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District Court 4 December 2020

Orr v Moolarben Coal Operations Pty Ltd; Orr v Chaplin

[2020] NSWDC 739

Other
PROCEDURE

Citation: Orr v Moolarben Coal Operations Pty Ltd; Orr v Chaplin [2020] NSWDC 739
Court: District Court of NSW
Date: 4 December 2020
Judge(s): Russell SC DCJ

Background

Both prosecutions arose from a blast at the Moolarben Coal Complex at Ulan on 17 May 2017. During the blast, flyrock and a fume cloud travelled toward the Blast Crew, exposing workers to risk of death or serious injury. Two defendants faced separate charges under the Work Health and Safety Act 2011 (NSW): the mine operator (a corporation) as a person conducting a business or undertaking, and a Drill and Blast Engineer (an individual) as a worker.

The charges rested on different legal duties. The mine operator faced a charge of failing to ensure, so far as reasonably practicable, the health and safety of its workers under s 19(1) of the WHS Act. The individual faced a charge of failing to take reasonable care that his acts or omissions did not adversely affect the health and safety of others under s 28B of the WHS Act. Both alleged breaches were said to contravene s 32 of the WHS Act.

The prosecutor applied by Notice of Motion for the two sets of proceedings to be heard and determined together. The mine operator challenged both the court's jurisdiction to make such an order and, in the alternative, the exercise of any discretion in favour of a joint hearing. The individual defendant did not contest jurisdiction but separately opposed a joint hearing on his own grounds.

  • Whether the District Court has jurisdiction under s 29 of the Criminal Procedure Act 1986 (NSW) to order proceedings commenced against two separately charged accused persons to be heard together, without their consent
  • Whether, if jurisdiction exists, the discretion to order a joint hearing should be exercised in the circumstances
  • Whether the interests of justice required separate hearings given the different nature of the charges and the potential prejudice to each defendant

Decision

The court conducted an extensive review of the legislative history governing joint hearings in NSW criminal proceedings. Beginning with the High Court's analysis in Munday v Gill (1930), which confirmed that defendants charged on separate informations in summary proceedings were entitled to separate hearings but could waive that entitlement, the court traced statutory developments through the Justices Act 1902, the Supreme Court (Summary Jurisdiction) Act 1967, and ultimately the consolidation of those provisions into the Criminal Procedure Act in 2001. The court concluded that s 29 of the CPA gives the District Court jurisdiction to hear separately charged defendants together, without requiring their consent, provided the relevant preconditions are met.

Having found jurisdiction, the court turned to the discretion under s 29(3), which directs that charges must not be heard together if the court is of the opinion that separate hearings are in the interests of justice. The court identified a fundamental difficulty: the mine operator could not receive a fair trial if the individual defendant, who was not called as part of the prosecution case against the mine operator, was unavailable for cross-examination. The individual's right not to give evidence in his own trial would effectively deprive the mine operator of the ability to test a potentially important witness.

The court also found that the two charges were substantially different in their nature and the evidence each would require. Evidence about corporate training, supervision, and systems of work was relevant to the charge against the mine operator but had no bearing on the charge against the individual. A joint trial would require the individual to attend and bear the cost of a significantly longer hearing than his charge alone would necessitate, receiving no forensic benefit from the additional evidence.

The court dismissed both motions. It noted that while some inconvenience from calling witnesses twice could be mitigated by holding the trials closer to where witnesses lived, that practical consideration was far outweighed by the unfairness a joint trial would create for each defendant. The court indicated its provisional view that the individual's trial should proceed first, so that he could then be available as a witness in the mine operator's trial.

Orders Made

  • The prosecutor's Notice of Motion filed 12 October 2020 is dismissed in each matter.
  • The prosecutor is ordered to pay each defendant's costs of the Motion.
  • Each matter is stood over for directions at 9.30am on 11 December 2020.

Key Takeaways

  • The District Court confirmed it has jurisdiction under s 29 of the Criminal Procedure Act 1986 (NSW) to order separately charged defendants to be heard together, without requiring their consent, where charges arise from the same circumstances or form part of a series of similar offences.
  • A finding of jurisdiction does not compel a joint hearing. Section 29(3) requires the court to refuse a joint trial where that course would not be in the interests of justice.
  • Where a co-defendant would not be called by the prosecution and could not be compelled to testify, the inability to cross-examine that person constitutes a significant impediment to a fair trial for the other defendant.
  • Substantially different charges based on different statutory duties, attracting different bodies of evidence, weigh heavily against consolidation, even where some documentary material and witnesses overlap.
  • Practical savings in time and cost, including the avoidance of witnesses being called twice, were insufficient to override the unfairness a joint trial would produce for defendants facing materially distinct charges.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 28B, 32, 229B
- Criminal Procedure Act 1986 (NSW), ss 28(1), 29, 166
- Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
- Justices Legislation Repeal and Amendment Act 2001 (NSW)
- District Court Act 1973 (NSW), ss 166, 171D
- District Court (Procedure) Amendment Act 1984 (NSW)
- Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 13
- Justices Act 1902 (NSW), s 78A
- Justices (Amendment) Act 1940 (NSW)
- Environmental Planning and Assessment Act 1979 (NSW)
- Fisheries Management Act 1994 (NSW)
- Local Land Services Act 2013 (NSW)
- Native Vegetation Act 2003 (NSW)

Cases
- Munday v Gill [1930] HCA 20; (1930) 44 CLR 38
- R v Swansson [2007] NSWCCA 67; (2007) 69 NSWLR 406
- Roach v R [2019] NSWCCA 160
- Decision Restricted [2020] NSWCA 189
- Director General, NSW Department of Industry and Investment v Marto Investments Pty Ltd & Ors [2010] NSWLEC 56
- Natural Resources Access Regulator v Budvalt Pty Ltd [2019] NSWLEC 169
- Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd [2019] NSWLEC 187