Role of the State of New South Wales (DPI)
69There were essentially four limbs to this part of the applicants' contentions. The first was that there were acts or omissions of Departmental officers that broke the causal relationship between any identifiable risk and the applicants' alleged acts or omissions. The second was that non-disclosed and fresh evidence existed regarding inspections by Departmental officers of the quarry including the haul road that was not known to the applicants before they entered their pleas of guilty. Thirdly, that the prosecutor made unfair and incorrect submissions to the sentencing Court given the prosecutor was in possession of all of the evidence not disclosed to the applicants. Fourthly, the prosecutor's continuing duty of disclosure has still not been met.
70Before addressing these contentions we refer to the relevant parts of the sentencing judgment at [226]-[229]:
[226] The haul road had an unsafe design. The section of road leading down to the embankment, which descended at a rate of 20 per cent, or more, required adequate measures to obviate the risk of a descending truck which was out of control and unable to negotiate the left-hand bend. In particular the height and continuity of the berms at the area where the truck left the embankment were inadequate to restrain an uncontrolled truck.
[227] According to Mr Badior various discussions were held with quarry personnel and DPI inspectors, Messrs Healey and Chilman. Mr Badior said that Mr Chilman visited the quarry on 22 April 2005 at which time the haul road had been completed and was in use between Bench No 1 and No 4. Mr Chilman at that time, according to Mr Badior, did not raise any issues concerning the design of the haul road. Mr Chilman in fact invited Mr Badior to address an industry group about how to develop a quarry. If, the defendants assert, the defects in the haul road were so obvious why then did not one or more experienced and qualified DPI officers bring up the matters or issue some written directions?
[228] A closer look at Mr Badior's evidence on this issue however reveals that Mr Badior referred to only one DPI inspector (Mr Chilman) who actually saw the haul road prior to the accident. Mr Badior did not say that the purpose of Mr Chilman's visit was to inspect the haul road. It was not suggested that Mr Chilman attended with the purpose of conducting an audit or inspection of the quarry, or of the haul road in particular. There was an audit of the quarry conducted by a mines safety officer, Matthew Barnes, on 23 July 2003 and a subsequent audit was also conducted by Mr Barnes on 4 April 2005. In oral evidence Mr Badior confirmed that the references to "audit" in his affidavit meant a desk audit. The reference to "inspection" in the affidavit, Mr Badior said, referred to the inspection of plant and equipment at the quarry by DPI inspectors on 15 November 2002, 15 and 16 April 2003, and 1 March 2004. It would appear however from Mr Badior's affidavit that the haul road was not completed until either late 2003 or early 2004. In any event Mr Chilman's failure to comment on safety issues with regard to the design of the haul road during his visit on 22 April 2005 does not detract from the statutory obligation on Hunter Quarries as an employer to ensure that the design of the haul road was safe.
[229] With regard to the inadequate bunding on the haul road I have found that the majority of the berms were not at or above the recommended height of half the wheel height of the truck as set out in the Handbook. I have also found that Hunter Quarries was in possession and aware of the contents of the Handbook prior to 14 June 2005. According to Dr Rechnitzer the recommended height for berms on a haul road set out in the Handbook is too low to stop a loaded runaway truck. Dr Rechnitzer concluded that berms even at axle height would have been inadequate.
71In their submissions in the sentencing proceedings, the applicants addressed the issue of inspections by DPI officers:
Mr Badior gave evidence about attendances at the quarry by various officers from the DPI. He was cross-examined on this aspect as follows.
Q. What are you asking the court to draw from the material you have in here, are you intending the court to draw the inference that the Department in some way approved of the haul road as constructed?
A. What I am saying is I have an open door approach to the DPI coming to the quarry.
Q. Is that as high as you want to put the matter. You are not suggesting the Department in some way approved of the haul road before this incident are you?
A. I am saying they drove on the haul road with me and there was no objection?
And
Q. When do you say approximately that Mr Chilman was present and saw trucks utilising the haul road?
A. He was there I think on 22 May.
Q. 2005?
A. Yes, and he went up the haul road with me. The haul road was in use.
Contrary to what is asserted by the Prosecutor at [54] of their submissions, there was never any suggestion by the Defendants that Mr Chilman was there to only inspect the haul road or to approve the same. Rather, it was understood it was part of his overall attendance at the site. The relevance of Inspector Chilman's attendance and that of other DPI officers goes to foreseeability, the design of the haul road and whether there were any obvious deficiencies in the haul road.
The court is asked to have regard to the evidence of the various attendances and inspections of the quarry carried out during its development by a number of inspectors from the DPI and the absence of any directions being given in relation to the haul road design, gradient and provision of berms. That is not to suggest avoidance of the plea or imply that the responsibility ultimately lay with the DPI. Rather, it is raised in relation to the issue of foreseeability. If the design of the road was as transparently flawed as suggested by the Prosecutor then one would have expected a somewhat different reaction from the inspectors and mine safety officers who attended from 2003 onwards. Certainly, one would not expect an invitation to be extended to Mr Badior to speak to an industry group on the development of a quarry by Inspector Chilman, if the flaws in the haul road were so openly plain to see and contrary to the guidelines in the Handbook. Further, the culpability of the Defendants may have been different to the present case if, for example, there had been evidence of notices being issued and directions given to the First Defendant to change the design by lessening the gradient and/or by improving the berms. No such directions or notices were given until after the incident.
72The applicants contended it was "erroneous" that no reference was made by then counsel for the applicants, the prosecutor or Backman J to applicable provisions of the Mines Inspection Act 1901 (since repealed), namely, the powers of inspectors and mine safety officers in that Act in ss 36B and 37(1). Those provisions were relevantly in the following terms:
36B Inspector or mine safety officer to inform mine management of certain matters
If, as a result of the exercise at or in connection with a mine or other workplace of any of the powers conferred on an inspector or mine safety officer under section 36 or 36A, the inspector or mine safety officer obtains any information or becomes aware of any practice at a mine that may, in the inspector's or mine safety officer's opinion, be relevant to the continued safe operation of a mine or the safety of the persons employed at a mine, the inspector or mine safety officer must, as soon as possible, so advise the general manager of the mine or, if the general manager is not present at the mine, the next most senior person at the mine.
37 Notice to be given of cause of danger
(1) If in any respect not provided for by express provision of this Act or by any general or special rule any inspector finds any mine or any part thereof, or any matter, thing, or practice in or connected with such mine, or in connection with the control, management, or direction thereof to be dangerous or defective, so as in the inspector's opinion to threaten or tend to injure the health or the body of any person, such inspector shall give notice thereof in writing to the owner or general manager of the mine, and shall state in such notice the particulars in which the inspector considers such mine or any part thereof, or any matter, thing, or practice, to be dangerous or defective, and require the same to be remedied within a period named in such notice; and if the cause of danger is not removed or if such defect is not remedied within the period so named, the inspector may take proceedings against the owner or general manager for such default, and on being satisfied that such notice was justified by the matter complained of, the court may impose on such owner or general manager a penalty not exceeding 5 penalty units, and a further penalty of 1 penalty unit for every day after such decision during which such notice is not complied with.
73The applicants submitted that the State of New South Wales, acting through its Departments, was negligent or reckless because of the conduct of the State's Inspectors or Mine Safety Officers at the quarry conducting inspections and audits. That was because the State did not, before the accident on 14 June 2005, identify and recommend or require remedial action in respect of, inter alia, the manner of the construction of the haul road including the berms and the grade of the road at the point that it turned, notwithstanding the obligations imposed on inspectors and mine safety officers by the Mines Inspection Act. Consequently, the chain of causation between the alleged risk and the applicant's alleged failures to avoid the risk was broken.
74Alternatively, the failure to address the Mines Inspection Act was relevant to the statutory defence of not reasonably practicable under s 28(1) of the Act: WorkCover Authority of NSW (Inspector Mayo-Ramsay v Maitland City Council (1998) 83 IR 362 at 381 and WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [90]-[91].
75In support of their further alternative submission that the evidence regarding the Mines Inspection Act was relevant in relation to sentence, the applicants referred to Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [241]-[242].
76The first element of the applicants' contention then is that Inspector Chilman was negligent or reckless in failing to take action in accordance with his obligations under the Mines Inspection Act and, therefore, that broke the chain of causation between the risk and the applicants' failures to avoid the risk. This was not a matter pressed by the applicants in the sentencing proceedings, notwithstanding that they did submit that DPI officers, including Inspector Chilman, had travelled on the haul road and must have been aware of its condition. The applicants had asked the court, albeit in the context of foreseeability, to have regard to the evidence of the various attendances and inspections of the quarry carried out during its development by a number of inspectors from the DPI and the absence of any directions being given in relation to the haul road design, gradient and provision of berms.
77Of itself, the fact that there was no reliance placed on the Mines Inspection Act and the causation argument was not relied upon as a defence against the charges, is no reason why leave should be granted to extend time to appeal. Those propositions were available to be relied upon before it was decided by the applicants to plead guilty. The fact that counsel may not have provided advice in this respect, because of incompetence or otherwise, does not justify revisiting the issues on appeal unless it could be said to amount to "flagrant incompetence" involving or causing a miscarriage of justice: R v Birks (1990) 19 NSWLR 677 at 685 per Gleeson CJ or unless it satisfied the tests in R v Wilkes, namely:
a) whether the advice given to the appellant was or was not imprudent and inappropriate;
b) whether his plea was or was not attributable to a consciousness of guilt; and
c) whether the material before this court shows that there is or is not a real question about his guilt.
78It is not surprising the causation argument was not raised prior to pleading guilty. What the applicants' contentions in this regard now amount to is novus actus interveniens: that the failure of Departmental officers, in particular Inspector Chilman, to take action regarding the unsafe condition of the haul road was the cause of the incident and not the applicants' failure to ensure employees were not exposed to risks to their safety because of the unsafe condition of the haul road. To succeed in that argument the applicants would have to show the condition of the haul road was not a substantial factor in causing the risk to Mr Smith to materialise: Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 214 IR 373; (2011) 213 A Crim R 340.
79Considering the fact that the applicants agreed (both in respect of the Amended Application for Order and Agreed Facts) the haul road was unsafe, including an absence of berms, and the evidence was to that effect, it seems to us the likelihood of the applicants being able to transfer the blame for the incident to the DPI, on the basis of a break in the chain of causation, would be negligible.
80In considering whether the haul road was unsafe and whether there should be agreement to that proposition as part of any guilty pleas, the applicants would need to have considered whether it was correct that a loaded truck discovered to be in the condition of truck 28 could safely navigate a road with a 1 in 5 gradient leading to a left hand bend where there was an inadequate bund wall. That seems to us, with the assistance of any advice from the applicants' experts, to be a reasonably straightforward exercise. In that context, having agreed the haul road was unsafe, it is difficult to see how the applicants could successfully contend their failure to ensure the haul road was safe was not a substantial cause of the risk.
81The next aspect of the applicant's argument was that if DPI officers had not foreseen the haul road as being unsafe it could not be expected that the applicants would do so. In other words, previous counsels' failure to advise the applicants that in light of the DPI's failure to foresee the unsafe condition of the road, there was a defence available under s 28 of the Act (namely, it was not reasonably practicable for Hunter Quarries to comply with s 8(1) of the Act because the unsafe condition of the road was not reasonably foreseeable) and this amounted to a miscarriage of justice. In this respect, Mr Bryan deposed that Mr Chevalley had advised him that persons acting for Hunter Quarries prior to entering a plea of guilty did not provide any advice to it concerning the potential availability of a defence based on the role of the DPI. Mr Chevalley was purported to have said that if he had known of the potential for such a defence to be explored, Hunter Quarries would not have entered a plea of guilty.
82The evidence accepted by Backman J, something that was entirely open to her Honour, was that:
Mr Badior referred to only one DPI inspector (Mr Chilman) who actually saw the haul road prior to the accident.
Mr Badior did not say that the purpose of Mr Chilman's visit was to inspect the haul road.
It was not suggested that Mr Chilman attended with the purpose of conducting an audit or inspection of the quarry, or of the haul road in particular.
83Accordingly, on this basis, this case is not in the same class as Maitland City Council or Cleary Bros. In Maitland City Council three experts, years earlier, had specifically examined the safety of the particular issue that had given rise to the risk to safety (a cockerel box) and did not foresee any danger. In Cleary Bros, a Work Cover inspector had earlier examined the pit in question as part of a safety survey and had not recommended any barrier or fencing be installed to prevent falls into the pit. The trial judge held this was further evidence supporting the view that it was not reasonably practicable to construct a safe barrier.
84The applicants, however, referred to material they contend was not disclosed by the prosecution, material they say throws a new light on the question of whether officers of the DPI had inspected the haul road and berms. The material came to light during the Chevalley/Grugeon proceedings in 2012. The more significant aspects of that material included the following:
(a) information that emerged from the cross-examination of Mr Paul Raftery, who was Investigation Unit Manager for the DPI who appears to have stated that a decision had been made within the DPI not to record formal interviews with Inspectors and MSOs regarding their dealings with the Karuah quarry because an objection was taken to doing so. The applicants infer this indicated some sort of "cover up". We note Mr Raftery's evidence in this regard was hearsay. Mr Raftery's evidence had not been completed and he was due to be recalled along with Inspector Chilman and MSO Barnes, but the discharge of Mr Chevalley and Mr Grugeon on 22 October 2012 meant this did not occur;
(b) an Investigation Report by Mr Alwyn Piggot, Investigator for the DPI into the 14 June 2005 incident dated 7 July 2006, which refers to inspections of the Quarry by Inspector Chilman and MSO Barnes and DPI actions prior to the incident. In respect of Inspector Chilman the Report stated, inter alia:
Inspector Chilman reported that he raised issues regarding the bunding of the haul road on several occasions. Grahame Chevalley in his record of interview of 12 December 2005 said that the inspector had advised the quarry to improve the bunding (refer to answer to question 55, Doc 3.21).
...
Inspector Chilman said that he did not recall specifically examining the haul road. He reported that during some visits he had seen an excavator operating at a location somewhere near the top of the quarry but he believed that material was being dumped over the edge rather than transported down the haul road....
In respect of MSO Barnes it was stated in the Report that he reported that his activities in relation to the mine included evaluating mechanical equipment (fixed and mobile) and other matters. It was stated that the Terex trucks had not been evaluated by the department officers prior to 14 June 2005. Under the heading "DPI Actions Prior to Incident" it was stated:
Department officers visited the quarry throughout the process of the development of the mine and continued visits subsequent to commissioning. First visits occurred on 2001.
Department officers reviewed and confirmed documentation, inspected the physical layout of the mine, provided advice and assistance and carried out audits of the mine.
(c) handwritten notes of Mr Piggot that, inter alia, recorded that MSO Barnes had visited the quarry eight times prior to 14 June 2005 and that Inspector Chilman had "Raised issues of bund walls on each visit";
(d) handwritten notes of Mr Paul Healey (a DPI Inspector) concerning the DPI's role in seeking telephone records. This concerned inquiries that were sought to be made by the DPI about calls received by Mr Smith on his mobile phone and whether any were received whilst he was driving truck 28 immediately prior to the incident. This is dealt with later in this judgment;
(e) information derived from the cross-examination by the applicants of Mr Piggot on 23 July 2012 in the Chevalley/Grugeon proceedings regarding previously undisclosed notes made at an informal interview with Inspector Chilman on 2 May 2006 concerning the role of the DPI. Mr Piggot confirmed that Mr Chilman told him he had raised issues of the bund walls on each visit to the quarry on any parts of the haul road;
(f) information derived from the cross-examination by the applicants of Mr Piggot on 23 July 2012 in the Chevalley/Grugeon proceedings regarding a conflict in the official notebook entries of MSO Barnes for 14 June 2005 compared to what Mr Barnes told Mr Piggot at a 2 May 2006 informal interview, namely, that in the undisclosed notes of the interview there were no notations indicating that on any of his visits to the quarry Mr Barnes had inspected the Tex trucks (he had only conducted mechanical inspections of fixed plant) but the notebook entry indicated that there had been an inspection of the Terex truck previously in relation to whether a seatbelt had been fitted;
(g) information derived from the cross-examination by the applicants of Mr Warden (an employee of Hunter Quarries) on 13 March 2012 in the Chevalley/Grugeon proceedings that there were other quarries in NSW that had haul roads as steep a gradient as the one at the Karuah quarry; that Mr Warden had seen Departmental inspectors travelling up haul roads, which meant driving by and seeing the bunds Mr Warden had constructed; that Mr Warden stated no direction had been issued by any Inspector to fix up the bunds because they were unsafe. Similar evidence was given by two other witnesses, Mr Melville and Mr Mehan (presumably employees of Hunter Quarries), with Mr Melville saying he had seen a Departmental officer on his visits "go up and check the haul roads and the bund walls".
85The applicants further contended there was other material that the applicants had sought from the prosecution that was considered to be relevant, but as yet had not been disclosed.
86In raising the issue of the undisclosed material, the applicants were contending that it was relevant to whether a defence was available under s 28 of the Act. At the relevant time s 28 provided:
28 Defence
It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:
(a) it was not reasonably practicable for the person to comply with the provision, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.
87In Cleary Bros, Walton J, Vice-President considered the proper meaning and application of the words "reasonably practicable" in the predecessor provision to s 28 (a) (s 53(a) of the Occupational Health and Safety Act 1983). At [87]-[88] his Honour stated:
[87] It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. (emphasis added) [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor.
88His Honour's pronouncements in Cleary Bros were approved by the Full Bench in WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 at 467. See also Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57 at [68]; WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 259; and Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 240; (2000) 102 IR 57.
89On the evidence that was before Backman J, in considering whether the risk was foreseeable in the context of sentencing, her Honour did not find there had been an inspection by Departmental officers of the haul road. Her Honour seemed to find there was no evidence to support such a finding. Her Honour said (at [228]), "In any event Mr Chilman's failure to comment on safety issues with regard to the design of the haul road during his visit on 22 April 2005 does not detract from the statutory obligation on Hunter Quarries as an employer to ensure that the design of the haul road was safe."
90The undisclosed material appears to suggest Inspector Chilman raised issues regarding the bunding of the haul road on several occasions (apparently confirmed by Mr Chevalley) but on the other hand suggests, "Inspector Chilman... did not recall specifically examining the haul road." Evidence from Hunter Quarry employees in the Chevalley/Grugeon proceedings indicates Departmental officers were seen checking the haul road.
91The undisclosed material also raises the question of whether MSO Barnes may have inspected truck 28 prior to 14 June 2005. No mention is made in the sentencing judgment of any inspections of trucks by MSO Barnes at the quarry other than at [228], where Backman J stated:
There was an audit of the quarry conducted by a mines safety officer, Matthew Barnes, on 23 July 2003 and a subsequent audit was also conducted by Mr Barnes on 4 April 2005. In oral evidence Mr Badior confirmed that the references to "audit" in his affidavit meant a desk audit.
92The effect of what the applicants were contending was that on the basis of the undisclosed material, it was arguable (subject to fresh evidence being admitted on any appeal) that Departmental officers had inspected the haul roads, including the bunds or berms and had not foreseen any risk to safety. Therefore, having regard to the approach in such cases as Maitland City Council and Clearly Bros, if experts such as inspectors of the DPI had not foreseen any risk, it was arguable that the risk was not reasonably foreseeable by the applicants, in which case it was not reasonably practicable to make provision against the risk occurring.
93Additionally, it was contended that it was arguable that MSO Barnes had inspected truck 28 prior to 14 June 2005. That being so it was arguable that MSO Barnes had not foreseen the risk associated with the condition of the vehicle and, therefore, it was arguable that the risk was not reasonably foreseeable by the applicants, in which case it was not reasonably practicable to make provision against the risk occurring.
94The applicants submitted the non disclosures were relevant to each of the four particulars of the charge and if it could be shown on appeal that the risk associated with the condition of the haul road and the risk associated with the condition of the truck were not foreseeable that would mean there had been a miscarriage of justice.
95As we perceive it, the position regarding the haul road and berms is as follows:
(a) it was alleged in the Amended Applications for Order that the haul road was unsafe in that it did not have adequate continuous berms or other measures along the side of the road and its design was unsafe given its grade at the point where it turned and the absence of berms or adequate berms in that area;
(b) the applicants pleaded guilty to the amended charges;
(c) in a statement of Agreed Facts, the applicants agreed that:
The haul road did not have adequate continuous berms or other measures along the side of the road. Some berms were less in height than half that of the Terex truck TA30 wheel height. There were parts of the haul road where the berms on the right-hand side of the road were not continuous.
...
There were some concrete blocks located in a cluster on the embankment area. The blocks themselves were not fit for the purpose of bunding as they did not have energy absorption characteristics of the kind possessed by eg., sand and soil.
The section of the road leading down to the embankment, which descended at a rate of 20% or more, required adequate measures to reduce or eliminate the obvious risk of a descending truck that was out of control being unable to negotiate the left-hand bend, crossing the short level space and plunging over the embankment. Such measures had not been taken, and the haul road accordingly had an unsafe design.
(d) the expert evidence in the proceedings was that the berm in the embankment area where truck 28 left the road was too low or otherwise inadequate because it lacked the necessary energy absorption characteristics required for adequate bunding (the concrete blocks);
(e) Backman J found that:
The haul road had an unsafe design. The section of road leading down to the embankment, which descended at a rate of 20 per cent, or more, required adequate measures to obviate the risk of a descending truck which was out of control and unable to negotiate the left-hand bend. In particular the height and continuity of the berms at the area where the truck left the embankment were inadequate to restrain an uncontrolled truck.
(f) the evidence before Backman J was that Inspector Chilman visited the quarry on 22 April 2005. Inspector Chilman at that time, according to Mr Badior, did not raise any issues concerning the design of the haul road. Mr Badior referred to only one DPI inspector (Mr Chilman) who actually saw the haul road prior to the accident. Mr Badior did not say that the purpose of Inspector Chilman's visit was to inspect the haul road. It was not suggested that Inspector Chilman attended with the purpose of conducting an audit or inspection of the quarry, or of the haul road in particular;
(g) undisclosed material indicates that Inspector Chilman raised with Hunter Quarries issues regarding the bunding of the haul road on several occasions. This appears to be confirmed by Mr Chevalley who is reported to have said that the Inspector had advised the quarry to improve the bunding; and
(h) undisclosed material indicates that Inspector Chilman did not recall specifically examining the haul road.
96If it were the case that Inspector Chilman did raise with the applicants issues regarding the bunding on each of his visits (and it appears Mr Chevalley acknowledged he had been advised to improve the bund walls), then depending on the nature of the issues raised by Inspector Chilman there would be no defence that it was not reasonably practicable to make provision against the risk occurring, at least in so far as the condition of the bund walls was concerned, because the applicants would have known of the risk.
97However, it is not known what the nature of the issues Inspector Chilman raised was and whether they were addressed. The indication in the undisclosed material was that Inspector Chilman raised issues regarding the bunding of the haul road on several occasions. If that is right, it means he must have inspected the walls (or some part of them) and made an evaluation about their condition. Despite the indication of Inspector Chilman raising issues about the bund walls, the walls at the point where the truck left the road remained inadequate.
98It may be the applicants ignored the issues raised by the Inspector. On the other hand, it remains a reasonable possibility that having inspected the berms Inspector Chilman failed to foresee - and consequently failed to bring it to the notice of the applicants - that on a section of road with a gradient of 1 in 5, in the absence of adequate bund walls, there was an "obvious risk of a descending truck that was out of control being unable to negotiate the left-hand bend, crossing the short level space and plunging over the embankment." If that was the case, the applicants had an arguable case for a defence under s 28 of the Act in respect of Particular A of the amended charge, but being unaware Inspector Chilman had inspected the bund walls - a fact allegedly not disclosed by the prosecution - were deprived of the opportunity to forensically explore this aspect.
99In relation to the question of inspection of truck 28 by MSO Barnes, there is no reference in the sentencing decision regarding any such inspection by DPI officers prior to 14 June 2005. Mr Piggott's notes of his interview with MSO Barnes on 2 May 2006, which were not disclosed to the applicants, has no notation of MSO Barnes having inspected the Terex trucks on any of his visits to the quarry. The only mechanical inspections referred to were in relation to fixed plant. Mr Piggott appeared to confirm this in his cross-examination by the applicants in the Chevalley/Grugeon proceedings on 23 July 2012.
100This would appear to give rise to an inconsistency in that in Mr Barnes' official notebook (a copy of which we do not have, but which is quoted from by counsel in the cross-examination of Mr Piggott and in respect of which it is not clear from the materials whether this notebook was disclosed to the applicants before they pleaded guilty) it purports to attribute to MSO Barnes (on some unidentified date) the statement, "A discussion took place between Paul Healey and Paul Drain and myself as to whether the truck [query whether "the truck" is truck 28] was fitted with a seatbelt. I said I was sure it had one as I had done an inspection previously and noted there was one".
101There are some deficiencies in the material put forward to justify an extension of time regarding departmental inspection of truck 28 prior to 14 June 2005 that reduces its probative value. However, if MSO Barnes did carry out a mechanical inspection of truck 28 before 14 June 2005 and did not foresee any risk arising from the condition of the truck, the applicants had an arguable case for a defence under s 28 of the Act in respect of Particular B and also perhaps Particulars C and D.
102On the basis of this analysis of the evidence and the potential for further evidence to be adduced on appeal, we consider leave to extend time to appeal should be granted.