McAndrew (NSW Department of Planning and Environment) v Cummings - [2020] NSWDC 590

District Court

New South Wales

Medium Neutral Citation: McAndrew (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 590
Hearing dates: 7 September 2020
Date of orders: 9 September 2020
Decision date: 09 September 2020
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1. The defendant’s notice of motion is dismissed.

Catchwords:
CRIMINAL PROCEDURE — Stay of proceedings — Compulsorily Acquired Material

Legislation Cited:
Independent Commission Against Corruption Act 1988
Work Health and Safety Act 2011

Cases Cited:
Barron v Attorney-General (1987) 10 NSWLR 215
Barton v The Queen (1980) 147 CLR 75
Jago v District Court (NSW) (1989) 168 CLR 23
Lee v The Queen (2014) 253 CLR 455
Macdonald v R (2016) 93 NSWLR 736
R v IBAC (2016) 256 CLR 459
R v Seller (2015) 89 NSWLR 155
Strickland v CDPP [2018] HCA 53
Walton v Gardiner (1993) 177 CLR 378
X7 v The Queen [2014] NSWCCA 273

Category: Procedural and other rulings
Parties: McAndrew (NSW Department of Planning and Environment) v Tony Glenn Cummings
Representation:
Counsel: I Taylor SC/G Lewer (Prosecution)
R Clifford (Defendant)
Solicitors: McCulloch Robertson (Prosecution)
Browne Jeppesen and Sligar (Defendant)

File Number(s): 2018/336909 and 2018/336887
Publication restriction: None

Judgment

Introduction

The defendant has pleaded not guilty to two alternative charges brought pursuant to s 32 Work Health and Safety Act 2011 (the Act).
On the first day of trial the defendant has applied for a permanent stay of the proceedings or an order disqualifying the lawyers briefed by the prosecution from continuing to act in the proceedings on the basis of a breach of the companion principle. The defendant contends that by being required to participate in a recorded s 171 interview on 6 November 2016 that he has disclosed information that would have the effect of limiting the defences available to him and that this information has been communicated to other Inspectors who are witnesses in the case and/or who interviewed lay witnesses in the case and to the lawyers representing the prosecution.
The prosecution’s response is to point to other sources of information available to it and that the information provided through those sources is similar to the information provided by the defendant in the s 171 interview, such that there is no demonstrable unfairness to the defendant.
There may be another occasion in the course of the trial where I need to further consider or reconsider the extent of a relevant person’s power to disclose information provided to them under compulsion pursuant to s 271 of the Act, but the present application relates to what the regulator, exercising its function as a prosecutor, knew and not whether those matters are admissible as evidence in the trial.

Factual Background

On 4 November 2016 Mark Siegel (the deceased) was killed when he was crushed by a steel bucket attached to a hoist (the plant) that fell into a mine shaft of a mineral claim at Grawin (the mineral claim). It is alleged by the prosecution that the defendant was the owner of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: McAndrew (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 590
Case: [2020] NSWDC 590
Decision Date: 09 September 2020

CaseChat Overview and Summary

The case of McAndrew (NSW Department of Planning and Environment) v Cummings was heard before the court. The dispute arose from an application by the defendant, Cummings, for a stay of proceedings. This application was made due to the compulsory acquisition of certain material by the plaintiff, McAndrew, who was acting on behalf of the NSW Department of Planning and Environment. The central issue before the court was whether the compulsory acquisition of the material in question justified a stay of the proceedings against Cummings. Specifically, the court needed to determine if the acquisition process was lawful and if it had any bearing on the defendant's right to a fair trial.

The court examined the legal framework governing the acquisition of material in criminal cases. It considered the requirements of relevant legislation, the principles of natural justice, and the impact of the acquisition on the defendant's ability to prepare a defence. The court also evaluated the timing and manner in which the material was acquired. The court concluded that the compulsory acquisition did not warrant a stay of proceedings. It found that the acquisition process was lawful and did not prejudice the defendant's right to a fair trial. The court emphasised that the defendant had not demonstrated any substantial prejudice resulting from the acquisition of the material.

Given its findings, the court dismissed the defendant's notice of motion. The court held that the compulsory acquisition of the material did not provide a sufficient ground for a stay of the proceedings. The court further noted that the defendant had not shown that the acquisition was conducted in an unfair manner or that it significantly impacted their ability to defend the charges against them. Consequently, the court ordered that the defendant's notice of motion be dismissed, and the proceedings against Cummings would continue as scheduled.

Orders

Orders of the court

1. The defendant’s notice of motion is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	McAndrew (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 590
Hearing dates:	7 September 2020
Date of orders:	9 September 2020
Decision date:	09 September 2020
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1. The defendant’s notice of motion is dismissed.
Catchwords:	CRIMINAL PROCEDURE — Stay of proceedings — Compulsorily Acquired Material
Legislation Cited:	Independent Commission Against Corruption Act 1988 Work Health and Safety Act 2011
Cases Cited:	Barron v Attorney-General (1987) 10 NSWLR 215 Barton v The Queen (1980) 147 CLR 75 Jago v District Court (NSW) (1989) 168 CLR 23 Lee v The Queen (2014) 253 CLR 455 Macdonald v R (2016) 93 NSWLR 736 R v IBAC (2016) 256 CLR 459 R v Seller (2015) 89 NSWLR 155 Strickland v CDPP [2018] HCA 53 Walton v Gardiner (1993) 177 CLR 378 X7 v The Queen [2014] NSWCCA 273
Category:	Procedural and other rulings
Parties:	McAndrew (NSW Department of Planning and Environment) v Tony Glenn Cummings
Representation:	Counsel: I Taylor SC/G Lewer (Prosecution) R Clifford (Defendant) Solicitors: McCulloch Robertson (Prosecution) Browne Jeppesen and Sligar (Defendant)
File Number(s):	2018/336909 and 2018/336887
Publication restriction:	None