Inspector Dugdale v Fluid Tech Hydraulics Pty Ltd

Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72 Kirk v Industrial Court (NSW) [2010] HCA 1; (2009) 239 CLR 531 CASES CITED: Maxwell v the Queen [1996] HCA 46; (1995 - 1996) 184 CLR 501 R v Wilkes [2001] NSWCCA 97 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; 165 IR 7

Mr R Reitano of counsel (Prosecutor) Solicitor: Legal Group LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales

Mr JJ Fernon SC with Mr T Boyd of counsel (Defendant) Solicitor: Herbert Weller, Solicitor

Inspector Edward Dugdale v Fluid Tech Hydraulics Pty Ltd

Prosecution pursuant to s 11(1)(a) of the Occupational Health and Safety Act 2000

1 The prosecutor, Inspector Edward Dugdale of the WorkCover Authority of New South Wales, commenced proceedings against the defendant, Fluid Tech Hydraulics Pty Ltd, by way of application for order charging the defendant with a breach of s 11(1)(a) of the Occupational Health and Safety Act 2000 ("the Act"). On 1 May 2009, the defendant formally entered a plea of guilty to the charge. By notice of motion filed on 30 July 2010, the defendant has sought the leave of the Court to withdraw the plea of guilty. The defendant resisted the granting of such leave. This judgment deals with this interlocutory matter. The factual background

2 In order to determine the proceedings, it is necessary to set out briefly some background material. The proceedings were commenced by the filing of an application for order in this Court on 5 September 2008. As will be seen, the proceedings arise out of an incident that occurred on 13 October 2006. Concurrently with the filing of the application for order, the prosecutor instituted other proceedings against the same defendant alleging a breach of s 11(1)(b) of the Act and charged a person alleged to be a director of the defendant, Phillip Patrick Walker, with breaches of the same provisions of the Act by virtue of the provisions of s 26(1) which deems directors of corporations to have contravened the same provisions. 3 Relevantly, ss 11(1)(a) and (b) of the Act are in the following terms:

11 Duties of designers, manufacturers and suppliers of plant and substances for use at work

(1) A person who designs, manufactures or supplies any plant or substance for use by people at work must: (a) ensure that the plant or substance is safe and without risks to health when properly used, and

(b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use. 4 On 26 September 2008, the prosecutor served a prosecution brief of evidence in each of the four sets of proceedings. A solicitor acting for all of the defendants sought certain particulars of the charges by letter of 23 December 2008. The prosecutor's solicitor responded by letter dated 28 January 2009. 5 By letter dated 19 February 2009, the solicitor representing the defendants in each of the four sets of proceedings proposed on a without prejudice basis that the defendant in these proceedings would enter a plea of guilty on the basis that the remaining proceedings would be withdrawn and dismissed. One of the reasons advanced in support of this proposal was a concern on the part of the defendant about the cost that would be incurred in defending the charges. Following negotiations, agreement was reached on the proposal put forward on behalf of the defendants and negotiations were entered into concerning the preparation of an appropriate agreed statement of facts. 6 In proceedings before Staff J on 1 May 2009, the defendant formally entered a plea of guilty to the charges contained within these proceedings. 7 The proceedings next came before Backman J on 26 May 2009. On that occasion, the prosecutor sought leave to withdraw the remaining three charges and leave was granted. Notices of discontinuance were filed in Court. The proceedings were set down for hearing of the plea of guilty on 1 March 2010, this seemingly being the first date available in her Honour's Court diary. 8 On 3 February 2010, the High Court of Australia delivered judgment in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2009) 239 CLR 531. On 8 February 2010, solicitors acting for the defendant wrote to the prosecutor's solicitor referring to the judgment in Kirk and stating:

We understand the effect of the High Court's judgment to be that it would constitute jurisdictional error for the Industrial Court to proceed and make any order against Fluid Tech Hydraulics. The Court could not accept any plea of guilty to the charges alleged. The prosecutor's solicitors were invited to consider the matter and the defendant's solicitors indicated that they were approaching this Court to seek an urgent relisting of the matter. Following further correspondence, the prosecutor's solicitor wrote to the defendant's solicitor on 26 March 2010 referring to Kirk and stating, inter alia:

Without conceding any defect with the pleadings we propose to seek to amend the current pleadings. A proposed amended application for order was enclosed with the letter and the defendant was asked whether it consented to the proposed amendment. By then a directions hearing had been fixed for 6 April 2010. By letter dated 29 April 2010, the defendant's solicitor indicated that the defendant would not consent to the proposed amendment. 9 On 3 May 2010, the prosecutor's solicitor wrote to the defendant's solicitor seeking clarification as to whether the defendant intended to maintain its plea of guilty to the charge set out in the original application for order. 10 The proceedings were listed for directions before Backman J on 13 July 2010. The upshot of the hearing that day was that the defendant indicated that it would file a notice of motion seeking leave to withdraw the plea of guilty. This was despite an assertion that it was not necessary to file such an interlocutory application because the defendant took the view that the charge before the Court was not "a valid charge". 11 In any event, a notice of motion was filed, as I have previously indicated, and it is that notice of motion with which the Court is dealing in these reasons for judgment. 12 In order to deal with the submissions of the parties, it is necessary to describe firstly the charge brought against the defendant and the particulars of the charge which were subsequently furnished. It will also be necessary to refer to the agreed statement of facts which was prepared jointly by the parties and endorsed by them as representing an appropriate statement of facts upon which the Court might determine the appropriate penalty. The charge as originally formulated

13 The defendant was charged under the application for order that:

[B]eing a supplier of plant, did between about 5 September 2006 and about 13 October 2006, at 115 - 137 Rookwood Road Yagoona in the state of New South Wales ("the premises") FAIL TO ensure that the plant it supplied was safe and without risk to health when properly used contrary to s 11(1)(a) of (the Act). 14 The particulars of the charge as contained within the application for order were as follows:

(b) The defendant supplied to Weldlok Industries Pty Ltd a high-pressure oxygen transfer line and associated equipment including a hose (the plant) for use by people at work;

(c) The defendant supplied the plant to Weldlok Industries Pty Ltd at its premises at 115 - 137 Rookwood Road Yagoona in the State of New South Wales;

(d) The defendant failed to ensure that the plant was safe when properly used in that it failed to conduct an adequate assessment of the plant so as to ensure it was safe when it was used;

(e) The defendant failed to ensure that the plant was safe when properly used in that the plant was not safe;

(f) The defendant failed to ensure that the plant was safe when properly used in that it failed to conduct a risk assessment in relation to the plant;

(g) As a result of the defendant's omissions employees of Weldlok Industries Pty Ltd, and in particular Hasib Kamenjasevic, were placed at risk of injury. 15 It will be seen that, in essence, the particulars of the charge asserted that the defendant was a supplier of a high-pressure oxygen transfer line and associated equipment including a hose which it supplied to the company nominated and that the defendant omitted to do three things, as a result of which a risk of injury was created. It was asserted that the defendant failed to ensure that the transfer line and hose were safe when properly used by reason of three identified omissions. They were: 1) a failure to conduct an adequate assessment to ensure that it was safe; 2) a failure to ensure that it was actually safe; and 3) a failure to conduct a risk assessment of the transfer line and hose. 16 In its request for particulars in these proceedings, the defendant sought further particularisation only of particulars (d) and (e) contained in the application for order. The defendant asked the prosecutor to specify each act or omission relied upon in support of the allegations made against the defendant. 17 The prosecutor's solicitor's letter of 28 January 2009 provided particulars, which I set out verbatim.

As to particular (d) the omission (failure) alleged is that the defendant failed to ensure that the plant was safe when properly used in that it did not conduct an adequate assessment of the plant so as to ensure it was safe when it was used. The particular omissions (failures) were to:

(a) assess all of the hazards (risks) that would or might be associated with the plant and with the use of the plant;

(b) identify all of the dangers associated with the plant and with its use;

(c) assess control mechanisms that could be implemented so as to eliminate each of the hazards (risks) and dangers associated with the plant and with the use of the plant;

(d) test the adequacy of each component or part of the plant (especially the hose) in terms of its suitability for use on a high pressure oxygen line;

(e) obtain accurate information about the suitability of each component or part of the plant (especially the hose) for use on a high pressure oxygen line;

(f) provide relevant information to, and obtain relevant advice from, anyone with skill, training, qualification and expertise in high pressure oxygen lines or components of such lines about the hazards (risks) associated with such lines and the measures that were or are available and could be implemented in order to eliminate those risks;

(g) reduce any assessment to writing so as to provide it to anyone proposing to use the plant so as to obtain any information from them about the use they were intending to put the plant to (including the manner of its use by people) so that they had the opportunity to provide any information necessary about the use of the plant that would lead to the identification of any other risks associated with the use of the plant.

As to particular (e) the omission (failure) alleged is that the defendant failed to ensure that the plant was safe when properly used in that it was not safe at all and was unsafe if it was not properly used. The plant the defendant provided was not safe because when it was used there was a risk that the high pressure oxygen transfer hose and connection valve would come away from the gas cylinder bank and either the hose or the elbow could strike a person on the head or face causing that person substantial injuries. It was also not safe if it was used in particular circumstances such as whilst a person was smoking or was using a mobile phone near the plant. It was not safe if the immediate environment was dirty, there was combustible material or other dangerous gases present or if gas was leaking from it. The defendant's omission was in failing to make sure that the plant was safe when it was properly used. The defendant's case

18 Put shortly, the defendant relied upon the recent judgment of the High Court of Australia in Kirk. It said that a prosecutor must, in formulating a charge for a breach of the Act, identify the act or omission said to constitute the contravention of the particular provision, that the charge as formulated against the defendant did not comply with this fundamental requirement and that the charge was not one known to law. Furthermore, the defendant submitted that this defect was incapable of being cured by way of amendment and opposed the proposal by the prosecutor to amend the charge. 19 It is necessary to refer briefly to the judgment of the High Court in Kirk, and in particular to the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 20 At [14] their Honours said:

A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act (s 48). But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. 21 The application of this principle, stated succinctly in the High Court judgment, does not involve any consideration of any particular esoteric or technically based science. The Act is concerned with things that go wrong in the workplace and that affect people at work. It is to be contrasted with a consideration of the application of highly technical, exotic provisions of the taxation legislation to complex interrelated structures of corporations involving, for example, an assessment of matters such as offshore transfer pricing arrangements. What needs to be undertaken in formulating a charge under the Act is the identification of what the defendant did that was wrong or what the defendant failed to do and should have done. These must also be identified in such a way that the defendant is made aware of matters such as the time and place at which the alleged contravention occurred. 22 With this in mind, I proceed to consider the charge as formulated in the application for order. The defendant is charged with being a supplier of plant between certain dates at named premises. It was said to have failed to ensure that the plant it supplied was safe and without risk to health when properly used, in breach of s 11(1)(a) of the Act. 23 The particulars of the charge state that the plant was for use by people at work, an essential ingredient of the offence as contained within s 11(1). The charge identifies the plant as being "a high-pressure oxygen transfer line and associated equipment including a hose." It was said to have been supplied to a named company at named premises. 24 The omissions are described in paragraphs (d) to (f) of the particulars of charge. Stated shortly, it was said that, firstly, there was a failure to conduct an adequate assessment of the plant to make sure it was safe when used, secondly, there was a failure to ensure that the plant itself was safe because it was not safe and, thirdly, there was a failure to conduct a risk assessment in relation to the plant to make sure that it was safe when properly used. 25 The charge concludes by naming a particular person, an employee of the company to whom the plant was supplied, as being placed at risk of injury. 26 My understanding of the charge as formulated and as contained in the application for order is that it contains all of the essential legal ingredients of s 11(1)(a) of the Act and makes reference to essential factual matters such as the time and place at which the offence was said to have occurred. The defendant, upon receipt of the charge, would, on this basis, understand that what was alleged against it was that it supplied certain plant which was not safe for the use to which it was intended, it had not taken steps to assess whether the plant was safe and it had not conducted a risk assessment to satisfy itself that the plant was safe. 27 Obviously, the defendant needed to know more. For that reason, it sought the particulars to which I have earlier referred. A perusal of those particulars contained in the prosecutor's solicitor's letters of 28 January 2009, which I have earlier set out, would readily identify that the charge was directed to the adequacy of the hose for use on a high-pressure oxygen line. The allegation is that the defendant did not obtain any accurate information about the suitability of the hose, it didn't make any enquiries about the suitability of the hose and it didn't tell anyone that there might be risks using the hose. The particulars repeat one of the particulars in the charge by asserting that the hose was not safe to be used. 28 Whilst the High Court in Kirk made it clear that a defendant charged with a breach of the Act must be made aware of the act or omission which is said to constitute the breach, fulfilment of this fundamental requirement will differ by reason of the differing factual circumstances which will apply in almost every case. In Kirk, an employer had permitted a farm manager to use an All Terrain Vehicle to deliver building materials. The farm manager had not used a formed road for this purpose but, for reasons that were unknown, proceeded to drive the All Terrain Vehicle down the side of a steep hill. The vehicle overturned and he was killed. 29 The allegations of breach against the defendant were described in general terms. They included the failure to provide or maintain safe systems of work in relation to the operation of the vehicle, the failure to provide information, instruction, training and supervision, a failure to provide adequate information about the use for which the vehicle was designed and about any conditions necessary to ensure that it was safe and without risks to health when used, a failure to ensure that it was only operated by persons with appropriate training and a failure to "adequately identify, assess and control risks and hazards …" in relation to the operation of a vehicle on the farm. 30 The High Court held that the particulars were inadequate. The particular acts and the particular omissions which gave rise to the alleged culpability of the defendant needed to be identified. There needed to be identification of the deficiency in the system of work or the measures that should have been taken to address the deficiencies. There needed to be particularisation of the information, instruction or training that should have been given and the like. 31 The factual situation that applied in Kirk may thus be described as an existing state of affairs within which, on a particular occasion, an employee was fatally injured. 32 The factual circumstances that applied in these proceedings are, in my opinion, relevantly different. Here the charge arises out of a positive act on the part of the defendant, namely the fact of the supply of particular plant to a particular company during a particular period. In these circumstances, it is much easier for the defendant and the Court to comprehend the nature and extent of the charge, even in the general way in which it is described in the application for order. Whilst there are allegations of a failure to do certain things, they are matters that are associated with a positive act, namely the supply of plant that is alleged to have been inherently unsafe. 33 I would conclude, from my reading of the charge as formulated, that it does not suffer the defects identified by the High Court in Kirk. In coming to this conclusion, I have not considered in any way whether and to what extent any further particularisation of the charge should appropriately be made by the prosecutor. There are two reasons why I need to state this. The first is that the prosecutor has signalled an intention to seek to amend the charge. To the extent that the amendment elucidates the charge and introduces greater specificity, it should be encouraged to do so, subject of course to any argument that the defendant may wish to raise in opposition to such amendment. Secondly, there is, as shall be seen, a great deal more particularity available to the defendant in these proceedings, which I have not as yet discussed, but shall do so when considering whether the Court should exercise its discretion to allow the defendant to withdraw its plea of guilty. 34 Having concluded that the charge does not suffer the same defect as identified by the High Court in Kirk, it is strictly not necessary that I refer to the balance of the defendant's submission, namely that the charge is so incurably defective that it is not amenable to amendment. Out of deference to the submissions made by the defendant and in the event that the proceedings are to be considered further on appeal or by some other Court by some other process, I shall state my reasons briefly for rejecting the defendant's submissions. 35 There is a discussion about the circumstances in which a defective charge may be cured in the judgment of Basten JA in the New South Wales Court of Appeal in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; 165 IR 7. Mason P agreed with his Honour's reasoning. Spigelman CJ dissented as to the overall result. Commencing at [102], Basten JA deals exhaustively with the essential elements of the charge in those proceedings, the statutory provisions that govern prosecutions for a breach of the Act in this Court and the statutory provisions that permit of a power of amendment. His Honour also deals with the relevant principles that enable a court to determine whether a charge has been validly brought and whether there are defects that are capable of being rectified by amendment or the provision of particulars. At [122] his Honour said:

[T]he relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis and not by use of labels, seeking to distinguish between "essential legal elements" and "essential factual particulars". 36 His Honour concluded that, having regard to the provisions of s 16(2) of the Criminal Procedure Act and relevant authorities that

[S]o long as a defect can be remedied by amendment, the informations are not "void" in the sense that the "defects cannot be removed by amendment or otherwise put aside" … nor are the proceedings based on them a nullity. (At [123]). 37 The judgment of Basten JA in Rockdale Beef and the judgment of the High Court in Kirk have more recently been considered by a Full Bench of this Court in Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72. 38 After reviewing the statutory regime that applies to prosecutions brought under the Act in this Court and relevant authorities, the Full Bench summarised the common law principles and statutory provisions that applied to the pleading of criminal charges in prosecutions brought under the Act in this Court. These matters are comprehensively set out in [36] of the judgment. It is not necessary that I replicate their Honours' judgment nor that I attempt to summarise it. It is sufficient to state that the observations made by the Full Bench state authoritatively the principles that apply to prosecutions in this Court. 39 In considering whether the applications for orders before the Court were defective, the Full Bench said:

[70] In any event, as found in Rockdale Beef , we think it matters not at all whether the acts or omissions creating the risk are to be regarded as essential legal elements or essential factual ingredients. Both are required to be pleaded. If they are not pleaded the question arises whether that constitutes a defect in the charge and, if so, whether the resulting defect is capable of being remedied or not. As Basten JA observed in Rockdale Beef , whether the defect is capable of being remedied 'should be considered on a principled basis, and not by use of labels, seeking to distinguish between "essential legal elements" and "essential factual particulars"': at [122]. We take this observation to refer to the necessity of ascertaining the substance of the Application for Order and in so doing, considering whether or not the alleged breach is clearly set out together with the identification of the acts or omissions alleged of the defendant. This approach is not an exercise involving nitpicking technicality but simply addresses the need to ensure that the defendant is apprised of the breach alleged under the statute and the acts and omissions by which that breach was committed.

[71] It is clear from Rockdale Beef that if there is a defect in the pleading of the charge such that an essential legal element is not adequately expressed, the element may be ascertainable by implication from the Application for Order. In which case, there will be no breach of any procedural fairness requirement that the defendant be properly informed of the charge it has to meet or any breach of the requirement that the court is sufficiently apprised of the legal nature of the offence. In Rockdale Beef , the so-called error lay in the failure to plead that the conduct in question took place in circumstances where the relevant plant was controlled in 'the course of a trade, business or other undertaking', being a failure to allege an essential legal element of the offence. Nevertheless, as Basten JA held, the complaint did not involve a fundamental issue, going to the fairness of the prosecution, and should better be described as 'a complaint "at the level of technical validity"'. His Honour stated (at [125]) that: [125] ... Because the charge stated that the plant was "used by people at work" and asserted that the plant was in the control of the defendant, there is little substance in the complaint that it was not alleged to be controlled in the course of a trade, business or other undertaking. Further, the identification of the plant as a "drag chain conveyor" also gave rise to the inference that it was machinery of a kind used in the course of a trade, business or other undertaking.

The reference to the 'drag chain conveyor' was contained in the particulars of the charge.

[72] If it be accepted, as it must, that the acts or omissions of the defendant that created the risk to health and safety were essential elements of the charge, whether essential legal elements or essential factual ingredients, those acts or omissions are identified in that part of the Applications dealing with particulars. The fact that the acts or omissions were not pleaded in a particular place or in a particular form in the Applications for Order does not appear to us to amount to a fundamental defect such that the charges should be regarded as a nullity. Even if it could be contended that the acts or omissions were essential legal elements and were required to be identified in the Applications in juxtaposition with other legal elements, at best, in our opinion, it may be said the Applications contained a defect in form, which is unobjectionable (s 16(2) of the Criminal Procedure Act ) or would be regarded as an irregularity (s 170 of the Industrial Relations Act ). 40 Having regard to the reasons for judgment in John Holland, I would conclude that even if in some way as asserted by the defendant in these proceedings the application for order was defective (a submission that I have previously rejected) I would conclude that it was amenable to amendment by the application of the provisions of s 16(2) of the Criminal Procedure Act and/or s 170 of the Industrial Relations Act. Withdrawal of the plea of guilty - general principles

41 A consideration of the exercise of the discretion to permit a defendant to withdraw a plea of guilty commences against the background of the significance of the entry of such a plea. Such a plea "will constitute an admission of all the essential elements of the offence." (Per Dawson and McHugh JJ in Maxwell v the Queen [1996] HCA 46; (1995 - 1996) 184 CLR 501 at 510. 42 Notwithstanding the making of such an admission by means of the entry of the plea of guilty, a court may permit the plea of guilty to be withdrawn. In Maxwell, Toohey J said:

The court has the power to allow a plea of guilty to be withdrawn at any time before sentence ( R v Plummer (1902) 2 KB 339; Ex parte Stanton (1928) 28 SR (NSW) 516; R v Foley (1963) NSWR 1270. Whether on a trial by indictment or in summary proceedings: S v Recorder of Manchester (1971) AC 481. Followed in De Kruiff v Smith (1971) VR 761 at 765; Frodsham v O'Gorman (1979) 1 NSWLR 683 at 688 per Hope JA (Moffitt P agreeing), 690 per Mahoney JA; Daire v Lauss (1984) 35 SASR 508; Attorney-General v Kitchen and Roberts (1989) 51 SASR 54; R v Miller (1990) 2 Qd R 566; cf R v Roberts-Smith (1977) 16 SASR 147; R v Freer (1979) 26 ACTR 26). This is so even where the jury has formally returned a guilty verdict by direction following a change of plea by the accused ( R v Drew (1985) 1 WLR 914). A defective plea of guilty may be withdrawn and a conviction set aside ( R v Phillips and Lawrence (1967) Qd R 237 at 288-289 per Hart J; Frodsham v O'Gorman (1979) 1 NSWLR 683 at 690 per Mahoney JA.) on various grounds. (Grounds include: the accused did not understand the charge or did not intend to admit guilt or on the facts admitted on the plea he could not in law have been guilty of the offence: R v Forde (1923) 2 KB 400 at 403; R v Murphy (1965) VR 187 at 188; R v Chiron (1980) 1 NSWLR 218 at 235; R v Clayton (1984) 35 SASR 232; Liberti (1991) 55 A Crim R 120 at 121-122; Ferrer-Esis (1991) 55 A Crim R 231 at 232-233; Lars, Da Silva and Kalanderian (1994) 73 A Crim R 91. Or that the plea was induced by intimidation, improper inducement or fraud: Pilkington v The Queen (1955) Tas SR 144; Murphy (1965) VR 187 at 190; Barnes (1970) 55 Cr App R 100 at 106; Inns (1974) 60 Cr App R 231 at 233; R v Chiron (1980) 1 NSWLR 218 at 235.) This is part of the inherent jurisdiction of courts to see that justice is done ( R v Mutford and Lothingland Justices; Ex parte Harber (1971) 2 QB 291 at 298) and some, if not most, of the decisions mentioned are explicable on the footing that, in the view of the court, the accused lacked full understanding of the plea or there was some other vitiating factor. To this end the court may refuse to accept a guilty plea ( Marlow v The Queen (1990) Tas R 1) or direct that a not guilty plea be entered ( R v Jerome and McMahon (1964) Qd R 595). (CLR at 522). 43 There is a discussion about the matters that a court will take into account in determining whether to grant leave to a defendant to withdraw a plea of guilty in the judgment of Wood CJ at CL in the New South Wales Court of Criminal Appeal in R v Wilkes [2001] NSWCCA 97. (Giles JA and Simpson J agreed with his Honour's reasons for judgment). At [14] to [16] his Honour said:

[14] Although considered in the different context of an application to withdraw a plea, Hunt CJ at CL observed in Boag (1994) 73 A Crim R 35 at 36, that leave will be given for that purpose where the applicant shows that there has been a miscarriage of justice. His Honour went on to say:

"A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty. The authorities are collected and discussed in Chiron (at 235), in Sagiv (1986) 22 ACR 73 at 80-81; Bell (1987) 8 NSWLR 311 at 314/315; and in Davies (unreported, Court of Criminal Appeal, NSW, 16 December 1993) at pp 2-5, 7-9. See also Jupp (unreported, Court of Criminal Appeal, 23 November 1993) at pp 2-3. As Badgery-Parker J said in Davies (at p 8), there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt."

[15] His Honour made observations to similar effect in Cincotta NSW CCA 1 November 1995 at page 1, as did Scholl J in Murphy (1965) VR 187 at 191. In Maxwell Dawson J and McHugh J said at 510 to 511:

"An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty. That is illustrated by R v Martin where the trial judge, the Chief Justice, suggested that the accused should enter a plea of not guilty. The accused declined to do so and insisted upon pleading guilty. Upon a case stated by the Chief Justice, the judgment of the court was delivered by Owen J, who said: 'It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the Judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance.'"

[16] To similar effect were the observations of Toohey and McHugh JJ in Meissner [1995] HCA 41; (1995) 184 CLR 132 at 142. Moreover, in Davies NSW CCA 16 December 1993, a decision cited with approval in Ganderton NSW CCA 17 September 1998, Favero (1999) NSW CCA 320, Toro Martinez (2000) NSW CCA 216 and most recently in Hura , Badgery-Parker J, with whom the remainder of the bench agreed, said: "The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv ) and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea 'was not really attributable to a genuine consciousness of guilt' (per Scholl J in Murphy supra). If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Justice Scholl 'an issuable question of guilt' - to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."

44 I proceed on the basis of the principles referred to above. The defendant, having entered a plea of guilty and having been taken to have solemnly admitted all of the ingredients of the offence, will need to establish an appropriate reason why it should be granted leave to withdraw the plea. 45 In written submissions, the defendant said that the charge as currently formulated failed to identify the act or omission of the defendant upon which the charge is based and has thus "denied to the defendant the opportunity to properly put a defence … ." I have previously discussed the nature and substance of the charge as contained within the application for order. I have previously concluded that the gravamen of the acts and omissions with which the defendant is charge as revealed in the application for order is that it failed to assess whether the plant which it was supplying was safe to be used in the circumstances, and it failed to carry out a risk assessment of the safety of the plant after it was supplied. Furthermore, the plant itself was not safe in all the circumstances. 46 During the course of oral submissions, Mr J J Fernon, Senior Counsel for the defendant complained that the defendant did not know precisely what it should have done even by reference to the particulars which were furnished by the prosecutor through his solicitors. Mr Fernon gave as one of the examples a particular that alleged that there was a failure to ensure that the plant was safe in that it failed to conduct an adequate assessment of the plant. Mr Fernon complained that this did not refer to:

a particular measure that it is said should have been taken. What is it that should have been done? Who should have been gone to perhaps? We don't know. Or what particular assessment was required? We don't know. Is it the sort of assessment that would be required of one class of person or another class of person? We don't know. Not being provided with such information, one can't make a judgment about a s 53 defence. e) is to the same effect: "Failed to ensure that the plant was safe when properly used in that the plant was not safe." One is none the wiser. In f): "The defendant failed to ensure that the plant was safe when properly used in that it failed to conduct a risk assessment in relation to the plant." Again, it's that character of generality which doesn't inform the defendant as to the particular measure which it is said it failed to undertake. 47 Mr Fernon made similar observations with respect to the remaining particulars furnished. He asserted that the prosecutor, in alleging that the defendant should have tested the plant to see that it was suitable, should have specified the precise test that should have been conducted. As a consequence of these deficiencies, it was said that the defendant was prejudiced in defending the proceedings and, in these circumstances, should be permitted to withdraw its plea. 48 These submissions need to be understood in the context of some further factual material to which I shall now refer. 49 In compliance with the rules of this Court, at the time that the application for order was filed it was accompanied by an affidavit in support sworn by the prosecutor. That affidavit in support was served upon the defendant. The affidavit, which is some ten pages in length, contains a great more detail about the incident that gave rise to these proceedings. It refers to injuries sustained to a named person on 13 October 2006. It asserts that as that person had connected a high-pressure oxygen cylinder bank transfer line up to an oxygen bank manifold he had turned the valve on, the high-pressure oxygen transfer hose and connector had separated and come away from the gas cylinder bank manifold piping and he was struck on the head. He sustained a traumatic brain injury, loss of vision and multiple facial fractures. 50 There follows some detailed information about a high-pressure oxygen pack which was said to have been used by the company to whom the defendant supplied and installed the hose and pipeline for the high-pressure section of the company's plant. The affidavit asserts that the named fitter/machinist employed by the defendant who installed the hose and pipeline had received no formal training about the installations and had no experience in high-pressure oxygen installations at the time he installed the equipment. There follows a detailed description of the hose which the defendant had obtained from another supplier. It is asserted that that hose was not recommended for use in high-pressure oxygen application and that the company which supplied it to the defendant had not been informed that the hose was to be used for a high-pressure oxygen application. Furthermore, it is said that the defendant "did not confirm the components …" which were supplied as being suitable for a high-pressure oxygen line. There is then a description of the work that the defendant's employee carried out including the manner in which he tested the equipment that was installed and the nature of the test. 51 It might be thought that there was sufficient particularity in the affidavit to have alerted the defendant to the nature of the acts and omissions that were alleged against it. 52 Subsequently, agreement was reached between solicitors for the prosecutor and the defendant on the terms of an agreed statement of facts which was to be put before the Court for the purpose of a hearing on penalty. Such agreement was reached in May 2009. The agreed statement of facts was admitted into evidence for the purpose of these interlocutory proceedings, and on the understanding that the document would not become evidence in any substantive proceedings without further order of the Court. I set out hereunder the content of the agreed statement of facts save for the appended documentation referred to in [32].

The Prosecutor is an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute this proceedings.

At all material times Fluid Tech Hydraulics Pty Ltd ("Fluid Tech") [ACN 076 788 433] was a corporation whose registered office is situated at Unit 1B, 6 Raymond Street, Lidcombe in the State of New South Wales.

Fluid Tech's business was in the design, manufacture, machining, welding, installation and maintenance of hydraulic and pneumatic systems. Fluid Tech's business operates from 1B Raymond Street, Lidcombe.

Fluid Tech employed about nine full time employees and three casual employees in October 2006. One of the employees of Fluid Tech was Mr Charles Woolf ("Mr Woolf"). Mr Woolf was employed as a service technician who had responsibility for on site installations and maintenance for customers of Fluid Tech.

Phillip Patrick Walker ("Mr Walker") was a director of Fluid Tech and he worked in the business.

Weldlok Industries Pty Ltd ("Weldlok") was a corporation which undertook the business of manufacture and supply of galvanised steel products.

Weldlok operated a welding fabrication workshop at its premises located at 115-137 Rookwood Road, Yagoona (the premises). The premises consisted of a number of buildings. A gas storage area was located within the premises.

Weldlok was a customer of Fluid Tech. Weldlok had been a customer of Fluid Tech for about fifteen years. During that time Fluid Tech had attended to the repair and maintenance of various kinds of hydraulically powered machinery at the premises.

In about April 2006 Fluid Tech agreed to install a high pressure oxygen line for Weldlok at the premises. The cost of supply and installation of the high pressure oxygen line was about $1,400.

The installation of the High Pressure Oxygen Hose and Pipeline

Fluid Tech installed for Weldlok, at the premises, the hose and pipeline for the high-pressure oxygen line. The installation was undertaken by Mr Woolf on behalf of Fluid Tech on about 5 September 2006. Mr Woolf was responsible for obtaining all of the components (including the hoses) for the high pressure section. Mr Woolf's supervisor was Mr Walker. Mr Woolf had a trade qualification as a fitter/machinist. Mr Woolf had seven years experience with working with high pressure gas and nitrogen gas lines. His usual duties did not include the installation of high pressure oxygen gas lines and he had received no formal training in these installations. Mr Woolf had no experience in high pressure oxygen installations at the time he undertook the installation at the premises.

The hose was ordered by Mr Woolf. The hose and components for this installation were supplied to Fluid Tech by Alfagomma. Mr Woolf did not tell Alfagomma what the hose was to be used for. The hose (8A6AA) as supplied by Alfagomma was a wire braided rubber hose. The 8A6AA hydraulic hose was build primarily for hydraulic application and not for the transfer of gases. The hose is not recommended for use in high-pressure oxygen application. To recommend any product for high-pressure oxygen transfer, a product must be suitably assessed and type tested to ensure its suitability for the application. Alfagomma were not informed the hose was for a high pressure oxygen application.

Alfagomma were not asked to confirm the hose was suitable for a high pressure oxygen line. The work done by Fluid Tech in installing the high pressure oxygen line included: measuring up all the pipes to be cut and bent; cutting and bending the pipes; bending and flaring the pipes to go to the manifold; mounting the pipes to the wall; cleaning all parts as they were assembled using thread tape; assembling all of the components; fitting the hose; and making sure the whip checks were on the hose and were secured to the wall and the oxygen bottles.

There were no tests of the hose or other components undertaken prior to the supply and installation of the high pressure oxygen line. There was no risk assessment undertaken of any of the components of the high pressure oxygen line before or after its installation. Fluid Tech did not confirm the components supplied by Alfagomma were suitable for a high pressure oxygen line. Neither Mr Woolf nor Mr Walker confirmed that the hose that Fluid Tech supplied to Weldlok was suitable for a high pressure oxygen line.

Prior to commissioning the system Mr Woolf tested the external areas of the system with soapy water, opening up the ball valve on the wall and slowly releasing the pressure into the line by the needle valve on the oxy pack. There was no leaking fittings visible. The testing was not documented. Fluid Tech did not provide Weldlok with a certificate or letter of commissioning of the installation. Neither Mr Woolf or Mr Walker told anyone from Weldlok that there would be a need to undertake an assessment or test of the plant so as to ensure it was safe when used. Nor did Fluid Tech provide any information to Weldlok about this plant.

Alfagomma did not have a hose within their available range that they would recommend for high pressure oxygen transfer. They would, if required, supply a product having outsourced it from a specialist supplier. Alfagomma considered that oxygen ageing of the liner material is a type test that would be performed if evaluating the hose for oxygen service. The hose is a hydraulic hose and as such the liner had been tested primarily for oil resistance and not for oxygen service.

Mr Hasib Kamenjasevic was employed by Weldlok and undertook duties at the premises. Mr Kamenjasevic commenced his employment with Weldlok on the 18 October 1996 and has been in the position of shift supervisor for 6 years. Mr Kamenjasevic's main duties included welding, cutting and moving material. He also regularly undertook the task of changing of gas cylinder packs. Mr Kamenjasevic was 63 years old at the time of the incident referred to below.

Mr Kamenjasevic was found lying on the concrete floor in the oxygen storage compartment in the gas storage building by Mr Ahmed Issa. The oxygen storage compartment was located on the south side of the gas storage building. The gas storage building was located at the eastern side of the premises behind the metal fabricating factory.

At the premises a high pressure oxygen cylinder bank and regulator were located at the back of the gas storage building inside one of the gas storage compartments (bays). Three types of gases namely Corgon, Acetylene and Oxygen were stored in the gas storage building. Each type of gas was stored in a separate compartment (bay). Each compartment (bay) measured approximately 2.7 metres wide x 4.1 metres deep x 2.6 metres high. The oxygen cylinder storage compartment was located to the left of the other gas storage compartments. The other compartments held high pressure cylinders containing Corgon (Argon) (centre bay) and acetylene (right hand bay) along with their associated regulators and piping.

At approximately 1.30 pm Mr Kamenjasevic was working alone in the oxygen gas storage compartment (bay) at the premises. Mr Ahmad Issa, a production labourer employed by Weldlok was undertaking duties in gas storage building. Mr Issa heard a "pop noise" and ran outside the compartment he was in and to the oxygen gas storage compartment where he thought someone must be due to the door being open. Mr Issa found Mr Kamenjasevic in the compartment, "laying in the corner with blood all around him". Mr Issa called out Mr Kamenjasevic's name but got no response. Mr Issa noticed when he first entered the compartment that oxygen was coming out of one of the oxygen bottles within the compartment. Two other workers then also arrived on the scene and Mr Issa proceeded to the office to call an ambulance. After calling the ambulance he returned to the oxygen gas storage area to assist Mr Kamenjasevic. Mr Kamenjasevic had been moved to outside the compartment at this stage. Mr Omar Issa, another worker who had arrived at the scene of the incident turned off the open oxygen bottle. Mr Ahmad Issa turned off the isolation valve for the oxygen located on the wall of the compartment.

Mr Kamenjasevic has no recollection of what he was doing at the time of the incident and there were no witnesses to the incident.

It appears that Mr Kamenjasevic had connected the high pressure oxygen cylinder bank transfer line up to the oxygen bank manifold (8 cylinders). As Mr Kamenjasevic turned the valve on, the high pressure oxygen transfer hose and connector (elbow) separated and came away from the gas cylinder bank manifold piping and Mr Kamenjasevic was struck on the head. It is unclear whether it was the end of the hose or the elbow that came into contact with Mr Kamenjasevic.

Mr Kamenjasevic sustained a traumatic brain injury, eye injury (no vision in both eyes) and multiple facial fractures as the result of an injury whilst working in the oxygen storage compartment at the premises.

After the incident, Mr Kamenjasevic was transport to Liverpool Hospital by the Ambulance Service of New South Wales (Re: Patient Health Care Record E780086) where he was examined. Acute Management occurred at Liverpool Hospital between 13 October 2006 and 16 November 2006 and included a decompressive bifrontal craniectomy, insertion of ICP monitor, repair of facial fracture, removal of (R) eye, insertion of tracheostomy tube. Mr Kamenjasevic was then transferred to the Brain Injury Rehabilitation Unit, Liverpool Health service (BIRU) for inpatient rehabilitation on 16 November 2006. Mr Kamenjasevic was discharged home on 24 May 2007. BIRU provides Mr Kamenjasevic with ongoing support and follow up. Mr Kamenjasevic has not return to work since the incident on the 13 October 2006.

Following the incident Inspector Desmond Lai inspected the site of the incident. His observations of the incident site included observing on the floor a right hand industrial glove, a hard hat, and an open ended spanner. A damaged silver coloured metal elbow was located on the ground in front of the oxygen bank and a damaged hose was connected to a metal lever type isolation valve on the southern wall.

The 8 Cylinder high pressure oxygen gas pack is assembled from a standard 48-litre capacity "G" sized cylinder and is filled to a pressure of approximately 176 bar. All cylinders are manifolded together to allow all cylinders to be simultaneously exhausted through the two outlets provided. The high pressure oxygen pack supplied the oxygen to the Weldlok Workshop via a transfer line (hose) from the pack to the manifold located on the wall of the brick structure. The oxygen was used for cutting activities in the workshop.

Linde Gas Pty Ltd (Linde) supplied the Oxygen Cylinder Pack Serial # 6676 prior to the 13 October 2006 incident. The gas cylinder pack was changed once every one to two days.

The maximum pressure inside the cylinder pack would be 176 Bar. The maximum pressure inside the cylinder is determined during the filling of the pack. There are no regulators to control the delivery pressure to the customer built into the pack. The regulator that controls the delivery pressure to the customer pipeline is installed inside the stainless cabinet on the wall of the compartment and adjacent to the cylinder pack.

All hoses and pipeline installed prior to the regulator are deemed to be high pressure. All hoses after the regulator are deemed to be low pressure, around 4 bar. The maximum pressure released to the hose would be approximately 176 bar, this would be reduced as the contents are consumed, then the cycle would re-start with each new pack connected to the system.

Fluid Tech provided no adequate advice, instruction or information to Weldlok about the safe use of the high pressure oxygen line. Fluid Tech did not test and did not arrange for testing of the high pressure oxygen line or the hose prior to supplying it to Weldlok. Fluid Tech did not provide Weldlok with any certification of the testing of the hose or a certificate of the commissioning of the new high pressure oxygen line.

A Prohibition Notice number 153307 was issued to Weldlok on 16 October 2006 requiring it to cease operating the gas storage compartment area until a competent person carried out a documented risk assessment and implement relevant and appropriate control measures.

After the incident, Weldlok contracted Linde to replace all hose and components in the gas storage area. The high-pressure hose and fittings in the oxygen gas bay were replaced. New valves, pipe work, regulators, flash back arrestor and non-return valves on the oxygen bank were fitted. The new installation by Linde was carried out in accordance with A.S 4289-1995 Oxygen and Acetylene gas reticulation system. Linde followed directives from their then parent company, Linde AG, in hose and component selection. The directive stated that only convoluted stainless steel hose was acceptable for high-pressure oxygen application. The new hose as fitted is a: 6mm NB, 1500mm long, ¼ female end connections, test pressure 45800Kpa, cleaned and bagged for oxygen service and a copy of test certificate supplied. Weldlok obtained a certificate of commission from Linde prior for the commissioning of the new system.

The following documentation is attached: a) Factual Inspection report of Inspector Lai dated 13 October 2006

b) 23 Colour photographs taken by Inspector Lai on 13 October 2006

c) 10 Colour photographs taken by Inspector Lai on 13 October 2006

d) 6 Colour photographs taken by Inspector Lai on 3 September 2007

f) Linde Gas Material and safety Data Sheet for oxygen

g) Report "Failure of Compressed Oxygen Hose - Observations"

h) Prior convictions certificate. 53 I again point to the particularity that is contained within this document. In particular, I refer to the content of [29]. It is there asserted that the defendant "did not test and did not arrange for testing of the high-pressure oxygen line or the hose prior to supplying it to Weldlok." In these circumstances, it is inappropriate for the defendant to complain that the charge as currently formulated does not contain sufficient specificity as to the testing that should have been undertaken by the defendant. The fact is, as the defendant has agreed in the agreed statement of facts, it carried out no testing. 54 One of the documents attached to the agreed statement of facts is a report by Connell Wagner Pty Ltd written by a person professing to have project engineering experience with design and installation of piping and equipment in accordance with international standards for oxygen service as an equipment development engineer and project engineer. The report identified as one of a number of probable causes of the incident the condition of the hose. 55 My assessment of the material available to the defendant, which I have described, is that at the time that it entered the plea of guilty, it was fully seized of a great deal of material that was sufficient to fully inform it of the factual circumstances giving rise to the charge. I should add for completeness that in coming to this conclusion, I have not referred in any way to the nine volumes of documentation that comprise the prosecution brief of evidence served on the defendant's solicitor on 26 September 2008. I have available to me the index of the material contained in those nine volumes. Without having seen the documentation itself, I am unable to draw any inferences from it concerning the knowledge and understanding that the defendant would have gained from that documentation. 56 Given my understanding of the knowledge of the defendant at the time that the plea of guilty was entered in the context of the formulation of the charge as contained in the application for order supplemented by the particulars furnished by the prosecutor, I am unable to conclude that there are any circumstances which would justify the Court in granting leave to the defendant to withdraw its plea of guilty. There can be no question that the defendant did not appreciate the nature of the plea that it had entered or that it was not possessed of sufficient factual material to properly inform it at the time that the plea of guilty was entered. Furthermore, the defendant at all times had the benefit of advice from an Australian legal practitioner. 57 In all the circumstances, the application of the defendant for leave to withdraw the plea of guilty is refused. Further conduct of the proceedings

58 I should make it clear that the rejection of the defendant's motion does not preclude the defendant from raising at any appropriate stage of the proceedings any further matter which is pertinent to the proceedings. Indeed, in appropriate circumstances there is no reason why the defendant should not again apply to the Court for leave to withdraw its plea of guilty. Of course, such circumstances would not be confined to those currently being considered by the Court. 59 I ask that the solicitors for the parties confer with a view to establishing a timetable for the orderly dispositions of the proceedings including consideration of the proposed amendment sought by the prosecutor. A copy of any such agreed timetable should be forwarded to my associate no later than 21 days from this date. If agreement cannot be reached between the parties within that time, the solicitor for the prosecutor is directed to exercise the liberty to apply, which I hereby grant. Costs

60 The question of costs has not been argued before me. I shall reserve costs. Orders

61 I make the following orders: 1) The applicant's motion is dismissed. 2) Costs are reserved with liberty to apply. 3) Liberty to apply with respect to the proceedings generally.

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