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SafeWork overlooked Crown lawyers for new RAH death prosecution

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Prosecution over the 2014 death of new Royal Adelaide Hospital construction worker Jorge Castillo-Riffo - sensationally abandoned earlier this year - was handed to private lawyers because the Crown Solicitor’s Office could not put the case together quickly enough, InDaily can reveal.

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Castillo-Riffo died, aged 54, when his back and head were crushed in a scissor lift on the site, which was run by Hansen Yunken Leighton Contactors joint venture (HYLC).

SafeWork SA presented its investigation into his death to the Crown Solicitor’s Office (CSO) in April 2015.

But InDaily can reveal that about a month later, the government’s lawyers informed SafeWork they had made little or no progress on the case and advised it might be months before they could process it.

SafeWork then asked the CSO to recommend private legal counsel instead and it selected Michael Roder SC – one of the state’s top lawyers – to lead the prosecution.

SafeWork refused to confirm the series of events, however court documents, seen by InDaily, show Roder acted for the regulator in the case earlier this year.

It’s not the only high profile State Government case to be farmed off to private lawyers in recent times.

Last week, chief executive of the Northern Adelaide Local Health Network Jackie Hanson revealed private lawyers had been chosen to investigate employees at the condemned Oakden Older Persons’ Mental Health Service – instead of the CSO – because “it was indicated that it would take … potentially over 12 months of their collective resources to undertake those investigations”.

Mental Health Minister Leesa Vlahos told question time in Parliament yesterday afternoon that the decision to engage private lawyers from Minter Ellison was made to “expedite” the investigations.

However, Attorney-General John Rau says he is unaware of any resourcing issues preventing the CSO from doing its work quickly enough.

A spokesperson for Rau told InDaily that “the Attorney-General has not been advised by the Crown Solicitor of any resourcing or staffing issues within the Crown Solicitor’s Office that is impacting on their ability to do their work in a timely manner”.

“The Crown Solicitor’s Office has approximately 185 lawyers and 60 support staff.”

According to the CSO’s website, any decision by a public authority to engage private solicitors or legal counsel must generally be signed off by the Cabinet, or by Crown Solicitor Judy Hughes.

The CSO’s Client Handbook explains the convention is enforced because the CSO offers best value for taxpayer money, is “appropriately resourced” and has unique expertise in “crucial whole-of-government and public law issues”. (The handbook sets a maximum fee in the event that private senior counsel is chosen: $423 per hour.)

The rule also reflects a binding directive – Treasurer’s Instruction 10 – which dictates: “[a] public authority shall not use the services of a legal practitioner other than the Crown Solicitor without first seeking the advice of the Crown Solicitor on whether the use of such a practitioner is appropriate”.

A spokesperson for the Attorney-General’s Department, which houses the Crown Solicitor’s Office, said that “for a range of reasons, Government agencies will from time to time obtain legal advice external to the Crown Solicitor’s Office”.

“A decision was made between the Crown Solicitor’s Office and Safework SA that it was appropriate to seek external legal advice in this case, in line with Treasurer’s Instruction 10 that governs the use of external legal practitioners by Government agencies,” the spokesperson said.

“As this matter is currently the subject of a legal review into recent prosecutions relating to workplace deaths in South Australia, and under consideration by the Coroner, the Government will not comment any further.”

SafeWork sensationally abandoned its case against HYLC three days before it was due to begin early this year.

“Your Honour, the situation is that the complainant is tendering no evidence against the first and second defendants [the companies that form HYLC] and, therefore, the complaint can be struck out,” Roder is quoted as saying in a transcript of the February 10 court proceedings.

Pam Gurner-Hall, Castillo-Riffo’s widow, told InDaily she was “mortified” by SafeWork’s decision.

She said she was told of the decision the day it was made – a Friday. The case was due to begin the following Monday.

“To be told after 28 months that … the business day before … was a serious shock,” she said.

“I was shocked … and mortified.

“I thought, for sure, at that late stage that [the case would proceed].”

She said a SafeWork official had previously assured her the case was strong, and was likely to proceed.

“For me, this is just another form of injustice,” she told InDaily, adding that her partner – who came to Australia as a refugee from the Pinochet regime in Chile – had been a victim of injustice his entire life.

Construction workers gathered the day of Jorge Castillo-Riffo’s death on the new Royal Adelaide Hospital site in 2014. Photo: Bension Siebert / InDaily

She said that as a teenager, Castillo-Riffo had been pursued by the regime’s secret police – and was regularly hidden under his mother’s floorboards to evade them.

She said the young Castillo-Riffo watched in horror as Pinochet’s henchmen threw his girlfriend off a building.

He was smuggled to Brazil as a political refugee and eventually arrived in Australia, where he took up a job in construction and became “an absolute safety nut”.

When he got home from work each day, she said, he took extensive notes on safety issues on the site during his shift.

“I’ve got books of notes on every job he was on,” she said.

“He had suffered and witnessed injustice [in life].

“I can’t believe that even in death he hasn’t seen any remedy that looks like justice.”

A SafeWork spokesperson reportedly said at the time that the case against HYLC had been abandoned “following legal advice” and in light of Castillo-Riffo’s direct employer SRG Building signing a legally binding agreement to improve its safety procedures.

Soon after the prosecution was dropped, the Construction, Forestry, Mining and Energy Union (CFMEU) organised a “Justice for Jorge” rally on the steps of Parliament House, at which Premier Jay Weatherill declared he would call a review into a string of cases SafeWork had abandoned before going to trial since 2010 – and that there should be a Coroner’s inquest into Castillo-Riffo’s death.

InDaily understands a senior prosecutor from the Director of Public Prosecutions has now been seconded to the CSO to undertake the review.

SafeWork executive director Marie Boland resigned from her post less than a fortnight after the HYLC prosecution was abandoned.

Boland declined to comment other than to say that throughout her time at SafeWork she worked tirelessly to help families affected by workplace injury and that: “I consider that I supported families as best I could to navigate their way through the legal system”.

SafeWork told InDaily in a statement that it: “does not comment on the details of legal advice that informs its decision making, as it is subject to legal professional privilege”.

However, it “will, from time to time, engage private solicitors on matters where it is deemed appropriate – they in turn engage counsel,” the spokesperson said.

“SafeWork SA relies upon the advice received from the firm and counsel engaged to inform its decision making.”

InDaily is not suggesting that the private solicitors or counsel acted inappropriately.

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