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9
Court of Criminal Appeal 2 March 2022

Orr v Hunter Quarries Pty Ltd

[2022] NSWCCA 39

Other
STATED CASE UTILITY OF STATED CASE PROCEDURE DOES NOT ARISE NO SUCH REQUIREMENT

Citation: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 2 March 2022
Judges: Beech-Jones CJ at CL; Walton J; Price J

Background

A worker, Mr Ryan Messenger, was killed on 9 September 2014 when an excavator he was operating on an uneven slope at a hard rock quarry overturned and crushed him inside the cabin. The quarry operator, the defendant company, was charged under s 32(1) of the Work Health and Safety Act 2011 (WHS Act) with failing to comply with its primary health and safety duty.

After a 41-day hearing, the primary judge (Russell SC DCJ) published a comprehensive judgment in November 2019 finding the prosecution had not proven all elements of the offence beyond reasonable doubt. Crucially, the primary judge did not immediately enter a formal verdict of acquittal. Instead, he adjourned to allow the prosecutor to consider whether to invoke the stated case procedure under s 5AE of the Criminal Appeal Act 1912.

The prosecutor, who holds a statutory appointment as an inspector under the Work Health and Safety (Mines and Petroleum Sites) Act 2013, ultimately submitted nine questions to the Court of Criminal Appeal by way of stated case. The questions went through several iterations, and the primary judge's power to withdraw and resubmit questions was itself one of the issues referred.

  • Whether the primary judge had power under s 5AE to withdraw previously submitted questions and refer a fresh set of questions before final orders were made
  • Whether the questions submitted by the prosecutor were "pure questions of law" capable of being answered under s 5AE, or whether they were impermissible mixed questions of fact and law
  • Whether there is a prescribed sequential order in which a primary judge must address the components of Element 3 of a WHS Act offence (breach of duty)
  • Whether reasonable foreseeability of the relevant risk, and of the specific accident in which the risk manifested, are relevant considerations under s 18 of the WHS Act when assessing whether a control measure was reasonably practicable

Decision

The Court declined to answer Question 1 (concerning the primary judge's power to withdraw questions) because the issue did not arise: whether or not such a power existed, it had already been exercised and the nine new questions had been submitted. Answering a hypothetical question about that power would serve no practical purpose in the proceedings.

On Question 2, the Court answered "yes": a primary judge has power under s 5AE to submit a question, or multiple questions, before making final orders. This confirmed the approach taken in Orr v Cobar Management Pty Ltd [2020] NSWCCA 220, where the Court held that s 5AE operates between the publication of reasons and the formal entry of any verdict.

Question 3 asked whether the primary judge was required to address the components of Element 3 in a specified sequential order. The Court answered "no." There is no legal obligation on a primary judge to work through the sub-elements of the offence in any particular prescribed sequence.

Questions 6 and 7 asked whether the reasonable foreseeability of the relevant risk and of the specific accident were relevant to the inquiry under s 18 of the WHS Act. The Court answered "yes, but not necessarily determinative" to both. On Questions 4, 5, 8 and 9, the Court either found the questions did not arise on the facts or declined to answer them. The Court was careful to note that it could not treat the stated case procedure as a vehicle to examine whether the primary judge had applied legal principles correctly to the facts. Several questions were framed in ways that would have required exactly that kind of factual scrutiny, and the Court declined to engage with them on that basis.

Orders Made

  • Question 1: Court declined to answer
  • Question 2: Yes
  • Question 3: No
  • Question 4: Does not arise
  • Question 5: Does not arise
  • Question 6: Yes, but not necessarily determinative
  • Question 7: Yes, but not necessarily determinative
  • Question 8: Court declined to answer
  • Question 9: Court declined to answer
  • The Court also stated that, to the extent the original 17 questions referred in Orr v Hunter Quarries Pty Ltd (No 2) [2020] NSWDC 307 remained before the Court, it declined to answer those as well

Key Takeaways

  • Section 5AE of the Criminal Appeal Act 1912 is confined to "pure questions of law," meaning questions whose character as a legal question is recognisable on the face of the question itself, without needing to scrutinise the underlying facts. Mixed questions of fact and law, including whether a primary judge correctly applied a legal principle to particular findings, fall outside the procedure.

  • The Court of Criminal Appeal confirmed that the s 5AE procedure is available after a primary judge publishes reasons but before formal orders or a verdict are entered. This reinforces the position established in Cobar Management.

  • No prescribed sequential order governs how a primary judge must address the sub-elements of a WHS Act offence. A primary judge is not legally required to consider the components of Element 3 (breach of duty) in any particular order.

  • Under s 18 of the WHS Act, the reasonable foreseeability of the relevant risk and of the specific accident in which the risk materialised are relevant considerations, but neither is necessarily determinative of whether a control measure was "reasonably practicable."

  • The stated case procedure carries significant limitations compared to a conventional appeal. As the Court noted, the procedure left the defendant company in a position where the formal entry of an acquittal was delayed while the prosecutor sought to frame questions capable of satisfying the strict "pure question of law" threshold.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 18, 32(1)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), ss 18(2), 18(8)
- Crimes (Appeal and Review) Act 2001 (NSW), s 52(1)
- Occupational Health and Safety Act 1983 (NSW)

Cases:
- Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289; [2004] NSWCCA 439
- Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2
- Kirk v Industrial Court of New South Wales and Another (2010) 239 CLR 531; [2010] HCA 1
- NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252
- Williams v R (1986) 161 CLR 278; [1986] HCA 88
- R v PL [2009] NSWCCA 256
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35