R v BS and JH Bailey Pty Limited

District Court

New South Wales

Medium Neutral Citation:	R v BS & JH Bailey Pty Limited [2016] NSWDC 148
Hearing dates:	19 July 2016
Date of orders:	19 July 2016
Decision date:	19 July 2016
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	I grant the defendant leave to withdraw the plea of guilty entered on 9 February 2015.
Catchwords:	Occupational health and safety; a plea of guilty was entered by defendant; circumstances in which a plea of guilty may be allowed to be withdrawn; defendant not in possession of all the facts when the plea was entered
Legislation Cited:	Occupational Health and Safety Act 2000
Cases Cited:	R v Hura (2001) 121 A Crim R 472
Category:	Procedural and other rulings
Parties:	SafeWork New South Wales (prosecutor) BS & JH Bailey Pty Limited (defendant)
Representation:	Counsel: Mr E James, instructed by SafeWork NSW, appeared for the prosecutor Mr Bailey appeared in person for the defendant
File Number(s):	2013/7297

RULING

1. This matter is listed before me for today and tomorrow, on a plea of guilty to a charge that the defendant company had breached an obligation it was under, under the Occupational Health and Safety Act 2000. The prosecution arises in respect of an incident that occurred on 22 January 2011, at a construction site at 131 Willarong Road, Caringbah.

2. Some residential units were being erected there and the defendant was the principal contractor on the site. It had subcontracted with a company called Future Form (NSW) Pty Ltd for the provision of steel fixing and formwork services. It had contracted with a company called Giraffe Scaffolding Pty Ltd for the provision of scaffolding.

3. The incident occurred when an employee of Future Form, Mr Roumaihi, fell from scaffolding adjacent to level 4 of the work being undertaken. In brief, he had a fall to the ground and suffered injury.

4. The plea of guilty was entered by the defendant on 9 February 2015. At the time, Mr Bailey, whom I take to be a director and shareholder of the defendant company, was unaware of a piece of evidence that has relatively recently come to light. That evidence is contained in an affidavit of Troy Mills affirmed on 19 August 2015. He was working on the site as a foreman for Giraffe. He appears to have been responsible for the erection of the scaffolding on the site. In that affidavit, he states that before he left the site on the day before the incident, "…I placed a sign which is commonly referred to as 'Scafftag' on which it is stated, in large capital letters, words to the effect of 'INCOMPLETE SCAFFOLD. DO NOT ENTER', at the entry to the staircase to the scaffold on the ground level."

5. That information was not made available to Mr Bailey until 21 June 2016, or soon thereafter. On that date, the defendants' solicitors, or by then, I think, former solicitors, sent a copy of Mr Mills's affidavit to the solicitor for the prosecutor. Mr Bailey has informed me…