Citation: Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2017
Judge(s): Walton J, Rothman J, Harrison J
Background
A worker died in June 2005 when the dump truck he was driving down a haul road at a quarry went over an embankment. The haul road had an average gradient of 1 in 5 (20 per cent), significantly steeper than the industry handbook's recommended maximum of 1 in 10 (10 per cent) for downhill haulage. Berms (barriers along the road edge designed to stop runaway vehicles) were inadequate along the route.
The appellant employer (the quarry operator) and the appellant individual (a manager) were each charged with offences under the Occupational Health and Safety Act 2000 (NSW). Both entered pleas of guilty before Backman J in the Industrial Court of New South Wales. After 15 days of sentencing proceedings, her Honour imposed fines on each appellant.
Both appellants then sought to withdraw their guilty pleas and challenged their convictions and sentences on appeal. The litigation followed an unusually winding path: the appeal was first heard by a Full Court of the Industrial Court, which found it lacked jurisdiction and referred the matter to the Court of Criminal Appeal, constituted by the same three judges.
Legal Issues
- Whether the appellants should be permitted to withdraw their pleas of guilty entered before the Industrial Court
- Whether the agreed facts placed before the sentencing judge, if accurate, required a conviction
- Whether the sentencing judge's findings of fact were open on the evidence before her
- Whether the prosecutor held a valid authority or power to prosecute
- Whether the sentences imposed were within the available range or otherwise affected by error
Decision
On withdrawal of the guilty pleas, the Court applied established principles that a plea of guilty may be withdrawn where it was not a free and voluntary admission, or where it would occasion a substantial miscarriage of justice. The Court found the pleas had not been sufficiently impugned to warrant withdrawal. Critically, the agreed facts placed before the sentencing judge were, if accurate, sufficient to require conviction. The application to withdraw the pleas was refused.
On the factual findings at sentence, the Court concluded that each finding made by Backman J was open to her on the evidence. No error in the approach to fact-finding at the sentencing stage was established.
On the authority to prosecute, no evidence or submission had been advanced on this point either at first instance or on appeal. The Court refused leave to raise the ground for the first time on appeal, noting it had not been pursued even after the matter was listed for hearing.
On sentence, the Court noted that the fines imposed were almost identical to, or less than, the range the appellants themselves had been advised would be imposed. No submission was advanced that the penalty was outside the available range, inappropriate, or manifestly excessive. No error in the identification or application of sentencing principles was demonstrated. The sentence appeal was dismissed, and leave to appeal the costs and moiety orders was also refused.
Orders Made
- Leave to raise a ground of appeal relating to authority to prosecute refused (to the extent possible)
- Application to withdraw the plea of guilty refused (to the extent necessary)
- Appeal against conviction otherwise dismissed
- Appeal against sentence dismissed
- Leave to appeal against costs and moiety orders refused
Key Takeaways
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A guilty plea will not be permitted to be withdrawn after sentence unless it can be shown the plea was not free and voluntary, or that allowing it to stand would produce a substantial miscarriage of justice. The Court of Criminal Appeal confirmed that the bar is a high one.
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Where agreed facts placed before a sentencing court are accurate and would require a conviction, those agreed facts provide a significant obstacle to any subsequent attempt to withdraw the plea underpinning that conviction.
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Grounds of appeal not raised at first instance, and not actively pressed even on appeal, will generally be refused leave under the Criminal Appeal Rules. The Court declined to entertain a late challenge to the prosecutor's authority to bring proceedings in those circumstances.
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No identifiable error in sentencing principles or their application was sufficient to disturb the sentences. The absence of any submission that the fines were outside the available range or manifestly excessive was fatal to the sentence appeal.
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The Court of Criminal Appeal criticised the compilation of voluminous, poorly organised appeal books and unduly prolix submissions, observing that the burden of identifying relevant material had been improperly shifted onto the judges.
Legislation and Cases Referenced
Legislation:
- Occupational Health and Safety Act 2000 (NSW)
- Work Health and Safety Act 2011 (NSW)
- Industrial Relations Act 1996 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Supreme Court Act 1970 (NSW)
- Evidence Act 1995 (NSW)
- Mines Inspection Act 1901 (NSW)
Key Cases:
- Maxwell v The Queen (1996) 184 CLR 501
- Meissner v The Queen (1995) 184 CLR 132
- Kentwell v The Queen (2014) 252 CLR 601
- Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531
- Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (2006) 66 NSWLR 151
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Budrodeen v R [2017] NSWCCA 100
- Morrison v Hunter Quarries [2009] NSWIRComm 179 (the primary judgment)
- Hunter Quarries Pty Ltd v Morrison (No 4) (2016) 92 NSWLR 1
- Jones v Dunkel (1959) 101 CLR 298
- Kondis v State Transport Authority (1984) 154 CLR 672