Mr Inatey was given leave to further cross-examine on the issue of


subjective/objective judgments in psychiatry. Dr Barclay stated that a psychiatrist must
try to eliminate their values from their assessment and treatment of patients. Hence in that
manner, psychiatrists are objective. Psychiatrists are subjective in the sense that their
dealings with patients depend on the a psychiatrist's knowledge and experience and their
interpretation.

262 Dr Barclay agreed with Mr Inatey in the further cross-examination that minds may
differ on the course of action required in the case of Mr Trimarchi and that is why he
postulated a contrary view.

263 Dr Barclay was uncertain how much Dr Cook, the medical officer on call, was told
about Mr Trimarchi including whether he knew what was in the AVO. A decision had
been made not to wake up Mr Trimarchi. Dr Barclay stated that he could understand this
decision and that it was formulated on a reasonable basis.

264 Dr Barclay stated that by the time the AVO found its way to the hospital, it should
have been reviewed by Dr Holmes. He was the most qualified person to make a decision
regarding that matter.

265 Dr Barclay acknowledged that even doctors of sound judgment may not come to the
same conclusion reached in the Barclay Report.

266 Dr Barclay considered the Trimarchi matter to be a rare and freakish occurrence. He
was aware of only two occurrences of patients killing other inpatients in 2001. One had
occurred in St George Hospital, and it had occurred after a detailed risk assessment.

DEFENDANT'S EVIDENCE

267 The defendant tendered the following documents:

1. Bundle of documents.

2. Document entitled North Coast Area Health Induction Manual for New Employees.

3. Health Dependency Unit document setting out processes for current mental health
unit at Kempsey District Hospital.
4. Document entitled Patient Liaison with Mental Health Service .

5. Document entitled Duress Alarm Response Team.

6. Memorandum from the Kempsey District Hospital entitled "Minimisation of


Aggression Security Education".

7. Document called Mid North Coast Area Health Service Area Policy Zero Tolerance
to Violence.

8. Document entitled Mid North Coast Area Health Service Kempsey District
Hospital Policy Statement Triage Referral.

SUBMISSIONS OF THE PROSECUTOR

268 Senior counsel for each party provided detailed submissions as to the relevant
principles and analysed the factual matters requiring consideration in the proceedings.
The prosecutor's submissions included:

(i) The prosecutor accepted that a plea of guilty is only an admission of the essential
ingredients of the charge. However, it contended that the agreed facts included certain
additional admissions and that the evidence tendered on behalf of the prosecutor in the
course of the entire trial proceedings proved certain additional failures beyond reasonable
doubt. There can be no dispute that Mr Trimarchi was "mentally ill" for the purposes of
the Mental Health Act 1900 (NSW). The definition of mental illness, pursuant to cl 3
Definitions is set out in Sch 1 to the Act as follows:

mental illness means a condition which seriously impairs, either temporarily or


permanently, the mental functioning of a person and is characterised by the presence in
the person of any one or more of the following symptoms:

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more
of the symptoms referred to in paragraphs (a)–(d).

(ii) That at all material times Mr Trimarchi presented a high risk of assault to both
patients and staff. Reference was made to his presenting symptoms and certain additional
factors that emerged from the evidence being the context of Mr Trimarchi's presentation,
including what the Police told the defendant staff; the lack of medication to control any
change in those symptoms; the limitation placed upon Mr Trimarchi's admission by the
Police; the lack of staff numbers; the security staff went off duty at 2.00 am; the limited
capacity of the Emergency Department to cope with psychiatric patients; the limited ward
security. It was also noted that there can be a quick change in presentation from calm to
otherwise as acknowledged by Dr Barclay in his evidence.

(iii) It was submitted that the defendant has admitted to certain failures "at the time of the
subject incident" on 2 and/or 3 June 2001 in relation to the Admissions Policy. These
words appear in the agreed statement of facts, the particulars to the charge do not contain
such a reference. The particulars also use the words "in relation to". It has been held these
are words of wide import: ACCC v MUA (2001) 187 ALR 487 at [68]. The prosecutor
rejected the defendant's contention that these words should be read in the context of
"particulars of a criminal charge" and read in a restrictive way. It was therefore submitted
that the Court is obliged by the particulars and proven evidence to consider conduct over
the whole of the period of admission given that the particulars referred to actions by
employees on duty throughout that period and the Admissions Policy is concerned with
"operational policies" beyond the initial admission. It was therefore necessary, so it was
submitted, to consider the various conduct as detailed in the written submissions as
evidence of admitted failures.

(iv) The core of the admitted breach is the failure of the defendant to arm their employees
with the knowledge "necessary" to ensure that the Admissions Policy was implemented in
a manner that was consistent with the defendant's dual obligations under both the Mental
Health Act 1990 and the OH&S Act 1983. It is inconsistent with an employer's
obligation under the OH&S Act not to take steps to obviate the risk of assault or, where
that is not possible, to minimise that risk, subject only to the defences set out in s 53 of
the Act. See WorkCover Authority of New South Wales (Inspector Pompili) v Central
Sydney Area Health Service (2002) NSWIRComm 44, per Schmidt J at [89] - [90].

(v) The defendant's failure to arm and educate its employees with the content and the
tools necessary to perform their responsibility under the Admissions Policy significantly
increased the risk of inadequate assessment on Mr Trimarchi's initial presentation to the
Emergency Department. Examples of a wide range of issues relating to the provision of
psychiatric care services in the Admissions Policy were referred to. These failures, it
was submitted, significantly increased the risk of Mr Trimarchi being inappropriately
admitted "for assessment" to the 149 Unit as a "voluntary schedule" without the
prescription of medication; this led to a diminished depreciation of the danger associated
with the admission of Mr Trimarchi and the failure to properly consult Dr Holmes. The
natural assumption, given the admission as a "voluntary patient", would be to think that
the patient did not present with a high level of "assaultative" risk to staff and other
patients.

(vi) The prosecutor then analysed what the defendant failed to ensure should have
occurred in view of Mr Trimarchi's delusions; the contact by Mr Jerome; the limited
contact with Dr Holmes; diagnosis or provisional diagnosis being made and medication
being prescribed.
(vii) The prosecutor drew the Court's attention to the Safety and Security Manual -
Minimum Standards for Health Care Facilities dated September 1998 - Chapter 7 that
requires management of health care facilities to:

1. Identify all areas of risk to staff, patients and visitors by conducting a risk assessment
(as described in Ch 2).

2. Identify patients who have the potential for aggressive behaviour and factors that may
trigger an outburst. Patient plan should include actions to reduce risk of aggressive
behaviour.

3. Ensure local policies and procedures are in place that staff are fully aware of them.

4. Ensure that staff have been appropriately trained and identified ongoing training needs.

5. Ensure in isolated facilities/units a minimum of two nurses are rostered each shift. If a
second nurse is not available on a shift, then a security guard should be hired, or other
appropriate personnel in attendance.

(viii) The existence of "subjective" differences of opinion can in no way ameliorate the
defendant's failure as there can be no doubt that failure to relevantly "inform", "instruct",
"supervise" and "train" employees must increase the risk of "bad practices" and "poor
judgment".

(ix) The potential gravity of the underlying risk (homicidal behaviour on the part of an
inpatient) and the fact that behaviour patterns of patients suffering from mental illness are
so unpredictable, merely served to highlight the need for all Area Health Services
involved in delivery of inpatient psychiatric services , including the defendant, to adopt
a greater degree of vilgilence and proactivity in identifying and eliminating failings in its
risk management policies and programmes (see WorkCover Authority (NSW) (Inspector
Stewart) v The Crown in Right of the State of New South Wales (Department of Education
and Training, Department of Juvenile Justice and TAFE) [2002] NSWIRComm 259).

(x) The submission by the defendant that Mr Trimarchi was under the care of a
psychiatrist, namely, Dr Holmes, and was a "voluntary patient", even though he was "not
allowed to leave" should not be accepted. To accept this submission would subvert the
"objectives" of the Admissions Policy. The policy required the patient to be "under the
care" of a psychiatrist. The mechanics of having a doctor "on call" can be no substitute
for what the policy required.

(xi) The prosecutor submitted that the purpose of this part of the Admissions Policy was a
form of auditing by a specialist psychiatrist of submissions made by non-psychiatrists. If
Mr Trimarchi's condition changed, or if further information came into the possession of
nurses requiring a specialist assessment, the patient was not for any relevant purpose
"under the care" of a psychiatrist. It was submitted that the contacting of Dr Holmes was
thought to be no more than a formality. No further contact was made when events
changed. The requirement of the patient to sign a consent form of his "voluntariness"
avoided the difficulties of attendance by Dr Holmes at the Hospital or obtaining
transportation to another Hospital. The defendant should have had in place a system to
meet an apparent and clearly serious deterioration in a patient's condition as occurred
with Mr Trimarchi who threatened his roommate to the point where that patient had to be
moved out of the Unit and the hospital notes indicate that the bizarre behaviours
continued for a period lasting in excess of half an hour.

(xii) The Area Risk Manager, Ms F Tyne, following an investigation into the incident
reported that "it was apparent from (her investigation) that there was inadequate training
of staff both in the Admission/Discharge Procedures for patients of Unit 149."

(xiii) In respect of the additional charges, the prosecutor noted the defendant's plea of
guilty to each of those charges.

Proper Approach to Sentencing and the Operation of Section 12(a) of the OH&S Act
2000 (NSW) Objective Seriousness of the Offence

269 The prosecutor referred to the proper approach to sentencing as being found in the
judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector
Martin) v Byrne Civil Engineering Constructions Pty Ltd (No 2) (2001) 109 IR 347 at
[19] noting:

(i) Neither the defendant or its predecessor had any prior convictions.

(ii) The maximum penalty in respect of the each of the offences charged is $550,000.

(iii) Penalties are to be imposed by reference to that maximum. See Markarian v R (2005)
215 ALR 213 (Gleeson CJ, Gummow, Hayne and Callinan JJ at [30] - [32] and [35]
McHugh J at [50]).

270 It was submitted that the principles outlined by their Honours require that this Court
should not adopt an approach involving, first, an assessment of the appropriate fine
having regard to the objective seriousness of the subject offence against the maximum
before moving on to a consideration of subjective factors that may warrant a reduction in
the penalty to be imposed. Rather, the prosecution submitted that the Court should
consider the maximum penalty then assess the various objective and subjective factors
referred to later in these submissions against that maximum in making an assessment of
the appropriate fine(s) to be imposed.

271 In respect of the defendant's pleas of guilty, it was submitted, in accordance with the
judgments of R v Thomson; R v Houlton (2000) 49 NSWLR 383, the Court should make
specific allowance for the defendant's pleas, if the Court determined that it is, in fact,
appropriate to do so in the circumstances of the present case.

The Objective Seriousness of the Current Offences


272 It was acknowledged that the maximum penalty is available to be utilised in a worse
case scenario: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist
Rentals Pty Limited (No 2) (2000) 99 IR 163 at 185; Camilleri Stock Feeds Pty Limited v
Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Veen v R (No 2)
(1998) 164 CLR 465 at 478 and WorkCover Authority of New South Wales (Inspector
Peter Ankucic) v Macdonalds Australia Limited and Anor (2000) 95 IR 383.

273 The principal and particular purposes of the Occupational Health and Safety Act
2000 (NSW) are:

(i) The protection of workers from breaches of safety, health and welfare; and

(ii) To compel attention to occupational health and safety issues so that persons are
not exposed to risks to their health and safety at the workplace (see WorkCover
Authority of NSW v Air Express International (Australia) Pty Limited (1996) 83 IR 64;
Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; and Alcatel Australia
Limited v WorkCover Authority of NSW (1996) 70 IR 99 at 106. See also WorkCover
Authority of NSW (Inspector Petar Ankucic) v McDonald’s Australia Limited & Anor at
427.

274 Further, as was observed by the Full Bench in Capral Aluminium Ltd v WorkCover
Authority of New South Wales (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 at [81] - [82],
foreseeability is relevant to the assessment of the seriousness of the subject offence[s] and
“ ..[t]he existence of a reasonably foreseeable risk of injury will necessarily result in the
offence being more serious in nature.”

275 It was submitted that the risk to safety was not only readily foreseeable in an
objective sense, it was a risk to safety that was specifically known and recognised by the
defendant as evidenced by the Inpatient Psychiatric Service Operational Policies.

276 It was common ground between the parties, that the inpatient psychiatric services
available at Kempsey District Hospital in or about July 2001 was suitable only for the
voluntary admission of patients.

277 It is also common ground that the 149 Unit was not a secure unit and patients
admitted to that unit had "general patient privileges".

278 Dr Winder observed in his record of interview that he was aware that psychiatric
patients who were "even remotely violent" were not to be admitted to the 149 Unit. Dr
Barclay's evidence was that it is "necessary" for both medical and nursing staff to be
reminded constantly of the issues to be addressed, particularly those in a patient that may
be indicative of higher risk or higher assaultative potential.

279 The proper assessment and characterisation of patients played a crucial role in
securing the safety of both the hospital staff and patients. The defendant's failure to
provide adequate training with respect to the operational policies were critical failures.
280 The fact that Dr Winder and some of the nursing staff directly involved in the
incident were experienced, qualified, psychiatric nurses does not exculpate the
defendant's failure to comply with the Act: WorkCover Authority of New South Wales v
Kirk Group Holdings Pty Ltd [2004] 135 IR 166 at 198.

281 The defendant's contention that this case should be seen as involving a
"misdiagnosis" or a "wrong admission" and little more than a failure on the part of
medical and nursing staff to recognise the full nature and extent of Mr Trimarchi's
psychotic condition until 3 July 2001 concentrates on the obvious immediate cause and
fails to acknowledge the nature and qualify of the underlying systemic breaches:
WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the
State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR
268.

282 It is no answer to the prosecution's case that even if the defendant had put in place
proper systems and training, the incident may have occurred in any event: WorkCover
Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New
South Wales (Police Service of New South Wales) at 290 - 292.

283 The prosecutor pointed to the review of nursing services at Kempsey District
Hospital conducted by Mr P Harper in June 2001, who concluded that the hospital needed
to "develop and implement appropriate admission and discharge policies and
procedures". Mr Harper's concerns, it was submitted, were echoed and reinforced by Dr
Barclay in his report "Critical Incident Review" which he conducted together with
Professor White shortly after the incident. At page 11 of his report, Dr Barclay made the
following observations:

(i) Dr Winder said that he was relatively inexperienced in the position and at August 2001
he had not received any formal training in the position [i.e. his position in the ED at the
Hospital].

(ii) Dr Winder said that as at the time of his assessment of Trimarchi there was no
standard protocol for the assessment of mental health patients in the Emergency
Department at Kempsey District Hospital. [In Ex P19 at page 3 Dr Barclay records that
Dr Winder reported that [t]here is no standard protocol with respect to the assessment of
psychiatric patients available in the Emergency Department. ...Dr W[inder] would like to
have a standardised protocol for such a purpose.”]

(iii) The documentation relating to admission procedures and assessments in the


Emergency Department was limited to a set of documents entitled “Inpatient Psychiatric
Services Operational Policies”. [See Ex P5]

(iv) There is nothing in the Inpatient Psychiatric Services Operational Policies which
sets out triage procedures or which deals with risk assessment.

...
(v) The Inpatient Psychiatric Services Operational Policies included a circular no.
90/94 issued 26 September 1990 – this circular says amongst other things:

“Guidelines for the assessment and management of potentially dangerous patients should
be clearly set out in the Procedures’ Manual of the Facility.”

(vi) The documents presented to the review team contained no indication that such a
requirement has been met. [In this regard we note that no such documentation has been
tendered into evidence by the defendant.]

284 It was submitted that it is therefore readily apparent that the systems in place at the
time acknowledge the existence of the subject risk and its significance in the context of
the operation of the 149 Unit.

285 Dr Paton's report indicates that a number of steps were taken in response to the
subject incident. Of particular significance in the current context were the introduction of
new policies, guidelines and protocols designed to govern the evaluation of psychiatric
patients for admission to Kempsey District Hospital. The prosecution submitted that this
material constitutes evidence of the steps that could have been taken prior to the subject
incident which could have reduced, if not obviated the subjected risk.

286 The prosecutor acknowledged that the defendant is to be lauded for its part in the
construction of a new, purpose built facility so as to meet the needs of the people in the
area for psychiatric care and other significant steps, such as the employment of additional
specialist psychiatric medical and nursing staff but observed that many of the steps taken
including the provision of assessment tools [i.e. adoption of the MHOAT] and enhanced
training [including, duress response training, security training and aggression
minimisation training], the conduct of site risk assessments [etc] and the introduction of
proper duress response systems [including proper duress response training] were steps
that could and should have been taken prior to the event (see WorkCover Authority of
New South Wales (Inspector Barnard) v Rail Infrastructure Corporation (2001) 109 IR
209 at [93] - [94]; WorkCover Authority of New South Wales (Inspector Lancaster) v
Burnshaw Constructions Pty Ltd (2002) 121 IR 119.

287 Further, it is submitted that the Court should not lose sight of the fact that it was the
defendant who has chosen not to lead any evidence to explain why, for example, the
MHOAT was not in use at the hospital; why Dr Winder did not have access to any triage
protocols; why the hospital’s security measures, staffing arrangements and duress alarm
response system did not meet minimum standards.

The Gravity of the Consequences

288 It was submitted that the manifestation of the risk, in the serious assaults committed
against Ms Bateman, Ms Hyland, Ms Avery, Ms Smith and the deceased should be taken
into account in assessing the seriousness of the subject offence: Capral Aluminium at
[94].
General and Specific Deterrence

289 In accordance with the principles expounded in Capral it was submitted the penalties
to be imposed in the present case should contain a substantial element to reflect the
importance of both general and specific deterrence in the circumstances of the present
case.

290 As to general deterrence, it was submitted that widespread adherence to an attitude


which is accepting of assaultative behaviour in psychiatric care situations calls for a
penalty that contains a significant element of general deterrence. It was submitted that the
imposition of a substantial penalty, reflecting the underlying seriousness of the subject
offences together with the need for general deterrence, is justified in the circumstances of
the present case.

291 In addition, as this defendant continues as a major area health service with
responsibility for the supply of a wide range of psychiatric services , there is a need for
the imposition of a penalty which includes an element of specific deterrence.

The Subjective Factors

292 It was acknowledged that the defendant is entitled to the benefit of subjective factors
that tend to mitigate the objective seriousness of the subject offence: Alcatel Australia
Limited v WorkCover Authority of New South Wales (Inspector Clyant) at 106 - 107.

293 It was further submitted that the defendant is entitled to the benefits of the principles
discussed in the guideline judgment of R v Thompson; R v Houlton. The defendant is also
entitled to the benefit of its contrition noting that plea of guilty may attract a greater
degree of leniency where the court is satisfied that the plea of guilty reflects contrition on
the part of the defendant: Siganto v R (1998) 194 CLR 656 at 663 - 664.

294 However, it was submitted that the defendant entered a plea at a very late stage and
only after six days of the trial in July 2004. In the circumstances, there was little
utilitarian value in the plea as discussed in R v Thomson; R v Houlton. The prosecutor
submitted that the defendant was not entitled to a significant discount.

295 The prosecution also noted that no evidence of any remorse had been put before the
Court; nor had any evidence been put before the Court of any steps taken by the
defendant with respect to the persons injured in the incident or with respect to the
relatives of the deceased. In the circumstances, it was submitted there should be little, if
any, discount for contrition. The prosecutor contended that the manner in which the
defendant has conducted its plea reveals an unwillingness to accept or, perhaps more
favourably to the defendant, a lack of appreciation by the defendant of its failures in the
case which tend to militate against the Court granting any, let alone any significant
weight to the defendant's pleas: WorkCover Authority of New South Wales (Inspector
Maltby) v AGL Gas Networks Limited [2005] NSWIRComm 188.
296 It was acknowledged that the defendant is entitled to a discount in respect of its co-
operation with the WorkCover Authority in its investigation.

Totality

297 The prosecutor acknowledged that all matters concern the one incident. It was
submitted that, in the circumstances, it will be necessary for the Court to consider and if
considered appropriate, to apply the principle of totality in determining the overall levels
of the fines to be imposed in the context of this case.

298 The application of the principle of totality in the context of the OH&S Act, including
charges laid "parallel" under s 15(1) and s 16(1) of that Act was considered in detail by
the Full Bench of the Commission in Court Session in Abigroup Contractors Pty Ltd v
WorkCover (Inspector Maltby) [2004] NSWIRComm 270 at [73] - [77] and [80].

299 As between the pairs of charges, it was submitted there is little, if any, commonality
of the type under consideration by the High Court in Pearce v R (1998) 194 CLR 610.
Each of the pairs of charges are concerned with different acts and/or omissions. However,
the prosecution noted the Full Bench's approach in Abigroup at [81] - [83].

300 Finally, it was submitted having regard to the "nature and quality" of the offences,
the Court should impose significant monetary penalties on the defendant with respect of
each of the offences: WorkCover Authority of NSW v Thora Sawmilling Pty Limited
(unreported, Matter No CT 1186 of 1993, Schmidt J, 7 April 1994); Lawrenson
Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James
Ch'ng) (1999) 90 IR 464.

SUBMISSIONS OF THE DEFENDANT

301 The defendant's submissions address the following matters:

Approach to Sentence

302 In Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales
(Inspector Steven Jones) [2002] NSWIRComm 364 at [54], the Full Bench followed the
New South Wales Court of Appeal in R v Thomson; R v Houlton at 386 and 419 and
approved an approach to sentencing which:

(a) first looks at the objective seriousness of an offence in light of the maximum penalty
and determines a prima facie penalty; and

(b) secondly, by applying discounts of up to 25% and 10% for the utilitarian benefit of
the plea and other mitigating factors respectively then arrives at a discounted penalty of
up to 35% of the maximum.

This approach is referred to in the authorities as a “staged sentencing process”.


303 The staged sentencing processing evident in R v Thomson in particular, was said to
be incorrect by Gaudron, Gummow and Hayne JJ in Wong v R (2001) 207 CLR 584 at
611 – 612, [74] – [76]. Their Honours’ criticism in Wong of R v Thomson has now
become the majority and binding view of the High Court by reason of the decision of
Markarian v R.

304 In Markarian the majority comprising Gleeson CJ, Gummow, Hayne and Callinan JJ
at [37] quoted, with approval, a passage from Wong which states that R v Thomson is
“wrong in principle”.

305 The vice identified in the staged sentencing process is the emphasis it gives to a
single factor, usually the objective seriousness of the offence. That leads to a result which
does not take into account all of the relevant factors in the case so as to arrive at a single
result.

306 The passage in Wong adopted by Markarian at [37] also quotes from R v Gallagher
(1991) 23 NSWLR 220 as follows:

“It must often be the case that an offender’s conduct in pleading guilty, his expressions of
contrition, his willingness to co-operate with the authorities, and the personal risks to
which he thereby exposes himself, will form a complex of interrelated considerations,
and an attempt to separate one or more of those considerations will not only be artificial
and contrived, but will also be illogical.”

307 Further, the application of a 35% maximum discount was rejected in Markarian at
[37]. The passage from Wong cited held that “to single out some of those considerations
and attribute specific numerical or proportionate value to some features, distorts the
already difficult balancing exercise which the judge must perform”. It follows that it
would be erroneous to adopt 35% as a maximum discount as a firm rule. The court is not
constrained in an appropriate case in adopting a higher discount if after consideration of
all relevant factors it decides that it is appropriate to do so.

308 The majority in Markarian at [39] advocated the adoption of a simultaneous process
of weighing all of the different factors. However, by adopting an “instinctive synthesis”
approach, the court warned against doing so without expressing the thought process
applied in the exercise of the court’s discretion. The need for transparency in this exercise
of weighing all of the relevant factors was emphasised.

309 It is submitted that the Court in this case should, as held in Markarian at [37], weigh
all of the relevant factors to reach a conclusion that a particular penalty is the one that
should be imposed making clear the importance the Court attributes to each of the
relevant facts. The defendant in these submissions will attempt to identify the relevant
factors to be simultaneously weighted.

Factors to be Weighed in this Case


310 By way of outline, the defendant contends that the following factors should be
weighed in arriving at the penalty in this case:

(a) The principle of totality;

(b) the defendant’s contrition;

(c) the utilitarian value of the plea;

(d) the defendant’s co-operation with WorkCover;

(e) changes to systems in the aftermath of the event;

(f) the nature of the breaches and objective seriousness of the offences; and

(g) subjective matters.

Totality

311 The principle of totality should be applied: Postiglione v R (1997) 189 CLR 295 at
307 - 308 per McHugh J. All of the offences arise out of the same matrix of fact and in
accordance with the usual and correct approach of the Commission where a number of
separate proceedings have been commenced in relation to one matrix of facts, sentence
should proceed as if one offence had taken place: Mainbrace Constructions Pty Ltd v
WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239
at [102].

Contrition

312 The defendant observed that the whole reason for the existence of the hospital is to
save lives and to cure the injured and the sick. It observed the events in the early hours of
3 July 2001 are fundamentally inconsistent with the work of the dedicated doctors and
nursing staff at Kempsey District Hospital. It submitted that the defendant greatly regrets
the events, submitting that for reason outlined later in these submissions, there is no need
for an element of penalty directed towards specific deterrence in this case. The defendant
noted that Dr Paton, the Area Clinical Director, Mental Health Services described the
events in question as a "tragic incident" and Dr Holmes described it as a "terrible matter,
a rather freakish occurrence".

313 It was submitted that while the events are tragic and regretted, it is not the
prosecution's case, nor does the evidence show any cause or relationship between the
defendant's admitted breaches and the tragic events which must be kept steadily in mind
at all times.

Utilitarian Value of the Plea


314 It was submitted that although the stage sentencing process in R v Thomson had been
overturned by the High Court, it is still beneficial to have regard to the matters which the
Court of Criminal Appeal identified as justifying the utilitarian value of the plea.
Reference was made to s 21A of the Crimes (Sentencing Procedure) Act 1999.

315 It was submitted that the supposed lateness of the plea has not significantly (if at all)
detracted from its utilitarian value. Four weeks was set aside to further hear the evidence
on liability in the case. A large number of witnesses were to be called by the prosecutor.

316 In the event that there had not been a plea but the defendant was ultimately found
guilty, in addition to the four weeks set aside for liability, the time which has been used
on the sentencing hearing would have been incurred in any event, as would the time
related to the argument in relation to the attempt to maintain the claim for privilege over
Dr Barclay's report. Therefore, the plea has saved about four weeks of court time.
Secondly, by reason of the plea, none of the nurses who were assaulted or witnessed the
assaults had to give evidence. The only persons who had given evidence by the time of
the plea were a police officer and a nurse manager who was on sick leave at the time of
the offences. The saving of court time and the saving of distress to those involved,
constitutes a significant benefit from the plea of guilty. The plea of guilty is a direct
manifestation of the defendant's remorse.

Co-operation with WorkCover

317 The defendant worked with WorkCover to comply with improvement and prohibition
notices and to assist them in their enquiries.

Improvement to Systems

318 The defendant moved quickly to rectify its breaches. The 149 Unit was closed
immediately and never re-opened. A new $10 million mental health facility at
Kempsey District Hospital was re-opened in March 2003. Significant and fundamental
systematic changes were made to the mental health services within the area. These
changes included full time Career Medical Officer (Mental Health), who had many
years experience in mental health . Two new psychiatrists were appointed to Kempsey
Hospital Mental Health Service which has more than tripled the available consultant
psychiatrist time to the service. A dedicated 24 hour a day on-call psychiatric service
was put in place some months prior to the opening of the Kempsey Mental Health
Unit. A psychologist and social worker have been appointed to complement the nursing
staff.

319 The new mental health facility has several closed circuit cameras for observation.
Most rooms are single with no more than two beds in a shared room.

320 The defendant pointed the evidence that established that in the immediate aftermath
of the incident, many of the hospital's policies were changed and have continued to be
updated.
321 It was submitted that the speed of the implementation of many of the policies and the
ongoing refinement and improvement of these policies would satisfy the court that no
element of penalty for specific deterrence is necessary. The process of implementation
occurred in recognition that the Area Health Service was historically underfunded.
Organisational and systematic changes were in process at the time of the offence which
indicates the defendant exhibited a proactive approach to its occupational health and
safety responsibilities and has not merely reacted to the offences in question. The
offences were offences of omission, not commission, brought about by reason of the Area
Health Service being historically under funded.

The Nature of the Breaches of their Objective Seriousness

322 Extensive submissions were directed to the charges relating to the Admissions Policy
(IRC 3150 of 2000 and IRC 3151 of 2003). It was observed that the plea of guilty is not a
plea to each and every particular of the charge. The plea of guilty admits only the
elements of the offence and does not admit any matter of aggravation or denies any
matter of mitigation not covered by the offence charged (Law v Deed [1970] SASR 374
at 377 per Bray CJ; R v Jobson [1989] 2 Qd R 464 at 472 - 473). Particular (j) in
proceedings IRC 3150 of 2003 and particular (i) in proceedings IRC 3151 of 2003
identify the failures alleged against the defendant, being the failure to provide adequate
information, instruction, supervision and training as necessary to named staff at Kempsey
District Hospital in relation to the admission to patients to the 149 Unit ("the Admissions
Policy").

323 The failure to provide adequate information, instructions, supervision and training in
respect to the Admissions Policy is said to have resulted in a number of matters which are
identified particular (k) of proceedings IRC 3150 of 2003 and particular (j) of
proceedings IRC 3151 of 2003.

324 The defendant submitted that on the natural and plain meaning of the particulars to
the charge, each of the alleged failures in paragraph (k) of proceedings IRC 3150 of 2003
and particular (j) of proceedings IRC 3151 of 2003 were failures which occurred on
arrival by Mr Trimarchi at the Kempsey District Hospital. A contrary reading requires a
strained construction far more liberal than the words allow and should not be adopted in a
criminal prosecution. In the case of ambiguity, the words should be read strictly against
the prosecution and in favour of the defendant.

325 The defendant observed that it was significant that the particulars of charge made no
challenge to the adequacy of the Admissions Policy. This is important, because as the
evidence demonstrated, the test for an involuntary patient under the Admissions Policy
was the same under the Mental Health Act which was applied by Dr Winder.

326 It was further observed that it was important to emphasise that the particulars of the
charge do not assert that the failures resulted in the fatality and assaults. Particular (n) in
proceedings IRC 3150 of 2003 and particular (k) in proceedings IRC 3151 of 2003 only
allege that the failure gave rise to "a potential risk" to health and safety rather than
gave rise to the actual events of assault or fatality on 3 July 2001. No causative
connection is or was asserted. None could be, particularly in the light of the evidence of
Dr Barclay. The prosecution by its particulars to the charges has eschewed any allegation
of connection between the asserted breaches particularised and the assaults and fatality. It
should also be kept in mind that the occurrence of fatality or injury does not establish a
breach and a breach may be established without the causation of any fatality or injury:
State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120 - 121.

Inadequate Assessment

327 Particular (k) in IRC 3150 of 2003 and particular (j) in IRC 3151 of 2003 identifies
the first result of failures as being an inappropriate admission to the 149 Unit by reason of
an inadequate assessment upon arrival at Kempsey District Hospital. Nothing in the
Admissions Policy informs the doctor or mental health professional how to clinically
assess a psychiatric admission.

328 The defendant pointed to the agreed facts regarding the experience and qualifications
of Nurse Carter and Dr Winder. Dr Barclay's evidence was that the criteria for an
involuntary patient under the Admissions Policy was the same criteria set out under the
Mental Health Act for scheduling a patient. Dr Winder was a person who could
schedule a patient under the Mental Health Act by reason of him being a registered
medical practitioner. It was contended that Dr Winder applied the Mental Health Act
in assessing Trimarchi upon arrival at the hospital, the criteria for voluntary and
involuntary patient being exactly the same as the Hospital's Admissions Policy. It was
therefore submitted that the failure to give adequate information, instruction, supervision
and training to Dr Winder and Nurse Carter about the Admissions Policy had no causal
connection with the admission of Trimarchi into the hospital. Dr Barclay's evidence is
that it was open on a reasonable basis for Dr Winder and Nurse Carter to come to the
view that they did. Dr Barclay agreed that he did not make any criticism or analyse in any
way the Admissions Policy. Further, there is nothing much objective in psychiatry and
subjective decisions have to be made on the ground by the doctor in question, according
to Dr Barclay's evidence.

329 Dr Barclay accepted that it was an appropriate and reasonable treatment plan in this
case to put Trimarchi into the 149 Unit for voluntary admission for observation. The
reference to the absence of a risk assessment according to Dr Barclay was no more than
the absence of a formal document which ticked off risk factors. In Dr Barclay's opinion,
Dr Winder was likely to have undertaken an assessment of the matters relevant to the risk
profile of Trimarchi. The fact that Dr Winder admitted the patient as a voluntary patient
carries with it the irresistible (and common sense) conclusion that a risk assessment took
place. Dr Barclay's evidence was that during the time Mr Trimarchi was in hospital, the
consideration of extra information as it came to hand would not necessarily have led to a
different approach in this case and that historical factors cannot tell what the current risk
is. Dr Barclay agreed that on the clinical features recorded in Dr Winder's notes, it was
clearly open to the doctor on a reasonable basis to decide not to schedule Trimarchi and
the completion of a risk assessment may not have led to a different decision.
Furthermore, of the historical factors, there is no suggestion that Trimarchi had ever had
any previous acts of violence.

330 The defendant submitted that having regard to the totality of Dr Barclay's report,
there is no basis to conclude that an inadequate assessment brought about by the
supposed breaches in training, supervision, instruction and information was conducted
upon arrival or that if it was, any different result would have emerged in the absence of
the asserted failures. Dr Barclay's evidence was to the contrary.

Not Characterised in Accordance with the Admissions Policy

331 The defendant submitted that as Dr Winder and Nurse Carter both assessed Mr
Trimarchi as inappropriate for schedule under the Mental Health Act, they were also
making an assessment that he ought not to be an involuntary admission under the
Hospital's Admissions Policy. Other than in the most technical of ways, it was submitted
that there may have been a failure to categorise Trimarchi Mr strictly by reference to the
Admissions Policy and there was no breach of the policy in this respect. The core of the
defendant's submissions is that the Admissions Policy requires categorisation to take
place at the time of arrival at Kempsey District Hospital. Therefore, this particular of the
alleged breach also relates to the time of the admission to the hospital.

Belongings not Searched

332 The defendant submits that there was no obligation under the policy, in light of the
assessment by Dr Winder and Nurse Carter that Mr Trimarchi was not a danger of serious
physical harm to himself to other people, to search his belongings. If there was an
obligation to do so, that was an obligation that arose at the time of his arrival at the
hospital. If there was an obligation, the defendant relies on Nurse Carter's record that Snr
Constable Packward and Hennessey highlighted the contents of Mr Trimarchi's suitcase,
submitting that this is clearly evidence of a searching having taken place.

333 The defendant submits in the circumstances of this case there could not seriously be
any potential risk because the briefcase was searched by the Police and also searched by
Nurse Carter, submitting that the particular of breach on the evidence is not made out.

Failure to Contact Westmead Hospital Concerning Previous Admission

334 The defendant acknowledges that there was a failure to contact Westmead Hospital.
However, it submits it is not easy to identify where in the Admissions Policy such contact
is required and that it has not been established that this failure led to any risk to the safety
and welfare of anyone at the hospital. The defendant advanced various reasons in support
of this contention including that there was real uncertainty that Mr Trimarchi was actually
admitted to Westmead Hospital; the alleged admission occurred 10 to 15 years ago; Dr
Barclay agreed that very little weight would have been placed on such an admission. It
was not established that Westmead Hospital still held any information with regard to the
admission.
Not Examined or Assessed or Placed under the Care of a Specialist Psychiatrist or
Nominee

335 The Admissions Policy did not require Mr Trimarchi to be examined or assessed by a
specialist psychiatrist or nominee. The policy only required that if a pre-admission
assessment was not by a specialist psychiatrist or a mental health professional, such
assessment will occur "as soon as possible after admission and reviewed at first case
review meetings". It was observed that Dr Winder and Nurse Carter made an assessment
of Mr Trimarchi. Nurse Carter attempted to contact Dr Holmes but was unsuccessful.
Nurse Turner made contact with Dr Holmes at about 6.30 pm.

336 The defendant submitted that the policy was complied with in that an assessment by
a specialist psychologist was arranged as soon as possible after the admission.

Objective Seriousness of Breaches

337 The defendant submitted that the breaches in question where they exist are technical
only and are at the very low end of the range of objective seriousness. In respect of
objective seriousness, it was submitted it is important to note that about 1.00 am on 3 July
2001, Mr Trimarchi began to display bizarre behaviour. Dr Cook came to assess Mr
Trimarchi at the time, and determined that he was not to be disturbed as he appeared to be
asleep. Dr Barclay described this as the critical decision on the night and reasonable in
the circumstances.

IRC 3148 and IRC 3149 of 2003 - Security Reviews

338 The defendant observed that the last particular of each charge only asserts that there
was a "potential risk" by reason of the breach identified in particular (j) in IRC 3148 of
2003 and particular (i) in IRC 3149 of 2003.

Failure to Implement New South Wales Health Policy Relating to Annual Security
Surveys

339 A comprehensive security survey was performed in the 12 months prior to the date of
the offence. However, the report dated 4 July 2001 was received by the defendant on 23
July 2001. The defendant submits that it is not clear how the failure in this case added to
the risk to health and safety arising out of the event in question.

Implementation of a Security Induction and Training Programme

340 The defendant acknowledged that whilst it is clear it ought to have implemented such
training in a more comprehensive fashion to cover all staff, again there is no suggestion
that the failure to provide that training resulted in a greater risk in the instant case.

Identifying Isolated Areas and Ensuring Staff do not work alone in Isolated Facilities or
Units
341 The evidence is that Unit 149 was part of the surgical ward. Dr Barclay did not
consider it to be an isolated area. A duress alarm was provided to the 149 Unit. The
defendant submitted the particular of this breach is not made out.

Provision of Training for Staff in Minimisation and Management of Aggression

342 The defendant submitted only one nurse directly involved in the incident did not
appear to be trained. It accepts the training was not universal noting that the policies of
the defendant have been improved. The defendant again observes no absence of training
has been identified as leaning to any greater risk in the instant case.

Trimarchi able to move freely and without restriction within 149 Unit

343 The defendant observed that the under the Mental Health Act it is illegal to restrict
or lock up a patient who is not a scheduled patient. Once assessed under the Mental
Health Act as not scheduled, it was submitted, it is difficult to see how there was a
breach in this particular respect.

Objective Seriousness IRC 3148 of 2003 and IRC 3149 of 2003

344 The defendant again submitted that these proceedings relate to technical breaches
and are at the low end of objective seriousness.

Duress Alarms

345 The defendant observed that the particulars of the charge in each proceeding make no
allegation that the alleged failures in question caused the assault of staff or the death of
the patient.

346 The defendant noted, although the system of work in respect of the duress alarm was
said to be inadequate, there was no material before the Court to suggest that a change in
the system would have produced a different result.

No Adequate Policy, Procedure or Training

347 The defendant observed that the policy required the night supervisor to respond with
one other person once the duress alarm was activated. There was no requirement in the
policy that the other person had to be security personnel or a male person.

Expert Evidence

348 No expert evidence was led by the prosecutor that a different duress alarm system
would have made any difference in respect of this incident.

349 In respect of procedure and training, although Nurse Bateman responded alone, there
were already two nurses at the surgical ward desk who were able to call the Police and
render assistance. The Admissions Policy provided that an attempt should be made to
"talk down the patient" which Nurse Bateman attempted to do.

350 The defendant noted that the Police responded immediately and it was therefore
difficult to discern how a different policy, procedure, or training could have changed the
events that happened or changed the risk in any way.

Objective Seriousness IRC 3146 of 2003 and IRC 3147 of 2003

351 The defendant submitted that the objective seriousness by reason of inadequacy of
the policy, procedure and training was at the low end of the range of objective
seriousness.

Other Subjective Features

352 The defendant submitted it is a public funded body. The breaches occurred not by
reason of any deliberate decision to put profits ahead of occupational health and safety,
but by reason of the health service being generally under funded. Any penalty will
be paid from the service's budget which are public funds for public medical services
. It was suggested no element of specific deterrence is necessary in the penalty and the
defendant should be given credit for its prior good behaviour. It was further submitted
that the subjective feature should act to significantly lower the penalty assessed by the
Court.

353 In respect of causation, it was submitted the proper approach to the distinction
between the ultimate event and the underlying risks was discussed by Walton J Vice-
President in Department of Mineral Resources of NSW (McKensey) v Kembla Coal &
Coke Pty Ltd (1999) 92 IR 8 at 27 - 28.

CONSIDERATION

354 The primary consideration in sentencing is the gravity of the offence viewed
objectively: Lawrenson Diecasting at 474; Fletcher Construction Australia Limited v
WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77 - 81,
Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 at [13]. Having
determined the relative seriousness of the offence, the penalty to be imposed is that which
approximately correlates upon the scale of penalties set by the legislature from zero to the
maximum: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist
Rentals Pty Limited. The maximum penalty in this case is $550,000.

355 Matters that are relevant to the consideration of the objective seriousness of the
offence are the nature and quality of the offence and whether it involved obvious or
foreseeable risks; whether there were simple and straightforward steps available to
remedy any failures on the part of the defendant and, the practical and potential
consequences flowing from the commission of the offence including whether injuries
sustained by an employee or person manifested the degree of seriousness of the relevant
detriment to safety. The Court is also required, in fixing any penalty, to consider the need
for both general and specific deterrence: Capral Aluminium at [71] - [80].

356 A secondary consideration is the subjective features of the offence, that is, the facts
concerning the offender. This will assist the Court in determining whether any penalty
justified by the objective circumstances of the offence should be modified. The penalty to
be imposed must generally be such as to compel attention to occupational health and
safety generally so as to ensure that workers whilst at work will not be exposed to risks to
their health and safety: Fisher v Samaras at 388; Capral Aluminium; Morrison v
Powercoal (No 3).

357 In considering the nature and quality of this offence, the Full Bench of the Industrial
Relations Commission in Court Session in Warman International Limited v WorkCover
Authority of New South Wales (1998) 80 IR 326 at 339 stated:

... The penalty must reflect the nature and quality of the particular offence; the level of
penalty must, on the one hand, compel attention to occupational health and safety
risks in order to ensure that persons are not exposed to such risks at their workplaces but,
on the other, must not be oppressively high.

358 The charge and the particulars of the charge establish the parameters in which the
objective seriousness of the offence should be considered by the Court: Morrison v
Powercoal (No 3) at [76].

359 It was common ground that a plea of guilty established the essential ingredients, as
charged, of the offence to which the pleas were entered.

360 This became a significant issue during the sentencing hearing. The defendant, by its
plea acknowledged that it had committed offences involving risks to safety and accepted
responsibility for the breaches as particularised. What the defendant did not accept was
that the breaches brought about the actual results, that is, the assaults and the death. The
defendant contended there was no causal connection between the breaches and the
subsequent events. In order for the courts to determine the nature and quality of the
offences in question, it is necessary to consider the failures that the defendant has
admitted.

Instruction and Training Charges

361 I firstly turn to consider what I describe as the instruction and training charges (IRC
3150 of 2003 and IRC 3151 of 2003). Mr Inatey SC submitted that the plea of guilty
admits only the elements of the offence and does not admit any matter of aggravation or
denies any matter of mitigation not covered by the offence charged. The defendant admits
that at the time of the subject incident, none of the nursing staff on duty in the 149 Unit
on 2 July 2001 and/or 3 July 2001 had been given adequate training, instruction or
information in relation to the Admissions Policy. A similar admission is made in respect
of Dr Winder (see par 74 and 75 of the agreed statement of facts). The prosecutor
contends that these failures resulted in Mr Trimarchi being inappropriately admitted to
the 149 Unit because he was inadequately assessed upon arrival at Kempsey District
Hospital.

362 In my view, the particulars should be construed strictly against the prosecution and
not read liberally. Furthermore, the particulars of the charge do not assert that the failures
resulted in the fatality and the assaults on the employees. What is alleged is that the
failures gave rise to "a potential risk" to health and safety rather than gave rise to the
actual events of assault or fatality on 3 July 2001.

363 Section 15(1) of the OH&S Act is directed to obviating actual risks to safety in the
workplace, even absent any actual incident causing injury either by eliminating the risk,
or by protecting employees from the dangers presented by the risk.

364 Particular (m) in proceedings IRC 3150 of 2003 and particular (k) in proceedings
IRC 3151 of 2003, do not allege that the failure gave rise to the actual events of assault or
the fatality on 3 July 2001. No causative connection is or was asserted. There was no
causative connection asserted between the failure and assault or the fatality. In this
regard, Dr Barclay's evidence was that there is nothing much objective in psychiatry and
that ultimately it comes down to the subjective assessment by those undertaking the
assessment. Medical staff are called upon to make a judgment having regard to the
information available to them at the relevant time. Dr Barclay's evidence was that there is
no system in place in short of immediate incarceration that is going to produce the ideal
result. On the clinical features recorded in Dr Winder's notes, Dr Barclay acknowledged
that it was clearly open to Dr Winder upon a reasonable basis to decide not to schedule
Mr Trimarchi. Furthermore, Dr Barclay agreed that the completion of a risk assessment
may or may not have led to a different decision.

365 The defendant accepts that there was clearly a failure to provide a proper level of
supervision, instruction and training and has acknowledged this by pleading guilty to the
charge. What the prosecutor sought to establish was that there was a causal connection
existing between the defendant's failure to provide adequate supervision, instruction and
training and the risks to the health and safety of both employees and non-employees.
The issue is what risk emerged from the non application of the Admissions Policy. The
determination of this question will, of course, impact on the objective circumstances of
the offence. A breach of the OH&S Act may be established without the causation of a
fatality or injury. In State Rail Authority of New South Wales v Dawson at 120 - 121, the
Full Bench of the Court observed:

Although s 15(1) creates an absolute liability on the employer, it is still nevertheless


necessary for the informant to prove, according to the criminal standard of beyond
reasonable doubt, that the employer failed to meet the obligation cast on him by the
section. In other words, the mere fact that an accident occurs involving an employee, but
without more, does not establish any liability in the employer; and that is so unless some
causal nexus be established between the breach of statutory duty and the detriment
occasioned to the employee. We agree in that respect with the observations of Grove J in
McMartin v The Broken Hill Proprietary Company Limited ((1988) unreported) to the
effect that "it is necessary that a causal nexus be shown between such a breach and the
fact of detriment to safety".

366 The prosecutor contends that the Court is obliged by the particulars and evidence to
consider conduct over the whole period of admission given, so it is contended, that the
particulars refer to actions by employees on duty throughout that period, that being on 2
and 3 July 2001, and the Admissions Policy is also concerned with "operational policies"
beyond the initial admission.

367 Although the particulars refer specifically to the fact that Mr Trimarchi was
inappropriately admitted to the 149 Unit because he was inadequately assessed upon
arrival at the hospital, the alleged failures are said to have occurred on 2 and 3 July 2001.
The particulars do not question the adequacy of the Admissions Policy.

368 Nurse Carter, a psychiatric nurse with at least 10 years experience assessed Mr
Trimarchi upon his arrival at the hospital at about 10.30 am on 2 July 2001. This
assessment was carried out after he had been contacted by Mr Jerome, a neighbour of Mr
Trimarchi, who considered Mr Trimarchi should be scheduled and transferred to a
suitable medical institution. Nurse Carter formed the view that Mr Trimarchi was not a
danger to himself or others and that he should not be scheduled under the Mental
Health Act. Dr Winder, a legally qualified medical practitioner, who had medical and
clinical training in psychiatric medicine and assessment also assessed Mr Trimarchi. Dr
Winder had some clinical experience in assessing psychiatric patients as part of his
general medical training whilst working in Emergency Departments at other hospitals.
Although Dr Winder had not received any training in relation to the Admissions Policy,
he was aware that psychiatric patients who were "even remotely violent" were not to be
admitted to the 149 Unit.

369 Dr Winder's assessment of Mr Trimarchi was that the Police wanted him scheduled;
that Trimarchi was "alleged" to have threatened his wife with a machete; that Trimarchi's
claim to be God was when understood in its proper context not unreasonable; Trimarchi
was paranoid about a neighbour trying to get him and Trimarchi displayed a flight of
ideas and pressure of speech. Dr Winder spoke with Nurse Carter and the upshot of that
discussion was there was some psychosis going on and that Mr Trimarchi would be sent
to Port Macquarie or Coffs Harbour. Part of the reason for this decision was because there
were no beds available at the hospital. A bed subsequently became available in the 149
Unit and Mr Trimarchi was admitted for assessment. At this time Dr Winder was of the
opinion that Mr Trimarchi was not a danger to himself or others and was not suitable to
be scheduled.

370 Clause 1 of the Admissions Policy is in the following terms:

1. TO PROVIDE AN INTEGRATED AND COMPREHENSIVE MENTAL HEALTH


SERVICE .
1.1. Admissions

1.1.1. The psychiatric activity undertaken in the Macleay Valley Health Service will
be a Level 2.

The level 2 description is briefly as follows:

1. A designated interdisciplinary team

2. Experienced nursing staff

3. May have access to specialised psychiatric and child and adolescent consultants

4. Provision and assessment are limited to level.

1.1.2 Psychiatric procedures beyond our role delineation will not be undertaken unless it
is necessary to stabilise the patient prior to transfer or to relieve a life threatening
situation.

1.1.3 Involuntary (Scheduled) patients will not be admitted to the unit nor retained here,
other than for stabilisation once scheduled.

1.1.4 Voluntary admissions may be made for:

* Crisis intervention

* Assessment

* Stabilisation of medication

* Respite care (psychiatric, not psychogeriatric)

371 Relevant provisions of cl 2.1 Inpatient Policies are:

2.1.2 Priority for admission shall be given to the seriously mentally ill. These patients
will be admitted for crisis intervention (when appropriate), assessment, stabilisation of
medication, investigation and respite care.

...

2.1.8 All admissions must be under the care of Specialist Psychiatrist or nominee.

Specialist Psychiatrists may admit directly to the Unit via normal admission procedures.
2.1.9 The Mental Health Team may refer patients directly to the Unit for admission
after consultation with the attending Visiting Medical Officer/Psychiatrist/Staff Medical
Officer.

372 Under the heading Voluntary Admission the following appears:

Persons may be admitted to the hospital as an voluntary patient at:

* their own request

* the request of a relative/friend/carer ] patient must

* the request of their doctor/counsellor ] agree to the admission.

Requests for admission will not necessarily result in admission. Assessment by a Mental
Health professional of the psycho-social factors surrounding the request will first be
made.

All admissions must be made with patient consent.

Voluntary admissions may be made for:

* Crisis intervention

* Assessment

* Stabilisation of medication

* Respite care (psychiatric, not psychogeriatric)

The patients admitted to this Unit will be admitted on a voluntary basis. Admission will
be only one of the strategies in a treatment plan which aims to maximise the individual's
independence and self-responsibility.

Admission procedures should aim to maximise respect, privacy and safety for patient and
staff, as well as co-ordination of delivery of care.

1. Admissions will be under the care of the Specialist Psychiatrist. Where admission is
requested and effected without assessment by the Specialist Psychiatrist, Nursing
Administration will advise that assessment by the Specialist Psychiatrist or a member of
the Community Mental Health Team will occur as soon as possible after admission.

2. Voluntary admissions will enter the hospital via normal admission procedures.

3. The admission nurse in the Unit will attend to all the usual admission procedures.
4. Where admission is connected with suicidal behaviour or ideation or otherwise
dangerous behaviour, all personal belongings to be checked in presence of patient and
potentially dangerous items removed, (ie medications, razors, scissors etc). This is to be
explained to patient in terms of promoting a safe environment for them. (See Appendix
K.)

5. In consultation with the psychiatrist or a member of the Mental Health Team, the
patient will be categorised (see Appendix B) and level of care duly organised with
Nursing Unit Manager/Nursing Administration.

II Involuntary Admissions (not routinely admitted)

Involuntary admission is only to be organised when all other least restrictive alternatives
have been explored and/or attempted.

A person may be an involuntary patient if, owing to their condition, there are reasonable
grounds for believing that care, treatment and control of the person is necessary:

(a) for the persons own protection from serious physical harm or

(b) for the protection of others from serious physical harm.

Involuntary patients could arrive at Accident and Emergency for the following reasons:

1. Assessment

2. Medication (see Appendix C - Rapid Neuroleptisation)

3. Maintain emotional/physical security until transfer to nearest gazetted unit has been
arranged.

In exceptional circumstances, (i.e. late at night) patients may be admitted to Macleay


Valley Health Service due to logistic problems of transfer. Ongoing assessment of the
patient should include the need for sedation and/or special nursing.

Once a patient has been scheduled they cannot be admitted to a non-gazetted unit. If,
however, logistic problems delay transfer, they may be cared for as outpatients in
Accident and Emergency or the Psychiatric Service .

373 Dr Barclay's evidence was that the criteria for admitting an involuntary patient under
the Admissions Policy was the same criteria set out under the Mental Health Act for
scheduling a patient. Section 21 of the Mental Health Act provides that a registered
medical practitioner may schedule a person.

374 Chapter 3 of the Mental Health Act 1990 deals with mentally ill and mentally
disordered persons. Sections 8, 9 and 10 are in the following terms:
8 Criteria for involuntary admission etc as mentally ill person or mentally disordered
person

A person is a mentally ill person or a mentally disordered person for the purpose of:

(a) the involuntary admission of the person to a hospital or the detention of the person in
a hospital under this Act, or

(b) determining whether the person should be subject to a community treatment order or
be detained or continue to be detained involuntarily in a hospital or other place,

if, and only if, the person satisfies the relevant criteria set out in this Chapter.

9 Mentally ill persons

(1) A person is a mentally ill person if the person is suffering from mental illness and,
owing to that illness, there are reasonable grounds for believing that care, treatment or
control of the person is necessary:

(a) for the person’s own protection from serious harm, or

(b) for the protection of others from serious harm.

(2) In considering whether a person is a mentally ill person, the continuing condition of
the person, including any likely deterioration in the person’s condition and the likely
effects of any such deterioration, are to be taken into account.

10 Mentally disordered persons

A person (whether or not the person is suffering from mental illness) is a mentally
disordered person if the person’s behaviour for the time being is so irrational as to justify
a conclusion on reasonable grounds that temporary care, treatment or control of the
person is necessary:

(a) for the person’s own protection from serious physical harm, or

(b) for the protection of others from serious physical harm.

375 It can be seen from a comparison of the relevant provisions of the Admissions Policy
and the Mental Health Act that the criteria for a voluntary and involuntary patient are
exactly the same. The defendant contended that Dr Winder applied the Mental Health
Act in assessing Mr Trimarchi upon his arrival at the hospital and as such was also
making an assessment under the Admissions Policy. This contention, in my view, is
unsustainable in circumstances where Dr Winder had received no training in respect of
the Admissions Policy. There is also no evidence before me that Dr Winder was applying
the provisions of the Mental Health Act and I am not prepared to make such an
assumption.

376 This led the defendant to submit that the failure to give adequate information,
instruction, supervision and training to Dr Winder and Nurse Carter about the Admissions
Policy was a failure in respect of the policy of the most technical kind, as an assessment
had occurred in fact in accordance with the policy. I reject this submission as there is no
basis to suggest such an assessment has taken place under the Admissions Policy. In
doing so, I acknowledge that the evidence of Dr Barclay is that even with the
implementation of the systems and procedures, he recommended, it would still have been
open, on a reasonable basis for Dr Winder and Nurse Carter to come to the view which
they did. The critical point is that the Admissions Policy was not applied by Dr Winder
and Nurse Carter.

377 The prosecutor submits that the defendant's failure to arm and educate its employees
with the content and the tools necessary to perform their responsibilities under the policy
significantly increased the risk of an inadequate assessment of Mr Trimarchi upon initial
presentation to the Emergency Department of the hospital.

378 Dr Barclay's evidence was that such a tool was unlikely to impact on the assessment
because there is nothing much objective in psychiatry and subjective decisions have to be
made on the ground by the doctor in question. Dr Barclay accepted that it was an
appropriate and reasonable treatment plan in this case to admit Mr Trimarchi into the 149
Unit as a voluntary admission for observation. In Dr Barclay's view, Dr Winder was
likely to have undertaken an assessment of the matters relevant to the risk profile of Mr
Trimarchi.

379 Both Dr Winder and Nurse Carter were of the opinion that Mr Trimarchi was not a
danger to himself or others and was not suitable to be scheduled. On the evidence, there
was a failure to categorise Mr Trimarchi by reference to the Admissions Policy and
therefore a breach of the policy. The utilisation of the criteria under the Mental Health
Act cannot, in my view, result in the same assessment as would have occurred if the
Admissions Policy had been utilised. The policy requires categorisation to take place at
the time of arrival at the hospital and the failure to categorise Mr Trimarchi strictly by
reference to the Admissions Policy led to the consequences in terms of an exposure to the
risks to the health and safety of employees or persons at the hospital at the time of
admission. The risk is if you do not apply the Admissions Policy, you could have a
psychotic patient admitted to the hospital. This risk was realised at the point of
admission. Dr Barclay's evidence was that Mr Trimarchi was a patient with serious
delusions and that he was psychotic. Therefore, at all times from the first point of
admission, there was a risk which was not of a technical kind, but a serious risk. The risk
is acknowledged by the defendant's plea.

380 I accept that finely balanced judgments are required to be made by health
professionals in assessing psychiatric patients upon presentation at a hospital and that the
psychiatric condition of Mr Trimarchi was not known to the defendant nor his potential
for aggressive violent behaviour at the time of his presentation at the hospital. The very
reason for the Admissions Policy is to ensure that a psychotic patient is not admitted as a
voluntary patient.

381 The prosecutor contended that the defendant had failed to ensure that the true nature
and extent of Mr Trimarchi's delusions were assessed, or properly recorded. I have
already addressed this issue and accept that there was a failure to educate and train
employees in relation to the Admissions Policy which gave rise to the risk discussed
above. The prosecutor also contended that the defendant failed to search Mr Trimarchi's
briefcase and consider important other sources of information; failed to contact
Westmead Hospital; that an assessment, wherever possible, of a mentally ill person
should be performed by a specialist psychiatrist and a diagnosis or provisional diagnosis
should have been made and that no medication was prescribed for immediate
administration.

382 I will deal with each of these matters in turn. Firstly, the obligation under the
Admissions Policy is to search personal belongings when the admission is "connected
with suicidal behaviour or ideation or otherwise dangerous behaviour". Potentially
dangerous items such as medication, razors and scissors should be removed. Dr Winder
and Nurse Carter's assessment was that Mr Trimarchi was not in danger of serious
physical harm to himself or other people. However, this assessment was reached without
applying the Admissions Policy. Mr Trimarchi had allegedly threatened his wife with a
machete and claimed to be God. In such circumstances there was an obligation under the
Policy to search his belongings. The clinical notes of Nurse Carter record "Police (Snr
Constable Packward and Hennessey) highlighted the contents of Victor's briefcase,
however the briefcase appears to contain books of Victor's poems and Buddhist study
notes". The evidence is that the Police searched the briefcase and told Nurse Carter that it
was full of papers and recommended that the contents of the bag be read by both the
nurse and the psychiatrist. There is no evidence that this occurred until at about 7.00 pm
when Mr Trimarchi showed Nurse Turner the contents of his briefcase. The defendant did
not comply with the requirement in the Admissions Policy to check all personal
belongings of Mr Trimarchi at the time that an assessment of him occurred.

383 Secondly there is no requirement under the Admissions Policy when undertaking an
assessment of a person to be admitted to the hospital that sources of information
regarding that person should be explored and it is not a particular of the charge.

384 Thirdly, it was alleged by the prosecutor that Mr Trimarchi had been admitted to
Westmead Hospital some 10 to 15 years earlier, although no evidence was introduced that
established such admission to that hospital. Although the defendant admits that there was
a failure to contact Westmead Hospital, the defendant contends that this failure did not
lead to any risk to the health and safety of anyone at the hospital. The Admissions
Policy does not appear to include such a requirement. Dr Barclay's evidence was that
very little weight would have been placed on such an admission to the hospital, it having
occurred 10 to 15 years earlier. No evidence was called to establish whether Westmead
Hospital still held any information in respect of Mr Trimarchi and whether such
information would have been any different to the information which the defendant had
already obtained from Mr Trimarchi. In my view, the evidence does not establish that any
alleged breach in this regard gave rise to any risk to the health and safety of those at
the hospital. Although this part of the particular is admitted, it is difficult to see how it
impacted upon the health and safety of persons employed and not employed at the
hospital.

385 Accepting that Westmead Hospital was not contacted, such a breach, in my view, can
only be characterised as the most technical kind. I propose to deal with this part of the
particular on that basis.

386 Fourthly, the evidence discloses that Mr Trimarchi was placed under the care of Dr
Holmes, a consultant psychiatrist to the hospital. The particulars allege that the
Admissions Policy required Mr Trimarchi to be examined or assessed by a specialist
psychiatrist or nominee. The Admissions Policy has no such requirement. As has been set
out earlier in these reasons, the Admissions Policy states that pre-admission assessment
may be undertaken by a member of the Community Mental Health Team or without a
pre-admission assessment by a specialist psychiatrist or mental health professional. If
such an assessment is not undertaken, the Admissions Policy provides that such an
assessment will occur "as soon as possible after admission and reviewed at first case
review meetings".

387 Dr Winder and Nurse Carter made an assessment of Mr Trimarchi. Nurse Carter then
attempted to contact Dr Holmes during his shift after Mr Trimarchi was admitted to the
149 Unit but without success. Nurse Turner made contact with Dr Holmes at about 6.30
pm and Dr Holmes was to see Mr Trimarch first thing the following morning during his
usual rounds. During Nurse Turner's shift on 2 July 2001, in the 149 Unit, Mr Trimarchi
was not inappropriate in behaviour and was polite and sociable with other patients. Nurse
Turner concluded her shift at 10.30 pm, twelve hours after Mr Trimarchi was admitted.

388 In my view, the Admissions Policy was complied with, in that an assessment by a
specialist psychiatrist was arranged as soon as possible after the admission. On the
evidence it does not seem to me that this part of the particular has been made out.

389 Fifthly, Mr Trimarchi was admitted for observation and neither Nurse Carter or Dr
Winder prescribed any immediate medication. There is no requirement for this to occur
under the Admissions Policy and it is not a particular of the charge.

390 The finding that parts of a particular (particular (k) of IRC 3150 of 2003 and
particular (j) of IRC 3151 of 2003) are not made out does not, of course, detract from the
overall charge being made out. Here a plea of guilty was entered to the charge.

391 A critical issue that arose in respect of this matter was the sudden and serious
deterioration in Mr Trimarchi's condition, such deterioration evidenced by "bizarre
behaviour" from approximately 1.00 am on 3 July 2001. Mr Trimarchi had been admitted
to the hospital at approximately 10.30 am on 2 July 2001. The Admissions Policy does
not appear to deal with such a situation. Such a deterioration in a patient would require an
urgent reassessment to take place, presumably carried out by a psychiatrist. This was a
recommendation made by Dr Paton in his report. At the time that Mr Trimarchi began
displaying bizarre behaviour, Dr Cook was called to reassess Mr Trimarchi. Upon the
arrival of Dr Cook and a psychiatric nurse, they found Mr Trimarchi appearing to be
asleep and they decided not to disturb him (see agreed facts par 55 - 58). This decision
was described by Dr Barclay as the critical decision on the night. However, Dr Barclay
describes Dr Cook's decision as reasonable in the circumstances. It was this decision that
allowed Mr Trimarchi to remain in Unit 149.

392 It is to be observed that Dr Cook is not named in the particulars of the charge, nor is
any criticism made of his training, instruction, information or supervision.

393 The failures in respect of these charges relate to the provision of adequate
information, instruction, supervision and training in respect of certain staff in relation to
the Admissions Policy of the defendant. There is no criticism made of the Admissions
Policy. In my view, the failures resulted in certain of the matters identified in particular
(k) of proceedings IRC 3150 of 2003 and particular (j) of proceedings IRC 3151 of 2003
occurring as has already been discussed in these reasons. In my view, the failures in
particulars (k) and (j) were failures which occurred upon the arrival by Mr Trimarchi at
Kempsey District Hospital. It was at this time the risk was realised. It is therefore
necessary to consider the potential consequences as to injury or death relevant to the
breaches to which the defendant pleads guilty. In my view, and I find the risk's potential
from the non application of the Admissions Policy was to cause or result in serious injury
or worse.

394 As the Full Bench observed in the recent judgment of Rodney Morrison v Powercoal
Pty Ltd [2003] NSWIRComm 416 at [32]:

In assessing the gravity of the offence the focus, therefore, must be on the risk and,
viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In
other words, the consequence of an accident will not, of itself dictate the seriousness of
the offence or the amount of penalty. However, the occurrence of death or serious injury
may well manifest the degree of seriousness of the risk to health and safety to which
persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ,
Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47
IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New
South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern
Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover
Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

395 In my view there is nothing in the Admissions Policy which sets out triage
procedures or deals with risk assessment. The Admissions Policy required an assessment
by a medical health professional of the psycho-social factors surrounding the request
for admission. The Admissions Policy required early assessment of Mr Trimarchi
including identification of assaultative potential and history.
396 Mr Trimarchi was initially assessed by registered Nurse Whatmough. He then
arranged for Nurse Carter, a psychiatric nurse of 10 years to assess Mr Trimarchi. His
assessment was that Mr Trimarchi was not a danger to himself or others (the criteria
under the Admissions Policy for involuntary admission).

397 Some time later Dr Winder assessed Mr Trimarchi. Dr Winder, who consulted Nurse
Carter, was also of the opinion Mr Trimarchi was not a danger to himself or others and
was not suitable to be scheduled. However, both Dr Winder and Nurse Carter reached the
view that "there was some psychosis going on and that we would therefore send him to ...
Port Macquarie or Coffs Harbour". It is not clear from the evidence whether it was only
the lack of a bed that resulted in this initial decision or whether other factors were taken
into account. When a bed became available Mr Trimarchi was admitted "for assessment".
Had Dr Winder and Nurse Carter been educated and trained in the categorising of patients
in accordance with the Admissions Policy, the employees would not have been exposed
to the risk of a psychotic patient being admitted.

398 Nurse Carter attempted to contact Dr Holmes. Nurse Turner, a psychiatric nurse also
with 10 years experience commenced work at 2.30 pm. Nurse Turner was provided with a
copy of the AVO and statement from Mrs Trimarchi at approximately 6.00 pm. Nurse
Turner contacted Dr Holmes at 6.30 pm who advised he would examine Mr Trimarch at
7.00 am the following morning. At about 7.00 pm Mr Trimarchi showed Nurse Turner the
contents of his briefcase. Nurse Turner considered the contents and noted in Mr
Trimarchi's hospital records that:

(i) the contents disclose the obvious religiosity of Trimarchi's delusions; and

(ii) Summons (Kempsey Local Court dated 3/7/2001, 0900) will have to be deferred until
treatment takes effect.

399 At 10.30 pm Nurse Hyland, a psychiatric nurse with 40 years experience replaced
Nurse Turner on duty. After Mr Trimarchi displayed bizarre behaviour at 1.00 am on 3
July 2001, Nurse Hyland consulted Nurse Bateman, the Nurse Manager and discussed
whether Mr Trimarchi should be "scheduled". Nurse Bateman then requested Dr Cook to
assess Mr Trimarchi. When Dr Cook arrived, Mr Trimarchi appeared to be asleep. Dr
Cook, Nurse Bateman and Nurse Hyland decided he should not be disturbed and a further
assessment, including scheduling Mr Trimarchi should be left until the morning.

400 I am prepared to give the defendant the benefit of the doubt that it had skilled
health professionals employed at the hospital. However, the risk is that if adequate
training, supervision and instruction was not given in respect of the Admissions Policy, a
person may be admitted as a voluntary patient when they should not have been admitted.
I accept that those health professionals who dealt with Mr Trimarchi gave earnest
attention to his problems. His condition may initially have been difficult to detect and
employees of the defendant, including those with qualifications who were employed on 2
and 3 July 2001 would not have been in a position, in my view, to make a proper
assessment of patients without adequate training, information, instruction and supervision
in respect of the Admissions Policy. It is this failure that gave rise to the risk.

401 I therefore propose to consider the objective seriousness of these breaches in this
context. In my view, the assaults and the tragic death of Mrs Benedek were caused by the
failures on the part of the defendant. In assessing the degree of seriousness of the risk, I
propose to take into account the injuries to the nurses and the death of Mrs Benedek. I
find that the breaches are at the mid to high end of the range of objective seriousness.

Safety and Security Charges

402 The second group of charges IRC 3148 of 2003 and IRC 3149 of 2003 allege that the
defendant failed to fully implement the requirements of the New South Wales Health
policy "Safety and Security - Minimum Standards for Health Care Facilities" ("the
Manual"). This policy was issued in September 1998.

403 The defendant observed that it is not alleged that the actual death or assaults were
caused by the failure and/or omissions alleged. The last particular of each charge asserts
that there was a "potential risk" by reason of the breach of the Act.

404 Chapter 4 of the Manual is headed "Security Education and Training". It required all
Health Care Facilities to provide the following security training appropriate to their
position. Education and training must contain:

(a) new arrivals briefing;

(b) continuing education;

(c) training for staff in high risk areas;

(d) specialist security training; and

(e) departure briefing.

405 The prosecutor tendered a business record of the hospital which purports to record
the security training provided by the hospital as at 4 July 2001. Two spreadsheets are
attached to this document. The first relates to security training for nursing staff and the
second relates to all staff.

406 The training provided is divided under three headings:

Security Orientation.

Security Mandatory Education (last attendance).

Attendance at One Day Workshop in Prevention and Management of Aggression.


407 These spreadsheets demonstrate that the hospital held no record of any security
training of the types outlined above having been provided to Dr Winder, Elizabeth Avery,
Valerie Hyland, Gordon Turner and Robert Whatmough. Gail Bateman is recorded as
having received training in prevention and management of aggression on 19 November
1998. Paul Carter is recorded as having received training in prevention and management
of aggression on 5 November 1998. Susan Smith is recorded as having attended security
orientation training on 26 February 2001.

408 Chapter 3 of the Manual, is titled "Security Surveys". It required the hospital to carry
out a yearly security survey/inspection. The Manual provides a checklist to be used as
part of the conduct of the yearly survey.

409 It is an agreed fact that no security survey was conducted at the hospital in
accordance with the Manual prior to the subject incident (see par 109 of the agreed
statement of facts).

Duress Alarm Charges

410 The third group of charges IRC 3146 and IRC 3147 of 2003 allege a failure to
provide safe systems to ensure a timely and appropriate response to the activation of
duress alarms in emergency situations.

411 It was common ground that the only written material relating to a duress alarm
response distributed at the hospital prior to the subject incident was found at p 16 of the
Kempsey District Hospital, Orientation Programme, Nursing Administration (Shift Co-
ordinators). This part of the programme is headed "Alarms". Under the subheading
"Duress" the following appears:

Personal duress alarms are issued to staff in areas that are considered isolated eg. Multi-
purpose, renal dialysis, maternity, rehabilitation, emergency department, 149 unit and
front office switch. The alarms are checked each day following hand-over at
approximately 1600 hours except for the renal dialysis unit, which is checked at the
commencement of the shift on the days dialysis is taking place. When the duress alarm is
raised the person receiving the duress alarm responds with a second person to the area as
quickly as possible to assess the situation. Once the situation has been assessed the shift
coordinator needs to contact the relevant services if required eg. police or hospital
security service or both. If staff are utilised from isolated areas the duress alarm is
again tested and staff remaining in the area are instructed to carry alarm with them.

412 The evidence discloses there is no regular review of duress alarm systems at the
hospital, nor did the defendant conduct any proper duress response training.

413 The evidence also discloses that in or about February 2001, the defendant retained
Amtac Professional Services Pty Ltd to conduct a review of "aspects of security at
Kempsey District Hospital" with a view "to determine the effectiveness and
appropriateness of existing security measures and to identify vulnerabilities which expose
the Mid North Coast Area Health Service to security related risks, such that effective
measures to protect the hospital, its population and assets may be developed."

414 The review was conducted between 16 and 18 February 2001. The Amtac Report is
dated 4 July 2001 and bears a date stamp of the Area Asset and Security Coordinator of
the defendant indicating receipt of the report on 23 July 2001.

415 The report indicates that as at 18 February 2001, there were identifiable failings in
the hospital's existing "security systems" which created vulnerabilities relevant to the
subject incident.

416 The report contained the following findings and observations:

Under the heading "Existing Security Strategies" the following appeared:

8.2.1 General

The Mid North Coast Area Health Service currently employs a range of protective
security measures, including locks, alarms systems, Closed Circuit Television and
security patrols. There is, however, no structured approach to security risk management.

Whilst we acknowledge that the NMCAHS will be formulating a security management


strategy in due course, the absence of clearly documented security policies and
procedures places the Kempsey District Hospital at risk of losses, not just directly
through security related incidents, but also exposes Mid North Area Health Service to
the risk of embarrassment, civil litigation and potential prosecution under the
Occupational Health & Safety Act 1983.

Under the heading "Security Administration" the following was observed:

...

During the review, a number of gaps in security administration were noted. For example,
no evidence of policies and procedures relating to duress response could be identified,
and no records or logs of alarm activations were found.

...

However, this and other procedures do not appear to be supported and maintained by
formal documentation and training.

An issue of concern raised during interviews is that staff regularly work alone in isolated
parts of the facility, and this impacts upon feelings of personal safety and security.

Under the heading "Training" the following observations were recorded:


Training in duress response was provided to some staff, but did not cover all staff that
might have call to assist in duress situations. The level of training provided does not
appear to be adequate considering the level of risk that is present in the hospital
environment. There is the potential for a high degree of violence to occur in some
situations, such as a substance abuser who may be brought into the Emergency
Department.

Under the heading "Electronic Alarm Systems" the report observed the review found that
the response to duress alarms is an issue of significant concern. Many staff work in areas
of the facility which may be quite remote from a staff member who is designated to
respond, and it is foreseeable that a person who is designated to respond may at some
time be the person needing to issue the alarm. The quality of training for those
responding, and their preparedness to handle some situations is also of concern.

Under the heading "Security Awareness" it was observed:

In general terms, the review sound that staff at Kempsey District Hospital exhibit a low
level of understanding of their role in maintaining the security of the facility and its
assets. The lack of a formal security programme, including designated security staff and
security policies and procedures which provide guidance to staff, are undoubtedly
influencing factors ... However, the absence of regular training, and the lack of
supporting security personnel on campus would make it difficult for even the best
intentioned staff member to have a positive impact on security at the facility.

Under the heading "Psychiatric Care" the following was observed:

Care for patients with a mental illness is provided via the Psychiatric 'Ward', which is
actually a 4-bed annexe of the Surgical Ward. As this section was not originally designed
to cater for psychiatric patients, there are a number of security features that are not
present. Of major concern is the absence of any restriction on patients movements in and
out of this annexe. Also of concern is the availability of suitably trained and prepared
duress response, as discussed earlier in the report.

417 Dr Barclay's report was that Mr Trimarchi was a patient with serious delusions and
that indicated that he is psychotic. Such a patient can change their mood and their
behaviour very rapidly and are susceptible to become violent under little or no
provocation. Such a mood change can occur in a flash. Dr Barclay observed that such
patients can be calm and very agreeable one moment and in a flash they can change. This
evidence coupled with Dr Barclay's evidence that assessing the assaultative potential of
patients upon presentation can result in reasonable disagreement, resulted in my view,
that the defendant was required to ensure that it had in place security systems and staffing
sufficient to deal with risks associated with the potential of patients such as Mr Trimarchi
who may act upon their delusions.

418 It is clear from a consideration of the Amtac Report that the defendant did not have
in place proper safety and security measures. As a result of these failures there was a risk
of injury to both patients and staff from patients with assaultative potential such as Mr
Trimarchi. The defendant has an absolute obligation under the Act to ensure the health
and safety of both its employees and non employees. This requires it to minimise any risk
to persons health and safety. Inadequate security measures and inappropriate duress
alarm systems were all failures which gave rise to a risk to the health and safety of
persons at the hospital. Proper security measures are required because the condition of
psychiatric patients can change quickly and such patients can also be manipulative.

419 The defendant submitted that the objective seriousness in respect of the second and
third groups of charges are at the low end of the range and that the maximum penalties
available should only be utilised in a worse case scenario: see WorkCover Authority of
New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd at 185 per Wright J
President; Camilleri Stock Feeds Pty Ltd v Environmental Protection Authority at 698 -
699; Veen v R (No 2) (1998) 164 CLR 465; WorkCover Authority of New South Wales
(Inspector Peter Ankucic) v McDonalds (Australia) Limited & Anor.

420 As was observed in Capral Aluminium at [81] - [82], the existence of a reasonably
foreseeable risk of injury will necessarily result in the offence being more serious in
nature.

421 The risk in this case was the risk of a patient becoming assaultative. The Admissions
Policy acknowledged "admission procedures should aim to maximise respect, privacy
and safety for patients and staff as well as coordination of delivery of care". There were
clearly failures in the hospital's security systems that resulted in the defendant failing to
ensure that it had in place security systems sufficient to deal with risks associated with
the potential of patients such as Mr Trimarchi if and when they were to act upon their
delusions.

422 Such security measures should have included conducting annual security surveys in
accordance with the minimum standards for health care facilities as set out in the
Safety and Security Manual September 1998; the introduction of security training as part
of mandatory induction training, together with the maintenance of security awareness
through annual mandatory security training; the identification of high risk and isolated
areas requiring particular security measures; ensuring that staff were not required to work
alone in the 149 Unit; proper security measures to prevent unrestricted access to and from
the 149 Unit to other parts of the hospital and the provision and maintenance of training
in minimisation and management of aggression. In respect of this last issue, Dr Barclay's
evidence was that there was a need for annual training and the defendant has adopted this
recommendation and introduced a one day refresher course as part of its ongoing training
programme.

423 The defendant did not provide relevant nursing staff with adequate training with
respect to this policy and Dr Winder received no training at all. Dr Barclay's evidence
was that it is necessary for medical and nursing staff to be reminded constantly of the
issues they should be looking for in each patient that may be indicative of high risk or
higher assaultative potential.
424 Proper assessment and categorisation of patients plays a critical role in securing the
safety of both the hospital staff and patients. The failure to provide adequate security
training with respect to the operational policies was critical failure. Staff need to be
provided with reminders and have training reinforced.

425 In WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd at 198
Walton J Vice-President observed at [126]:

[126] It follows from the exacting nature of the obligation and from the Full Court's
observations in Ridge Consolidated v Meagher that, as the Courts have often held,
employers must be proactive in securing the health , safety and welfare of employees
and contractors. My decision in WorkCover v Fletcher Constructions at [43], with which
Wright J, President, agreed, provides a recent statement of this principle:

[43] Further, the Full Bench in Ridge Consolidated Pty Ltd v WorkCover Authority
(NSW) (2002) 115 IR 78 at [32] - [33], by reference to WorkCover Authority of New
South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284, recently emphasised the
extent of the duty cast upon an employer "in the strongest possible language" by the
Occupational Health and Safety Act. The relevant passage from Schrader, adopted by
the Full Bench was in the following terms:

[56] In short, the duty is to be proactive. This duty was, in my view, correctly and
forcefully stated by Bauer J in WorkCover Authority (NSW) v Maine Lighting Pty Ltd
(1995) 100 IR 248 (approved recently by Full Benches of this Court in Profab at [37] and
Riley v Australian Grader Hire (2000) 103 IR 143 at [15]):

... the Act was designed to protect against human errors including inadvertence,
inattention, haste and even foolish disregard of personal safety as well as the foreseeable
technical risks in industry.

[57] Equally forceful observations have been made, an example of which includes the
judgment of Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467,
in which his Honour held (at 470):

In their context and purpose, there would appear to be no reason to make any implication
that the words "to ensure" are to be construed in any way other than their ordinary
meaning of guaranteeing, securing or making certain.

[58] It is pertinent to observe also the comments of Hill J in WorkCover Authority (NSW)
v ATCO Controls Pty Limited (1998) 82 IR 80 at 85:

This case is yet another illustration of the need for employers to exercise abundant
caution, maintain constant vigilance and take all practicable precautions to ensure safety
in the workplace. It is essential that the approach should be a pro-active and not a re-
active one; employers should be on the offensive to search for, detect and eliminate, so
far as is reasonably practicable, any possible areas of risk to safety, health and welfare
which may exist or occur from time to time in the workplace.

[59] I would also concur with the observations of Wright J, President, in Ferguson v
Nelmac Pty Limited (1999) 92 IR 188 where, in the context of a s15 prosecution, his
Honour observed that the Act imposed (at 209):

... an obligation on an employer which is not confined to the taking of precautions only
when there are warnings or signals of danger or when experience indicates that a risk to
safety has arisen and requires remedy. So much is clear from the structure and language
of the section which is premised on the requirement to "ensure ... health , safety and
welfare at work" and the decided cases which make plain the nature of the obligation.

426 The defendant asserts that this case should be seen as involving a misdiagnosis or a
wrong admission and that in retrospect what occurred was no more than a failure on the
part of appropriately qualified medical and nursing staff to recognise the full nature and
extent of Mr Trimarchi's psychotic condition until the early hours of 3 July 2001.

427 As I have already observed the failure was to provide regular training to ensure that
an accurate assessment and correct diagnosis were made upon admission.

428 The misdiagnosis is no answer to the defendant's failures in respect of ensuring a


proper system of security and in respect of the duress alarms.

429 Once again, it is not contended by the prosecutor in the charges that the failure to
provide security training resulted in a greater risk in respect of this matter. A duress alarm
was provided to the 149 Unit and some, but not all employees were trained in aggression
management. It is also important to bear in mind that as Mr Trimarchi was not scheduled,
he was entitled to move freely in the 149 Unit. The prosecutor contends that the failure to
have introduced proper security training resulted in Mr Trimarchi being able to move
around the Unit without restriction. There was no basis upon which he could be restricted
or locked away.

430 In my view, the objective seriousness of the charges that fall into the second category
are at the mid to high end of the scale. Similarly, in respect of the third group of charges
in assessing the objective seriousness of these offences, it is important to observe that the
particulars of each matter make no allegation that the alleged failures in question caused
the assaulting of staff or death of the patient. The defendant has pleaded guilty to the
charge that there was no adequate policy, procedure or training in place at Kempsey
District Hospital to ensure a timely and appropriate response to the activation of duress
alarms in emergency situations. The failure in respect of the policy was that Nurse
Bateman responded alone in circumstances where the policy required that the Night
Supervisor would respond with one other person once a duress alarm was activated. The
lack of knowledge, plainly put the employees at risk. Those charges also fall within the
mid to high end of the scale.
431 The prosecutor acknowledged that the defendant was to be lauded for its part in the
construction of a new, purpose built facility so as to meet the needs of the people in the
area for psychiatric care and other significant steps, such as the employment of an
additional specialist psychiatric medical and nursing staff. However, it observed that
many of the steps taken by the defendant in the aftermath of the incident, including the
provision of assessment tools, enhanced training (including, duress response training,
security training and aggression minimisation training, the conduct of site risk
assessments and the introduction of proper duress response systems and training) were
steps that could and should have been taken prior to the event.

432 In Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla


Coal and Coke Pty Ltd, Walton J Vice-President stated:

...Whilst the response by the defendants after the accidents, was laudable, the actions
taken was such as to reveal in clear terms the decisive steps which may have been taken
by the defendant to actually prevent this accident and thereby demonstrate a flaw which
existed in the previous system: WorkCover Authority of NSW (Inspector Kelsey) v
University of Sydney (at pp 21- 22).

433 This approach has been approved by the Full Bench in WorkCover Authority of New
South Wales (Inspector Lancaster) v Burnshaw Constructions Pty Ltd.

434 The occurrence of the incident in this case indicates that the procedures were not
sufficiently comprehensive or sufficiently communicated to and understood by the
employees to ensure their safety. The existence of a system on paper alone is clearly not
sufficient to comply with the obligations imposed by the OH&S Act. The employer is
required to ensure that its "paper systems" are implemented and maintained in its daily
operations: Sydney County Council v Coulson (1987) 21 IR 477 at 480; WorkCover
Authority (NSW) (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at
214.

435 In assessing penalty, it is necessary that the Court have regard to the need for general
deterrence: Capral at 643. In my view, general deterrence must be taken into account
because, as identified by Hungerford J in Fisher v Samaras at 388, and approved by the
Full Bench in Morrison v Powercoal (No 3) the offence is against the statute of public
interest and public concern and it is important to compel attention to occupational
health and safety issues.

436 It is appropriate that I include in the penalty an element for general deterrence.

437 In relation to specific deterrence, as the Full Bench observed in Capral at 644 - 645,
that in view of the scope of the obligations by employers under the OH&S Act, in most
cases, it will be necessary to have regard to the need to encourage a sufficient level of
diligence by the offender in the future. The defendant submitted that the speed of
implementation of many of its charges and the ongoing refinement and improvement of
these policies would satisfy the Court that no element of penalty for specific deterrence is
necessary. I will turn to deal with these policies shortly. However, although the defendant
has undertaken an extensive and comprehensive review of its occupational health and
safety policies and introduced new safety systems, it nonetheless conducts an enterprise
which involves inherent risks to safety. I therefore determine that an element of the
penalty should reflect specific deterrence.

438 The defendant moved quickly to rectify its breaches. The 149 Unit was closed
immediately and never re-opened. A new $10 million mental health facility at
Kempsey Hospital was re-opened by March 2003. Significant and fundamental
systematic changes were made to the Mental Health Services within the area. These
changes included a full time Career Medical Officer (Mental Health ) working in the
new Kempsey Hospital Psychiatric Unit. The Career Medical Officer appointed had
many years experience in mental health . Two new psychiatrists were appointed to
Kempsey Hospital Mental Health Service which has more than tripled the available
consultant psychiatrist time to the Service . A dedicated 24 hour a day on-call
psychiatric service was put in place some months prior to the opening of the Kempsey
Mental Health Unit in March 2003. A psychologist and social worker have been
appointed to compliment the nursing staff.

439 The new Mental Health Facility at Kempsey Hospital has several closed circuit
cameras for observations. Most rooms are single with no more than two beds in a shared
room. The new unit was designed and built with the involvement with key stakeholders
and the changes are consistent with current best practice design.

440 A room within the Emergency Department has been specifically identified and
refurbished as part of the commissioning process to facilitate safe and confidential client
assessment. This ensures that mental health is seen to be a legitimate part of the
business of the Emergency Department.

441 In the immediate aftermath of the incident in July 2001, many of the hospital's
policies were changed and have continued to be updated. These include:

(a) a new minimisation and management of aggression policy issued in August 2001: Ex
p.26 (sic). That policy resulted in systematic re-training of all staff in aggression
management and the attendance of staff was “not negotiable”: Ex D6;

(b) a risk assessment was conducted in September 2001 to identify all areas within the
hospital that may be regarded as “high risk” areas in terms of exposure to violence and/or
aggression: Ex P28;

(c) a new duress alarm response team policy was developed in September 2001: Ex P27.
In relation to duress alarms, the new Mental Health Unit established in March 2003
had a new duress alarm system specific to the settings of an acute Mental Health Unit.
hat system is integrated with the Kempsey Campus Duress system and emergency
response: Ex P.22. That policy has been revised in December 2002 and July 2004 and is a
Policy clearly which is the subject of continual refinement: Ex D5;
(d) a new triage assessment crisis access and referral policy was issued in October 2001:
Ex p.25 (sic). In para 4.2.3.2 of the policy, it includes the use of MH – OAT Assessment
forms of the kind suggested in Dr Barclays (sic) March 2003 report. Examples of those
forms appear as part of Ex D8;

(e) in December 2002 a new Mental Health Services Area Policy Statement was
developed: Ex P24. This Policy deals with issues such as the criteria for admission for
psychiatric care in a hospital mental health unit, exclusion criteria, admission
procedures guiding principles etc. n the flowchart at the end of that document, the use of
MH-OAT assessment advocated by Dr Barclay forms part of the Policy;

(f) in April 2003 a policy for medical cover in the Mental Health Low Dependency
Unit was developed and that was revised in April 2004: Ex D3.

(g) in March 2004 a zero tolerance to violence area policy was instigated: Ex D7; and

(h) in May 2004 an inpatient liaison with Mental Health Services Policy Statement
was developed: Ex D4.

442 In terms of additional training, the Induction Manual for New Employees shows at p
4 that as part of the two day orientation program before employees commence work for
the defendant they are inducted in:

(a) risk management / OH&S;

(b) child protection;

(c) quality and patient safety;

(d) fire safety;

(e) suicide awareness;

(f) infection control;

(g) aggression minimisation;

(h) manual handling / CPR.

443 It was further submitted by the defendant that the significant and fundamental
systemic changes to Mental Health Services within the area were already in the
process of being implemented at the time of the offence. Furthermore, it was submitted
that the implementation occurred in recognition that the Area Health Service was
historically under funded. Many of these changes, it was submitted, were in progress at
the time of the offences and indicate the defendant exhibited a proactive approach to
occupational health and safety responsibilities and was not merely reacting to the
offences in question. I accept this submission, however, nevertheless this is not an answer
to the defendant's absolute obligations that flow from the OH&S Act.

444 The defendant is also entitled to the benefit of subjective factors that tend to mitigate
the objective seriousness of the subject offences. In Alcatel the Full Bench observed at
106:

We accept that there are good policy reasons for the encouragement of early pleas of
guilty and the giving of assistance to the WorkCover Authority in its investigation of
suspected breaches of the OHS Act.

445 There was some debate in respect of the utilitarian value of the plea with the
prosecutor submitting that the defendant is not entitled to a significant discount because
of the very late stage that the plea of guilty was entered. The defendant contended that the
lateness of the plea had not significantly (if at all) detracted from its utilitarian value.

446 In R v Thompson, Spigelman CJ (with whom Woods CJ at CL, Foster A-JA and
Grove and James JJ agreed) discussed at [160] the guidelines applicable to offences
against the laws of New South Wales as follows:

(i) A sentencing judge should explicitly state that a plea of guilty has been taken into
account. Failure to do so will generally be taken to indicate that the plea was not given
weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in
so far as they believe it appropriate to do so. This effect can encompass any or all of the
matters to which the plea may be relevant - contrition, witness vulnerability and
utilitarian value - but particular encouragement is given to the quantification of the last-
mentioned matter. Where other matters are regarded as appropriate to be quantified in a
particular case, for example, assistance to authorities, a single combined quantification
will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be
assessed in the range of 10-25 per cent discount on sentence. The primary consideration
determining where in the range a particular case should fall, is the timing of the plea.
What is to be regarded as an early plea will vary according to the circumstances of the
case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the
nature of the sentence imposed. In some cases a plea will not lead to any discount.

447 The above principles should be applied to the history of this matter which is as
follows:

(i) On 6 November 2003, the defendant entered a plea of not guilty in each matter.
(ii) On 19 July 2004, at the commencement of the hearing, the defendant sought an
adjournment of the proceedings which was refused. The prosecutor sought to tender the
record of interview between Inspector Wade and Nurse Watman pursuant to s 87(1)(b) of
the EA. Counsel for the defendant raised a threshold question of the admissibility of the
transcript of the record of interview and the tapes of the interview. Extensive argument
ensued in the following six days regarding s 85, s 87, s 90, s 135 and s 137 of the EA
with the Commission delivering its decision on 31 August 2004.

(iii) The matter was listed for further hearing to commence on Monday 23 May 2005 with
four weeks being reserved to conclude the matter.

(iv) On 20 May 2005, the Court was advised that the defendant pleaded guilty to the
charges.

(v) The hearing dates for the matter were vacated with the hearing of the plea
programmed for 6, 7 and 8 June 2005.

(vi) The Court reserved 16 June 2005 for counsel to speak to their written submissions.

448 By reason of the plea of guilty, a large number of witnesses, including the nurses
who were assaulted or witnessed the assault were not required to give evidence.

449 In my view, having regard to the history of the matter, the defendant should be given
a moderate discount for the plea of guilty when the utilitarian aspects are assessed with
other relevant factors referred to in R v Thompson; R v Houlton. I propose to allow a
discount of 15 percent for the utilitarian value of the plea.

450 The defendant submitted that the plea of guilty is a direct manifestation of the
defendant's remorse. The prosecution submitted that the defendant had called no evidence
of any remorse, nor had any evidence been put before the Court of any steps taken by the
defendant with respect to the persons injured in the incident or with respect to the
relatives of the deceased.

451 As Mr Inatey submitted, in respect of this issue, the organisation as it existed at the
time has ceased to exist. It has been taken over by another organisation. Responsibility
for the staff has changed.

452 In my view, the circumstances surrounding the defendant are different to an


individual who has been charged with a breach of the OH&S Act and is still responsible
for his or her business. The defendant's circumstances seem to me to be different to those
discussed by Cummins J in Director of Public Prosecutions v Esso Australia Pty Ltd
(2001) 107 IR 285 at [48] where his Honour observed:

Normally in sentencing, a failure to accept responsibility sounds in the matter of specific


deterrence. This is not so here, because Esso has demonstrated by its subsequent
operational or reforms that it has acted responsibly to remedy past deficiency. But its lack
of acceptance of responsibility has a relevance in my not accepting that Esso's expression
of remorse is practical and operational. Esso's failure still to accept responsibility for
these tragic events is a serious deficiency.

453 Similarly, in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm
96, the Full Bench found there was no statement that they could point to that evidenced a
full and practical acceptance of the responsibility for the workplace circumstances
relating to the incident. In that matter, the defendant pleaded not guilty.

454 The recent decision of the High Court of Australia in Cameron v R (2002) 209 CLR
339 (Gaudron, Gummow and Callinan JJ, observed at [11] - [15]:

11. It is well established that the fact that an accused person has pleaded guilty is a matter
properly to be taken into account in mitigation of his or her sentence. In Siganto v The
Queen it was said:

"a plea of guilty is ordinarily a matter to be taken into account in mitigation; first,
because it is usually evidence of some remorse on the part of the offender, and second, on
the pragmatic ground that the community is spared the expense of a contested trial. The
extent of the mitigation may vary depending on the circumstances of the case."

It should at once be noted that remorse is not necessarily the only subjective matter
revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a
willingness to facilitate the course of justice.

12. Although a plea of guilty may be taken into account in mitigation, a convicted person
may not be penalised for having insisted on his or her right to trial. The distinction
between allowing a reduction for a plea of guilty and not penalising a convicted person
for not pleading guilty is not without its subtleties, but it is, nonetheless, a real
distinction, albeit one the rationale for which may need some refinement in expression if
the distinction is to be seen as non-discriminatory.

13. It is difficult to see that a person who has exercised his or her right to trial is not being
discriminated against by reason of his or her exercising that right if, in otherwise
comparable circumstances, another's plea of guilty results in a reduction of the sentence
that would otherwise have been imposed on the pragmatic and objective ground that the
plea has saved the community the expense of a trial. However, the same is not true if the
plea is seen, subjectively, as the willingness of the offender to facilitate the course of
justice.

14. Reconciliation of the requirement that a person not be penalised for pleading not
guilty with the rule that a plea of guilty may be taken into account in mitigation requires
that the rationale for that rule, so far as it depends on factors other than remorse and
acceptance of responsibility, be expressed in terms of willingness to facilitate the course
of justice and not on the basis that the plea has saved the community the expense of a
contested hearing.
15. This treatment of the matter is consistent with what in their joint judgment in
Castlemaine Tooheys Ltd v South Australia Gaudron and McHugh JJ identified as the
general considerations which result in particular treatment being treated as
discriminatory. One aspect of the legal notion of discrimination "lies in the unequal
treatment of equals". The "equals" here are those required to plead guilty or not guilty;
they stand as equals before the criminal law and processes of Western Australia. But is
the differential treatment of such persons and the unequal outcome with respect to
sentence the product of a distinction which is appropriate and adapted to the attainment of
a proper objective, here the facilitation of the course of justice by the willingness of the
accused to plead in a particular fashion? The answer, as indicated above, is in the
affirmative. (Footnotes omitted).

455 In the circumstances of this case, in my view, the plea of guilty should be seen as a
direct manifestation of the defendant's remorse and contrition and therefore a mitigating
factor in this case.

456 The prosecutor accepted that the defendant was entitled to a discount with respect to
its cooperation with the WorkCover Authority in its investigations of the subject incident
and it is appropriate that I take this matter be taken into account.

457 Before turning to determine sentence, it is important to recall what Wright J President
and Walton J Vice-President (Peterson J not dissenting) said in Drake Personnel Ltd t/a
Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90
IR 432 at 452:

...The general duties created by the OH&S Act are directed at obviating "risks" to the
health , safety and welfare of persons in the workplace: see Haynes v C I & D
Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and
the sustaining of injuries by an employee will certainly represent relevant evidence of the
existence of a risk to the health and safety of employees and the seriousness of that
risk. However, it is not the accident itself which constitutes the offence, but rather the
failure of the employer to ensure that its employees are not exposed to risks while at
work.

This consideration is carefully explained in the decision of the Full Court of the then
Industrial Court of NSW in Haynes. Commenting on the reasoning of the trial judge, their
Honours said (at 156-157):

"The commencing point of her Honour's consideration of the evidence was the
uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting
him as it came to a stop over the pit in which he was working removing the slurry. Her
Honour then, correctly in our view, commented that '(t)he occurrence of the accident
itself does not however establish the commission of the alleged offence': see Dawson
(State Rail Authority of New South Wales v Dawson (1990) 37 IR 110) and McMartin v
The Broken Hill Proprietary Company Ltd (unreported, Grove J, 5 February 1988, at 7-
8). But, her Honour then concluded, concerning the case against Manufacturing, that '(i)t
needs to be established that some action taken by (Manufacturing), or the failure to take
some action, was causally connected with the front end loader hitting Mr Chen. It seems
to (her Honour) that to approach the question of the commission of the offence in any
other way, would be to remove the requirement placed upon the Prosecution to establish,
beyond reasonable doubt, that it was the Defendant which failed to "ensure the health ,
safety and welfare at work" of Mr Chen and Mr Ding'. The prosecution of Industries was
considered by her Honour according to "(m)any of the comments ... made in relation to
the prosecution against Manufacturing'; again, a causal connection between some act or
omission by Industries and the accident was found to be necessary. Her Honour focused
attention on the accident itself, that is the front end loader hitting Mr Chen, as the
relevant detriment to safety with which the respondent were charged.

We think that approach emphasised too much the accident itself as the relevant detriment
to safety of persons on the site. That overemphasis led to a misunderstanding by her
Honour of the real facts disclosed by the circumstantial evidence and the proper
inferences to be objective drawn therefrom.

Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the
health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the
sections, even absent any actual accident causing death or bodily injury, nevertheless
comprehend the commission of an offence where the relevant 'detriment to safety' (as
spoken of in Dawson and McMartin) is but a risk, or, in other words, where the
circumstances are such that an employer's act or omission has created a situation of
potential danger to the health and safety of persons at his workplace. The OHS Act, as
its long title, indicates, has the prime purpose '(t)o ensure the health , safety and
welfare of persons at work' and that stated purpose may only reasonably be achieved, it
seems to us, by construing the general duties or obligation cast on employers by Div 1 of
Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that
is, both before and after the occurrence of an actual accident."

We adopt that reasoning as a correct statement of law and principle in relation to s15 of
the Act.

The importance of the observation that an offence under s15(1) is constituted by the
failure to ensure that employees are not exposed to risks, rather than the failure to prevent
a particular accident, is immediately apparent when considering the submissions
advanced by the appellant.

458 In this matter it is important to bear in mind the distinction that the Full Court made
between exposure to risks and a failure to prevent a particular accident. The failures of
the defendant to provide proper training, instruction and information in respect of the
admissions policy, the security policy and duress alarms resulted in risks to the safety and
welfare of its employees and non employees.

459 The defendant has no prior convictions and the defendant should be given credit for
its good behaviour.
460 Counsel for each party made submissions in respect of the impact of the High Court's
decision in Markarian v R. This decision considered whether the New South Wales Court
of Criminal Appeal failed to apply orthodox sentencing principles in upholding an appeal
against sentence by the Crown. This decision has been considered by a number of the
Members of this Court: Inspector Brett Martin v Encore Tissue Pty Limited [2005]
NSWIRComm 271; Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor
[2005] NSWIRComm 266; Inspector Vosu v Ace-Semi Trailer Sales Pty Ltd [2005]
NSWIRComm 222; WorkCover Authority of New South Wales (Inspector Katf) v Skilled
Warehousing (NSW) Pty Ltd and APC Socotherm Pty Ltd [2005] NSWIRComm 296 and
South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005]
NSWIRComm 116.

461 In Inspector Yeung v Howie Herring & Forsyth, Boland J stated at [37] - [40]:

[37] It is difficult to avoid the conclusion that the approach dictated by Lawrenson
Diecasting is a two-stage approach to sentencing; the objective seriousness of the offence
being the primary factor to be looked at in relation to penalty and subjective factors
playing only a subsidiary role. That is, in determining sentence, subjective factors will
not carry as much weight as objective factors.

[38] However, nothing in Markarian would suggest that the general principle that a
sentence must be “proportionate to the gravity of the crime considered in the light of its
objective circumstances” (Hoare v The Queen (1989) 167 CLR 348 at 354) has been
overturned. This is the principle, I believe, upon which Lawrenson Diecasting is based.
Moreover, I note what Spigelman CJ stated in Thorneloe v Filipowski (2001) 52 NSWLR
60 at 69:

However, in this State the principle of proportionality identified in Veen v The Queen
(1978-1979 143 CLR 458 esp at 490; Veen v The Queen [No. 2] (1987-1988) 164 CLR
465 esp at 472-3, 476 has long been held to permit, indeed to require, that a sentence
should be proportionate to the objective gravity of the offence. This necessarily requires a
sentencing judge to consider, at some stage in the reasoning process, the sentence that is
appropriate for the particular circumstances of the crime without reference to the
subjective case of the particular offender.

[39] In the absence, however, of any clear indication in Markarian that a sentencing court
may not use a two-stage approach to sentencing and may not give separate consideration
to the objective circumstances of the crime (in fact at [38] in the joint judgment it appears
to be said that this may be justified) and given that the implications of Markarian for the
approach required by Lawrenson Diecasting were not fully debated before me, especially
as to the statutory context in which sentencing occurs in this jurisdiction, I am disinclined
to depart from the approach required by Lawrenson Diecasting.

[40] The approach I have taken, therefore, is that required by Lawrenson Diecasting. The
guideline judgment in R v Thomson continues to be one this Court is required to take into
account and it is appropriate that I indicate a discount at least for the utilitarian value of
the guilty plea. In the light of Markarian it is necessary that I take into account all
relevant considerations in sentencing (which has always been part of the jurisprudence)
and "make a value judgment as to what is the appropriate sentence given all the factors of
the case" subject to the approach required by Lawrenson Diecasting. Amongst the
objective and subjective factors I am required to take into account are those in ss 21A, 22
and 23 of the Crimes (Sentencing Procedure) Act. I do not consider it is any longer
appropriate to take the approach of determining an amount of penalty based on the
relevant objective considerations and deducting from that amount allowances for the
individual subjective factors.

462 I respectfully agree with his Honour's conclusions regarding the impact of
Markarian in this jurisdiction and propose to approach the sentencing of the defendant on
this basis.

Totality

463 The defendant is charged with and has pleaded guilty to six charges. Three arise
under s 15(1) of the OH&S Act and three arise under s 16(1) of the OH&S Act. All of the
matters concern the one incident.

464 The application of the principle of totality in the context of the OH&S Act including
charges laid parallel under s 15(1) and s 16(1) of that Act was considered in detail by the
Full Bench of the Commission in Court Session in Abigroup Contractors Pty Limited v
WorkCover Authority of New South Wales (Inspector Maltby). At [73] - [74] the Full
Bench said:

[73] The determination of an appropriate sentence is clearly an exercise of the trial


judge's discretion. Necessarily, the application of the principle of totality is also an
exercise of discretion: compare, for example, R v Hammoud (2000) 118 A Crim R 66 at
[7].

[74] The principle of totality was described by Kirby J in Postiglione v The Queen (1997)
189 CLR 295 at [341] in the following way:

But it still remains for the judge to look back at the product of these calculations and
discounts. It is then that the sentencing judge must consider whether the resulting
sentence needs further adjustment ... it may offend the totality principle because, looking
at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and
appropriate". The last-mentioned conclusion will the more readily be reached where the
judge comes to the conclusion that the outcome would be "crushing" and, as such, would
not hold out a proper measure of hope for, and encouragement to, rehabilitation and
reform.

465 Later at [76], the Full Bench stated:


[76] The correct approach to applying the principle of totality in proceedings brought
under the Act was set out by a Full Bench of this Court in Crown v Keenan in the
following way:

[36] This review of the authorities establishes that in determining penalties for multiple
offences under the Occupational Health and Safety Act the Court is required to
determine separately an appropriate penalty for each offence. Having done so, the Court
should then consider what the appropriate penalty should be by applying the principle of
totality. Where the multiple offences contain common elements, the principle of totality
must, for that reason alone, be applied to ensure that the defendant is not punished more
than once for the common elements of the offences and to avoid the double jeopardy that
would follow if that occurred. The principle must also be applied for the reasons stated in
Pearce [v The Queen (1998) 194 CLR 610] and Mill [v The Queen (1988) 166 CLR 59].

[37] We should emphasise that the principle that a defendant is not to be punished more
than once for the common elements of the offences does not require that a single penalty
only should be imposed for the multiple offences. The Court is required to determine a
separate penalty for each offence before applying the principle of totality. It will then
usually be appropriate to fix separate penalties for each offence. It is in applying the
principle of totality - which requires the consideration of the overall criminality involved
in the offences - that regard should be had to the principle that a defendant is not to be
punished more than once for elements which are common to the offences as well as
ensuring the aggregate sentence or penalty is just and appropriate.

466 The Court continued at [80] with respect common elements an underlying factual
matrix, as follows:

[80] The approach to determining the common elements in multiple offences was set out
by the High Court in Pearce v The Queen the following way:

[40] To the extent to which two offences of which an offender stands convicted contain
common elements, it would be wrong to punish that offender twice for the commission of
the elements that are common. No doubt that general principle must yield to any contrary
legislative intention, but the punishment to be exacted should reflect what an offender has
done; it should not be affected by the way in which the boundaries of particular offences
are drawn. Often those boundaries will be drawn in a way that means that offences
overlap. To punish an offender twice if conduct falls in that area of overlap would be to
punish offenders according to the accidents of legislative history, rather than according to
their just deserts.

...

[42] It is clear in this case that a single act (the appellant's inflicting grievous bodily harm
on his victim) was an element of each of the offences under ss 33 and 110. The
identification of a single act as common to two offences may not always be as
straightforward. It should, however, be emphasised that the enquiry is not to be attended
by "excessive subtleties and refinements"[Sir John Barry, The Courts and Criminal
Punishments, (1969) at 14]. It should be approached as a matter of common sense, not as
a matter of semantics.

467 IRC 3146 of 2003 and IRC 3147 of 2003 relate to the duress response. IRC 3148 and
IRC 3149 concern security failings, and IRC 3150 of 2003 and IRC 3151 of 2003 relate
to failures of the hospital with respect to the provision of information, instruction,
supervision and training in relation to the Admissions Policy. In my view, all of the
offences arise out of the same matrix of facts giving rise to an overlap. The principle of
totality has applicability.

468 Mr Inatey submitted that the defendant is a public funded body and that any penalty
will be paid from the Services Budget which are public funds for public medical
services .

469 Hungerford J dealt with a not dissimilar submission in WorkCover Authority of New
South Wales (Inspector Stewart) v Central Sydney Area Health Service (2001) 111 IR
216 at 225 where his Honour observed:

Section 6 of the Occupational Health and Safety Act is expressed so as to make the
Crown bound by the statute, not only in right of New South Wales but also the Crown in
all its other capacities. That section, in my view, and as Mr Phillips submitted, is
applicable in the present case as the defendant is a manifestation of the Crown as
incorporated under the Health Services Act . The question of the appropriate level of
penalty to be imposed upon a Crown defendant was expressly raised in this respect by Mr
Phillips' reliance upon the following passage from my judgment in WorkCover Authority
(NSW) (Inspector Tuckley) v Crown in Right of the State of NSW (Department of
Community Services ) (1999) 96 IR 1 at pp 21-22:

"I agree with the proposition that the liability of the Crown to fines for breaches of
statutory obligations, such as the Occupational Health and Safety Act, represents the
means to ensure a standard of public conduct at least equal to that which the Crown
demands of its subjects and of society at large."

I affirm those views. Mr Henskens' submission on this aspect, therefore, is rejected and I
approach the sentencing of the defendant on an equivalent basis to that of any other
defendant.

470 I respectfully agree with his Honour's observations and propose to approach the
sentencing of the defendant in the same manner.

471 It is therefore necessary to assess the appropriate penalty in relation to each charge
and then apply the principle of totality. In my view, each charge should be regarded as
equally serious. Each charge refers to a policy of the defendant and a system or method of
work. Taking into account all of the relevant circumstances and noting that each offence
resulting in maximum penalties of $550,000, I determine the appropriate penalties as
follows:

1. In relation to the charge in matter IRC 3146 of 2003, I determine the appropriate
penalty to be $55,000.

2. In relation to the charge in matter IRC 3147 of 2003, I determine the appropriate
penalty to be $55,000.

3. In relation to the charge in matter IRC 3148 of 2003, I determine the appropriate
penalty to be $55,000.

4. In relation to the charge in matter IRC 3149 of 2003, I determine the appropriate
penalty to be $55,000.

5. In relation to the charge in matter IRC 3150 of 2003, I determine the appropriate
penalty to be $55,000.

6. In relation to the charge in matter IRC 3151 of 2003, I determine the appropriate
penalty to be $55,000.

472 The principle of totality, as discussed in Pearce v The Queen, then requires
consideration of the overall culpability or criminality attributable to the defendant from
each of the convictions, and in that process, ensuring that there is no "double counting of
the culpability of the defendant, from the respective offences. Approaching the matter in
that way, I consider the overall culpability of the defendant (bearing in mind the
significant practical overlap between the six offences, and the aggregate culpability
arising from the effect of each of the breaches occurring within the same timeframe),
would result in a total fine of $330,000. I consider the total fine should be reduced to
$150,000. Having regard to the separate assessments of culpability of the defendant in
relation to each offence, fines of $25,000 should be imposed in each matter.

ORDERS

The Court accordingly makes the following orders:

1. In each of the matters, the offence is proven and a verdict of guilty entered.

2. The defendant is convicted of the three offences alleged under s 15(1) and three
offences alleged under s 16(1) of the OH&S Act 1983.

3. In matter IRC 3146 of 2003, the defendant is fined the sum of $25,000 with a moiety
of that fine to the prosecutor.

4. In matter IRC 3147 of 2003, the defendant is fined the sum of $25,000 with a moiety
of that fine to the prosecutor.
5. In matter IRC 3148 of 2003, the defendant is fined the sum of $25,000 with a moiety
of that fine to the prosecutor.

6. In matter IRC 3149 of 2003, the defendant is fined the sum of $25,000 with a moiety
of that fine to the prosecutor.

7. In matter IRC 3150 of 2003, the defendant is fined the sum of $25,000 with a moiety
of that fine to the prosecutor.

8. In matter IRC 3151 of 2003, the defendant is fined the sum of $25,000 with a moiety
of that fine to the prosecutor.

9. The defendant shall pay the prosecutor's costs of the proceedings in an amount as
agreed, or if agreement cannot be reached, as assessed in accordance with the Court's
Rules.

LAST UPDATED: 06/10/2005