3 On the hearing of submissions on the plea of guilty, the parties tendered an Agreed Statement of Facts. For the purposes of this hearing, the relevant parts of the Agreed Statement of Facts are as follows:
3. At all material times up to February 2002, FREIGHT RAIL CORPORATION was a statutory corporation pursuant to the Transport Administration Act of 1988 with its head office located at 126 Church Street, Parramatta in the State of New South Wales ("the Defendant").
4. In February 2002, the assets, rights and liabilities of the business undertaking of the Defendant were sold to National Rail Consortium (SSL) Pty Ltd (" NRC SSL "). The sale was mandated by Freight Rail Corporation (Sale) Act 2001 (NSW). The Defendant continues to exist as a corporation sole constituted by the Treasurer of New South Wales. Its continued existence is necessary in order that certain cross border leases remain extant. The existence of these cross border leases is necessary for the continued conduct of the undertaking by NRC SSL.
5. At all material times up to February 2002, the Defendant conducted rail freight operations throughout the State of New South Wales.
6. At all material times up to February 2002, the Defendant employed a number of personnel in its rail freight operations, including Stephen Hockings, 45 years of age, as an Assistant Locomotive Engine Driver and Ronald Simmons, 53 years of age, as a locomotive driver.
7. On 27 October 1998 Stephen Hockings was fatally injured at Trangie Rail Yard when he was crushed between a stationary and moving train as he was carrying out shunting duties.
8. Prior to the incident, Mr Hockings and Mr Simmons were given instructions by the Roster Clerk at Parkes to load containers of cottonseed onto a train at Trangie, take the train to Dubbo and then finish back at Parkes.
9. Mr Hockings worked with engine driver, Mr Simmons, to load the containers filled with cottonseed onto 29 empty wagons at the Trangie Rail Yard. The train they were working had three engines attached. The train movements at the Trangie Rail Yard are restricted because there is a highway crossing on the southern side of the yard. The container loading area is at the southern end of the yard. Only five wagons can be loaded at one time due to the length of the spur line. In addition with three engines on the train, the train would pass the points that set off the level crossing and disrupt traffic. As a result Mr Simmons and Mr Hockings had to bring the train backwards and forwards over the level crossing to load the train.
10. The former crew had already placed eight loaded wagons onto the loop line Mr Simmons and Mr Hockings had loaded another seven and were propelling (reversing) the train down the main line to pick up some more empty wagons to be loaded. Mr Hockings was carrying out shunting operations and riding on the steps of the last wagon to direct the train to the empty wagons at the northern end of the yard. Mr Hockings was communicating with Mr Simmons via radio and hand signals.
11. The distance from the front locomotive to the shunter was approximately 200 metres. As the engine driver, Mr Simmons, propelled backwards he noticed that there was only a small clearance between the wagons in the loop line and the train and he applied the brakes. At the same time he saw Mr Hockings spin between the wagons and drop to the ground.
12 Both men were experienced locomotive engine drivers. Mr Simmons had worked at Trangie on previous occasions but Mr Hockings had not. Mr Hockings' duties were to supervise and perform the shunting and loading.
13. Mr Hockings commenced employment with the former State Rail Authority in 1976 as a fettler. In 1981 he transferred to the Locomotive Division at Parkes. His training records indicate that he gained Assistant Train Driver level on 27 January 1998. He was last assessed and certified for Engineman Safeworking on 4 September 1998.
14. The Defendant's records indicate that Mr Hockings received the following training by his employer:
(a) Engineman Safeworking on 4 September 1998;
(b) shunting on 4 December 1981 and 10 April 1996;
(c) shunting (modified) on 30 July 1991 and 6 May 1993.
15. The Defendant's records indicate that Mr Hockings was due to be reviewed on shunting on 10 April 1998.
16. Until July 1996, the NSW rail network was owned, managed and maintained entirely by the then State Rail Authority of NSW, a statutory body created pursuant to the Transport Administration Act 1988 (as it then was).
17. In July 1996, the New South Wales rail industry was restructured by the Transport Administration Amendment (Rail Corporation and Restructuring) Act 1996 (NSW) which amended the Transport Administration Act 1988. Under this legislation, the then State Rail Authority was broken up into 4 separate organisations:
(a) Rail Access Corporation (" RAC ") - a new statutory State-owned corporation whose functions included:
(i) holding, managing and establishing rail infrastructure facilities on behalf of the State; and
(ii) providing rail operators with access to the NSW rail network.
(b) State Rail Authority of NSW - a new statutory body, responsible for the operation of efficient, safe and reliable railway passenger services.
(c) Railway Services Authority of NSW (renamed in 1998 to Rail Services Australia) - a new statutory State-owned corporation whose principal objectives included being an efficient, safe and reliable supplier of goods and services to the rail industry.
(d) Freight Rail Corporation - a statutory State-owned corporation established to operate efficient, safe and reliable rail freight services.
18. From 1 July 1996 until 1 July 2001, RAC was the owner of the majority of the NSW rail network. At the time of the accident, RAC was the owner of the majority of the NSW rail network. At the time of the accident, RAC was the owner of the main and loop lines at the Trangie Rail Yard.
19. Monitoring and maintenance of the rail network owned by RAC was contracted to maintenance contractors, mainly Rail Services Australia. Rail Services Australia was contracted by RAC to monitor and maintain the Trangie Yard.