Hunter Quarries Ltd v Morrison - [2017] NSWCCA 326

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326
Hearing dates: Before Industrial Court of New South Wales 9, 10, 11 November 2015; Before Court of Criminal Appeal 8, 12 April 2016
Date of orders: 19 December 2017
Decision date: 19 December 2017
Before: Walton J; Rothman J; Harrison J
Decision:
(1)   To the extent possible, leave to raise a ground of appeal relating to authority to prosecute refused.

(2)   To the extent necessary, application to withdraw plea of guilty refused.

(3)   Otherwise, appeal against conviction dismissed.

(4)   Appeal against sentence dismissed.
(5)   Leave to appeal against costs and moiety orders refused.
Catchwords: CRIME – work health and safety – application for withdrawal of plea of guilty and appeal against sentence – relevant principles of withdrawal of plea after sentence discussed – agreed facts below, if accurate, would require conviction – plea insufficiently impugned to warrant withdrawal – application for withdrawal of plea refused – fact findings on sentence open to primary judge – sentence within range – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Industrial Relations Act 1996 (NSW)
Mines Inspection Act 1901 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Supreme Court Act 1970 (NSW)
Work Health and Safety Act 2011 (NSW)
Cases Cited: Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150
Browne v Dunn (1893) 6 R 67
Budrodeen v R [2017] NSWCCA 100
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357
Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority of New South Wales (1999) 90 IR 432
Hunter Quarries Pty Ltd v Morrison (No 4) (2016) 92 NSWLR 1; [2016] NSWIC 4
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of NSW & Anor (2006) 66 NSWLR 151; (2006) 154 IR 310; [2006] NSWCA 172
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672; [1984] HCA 61
Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46
Meissner v The Queen (1995) 184 CLR 132 at 157; [1995] HCA 41
Morrison v Hunter Quarries [2009] NSWIRComm 179
New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339; 159 IR 121
R v Boag (1994) 73 A Crim R 35
R v Chiron [1980] 1 NSWLR 218
R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep)
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Martin (1904) 21 WN (NSW) 233
R v Murphy [1965] VR 187
R v Rae (No 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380
R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216
Reg. v O’Neill [1979] 2 NSWLR 582
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Sagiv v R (1986) 22 A Crim R 73
Shannon v Comalco Aluminium Ltd (1986) 19 IR 358
Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2004] NSWIRComm 202
The Queen v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35
Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65
WorkCover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure T/as Australian Inland Energy and Water [2003] NSWIRComm 408
Texts Cited: Christopher Corns, Public Prosecutions in Australia: Law, Policy and Practice, LawBook Co. Thomson Reuters, 2014
Category: Principal judgment
Parties:
2016/103778:
Hunter Quarries Pty Ltd (Appellant)
Rodney Morrison (Respondent)
2016/114927:
Richard Alexanda Badior (Appellant)
Rodney Morrison (Respondent)
Representation:
Counsel:
2016/103778:
B G Docking (Appellant)
M B J Lee SC/J C McDonald/A H Edwards (Respondent)

2016/114927:
J L Glissan QC/D H Nagle (Appellant)
M B J Lee SC/J C McDonald (Respondent)

Solicitors:
2016/103778:
McDonald Johnson Lawyers (Appellant)
Crown Solicitor’s Office (NSW) (Respondent)
2016/114927:
Peter Evans & Associates Solicitors (Appellant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2016/103778 (formerly IRC 2016/50001); 2016/114927 (formerly IRC 2016/50022)
Decision under appeal

Court or tribunal:

Industrial Court of New South Wales

Citation:

Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179

Date of Decision:

30 October 2009

Before:

Backman J

File Number(s):

IRC 954/2007; IRC 955/2007

Judgment

THE COURT: The appellants appeal against their conviction and sentence recorded and imposed by Backman J of the Industrial Court of New South Wales (“Industrial Court”) on 30 October 2009: Morrison v Hunter Quarries [2009] NSWIRComm 179 (“the primary judgment”). Each conviction is for an offence under the Occupational Health and Safety Act 2000 (NSW) (“the Act”) and each conviction was recorded after a plea of guilty by each of the first and second appellants. The appellants seek to withdraw their pleas of guilty and to quash the conviction against each of them. Each also appeals against the sentence imposed.
The litigation has been somewhat circuitous.

Relevant History of Appeal

Initially an appeal was lodged in the Industrial Court and heard by a Full Court, comprising his Honour Justice Walton, the then President of the Industrial Court, together with Rothman and Harrison JJ, each of whom was appointed pursuant to the terms of s 151B of the Industrial Relations Act 1996 (NSW), as it then existed. On 8 April 2016, the Full Court of the Industrial Court, issued orders, the effect of which was that the Industrial Court did not have jurisdiction to hear and to determine the substantive appeals and the appeals were referred to the Chief Justice for allocation to the Court of Criminal Appeal, comprised in accordance with the Criminal Appeal Act 1912 (NSW).
Chief Justice Bathurst then constituted a Court of Criminal Appeal consisting of Walton, Rothman and Harrison JJ and, in the case of Walton J, then appointed him pursuant to the terms of the Supreme Court Act 1970 (NSW) as a judicial member of the Industrial Court to act as a Judge of the Supreme Court. Since that time, by specific legislation, the then President of the Industrial Court has been appointed a Judge of the Supreme Court.
The matter was listed before the Court for hearing. Because the judicial officers exercising jurisdiction under the Criminal Appeal Act were the same persons as exercised jurisdiction under the Industrial Relations Act, it was unnecessary to adduce the same evidence again and, although the Court invited, without encouragement, further submissions, no party sought the re-agitation of the issues already heard by the Industrial Court, constituted as noted above. Nor did any party seek to adduce any further evidence.
Before dealing, in detail, with the appeal, it is necessary to make some comment as to the manner of its presentation. The original “appeal books” were either compiled without sufficient forethought and planning or were deliberately compiled for the purpose of obfuscation.
After repeated complaints from the Court (which, in this passage, includes both the Court of Criminal Appeal and/or the previously constituted Full Bench of the Industrial Court), the appeal books were “culled”. The reconstituted version of the appeal books and ancillary documentation consists of more than 26 volumes and, in electronic form, over 2 gigabytes of data and over 3 gigabytes with the supplementary documents. Volume 1 of the appeal books consists of five lever arch folders; Volume 2 of the appeal books consists of 12 volumes and no pages are numbered seriatim, even within each volume. Nor were the volumes numbered seriatim.
In an extra-curial comment, Hayne J once remarked to the effect that computers and photocopiers were the greatest incentive to inefficiency in litigation of appeals. Instead of solicitors exercising their competence to copy from trial records those documents that could be relevant, enabling counsel to consider them and thereafter refine the documents further to that which is relevant to the appeal as agitated, the advent of computers and photocopiers has resulted in every document being photocopied and reproduced in “appeal books”, often more than once. These appeals testify to the accuracy of the comments of Hayne J. The exercise of determining that which is relevant to the appeal becomes a burden on the appeal judges when avoided by legal representatives.
Unfortunately, at least in relation to some of the submissions on appeal, both written and oral, the prolixity disclosed in the compilation of the appeal books has been repeated. As a consequence, it falls to the Court to sift through the material and determine that which is relevant in the appeal.

Primary Judgment

This Court is a court of error. The primary judgment was a judgment imposing a sentence for an offence under s 8(1) and, in the case of Mr Badior, a combination of s 8(1) and s 26(1) of the Act after a plea of guilty. The judgment was issued by Backman J and the parties supplied the court below with a set of Agreed Facts. There were also disputed facts below.
Nevertheless, it must be emphasised that her Honour was ultimately dealing with sentence proceedings, not a trial for conviction (“liability”). The proceedings below involved 15 days before the court (two of which were dealing with liability), followed by two sets of written submissions, occurring over some six months. The judgment is 73 pages in length.
Her Honour summarised that part of the Agreed Facts relevant to each of the four allegations particularised in the charges against Hunter Quarries and Mr Badior, respectively. Her Honour divided the facts that she considered relevant into a number of parts dealing with: the haul road and embankment; the truck and its operation; the retardation and braking system of the truck; the truck’s steering; the fatal accident itself; maintenance of the truck; and pre-start checks.
Her Honour summarised the Agreed Facts as follows:

“B. Agreed Facts
4 The factual background about which there has been no dispute has been set out in a document headed Agreed Facts. It records that at about 4:15pm on Tuesday, 14 June 2005, Mr Smith, an employee of Hunter Quarries, was found deceased on an embankment face after the truck he was driving down the haul road at the quarry went over the embankment.
5 I have attempted to extract from the Agreed Facts, the matters relevant to each of the four allegations particularised in the two charges. Those matters are set out below.
The haul road and embankment
6 Material was extracted at the quarry from an area referred to as a bench. The process of extraction involved drilling and blasting at the extraction point in order to break up rock, gravel and overburden which was then loaded by an excavator into an off-road dump truck. On 14 June 2005, material was being excavated from Bench No 3 and Bench No 4. Bench No 4 was located at the top of the quarry. Bench No 3 was located closer to the processing plant.
7 The haul road, approximately 400 metres long, ran from Bench No 4 to the processing plant at a hardstand area which was located at a lower elevation. A Minerals Industry Safety Handbook (the Handbook), published by the NSW Department of Mineral Resources in 2002, was designed to be used by mines, such as Quarries, during the development stage or when operating practices were being reviewed. It was intended to be used by mines to assess risks, develop risk controls, and when implementing or reviewing workplace practices and procedures. With regard to haulage roads, the Handbook stated that unless designed for specific tasks, and taking into account the nature of the travel way and braking system, ordinary trackless wheeled vehicles should be limited to a gradient of 1 in 10 (that is, 10 per cent) when hauling downhill (section 5.11.5.5).
8 Bench No 4 was located at a height of about 47.5 metres above the crushing station. Bench No 3 was about 11 metres below Bench No 4. The haul road had an average gradient of 1 in 5 (20 per cent) with some sections being almost 1 in 4 (25 per cent). On the haul road, at a point after Bench No 3 on the descent, there was a bend to the left. The distance between the bend and Bench No 4 was about chainage 105 (or 105 metres). From about chainage 145 to chainage 170 the road was relatively straight before again turning to the left at about chainage 170. The gradient of the haul road through most of that second bend was about 1 in 5.
9 Berms (also known as bunds or windrows) were barriers used at the quarry. They had two purposes. First, when constructed along the edge of a haul road they were designed to absorb the energy of a runaway vehicle and to prevent the vehicle from leaving the road. Secondly, when placed at a tip head, they were designed to prevent a truck from backing over the face of the quarry when tipping.
10 The Handbook recommended that berms be constructed at a minimum height of half a haul truck wheel height on haulage roads. The Handbook also recommended (at section 5.11.5.5) that:
Berms higher than axle height should be used in more critical areas such as steep grades and sharp curves.

11 The haul road at the Karuah Quarry did not have adequate continuous berms or other measures along the side of the haul road. Some of the berms were less than the recommended height in the Handbook. On the right-hand side of the haul road, in certain places, the berms were not continuous.
12 At about chainage 180, from Bench No 4, was an embankment area which formed a flat area adjacent to the haul road. This area was used primarily to dump large rocks which were pushed over the side of the embankment by a loader. Some concrete blocks formed a cluster on this embankment area. These blocks were not, however, a fit substitute for berms because they lacked the requisite energy absorption characteristics of materials such as sand and soil.
13 The section of road leading down to the embankment which descended at a rate of 20 per cent required, according to the Agreed Facts, adequate measures to reduce or eliminate the obvious risk of a descending truck, out of control, being unable to negotiate the left-hand bend and crossing the short level space and plunging over the embankment. Adequate measures had not been taken, however, and the haul road accordingly had an unsafe design.
The truck and its operation
14 At the time the two Terex TA30 trucks were delivered to Hunter Quarries, Australian Mobile Mining Equipment Systems and Accessories Pty Ltd (AMMESA) personnel provided some training and instruction on the trucks. Mr Smith did not receive this training.
15 The truck involved in the accident on 14 June 2005 was the Terex A30 truck number 28 (the truck). It weighed 21 tonnes when unloaded and was 3.32 metres wide. It was a six-wheel drive articulated rear-dump truck model TA30, series A775.
The retardation and braking system
16 The truck retardation and braking systems consisted of the following:
(a) a hydraulic transmission retarder as the primary form of vehicle retardation when the truck was loaded and descending steep grades;
(b) a service brake system, being a disc and calliper-type brake on each of the six wheels, which required both air and hydraulic pressure to operate. The service brake system was designed to slow the truck in conjunction with the transmission retarder and to be the primary braking system should there be a failure of the transmission retarder system at any operating speed. The service brake system was meant to be capable of bringing the truck to a complete halt at all speeds independently of the operation of the transmission retarder on any grade less than 1:4 (25 per cent);
(c) a park brake, used to hold a truck in a stationary position.
17 The transmission retarder was designed to disengage automatically when either the engine speed exceeded 2,500 rpm or when the engine speed dropped below 1,250 rpm. When the retarder was disengaged, the truck would be in a potentially runaway condition and reliant upon its brakes for any retardation.
18 When engaged, the retarder system operated to slow the truck. Due to the truck’s low gearing it was possible to bring it to almost a complete stop without using the service brakes. Because of this facility, the operators of the truck, prior to the accident of 14 June 2005, would rarely have had to use the service brakes while descending the haul road.
19 The service brakes consisted of:
(a) two separate brake circuits, one for the front two wheels and one for the rear four wheels;
(b) a pressure converter on each brake circuit (‘an intensifier’) which delivered pressurised hydraulic fluid to the six brake callipers. The hydraulic brake force was directly proportional to the air pressure at the intensifier; and
(c) one air reservoir for each brake circuit drawing pressure from a common main air reservoir.
20 The braking system air pressure was charged by start-up of the engine, which drove a pump that generated pressure. That pressure was stored in a main pressure tank, or reservoir, from where the front and rear brake circuits (and other truck systems) were pressurised. The air pressure was then transmitted to a hydraulic system through the two intensifiers, which built up the hydraulic pressure by a factor of about 23; from about 105 psi (pounds per square inch) to 2,400 psi.
21 This system, termed an air-over-hydraulic braking system, delivered the power-assisted force necessary to arrest heavy vehicles. If no pressure was present in either or both the air and hydraulic systems, depression of the foot brake had no effect.
22 The operation of the system would be impaired by the existence of air leaks anywhere within it. When the engine was running the air compressor pumped pressure into the system which according to the Agreed Facts, may or may not exceed the rate of loss of pressure. However, when the engine stopped, the air pressure that remained available to operate the system was provided by the primary and the two circuit pressure tanks, which, in a leak-free system, permitted normal operation of the brakes for some minutes, considered ample time to bring the vehicle safely to a halt. Each depression of the foot brake utilised part of the available air pressure reserve. That reserve time would shorten, and the pressure available would diminish, as air escaped under pressure through any points where the system was leaking.
23 The service and emergency brakes relied for their operation upon the integrity of the air and hydraulic pressure systems. Service brakes were applied by the application of the operator’s foot pedal. Emergency brakes could be applied by a lever in the cabin. The emergency brakes would automatically activate when the air pressure in the braking system dropped to a certain level. According to the Terex maintenance manual, that level was 45 psi, although later testing demonstrated that it was in fact 30 psi.
24 On 28 June 2005, the truck was removed from the quarry and transported by low loader to a workshop owned by Gough & Gilmour Pty Ltd. There it was examined by Ronald Francis Lyle Ainslie, a senior manager employed by Gough & Gilmour. Mr Ainslie’s examination revealed that at the time of the accident on 14 June 2005, the truck had a number of equipment failures which affected the ability of the service and emergency brakes to stop the truck. These included a pre-existing oil leak on the right-hand centre wheel axle bearing that permitted contamination by a build-up of oil on the wheel rim, brake pads, the brake calliper and the brake disc. According to Mr Ainslie the oil leak caused a reduction in the coefficient of friction between the brake pad and brake disc, causing a loss of braking performance on that wheel.

25 The consequences of the pre-existing air leak were that if the air compressor failed or ceased to operate (for example, when the engine stopped) the air available for emergency operation would be less than should be available, and fewer applications of the brakes (both by the driver and by the application of the automatic emergency brake function) would be permitted after the air supply input ceased.
26 Other equipment factors found to affect the ability of the service and emergency brakes to stop the truck at the time of the accident were the presence of a pre-existing air leak on the retarder valve and the faulty park brake which was out of adjustment. In addition, the examination found a pre-existing oil seal failure in the front brake pressure intensifier which allowed brake fluid to escape over time and air to enter the front brake hydraulic circuit.
Steering
27 The truck’s steering was hydraulically operated via the movement of two hydraulic rams which articulated the two front wheels. A hydraulic pump provided hydraulic pressure to the steering system.
28 An emergency steering capability was part of the steering system. Its purpose was to ensure that the truck could be steered while being brought to rest safely in the event of a loss of hydraulic pressure due to a pump failure or other emergency.
29 The steering accumulator provided a reserve of hydraulic pressure for emergency steering. It contained a piston inside a hydraulic cylinder with nitrogen gas on one side of the piston and hydraulic fluid on the other side. Hydraulic steering pressure built up to 2,200 psi, charging the steering system and compressing the nitrogen from 880 psi to 2,200 psi within the cylinder. When hydraulic pressure was lost due to a power failure or other emergency the pressured nitrogen pushed the piston down and maintained pressure in the hydraulic system in order to operate the steering for some minutes. The steering accumulator would only work if there was nitrogen gas in the accumulator. When functioning normally it provided a steering reserve of 1.5 turns of the wheels lock to lock. This equated to six full 360 degree turns of the steering wheel.
30 At the time of the accident, the truck’s cab contained an operator’s manual which was for a different and later model TA30 truck and one in which the steering accumulator had been replaced by a different mechanism. The manual did not therefore contain an illustration of the accumulator or the relevant warnings about the need to dissipate, and the manner of dissipating, its stored pressure.
31 In the cabin of the truck was a low steering hydraulic pressure warning light. When this was lit it indicated low hydraulic steering pressure. When the accident occurred on 14 June 2005, this warning light was not working. A pre-existing broken wire on the low steering pressure warning sender caused the truck’s warning system to fail to signal low steering pressure.
32 Because the accumulator was not functional on 14 June 2005, the truck could not be steered in the event that the primary hydraulic pressure failed for any reason, such as the truck stopping.
Darren Smith’s fatal accident
33 Mr Smith was employed as a plant operator at Karuah Quarry. He commenced employment in February 2005.
34 On 14 June 2005, Mr Smith commenced work at about 6.30am. He operated the truck throughout the day transporting material from both Bench No 3 and Bench No 4 to lower levels of the quarry.
35 Immediately before the accident, Mr Smith drove the truck to either Bench No 3 or Bench No 4 where he backed it up for loading with overburden, consisting of clay, earth and rock. After the truck was loaded, at almost 4.15pm, Mr Smith commenced driving the loaded truck down the haul road in the direction of the crushing plant, en route passing another truck waiting its turn to be loaded.
36 On the descent down the haul road, the truck left the road at a left-hand curve. It crossed the flat area at the top of the embankment and struck some concrete blocks. It then travelled over the embankment, striking it and rolling two or three times before coming to rest at the bottom of the embankment, 20 metres below.
37 The point where the truck left the haul road was about 180 metres distance from Bench No 4 and about 32.6 metres below Bench No 4. From Bench No 3, the distance to the same point was about 105 metres and about 21.2 metres below Bench No. 3.
38 Mr Smith’s body was found on the side of the embankment. It appears that he was thrown from the truck through the front windscreen. It also appears that he had not been wearing a seat belt at the time.
Maintenance of the truck
39 In late 2001, Hunter Quarries entered into an informal arrangement with Marine and Earthmoving Maintenance Services Pty Ltd (MEMS) based in Medowie, New South Wales, to carry out repairs and maintenance to its plant on an on-call basis. Under the arrangement, repairs to and services of the Terex trucks were carried out by MEMS.
40 From March 2004, Mr Boyd Taylor of B&S Plant Repairs was engaged by Hunter Quarries to service and repair the Terex trucks. The arrangement was not subject to a formal contract. Mr Taylor, under the arrangement, attended the quarry when requested to undertake particular tasks. His records showed that the last four services he performed on the truck were all 250 hour services. The last such service was performed one week before the accident.
41 Mr Taylor had no previous experience in servicing Terex off-road dump trucks. He did not possess the knowledge or experience to adequately service the truck or identify defects requiring repair. He was not familiar with the working of the steering accumulator and did not know that it was designed to contain compressed nitrogen gas to enable the truck to be steered in an emergency. Hunter Quarries was aware that Mr Taylor had not previously worked on Terex off-road dump trucks.
42 According to the Agreed Facts, when Mr Taylor performed the last 250 hour service on the truck a week before the accident, the following defects should have been identified:
(a) the failure of the seal in the front brake converter/intensifier. That would have been identified by monitoring loss of brake fluid and cleaning the converter/intensifier, as was required by the manufacturer’s maintenance chart;
(b) the losses of air pressure in the air circuit. These would have been identified by turning the engine off, checking for loss of pressure, and testing the function of the retarder valve;
(c) the loss of gas pressure in the steering accumulator. That would have been identified by carrying out a steering shutdown test or measuring the gas pressure in accordance with the maintenance manual;
(d) the broken warning light on the steering circuit. That would have been identified by checking the operation of the warning systems;
(e) the loss of service brake performance. That would have been identified by carrying out a brake test in accordance with the manual;
(f) the oil leak from the right-hand wheel axle. That would have been identified by visual inspection and checking the brake pads in accordance with the 250 hour service in the manual;
(g) the park brake being out of adjustment. That would have been identified by visual inspection or routine adjustment of the brake in accordance with the manual or by testing for efficiency in the manner described in the relevant Operation’s Manual.
Pre-start checks
43 Karuah Quarry had a Mine Safety Management Plan. It directed that daily inspections of plant and equipment be carried out by the operator and recorded in a checklist.
44 The Handbook stated, in respect of haul trucks, that operators should:
‘conduct a safety check of the truck and test systems before driving. Use a buddy system to test lights.’

45 The Terex truck operator’s manual stated that daily 10-hour checks should be made of the nitrogen gas pressure in the steering accumulator.
46 There were printed checklists available to be used by operators to record the daily inspection of the truck. A book of checklists was found in the truck after the accident.
47 Mr Smith did not complete a pre-start checklist on the day of the accident. Mr Badior was aware that Mr Smith had omitted on prior occasions to complete pre-start checks. He had spoken to Mr Smith about his failure to fill in the pre-start checks in April 2005 but no follow-up action had been taken to ensure it was done. The pre-start sheets recorded only one checklist having been completed by Mr Smith on 4 May 2005.
48 Completion of the pre-start checklist on the day of the accident would have, or should have, identified the following defects:
(a) the loss of brake fluid in the front brake fluid reservoir. This would have been identified by checking the fluid level;
(b) the loss of gas pressure in the steering accumulator. This would have been identified by carrying out a steering shutdown test or by coupling the system to an appropriate gauge;
(c) the broken warning light on the steering circuit. This would have been identified by noticing its failure to illuminate when the ignition was turned on;
(d) the loss of service brake performance. This would have been identified by carrying out a brake test;
(e) the oil leak from the right-hand centre wheel. This would have been identified by visual inspection;
(f) the park brake was out of adjustment. This would have been identified by carrying out a park brake test, by visual inspection of the park brake mechanism, or by investigating the cause of the malfunctioning warning light.”

The primary judgment then dealt with what was said to be facts in dispute, although it seems there was some dispute as to what facts were in dispute before the sentencing judge. Her Honour determined the disputed facts within seven categories: the haul road (Particular A); the truck’s brakes (Particular B); the truck’s steering (Particular B); Darren Smith; sequence of events; pre-start check sheets (Particular C); and maintenance of the truck (Particular D). The reference to particulars is a reference to the particulars of the charges preferred.
Before proceeding any further, it is appropriate to define one term utilised by her Honour (and the parties) in the course of her judgment. Each used the term “berm”, which has a number of ordinary meanings and can refer to a narrow grassed edge to a roadway or the shoulder or ledge alongside a road. In the use by the parties and her Honour it is used in the sense of a shoulder or railing alongside the road and its purpose is a safety barrier. It is sometimes used interchangeably with the term “bunding”, but the terms are different in meaning, although each can serve the same purpose.
Her Honour concluded, at least in part on the basis of the evidence of Mr Sunol, that Hunter Quarries (and Mr Badior as an individual) was in possession of the Handbook (being the Minerals Industry Safety Handbook, Edition 1, July 2002) prior to and at the time of Mr Smith’s accident on 14 June 2005. Her Honour commented that there “was no dispute that Hunter Quarries was aware of the contents of the Handbook”.
Her Honour also concluded, beyond reasonable doubt, that “at the time of the accident the majority of the berms on the haul road were not at or above the recommended height as set out in the “Guidelines for Safe Mining” (the recommended height being in the same terms as that which appears in the Handbook). Her Honour concluded, largely on the basis of the report of Mr Franklin, that there were areas of the haul road in which no berm was evident and that generally the berms that were provided were “low or non-existent”.
Her Honour concluded that the majority of the berms on the haul road “were not at or above the recommended height” in the Guidelines for Safe Mining and the Handbook. Her Honour also remarked that acceptance of the draft report of Dr George Rechnitzer would require a finding that even the recommended height for berms on a haul road is too low to stop a loaded runaway haul truck and would have been inadequate.
Her Honour also concluded that there were parts of the haul road where there were no berms. Her Honour concluded from the evidence of Mr Franklin and of Mr Worden that in the area of the embankment, while there was material that could meet the description of a berm, it was inadequate. In other areas of the haul road, for example in the tipping area, no berm existed.
When her Honour came to deal with the brake performance on the right-hand centre (“RHC”) wheel, her Honour concluded that she could not be satisfied beyond reasonable doubt that the loss of braking performance on the RHC wheel was not less than 70%. However, her Honour did conclude, on the basis of a concession by Mr Richardson and the evidence of Mr Lewis, that the RHC brake was precluded from functioning effectively by the presence of a mixture of oil/grease and grit. Mr Richardson’s concession was that the RHC brake was “virtually useless”, while Mr Lewis’ evidence was that it was “not possible” for the brake “to have provided effective retardation”.
On her Honour’s findings, the effectiveness of the brakes was affected by the level of brake fluid. At [82] of the primary judgment, her Honour said:

“[82] Based on this evidence I am unable to conclude beyond reasonable doubt that the front brake reservoir was completely empty or dry prior to the accident. I nevertheless conclude beyond reasonable doubt, based on the evidence, that the level of brake fluid in the reservoir, prior to the accident, was very low in that it was at least as low as the centre discharge pipe as a result of an internal leak through it, and that this very low fluid level would have rendered the front brakes effectively inoperable prior to the accident.”

There was also, according to her Honour’s findings, a fatigue-type split in the air hose in the front brake air circuit. This conclusion was based on the evidence of Mr Sunol, whom her Honour described as providing the most reliable explanation for the timing of the split in the air hose and was, relevantly, uncontradicted. Her Honour concluded, beyond reasonable doubt, that the leak in the split air hose existed sometime before the accident and, on that finding, it was agreed that if there were such a leak prior to the accident, it would have impaired the operation of the air-over-hydraulic braking system.
There was also, on her Honour’s findings beyond reasonable doubt, a pre-existing leak in the retarder valve which would have caused a further reduction in air pressure and a resultant loss of braking performance.
The emergency braking capacity of the truck was also affected by the fact that the park brake was out of adjustment, on her Honour’s findings, by 73 mm extension of the actuator and, as a consequence, it would have provided no brake force at all for the truck on the haul road at the time of the accident.
Her Honour concluded that, if the engine on the truck were to have stopped functioning on the truck’s descent (for whatever reason) and the retarder disengaged, then, with only three effective brakes and the loss of air pressure, “the truck could not have been brought to a halt on the haul road and would have been in a runaway condition”: (primary judgment at [112] and see [110]-[111]).
Her Honour then suggested (primary judgment at [119]) that the truck engine had ceased operating before the truck plunged over the embankment, after which her Honour dealt with the theories as to other reasons the truck could be travelling fast and dismissed them as being unavailable on the evidence: (see, for example, primary judgment at [127]); and finally, her Honour concluded, beyond reasonable doubt, that the engine on the truck stopped at some point when the truck was descending the haul road: (primary judgment at [132]). Her Honour also dismissed the proposition that Mr Smith was affected by diphenhydramine or ibuprofen, each of which were found in Mr Smith’s blood tests and dismissed the proposition that, because Mr Smith had been working since 6:00am, was overweight and engaged in repetitive tasks, he engaged in a “micro sleep”.
Her Honour then considered the reasons the engine stopped, having concluded, beyond reasonable doubt, that the engine had stopped. Her Honour analysed the evidence of Mr Sunol and Mr Smith (the experts qualified for the Prosecution and the defendants, respectively) and concluded, on the balance of probabilities, having already found beyond reasonable doubt that the engine had ceased operating, that the truck had insufficient fuel left in the tank to allow the truck engine to continue to operate: (primary judgment at [169]).
Her Honour found, beyond reasonable doubt, that the nitrogen gas pressure can be checked using a simple gauge mechanism, being a particular pleaded by the Prosecution in the charge: (primary judgment at [117]), and, at least from March 2004, such checks were not performed: (primary judgment at [176]).
The contest in relation to whether tests can be performed in a particular way or were performed by manually testing the steering, while interesting, relates to the question of whether the emergency steering accumulator on the truck was or was not functional at the time of the accident on account of it containing no nitrogen gas. The defendants agreed, before her Honour, that the accumulator was not functional on the day of the accident.
The Prosecution maintained this was as a result of the fact that it contained no nitrogen gas. Her Honour, after analysing the evidence from experts, determined that the evidence showed “conclusively” that there was no nitrogen gas in the accumulator and made that finding, beyond reasonable doubt. The lack of nitrogen gas was due to the absence of maintenance by Hunter Quarries.
The completion of daily pre-start checklists was the subject of discussion by her Honour. It was noted that the deceased only ever completed one checklist, being on 4 May 2005. No checklist was completed on the day of the accident.
The absence of pressurised gas in the accumulator of the truck would have been obvious if a pre-start check had been completed. Further, the low-pressure steering warning light was faulty and not working.
Her Honour concluded, beyond reasonable doubt, that Mr Smith failed to carry out any tests on the operating condition of the steering accumulator on any date relevant to the accident. Her Honour ultimately concluded that she was “not satisfied beyond reasonable doubt that none of the operators of the truck, who operated in the weeks prior to the accident, was either not informed of the means by which the continued operation of the steering accumulator could be tested or did not actually conduct that test”: (primary judgment at [195]).
The manner of the expression of that conclusion must be understood in the context of the Prosecution’s particular of charge, namely, that the appellants had failed to provide information, instruction, training and supervision necessary to ensure employees’ health and safety at work and by Particular C(ii) by failing to instruct and train drivers as to the existence and importance of the emergency steering accumulator and their functionality and/or did not ensure that the test was conducted. In other words, her Honour found against the Prosecution on that aspect of the particular offence.
Her Honour found that the accident caused Mr Smith to suffer multiple injuries from which he died. Those injuries would have “rapidly and inevitably” led to death.
If not already clear from the foregoing summary of her Honour’s reasons for judgment, her Honour concluded that the probable explanation for the engine stopping while travelling on the haul road was that it ran out of fuel: (primary judgment at [206]). Based on the pre-check procedure, already described, and the absence of any completed forms, her Honour concluded that Hunter Quarries failed to take steps sufficient to ensure that operators undertook daily pre-start checklists on each occasion they drove the truck.

Were they to have completed those pre-start checklists, many of the faults described in her Honour’s judgment would have been identified. Her Honour took the view that the pre-start checklist was adequate, if followed: (primary judgment at [216] and [212]).
Her Honour also concluded that Hunter Quarries (and Mr Badior) were aware that maintenance of the truck was not being done in accordance with the maintenance manual and did not take steps to remedy that situation: (primary judgment at [221]). Having dealt, at length, with the disputed facts, her Honour summarised her conclusions as to the facts the Prosecution established beyond reasonable doubt, despite contest, in the following way:

“[222]    In summary, I have found established by the prosecution, beyond reasonable doubt, the following disputed facts:
(1)    Hunter Quarries was in possession and aware of the contents of the Minerals Industry Safety Handbook prior to 14 June 2005;
(2)    The majority of the berms on the haul road were not at or above the recommended height of half the wheel height of the Terex 28 truck;
(3)    There were parts of the haul road where there were no berms (that is, they were not continuous);
(4)    The presence of the oil mixture on the right-hand centre brake precluded it from functioning effectively;
(5)    The level of brake fluid in the front brake reservoir was very low in that it was at least as low as the centre discharge pipe as a result of an internal leak through it, and this low fluid level operated to render the two front brakes effectively inoperable;
(6)    There was a pre-existing air leak on the front brake air circuit from a split in the air hose which affected the pressure in the main air reservoir.
(7)    The pre-existing leak on the retarder valve would have caused a further reduction in air pressure and a resultant loss of braking performance of the truck.
(8)    The extent to which the park brake was out of adjustment would have removed the capacity of the park brake to hold stationary the loaded truck on the haul road and would have provided no braking force in the event of an emergency.
(9)    Because of equipment defects at the time of the accident, only three of the disc brakes were working to their design capacity and the performance of those three brakes was reduced due to the air leaks in the braking system.
(10)    On the day of the accident, had the engine failed for any reason while descending, the air compressor would have ceased to operate, the retarder would have disengaged, and within a very short period the air pressure in the braking system would have dropped to a point where the brakes could not bring the truck to a halt.
(11)    The Terex maintenance manual states that nitrogen gas pressure can be checked using a simple gauge mechanism.
(12)    No checks of the nitrogen gas pressure (in accordance with the Terex maintenance manual, using a gauge) were conducted after March 2004.
(13)    At the time of the accident, the emergency steering accumulator was not functional as it contained no pressurised nitrogen gas.
(14)    The loss of nitrogen gas was due to the absence of maintenance.
(15)    Mr Smith failed to carry out tests on the operating condition of the steering accumulator, apart from one test performed by him on 4 May 2005.
(16)    Mr Smith suffered multiple injuries that would have rapidly and inevitably lead to death.
(17)    The retarder disengaged while the truck was descending the haul road. This did not occur because the truck “overrevved” or because of oil overheating.
(18)    The blue mark on the left-hand rear disc was caused by the brake being superheated by its application prior to the truck becoming airborne.
(19)    Since the brakes were applied while the truck was descending, it follows that Mr Smith was not consciously or unconsciously accelerating and by so doing deactivating the retarder since he could not have been both braking and accelerating.
(20)    The engine stopped while Mr Smith was descending the haul road immediately before the accident.
(21)    There was damage to the radiator and radiator fan consistent with the engine having stopped prior to the impact on the embankment.
(22)    Upon the retarder disengaging, the truck was in a runaway condition and as a consequence of the engine stopping, had no effective steering (because the accumulator was not functional).
(23)    Hunter Quarries failed to take sufficient steps to ensure operators undertook daily pre-start check sheets on each occasion that they drove the Terex trucks.
(24)    Completion of the pre-start checklist on the day of the accident would (or should) have identified the following additional defect: the loss of air pressure in the air circuit.
(25)    The defendants knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance Guidelines and requirements.”

In the primary judgment, her Honour discussed the principles associated with an offence under s 8(1) of the Act, albeit briefly, and described Mr Smith’s death as having manifested the degree of seriousness of the relevant risk to safety. Her Honour also made clear that the statutory obligations did not depend upon the occurrence of an accident and included an obligation to ensure the safety of all workers, even those that are reckless, careless, inattentive or disobedient: (primary judgment at [247]). Her Honour also concluded that the risk to safety was reasonably foreseeable and that remediable steps to ameliorate the injury were available and, in the circumstances, relatively inexpensive.
Her Honour then discussed the application of these facts to some of the principles on sentencing, including specific and general deterrence; the degree of discount for the plea of guilty; whether there have been post-accident changes to the safety systems in force at the quarry and, in that regard, analysed both the pre-accident and post-accident system; the prior record of the appellant; cooperation and assistance in the investigation and to the deceased’s family; contrition; because the penalty was to be a fine, the capacity of the appellants to pay; took into account victim impact statements; the maximum penalties applicable to each of the appellants; and whether the court should exercise its discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Finally, her Honour issued orders of the Industrial Court recording the convictions against each appellant and fining Hunter Quarries $214,500 (with a moiety to the Prosecutor) and on Mr Badior of $21,450 (also with a moiety to the Prosecutor). A subsequent judgment dealt with the issue of costs.

Grounds of Appeal

As earlier indicated, the appeals were lodged in the Industrial Court and are in that form. As a consequence the Amended Notice of Appeal identifies “Matters appealed against”. It seems, notwithstanding that identification, that the whole of the judgment and orders of her Honour is the subject of appeal. Nevertheless, the matters against which an appeal is raised are identified in five (5) paragraphs and relate to:

her Honour’s acceptance of the appellants’ guilty plea;

her Honour’s acceptance of “wrongly received” Prosecution expert reports in evidence and [her Honour’s] reliance upon such evidence;

the recording of the conviction of an offence;

the fine (although it is not clear whether this relates to the imposition of the fine or the amount of the fine) and the moiety;

the costs order.

The “Matters appealed against” include a sixth matter described as “[S]uch other matters as this Court deems fit”. It is not immediately apparent why the Court would deem a matter fit to be appealed against as the Court is not a party to the proceedings.
There are then nine (9) questions said to be raised by the appeal, which it is unnecessary to recite, but one of which again includes “Such other questions as this Court deems fit”. As to that last “question raised”, the earlier comment relating to matters appealed against is repeated.
The Notices of Appeal then set out grounds for claiming an extension of time, which had been extended on 17 June 2013 and in Part H of the Notices, sets out the Grounds. Those grounds of appeal, as amended and renumbered, are as follows:

H. Grounds of the Appeal are:
1.    The prosecution failed to disclose material or evidence to the Appellant contrary to the prosecution’s obligation of disclosure and/or duty of fairness.
2.    There was a deliberate non-disclosure or suppression of material or evidence by the prosecution arising from the policy reflected in the “Mine Safety Investigation Manual” in relation to “Examining the department’s role leading up to the incident”, which policy was at all material times located on the “NSW DPI Intranet”.
3.    Prosecution expert reports that were tendered by the Respondent offended the following propositions:
a)    Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation.
b)    Solicitors and counsel must not settle the evidence of an expert.
c)    Lawyers should not be involved in the writing of reports by experts in relation to the substance of the reports.

4.    Prosecution expert reports and evidence did not comply with rules and tests of admissibility and were therefore wrongly received or should have been afforded no weight.
5.    Prosecution evidence was admitted despite the prosecution being unable to prove chain of custody or continuity and was therefore wrongly received or should have been afforded no weight. .
6.    The prosecution did not at all or adequately investigate material matters that weakened and undermined the prosecution’s case or would tend to assist the defence case.
7.    In the running of the trial and then sentence, there were failings and errors of counsel representing the Appellant that comprise material irregularity and/or incompetency and there is a significant possibility that they affected the outcome.
8.    Any of the above grounds taken singularly or in any combination constitute a miscarriage of justice.
9.    Her Honour erred in making findings on sentence.
10.    The Respondent did not have a valid authority or power to prosecute.
11.    Such other grounds as this Court deems fit.

The foregoing grounds are derived from the Notice of Appeal of Hunter Quarries. The numbering has been altered. The Notice of Appeal for Mr Badior is in similar terms, although not identically numbered.
Also filed in the Court was a document that the Industrial Court directed be provided, entitled “Joint Position on Issues Requiring Determination”. The grounds of appeal in the last mentioned document, being a document filed some days earlier than the Amended Notices of Appeal, are in the following terms:

“1.    The prosecution failed to disclose material or evidence to the Appellant contrary to the prosecution’s obligation of disclosure.
2.    The prosecution expert reports were inadmissible, wrongly admitted or otherwise should not have been afforded any weight.
3. The conduct of Counsel and advice tendered to the appellant below establishes that the plea was not attributable to a genuine consciousness of guilt: (R v Hura (2001) 121 ACrimR 472).
4.    Her Honour made erroneous findings on sentence.”

As can be seen from the foregoing, the first three grounds relate to the withdrawal of the plea and/or the conviction, except that the Prosecution expert reports that are alleged to have been admitted wrongly were admitted in the course of the sentence proceedings, the conviction proceedings having been concluded. Otherwise Ground (4) alleging “erroneous findings on sentence” is wholly un-particularised.

Chronology

Helpfully, the parties have submitted a Joint Chronology, the relevant aspects of which are in the following terms (although some entries have been altered and others omitted if not sufficiently relevant):

14 June 2005

Truck accident at Kuruah Quarry and the driver and the driver and employee of Hunter Quarries killed.

5 June 2007

Applications for Orders filed against Hunter Quarries (No. 695/2007); Mr Badior (No. 955/2007); Mr Chevalley (No. 956/2007) and Mr Grugeon (No. 957/2007)

15 February 2008

Messrs Chevalley and Grugeon enter pleas of not guilty

12 March 2008

Hunter Quarries and Mr Badior enter pleas of not guilty.

7 October 2008

Summary trial against all four defendants commences before Backman J.

9 October 2008

Amended Application for Order against all four defendants filed in Court by consent and Hunter Quarries and Mr Badior amend their pleas to guilty.

30 October 2009

Sentencing Judgment delivered by Backman J – Morrison v Hunter Quarries Pty Limited [2009] NSWIRComm 179.

12 November 2009

Orders for costs made against Hunter Quarries and Mr Badior.

25 March 2010

Hunter Quarries files an Application seeking an order to extend time to see Leave to Appeal and Appeal (No. 215 of 2010).

17 November 2010

Mr Badior makes an application to extend time to seek leave to appeal and appeal on the same grounds as Hunter Quarries (No. 1320 of 2010).

11 February 2011

Mr Badior files Amended Application for Leave to Appeal and Appeal adding as an additional ground the invalidity of s 26 of OHS Act.

23 March 2012

Applications for leave to appeal and appeal filed by Hunter Quarries and Mr Badior discontinued by consent with no order as to costs.

6 August 2012

Certificate of Determination of Costs issued against Hunter Quarries and Mr Badior in the sum of $534,659.17.

2 October 2012

Certificate of Determination registered as a judgment of the District Court of New South Wales.

22 October 2012

Proceedings against Messrs Chevalley and Grugeon dismissed.

1 November 2012

Hunter Quarries files a Notice to Appeal and Application to Extend Time to Appeal.

5 November 2012

Mr Badior files Notice to Appeal and Application to Extend Time to Appeal.

10 December 2012

The Prosecutor undertakes not to take any steps to enforce the District Court judgment until either 30 March 2013 or the delivery of a decision on the appellants’ application for an extension of time in which to appeal, whichever occurs first, upon the provision of:

1. confirmation that Hunter Quarries Pty Ltd is continuing to trade and has not and will not divest itself of any assets otherwise than in the ordinary course of business; and

2. a personal guarantee from both Mr Chevalley and Mr Grugeon that they will pay the judgment debt owed by Hunter Quarries Pty Ltd and Mr Badior.

...

13 February 2013

Extension of time proceedings before Industrial Court

...

17 June 2013

Extension of time granted: Hunter Quarries Pty Ltd v Morrison (2012) 219 NSW IR 193; [2013] NSWIRComm 49.

...

14 November 2014

Industrial Court makes a direction, inter alia, that the application to adduce fresh evidence or new evidence on appeal and to withdraw the pleas of guilty to be heard at the same time as the hearing of the substantive appeal.

...

12 March 2015

Joint Position of Issues Requiring Determination filed.

…

19 March 2015

Appellants file Amended Notices of Appeal.

Withdrawal of Plea on Appeal: Principles

The statutory jurisdiction exercised by the Court of Criminal Appeal requires appeals, generally, to be dealt with pursuant to the terms of s 6 of the Criminal Appeal Act. Relevantly, where there has been a plea of guilty accepted by the court below, that would require that this Court be satisfied that there was “a miscarriage of justice”. Otherwise, the Court is required to dismiss the appeal.
The foregoing allows for an exception relating to the acceptance of a plea of guilty. A ground of appeal may arise where the acceptance of the plea of guilty involved the court below in a “wrong decision of any question of law”.
The circumstances in which the Court of Criminal Appeal will allow an appeal against conviction arising from a plea of guilty have been discussed on a number of occasions. From those discussions a number of principles can be gleaned.
A person may plead guilty to an offence in circumstances where the grounds upon which that plea is entered, extend beyond that person’s belief in his guilt: Meissner v The Queen (1995) 184 CLR 132 at 157; [1995] HCA 41, per Dawson J. As has been explained, a person may plead guilty to avoid the worry of proceedings, the inconvenience or expense of proceedings, the avoidance of publicity, the protection of his family or friends, or in the hope of obtaining a more lenient sentence than would be imposed if the person were convicted after trial and a plea of not guilty.
However, when a person enters a plea of guilty, that person admits to all of the elements of the offence (at least to the minimum level necessary for a conviction) and the conviction will not be set aside unless it can be shown that a miscarriage of justice has occurred; and R v Chiron [1980] 1 NSWLR 218.
The rarity with which this Court grants leave to withdraw the plea of guilty at trial is, in part, caused by the public interest in the finality of proceedings and because the plea, itself, is an admission of all the minimum elements of the offence: Reg. v O’Neill [1979] 2 NSWLR 582. Ordinarily, a change of plea will be allowed only where the plea itself is impugned.
Thus, the Court will grant leave to withdraw an appeal where: the nature of the charge to which the plea has been entered is not appreciated (R v Ferrer-Esis (1991) 55 A Crim R 231 at 233); the plea is not “a free and voluntary confession” (R v Chiron at 220); the “plea [is] not really attributable to a genuine consciousness of guilt” (R v Murphy [1965] VR 187 at 191); there are other circumstances, such as “mistake, affecting the integrity of the plea as an admission of guilt” (Sagiv v R (1986) 22 A Crim R 73 at 80); the plea has been “induced by threats or other impropriety” and the appellant would not otherwise have pleaded guilty (R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep), per Hunt CJ at CL, Grove and Allen JJ); and the plea is not unequivocal or is made in circumstances suggesting it is not a true admission of guilt (Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46).
There are other particular examples of circumstances that have allowed for the withdrawal of a plea of guilty, but, generally, they are particular instances of the foregoing circumstances. The appellants relied, significantly, on the circumstance that there was not a genuine consciousness of guilt. However, that term, where used in this context, has a different construction and connotation to the same expression used to attribute to an accused a circumstance contributing to a finding of guilt, such as lies or flight.
As is clear from the passage from the judgment of Dawson J in Meissner v The Queen, a Court will not allow the withdrawal of a plea of guilty, simply because the person, in truth, may not be guilty (or believes that to be the case). Nevertheless, the person who pleads guilty must know the nature of the charge preferred and that the person is acknowledging guilt for the charge, whatever be the purpose of such acknowledgement.
The issue has been described as one that is determined on the basis of the “integrity of the plea”: R v Rae (No 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 at [21]. The discussion of the Court, and, in particular, Beazley P in Budrodeen v R [2017] NSWCCA 100 at [18]-[23] summarises the principles applicable.
In Maxwell v The Queen, at [20], Dawson and McHugh JJ, citing R v Martin (1904) 21 WN (NSW) 233 with approval, make clear that even where a judge suggests to an accused that a plea of not guilty should be given, if the accused declines to do so and insists upon pleading guilty (so long as the person evidently knows what the plea is about), the judge cannot interfere. By the same token, a judge is not entitled to take a conditional plea of guilty.

It has long been the case that the law grants to the Prosecution alone the discretion as to the charge to be preferred; to the accused alone as to the plea to be entered; and to the Court alone as to the sentence to be imposed.
Two further issues arise. First, it is for the person or persons seeking to withdraw the plea of guilty to satisfy the Court that leave to withdraw the appeal should be granted: R v Boag (1994) 73 A Crim R 35; R v Ferrer-Esis.
Secondly, it is only where the material before the Court discloses a real question as to the guilt of an accused that the Court will grant leave to withdraw the plea and/or allow the appeal: R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216. In the absence of some real question or doubt as to the guilt of the accused, it cannot be said that there is or has been a miscarriage of justice. The reasons for judgment in Toro-Martinez, also deal with the wrongful reception of evidence, upon which, the appellants rely. The wrongful reception of evidence issue shall be discussed later in these reasons.

Elements of the Offence: Occupational Health & Safety Act

The provisions governing the right of appeal to the Court of Criminal Appeal from the conviction and sentence recorded and imposed by the Industrial Court on the appellants has already been the subject of analysis in the jurisdictional judgment: Hunter Quarries Pty Ltd v Morrison (No 4) (2016) 92 NSWLR 1; [2016] NSWIC 4. The transitional provisions promulgated to govern the alteration in jurisdiction apply to this appeal and the appeal from the Industrial Court of New South Wales is governed by the now repealed s 5ABA of the Criminal Appeal Act, which extends the operation of s 5AA of the Criminal Appeal Act to this appeal.
Section 5AA of the Criminal Appeal Act provides for a right of appeal by a person convicted of an offence against that conviction (including any sentence imposed) and against an order for costs. Only an appeal against an order for costs requires leave.
The provisions of s 5ABA of the Criminal Appeal Act have now been repealed. Nevertheless, the transitional provisions render the terms of the repealed s 5ABA applicable. The offences arise under s 8(1) of the Act and, in the case of Mr Badior, s 26(1) of the Act. The Act has been repealed and replaced by the Work Health and Safety Act 2011 (NSW), but the accident and the breaches, having been alleged to have occurred in 2005, are governed by the provisions of the previous Act, namely, the Act as defined in these reasons.
The obligation imposed by s 8(1) of the Act is in the following terms:

“8(1)    An employer must ensure the health, safety and welfare at work of all of the employees of the employer.
That duty extends (without limitation) to the following:
(a)    ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,
(b)    ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,
(c)    ensuring that systems of work and the working environment of the employees are safe and without risks to health,
(d)    providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,
(e)    providing adequate facilities for the welfare of the employees at work.”

The provisions of s 26 of the Act are:

“26    Offences by Corporations - Liability of Directors and Managers
(1)    If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each Director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the Director or person satisfies the court that:
(a)    he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(b)    he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or convicted under that provision.
(3) ...
(4) ...”

As has been determined by the Industrial Court, the realisation of a risk by the occurrence of an accident is not a precondition to liability under s 8 of the Act: see Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 in the High Court at [13]; Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [111] and [123]. The appellants in these proceedings do not submit otherwise.
A defence is established by the provisions of s 28 of the Act. That defence is worded unusually and, once again, has been the subject of much discussion since the provisions were first promulgated. The defence in s 28 of the Act is in the following terms:

“28    Defence
It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:
(a)    it was not reasonably practicable for the person to comply with the provision, or
(b)    the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.”

The unusual nature of the wording is that s 28 of the Act requires a defendant to proceedings, on its face, to bear the burden of proof and not simply to prove that a particular step was “not reasonably practicable”, but that compliance with the provision was not reasonably practicable. The provision is a reference, relevantly, to s 8 of the Act, requiring, in this case, the employer to “ensure” safety at work of the employer’s workers.
Alternatively, the employer, in relation to a contravention of s 8 of the Act, is required to prove that the inability to “ensure” the safety of workers was due to causes over which the person had no control, together with the impracticability of provision to prevent the happening of any such event.
On one view, at least, the provisions of s 28(b) are internally inconsistent. If the commission of the offence was due to causes over which the person had no control, how could the person make provision against its happening, whether impracticable or otherwise?
None of these issues is the subject of submissions by the appellants and, on direct questioning of counsel for Hunter Quarries, it was not suggested that there had been any alteration in the principles to be adopted for the last 10 or 12 years and that it was unnecessary for the Court to examine the correctness of those principles.
Given the acceptance by the appellants of the principles established by the Industrial Court, or its predecessors, as to the operation and construction of the offences and the defences under the Act (or those statutes that it replaced), it is unnecessary for the Court to examine afresh those principles, or comment on their correctness.
The Industrial Court has long held that, as a matter of general principle, offences such as those prescribed by s 8 of the Act impose an absolute liability on employers, subject always to any defence that may arise and which must be proved by the defendant in any such proceedings: see Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467; Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority of New South Wales (1999) 90 IR 432; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358; WorkCover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure T/as Australian Inland Energy and Water [2003] NSWIRComm 408.
As earlier stated, the occurrence of an accident or injury is not a precondition to the prosecution of an employer (or other person involved in the management). At the same time, it is necessary, in order to establish a breach, that the particular conduct that was undertaken to cause the risk, or, for that which was not undertaken to prevent the risk, to be particularised so that any defendant is aware of the case which it must meet: Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of NSW & Anor (2006) 66 NSWLR 151; (2006) 154 IR 310; [2006] NSWCA 172; Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339; 159 IR 121; and Kirk v Industrial Relations Commission of New South Wales.
Nevertheless, the test is whether that which was done or not done caused the employer to put the safety of employees at risk. The duty is non-delegable: Kirk v Industrial Relations Commission of New South Wales at [10] and [12]; Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672; [1984] HCA 61.
Thus, the occurrence of an accident is relevant to the liability of an employer in a very limited way. It may be relevant (assuming foresight) to the existence of a risk and the particular accident may be relevant to disclose the seriousness of the consequences of failing to take steps to ameliorate the risk.
The difficulty, however, is that a risk, once foreseen, must be eliminated, as distinct from ameliorated, if the words of s 28(a) of the Act are to be given their ordinary meaning. Section 28(a) of the Act requires that it was not reasonably practicable to comply with the provision (i.e. relevantly, s 8 of the Act).
Of course, ordinarily a step taken to ameliorate, but not prevent, a risk would suggest that no other reasonably practicable step is available to ensure safety. The Industrial Court has previously held that breach of the Act (s 8, its predecessors and successors) occurs when a step is not taken that ameliorates risk.
Again, the appellants do not submit that the Court should take any step other than apply the principles that have previously been adumbrated by the Industrial Court in this area. In those circumstances, it is inappropriate to reconsider past principle, as obiter, because these offences relate to provisions that have been wholly repealed and significantly affected by the provisions that replace them.
Under the current regime, the offence requires the employer, or person conducting the business undertaking, to ensure the health and safety of workers only so far as it is reasonably practicable and the test of reasonable practicability is an element of the offence. No longer is “reasonable practicability” a defence to an offence of absolute liability: s 19 of the Work Health and Safety Act.
It is relevant to reiterate that an offence, under the Act, will occur irrespective of whether there has been an accident. Further, the measures taken (or not taken) that breach the duty imposed upon an employer may or may not be causative of injury, but will still involve a breach of the Act.

Evidence

Pursuant to the directions of the Industrial Court, the evidence-in-chief in these proceedings was by affidavit. The appellants rely upon affidavits of Mr Chevalley and Mr Badior. Mr Chevalley is a Director of Hunter Quarries and swore two affidavits sworn 6 March 2015 and 9 March 2015. The appellants, and in particular Mr Badior, also rely upon the affidavit of Mr Badior sworn 6 March 2015. Each deponent was the subject of cross-examination.

The Preliminary Advice

Before dealing with the evidence of Mr Chevalley, it is probably appropriate to deal with the Preliminary Advice. It is unnecessary to repeat all of the content of the Advice or summarise it.
The Preliminary Advice was, as earlier stated, provided on 25 September 2007. It was provided on the letterhead of the instructing solicitors and the file identification reflects the initials of the senior associate who had primary carriage of the matter.
The Preliminary Advice commences with an Executive Summary that sets out the chronology of the Prosecution, and the next Directions Hearing and advises, in summary form, that the information contained in the Prosecution Brief of Evidence is such that the Prosecutor can succeed in establishing that Hunter Quarries breached s 8(1) of the Act. The Preliminary Advice makes clear, in the summary, as well is in the body of the advice, that whether Hunter Quarries has a defence under the Act will depend upon information provided by Hunter Quarries and requested in Annexures A and D of the Preliminary Advice.
The Advice suggests that the determination of the plea depends upon the material provided by Hunter Quarries and, if that material were sufficient to “substantiate a defence”, then a plea of not guilty to the charges ought to be entered. On the other hand, if the material would be insufficient to substantiate a defence then the legal team recommended that “negotiations be entered into with the Prosecutor with a view to entering a plea of guilty to a suitably amended charge”.
The summary also refers to the charges against each of the Directors under s 26(1) of the Act to the extent they are “concerned in the management of the Corporation”. In both the summary and in the body of the Advice, the nature of the defence for a Director is described in uncontroversial terms. The legal representatives sought particular information relating to the Directors, which information is particularised in Annexure AA of the Preliminary Advice.
The Preliminary Advice then describes the circumstances of the incident in relatively uncontroversial terms and without apportioning causation or fault. It also sets out the charge and the particulars, as pleaded against Hunter Quarries. Further, the Preliminary Advice refers to the expectation the lawyers have of the Industrial Court, which description is, in reality, a statement of the legal principles adopted in relation to such charges.
The Advice refers to the expectation that employers must exercise “abundant caution, maintain constant vigilance, take all practical precautions to ensure safety in the workplace, be proactive and not reactive” for which statements, it provides authority. Further, it makes clear that errors or negligence of an employee may affect culpability for sentencing purposes, but does not, of itself, exempt the employer from its obligations. In that regard, employers are required to ensure that employees are supervised adequately and educated appropriately as to the issues associated with their health and safety, including their own health and safety.
The statement of principles, including the recitation of particular authorities, is unremarkable and accurate. It is also compendious.
The Preliminary Advice also then deals with the onus of proof in both the establishment of a charge and the establishment by any one or more of the defendants of a defence that might exist. Again, unremarkably, it states the Prosecution must prove the offence beyond reasonable doubt and any defence upon which the defendants rely must be established on the balance of probabilities.
In Chapter 4 of the Preliminary Advice, the legal representatives deal with the charges and particulars against Mr Badior and in the course of so doing recite the terms of s 26(1) of the Act and deal with the defences available (paragraph 4.5). If any criticism can be made of the Preliminary Advice, in this section, it is that the legal representatives refer to the situation where Hunter Quarries were found guilty or were to enter a plea, and that it would have the consequence that “Mr Badior, as a Director of Hunter Quarries, would be deemed guilty of the same breach”.
The Act contains no deeming provision. Even if Hunter Quarries or any Corporation were to plead guilty to an offence, it is still an element of a charge against a Director or person engaged in the management of Hunter Quarries that Hunter Quarries is guilty and the guilt of Hunter Quarries would be required to be proved in the Prosecution of the particular Director or person involved in the management.
Nevertheless, if the Prosecution are capable of proving guilt of Hunter Quarries in one set of proceedings, it is more than likely that they would be able to prove guilt in another set of proceedings, particularly if the proceedings were heard together. Lastly, the criticism to which the foregoing refers relates to the terminology utilised, rather than the practical effect.
Similar advice is given to each of Mr Chevalley and Mr Grugeon, but for present purposes it is unnecessary to detail those aspects.
At Chapter 7 of the Preliminary Advice, the legal team analyses each of the particulars and the evidence that supports the particular from the Prosecution brief on evidence. It sets out in detail the provisions of the Minerals Industry Safety Handbook that prescribe (or recommend) considerations in keeping a haul road safe.
Those considerations include the width of the roadway; the curvature of the road; that the road should be kept damp in order to settle dust; regular watering and grading of the roadway; adequate berms or guard rails on elevated roadways, which should be “higher than axle-height” in more critical areas such as steep grades and sharp curves; and certain other aspects.
There is a reference to the necessity to consider the quarry plan relating to a potential runaway, rollover and steering problems and whether the design of the road took such matters into account. Further, there is a reference to particular questions and answers relating to workplace audits which, on their face, may be an admission of sufficient facts to render Hunter Quarries liable.
Indeed, the Preliminary Advice summarises the details of statements by persons relating to the driving of trucks at the quarry. There is further reference to the statements in relation to the bunding (that is, relevantly, the provision of berms from particular material), the grading of the roadway and the existence of a 90 degree bend. There is also a reference to the width of the haul roads and the existence of signage for the drivers.
There is then a reference to the particulars relating to the truck, to which reference has already been made, and details relating to the servicing of the truck and its condition. There is also a summary of statements made to the Department of Primary Industries (“the DPI”) on these issues and on the issue of the training, if any, that occurred.
The Preliminary Advice deals with statements already given to the DPI in relation to pre-start checks and the training for that purpose, the emergency steering system, refuelling and supervision. The last mentioned aspect seems to confirm that which is otherwise uncontroversial, namely, that Mr Badior was the direct supervisor and hands-on manager of the workplace.
In Chapter 7.4, the Preliminary Advice deals with the evidence available relating to the system of work, including the operation of trucks, the servicing of trucks, the refuelling system, the maintenance management system, the training of staff and the operation of trucks with alarms or warnings activated and refers, specifically, to a risk assessment relating to the transporting of quarry product at Bench number four.
Chapter 8 deals with the expert evidence in the Prosecution brief. The first report to which reference is made in the Preliminary Advice is the report commissioned by the DPI from Mr S Franklin (the KRC report), on which the legal representatives expressed views concerning: the condition of the haul road at the time of the accident; the design of the haul road measured against industry best practice; whether the truck was operating within the manufacturers grade Guidelines and other issues relating to the safe operation of the truck; and the condition of the haul road as against those found at other Australian Quarries; the findings of the KRC report were to the effect that Hunter Quarries did not apply the recommendations of the Guidelines for Safe Mining in relation to haul road width (roads were single lane or less); provision of berms along haul roads (berms were low or non-existent; generally non-existent); and traffic signage.

The parties, being the current appellants and the Prosecutor below, executed Agreed Facts. In summarising the primary judgment, many of those agreed facts have been summarised because they are part of the judgment of the Industrial Court.
Those agreed facts are an express admission of facts that give rise to the criminal offences for which Mr Badior and Hunter Quarries were found guilty. They do not amount to an express admission of all of the matters determined by the Industrial Court as relevant to the question of culpability and, in particular, the agreed facts do not admit that either Hunter Quarries or Mr Badior caused the death of Mr Smith.
The respondent has, in the course of oral submissions in reply, particularised and compared the charge and the express admissions in the Agreed Facts. That analysis is irrefragable.
Particular A deals with the failure to ensure that the haul road was constructed and maintained in a safe manner because it did not have adequate and continuous berms and its design was unsafe as a consequence of the grade of the haul road at the point where it turned 90°. The Agreed Facts admit that the haul road did not have adequate continuous berms or other measures along the side of the road; that the berms were less in height than half that of the truck wheel height; and parts of the haul road had no berms (or they were not continuous). This is an express admission of Particular A(i).
Further [22] and [65] of the Agreed Facts admit of the rate of descent at 20% or more, which required adequate measures to reduce or eliminate the obvious risk of a descending truck that was out of control; and these steps were not undertaken. Those paragraphs also admit that, as a consequence of that failure, the design of the haul road, upon which Mr Smith was driving, was unsafe. This, in turn, was an express admission of the particulars of charge in Particular A(ii).
Particular B charges that on the date of the accident the defendants failed to ensure that the truck provided for use was safe and without risks to health and, in particular, by failing to ensure that the braking system was not defective; the steering system was not defective; and a competent person was retained to service the truck who tested periodically the critical safety functions.
The Agreed Facts at [33] and [57] expressly admit that, at the time of the accident, there were equipment failures which affected the ability of the brakes to stop the truck, being an oil leak on the right-hand centre wheel axle bearing; a pre-existing oil seal failure in the front brake pressure intensifier; and, as a consequence of the pre-existing air leak, if or when the air compressor failed or ceased to operate, the brakes would operate in an emergency at a level less than should be available and permit fewer applications of the brakes after the air supply inputs ceased. It also admits of a pre-existing air leak on the retarder valve and that the park brake was out of adjustment.
The Agreed Facts at [57] admitted of the failure of the seal on the front brake converter/intensifier; the loss of the pressure in the air circuit; the loss of service brake performance; the oil leak from the right-hand wheel axle; and the park brake being out of adjustment. Hence, the Agreed Facts admit, directly and expressly, Particular B(i) of the charge.
Next, the Agreed Facts at [42], [43], and [57(c)] and [57(d)] deal with the steering system defects. They admit that the low steering pressure warning light was not in working order; there was a pre-existing broken wire; as a consequence of the accumulator not being functional on the date of the accident, the truck could not be steered if the primary hydraulic pressure failed; the loss of gas pressure in the steering accumulator; and the broken warning light on the steering circuit. Again, Particular B(ii) is expressly and directly admitted.
Paragraphs [55], [56] and [57] of the Agreed Facts referred to the qualifications and engagement of the service mechanic; the lack of formal contractual or documentary arrangements put in place; the mechanic’s attendance at the quarry when requested; the lack of experience of the particular service mechanic in servicing these particular trucks; the lack of knowledge of the mechanic and experience of the mechanic in servicing these trucks which would have enabled him to service adequately the trucks and identify all of the defects; the mechanic’s lack of familiarity with the workings of the steering accumulator; and the carrying out of a 250 hours service on the particular truck, one week prior to the accident, at which a number of defects, identified in the Agreed Facts, should have been identified but were not. Once more, Particular B(iii) is expressly and directly admitted.
Particular C alleges that on the date of the accident Hunter Quarries failed to provide necessary information, instruction, training and supervision to ensure employees’ health and safety at work, by failing to ensure that pre-start checklists were always completed, particularly those that monitor the effectiveness of the braking system and the steering system. Paragraph [63] of the Agreed Facts concedes that Mr Smith did not complete a pre-start check sheet on the day of the accident and that Mr Badior was aware that Mr Smith omitted to complete pre-start checks.
Particular D alleges that on the date of the accident, Hunter Quarries failed to ensure that its system of work was safe and without risks to health, and in particular, by failing to have an adequate maintenance management system for the trucks.
Paragraphs [55], [56] and [57] of the Agreed Facts admit that, from a time well before the date of the accident and continuing through to the date of the accident, the mechanic was engaged to provide services who had no formal contractual or documentary arrangements in place; had no previous experience in servicing trucks of that kind; did not have the knowledge and experience to service trucks of that kind adequately and to identify all of the defects requiring repair, nor the familiarity with the workings of the steering accumulator; and that Hunter Quarries was aware that the mechanic had not previously worked on these type of trucks. Again, [57] admits that, even though a 250 hour service was performed on the truck the week prior to the accident, defects that ought to have been identified were not.
The charges allege that as a result of the failures, described above, Mr Smith’s safety was placed at risk. The Agreed Facts recite that “as a result of the said failures [Mr Smith’s] safety was placed at risk”.
As a consequence of the evidence of Mr Badior and, begrudgingly, Mr Chevalley, that the Agreed Facts and the charges were examined and altered to ensure that each of the appellants was aware, first, of the precise nature of the charges against them; secondly, the precise nature of the agreed facts to which they were agreeing; and thirdly, that the agreed facts were accurate, there can have been no possible miscarriage of justice associated with the plea of guilty.
The plea of guilty was made in circumstances where the eyes of the appellants were wide open. Further, the facts, which were admitted to be accurate, and to which the appellants agreed, could have led to no outcome, other than a finding of guilt.
The appellants admitted guilt and did so knowingly with a full consciousness of precisely those facts that each was admitting and that the effect of such admission was that each would be found guilty of a criminal offence and fined (with the possible exception of the effect of s 10, which, while senior counsel made the application for it, the appellants had been informed was an unlikely outcome).

The Dismissal of the Proceedings against Messrs Chevalley and Grugeon

The evidence of Mr Badior and the timing of the applications that were made leave open an obvious inference that the application to withdraw the plea of guilty entered by Mr Badior and by Hunter Quarries is related to the dismissal of the charges against Messrs Chevalley and Grugeon. Certainly Mr Badior implied as much.
The alteration in the position of Messrs Chevalley and Grugeon (the majority of directors of Hunter Quarries), in admitting errors on the part of Hunter Quarries in their submissions to the Court of Appeal and differentiating their position from that of Hunter Quarries and Mr Badior on the basis of mistakes by Hunter Quarries and Mr Badior, allows the Court more comfortably to make that assessment. The assessment, however, makes no difference to the outcome.
The underlying assumption in the submission of the appellants before this Court was that the dismissal of the proceedings against Mr Chevalley and Mr Grugeon was as a result of lack of evidence. The Respondent rejects that assertion.
The Prosecution of Mr Chevalley and Mr Grugeon was proceeding and was sought to be withdrawn by the Prosecution. The defendants in those proceedings objected to the withdrawal, other than in circumstances of prejudice, and the proceedings were dismissed, with prejudice.
Assuming, without deciding, that the Prosecution of Messrs Chevalley and Grugeon was withdrawn because of a lack of evidence, the leap by the appellants to assume that the lack of evidence related to the breach by Hunter Quarries and/or Mr Badior is unwarranted. The proceedings against Mr Chevalley and Mr Badior had proceeded to the Court of Appeal: Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357.
In the course of the judgment of the Court of Appeal, the extent of defences available under s 26 of the Act was discussed. In the reasons of Bathurst CJ, the Chief Justice (with whom Allsop P, Beazley JA and, relevantly, Basten JA and Sackville AJA agreed) said:

“[29] Section 26(1)(a) raises the issue of whether as a matter of fact the director or person concerned in management who has been charged was in a position to influence the conduct of the corporation in relation to the contravention. The answer to that question will depend both on the particular contravention and the particular position held by the defendant. The subsection assumes that in some cases both directors and particular persons concerned with management will not be in a position to influence the corporation in relation to the contravention. Each case will depend on its own facts, but it is self-evident that in relation to some contraventions the ability to influence the corporation will depend on the particular position held, for example, a works manager or a chief executive officer compared to a chief financial officer or a non-executive director.
[30] Second, s 26(1)(b) requires in my opinion, that the charged director or person concerned in management demonstrates that he or she has carried out the due diligence appropriate to a person in his or her position to prevent the contravention. Thus, where the contravention arose as a result of systemic failure some officers may well be liable for the failure to undertake due diligence to ensure that a proper system was in place to prevent such a failure. By contrast, such a person may not be liable in the case of an isolated instance caused by a failure to follow an appropriate workplace system. If the charged person had taken all reasonable steps appropriate to his or her position to ensure the system was in place and would not be breached, he or she would not be liable. The question will, of course, depend on the facts established in each particular case.”

The Chief Justice also expressed the view that, contrary to the assertion of counsel in those proceedings, the Industrial Court had “not construed s 26 in such a way as to render the defence illusory”. With great respect, we accept and agree with the paragraphs reiterated above and to the further conclusion now mentioned. However, it must be said that the Industrial Court had taken a narrower view of the defences than was expressed by the five-member bench of the Court of Appeal.
Given the fundamentally different positions of Mr Chevalley and Mr Grugeon, who were not involved, or may not have been involved, in the day-to-day management of the quarry, the assumption as to lack of evidence may relate to the lack of due diligence to ensure a proper system was in place in circumstances where each was a person not involved in the day-to-day management of the quarry.
Thus, in the case of Messrs Chevalley and Grugeon, the dismissal of their proceedings may have been based upon a lack of evidence, but such lack of evidence may, and probably was, related to their roles as non-executive directors and the inability of the Prosecutor to demonstrate that either one of them had not carried out due diligence appropriate to a person in their position to prevent the contravention.
In and of itself, the dismissal of the charges against Messrs Chevalley and Grugeon says nothing as to the relative competence and forensic decision making of the respective legal teams involved in the proceedings. Further, the dismissal of those charges is irrelevant to anything this Court must consider.

Chain of Custody

This issue relates to two distinct matters. First, it is a particular of the difficulties associated with the expert reports and the conclusions reached in those reports and, secondly, it is a criticism of the primary judgment on the basis that reliance was placed upon facts in circumstances where the continuity of custody or control was interrupted.
The Court has dealt already with the applicability of the rules of evidence to the sentencing proceedings. However, usually, continuity of control and/or chain of custody is not, simply, a rule of evidence.
The difficulty with the proposition is that the breach is said to arise because the Prosecution could not prove, beyond reasonable doubt, the state and continuity or chain of possession of the truck.
The difficulty with that proposition is, in these proceedings, the chain of custody of the truck was not a matter required to be proved beyond reasonable doubt.
In relation to the Prosecution, the expert reports were relied upon for conclusions relating to the cause of certain defects in the truck and the lack of fuel. Those defects and the absence of fuel were not matters upon which the Prosecution was required to satisfy the Court, beyond reasonable doubt: see [27] of these reasons above.
The cause of Mr Smith’s death, in simplistic or superficial terms, was that the truck he was driving careered over the edge of the roadway, landed on the level below and the significant injuries occasioned by that circumstance were the cause of death of Mr Smith.
As to liability, the charges preferred do not relate to the cause of death. The charges relate to risk to safety associated with lack of a continuous berm and the failure to ensure evident defects in the truck were eliminated.
As a consequence, the conclusions relating to chain of custody do not relate to liability at all.
If the chain of custody issues are said to have influenced the plea entered by each of Hunter Quarries and Mr Badior, the obvious difficulty with such a submission is that the expert reports, which may have depended upon non-interference with the truck, were never tendered (other than provisionally) in proceedings relating to liability.
Further, even in relation to liability, the chain of custody issues normally associated with other criminal proceedings are not to the point. Here, the conclusion reached by the experts, in particular the likelihood that the truck ran out of petrol, and the state of the other equipment, were steps along the way to a conclusion of fact, which conclusion, together with other facts, if it were the basis of a finding by the Court, was required to be proved beyond reasonable doubt.
Ultimately, the Court was entitled, in the findings that it made and upon which it relied, to be satisfied of the circumstances that gave rise to the expert opinion on the balance of probabilities. It was more probable than not that the truck and equipment was not the subject of interference. The combination of all of the circumstances could lead to the conclusion, upon which the Industrial Court relied, to be proved beyond reasonable doubt: for example, see [27] above and the references to the primary judgment.
Further, the submission of the appellants relies upon a lack of evidence relating to continuity of possession or chain of custody, in circumstances where the issue was not raised below and the Prosecution was never put on notice (either by cross-examination or otherwise) so as to adduce evidence on the issue.
The rejection of those expert reports, in light of the express admissions of fact, in circumstances where Mr Badior, in oral evidence, made clear that the agreed facts were accurate, could not even possibly lead to a verdict of not guilty. No miscarriage of justice has occurred.
This submission must be rejected as a basis for either the withdrawal of the guilty plea or errors of finding on sentence.

Grounds of Appeal

It is necessary therefore to turn to the grounds of appeal, bearing in mind the summary of the primary judgment and the evidence of Mr Chevalley and Mr Badior, in particular, together with the other documentary evidence before the Court. The analysis of the submissions made, relating to various particular aspects, is a necessary aspect for the Court to arrive at the conclusions in relation to each of the grounds. These conclusions should not be read without reference to the foregoing considerations.

Ground 1: Prosecutorial misconduct and failure to disclose material

The foregoing analysis of the material, said not to have been disclosed, demonstrates that much of the material about which complaint is made was, in fact, disclosed. Some of the documentation said not to be disclosed was otherwise within the possession of the appellants or known to them. That which remains is either insubstantial or irrelevant.
This ground must fail. The Court, as a matter of comment, given the nature of the allegation, makes clear that, on the material before the Court, the Prosecutor has not deliberately failed to disclose any material. Nor has the Prosecutor behaved inappropriately in relation to the Prosecution below.

Ground 2: Deliberate non-disclosure or suppression of material

The particulars of this matter are simply a subset of Ground 1. Nevertheless, the appellants rely, specifically, on the Mine Safety Investigation Manual, in relation to examining the DPI’s role leading up to the incident. This policy document, described in the foregoing analysis, was not a document that was required to be disclosed. Further, it was a document in the possession of the appellants and its contents were in the knowledge of the appellants and the subject of comment in advices. These factors are discussed earlier in these reasons.
This Ground also must fail.

Ground 3: Prosecution expert reports were inadmissible

The admissibility and requirement to comply with the rules of evidence on sentencing have been discussed. The fact that the expert reports were not admitted, in the liability proceedings, other than provisionally, and that the appellants, together with Messrs Chevalley and Grugeon, retained the ability to object to the tendered material as well as to cross-examine the experts, as if the tendered material were admitted, was a distinct advantage to the appellants.
There are some particular aspects with which the Court needs to deal. First, expert evidence should be independent. This does not mean that an expert cannot be employed or engaged by the Prosecutor or the same or another government department. Every day, in every major criminal proceeding, police experts give evidence on matters of controversy. Crime Scene Officers give evidence. Ballistics Experts give evidence. Fingerprint Experts give evidence.

The fact, if it be the fact, that an expert is related by the circumstance that there is a mutual employer with the Prosecutor does not involve, either necessarily or probably, a lack of independence in the expert report itself.
In that regard, bias is a matter for cross-examination, but, of itself, does not involve the necessary conclusion that the expert report is inadmissible.
Next, there is a fundamental difference between solicitors and counsel “settling” an expert’s report and solicitors and counsel advising on the manner in which certain matters must be dealt with, in accordance with the rules of evidence.
The evidence before the Court is that the involvement of the legal team of the Prosecutor in the finalisation of the expert reports was an involvement which deleted from the reports certain hearsay evidence and required the expert to treat the fact, to which that hearsay evidence would otherwise have testified, as an assumption, upon which the expert could then rely.
If the assumption were not proved, properly, as a fact, the expert conclusion, in that regard, would be unfounded. As a matter of fact, solicitors and counsel representing the Prosecutor did not “settle the evidence” of the experts and were not involved “in the writing” of the reports. Their involvement is as earlier described. The attack on the admissibility of the Reports fails.
This Ground, too, must be rejected.

Ground 4: Admissibility of expert reports

This ground has been dealt with extensively in the foregoing reasons for judgment. Ultimately, the expert reports were received on sentencing. In the liability proceedings, they were received provisionally.
Further, the reports themselves were able to be received. Particularly, that is so when the appellants, when appearing below, made the deliberate forensic choice (on advice) not to object to the receipt of the reports and to cross-examine thereon. That forensic choice, in the circumstances, was neither incompetent nor improper and did not cause a miscarriage of justice.
This Ground, even if successful, for the reasons already outlined in these reasons, does not give rise to a ground for the withdrawal of the plea and is not, otherwise, a ground on which successfully to impugn the judgment on sentence.

Ground 5: Chain of custody

This matter has been fully and completed discussed in the foregoing reasons for judgment. The ground is rejected.

Ground 6: Failure to investigate

It is not the function of a prosecutor to investigate all matters. It is the function of an investigator and the prosecutor to investigate appropriately and thoroughly. There is no evidence to suggest that an appropriate and thorough investigation did not occur.
In part, if not in whole, the allegation relates to a case theory of Mr Chevalley that it was possible that Mr Smith was utilising his mobile phone when driving, rather than concentrating on the road and that caused the accident. This theory has no basis in evidence.
It is a wholly hypothetical proposition. Yet the appellants criticised the primary judgment and the conduct of the Prosecution on the basis that this wholly hypothetical proposition was not examined. The difficulty with such a proposition is that this hypothetical could have as easily been investigated by the appellants as it was by the Prosecutor. Indeed, there is no evidence to suggest that the appellants did not investigate this issue.
All that would be required would be a subpoena to the telephone company. It is not the function or duty of a Prosecutor to chase every hypothetical in assisting the accused with “legal or evidential issues, possible defences or possible lines of further investigation”: Christopher Corns, Public Prosecutions in Australia: Law, Policy and Practice, LawBook Co. Thomson Reuters, 2014.
The foregoing accepts that the Prosecutor has a duty to enquire of investigators in order to ensure that all exculpatory (and inculpatory) material has been disclosed.
The Ground is not made out and, even if it were, would not have allowed for an acquittal, given all the other circumstances and the nature of an offence under the Act.
This Ground also is rejected.

Ground 7: Incompetence or impropriety of appellants’ legal team

It is the view of the Court that the conduct of the legal team did not affect the outcome of the proceedings below. The advice provided to the appellants by that legal team was proper and competent. The advice, both at the preliminary stage and during the course of preparation for and the hearing of the proceedings, was detailed, comprehensive, thorough and appropriate.
For the reasons already outlined in the reasons for judgment and the conclusion immediately preceding this paragraph, this Ground is rejected.

Ground 8: Miscarriage of justice

This Ground relies upon each of the other Grounds either singularly or in combination. Each of the other Grounds has been rejected.
The Court reiterates that, on the evidence before the Industrial Court below, a guilty verdict was inevitable. Further, the plea was made in circumstances where each of the appellants was fully aware of the charges preferred and that the plea of guilty would result in them being found guilty of a criminal offence and an appropriate penalty imposed.
Further, at no stage was there any suggestion, prior to the plea, that the Prosecution would be conducted unfairly or that the judgment of the Industrial Court would be determined on the basis of anything other than a fair hearing and the application of the law to the facts before the Industrial Court.
This Ground, to the extent that it is a separate Ground and/or otherwise, is also rejected.

Ground 9: Errors in findings on sentence

The judgment of her Honour is summarised, in terms of the findings of fact, relatively completely. Those findings of fact are based either on the Agreed Facts or on the evidence that was admitted on sentence.
Notwithstanding the lengthy submissions on appeal, there is little in support of an error in the findings of fact on sentence. The Court extrapolates from the lengthy submissions on alleged miscarriage of justice and has applied those criticisms to the findings of fact by her Honour on sentence.
First, most of the findings of fact are based upon the Agreed Facts, which, on the evidence before the Court, are accurate. Secondly, the findings of fact otherwise determined by her Honour below were each open to her Honour on the evidence before the Industrial Court.
This Ground is rejected.

Ground 10: The Prosecutor did not have a valid authority or power to prosecute

No evidence or submission has been made to this Court on that ground and, as far as the Court has independently examined the transcript below, no submissions were made below on this question.
To the extent that this purports to be a ground of appeal, raised for the first time on appeal the question whether leave, pursuant to Rule 4 of the Criminal Appeal Rules (NSW), should be refused arises.
If Rule 4 applies, leave to argue the Ground should be refused on the basis that the Ground was not raised at first instance and was not sought to be prosecuted on appeal. If Rule 4 is not available, the Ground should be rejected.

Sentence Appeal, Costs

There are no other grounds that this Court considers are appropriate in the grant of the appeal. The Court notes, because of the unusual evidence that it has before it, that the fines that were imposed were almost identical to, or less than, the range of fines that the appellants were advised would be imposed. There is no submission on appeal that the penalty imposed is outside the range available, inappropriate or manifestly excessive.
No suggestion has been made that the principles on sentencing have not been appropriately described by the Industrial Court below, or that any identifiable error (other than the errors of fact to which reference has already been made) exists. Further, there is no suggestion by the appellants that the principles on sentencing have been misapplied.
In those circumstances, the appeal against sentence is dismissed.
Nothing has been submitted that would disclose error or warrant interference with the order for costs or moiety. The appellants have not disclosed an arguable point. Leave should be refused.
The Court makes the following orders:

To the extent possible, leave to raise a ground of appeal relating to authority to prosecute refused.

To the extent necessary, application to withdraw plea of guilty refused.

Otherwise, appeal against conviction dismissed.

Appeal against sentence dismissed.

Leave to appeal against costs and moiety orders refused.

**********

Amendments

22 January 2018 - Cover sheet - Representation corrected

Decision last updated: 22 January 2018

Medium Neutral Citation:	Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326
Hearing dates:	Before Industrial Court of New South Wales 9, 10, 11 November 2015; Before Court of Criminal Appeal 8, 12 April 2016
Date of orders:	19 December 2017
Decision date:	19 December 2017
Before:	Walton J; Rothman J; Harrison J
Decision:	(1) To the extent possible, leave to raise a ground of appeal relating to authority to prosecute refused. (2) To the extent necessary, application to withdraw plea of guilty refused. (3) Otherwise, appeal against conviction dismissed. (4) Appeal against sentence dismissed. (5) Leave to appeal against costs and moiety orders refused.
Catchwords:	CRIME – work health and safety – application for withdrawal of plea of guilty and appeal against sentence – relevant principles of withdrawal of plea after sentence discussed – agreed facts below, if accurate, would require conviction – plea insufficiently impugned to warrant withdrawal – application for withdrawal of plea refused – fact findings on sentence open to primary judge – sentence within range – appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Evidence Act 1995 (NSW) Industrial Relations Act 1996 (NSW) Mines Inspection Act 1901 (NSW) Occupational Health and Safety Act 2000 (NSW) Supreme Court Act 1970 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Browne v Dunn (1893) 6 R 67 Budrodeen v R [2017] NSWCCA 100 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357 Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority of New South Wales (1999) 90 IR 432 Hunter Quarries Pty Ltd v Morrison (No 4) (2016) 92 NSWLR 1; [2016] NSWIC 4 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of NSW & Anor (2006) 66 NSWLR 151; (2006) 154 IR 310; [2006] NSWCA 172 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672; [1984] HCA 61 Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46 Meissner v The Queen (1995) 184 CLR 132 at 157; [1995] HCA 41 Morrison v Hunter Quarries [2009] NSWIRComm 179 New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339; 159 IR 121 R v Boag (1994) 73 A Crim R 35 R v Chiron [1980] 1 NSWLR 218 R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep) R v Ferrer-Esis (1991) 55 A Crim R 231 R v Martin (1904) 21 WN (NSW) 233 R v Murphy [1965] VR 187 R v Rae (No 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216 Reg. v O’Neill [1979] 2 NSWLR 582 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Sagiv v R (1986) 22 A Crim R 73 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2004] NSWIRComm 202 The Queen v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65 WorkCover Authority of New South Wales (Inspector Belley) v Australian Inland Energy Water Infrastructure T/as Australian Inland Energy and Water [2003] NSWIRComm 408
Texts Cited:	Christopher Corns, Public Prosecutions in Australia: Law, Policy and Practice, LawBook Co. Thomson Reuters, 2014
Category:	Principal judgment
Parties:	2016/103778: Hunter Quarries Pty Ltd (Appellant) Rodney Morrison (Respondent) 2016/114927: Richard Alexanda Badior (Appellant) Rodney Morrison (Respondent)
Representation:	Counsel: 2016/103778: B G Docking (Appellant) M B J Lee SC/J C McDonald/A H Edwards (Respondent) 2016/114927: J L Glissan QC/D H Nagle (Appellant) M B J Lee SC/J C McDonald (Respondent) Solicitors: 2016/103778: McDonald Johnson Lawyers (Appellant) Crown Solicitor’s Office (NSW) (Respondent) 2016/114927: Peter Evans & Associates Solicitors (Appellant) Crown Solicitor’s Office (Respondent)
File Number(s):	2016/103778 (formerly IRC 2016/50001); 2016/114927 (formerly IRC 2016/50022)
Decision under appeal	Court or tribunal: Industrial Court of New South Wales Citation: Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 Date of Decision: 30 October 2009 Before: Backman J File Number(s): IRC 954/2007; IRC 955/2007

14 June 2005	Truck accident at Kuruah Quarry and the driver and the driver and employee of Hunter Quarries killed.
5 June 2007	Applications for Orders filed against Hunter Quarries (No. 695/2007); Mr Badior (No. 955/2007); Mr Chevalley (No. 956/2007) and Mr Grugeon (No. 957/2007)
15 February 2008	Messrs Chevalley and Grugeon enter pleas of not guilty
12 March 2008	Hunter Quarries and Mr Badior enter pleas of not guilty.
7 October 2008	Summary trial against all four defendants commences before Backman J.
9 October 2008	Amended Application for Order against all four defendants filed in Court by consent and Hunter Quarries and Mr Badior amend their pleas to guilty.
30 October 2009	Sentencing Judgment delivered by Backman J – Morrison v Hunter Quarries Pty Limited [2009] NSWIRComm 179.
12 November 2009	Orders for costs made against Hunter Quarries and Mr Badior.
25 March 2010	Hunter Quarries files an Application seeking an order to extend time to see Leave to Appeal and Appeal (No. 215 of 2010).
17 November 2010	Mr Badior makes an application to extend time to seek leave to appeal and appeal on the same grounds as Hunter Quarries (No. 1320 of 2010).
11 February 2011	Mr Badior files Amended Application for Leave to Appeal and Appeal adding as an additional ground the invalidity of s 26 of OHS Act.
23 March 2012	Applications for leave to appeal and appeal filed by Hunter Quarries and Mr Badior discontinued by consent with no order as to costs.
6 August 2012	Certificate of Determination of Costs issued against Hunter Quarries and Mr Badior in the sum of $534,659.17.
2 October 2012	Certificate of Determination registered as a judgment of the District Court of New South Wales.
22 October 2012	Proceedings against Messrs Chevalley and Grugeon dismissed.
1 November 2012	Hunter Quarries files a Notice to Appeal and Application to Extend Time to Appeal.
5 November 2012	Mr Badior files Notice to Appeal and Application to Extend Time to Appeal.
10 December 2012	The Prosecutor undertakes not to take any steps to enforce the District Court judgment until either 30 March 2013 or the delivery of a decision on the appellants’ application for an extension of time in which to appeal, whichever occurs first, upon the provision of:
1. confirmation that Hunter Quarries Pty Ltd is continuing to trade and has not and will not divest itself of any assets otherwise than in the ordinary course of business; and
2. a personal guarantee from both Mr Chevalley and Mr Grugeon that they will pay the judgment debt owed by Hunter Quarries Pty Ltd and Mr Badior.
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13 February 2013	Extension of time proceedings before Industrial Court
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17 June 2013	Extension of time granted: Hunter Quarries Pty Ltd v Morrison (2012) 219 NSW IR 193; [2013] NSWIRComm 49.
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14 November 2014	Industrial Court makes a direction, inter alia, that the application to adduce fresh evidence or new evidence on appeal and to withdraw the pleas of guilty to be heard at the same time as the hearing of the substantive appeal.
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12 March 2015	Joint Position of Issues Requiring Determination filed.
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19 March 2015	Appellants file Amended Notices of Appeal.