Hunter Quarries Pty Limited v Morrison; Badior v Morrison

1. [1]

   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.

2. [2]

   The litigation has been somewhat circuitous.

Relevant History of Appeal

1. [3]

   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).

2. [4]

   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.

3. [5]

   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.

4. [6]

   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.

5. [7]

   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.

6. [8]

   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.

7. [9]

   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

1. [10]

   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.

2. [11]

   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.

3. [12]

   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.

4. [13]

   Her Honour summarised the Agreed Facts as follows:

5. [14]

   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.

6. [15]

   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.

7. [16]

   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”.

8. [17]

   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”.

9. [18]

   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.

10. [19]

    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.

11. [20]

    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”.

12. [21]

    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:

13. [22]

    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.

14. [23]

    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.

15. [24]

    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.

16. [25]

    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]).

17. [26]

    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”.

18. [27]

    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]).

19. [28]

    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]).

20. [29]

    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.

21. [30]

    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.

22. [31]

    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.

23. [32]

    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.

24. [33]

    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]).

25. [34]

    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.

26. [35]

    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.

27. [36]

    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.

28. [37]

    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]).

29. [38]

    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:

30. [39]

    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.

31. [40]

    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).

32. [41]

    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

1. [42]

   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:

   1. (1)

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

   2. (2)

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

   3. (3)

      the recording of the conviction of an offence;

   4. (4)

      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;

   5. (5)

      the costs order.

2. [43]

   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.

3. [44]

   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.

4. [45]

   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:

5. [46]

   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.

6. [47]

   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:

7. [48]

   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

1. [49]

   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):

Withdrawal of Plea on Appeal: Principles

1. [50]

   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.

2. [51]

   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”.

3. [52]

   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.

4. [53]

   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.

5. [54]

   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.

6. [55]

   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.

7. [56]

   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).

8. [57]

   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.

9. [58]

   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.

10. [59]

    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.

11. [60]

    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.

12. [61]

    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.

13. [62]

    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.

14. [63]

    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

1. [64]

   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.

2. [65]

   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.

3. [66]

   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.

4. [67]

   The obligation imposed by s 8(1) of the Act is in the following terms:

5. [68]

   The provisions of s 26 of the Act are:

6. [69]

   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.

7. [70]

   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:

8. [71]

   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.

9. [72]

   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.

10. [73]

    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?

11. [74]

    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.

12. [75]

    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.

13. [76]

    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.

14. [77]

    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.

15. [78]

    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.

16. [79]

    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.

17. [80]

    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).

18. [81]

    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.

19. [82]

    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.

20. [83]

    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.

21. [84]

    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

1. [85]

   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.

2. [86]

   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.

3. [87]

   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.

4. [88]

   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.

5. [89]

   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”.

6. [90]

   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.

7. [91]

   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.

8. [92]

   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.

9. [93]

   The statement of principles, including the recitation of particular authorities, is unremarkable and accurate. It is also compendious.

10. [94]

    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.

11. [95]

    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”.

12. [96]

    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.

13. [97]

    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.

14. [98]

    Similar advice is given to each of Mr Chevalley and Mr Grugeon, but for present purposes it is unnecessary to detail those aspects.

15. [99]

    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.

16. [100]

    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.

17. [101]

    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.

18. [102]

    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.

19. [103]

    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.

20. [104]

    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.

21. [105]

    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.

22. [106]

    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.

23. [107]

    Further, the KRC report concluded that Hunter Quarries’ site risk assessments did not address the risk of operating loaded haul trucks down steep grades, restraint of a runaway vehicle or safe tipping procedures.

24. [108]

    The KRC report also dealt with the failure to address site training procedures for emergencies and safe tipping and concluded that:

25. [109]

    The Preliminary Advice then deals with the requirements of s 46 of the Act and, in particular, that approved codes of practice are admissible in proceedings and a Corporation (or individual) failing to observe such a code is evidence of the matter to be established.

26. [110]

    There is a reference to some of the material upon which the KRC report is based and whether such material is, in truth, accepted industry practice and, in relation to one aspect of those reports, whether the Guidelines for Safe Mining are in draft and do not constitute an approved industry code of practice. Further the Preliminary Advice notes that the section of the Guidelines ultimately adopted in July 2002 did not contain the section or part dealing with haul roads, which was not released until January 2004, being a time after the development of the Quarry in question.

27. [111]

    Nevertheless, although not a matter to which the Preliminary Advice refers, the promulgation of the part dealing with haul roads occurred well before the accident involving the death of Mr Smith.

28. [112]

    The Preliminary Advice analyses the Guidelines and refers to particular sections which disclose difficulties for Hunter Quarries and the Directors, in relation to the provision of safety measures to which the Guidelines refer.

29. [113]

    At Chapter 8.2 of the Preliminary Advice, reference is made to the report of Mr Sunol, said to be a mechanical engineering report dated 28 June 2006. Again, Mr Sunol was engaged by the DPI to investigate and to prepare a mechanical engineering report on the incident.

30. [114]

    The Preliminary Advice summarises Mr Sunol’s report and his conclusions. The report dealt with the braking system; steering; engine and fuel systems; operator light and warning systems; mines’ safety management plan; and the Maintenance Management System.

31. [115]

    The Preliminary Advice recites the components of the Maintenance Management System and the findings of Mr Sunol in that regard.

32. [116]

    Chapter 8.3 of the Preliminary Advice deals with the mechanical Expert Report of Mr Geoff Senz of 26 September 2006, who was an expert engaged by the legal representatives of the appellants (and Messrs Chevalley and Grugeon). The conclusions of the Senz Report were that: physical evidence did not confirm that the engine ran out of fuel or had stopped rotating before the truck ran over the cliff; the examination of the brake system revealed defects that could directly hinder the driver’s capacity to stop the vehicle, being contamination of the offside centre brake with oil, an empty fluid reservoir and a hydraulic leak in the pressure converter; brake pads with a rusty glazed appearance indicating they were rarely used; if the engine had stopped rotating the automatic transmission would be neutralised and the retarder would be prevented from controlling the vehicle speed.

33. [117]

    At the same time, an uncharged steering accumulator would render it impossible to steer the disabled vehicle concurrently with the faulty front brakes and the oil contaminated rear brake, which would prevent the operator from stopping the runaway vehicle. Further, the Senz Report referred to the lack of fuel in the tank suggesting that Mr Smith had ignored instrumentation warnings. Mr Senz was unable to establish why the fuel tank was so empty, but his opinion was “that the amount of fuel apparently ‘lost’ could not have been spilled as a result of the accident”.

34. [118]

    Mr Senz also concluded that the failure to wear a seat belt contributed to the death of Mr Smith.

35. [119]

    Chapter 9 of the Preliminary Advice deals with defences available to Hunter Quarries (and the Directors to the extent that the guilt of Hunter Quarries is an element of the Prosecution of those Directors). It recites that the Industrial Court has construed the defences narrowly “to give effect to the purpose of the … Act.” Such a statement is an accurate reflection of the construction of the defences by the Industrial Court, at least prior to the promulgation of the Preliminary Advice.

36. [120]

    The Preliminary Advice sets out the practical effect of such a construction and that it “requires consideration as to whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved”. Authority is given for such an approach.

37. [121]

    Without referring to the term “matrix”, the Preliminary Advice, by reference to a quotation from authority, refers to the duty being one “to weigh up the risk, both as to its likelihood and to its severity, if it occurs, as against the cost, in terms of money, the production and the effort of providing against the risk”. Where serious injury is involved, the cost, difficulty or trouble occasioned by measures that could be taken would need to outweigh the risks significantly.

38. [122]

    The Preliminary Advice concluded that it was unlikely that Hunter Quarries would succeed in establishing this defence.

39. [123]

    The Preliminary Advice then sets out the defence associated with Hunter Quarries not being in a position to control the causes of the offence and the Preliminary Advice explains that, to succeed on that defence, Hunter Quarries would need to establish that it had “no control over the incident and it was not practicable to make provision against the causes of the incident”. The incident to which reference is their made is the failure to provide measures that would ensure safety.

40. [124]

    However, the Preliminary Advice refers to the incident being the accident in which Mr Smith was involved and refers to the allegation that Mr Smith was speeding at the time of the accident; his pre-existing health conditions; his failure to wear a seat belt as instructed; and the allegation that Mr Smith ignored warning instruments. The Preliminary Advice warns that the Industrial Court has not readily accepted the establishment of this defence, but such matters may reflect the degree of culpability and therefore be relevant to the process of sentencing.

41. [125]

    Chapter 10 of the Preliminary Advice deals with the defences available to Mr Badior. It refers to the statement of Mr Badior that he had “total responsibility for the starting [i.e. commencement and planning] of the quarry”.

42. [126]

    While reference is made to the statutory position of general manager of the mine for the purposes of the Mines Inspection Act 1901 (NSW), the conclusion of the Preliminary Advice that was that Mr Badior was in a position to influence Hunter Quarries and had the ultimate authority and responsibility for the operation of the quarry on a day-to-day basis. Frankly, it would be impossible to come to any other conclusion on the material before the Court.

43. [127]

    Reference is then made to the other defences available to Mr Badior and, in particular, due diligence to prevent that contravention by Hunter Quarries, being a reference to the actions Mr Badior personally undertook to ensure safety. It is to those aspects that the request for information in Annexure A was directed. No conclusion is reached in relation to the capacity of Mr Badior to establish a defence successfully, but any conclusion, in accordance with the Preliminary Advice, awaited the provision of the information requested.

44. [128]

    There are parts of the Preliminary Advice that deal with the particular defences available to Mr Chevalley and to Mr Grugeon (see Chapters 11 and 12 of the Preliminary Advice). It is unnecessary to recite the conclusions or issues associated with those defences.

45. [129]

    Chapter 13 deals with the options available to the parties in relation to their plea. As indicated in summarising the evidence of Mr Chevalley, the available courses were described as:

    1. (1)

       enter a plea of guilty to the charge; or

    2. (2)

       enter a plea of not guilty to the charge; and

    3. (3)

       enter a conditional plea of guilty.

46. [130]

    Annexures C of the Preliminary Advice is a table summarising these options and estimating costs in relation to each option. The costs are the costs of counsel and solicitors, not including the costs to the date of the advice.

47. [131]

    Chapter 14 deals with the first course of conduct suggested, namely, to negotiate particulars and to plead guilty on behalf of the Corporation, Hunter Quarries. This part deals with a range of aspects including the effect of a plea; the discount for the earliest possible plea of guilty; the evidence that is necessary; and the expected range of penalty, the upper limit of which (notwithstanding that there was a lengthy hearing on the particulars at sentence) is at or near the eventual penalty imposed on Hunter Quarries.

48. [132]

    Chapter 15 of the Advice deals with the course of conduct involved in pleading not guilty and refers to the preparation and hearing; the duration of such a hearing; the costs involved; and the hypothetical outcomes.

49. [133]

    Chapter 16 of the Preliminary Advice deals with a third course of conduct, being the entering of a “conditional” plea of guilty, being a plea to the charge but not the particulars. This, as is obvious from the foregoing, was the eventual course adopted. There is, thereafter, a reference to appeal options after the initial judgment and references to certain procedural issues.

50. [134]

    In Chapter 19 of the Preliminary Advice, the legal team recites its conclusions. Those conclusions include, albeit at a preliminary stage, that Hunter Quarries could not successfully defend the charge alleged, but a final opinion must, it was advised, await the provision of information requested. Further, the Preliminary Advice was, again, subject to the qualification to which reference has been made, that most, if not all, of the particulars of the charge could not be successfully defended, although the requisite causal nexus does not exist for some paragraphs or subparagraphs of the charge. Reference was made to further reports of mechanical experts and experts on quarry design.

51. [135]

    Lastly, the Preliminary Advice deals with the strategy beyond the time at which the advice was rendered. This includes the obtaining and provision of a number of reports and the receipt of documentation in response to summonses that are recommended to be issued.

52. [136]

    Mr Chevalley is a Director of Hunter Quarries, together with Hilton Grugeon and Mr Badior. That has been the situation since at least 2005 and at all relevant times.

53. [137]

    Mr Chevalley describes his background including his volunteer work with the New South Wales Rural Fire Service and the fact that he is an office holder of approximately 63 companies, 16 partnerships and 18 trusts, which employ approximately 250 employees in total.

54. [138]

    As a consequence, Mr Chevalley said he could not be involved in the day-to-day operation of each of the companies and he relied on staff. In particular, Hunter Quarries relied upon “the expertise and advice of the Inspectors and Mine Safety Officers” employed by the DPI, now called Department of Trade and Investment.

55. [139]

    Mr Chevalley sought to correct the Mine Safety Management Plan insofar as it described him as the “Managing Director” and asserted that he was not the Managing Director and no such position was ever created or held within Hunter Quarries. He also maintained that the title “Chairman” given to Mr Grugeon in minutes was the title adopted because “the Company’s accountant required one of the Directors to be described in that way”.

56. [140]

    Mr Chevalley described the quarry, although he had previously suggested he had no actual mining or quarrying experience. He was not at the quarry at the time of the accident on 14 June 2005.

57. [141]

    The affidavit attaches a chronology and other documents. Mr Chevalley then recounted what he said was his attendance and involvement in the Hunter Quarries’ trial and sentencing proceedings.

58. [142]

    It seems, from the terms of the affidavit, that Mr Chevalley refers to “trial” in a manner which is synonymous with or includes the sentence proceedings. It is clear also that the affidavit was crafted by lawyers.

59. [143]

    Mr Chevalley stated he attended “nearly every day” of the trial and described the first three days as being on 7, 8 & 9 October and being a “Hearing” at which, on the third day, a plea of guilty to a charge set out in the amended application for Orders was entered and thereafter the “hearing” resumed as a sentencing hearing for the remainder of the days. He described the date of the judgment and the amount of penalty and there was a reference to the costs orders, which had not yet been paid on the basis of an agreement between the parties not to enforce the costs order pending the outcome of the appeal.

60. [144]

    Mr Chevalley also recited that proceedings were commenced against him and against Mr Grugeon and the days of that hearing. During the course of that description, he made comments about witnesses and in particular Mr Sunol.

61. [145]

    Mr Chevalley described the circumstances in which the charges against him and Mr Grugeon were withdrawn and ultimately dismissed, with prejudice. The proceedings were dismissed on 22 October 2012 and on 27 November 2012 the proceedings in relation to Mr Chevalley and Mr Grugeon were before the Industrial Court on the question of costs. Ultimately, the Prosecutor agreed to pay the costs.

62. [146]

    On 1 November 2012, Hunter Quarries filed a Notice of Appeal and Application to Extend Time.

63. [147]

    The affidavit of 6 March 2015 then referred to issues associated with previous legal representatives. Different solicitors acted for Hunter Quarries before Backman J than act for Hunter Quarries before this Court or the Industrial Court on appeal. Similarly, different counsel appeared before Backman J. Hunter Quarries and Mr Badior were represented at first instance by senior and junior counsel.

64. [148]

    A Preliminary Advice was received after the Prosecution brief of evidence was served, which was in or about August 2007. The Preliminary Advice was 123 pages in length and incorporated parts of a less formal advice provided at a meeting in or about July 2007, the notes of which are before the Court.

65. [149]

    The written advice made reference to various parts of the Prosecution brief. It was sent by email at 4:44pm on 25 September 2007. There was a meeting the following day in relation to the Prosecution and the Preliminary Advice.

66. [150]

    At the conference on 26 September 2007, which Mr Chevalley, Mr Grugeon and Mr Badior, senior and junior counsel and solicitors attended, there was discussion as to the role of the DPI and senior counsel requested or suggested that a particular Inspector be contacted to enquire as to whether that Inspector would be prepared to give evidence of his involvement at the quarry, prior to the date of the incident on 14 June 2005. The Preliminary Advice, which is before the Court, was discussed. However, according to Mr Chevalley the Preliminary Advice was not “discussed in any detail”, nor was the application for orders. Nor, according to Mr Chevalley, were the “defences”, being the arguments the appellants could pursue.

67. [151]

    Arising out of the meeting on 26 September 2007, a Summons to Produce issued and it was confirmed that a final advice on evidence could not be delivered until receipt and consideration of the expert evidence.

68. [152]

    Mr Chevalley, at this point in the affidavit, seemed somewhat critical of the Preliminary Advice as to its style and content. It should be pointed out, as earlier stated, that Mr Chevalley was prosecuted individually and an Application for Orders against him was filed on 5 June 2007. At least from shortly after that date, he was personally advised and represented by the solicitors now appearing for the appellants. It is an element of a charge against a Director, in that capacity, that Hunter Quarries is guilty of an offence under the Act.

69. [153]

    During the course of the subsequent telephone conference, senior counsel, according to Mr Chevalley, said words to the following effect:

70. [154]

    Further, the solicitors then acting informed Mr Chevalley and those others present that she was in the process of drafting representations to the Crown Solicitor’s Office, requesting that the proceedings be withdrawn. That letter, according to Mr Chevalley’s version of that which the solicitor said, was to include the evidence that they said supported the submission that the charges be dropped “or that the particulars of the charges should at least be varied or removed”.

71. [155]

    Apparently these two statements were taken by Mr Chevalley to mean that there was no real choice but to make an offer to plead guilty by Hunter Quarries, on the basis that the individual charges would then be dismissed and that was the best result that it could obtain.

72. [156]

    Mr Chevalley also expressed a view as to what documents should or should not have been produced in answer to a summons for production. The basis for that opinion was not made clear.

73. [157]

    There was a further telephone conference between representatives of Hunter Quarries and Mr Badior and their legal representatives on or about 30 April 2008. Apparently, according to Mr Chevalley in his affidavit, the main topic of that meeting was the approach to be made to the Prosecutor for a withdrawal of the charges against the individual Directors, on the basis that Hunter Quarries would enter a plea of guilty to an amended form of the charge. To that approach and/or proposal according to Mr Chevalley in his affidavit, Mr Badior, Mr Grugeon and Mr Chevalley each indicated that Hunter Quarries was prepared to consider it.

74. [158]

    Representations were made to the Crown Solicitor’s Office on 9 July 2008. This was a letter sent by the then solicitors for Hunter Quarries to the Crown Solicitor’s Office attaching some 33 pages of representations and a proposed amended charge, being annexures 1 and 2 to the letter, all of which was before the Court.

75. [159]

    According to Mr Chevalley, in his affidavit, the discussion that occurred in relation to the representations was “the only occasion that [the solicitors] sought to break down the particulars of the charge and communicate to me in detail what defence case could possibly be made out against the charge”. Apparently a draft version of the document was emailed to Mr Chevalley on or about 1 July 2008. According to Mr Chevalley’s affidavit, there was a discussion with legal representatives in which Hunter Quarries confirmed it was prepared to enter into a plea to the form of charge annexed to the 9 July 2008 representations, if the charges against the individual Directors were withdrawn. There were discussions as to tactics and the use that could be made by the Prosecutor of the representations.

76. [160]

    It is appropriate to recite the reasons Mr Chevalley says in his affidavit that Hunter Quarries was willing to enter the plea and to make the proposal, summarised at [106] of the affidavit of 6 March 2015. They were:

77. [161]

    Mr Chevalley also expressed the following view at [107]:

78. [162]

    On 22 August 2008, the then solicitors advised Mr Chevalley that a communication from the Prosecutor’s legal team indicated that they were not prepared to accept the 9 July 2008 representations and intended to proceed with the prosecutions.

79. [163]

    On 5 September 2008, the then solicitors advised Mr Chevalley that they had begun to prepare a statement of Agreed Facts consistent with the 9 July 2008 representations, which would be necessary if a guilty plea were entered in order to limit the issues in dispute, if the matters were to proceed to a defended hearing. That advice is before the Court.

80. [164]

    On 15 September 2008, the Prosecutor formally confirmed that the conditions proposed by Hunter Quarries for a guilty plea to be entered were not acceptable to the Prosecution. A further conference was held with the legal team of Hunter Quarries and Mr Badior, including senior and junior counsel, and Mr Badior and the other two Directors of Hunter Quarries.

81. [165]

    An options paper was prepared, which included the proposition that it is likely “that the Prosecutor will succeed on one or more of the particulars of the charge”. According to Mr Chevalley in his affidavit, he still believed that “Hunter Quarries was not guilty of what the Prosecutor alleged in the Application for Order”.

82. [166]

    There was discussion as to the particulars of the charge during the course of the aforementioned conference and the other matters discussed at the meeting were:

    1. (1)

       Expert reports provided by the Crown Solicitor’s Office, including the report of Mr Sunol;

    2. (2)

       The role of DPI;

    3. (3)

       The fact that Hunter Quarries would not enter a plea of guilty to causing Mr Smith’s death;

    4. (4)

       Chain of custody of evidence; and

    5. (5)

       The circumstance that the trial judge had convicted other Directors.

83. [167]

    Mr Chevalley was advised by his then solicitors, on 26 September 2008, that Mr Badior had instructed them to plead guilty to the particulars contained in the proposal in the 9 July 2008 representations, provided that Hunter Quarries also would plead guilty on an equivalent basis and the proceedings concerning Mr Grugeon and Mr Chevalley would be dismissed.

84. [168]

    On 29 September 2008, Mr Chevalley informed his then solicitors, after speaking with Mr Grugeon and Mr Badior, that Hunter Quarries was prepared to enter the plea on the same basis as Mr Badior, outlined in the immediately preceding paragraph. The form of the charge to which a plea would be entered was required to be sent to the solicitors acting for Mr Chevalley and Mr Grugeon.

85. [169]

    On 29 September 2008, Mr Chevalley sent a letter to his then solicitors complaining about the quality of his legal advice, including that, in Mr Chevalley’s view, the defence case had been compromised by the 9 July 2008 representations.

86. [170]

    The Prosecutor rejected the 29 September 2008 proposal and, on 2 October 2008, a further conference with the legal team was held. During the course of the conference, which was a telephone conference according to Mr Chevalley, Mr Chevalley says that senior counsel gave advice that included the following:

87. [171]

    According to Mr Chevalley, the Directors of Hunter Quarries felt that Hunter Quarries had no real alternative but to plead guilty in the manner suggested or advised.

88. [172]

    Further discussions occurred both within the legal team and the Directors and with junior and senior counsel for the Prosecutors. On 8 October 2008, during the course of one of those conferences between the Directors and the legal team representing Hunter Quarries and Mr Badior, senior counsel advised that the Prosecutor was prepared to accept a plea on the basis of the form of charge proposed by Hunter Quarries and Mr Badior, subject to an issue as to the grade of the road at the point of the accident. He advised that the Agreed Facts would be dealt with at a later time and also advised that it was a good idea for Hunter Quarries and Mr Badior. senior counsel advised those present:

89. [173]

    Senior counsel advised that the usual practice was that a defendant would plead to an amended charge, the matter would be adjourned for a sentencing hearing and the Court would then hear submissions on the particulars pleaded.

90. [174]

    During the course of that conference, according to Mr Chevalley, in his affidavit, junior counsel gave the following advice:

91. [175]

    According to Mr Chevalley in his affidavit, notwithstanding the issues raised about the quality of the legal advice, Hunter Quarries relied upon and accepted that advice. Further, Mr Chevalley states in his affidavit that he now understands that the Industrial Court would take into account the fact that Mr Smith was killed in the accident, whether or not the charge was amended to remove specific reference to that issue.

92. [176]

    However, that latter opinion was not the advice of junior counsel. Junior counsel’s advice was that if the Statement of Facts were to include a statement that it was not known what caused Mr Smith’s death, then her Honour could not take it into account. The Agreed Facts do not include such an agreed fact or statement. The correctness of junior counsel’s advice, in this respect, is confirmed by the provisions of s 191(2) of the Evidence Act 1995 (NSW).

93. [177]

    On or immediately after 9 October 2008, Mr Chevalley signed an authority on behalf Hunter Quarries instructing them to enter a plea on behalf of Hunter Quarries. Mr Chevalley now says in his affidavit that Hunter Quarries entered a plea of guilty to the amended form of the charge on 9 October 2008 because it (presumably through its Directors) formed the view:

94. [178]

    It is alleged by Mr Chevalley that the failure and/or negligence of the legal representatives to Hunter Quarries in relation to possible defences denied Hunter Quarries the opportunity to make an informed decision about whether to enter a plea of guilty (affidavit of Mr Chevalley, 6 March 2015, at [180]).

95. [179]

    Further, Mr Chevalley suggested that Hunter Quarries ought to have relied upon the DPI and its audit for its defence (affidavit of Mr Chevalley, 6 March 2015, at [188(a)]). It was said the DPI undertook audits of the quarry and Hunter Quarries relied upon those audits. The audits did not comment on the construction of the Haul road; the maintenance of the truck, including brakes and steering; the competency of the mechanics; the system of pre-start checks, instruction, training and supervision; or the truck’s maintenance management system. Therefore, according to Mr Chevalley, Hunter Quarries understood that the DPI “was happy” with the matters described and nothing to the contrary was ever communicated to him.

96. [180]

    Somewhat unreliably, Mr Chevalley’s “recollection” was that concrete blocks were placed upon the embankment “as an additional form of berm”. The source of that knowledge, other than a casual drive in early June 2005, before the accident, was, it seems, a conversation with Mr Badior about improvements that were necessary in the road. How that conversation or its content fits with the proposition, earlier made by Mr Chevalley, that the DPI never commented on the construction of the road or the height of the berms is unclear and not clarified in the affidavit.

97. [181]

    Further Mr Chevalley had “concerns” about the fairness of the trial (by which we assume he meant the whole process including the plea of guilty and the sentence proceedings) because of the misuse of the information provided in the 9 July 2008 representations, consciously or subconsciously (affidavit of Mr Chevalley, 6 March 2015, at [199]). Complaint was also made as to the failure to object to expert reports sought to be tendered on 7 October 2008 in the course of opening submissions and the possible objections were not explained, it was said, to Hunter Quarries.

98. [182]

    Mr Chevalley also complained (affidavit of Mr Chevalley, 6 March 2015, at [213] and following) about the issue of the chain of custody of the truck and the equipment, prior to the expert reports being compiled. Complaint was also made (affidavit of Mr Chevalley, 6 March 2015, at [223] and following) as to the provision of additional material by the Prosecutor that were not provided to Hunter Quarries

99. [183]

    Ultimately, Mr Chevalley maintained that parts of the so-called Agreed Facts were untrue and known to be untrue and that he did not sign off on the version tendered by the Prosecutor, without objection, on 20 October 2008 (the first day of the sentencing hearing); that Hunter Quarries did not have competent advice that permitted the taking of proper instructions, including an explanation of the nature and scope of the defences that might be available; and that Hunter Quarries was not armed with the full knowledge of the facts and could not make an informed decision concerning available defences, the objections to be taken, the change of plea, the Agreed Facts, the evidence that should be produced and the arguments that should be put.

100. [184]

     It is this evidence that Mr Chevalley and Hunter Quarries relied upon to withdraw the plea of guilty.

101. [185]

     The second affidavit of Mr Chevalley of 9 September 2015 asserted that he, Mr Chevalley, was predominantly responsible for providing day-to-day instructions to the solicitors on behalf or Hunter Quarries, particularly after he and Mr Grugeon engaged separate legal representatives to advise them individually.

102. [186]

     The second affidavit took the form of annexing a number of file notes to conversations to which Mr Chevalley referred, directly or indirectly, in the first affidavit and commented thereon usually by agreeing or failing to recollect, those matters contained within those file notes. Mr Chevalley denied the content of some of those file notes.

103. [187]

     In some respects, despite the content of the file notes, Mr Chevalley disputed that he received proper advice or that the details of the issues were discussed. The file notes seem at least a little inconsistent with his recollection to which he attested on oath in the first affidavit. The file notes are before the Court and were exhibits to the second affidavit (some notes were exhibits to the first affidavit).

104. [188]

     It is difficult to summarise adequately the cross-examination of Mr Chevalley. As the comments from the Court made clear during the course of Mr Chevalley’s evidence, in particular his cross-examination and during closing submissions, Mr Chevalley’s demeanour was unsatisfactory.

105. [189]

     Mr Chevalley was mendacious; and gave the impression that his evidence was tailored to that which he considered best suited the appellants’ case; or he simply did not answer the question at all or adequately.

106. [190]

     At one stage, counsel appearing for Hunter Quarries objected to the cross-examination as being unfair. The objection disclosed, no doubt, the frustration that counsel for Hunter Quarries felt at the evidence of his witness. As a matter of abundant caution we observe that the cross-examination was precise, concise and telling. It was certainly not unfair.

107. [191]

     Nevertheless, the cross-examination occurred over two days and was thorough.

108. [192]

     As stated, counsel for Hunter Quarries complained to the Industrial Court that the cross-examination of Mr Chevalley was “unfair”. This complaint was not one supported by senior counsel for Mr Badior.

109. [193]

     When particularised, it seems that the complaint was that cross-examination was confined to that which supported the Prosecutor’s theory of the case and/or disclosed the inconsistency in Mr Chevalley’s evidence and did not repeat or confirm that which was otherwise in evidence.

110. [194]

     The Court rejected, and continues to reject, that complaint, the making of which discloses more about the complaining counsel’s understanding of the role of cross-examination than any other matter.

111. [195]

     During the course of the cross-examination there were many dates and events that Mr Chevalley maintained he could not recall, either exactly or at all. Initially, Mr Chevalley suggested that he was not “intimately” involved or “closely” involved in the providing of instructions for the litigation (appeal transcript, page 30).

112. [196]

     This comment is inconsistent with the tenor of the whole of the affidavit and evidence of Mr Chevalley and expressly inconsistent with comments otherwise made during the course of the evidence and summarised above. At page 31 of the appeal transcript, Mr Chevalley accepts that he was “certainly involved in the matter” in relation to the giving of instructions on that which could be agreed and the submissions that could be made.

113. [197]

     Mr Chevalley was cross-examined about the statements made on his behalf in the Court of Appeal to the effect that mistakes were made by Hunter Quarries and Mr Badior. During the course of that cross-examination, Mr Chevalley either maintained that he could not say that he read the submissions (inconsistently with other comments made) or could not recall saying that Mr Badior had not engaged in the role that he had expected as a Director.

114. [198]

     Cross-examination then proceeded in relation to the involvement of Mr Chevalley with the solicitors acting for him personally and the advices received. Notwithstanding the earlier evidence that he gave instructions to enter the plea, during the course of cross-examination (appeal transcript, pages 34-35) he could not recall giving those instructions, but said he could have. Mr Chevalley did eventually accept that he was often the one involved in providing instructions.

115. [199]

     Further Mr Chevalley accepted that the process of entering a plea included a process whereby there were Agreed Facts, which he was sent and which was the subject of negotiation between the representatives of Hunter Quarries and Mr Badior, on the one hand, and the Prosecutor on the other. Nevertheless, Mr Chevalley was not prepared to agree that he had a “heavy” involvement in commenting on the Statement of Facts, but he did read the Statement and made corrections and/or suggestions in relation to alterations to it.

116. [200]

     Mr Chevalley did ultimately accept that the Agreed Facts was read carefully. Later, Mr Chevalley agreed that he was the person with involvement in the conduct of the litigation.

117. [201]

     The cross-examination and the evidence of Mr Chevalley makes it clearer, if clarity were required, that Hunter Quarries differentiated (as did Mr Badior) between responsibility for failure to undertake steps that may have ameliorated risk, on the one hand, and, on the other hand, causing the death of Mr Smith.

118. [202]

     Indeed, Mr Chevalley agreed “absolutely” that, as someone with involvement in the conduct of the litigation, he would have been anxious to ensure that any material put before the Court on the sentencing hearing, on behalf or Hunter Quarries, would be truthful and not only Mr Badior’s affidavit. (appeal transcript pages 36-37).

119. [203]

     A number of questions relating to Hunter Quarries’ acceptance of responsibility for safety lapses were not answered satisfactorily. Nevertheless, at page 37 of the appeal transcript Mr Chevalley was asked whether, as the person responsible for giving instructions on behalf Hunter Quarries, at the time of the sentencing hearing, Hunter Quarries regretted that Mr Smith was put at risk by the actions of Hunter Quarries. His response was to take issue with the timeline and to signify that the views of Hunter Quarries may have changed significantly from early 2008.

120. [204]

     Ultimately, when pressed as to the time at which Mr Chevalley said Hunter Quarries’ views had changed, he could not recall, but did accept that Hunter Quarries regretted that Mr Smith had been put at risk by the actions of Hunter Quarries at one point in time, but that view had altered over time.

121. [205]

     Mr Chevalley did not recall whether Hunter Quarries regretted exposing its employees to a risk in the work place, but accepted that it was possible. Mr Chevalley did not recall whether it was a very important matter on behalf of Hunter Quarries, at the time of the sentencing hearing, to demonstrate some sort of contrition or regret.

122. [206]

     Nor was Mr Chevalley able to recall whether Hunter Quarries “had a sincere and genuine regret and contrition that the incident was not prevented” at the time of the sentencing hearing. He did however comment that it “sounds like something that the lawyer would have written up, so maybe the lawyers have written this, but not with my advice, but it could have happened or not happened”.

123. [207]

     When the question was put that he was “not suggesting that anything the lawyers put … on the sentencing hearing that [he] attended and [for which he provided] instructions … would have been anything other than the truth”, Mr Chevalley suggested that it may have been and “it was often their version of the truth” which was not “ever run by me or run by us”. And, it seems, he was content for the lawyers to put what he recalled was “their version of the truth”.

124. [208]

     Properly understood, particularly in light of the demeanour of the witness at the time these answers were given, it seems Mr Chevalley was, at best, content to allow his legal team, at the sentencing hearing, to mislead the Court. However, the preferable interpretation of the evidence and the demeanour in which it was given was that Mr Chevalley was prepared, in these appeal proceedings, to give any evidence that he considered assisted with the appeal, regardless of the truth of the evidence or whether it was misleading this Court.

125. [209]

     At pages 40-41 of the appeal transcript, Mr Chevalley accepted, despite earlier evidence given, that he saw the draft of the affidavit of Mr Badior, filed in the sentence proceedings, and that it was sent to him as a draft, but sought to qualify that situation (independently and objectively proved) by suggesting or commenting in evidence that it did not mean that Mr Chevalley had read it all.

126. [210]

     Mr Chevalley was then referred to emails disclosing that his instructing solicitors, representing Mr Chevalley and Mr Grugeon personally, were sent the draft for the purpose of review and, it seems from the facsimiles, that Mr Chevalley had a role in the review of Mr Badior’s affidavit.

127. [211]

     Ultimately, although it took some time to obtain it, Mr Chevalley accepted that, in or about October 2007, the position of Hunter Quarries was that it would “cop” system failures but would not “cop” that Hunter Quarries caused the death of Mr Smith. Mr Chevalley suggested that, at that time, a body of evidence was accumulating suggesting that there was some doubt about what actually caused Mr Smith’s death

128. [212]

     References were made in the course of the cross-examination to the facsimiles and documents at page 2198 (attendance record), 2194 (part of the affidavit, particularly paragraphs 295, 296, 297 and 298), volume 2, page 902, page 908, page 992, page 993 and following.

129. [213]

     Mr Chevalley was then cross-examined as to the Preliminary Advice, summarised above, which Mr Chevalley maintained he did not read in detail and, in his evidence, did not recall whether he even read the Executive Summary.

130. [214]

     It was suggested to Mr Chevalley by Mr Lee SC that the Preliminary Advice “is an extraordinarily detailed and bespoke advice directed at the particular charges and the particular circumstances of the offence”, to which Mr Chevalley responded that there was “certainly … some detail”.

131. [215]

     Mr Chevalley’s evidence was unsatisfactory. One example of his prevarication, disinclination to answer, avoidance of questions and mendacity, was the series of questions as to whether, during the entire period that he complains about advice, Mr Chevalley had other lawyers providing him (and others) with a second opinion about his position and also about the position of Hunter Quarries.

132. [216]

     Mr Chevalley answered the foregoing questions in the negative and confirmed that he was answering in the negative. He answered in the negative only after a direction by the President to answer the question directly. Further, questions were asked in relation to it, and further directions to answer the questions as asked, and ultimately, Mr Chevalley answered in the affirmative that he “received a second opinion”. The two answers are directly inconsistent, although only a page apart.

133. [217]

     The questioning went to the tactics of Hunter Quarries and the Directors that had been charged. The combination of the objective material available in file notes and correspondence, together with the answers and non-answers of Mr Chevalley, makes clear that the overall tactic was to seek to have the Directors acquitted, or the charges withdrawn against them, and, if necessary, have Hunter Quarries plead guilty to the charges against it.

134. [218]

     At one stage, one of the Directors (not Mr Chevalley) suggested that, if Hunter Quarries were fined, Hunter Quarries could be liquidated and the fine not paid. Further, the opinion was expressed that the Directors were prepared to have Hunter Quarries fight for 20 years.

135. [219]

     At page 70 of the appeal transcript Mr Chevalley accepted that the appellants (together with Mr Chevalley and Mr Grugeon) put representations to the Crown Solicitor’s Office that if the individual Directors were not the subject of proceedings and released from any charge, Hunter Quarries would plead guilty. Further, Mr Chevalley was taken to the file note of the meeting of 24 October 2007 (page 991) and to the comment at the bottom of page 992 that they “can’t cop that we caused his death, can cop systems failures”.

136. [220]

     Mr Chevalley’s evidence was inconsistent in a number of respects. There was inconsistency, for example, about whether Hunter Quarries ever came to a position that it may need to plead guilty at the end of the day and Mr Chevalley gave inconsistent answers, one of which was that such a course was not “the preferred strategy”.

137. [221]

     Cross-examination then occurred in relation to the first time Hunter Quarries considered withdrawing the plea and the other courses of conduct that were available, instead of a withdrawal. Further, Mr Chevalley does not recall joint meetings of the legal team for Hunter Quarries and Mr Grugeon and himself.

138. [222]

     Mr Chevalley was referred to page 1707 at which it was made clear that a plea of guilty could be withdrawn at a later stage, although there would be difficulties associated with withdrawing a plea that was made in Court. Mr Chevalley does not recall any such conversation.

139. [223]

     Mr Chevalley was then referred to the application for an extension of time and the allegation in the affidavit in support that the investigation report of DPI was not provided by the Prosecution to Hunter Quarries. Mr Chevalley accepted that he provided instructions and that he looked for the document prior to the affidavit being sworn.

140. [224]

     Nevertheless, he now accepts that the DPI investigation report was provided in the Prosecution’s Brief of Evidence and that his legal representatives commented on the DPI investigation report in the Preliminary Advice.

141. [225]

     Further, while the answers were not given directly in relation to this subject matter, Mr Chevalley accepted that Inspector Chilman had required “improved bunding”, being a reference to the berms, on several occasions. Mr Chevalley said he only understood that by hearsay (i.e. he had been informed by others of that advice) and suggested that the Inspector (Inspector Chilman) had given contrary information in another document.

142. [226]

     Mr Chevalley was then asked whether there was anything else that he says Hunter Quarries were denied that would have made a difference to the plea that was entered. Mr Chevalley replied by reference to Mr Sunol’s report relating to the truck running out of fuel.

143. [227]

     However, on further cross-examination, Mr Chevalley accepted that he, their solicitors and counsel, in consultation with the OHS Superintendent Coordinator spent an exhaustive amount of time dealing with the fuel issue, going over records, to provide instructions meticulously.

144. [228]

     Mr Chevalley could not recall any other information that was not received but should have been, but suggested that there was some and that he identified it in the affidavit. On further questioning, Mr Chevalley referred to the capacity of the maintenance person to carry out maintenance on the make of truck that was being used; that the DPI had suggested he was not qualified, yet the DPI had made no comment on his capacity over the two years in which they were investigating the quarry. Again, Mr Chevalley accepted that the issue of maintenance of the truck was a matter that was exhaustively canvassed with legal counsel before entering the plea.

145. [229]

     On further questioning, and despite Mr Chevalley’s inability to recall any details, Mr Chevalley suggested that the qualifications of Mr Sunol as an expert investigator was an issue upon which, if he were to have had the information, would have possibly altered the plea (appeal transcript, pages 90-91).

146. [230]

     The respondent then cross-examined Mr Chevalley on the discussions that occurred between him (and other Directors of Hunter Quarries) and his legal advisors as to the approach to be taken to Mr Sunol and his report. Mr Chevalley accepted that such discussions occurred, but denied that the legal representatives suggested that there would be an “attack” on Mr Sunol’s report and capacity. When the question was asked a second time, Mr Chevalley stated that he was not aware of the discussions about the approach to Mr Sunol’s evidence.

147. [231]

     There were then questions relating to the Agreed Statement of Facts. Initially Mr Chevalley denied, or did not recall, when he had been asked to start preparing an Agreed Statement of Facts. He was taken to a number of documents (pages 1370, 1372, 1374, 1392, 1395) relating to requests for the Agreed Statement of Facts and discussions with Mr Chevalley in relation to those.

148. [232]

     Further, Mr Chevalley could not recall being given advice (page 1449) as to the appropriate height of a berm at the point where the truck ran off the roadway downhill on a bend; that the berm was not in existence at the quarry at that point; and the effect of that on any possible defence as to reasonable practicability. Notwithstanding his lack of recall, Mr Chevalley accepted that it was consistent with the advice previously given to them by counsel that Hunter Quarries was likely to be found guilty “in this jurisdiction”, being a reference to the Industrial Court.

149. [233]

     The tactics were the subject of cross-examination and Mr Chevalley was taken to page 1643, a diary note of a communication with him on 25 September (see also page 1645) in which it was made clear that Hunter Quarries would not, under any circumstances, agree that they caused the death of Mr Smith. Mr Chevalley was cross-examined in relation to the role played by his and Mr Grugeon’s lawyers and the tactic based upon the proposition that the Prosecution case against Mr Chevalley and Mr Grugeon, personally, was weaker, than the Prosecution case against Hunter Quarries and Mr Badior. References are made to various items of correspondence between the individuals and Hunter Quarries and their respective lawyers.

150. [234]

     In questioning about the tactics and the attitude of Hunter Quarries, Mr Chevalley initially denied there was a distinction in his mind between Hunter Quarries pleading guilty to exposing Mr Smith to a risk and Hunter Quarries admitting that it caused Mr Smith’s death. Mr Chevalley stated that to him, they were the same (appeal transcript, page 113 line 45-50).

151. [235]

     Then Mr Chevalley did not recall giving instructions for the Statement of Facts to allege, amongst other things, that Hunter Quarries did expose Mr Smith to a risk (appeal transcript, page 114). Then at page 115 of the appeal transcript, shortly after the short morning adjournment, Mr Chevalley gave evidence that he drew a distinction between Hunter Quarries exposing Mr Smith to a risk and Hunter Quarries causing the death of Mr Smith.

152. [236]

     A draft of the Agreed Facts document, with tracked changes, was the subject of cross-examination, to the same effect. Further, Mr Chevalley repeated the evidence that he was aware that Hunter Quarries could withdraw its plea of guilty at any time up to the sentence and he answered positively to the assertion that Hunter Quarries determined, on the basis of the advice they had received at the time, that, notwithstanding that the issue of the causation of Mr Smith’s death remained on the table, it would not make an application to withdraw the plea of guilty during the course of the sentencing hearing (page 120-121). The decision not to make an application to withdraw the pleas was based upon legal advice, which Mr Chevalley now regrets.

153. [237]

     It was then put to Mr Chevalley that he and Mr Grugeon took proceedings in the Court of Appeal and that Mr Chevalley’s submissions in the Court of Appeal were to the effect that Mr Badior (and Hunter Quarries) had made mistakes for which they had pleaded guilty in order to differentiate the position of Mr Chevalley and Mr Grugeon from that of Hunter Quarries and Mr Badior. Mr Chevalley did not “recall” the submission.

154. [238]

     It was then suggested to Mr Chevalley that he had made a decision to use Hunter Quarries’ conviction for his own personal advantage in running a case in which he said that Hunter Quarries’ conviction meant that he would necessarily be conflicted. Mr Chevalley did not respond to that suggestion. He was asked whether he understood the proposition and he replied in the affirmative.

155. [239]

     He then suggested that it was the way the cross-examiner saw the matter, not necessarily the way that he himself saw it and, on a further question, suggested that it “may have been the case that my legal team could have, but I didn’t consciously make that decision”.

156. [240]

     The cross-examiner then asked whether, or suggested that, counsel acting for Mr Chevalley in the Court of Appeal were not acting on his instructions. Mr Chevalley replied that he did not “recall giving those instructions”. Those and later questions make clear that Mr Chevalley was giving evidence to the effect that he did not recall giving those instructions, but he did recall the submission being made.

157. [241]

     The submission to the Court of Appeal was read and provided to Mr Chevalley and he was asked whether that submission reflected his “genuine view” as at the date it was filed. His answer was relatively non-committal but, in so stating that, he made clear that it had been put before the Court so “yes”, it was his genuine view, as at that date.

158. [242]

     He was then asked the question again, to which Mr Chevalley answered, no as it was not his genuine view (appeal transcript, page 126 lines 1-17). Mr Chevalley then revisited the issue and maintained that he did not recall that submission being made (appeal transcript, page 126 line 36).

159. [243]

     Finally, the cross-examination concluded with a number of logical consequences. First, it was suggested that, after the charges against Mr Chevalley and Mr Grugeon were dismissed, he and/or Hunter Quarries “would have another go and … would try to get Hunter Quarries and Mr Badior off the hook” to which Mr Chevalley agreed, but qualified it as being based on the evidence that became apparent through those proceedings. It was suggested to him that that was a complete exercise in revisionism, which Mr Chevalley denied.

160. [244]

     Nevertheless, Mr Chevalley accepted that he and Hunter Quarries were prepared to make submissions to the Court of Appeal and to the Full Bench of the Industrial Court without any reference to Prosecutorial non-disclosure and no issue about bad legal advice; and that throughout he had been advised that Hunter Quarries had difficulties in defending the charge and, in that regard, he and Hunter Quarries had received “extraordinarily detailed advice” to that effect.

161. [245]

     Mr Chevalley also accepted that it was of great concern that Hunter Quarries would be liable for the death of Mr Smith, but it was prepared to plead to the fact that there was a risk of injury to Mr Smith.

162. [246]

     Further, the guilty plea of Hunter Quarries was used as a catalyst for the potential release of the three Directors, on the advice from the legal team, and, when it became inevitable that Hunter Quarries and Mr Badior would be found guilty, Mr Chevalley and Mr Grugeon would continue to plead not guilty in what were perceived to be the potentially stronger cases.

163. [247]

     In that process Mr Chevalley consciously gave instructions to agree, himself, that Hunter Quarries agree to a Statement of Facts whereby Hunter Quarries caused risk to Mr Smith and, when it became apparent, which was immediately thereafter, that the cause of death was still being pressed by the Prosecutor at the sentence hearing, no attempt was made to withdraw the plea “because it was perceived by [Mr Chevalley] on the basis of advice at that time that there was no point in doing so”.

164. [248]

     While Mr Chevalley denied that he and Hunter Quarries had, “entirely cynically”, made false allegations against senior practitioners and denied that he had been given throughout “competent, thorough, thoughtful, accurate legal advice up until the Company entered the plea”, he also agreed that no stone was left unturned in order to protect the interests of Hunter Quarries and Mr Badior, by making the comment that his “position has always been to strenuously defend the Company and Mr Badior”, despite the plea of guilty.

165. [249]

     The re-examination of Mr Chevalley did not add to the material evidence in the proceedings. That is not said by way of criticism of the re-examination, but as a reflection on the thoroughness of the evidence-in-chief and the cross-examination.

166. [250]

     The re-examination was short and, during the course of it, the Court made clear that it was unnecessary to obtain evidence from the witness in order to put a submission that arose from the terms of a document. It seems that the appellant was concerned with any inference or comfort that might be drawn from Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

167. [251]

     It would be unusual if the circumstances were to arise in which a Jones v Dunkel approach might be applicable to criminal proof (see Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65; The Queen v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35), but the inference or comfort drawn from the principles in Jones v Dunkel is “plain common-sense”. Further, in a criminal trial any failure to call evidence cannot usually be used against the accused and the failure to call an independent witness may as easily be a matter for the drawing of an inference against the Crown, rather than the accused: see RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [28]-[29].

168. [252]

     More relevantly, if the evidence is contained in a document and arises on the face of the document, there is no need to call oral evidence to corroborate it. Further, any explanation for the conduct of a witness (or the evidence of a witness) available from a document remains available, whether or not the witness is reminded of the document. There are occasions where the failure to provide a witness with an opportunity to explain conduct may be unfair and give rise to issues associated with Browne v Dunn (1893) 6 R. 67, but there is no suggestion of any such situation arising in the these proceedings.

Richard Badior

1. [253]

   The second appellant, Mr Badior, was called and cross-examined. His evidence-in-chief is contained in an affidavit sworn 6 March 2015.

2. [254]

   As already stated in the evidence of Mr Chevalley and otherwise conceded in the proceedings, Mr Badior was a Director of Hunter Quarries and the Quarry Production Manager, Karuah Quarry (“the quarry”) at which the breaches are said to have occurred. Mr Badior commenced with the evidence of the commencement of proceedings against him and subsequently against each of Mr Grugeon and Mr Chevalley. The proceedings against him were commenced at or about the time of the commencement of the proceedings against Hunter Quarries. Much of the evidence from Mr Badior is evidence that was, at least to some extent, covered by the evidence-in-chief of Mr Chevalley.

3. [255]

   He referred to solicitors acting for Hunter Quarries and himself and to the engagement of counsel on their behalf. Those solicitors and counsel continued to represent Mr Badior until the sentence judgment was delivered by Backman J in October 2009.

4. [256]

   Mr Badior referred to the Prosecution being served, on his understanding, on his solicitors in or about September 2007 and the provision of the Preliminary Advice, dated 25 September 2007 to him from his legal team. The advice was read and he provided instructions to his solicitors, at least initially, on the basis that he was not guilty of the matters alleged. He also provided copies of interviews he had been required to undertake with officers of the DPI.

5. [257]

   There was similar evidence as to the questioning by senior counsel and the answers from Mr Badior relating to the role of the DPI and the effect of the inspections by one, or more, inspectors and the advice from senior counsel that the inspector should be contacted to see if he was prepared to give evidence of his involvement at the quarry prior to the incident.

6. [258]

   There is also a short reference to the issuing of a summons to the DPI requesting records.

7. [259]

   He referred to a conference on 8 October 2007 in which, to summarise his evidence, the partner solicitor indicated a degree of confidence as to the capacity to defend the charges against the individual directors and the determination by them to take up the fight. That partner did not ever advise Mr Badior that he should plead guilty to the charge or any of the particulars. Following the phone conference of 8 October 2007, a plea of not guilty was entered for Hunter Quarries and for Mr Badior.

8. [260]

   Mr Badior testified to the fact that he received “no further advice in relation to this matter until [he] was urged to enter a plea of guilty in the two weeks prior to and during the trial of the matter”. He referred to the conference on 19 September 2008, during which he was provided with the options paper to which reference has been made in the summary of Mr Chevalley’s evidence.

9. [261]

   The plea of guilty to the amended application was entered by Mr Badior on 9 October 2008 and, according to Mr Badior, based upon the advice he received from counsel and the documentary and other material then available to him. Mr Badior asserted, in his affidavit, that he was not aware, at the time of the plea, that, as part of the investigatory process, the DPI had interviewed the inspectors and investigated their attendance audits and approval of the site or his management of it. He understood, prior to entering the plea of guilty (and to agreeing to it) that the amended application was to remove any reference to Mr Badior causing (or Hunter Quarries causing) the death of Mr Smith.

10. [262]

    When Mr Badior examined the amended application he noticed that it omitted any reliance upon the failures of Hunter Quarries or Mr Badior as causing the death of Mr Smith. He asserted that were he to have been advised that the issue was capable of being raised during the sentencing proceedings, he would not have entered the plea to the amended application.

11. [263]

    Mr Badior also asserted that he “firmly believed” that he was not guilty of any offence in relation to the accident. He referred to advice that he recalls as being from senior counsel “very strongly” that “Justice Backman never acquits a defendant” and that, therefore, he would be convicted. The affidavit of Mr Badior asserted that as a result of the advice as to the attitude of the trial judge and the advice he was given to plead at the earliest opportunity in order to obtain a better result, he “felt an overwhelming pressure to enter the plea of guilty”.

12. [264]

    Nevertheless, his evidence-in-chief makes clear that Mr Badior was focused on ensuring that he was not pleading to causing the death of Mr Smith, although, on his assertion, without much understanding of the particulars of the charge which form the basis of the plea.

13. [265]

    After the plea was entered, discussion occurred with senior counsel as to the proposition that there could be a s 10 order (a reference to a finding of guilt without the recording of a conviction, pursuant to the terms of s 10 of the Crimes (Sentencing Procedure) Act). Mr Badior was advised that by entering a plea of guilty at the earliest possible opportunity, the penalty and costs would be significantly reduced.

14. [266]

    Next, Mr Badior referred to the discussions with his counsel and legal team about negotiations with the Prosecution in order to arrive at an agreed facts document. Mr Badior was advised that he could contest facts that were not agreed and that “a set of agreed facts reflecting these matters (a reference to the set of facts for presentation setting out factual material that was agreed in relation to each particular in the charges) would be agreed. It was on this basis that Mr Badior agreed to enter the plea of guilty.

15. [267]

    By way of complaint, it seems, Mr Badior attested to the fact that at no time did his legal team advise him that reliance could be placed on the conduct of the DPI in sanctioning, approving or otherwise not dealing with any difficulty with the design of and building of the Haul road. Nor was advice given as to any reliance that could be placed upon the qualifications and experience of Mr Smith as a diesel mechanic.

16. [268]

    The affidavit of Mr Badior then dealt with the difficulties he perceived occurred in relation to the report of Mr Sunol. Mr Badior maintained that he was never advised by his legal team that the report and its contents could be challenged or that it was possible for the report to be not admitted against him, thereby significantly weakening the Prosecution case against him.

17. [269]

    Lastly, Mr Badior attested to the fact that he had now instructed his current legal representatives to run his case to contest the charges, if the Court were to allow him to withdraw his plea of guilty and that “at all times” he believed that he did not commit an offence “in relation to the death of Mr Smith” and he has always believed, since he was convicted in 2009, that his plea of guilty was wrong. In his words: “it [the plea] was only entered on the pressure of my lawyers and on a misunderstanding of the amended charge and the evidence available in the case. I am bitterly disappointed that the lawyers who represented me did not properly advise me or put my case forward in a proper way”.

18. [270]

    Mr Badior was cross-examined. During the course of that cross-examination Mr Badior gave the following evidence:

19. [271]

    The foregoing dot point summary is only intended to be only a summary of the evidence adduced through Mr Badior. The re-examination dealt with an issue not summarised above relating to another offence in another company with which Mr Badior had no relationship.

20. [272]

    Evidence was also adduced relating to attempts to obtain evidence from senior and junior counsel below. No inference is drawn on account of the failure to call those witnesses. However, it must be said that the suggestion by senior counsel (and, by reference, junior counsel) that he should have access to documents that involved him, to refresh his memory, and should be paid for the time associated with the preparation for any such conference (and evidence) is not unreasonable.

21. [273]

    On one view, a contrary approach in relation to the provision of documents would be unhelpful. Nevertheless, as earlier stated, no inference can be drawn and the evidence, such as it is, stands or falls on that which has been adduced.

22. [274]

    It is unnecessary to summarise the other evidence in the “appeal” proceedings. The foregoing deals with the substantive evidentiary issues relating to the withdrawal of the plea.

Consideration and Submissions

1. [275]

   As earlier indicated the submissions were lengthy. The appellants’ Joint Submissions are 188 pages in length, plus annexures and tables. The appellants’ Joint Reply Submissions are 28 pages in length. The appellants’ Further Joint Reply Submissions are 62 pages in length. Directions were previously given by the Industrial Court for the filing of written submissions, leave was granted to the appellants to reply to the respondent’s oral submissions, by the Full Bench of the Industrial Court (being the judges that comprise this bench) by the filing of “skeleton outlines of the replies in writing”. The matter was to have been listed before the Court for one day to accommodate any additional oral remarks in reply.

2. [276]

   Given the length of the submissions, particularly by the appellants, it is inappropriate for the Court to seek to summarise them. The gist of them will be indicated during the course of the consideration of each of the grounds.

3. [277]

   Because the submissions of the appellants on some issues relate to more than one ground of appeal, it is convenient to deal with those major issues and then the Grounds of Appeal.

Failure to Disclose Material or Evidence by the Prosecution

1. [278]

   The appellants have filed a table of non-disclosed, fresh and/or new evidence and reports said to be inadmissible, wrongly admitted and/or not entitled to be afforded any weight (hardcopy appeal book, volume 1 , tab 5, page 39 and following). Those items said to be non-disclosed (some of which also fall into other categories) were the subject of comment in the affidavit of Ms Rizzo and are recited later in these Reasons for the dual purpose of summarising that which the appellants say is undisclosed and the Respondent’s comments thereon.

2. [279]

   On the face of the foregoing descriptions, it is difficult to understand how, in relation to some of those matters, their disclosure was required by the Prosecutor or their non-disclosure could possibly amount to a miscarriage of justice. The most obvious example of that are the invoices for fees of senior and junior counsel to the Prosecutor. Nevertheless, the submission of the appellants goes beyond those obvious examples of irrelevance.

3. [280]

   In Ms Rizzo’s affidavit, sworn 29 May 2015, upon which there was no cross-examination, the foregoing allegations of non-disclosure are grouped. Further, Ms Rizzo attested to the service of a number of documents, copies of which were annexed and marked.

4. [281]

   Annexure MRR-6 to the affidavit of Ms Rizzo is a table setting out each of the items of allegedly non-disclosed evidence and comments thereon from Ms Rizzo. Again, it is noteworthy that there was no cross-examination of Ms Rizzo. The table is in the following form:

5. [282]

   The comments of Ms Rizzo are generally accurate and summarise the evidence otherwise before the Court. In its submissions on appeal, the respondent dealt with the documents in a number of categories. It is convenient to deal with them in the same manner.

6. [283]

   The policy of the State of New South Wales that is contained in the Mine Safety Investigation Manual relating to examining the DPI’s role leading up to the incident, which is item 1 in the appellants’ schedule, is an internal DPI document of general application. None of the information therein is specific to the prosecutions in question. The document is available publicly on the internet and was provided by Hunter Quarries to its then solicitors and the terms of the policy, best located electronically, arise from recommendations made following criticism of the role of various government departments following the Gretley proceedings (Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2004] NSWIRComm 202).

7. [284]

   On the face of the document, it is clear that it outlines various policy issues as to the conduct of an investigation into the government and is not directly relevant to the proceedings before the Industrial Court. Nor could the document, even if the appellants were unaware of the document, lead to a relevant line of enquiry or area for cross-examination.

8. [285]

   Item 2, in the table above, which is the Investigation Report for Director General into the Accident Resulting in the Death of Darren Smith dated 7 July 2006 was, in fact, provided (or a copy of it provided) to Hunter Quarries and the covering letter to Mr Chevalley dated 11 August 2006, countersigned by Mr Chevalley, is in evidence.

9. [286]

   Further, as may be obvious from the previous summary of the Preliminary Advice, it was the subject of comment by the legal team to both Hunter Quarries and Mr Badior, well before the plea of guilty.

10. [287]

    The respondent’s submissions, in this area, group items 4, 5, 8, 9, 12, 13, 19 and 20 in the foregoing table, because each relates to information about an investigator’s inspection of the quarry and the haul road, which, in turn, relates to what is alleged to be a defence under s 28 of the Act relating to the role of the Inspector and the DPI. As outlined by the respondent, the handwritten notes, about which complaint was made, were contained in the Investigation Report which were provided to, or in the possession of, the appellants and their advisers and expressly referred to in the Preliminary Advice.

11. [288]

    An examination of the documents to which the respondent refers discloses, first, that the appellants and their advisers had knowledge of each of Inspector Chilman’s inspections and that the use of those inspections and the role of the DPI for the purpose of the proceedings, and in particular in establishing a defence or a mitigating factor on sentence, was expressly discussed in the Preliminary Advice and otherwise in correspondence. So much is conceded by both Mr Chevalley and Mr Badior.

12. [289]

    Items 5, 8, 9, 10 and 13 are grouped, in the respondents’ submissions, on the basis that each concerns information about Mr Barnes’ inspection of the quarry and the truck and, similarly to the immediately preceding paragraph, the proposition that it could be a matter upon which the appellants could rely in raising a s 28 defence or mitigating culpability on sentence. The reference to item 5 has been dealt with in the immediately preceding paragraph, but the handwritten notes taken by Mr Piggott were contained in the Investigation Report to which reference has already been made in these reasons.

13. [290]

    As already stated, the Investigation Report was in the possession of the appellants. Further, in a similar fashion to the inspections of Inspector Chilman, the appellants and their advisers had complete knowledge of Mr Barnes’ inspections. The foregoing references to transcript in the submission of the respondents on this issue are also relevant to this group of supposedly non-disclosed items, each of which was in the possession of each of the appellants; was discussed by them with their legal advisors; and was referred to in the Preliminary Advice in more general terms and in other correspondence that is before the Court.

14. [291]

    The appellants then rely upon the fact that the DPI was trying to obtain mobile phone records, which fact, the appellants submit, was not communicated to them. First, the existence of a mobile phone near the truck and Mr Smith was a matter upon which the appellants themselves relied before Backman J. Secondly, the need to obtain phone records so as to obtain evidence as to whether phone calls had been made at or about the time of the accident was a matter expressly discussed between the appellants and the Prosecutor, during the course of the investigation and/or proceedings before Backman J.

15. [292]

    The appellants also complain about the lack of information about the weather conditions on the night and whether fuel was observed leaking out of the truck, including the issue of what fuel remained in the truck: see items 11 and 21 in the foregoing table. The defendants below, the appellants here, had abundant information provided to them by the Prosecutor and otherwise available, about the weather conditions on the night of the accident. They also had each of the statements by witnesses as to the observation of the weather conditions and the presence of fuel.

16. [293]

    The lengths to which counsel for Hunter Quarries, in particular, went to suggest impropriety in the Prosecutor can best be demonstrated by the complaint about the lack of provision of the email from Mark Freeman to Tim Flowers of 20 August 2008, which recorded answers from Mr Hepplewhite. The email and its contents was not disclosed or provided to the appellants.

17. [294]

    However, that comment by the appellants does not disclose that exactly the same information is contained in a statement by Mr Hepplewhite dated 3 September 2008 and served on the appellants before the plea. The information was substantially or wholly provided to the appellants by the Prosecutor below and the complaint has no substance.

18. [295]

    There are a number of items that relate to documents relating to the finalisation of Mr Sunol’s Expert Report (24 September 2008) from a Pre-Prosecution Report dated 28 June 2006.

19. [296]

    Some of this complaint can be dealt with under the rubric relating to the complaint about the expert reports generally. As is clear from the affidavit of Ms Rizzo, the appellants were provided with both the Pre-Prosecution Report and the Expert Report. Only the Expert Report was tendered by the Prosecutor in evidence (which aspect will be the subject of later analysis).

20. [297]

    Nevertheless, no complaint was or could be forthcoming about the non-tender of the Pre-Prosecution Report. It was provided to the appellants and the complaint, insofar as it deals with the non-provision of the Pre-Prosecution Report, is untenable.

21. [298]

    The two documents provided could be compared and the changes to them identified. Those changes could be used in the cross-examination of Mr Sunol and they were. A comparison of the Pre-Prosecution Report and the Expert Report was relied upon by the appellants below.

22. [299]

    The findings of the report and the statements contained in it, compared to the statements in the Pre-Prosecution Report, are either consistent or inconsistent. If the statements or outcome were consistent, the alteration in wording is irrelevant.

23. [300]

    If the results or contents of the Report were inconsistent, then, similarly, the means by which that inconsistency arose would be, at best from the perspective of the appellants, irrelevant. At worst, it might explain an inconsistency, which, otherwise, is inexplicable.

24. [301]

    Further, to the extent that any alterations occurred as a result of a conference with any one of the legal team to the Prosecution, the contents of any such conference may, but not must, be the subject of legal professional privilege: New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258; but if the draft documents were prepared by Mr Sunol for his own purposes then they would not be privileged.

25. [302]

    In any event, no evidence suggests that the non-disclosure of the email or its contents was in any way deliberate or that it caused the appellants to act in a manner differently than the disclosure of the information in the statement. It cannot be suggested that the failure to disclose the email and its contents, either of itself or together with other material, caused a miscarriage of justice.

26. [303]

    Item 45 complains about the non-provision or non-disclosure of Mr Sunol’s comments on the Prosecutor’s opening submission. Ms Rizzo testifies that this document was prepared for the purpose of ensuring the accuracy and correctness of technical issues.

27. [304]

    However, it is difficult to understand how this material could possibly be relevant to this appeal. The document was prepared in relation to the opening submissions in the proceedings against Messrs Grugeon and Chevalley and does not relate to that which occurred in the proceedings currently under appeal and, particularly, did not occur prior to the service of the report of Mr Sunol or the plea of guilty.

28. [305]

    In the preparation of Mr Sunol’s Pre-Prosecution Report, there were working papers and drafts which are the common feature in items 46, 47, 50, 71, 72, 73, 74, 84, 86 and 91 of the foregoing table. Fundamentally there are two major aspects to the complaint.

29. [306]

    The first relates to the admissibility and process by which Mr Sunol delivered his report. The second aspect deals with the failure to disclose preliminary expressions of opinion provided prior to the completion of the Pre-Prosecution Report. As to the latter, there is no obligation to disclose preliminary expressions of opinion. As to the former, it will be dealt with when dealing with the ground of appeal relating to the expert reports.

30. [307]

    The Rizzo affidavit refers to Mr Bridle’s recommendations to Mr Sunol in the affidavit of Ms Rizzo. A transcript of the interview with Mr Bridle by Inspector Piggott on 18 November 2005 was included in the Prosecution Brief. The transcript discloses extensive information dealing with the matter about which the appellants complain that the information was not provided.

31. [308]

    The Prosecutor’s function was not to cross-reference material for the appellants. The Prosecution’s requirement was to disclose that information that it was required to disclose. It is unnecessary to provide the same information in a number of documents, unless the extent of the information is something upon which the Prosecutor relies, in terms of reliability or credit.

32. [309]

    Items 54 and 57 relate to photographs of the service sticker for the relevant truck for the purpose of providing information contained on the service sticker. Those photos were taken by Hunter Quarries or its employee or representative.

33. [310]

    Further, the photos that were taken by Hunter Quarries and given to the DPI or the Prosecutor were served on the appellants on 9 September 2008, pursuant to a Notice to Produce served by Hunter Quarries on 8 February 2008 (affidavit of Ms Rizzo, 29 May 2015). The complaint made in relation to item 64 is a complaint about reference material that was not provided by the Prosecutor.

34. [311]

    The reference material was used in the compilation of the report of Mr Sunol. The material is the subject of reference by Mr Sunol in his report and, therefore, reference to it by Mr Sunol was plainly disclosed. As for the material itself, or copies of it, the evidence discloses that there was no request for that material at any relevant time (affidavit of Ms Rizzo, 29 May 2015).

35. [312]

    Similar objections were taken as to the non-provision of working papers and drafts of the report of Mr Lewis, relating to brakes, which are summarised as items 68, 69, 71, 72, 73 and 74 in the foregoing table. As is clear from the foregoing, the final report of Mr Lewis was provided by the Prosecutor below; the Expert Report for the purpose of the Prosecution was provided and otherwise there is no obligation to disclose preliminary opinions made at a point in time before enquiries were completed.

36. [313]

    Such material may be the subject of a Notice to Produce, but is not within the class of documents required to be disclosed. Once the report is provided, it is open to an accused to seek any preliminary reports or documents.

37. [314]

    Similarly, the issues relating to the alterations in the Pre-Prosecution Report of Mr Lewis into the Expert Report of 10 September 2008 were not disclosed. For precisely the same reasons (with the same factual scenario, with the necessary changes being made) an analysis of this complaint is in exactly the same position as the complaint when made in relation to Mr Sunol’s alterations to his Pre-Prosecution Report. This complaint relates to items 75, 76, 77, 78, and 80 in the foregoing table.

38. [315]

    The next category of documents relates to a complaint as to the preparation of the affidavit of Mr Ainslie. This does not relate to an Expert Report. The items in the foregoing table are items 81, 82 and 83.

39. [316]

    Correspondence and communications between solicitors for the Prosecutor and a witness in relation to the preparation of the affidavit is privileged under s 119 of the Evidence Act. Further, even if that analysis were incorrect, the information is not such as would require disclosure by the Prosecutor.

40. [317]

    The same complaints as were made in relation to Mr Sunol’s report and Mr Lewis’ reports were also made in relation to the report of Mr Franklin. Once more, the Prosecutor provided Hunter Quarries with the Pre-Prosecution Report and the Expert Report at an early stage.

41. [318]

    Having been provided with each report, the appellants had all the information necessary to compare the two reports and use any inconsistency (or consistency) in the manner they considered appropriate during the course of the trial. Ms Rizzo attests to the fact that the letters of instruction were annexed to the Report. The Expert Report was tendered by the Prosecutor in evidence (affidavit of Ms Rizzo, 29 May 2015) and any views formed prior to a concluded view on the basis of partial information is not material that is required to be disclosed.

42. [319]

    The comments in relation to the reports of Mr Franklin are the same as those applied to the reports of Mr Sunol and Mr Lewis. The complaints in relation to the preparation of Mr Franklin’s report and non-disclosure relates to items 84, 85, 87, 88, 89 and 90 of the foregoing table.

43. [320]

    Similarly, the exact same analysis can be made in relation to the complaint, in item 91 of the foregoing table, of the non-disclosure of working papers and drafts of the report of Mr Johnson and any preliminary expressions. These complaints are itemised in the foregoing table in items 91, 92, 93 and 94.

44. [321]

    Items 96 and 97 deal with the non-disclosure of information concerning the qualifications of Mr Boyd-Taylor to service the relevant truck. This complaint is better dealt with when dealing with the particulars of that allegation relating to the competence of Mr Boyd-Taylor.

45. [322]

    The other items in the foregoing table are not items that were not disclosed, in the sense that term has been used, accurately or otherwise, by the appellants. They are items 14, 33, 37, 38, 44, 55, 56, 57 and 61.

46. [323]

    Those items, as can be seen from the summary, include the transcript of evidence of Mr Raftery in the proceedings against Mr Chevalley and Mr Grugeon on 26 July 2012 and could not have been disclosed to the appellants in 2008. Nor could the Prosecutor’s bill of costs, created in or around August 2010; the summary or table in item 37 created by the appellants’ legal representatives; the cost certificate created in July 2012 (item 38); the correspondence of August 2013 (item 44); the summaries created by the legal representatives of the appellants or one or more of Mr Chevalley or Mr Grugeon and tendered in the proceedings on costs in relation to Mr Chevalley on 5 November 2012 (item 55); correspondence of September 2012 (item 56); correspondence of 22 October 2012 (item 57); and the Summons for Production addressed to Mr Sunol issued in or about July 2012 and the affidavit of Mr Robinson of August 2012 (item 61).

47. [324]

    It is not immediately apparent how the appellants suggest any one of those documents in any one of those items could possibly have been disclosed by the Prosecutor or was required to be disclosed by the Prosecutor.

48. [325]

    As a result of the foregoing analysis, no substantive information was deliberately or otherwise withheld from the appellants, in the sense discussed above, prior to the time at which each decided to enter a plea of guilty. The particular alleged cannot, therefore, either by itself or together with other particulars, amount to a ground upon which the appellants ought to be permitted to withdraw the plea of guilty.

49. [326]

    Nevertheless, it is appropriate for that issue to be reconsidered once each of the particulars of this ground has been the subject of consideration.

Admission of Expert Evidence

1. [327]

   The appellants’ major focus in this regard is the report of Mr Peter Sunol. This attack, in turn, relied on a number of aspects, including: bias; the discrepancy between the Pre-Prosecution Report and the Expert Report; the improper involvement of Prosecution lawyers in the crafting of the Expert Report; and the failure of the expert to have the Pre-Prosecution Report informed by the expert witness code.

2. [328]

   The last mentioned aspect involved the proposition that because the Expert Witness Code of Conduct was not in the possession of Mr Sunol at the time of the preparation of the Pre-Prosecution Reports, the Expert Report that is an iteration based upon the Pre-Prosecution Report is inadmissible. The issue of discrepancies between the Pre-Prosecution Report and the Expert Report was dealt with on two bases one of which has already been dealt with in the discussion on non-disclosure and the other was that the Expert Report altered the Pre-Prosecution Report in a way that did not reflect the true position, as known to Mr Sunol and to the Prosecutor.

3. [329]

   As has already been noted, in dealing with the alleged failure to disclose, both the Pre-Prosecution Report and the Expert Report were provided to the appellants, prior to the trial and prior to the alteration in plea. Secondly, because each report was provided to the appellants, the appellants were able to understand fully any alterations made and to utilise them in any forensic choices they made. As already noted, the legal team for the appellants had undertaken a comparison based upon the possession of both reports.

4. [330]

   Further, the comparison, in the three areas on which the appellants relied by way of submissions, show that the alterations were advantageous to the appellants’ position, rather than deleterious. So much seems to have been conceded.

5. [331]

   Next, it is probably necessary to set out the three particular matters upon which the appellants relied in their submissions and of the changes that were involved. The appellant’s Joint Submissions at [334] rely upon changes which are tracked in the submission, the altered passage, being the passage that is and forms part of the Expert Report that was included in the judgment on sentence of Backman J.

6. [332]

   It is necessary to recite the submission at [334]-[336], which is in the following terms:

7. [333]

   The alterations to paragraph (g) recited above, achieved a number of results. First, the general and unspecified reference to “oil leaking”, which was not observed, is altered to recite the facts that were observed by the expert from which the initial conclusion that oil had been leaking was derived. Secondly, it inserted (h), which formed part of the observation from which the initial conclusion that oil had leaked (which was probably an accurate conclusion) was derived.

8. [334]

   The changes to which the appellants referred at [336] of their joint submissions would ordinarily be required. It was not for Mr Sunol to provide hearsay evidence as to fact, derived from statements made to him by Mr Badior. Instead, to the extent that the statement of fact by Mr Badior was relied upon for any opinion, that fact was treated as an assumption and required to be proved by the Prosecutor, otherwise than through Mr Sunol.

9. [335]

   The third example, on which the appellants relied in the course of their submissions, was the alteration to the issues associated with servicing of the truck (see, for comparison, folder 14, page 3479). The Pre-Prosecution Report referred (note 146) to facts gleaned from the interview with Mr Taylor, which could not be the subject of evidence of fact from Mr Sunol.

10. [336]

    As a consequence, the report was, it seems, amended so that it recited only that which Mr Sunol knew from his direct observation. The Pre-Prosecution Report referred to the statement of Mr Taylor that services were carried out at 250, 500, 1000 and 2000 hours.

11. [337]

    Mr Sunol observed only the maintenance cards and recited that he reviewed the maintenance cards which indicated 250 hour services and that he had not seen any maintenance cards for 500 hour or 1000 hour services.

12. [338]

    The change therefore was uncontroversial. The appellants complained, in this aspect, that Mr Sunol’s report did not deal with the invoices for servicing or the service sticker, which was placed on the windscreen of the truck. As a consequence, his report was founded, the appellants submitted, on incorrect facts or insufficient facts or incomplete facts. If that complaint be correct, there are two obvious answers.

13. [339]

    The report does not provide evidence that services were not completed at 500 hours or 1000 hours or 2000 hours. It provides evidence that maintenance cards did not exist (to Mr Sunol’s knowledge) for such services.

14. [340]

    The services were carried out by Hunter Quarries in circumstances where Mr Badior was responsible for the day-to-day running of the quarry. If evidence were able to be adduced as to the completion of services, for example from Mr Taylor, for 500 hours and 1000 hours and 2000 hours, that evidence would have been uncontradicted.

15. [341]

    It is not for an expert, in a report, to provide factual statements from other witnesses. If, as is contended, an expert report is based on incomplete evidence or an incomplete version of facts, that is a matter for cross-examination. It does not render the report inadmissible, as long as that which is relied upon for the conclusions is evident from the report.

16. [342]

    Further, the documents that was said not to have been relied upon by Mr Sunol were documents within the possession and knowledge of Hunter Quarries and Mr Badior.

17. [343]

    The respondent points to the transcript before Backman J of 21 October 2008, during which Mr Taylor was examined and cross-examined, commencing at transcript page 154 (folder 4, page 3042) - transcript page 156 (folder 4, page 3044) and transcript page 162- 164 and transcript page 175-176. The submission that the direct evidence of Mr Taylor is “qualitatively and quantitatively consistent” with the relevant particulars and the agreed facts should be accepted.

18. [344]

    Even if there were a possibility, on the evidence to which reference has already been made, to tasks in the 500, 1000 and 2000 hours services being undertaken, it is inconsistent with the Agreed Facts at [55], which is in the following terms:

19. [345]

    Other difficulties exist in the submission of the appellants on this matter. First, the evidence before this Court is that (see the evidence that fell from Mr Badior, appeal transcript, page 178, line 50 – page 179, line 4) the pleas and other steps taken on the consideration of the letter of the advice of 24 September (and otherwise) of each of Hunter Quarries and the three individual Directors, was to the effect that they were seeking “to present a united front and a joint strategy in relation to this litigation”. Any other assertion would be inconsistent with the whole tenor of the evidence.

20. [346]

    The fundamental premise upon which the respondent’s submission is based is that the report of Mr Sunol was tendered and relevant to the plea of guilty. Given the coordination of the defences, for which, it should be added, there can be no criticism, that premise requires investigation.

21. [347]

    Mr Sunol’s Report was part of Exhibit 1 which was tendered, initially without objection from any counsel, during the course of the opening by the Prosecutor. That opening occurred on 7 October 2008.

22. [348]

    Exhibit 1 consisted of five volumes marked, respectively, 1A through to 1E. The proceedings at that time were the charges against Hunter Quarries, Mr Badior, Mr Chevalley and Mr Grugeon. Present during the opening, necessarily, were counsel and/or legal representatives of both Mr Chevalley and Mr Grugeon.

23. [349]

    The submission to which the Court will come later in these reasons, put by the appellants in this appeal, is that counsel for the appellants gave either improper or wrong advice. That submission is made in comparison with the advice and/or conduct of the legal representatives of Mr Grugeon and Mr Chevalley against whom the charges were dismissed (by consent).

24. [350]

    None of the counsel or legal representatives (on that day Mr Chevalley was represented by a solicitor, albeit an extremely experienced solicitor) objected to the tender when it was made. As such any criticism of the legal representatives of Hunter Quarries and Mr Badior as to tactics must be one that applies equally to the legal representatives of Mr Chevalley and Mr Grugeon.

25. [351]

    Nevertheless, on day two of the trial (8 October 2008) page 66 of the transcript, at lines 17-21, senior counsel for Mr Grugeon made the following submission:

26. [352]

    The consequence of that reservation, assuming, as did all of the parties before the Court on appeal, that the reservation was permitted, is that at least Mr Sunol’s Report was admitted provisionally and not finally. Further, the effect, were there not to have been a plea of guilty, was that the defendants below would have had both choices available to them.

27. [353]

    At the close of the Prosecution case, one or other would have put the submission that the Sunol Report not be admitted, while, during the proceedings, Mr Sunol could have been cross-examined on his report to “make him look like an idiot”.

28. [354]

    The premise that the Sunol Report was admitted is not, in relation to liability, wholly accurate. It is certainly not accurate if the timing is said to have occurred prior to the plea of guilty being entered.

29. [355]

    Further, the attitude of the legal representatives of Hunter Quarries and Mr Badior was that it was forensically advantageous to allow the Report to be admitted and to cross-examine (“attack”) Mr Sunol on his conclusions, his inadequacy and the lack of expertise involved in his Report.

30. [356]

    Counsel allowing the admission into evidence of Mr Sunol’s Report, if it were admitted, at the time that the matter was to be heard on liability, involved a forensic choice. It is not a forensic choice that is either improper or negligent. It is a matter of judgment on which competent counsel might reasonably differ.

31. [357]

    Moreover, given, as earlier stated, the coordination of the legal proceedings for each of the defendants, prior to the plea, the effect of having Mr Grugeon object to the tender of the Report (and allowing the appellants to cross-examine Mr Sunol) is, essentially, a deliberate decision to have each forensic choice available and pursued. There is an obvious and undeniable tactical advantage in that course.

32. [358]

    If the complaint related only to the sentencing proceedings, then it could not impugn the integrity of the plea. Further, as to the sentencing proceedings, the wrongful admission of the Sunol Report, assuming for the immediate purpose that it was wrongful, would provide a ground for error, which would require the sentence to be overturned and the Court to resentence afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

33. [359]

    It is convenient for the Court to deal with the reliance upon the Sunol Report by Backman J for the purpose of the sentence proceedings at this point. On one view of the judgment of the High Court in Kirk v Industrial Relations Commission of New South Wales, the rules of evidence are, in relation to the Industrial Court, jurisdictional.

34. [360]

    While this proposition was not an express comment of the High Court in Kirk v Industrial Relations Commission of New South Wales, the reliance upon the distinction between jurisdictional error and non-jurisdictional error of law, together with the rationale of the plurality, certainly suggests that a failure to exercise the jurisdiction of the Court in accordance with the rules of evidence may be jurisdictional (see, also and particularly, the dissenting judgment of Heydon J). There may be some basis for such a proposition.

35. [361]

    Given the Industrial Court no longer exercises the jurisdiction, it is inappropriate for the Court now to discuss such an issue. Nevertheless, the provisions of s 163(2) of the then Industrial Relations Act provided that “the rules of evidence and other formal procedures of a superior court of record applied to the Commission in Court Session”, which provision applied to exempt the court from the prescription, otherwise applicable to the jurisdiction of the Industrial Commission, that it was not bound by the rules of evidence or to act in a formal manner: see s 163(1) of the Industrial Relations Act.

36. [362]

    The substance of that provision required the Industrial Court to act under the rules of evidence and in a formal manner, in the same way as a superior court of record. It is, therefore, necessary to determine how a superior court of record would act in the sentencing proceedings.

37. [363]

    As is made clear by the provisions of s 4 of the Evidence Act, the Evidence Act (and the formal rules of evidence) only applies to proceedings that relate to sentencing “if the court directs that the law of evidence applies to the proceeding” either in whole or in some specified manner: see s 4(2) of the Evidence Act. As a consequence, the admissibility of the Sunol Report for the purpose of sentencing and in proceedings that related to sentencing was, in the absence of such a direction, not to be determined in accordance with the “formal rules”; or in accordance with the Evidence Act.

38. [364]

    The Industrial Court, at sentencing, issued no such direction. As a consequence, the admission into evidence of the Sunol Report, even if each of the criticisms of the appellants were correct, was not an error of law or principle.

39. [365]

    Absent the acceptance of the submission that the Sunol Report was admitted in error, or should be given no weight, the findings of fact relying thereon by Backman J, cannot be impugned, even as errors of fact. The factual findings that her Honour made, based upon the Sunol Report, were open to her Honour.

Agreed Facts and Consciousness of Guilt

1. [366]

   Essentially, the appellants submitted that the conduct of their legal representatives was improper and/or incompetent; that no proper advice was provided as to the defences available, or the capacity to object to expert reports; and that the consistent belief of Hunter Quarries and Mr Badior was that they were not guilty of the offences.

2. [367]

   The evidence in the Appeal proceedings does not support those submissions. The Court has already summarised the Preliminary Advice, provided by the legal team prior to proceedings commencing and prior to any plea of guilty being entered.

3. [368]

   As indicated, the Preliminary Advice is extraordinarily detailed and accurate. It is inappropriate for the Court to discuss the accuracy of each item of advice, but it is sufficient to make clear that the Preliminary Advice is the antithesis of impropriety or incompetence.

4. [369]

   All other documentary evidence confirms that the advice given in the Preliminary Advice was not fundamentally altered during the period between the delivery of the Preliminary Advice and the entering of the plea of guilty. In oral evidence, Mr Chevalley and Mr Badior suggested that advice was provided to the effect that “defendants do not win in this court” (being a reference to the Industrial Court).

5. [370]

   Assuming, for immediate purposes only, that such a statement may have been made, informally, by counsel in the course of conference, it is obvious from the evidence of Mr Badior, in particular, that the context in which such statement was made was one that referred the directors of Hunter Quarries and Mr Badior (as a Director and in his individual capacity) to the provisions of the Act and the alteration in approach effected by these criminal provisions.

6. [371]

   It was pointed out to Hunter Quarries and to Mr Badior that failing to take a reasonably practicable step to ameliorate risk to safety was an offence, even if the accident that occurred was not the result of the failure to take the step; even if the DPI had not raised the preventative measures with the employer; and even if the step was necessary because of the foreseeable risk of carelessness on the part of employees.

7. [372]

   The detailed analysis of the defences available to the appellants pointed to those matters upon which the appellants could rely in any case they sought to conduct. Counsel (and the solicitors) advised that, on their analysis of the evidence available to the prosecutor (including the statements of employees), the Prosecution would succeed. There is nothing improper in the comment made by counsel, if it were made, in that context.

8. [373]

   Nevertheless, there is some serious doubt that the statements were ever made. For example, the senior partner for the instructing solicitors made clear to the directors of Hunter Quarries and Mr Badior (acting in his individual capacity) that of all of the individual defendants whom he had represented, only one had been convicted. That advice, conceded by Mr Chevalley and acknowledged by Mr Badior, is wholly inconsistent with the proposition that the legal team was advising that “defendants do not win” in any specific sense.

9. [374]

   If the words to which Mr Chevalley testified were used, plainly they were used in the context described above and as a form of hyperbole to stress the ease with which an offence under the Act can be proved. However, the evidence is inconsistent as to whether the words were ever used and it should not be accepted, that the words were used or the intent manifested.

10. [375]

    All formal advices were proper and appropriate. Mr Badior, in his evidence, made it clear, as summarised above, that at no stage did the legal team engaged by Hunter Quarries and Mr Badior suggest that the decision of the Industrial Court would be otherwise than in accordance with law (Appeal Transcript page 204, lines 16-49; 205, lines 1-11), or that Mr Badior or Hunter Quarries would receive other than a fair hearing according to law.

11. [376]

    Mr Badior’s evidence makes even clearer that the distinction between causing (or not preventing) a risk to safety was, in his mind and the mind of Hunter Quarries, different from causing the death of Mr Smith. That distinction was uppermost in the mind of Mr Badior and uppermost in the instructions that he provided (and Hunter Quarries provided) to his and its legal team.

12. [377]

    The legal team was successful in having the Prosecutor amend the charges so that any particular relating to the death of Mr Smith having been caused by the conduct of Hunter Quarries or Mr Badior was removed. Further, the Agreed Facts did not suggest that the risk to safety that gave rise to the offences caused the death of Mr Smith.

13. [378]

    The instructions to counsel were the subject of compliance. Moreover, from the perspective of the plea of guilty and the Agreed Facts, the legal team not only followed the instructions of their client, but did so successfully.

14. [379]

    Complaint was made, during the course of the evidence, of a comment by junior counsel that was to the effect that if the Agreed Facts said that the cause of death of Mr Smith was unknown, then the Prosecutor could not adduce evidence or submit that Hunter Quarries and/or Mr Badior caused the death. That statement is accurate. The Agreed Facts do not include such an agreed fact or statement. The correctness of junior counsel’s advice, in this respect, is confirmed by the provisions of s 191(2) of the Evidence Act.

15. [380]

    That statement was in contradistinction to the other advice provided by counsel (both senior and junior) to the effect that those matters not addressed in the Agreed Facts could be the subject of debate before the Industrial Court on sentence. Whether the breach of safety occasioned the death of Mr Smith was a factor going to the seriousness of the effects of failing to take the steps that, between the parties, were agreed should have been taken.

16. [381]

    During the course of the evidence of Mr Badior a comment was made which was telling, insofar as it dealt with the attitude of Mr Badior, and to a lesser degree Hunter Quarries, in this appeal. Mr Badior made clear in his evidence on a number of occasions that he distinguished between the risk to Mr Smith and responsibility for the death of Mr Smith: (Appeal Transcript page 156, line 33-40).

17. [382]

    Yet, despite the comments in the affidavit sworn for the sentence proceedings, Mr Badior denied that Mr Smith was at a risk from any of his [Mr Badior’s] actions (Appeal transcript, page 156 lines 41-45). Other evidence is to a different effect, although it seems somewhat nuanced.

18. [383]

    The nuance is best demonstrated by the evidence of Mr Badior at Appeal transcript page 206, line 35 and following. The question and answer is in the following terms:

19. [384]

    The foregoing evidence discloses a misunderstanding on the part of Mr Badior as to the process that was undertaken following the plea of guilty. It does not point to a misunderstanding of the nature of the plea of guilty.

20. [385]

    It is obvious from the evidence otherwise adduced from Mr Badior that he and, at least Mr Chevalley, from the Hunter Quarries’ perspective and as individuals, studied the alteration in the charges and paid specific and detailed attention to the nature of those alterations and the nature of the allegations. Each of Mr Badior and Mr Chevalley (and to a lesser extent Mr Grugeon) signed off on those charges.

21. [386]

    Mr Badior, Mr Chevalley and to a lesser extent Mr Grugeon examined the Agreed Facts in detail and ensured that they were content to agree to each of the matters there raised. Further, Mr Badior and Hunter Quarries were fully aware that they were pleading guilty to the charges, as amended, and accepting and agreeing to the Agreed Facts. It cannot be said that there was not a consciousness of guilt.

22. [387]

    Moreover, Mr Badior made it clear that he understood that the change in plea would result in him being convicted of a criminal offence and potentially being sentenced to a fine of some significance. That was the situation, as Mr Badior understood it, which faced Hunter Quarries. Nothing more is needed for a consciousness of guilt.

23. [388]

    The proposition, which arises from the misunderstanding, that pleading guilty to the charges meant that Mr Badior and Hunter Quarries were “guilty of the lot”, which was a reference to the death of Mr Smith, is inconsistent with the advice provided to the appellants and to which earlier reference has been made.

24. [389]

    The overall assessment of the evidence adduced on appeal, which is consistent with the statements made and the pleas provided, is that each of Mr Badior and Hunter Quarries sought to distinguish between a breach of s 8 of the Act (and/or s 26 of the Act) and the risks to safety being responsible for the death of Mr Smith. Each of Mr Badior and Hunter Quarries was cognisant that they were pleading guilty to a criminal offence and, as a consequence, would be fined, and that they caused a risk to safety of employees.

25. [390]

    In each case they were extremely careful to ensure that nothing to which they were entering a plea (in terms of particulars) and nothing to which they were agreeing (in terms of Agreed Facts) admitted to causing the death of Mr Smith or were otherwise inaccurate.

26. [391]

    Further, they were advised and understood that the Prosecutor would continue to allege, for the purpose of the sentencing proceedings, that the risk to safety caused by the conduct or failure of Hunter Quarries and for which Mr Badior was responsible under s 26 of the Act, caused the death of Mr Smith. Each of Hunter Quarries and Mr Badior saw any result that held them responsible for the death of Mr Smith as being inconsistent with common sense and as a result which was unfair.

27. [392]

    But that belief does not amount to a lack of consciousness of guilt for that to which each of Hunter Quarries and Mr Badior entered a plea. It may be a lack of consciousness of guilt of those matters for which they were held responsible by the Industrial Court, as a consequence of the sentencing proceedings. But that lack of consciousness of guilt is not sufficient to impugn the plea and does not form a relevant basis for the withdrawal of the plea.

Guilt of the Offence and the Agreed Facts

1. [393]

   As has been made clear earlier by reference to the judgment of Dawson J in Meissner v The Queen, a plea of guilty is an implied or express admission of the minimum elements necessary to prove guilt. There are many reasons that a person may plead guilty. Some of those reasons, described by Dawson J, are relevant to the proceedings now under appeal, but the plea of guilty goes beyond that, in these proceedings.

2. [394]

   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.

3. [395]

   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.

4. [396]

   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.

5. [397]

   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).

6. [398]

   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).

7. [399]

   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.

8. [400]

   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.

9. [401]

   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.

10. [402]

    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.

11. [403]

    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.

12. [404]

    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.

13. [405]

    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.

14. [406]

    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.

15. [407]

    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”.

16. [408]

    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.

17. [409]

    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.

18. [410]

    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

1. [411]

   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.

2. [412]

   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.

3. [413]

   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.

4. [414]

   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.

5. [415]

   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.

6. [416]

   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:

7. [417]

   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.

8. [418]

   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.

9. [419]

   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.

10. [420]

    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

1. [421]

   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.

2. [422]

   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.

3. [423]

   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.

4. [424]

   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.

5. [425]

   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.

6. [426]

   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.

7. [427]

   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.

8. [428]

   As a consequence, the conclusions relating to chain of custody do not relate to liability at all.

9. [429]

   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.

10. [430]

    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.

11. [431]

    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.

12. [432]

    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.

13. [433]

    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.

14. [434]

    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

1. [435]

   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.

2. [436]

   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.

3. [437]

   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.

4. [438]

   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.

5. [439]

   This Ground also must fail.

6. [440]

   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.

7. [441]

   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.

8. [442]

   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.

9. [443]

   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.

10. [444]

    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.

11. [445]

    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.

12. [446]

    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.

13. [447]

    This Ground, too, must be rejected.

14. [448]

    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.

15. [449]

    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.

16. [450]

    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.

17. [451]

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

18. [452]

    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.

19. [453]

    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.

20. [454]

    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.

21. [455]

    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.

22. [456]

    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.

23. [457]

    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.

24. [458]

    This Ground also is rejected.

25. [459]

    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.

26. [460]

    For the reasons already outlined in the reasons for judgment and the conclusion immediately preceding this paragraph, this Ground is rejected.

27. [461]

    This Ground relies upon each of the other Grounds either singularly or in combination. Each of the other Grounds has been rejected.

28. [462]

    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.

29. [463]

    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.

30. [464]

    This Ground, to the extent that it is a separate Ground and/or otherwise, is also rejected.

31. [465]

    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.

32. [466]

    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.

33. [467]

    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.

34. [468]

    This Ground is rejected.

35. [469]

    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.

36. [470]

    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.

37. [471]

    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

1. [472]

   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.

2. [473]

   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.

3. [474]

   In those circumstances, the appeal against sentence is dismissed.

4. [475]

   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.

5. [476]

   The Court makes the following orders:

   1. (1)

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

   2. (2)

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

   3. (3)

      Otherwise, appeal against conviction dismissed.

   4. (4)

      Appeal against sentence dismissed.

   5. (5)

      Leave to appeal against costs and moiety orders refused.