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District Court 20 December 2019

Orr v Cobar Management Pty Ltd

[2019] NSWDC 796

Other
CRIME APPEAL WHETHER PROCEEDINGS HAD BEEN COMPLETED ERROR OF LAW

Citation: Orr v Cobar Management Pty Ltd [2019] NSWDC 796
Court: District Court of NSW
Date: 20 December 2019
Judge(s): Scotting DCJ

Background

The defendant company faced prosecution under the Work Health and Safety Act 2011 arising from the death of a worker at its CSA mine near Cobar. The worker, employed on the services crew, drowned in June 2014 after his leg was sucked into a drain hole while he was attempting to unblock it in a flooded sump. The prosecution alleged the defendant failed to comply with its primary health and safety duty under section 19(1) of the Act, thereby exposing the worker to a risk of death or serious injury.

After a trial spanning 36 hearing days over approximately 15 months, the court delivered reasons for judgment on 27 May 2019, concluding that the prosecution had not proved all elements of the offence beyond reasonable doubt. The proceedings were adjourned immediately to allow the prosecutor to consider whether to seek a stated case.

The prosecutor subsequently applied under section 5AE of the Criminal Appeal Act 1912 for the court to state 26 questions of law for determination by the Court of Criminal Appeal. The defendant opposed the application on jurisdictional grounds, arguing that the proceedings had already been completed in substance.

Legal Issues

  • Whether the court retained jurisdiction to state a case under section 5AE of the Criminal Appeal Act 1912, given that reasons for judgment had already concluded the prosecution had not proved its case.
  • Whether a conclusion in reasons for judgment that the prosecution had not proved its case amounted to a formal acquittal, thereby completing the proceedings.
  • Which, if any, of the prosecutor's 26 proposed questions were questions of law suitable for referral to the Court of Criminal Appeal.
  • Whether certain proposed questions amounted to an abuse of process by seeking to relitigate factual findings.

Decision

Issue 1: Jurisdiction

The defendant argued that the court's conclusion in the judgment that the prosecution had not proved the elements of the offence was, in substance, an acquittal, and that the proceedings were therefore complete. The court rejected this argument, following the Court of Criminal Appeal's reasoning in Environmental Protection Authority v Land and Environment Court (2004) 144 A Crim R 198 (at [29]-[30]). Tobias JA's analysis in that case established that double jeopardy does not arise when a defendant is told that proceedings will be determined in its favour, but only when the proceedings are actually determined by final orders. Because the only order made on 27 May 2019 was an adjournment, no final orders had been entered and the proceedings were not complete (at [29]-[30]).

The court held it was bound by that decision and could not distinguish it on the grounds the defendant advanced (at [30]). The court therefore retained jurisdiction to consider the prosecution's application.

Issue 2: Which questions should be stated

The court identified the governing principles: proposed questions must be genuine questions of law, not questions of fact or mixed fact and law, and must have utility in the context of the proceedings (at [37]-[38]). Questions inviting a court to simply re-examine factual findings do not meet that threshold.

Issue 3: Questions 1A to 4

The court refused to state questions 1A through 4. These questions concerned whether the court had misinterpreted the pleaded risk and whether there had been an error in defining the scope of that risk. The court found these questions were not questions of law when the relevant findings were read in context, and that the prosecutor had been unable to articulate any alternative interpretation of the pleaded risk during oral argument (at [58]-[59]). In the alternative, the court found these questions amounted to an abuse of process, because they sought to relitigate factual matters already decided against the prosecutor (at [63]-[67]).

Issue 4: Remaining questions

The court declined to state questions 6 and 7 because they rested on a false premise: the court had made an express finding at paragraph 244 that reducing the water level in the sump was a way of eliminating or minimising the pleaded risk, which the proposed questions misrepresented (at [79]). Questions 14 through 20 did not arise because they assumed the court had made findings about the reasonable practicability of specific features of the pleaded measures, when in fact the court had not been required to determine those questions at all (at [84]-[85]). Questions 25 and 26 introduced concepts absent from the Act and rested on premises that did not arise from the findings, making them of no utility (at [90]).

The court declined to state all 26 questions proposed by the prosecutor, but identified a smaller set of reformulated questions of law, set out in Appendix B to the judgment, which it was satisfied should be stated to the Court of Criminal Appeal (at [92]-[93]).

Orders Made

  • The prosecutor was directed to engross the stated case in the appropriate form for submission to the Court of Criminal Appeal.
  • The prosecutor was directed to provide the stated case to the judge's Associate by 5 pm on 7 February 2020.

Key Takeaways

  • A conclusion in a court's reasons for judgment that the prosecution has not proved the elements of an offence does not constitute a formal acquittal and does not complete the proceedings. Proceedings are only complete when final orders are entered, and double jeopardy does not arise until that point (at [29]-[30]).

  • The District Court confirmed that it was bound by Environmental Protection Authority v Land and Environment Court (2004) on the question of when criminal proceedings in a summary jurisdiction are "completed" for the purposes of the stated case jurisdiction under section 5AE of the Criminal Appeal Act 1912 (at [30]).

  • Questions proposed for a stated case must be genuine questions of law. Proposed questions that are, in substance, invitations to revisit factual findings already made will not be stated, and may amount to an abuse of process where they seek to relitigate decided issues after the defendant has exposed its case (at [37]-[39], [63]-[64]).

  • Where a proposed question rests on a false premise by mischaracterising the court's actual findings, the question does not arise and will be refused (at [79]).

  • A court assessing a stated case application retains power to reformulate proposed questions so that they accurately reflect the legal issues arising from the actual findings made, rather than stating questions in the form the applicant has framed them (at [78]-[91]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912
- Criminal Procedure Act 1986
- Land and Environment Court Rules 1996
- Work Health and Safety Act 2011

Cases
- Attorney General for New South Wales v X (2000) 49 NSWLR 653
- Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
- Charara v Director of Public Prosecutions [2001] NSWCCA 140
- Charles Forte Investments Ltd v Amanda [1964] Ch 240
- Collector of Customs v Afga-Gevaert Ltd (1996) 186 CLR 389
- Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
- Commissioner of Taxation v Brixius (1987) 16 FCR 359
- Elias v Director of Public Prosecutions [2012] NSWCA 302
- Environmental Protection Authority of New South Wales v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439
- Environmental Protection Authority v Land and Environment Court (2004) 144 A Crim R 198
- Ex parte McGavin; Re Berne and Others (1946) 46 SR 58
- Federal Commissioner of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FLR 410
- Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145
- Orr v Cobar Management Pty Ltd [2019] NSWDC 224
- R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
- R v Cheng (1999) 48 NSWLR 616
- R v Vincent [2002] NSWCCA 110
- Registrar Court of Appeal v Craven (No 2) (1995) 80 A Crim R 272
- Rogers v R (1994) 181 CLR 251
- Talay v R [2010] NSWCCA 308
- Vetter v Lake Macquarie City Council (2001) 202 CLR 439
- Waterford v Commonwealth (1987) 163 CLR 54
- Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
- Williams v The Queen (1986) 161 CLR 278