Citation: R v BS & JH Bailey Pty Limited [2016] NSWDC 148
Court: District Court of New South Wales
Date: 19 July 2016
Judge(s): Kearns DCJ
Background
The defendant company was the principal contractor on a residential construction site at Caringbah. It had engaged a steel-fixing subcontractor and a separate scaffolding contractor for the project. On 22 January 2011, an employee of the steel-fixing subcontractor fell from scaffolding at level 4 of the site and was injured.
The defendant was charged with breaching the Occupational Health and Safety Act 2000 in connection with that incident. On 9 February 2015, the defendant entered a plea of guilty.
After that plea was entered, an affidavit came to light from a foreman of the scaffolding contractor, who stated that on the day before the incident he had placed a prominent warning sign at the scaffold entry reading "INCOMPLETE SCAFFOLD. DO NOT ENTER." The director of the defendant company did not become aware of this evidence until around June 2016 or shortly before the sentencing hearing.
Legal Issues
- Whether the defendant should be granted leave to withdraw its plea of guilty in light of evidence that emerged after the plea was entered.
Decision
The application to withdraw the plea:
Kearns DCJ noted that leave to withdraw a guilty plea is not granted lightly and requires the establishment of good cause (at [7]). The court applied the principles set out in R v Hura (2001) 121 A Crim R 472, which lists circumstances, on a non-exhaustive basis, where withdrawal may be permitted (at [7]).
One recognised circumstance is where a plea was entered when the defendant was not in possession of all the relevant facts. The court found that situation squarely applied here. The defendant had no knowledge of the scaffolding foreman's affidavit when it pleaded guilty in February 2015, and that evidence only reached the defendant's director in or around mid-2016 (at [4]-[5]).
The court assessed the newly emerged evidence as relevant and potentially significant to the question of guilt or innocence, without determining at this stage whether it would be decisive (at [8]). The director was found to have acted promptly upon receiving the information (at [6]). Despite the case's long history dating back to February 2013, and acknowledging that withdrawal would further extend proceedings, Kearns DCJ concluded that granting leave was the only appropriate course (at [9]).
Orders Made
- The defendant was granted leave to withdraw the plea of guilty entered on 9 February 2015.
- A plea of not guilty was entered.
- The matter was listed for mention before the list judge on 1 August 2016.
Key Takeaways
- Leave to withdraw a guilty plea is not granted lightly and requires good cause to be established (at [7]).
- Under the principles in R v Hura, a recognised basis for withdrawal is that the plea was entered when the defendant was not in possession of all material facts (at [7]).
- The District Court confirmed that newly discovered evidence need not be shown to be determinative of guilt or innocence; it is sufficient that it is relevant and potentially persuasive (at [8]).
- Promptness in acting on newly discovered information supported the grant of leave, even where the case had a lengthy procedural history and withdrawal would prolong the matter further (at [6], [9]).
- The prosecution's concession that none of the prior delays were attributable to the defendant was a relevant consideration in the court's assessment of fairness (at [9]).
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
Cases
- R v Hura (2001) 121 A Crim R 472