Inspector Vierow v Rail Infrastructure Corporation. [2002] NSWIRComm 111 | Case summary

Inspector Vierow v Rail Infrastructure Corporation. [2002] NSWIRComm 111 | Case summary | Zoe

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· Mr Paul Fysh - Infrastructure Worker Level 4B; · Mr Paul Moody - Infrastructure Worker Level 1A3; · Mr Wayne Hook - Infrastructure Worker Level 1B5; · Mr Mustafa Sawan - Infrastructure Worker Level 1B1. 9. The Up main railway lines travel towards Sydney and the Down main railway lines travel from Sydney towards Sydenham. 10. On 30 July 1999 four (4) employees of the Defendant, Mr Fysh, Mr Hook, Mr Moody and Mr Sawan (referred to above) were part of a maintenance gang whose task was to prepare a work site for a track upgrade. In the course of their employment with the Defendant, the maintenance gang was directed to a work site approximately three hundred (300) metres north east of Sydenham Railway Station (on the St Peters side of Sydenham Station) on the Down Illawarra Local Line. The place of work for the maintenance gang was on and about the railway lines at this location ("the site"). 11. The maintenance gang was to undertake preparation work for a track upgrade which was to take place from Saturday, 31 July until Monday, 2 August 1999. During the period of the track upgrade between those two (2) dates, the Defendant would assume "possession" of that area of track meaning that rail services would be stopped from entering the then work area. No such "possession" was existent on 30 July, 1999 at which time the maintenance gang was undertaking the preparatory work. The preparatory work involved the unloading of concrete sleepers and the positioning of the sleepers for use during the "possession". This work at the relevant time of the incident was being performed by Mr Moody and Mr Sawan. Further, the preparatory work included the marking of sections of rail track that were going to be replaced as well as the laying out of brackets for the demarcation safety fence between the Down Illawarra local line and the Up Illawarra main lines for the purposes of the "possession". This work at the relevant time of the incident was being performed by Mr Hook and Mr Fysh. 12. Whilst these activities were taking place on 30 July 1999 at the site, normal train services on these lines continued, with trains proceeding both in the direction of Sydney (Up Illawarra) and away from Sydney (Down Illawarra). 13. Mr Paul Fysh was the supervisor of the maintenance crew on 30 July 1999. Prior to the commencement of work, Mr Fysh held a toolbox meeting and instructed the other members of the gang with respect to their tasks, where they were to work and how to work safely, including explaining to them that they had to watch out for trains going both ways, both towards Sydney and away from Sydney as well as trains exiting the Sydenham platform from the Up Bankstown line. The maintenance gang had clear vision of approximately one (1) kilometre from the site in each direction. 14. No designated lookout or spotter had been placed on the rail racks in either direction in order to warn Mr Hook and Mr Fysh of the approach of a train whilst they were laying out brackets for the safety fence. No detonator(s) had been placed on the rail lines nor were any other steps taken to warn approaching trains of the presence of Mr Hook and Mr Fysh on or about the train tracks at the site. The Defendant had not caused the proposed presence of the maintenance gang at the site to be advertised by Circular to the train drivers who were to be passing through the site on the said date. 15. Immediately prior to the accident, Mr Wayne Hook had started, along with Mr Paul Fysh, to lay out the brackets. Mr Hook went back across the tracks to collect two more brackets. Mr Fysh indicated to Mr Hook the survey marks on the rail as being the position where Mr Hook was to place the additional brackets. Mr Fysh then walked back to the truck to pick up two (2) more brackets. As he was walking back, he walked to a location where he would cross the line to place the brackets. As he was doing so (at approximately 9.30 am) he saw a train on the Down Illawarra local line stop very quickly. 16. The guard of that train was in a carriage, approximately in the middle of the train, looking out the door on his side where, Mr Fysh was standing. The guard indicated that he believed the train had hit somebody. Mr Fysh then walked along in front of the train to the driver's side and spoke to the driver who informed him that he had hit somebody. 17. The train (working run number 54-G) was proceeding from Sydney on the Down Illawarra local line in the direction of Sydenham Railway Station. The train was driven by Mr Reginald Johnston, a qualified Electric Train Driver. As Mr Johnston approached Sydenham Railway Station, he had noticed a person wearing an orange fluorescent vest step from the Up Illawarra line onto the Down Illawarra local line in front of Mr Johnston's train. Mr Johnston states that he blew the train whistle and placed the brake valve of the train in the emergency position. The train struck and fatally injured Mr Hook. 18. Whilst Mr Johnston, the driver of the train, states that he sounded the train's whistle, neither Mr Fysh nor Mr Moody were able to identify the whistle. The train guard was not interviewed. 19. The Defendant did not have in place a work method statement for the preparatory work being performed by the maintenance gang on the said day. The Defendant did have in place a comprehensive risk assessment of the work to be performed commencing on 31 July 1999. 20. At the time of the incident, the members of the maintenance gang were working pursuant to Safe Working Units ("SWU") 910 and 912. Specifically, the maintenance gang was working pursuant to SWU 912(b) which provides: "When employees working on or about the line can safely lookout for themselves and move to a safe place with their equipment without trains being required to slow down or stop, no other protection is necessary.

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WARNING - When employees consider that they cannot safely lookout for themselves, they must request a work site supervisor to determine the level of protection required." 21. Sub-paragraph (c) of SWU 912 provides nine (9) points for employees looking out for themselves to follow. … 22. SWU 912(d) sets out procedures to be followed in circumstances where employees working on or about the line cannot safely look out for themselves and a hand signaller is provided as a lookout. SWU 912(e) then provides for further procedures in relation to hand signallers and additional hand signallers. 23. No person on behalf of the Defendant instructed the maintenance gang or the supervisor as to which section of SWU 912 was to be actioned in relation to the work being performed at the site on the said date and that decision was left to the discretion of the supervisor and the maintenance gang members. 24. In circumstances where electric trains were entering and leaving the site frequently during the course of the work being undertaken by the maintenance gang, the Defendant failed to ensure that any adequate precautions were taken by the members of the maintenance gang in order to ensure their safety. The Defendant failed to require that the work only be undertaken in compliance with SWU 912d and e or that the work not take place until the Defendant had secured a "possession" of the site. 25. It is alleged that on 30 July 1999 the Defendant, Rail Infrastructure Corporation, formerly Rail Services Australia, being an employer at the said site, contrary to Section 15(1) of the Occupational Health and Safety Act 1983 (NSW) failed to ensure the health, safety and welfare at work of all of its employees and, in particular, Mr Paul Fysh, and Mr Wayne Hook in that the Defendant failed to provide or maintain a system of work that was safe and without risks to health. 6 For the defendant corporation, an affidavit of Matthew Raymond Coates was read. He was employed by the defendant corporation as the Manager, Network Rules. His functions and duties in that position were: managing the total review of all Safe Working Units into Network Rules and Procedures; ongoing maintenance and review of the existing Safe Working Units and managing the distribution of Safe Working publications. Apart from the direct references to the fatality at Sydenham on 30 July 1999, the contents of Mr Coates' affidavit repeated material that had been before the Court in previous proceedings recently heard involving the same defendant, namely those matters contained in the affidavit of Mr McDonald and tendered in Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80, judgment handed down on 23 April 2002, and in Inspector Barnard v Rail Infrastructure Corporation [2002] NSWIRComm 107 (judgment handed down on 20 May 2002). The April judgment in Inspector Vierow sets out in some detail the changes made to the defendant's systems of work since 1999 and the statutory changes which had occurred in the same period. The judgment in Inspector Barnard summarises those matters. Those same matters are relied upon in the present proceedings. In light of the detail contained in the earlier two judgments I will not repeat those matters here.

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DELIBERATION 21 This is the fourth occasion that the Court, as presently constituted, has had to deal with this defendant in relation to breaches of the Act arising from its superintendence of operations involving the rail network of New South Wales. In all cases, including in the submissions on penalty after being found guilty in contested proceedings arising from the Waratah incident (Inspector Barnard), the defendant has frankly accepted the objective seriousness of the offence. In all of the cases the Court has directed attention to the fact that there were simple and effective means available to the defendant, including the use of its existing Safe Working Units, which would have avoided the risk to the safety of persons working in and around live railway lines which were demonstrated to exist in those various cases. On each occasion, the defendant has pointed to a detailed system of safety rules and training which, although it admits was defective, was said, nevertheless, to demonstrate that there was a system as opposed to situations where no thought had been given at all to the issue. In the case concerning the Bell fatality (Inspector Vierow v Rail Infrastructure Corporation [2002] NSWIRComm 80) the Court observed that it was not a case where the existence of settled safety procedures and instructions was a factor which may mitigate against the seriousness of the offence as discussed in such cases as Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348 especially paragraph 135. In relation to the Waratah case (Inspector Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255), reference was made to the approach taken by Fisher CJ in Schultz v Tamworth City Council (1995) 58 IR 221. It is worth repeating in the context of this case what his Honour said in dealing with whether or not a safe system of work had been laid down by the employer: … where the employer employs a workman he accepts a duty not to expose the employee to an avoidable risk of injury. Further, it is not sufficient, nor is such duty of care discharged, by the establishment of a formal or idealised system, sometimes called a 'paper' system. The system at issue is the actual system of work utilised in the course of employment whether prescribed or not. It is sometimes said that an employer, as part of his duty not to expose an employee to avoidable risk of injury, has a specific duty to establish and maintain a safe system of work … The appropriate approach to the institution and maintenance of a safe system of work is to be found in a decision of Hilbery J in Barcock v Brighton Corporation [1949] 1 All ER 251 at 255. Addressing the question, essentially the question that has to be addressed in this case, Hilbery J asked: What system of work had the employers provided for doing this work? The employers had 70 sub-stations, and the test was done almost daily. It was, therefore, a matter which called for some system of work devised and decided on by the employers. They had a duty to provide a reasonably safe system of work. The employers contented that they had provided a safe system of work by ordering the workmen to read and follow the memorandum on the regulations, but I do not think one devises a system of work by saying to a workman: 'read the regulations, and do not break them'. In my view, that is not devising a system of work (at 226-227). Those observations apply with particular force in the present case.

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22 In 1998, the defendant was operating an inherently dangerous business. It had a system of performing work within that industry which involved employees being directed to numerous workplace rules known as Safe Working Units. People were said to be trained in their operation and application. During 1998, despite these systems, two people were killed and it was a matter of sheer good fortune that Mr Mason was not killed when he was hit by a coal train at Waratah. It is said for the defendant that ultimately new rules were promulgated after the Bell fatality in October 1998. That system required a number of measures to be taken but fundamentally required that there be a handsignaller and lookout. The defendant was now well aware of the danger of working in and around live railway lines. It was aware of the inadequacy of its then present system. It was aware that simple remedial steps such as the use of a handsignaller/lookout would avoid the risk of working on and around live railway lines. By early 1999, systems were being reviewed and the focus was said to be shifting to risk assessment. In 1998 and 1999, the defendant had a system whereby the investigation unit looked at accidents and the pattern of accidents and reviewed the appropriateness of current work rules in order to avoid a recurrence of those accidents - there was a review system. How then could this fatality have taken place in July 1999? What I have referred to in other cases as "the skeletal" and "paper" system of 1998 does not appear to have improved in 1999. On this history it is totally inconceivable that, if there had been in operation an effective system ensuring the safety of employees in and around live railway lines, this accident could have occurred. Whatever the work supervisor had been taught in the refresher induction and whatever was said at the toolbox meeting preceding this work, nobody turned their mind to the simple requirement that there be a handsignaller/lookout in circumstances where the work was being performed at a very busy time of the day and required work to be performed between rail lines which carried numerous suburban electric trains. The inability of the defendant after the events of 1998 to be able to implement an effective system of safety by use of circulars, induction seminars and reviews reflects the total inadequacy of its approach.

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24 In relation to the issue of deterrence in both the Bell case (Inspector Vierow) and the Waratah case (Inspector Barnard), I indicated that general deterrence was an important consideration but that the changes in corporate structure complicated somewhat the application of specific deterrence. Similar considerations attend this matter. In these recent cases, the defendant has strongly relied upon what it describes as extensive changes which have taken place in its workplace safety systems following the engagement of the DuPont organisation, other consultants, recommendations of the Special Inquiry into the Glenbrook accident and the new network rules introduced by the defendant. My concern in this case is that that process had commenced early in 1999 and the defendant had been on notice, at the latest, since the Bell fatality in October 1998, that its systems of workplace safety were inadequate. I have referred earlier in this judgment to the fact that, following the Bell fatality, the defendant issued new instructions in relation to working on and around live lines which importantly involved the simple but effective step of employing a handsignaller or lookout. The defendant also had in operation a review mechanism which required existing safety procedures and practices to be reconsidered in the light of accidents or near misses. The DuPont review started in March 1999 and the process of training of senior managers especially in relation to risk assessment had commenced in May 1999. Despite this activity, in July 1999, the most fundamental and simple step of using a handsignaller or lookout was not adopted for this work which was to be undertaken on busy suburban lines near a major railway station. The neglect does not stop there: there was no use of a detonator to warn oncoming trains and the working party; no information was given to train drivers that these workers would be present on the track; there was no work plan and safety assessment for this work although, inexplicably, those plans and assessments had been made for the work that was to take place on the following day. Those matters require the Court to fix a penalty which recognises and gives effect to the importance of deterrence. In relation to these matters, it is appropriate to reflect upon what has been authoritatively laid down by the Court in the oft quoted passage from Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 on the subject of deterrence, both general and specific. The Full Court stated: 73. Although general deterrence and specific deterrence have differing purposes or aims, the varying aims of deterrence are particularly relevant in occupational health and safety prosecutions in light of the objects and terms of the Act. As Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 said: … the fundamental duty of the Court in this important area of public concern …[is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace 74. We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd accurately states the approach the members of this Court should take in relation to the question of deterrence, both general and personal, or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision in the circumstances which had led to the exceptional course being adopted. 75. … Even where an offender demonstrates good character or a commitment to rehabilitation, the Court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. 76. On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Clayton C Ruby, Sentencing, 5th ed. (1999) Butterworths, Toronto at 10. The propensity to re-offend must be considered when determining the weight, if any, to be attached to specific deterrence. In R v Pickard [1998] VSCA 50, for example, Winneke P and Charles JA of the Victorian Court of Appeal stated (at [4]): An assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence. 77. In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of rehabilitation of the offender: R v Corner (CCA 19 December 1997, unreported) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonnell (CCA, 8 December 1995, unreported). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see Workcover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at [46].

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2 The events of 15 October 1998 led the prosecutor to commence three proceedings pursuant to s 15(1) of the Occupational Health and Safety Act 1983. After pleas of "not guilty" had been entered by the defendant and seven days had been allocated for the trial, the prosecutor determined to proceed upon an Amended Summons in one summons only, which was in the following terms: On 15 October 1998 at Bell - 134.731 kilometres from Sydney in the State of New South Wales, RAIL INFRASTRUCTURE CORPORATION (formerly RAIL ACCESS CORPORATION AND RAIL SERVICES AUSTRALIA), being an employer DID FAIL to ensure the health, safety and welfare at work of all its employees, and in particular Andrew Hiley and Graham Crowther, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: (a) at all material times RAIL SERVICES AUSTRALIA employed Andrew Hiley and Graham Crowther. (b) at all material times RAIL SERVICES AUSTRALIA had the principal function of supplying goods and services to the rail industry. (c) at all material times RAIL SERVICES AUSTRALIA was undertaking railway track maintenance work, to wit, thermit welding, on the up main railway line at Bell - 134.731 kilometres from Sydney. (d) at all material times RAIL SERVICES AUSTRALIA failed to provide or maintain a safe system of work to ensure employees engaged in the railway maintenance work of thermit welding on the up main railway line were not at risk of encroaching into the path of trains travelling on the adjacent down main railway line. (e) at all material times RAIL SERVICES AUSTRALIA failed to provide or maintain a safe system of work to ensure that employees engaged in the railway maintenance of thermit welding on the up main railway line were adequately made aware of the presence of trains travelling on the adjacent down main railway line. (f) at all material times RAIL SERVICES AUSTRALIA failed to provide adequate instruction and training to employees engaged in the railway maintenance work of thermit welding on the up main railway line regarding the circumstances in which safe working unit 912[d] (SWU 912[d]) should be implemented in combination with safe working unit 922 (SWU 922)). (g) at all material times RAIL SERVICES AUSTRALIA failed to provide adequate instruction and training to employees engaged in the railway track maintenance work of thermit welding on the up main railway line to ensure risks and hazards to employees associated with trains travelling on the adjacent down main railway line were properly identified prior to commencing the said railway track maintenance works. (h) as a result of the said failures Andrew Hiley suffered fatal injuries and Graham Crowther sustained injury.

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4 At the hearing of the plea, the parties produced a comprehensive Statement of Agreed Facts which the parties also accepted came within the terms of s 191 of the Evidence Act. The most relevant parts of that Statement of Agreed Facts are as follows: Statement of Agreed Facts . . . 4. a. At all material times RAIL SERVICES AUSTRALIA was engaged in railway track maintenance works being "thermit welding works" upon the up main railway line at Bell near points 134.731 and 134.864 kilometres (being distances in kilometres from a fixed reckoning point in Sydney). b. The up main railway line travels towards Sydney to the east and the down main railway line travels towards Bell to the west. 5. At all material times RAIL SERVICES AUSTRALIA employed: i. Andrew Hiley as an Infrastructure Worker IC5 - ganger and acting supervisor; ii. Graham Crowther as a trackman and Infrastructure Worker IB2; and iii. Gregory Noble as an Infrastructure Workers 2B - supervisor, responsible for the overall supervision of maintenance works at 134.731 kilometres and 134.864 kilometres. 6. On 01 January 2001 as a consequence of amendments to the Transport Administration Act 1988 by the Transport Administration Amendment (Rail Management) Act 2000: i. Rail Access Corporation and Rail Services Australia were amalgamated to form a statutory body corporate - Rail Infrastructure Corporation. ii. Rail Access Corporation and Rail Services Australia were dissolved as separate entities. iii. Rail Infrastructure Corporation is taken to be a continuation of, and the same legal entity as, Rail Access Corporation and Rail Services Australia. 7. (a) On 15 October 1998 at some time after 10.35 am and before 10.39 am (being the first time the accident involving Mr Andrew Hiley was reported to the signalman at the Mount Victoria signal box) Mr Andrew Hiley, suffered fatal injuries when he was struck by a passenger train - W529. At the time of the accident Mr Hiley was engaged in maintenance work upon the up main railway lines near 134.731 kilometres. This was known as work site 1. W529 was travelling in a westerly direction on the down main railway line at a speed not less than 70 kilometres per hour. Mr Graham Crowther, also positioned between the up and down main railway lines at work site 1, sustained fractures to his right arm and leg when Mr Hiley was propelled into him as a consequence of the impact with W529. (b) W529 departed Mount Victoria station on schedule at 10.32am. Trains departing from Mount Victoria (126.720 km) must travel for around eight minutes through wooded hills, passing through a succession of left and right hand curves on varying gradients before reaching the incident site. The maximum train speed permissible in this section varied from 70 km/h to 100 km/h. (c) Two speed boards located at approximately 134.460 km to the left of the down main railway line indicated that the maximum speed for a passenger train as 70 km/h and for a freight train 75 km/h. W529 was a passenger train. (d) The visibility was good on the day of the accident with conditions clear and sunny. The wind level was minimal. 8. On 15 October 1998 thermit welding work on the up main railway line was to be carried out at two distinct work sites - being at points 134.731 kilometres and 134.864 kilometres from Sydney. Maintenance work on the up main at 134.731 kilometres (work site 1) comprised members of the Valley Heights work group including Mr Hiley and Mr Crowther. Maintenance work at 134.864 kilometres (work site 2) comprised members of the Katoomba and Lithgow work groups. Mr Hiley was charged with supervising work site 1 and Mr Noble was charged with supervising work site 2. Mr Noble was responsible for exercising overall supervision of both work sites 1 and 2. The maintenance works were to be conducted in accordance with Safe Working Unit 922 (SWU 922) on the up main railway line. 9. On 15 October 1998, prior to the maintenance workers assembling at work sites 1 and 2, Mr Noble briefed the Katoomba work group in the proposed maintenance work and the work site protection to be implemented - SWU 922 for the main railway line and SWU 912 [b] & [c] (where employees are responsible for their own protection by looking out for trains themselves) for the down main railway line. Mr Hiley similarly briefed the Valley Heights work group. 10. Mr Noble attended upon the signalman at the Mount Victoria signal box and informed him of the proposed work locations and nature of the maintenance works on the up main railway line. The signalman provided Mr Noble with a list of the running times of trains on the up main railway line. 11. Mr Noble attended work site 1 where he briefed Mr Hiley in the maintenance work including the work site protection to be implemented - Safe Working Unit 922. It was arranged that Mr Hiley would be notified to commence work when a pre-determined break in the trains running upon the up main railway line was realised. 12. SWU 922 required the signal protecting the work site to be placed and kept at stop until the work had been completed. The relevant signal protecting work sites 1 & 2 was 'starting signal' 84.8 that governed the movement of trains travelling east toward Mount Victoria along the up main railway line. In accordance with SWU 922 an outer hand signaller was placed at 'starting signal' 84.8 - near 136.710 kilometres and an inner hand signaller placed at 135.500 kilometres. Mr Noble established and maintained radio communication with Mr Hiley, the inner hand signaller and the outer hand signaller. 13. At approximately 9.20am the break in trains running upon the up main railway line was realised. A rail bond was fixed between the up and down line of the up main railway line that caused starting signal 84.8 to turn red. The outer hand signaller informed Mr Noble that the signal had turned red and the outer and inner hand signallers put in place protection under SWU 922. Mr Noble instructed Mr Hiley to commence the maintenance works. 14. In accordance with SWU 922 the Mount Victoria Signal Box, Newnes Junction Signal Box and the Coal Stage Signal Box were informed that the work groups were in possession of the signal box. The signaller at the Mount Victoria Signal Box recorded this information in the train register book, informed West Control of the information and informed the Signal Box at the end of the section of the information. 15. Work commenced at both work sites 1 and 2. The first thermit weld of the up main railway line at work site 1 was completed without incident. The second weld was almost complete with two members of the Valley Heights group in the process of removing the residual slag from the weld. A third member, Mr Climan, was crouched in the back of the truck adjacent to the up main railway line near work site 1 packing equipment away. Mr Hiley and Mr Crowther had placed themselves in a position between the up and down main railway lines in a bending position in readiness to pick up the power shears that were to be placed on the line to facilitate the removal of the residual slag of the weld. At this time Mr Hiley and Mr Crowther were within 2.5 metres horizontally from the nearest rail of the down main railway line. 16. At some point during this process Mr Climan turned and saw passenger train W529 approximately 15 to 20 metres from work site 1. W529 was approaching the work site from an easterly direction on the down main railway line. Mr Climan yelled "Andrew - train" before the train collided with Mr Hiley who in turn was propelled into Mr Crowther. The train did not slow down or brake but maintained speed and continued past work site 1 toward work site 2. In statements provided to Inspector Hes, Mr Noble at work site 2 estimated the speed of the train to be 90km/h; Mr Climan at work site 1 estimated the train was travelling in excess of 80 km/h; Mr Milton Ginn at work site 1 estimated the train was travelling at 60-70 km/h; and Mr Sutherland, the guard, stated that the train was travelling at between 70 - 80 km/h. 17. (a) Immediately prior to the collision the workers at work site 1 were concentrating on their respective tasks and first became aware of the approach of W529 when Mr Climan observed the train approaching at a point approximately 15 to 20 metres from the work site and warned his colleagues of its approach. Prior to Mr Climan's warning the five workers at work site 1 had not heard the approach of the train. Nor did any of the five workers at work site 2 hear any sounding of the train's warning device. The train's guard, Mr Kenneth Sutherland, did not hear any sounding of the train's warning device. (b) Mr Wayne Turner, a signal electrician who was carrying out maintenance work at 132.500km heard no whistle sounded by W529. (c) Mr Climan stated that prior to the accident two trains travelling on the down main railway line had slowly passed work sites 1 and 2 and, based on the fact those trains had slowed down, he assumed Mount Victoria signal box had warned them of the work. 18. Mr Sutherland, employed by City Rail as a train guard, was looking to the rear of W529 from the guard's compartment as the last carriage of the train passed work site 1. He saw what he believed to be a bundle clothing lying between the up and down main railway lines and two persons running towards the same. He then came to the realisation that an accident had occurred and immediately caused the train's emergency braking system to activate between work sites 1 and 2 at about 134.841 km. The train passed work site 2 under the emergency braking system before coming to halt at a point past work site 2. The resting place of the rear of W529 was at 135.058 kilometres. At no stage did Mr Browne, the driver, apply the brakes as the train passed work site 1. 19. Mr Geoffrey Browne was employed by the State Rail Authority as a train driver, and was in charge of driving W529 at the time of the accident. W529 had left Mount Victoria station on time at 10.32am. Neither Mr Browne nor Mr Sutherland had been given prior notice or warning of the maintenance works being carried on at work sites 1 and 2 by the signalman at Mount Victoria or anyone else. In a statement provided to Inspector Hes, Mr Browne asserted the following occurred: (i) He did not see any workers on the track; (ii) He did not see any plant in the six foot area; (iii) The first sighting he had after rounding the corner was a 'vehicle on the left hand side' and 'two other vehicles a bit further up on the right hand side'. (iv) He blew the whistle when he saw fettlers at the back of the trucks; (v) He was "pretty sure that one fettler that was standing behind the truck put his hand up in the air ". (vi) He gave no acknowledgment that a person had put his hand up in the air by sounding the whistle; (vii) He did not think that anybody would give the all clear signal if people were fouling the line; and (viii) The train's whistle was functioning on the day. 20. (i) The evidence of the ten maintenance workers at work sites 1 and 2 at the time and the guard of W529, Mr Sutherland, is that no warning device was sounded by Mr Browne, the driver. Therefore no worker signalled an all clear sign in response to the alleged sounding of the whistle by Mr Browne. At the time the train passed work site 1, four maintenance workers (each wearing fluorescent safety vests) were in the four foot and six foot area of the line. (ii) Safe working Unit 919 c 2 states that if a train driver does not receive an all clear signal from an employee at the work site the driver is to continue to sound the train whistle until an all clear signal is received. Further, if the train driver fails to receive an all clear signal and there is a possibility of the train striking a person or some equipment the train driver is to make every effort to stop the train as soon as possible. 21. A train travelling in a westerly direction on the down main railway line towards work site 1 would have been continually visible from that work site for approximately 360 metres. (…) Similarly, work site 1 would have been visible to a driver of the train approaching from an easterly direction on the down main railway line for approximately the same distance or slightly more given the height of the driver's cabin. 22. (…) Data provided to Inspector Hes by State Rail Authority indicates that a train such as that as W529 travelling at 70 km/hr would have had a braking distance of between 220 - 290 metres depending on the gradient and other conditions. 23. On 3 November 1998 Inspector Hes of the WorkCover Authority attended the accident site in company with Nathaniel Martin, employed by Rail Services Australia as a Track Manager - Blue Mountains and Gregory Noble, the site supervisor. Maintenance workers employed by Rail Services Australia who were engaged in maintenance works at work sites 1 and 2 at 134.731 and 134.864 kilometres on 15 October 1998 took up various positions in an effort to re-enact events immediately preceding and immediately following the accident. Two employees took the positions of Hiley and Crowther. Inspector Hes caused a series of coloured photographs to be taken, made observations and compiled a factual inspection report. (…) 24. The re-enactment of events immediately preceding the accident investigation revealed the following: i. Four maintenance railway workers wearing orange vests were working on the final part of a thermit weld on the up main line at work site 1 at 134.731. Two workers were positioned bent over on or about the rail of the up main railway line closest to the down main railway line. Mr Hiley and Mr Crowther were in a bending position between the up main and the down main railways lines (the six foot area) in readiness to pick up a piece of equipment known as power shears. One worker Mr Christopher Climan was crouched in the rear of a truck parked adjacent to the up main railway line. Mr Climan was packing up oxyacetylene equipment. A second truck with a white tailgate was parked adjacent to the down main railway line (…). The other two maintenance workers were standing on the up main line railway line (the four foot area) a distance of more than 2.5 metres from the down main line;

[52]

SWU 900 provides, inter alia: · where work does not come within, or is not likely to come within, safety clearances, no protection is necessary and the procedures in this manual DO NOT apply. However, when any work is being performed close to the minimum safety distances, extreme care must be exercised; · barriers may be provided within safety clearances as shown at [d] in this unit to protect work adjacent to the line and high visibility demarcation fencing or boundary tape may be used to define a work area. (…) Safe working unit 912 is entitled "Protecting employees working on or about the line when trains are not required to slow down or stop" SWU 912 provides two methods of protection where employees can work on or about the line when trains are not required to slow down or stop: i. the first method of protection is where employees are responsible for their own protection by looking out for trains themselves - 912[b] & [c]; and ii. the second method is where a handsignaller(s) provides protection as determined by a work site supervisor - 912 [d] & [e]; SWU 912 further provides: · when either of these methods is used all employees must ensure that they move to a safe place with their equipment and acknowledge the drivers locomotive whistle in sufficient time so that the driver does not need to reduce the speed of the train; · when employees working on or about the line can safely look out for themselves and move to a safe place with their equipment without trains being required to slow down or stop, no other protection is necessary; · when employees consider that they cannot safely look out for themselves, they must request a work site supervisor to determine the level of protection required. When employees working on or about the line cannot safely look out for themselves, a handsignaller must be provided to act as a lookout. The handsignaller acting as a lookout must warn all employees in the working party when a train is approaching. The warning may be given verbally or by a hooter, whistle or other approved warning device; · there is no need to obtain train running information; · employees may use light equipment or light machinery if required. However, the machinery or equipment must be light enough to be physically removed clear of the line by the employee(s) present; · to determine how employees will be protected depends on a number of factors including the location, the reason for being on or about the line and the equipment being used. (…) Safe working unit 919 is entitled "Drivers duties when approaching people on or near the line and work sites" SWU919[c] is entitled "Duties to be carried out when people are on or near the line" and provides, inter alia: · Whenever you notice people or equipment on or near the line, or explode one detonator, sound the locomotive whilst to warn of your train's approach. · When you observe the all clear handsignal, sound the locomotive whistle to acknowledge the handsignal. · If you DO NOT receive an all clear handsignal from an employee at the work site, continue to sound the locomotive whistle until you receive an all clear handsignal. · If you fail to receive an all clear handsignal and you consider that there is a possibility of the train striking a person or some equipment, make every effort to stop the train as soon as possible. DO NOT resume the journey until: either you receive an all clear handsignal; or you can see that the line ahead is unoccupied. (…) Safe working unit 922 ("SWU 922") is entitled "Work which effects automatic signals in electrified areas - Double lines only". SWU 922 requires, inter alia: · the running times of those trains travelling on the line worked upon be established and monitored so that the work can be commenced and each stage of the work carried out without causing delays to the train service; · the signallers at both ends of the section be informed of the details of the work. The details of the work are to be recorded in the train register book and the train controller advised of all details; · the signaller controlling the entrance to the section must be advised which signal will be affected and is required to give verbal advice about which signal is affected to the driver of each train to travel through the section; · an outer handsignaller is required to be positioned at each affected signal(s) and, in the event only 1 signal is placed at stop and the work site is 500 metres past the affected signal, an inner handsignaller is positioned 500 metres from the work site. · handsignallers are required to regulate the safe passage of trains through the work site by causing trains approaching the work site on the line being worked upon to be stopped, the driver advised of the work site location, the work site advised of the approaching train and the driver of the train authorised to proceed through the work site when it has been established the work party has moved to a safe place. Communication is effected between the supervisor and the handsignallers by telephone or two-way radio. (…) 27. Prior to 15 October 1998 persons carrying out track maintenance were not prohibited from standing in the space between adjacent live running railway lines (the six foot area) and portable plant was allowed to be stored in the area. It was considered by Mr Noble prior to the accident that both men and portable plant could be in the six-foot area whilst maintenance work was carried out on the up main railway line at 134.731 kilometres. Such a circumstance could result in "work on or about the line", that is, a work situation where employees, and portable plant could be located within 2.5 metres horizontally from the nearest rail of any running line. Mr Noble considered that SWU 912 [d] & [e] was implemented in combination with SWU 922 when track maintenance workers had less than 400 metres clear vision. On the date of the accident Mr Noble was of the mistaken belief that there was clear vision of 500 metres. 28. On 15 October 1998 the implementation of SWU 922 afforded protection to work sites 1 and 2 in regard to trains travelling in an easterly direction along the up main railway line. Both trains travelling on the up main railway line in an easterly direction towards work sites 1 and 2 and those engaged in work at work sites 1 and 2 were forewarned of the approach of trains travelling on the up main railway line by the flagmen positioned on the up main railway line. 29. SWU 922 did not provide protection to work sites 1 and 2 in regard to trains travelling in a westerly direction along the down main railway line. Maintenance workers at work site 1 took responsibility for their own protection in regard to trains travelling on the down main railway line by looking out for trains themselves. At the time of the accident the workers at work site 1 did not become aware of W529 until Mr Climan noticed it approaching at a point approximately 15 to 20 metres from the work site. Whilst the signaller at Mount Victoria Signal Box was aware of the nature and location of the works he was not required under SWU 922, or any other safe working unit, to inform trains travelling on the down main of the location of work sites 1 and 2 on the up main. The driver of W529 was not advised by the signaller at the Mt. Victoria Signal Box of the location of work site 1 and only became aware of the presence of workers on or about the line after the happening of the accident when informed by the train guard. Neither SWU 912 or SWU 922 required maintenance workers to inform themselves of the times trains were expected to travel on the down main railway line. SWU 922 was silent on this point and SWU 912 expressly stated "there will be no need to obtain train running information". On the relevant day Mr Noble, based on the fact he had informed the signalman at Mount Victoria about the nature and location of the works, assumed that trains travelling on the own line would be informed of the work being carried out at work sites 1 and 2 by the signalman at Mount Victoria. The signalman, however, did not similarly assume that he was to inform trains travelling on the down line of the work being carried out at work sites 1 and 2 because of the fact he was informed of the works by Mr Noble. 30. The implementation of safe working unit 912[d] & [e] in combination with safe working unit 922 would have afforded greater protection to maintenance workers at work site 1. A handsignaller acting as a lookout would have been charged with warning workers in regards to trains travelling in a westerly direction along the down main railway line. However, the implementation of SWU 912[d] & [e] was not mandatory and provided as an alternative to SWU 912 [b] & [c] where workers took responsibility for their own protection by looking out for themselves. On 15 October 1998 Mr Noble and Mr Hiley as the respective site supervisors decided that it was appropriate that the workers take responsibility for their own protection by looking out for themselves in relation to the down line. The eight (8) other workers at work sites 1 and 2 considered that they could safely look out for themselves and therefore did not make any request of either Mr Noble or Mr Hiley to provide further protection. 31. Mr Noble had carried out duties as an Infrastructure Worker 2B - supervisor since the early 1980's. He had not received adequate instruction or training in identifying potential risks or hazards associated with track maintenance insofar as he had not been trained to assess trains travelling on the adjacent down main as a risk or hazard on 15 October 1998. He was of the mistaken belief that maintenance workers had a view of over 500 metres and the Mount Victoria Signal Box was to warn trains travelling on the down main of the work site location. 32. Mr Noble received theoretical training in the 900 series manual and, whilst he had previously implemented SWU 912[d] & [e] and SWU 922 in combination, he had not previously received instruction or training in the operation of SWU 922 in combination with SWU 912. Mr Noble did not consider it necessary in the circumstances that prevailed on 15 October 1998 to implement SWU 912[d] & [e] because he mistakenly believed maintenance workers had 500 metres clear vision and believed trains were to be warned of the work location. He considered it practice that SWU 922 be implemented in the absence of SWU 912[d] & [e] when carrying out thermit welding work on tracks whilst trains travelled on adjacent tracks unless maintenance workers had less than 400 metres clear vision. 33. Rail Services Australia implemented the following measures subsequent to the accident: a. on 16 October 1998 a written safety bulletin was issued followed by a written Amended Safety Bulletin on 23 October 1998 (…). The bulletins prescribed minimum arrangements, in addition to existing safe working procedures, required to be implemented in respect to all work on or about the track when traffic could operate on a line adjacent to the work site. The bulletins required, inter alia: · visual separation of the work site and the adjacent line by the placing of demarcation tape or fencing between a work site and adjacent lines unless the work will take less than 30 minutes at a fixed work location; · a handsignaller acting as a lookout placed adjacent to the work site in accordance with SWU 912 to warn of approaching trains. The handsignaller acting as a lookout is not to have any other duties; · in circumstances where work continues for more than 30 minutes at a single location, an additional handsignaller is to be positioned 200 metres from the handsignaller acting as a lookout and place a detonator on the line 75 metres away between himself and any approaching train; · where there is frequent traffic (ie. greater than 4 trains per hour), a person assigned the task of fixing detonators is to be provided; and · where a work site supervisor consider that the above cannot be applied or may increase safety risks an exemption will be given only if a risk assessment of the site is documented and approved by the work site supervisors manager. b. on 21 October 1998 a written memorandum was issued prohibiting the placing of materials, tools or equipment in the "six foot" (the space between two adjacent running lines). All material, tools and equipment were required to be placed in either the "four foot" (the space between the two rails of a running line) or cess of the track being protected. The written memorandum followed a verbal directive issued on 19 October 1998 (…). c. document entitled "Pre-Work Briefing" and an associated briefing procedure was implemented. The document requires all persons working at a work site to attend a pre-work briefing. The briefing requires a discussion and understanding of the specific hazards related to the proposed work and control measures to be implemented, the completion of a work site protection plan by a work site protection officer and an acknowledgment by workers of the foregoing in signing a register (…). 34. Rail Access Corporation implemented the following measures subsequent to the accident: (a) written Circular No. 470-99 entitled "Work site Infrastructure Works on the RAC Network" was developed "to provide greater separation of workers from operating train services" and the instructions incorporated in the document implemented on 23 August 1999 (…). (b) In August 2000 Safe Working Unit 910 (SWU 910) was amended to reflect the substance of Circular No. 470-99 (…); and (c) In August 2000 the method of protection whereby responsibility for their own protection by looking out for trains themselves in circumstances where trains were not required to slow down or stop was deleted from Safe Working Unit 912 (SWU 912) as an available means of protection (…).

[74]

26 Mr McDonald made special mention of McInerney J's remarks in the Report dealing with the safety systems implemented by the RSA between 1996 and 2001. Extracts of the Report were annexed to Mr McDonald's affidavit and it is appropriate to make specific reference to part of that material. In his Report, McInerney J observed: Although the RSA Risk Management Report stated that the RSA had a risk management safety system since its inception in 1996, I do not accept that there was a proper or adequate system in place then. The material relating to the system that was supposed to be in place reads as an excessively complicated system described with the use of considerable jargon. On the evidence I heard, the reality was that there was no adequate safety management system in place and it was for this reason that RSA engaged the DuPont organisation to advise it on what was necessary to be done to properly manage safety within the organisation. In March 1999, DuPont started the evaluation by examining the capabilities of the safety management personnel in RSA by analysing safety incidents … On 1 June 1999, a zero injuries and zero incidents policy was introduced. Employees were provided with information through the internal magazine sent on a monthly basis to the home address of each employee. In addition, slogans were placed on work sites, laminated copies were distributed to all offices, supported by posters with excerpts from the policy to enable staff to familiarise themselves with the policy concepts. Internal audits were introduced with the role of examining and evaluating whether the organisational structure, programmes, functions and internal control systems were appropriate and operating effectively. Eight personnel, headed by an internal audit manager engaged in this work reported to the Board and the Chief Executive Officer … A Safety Manual that is currently in use was introduced in 1999 when employees were trained in the way in which it should be used. The training sessions were designed to ensure that the procedures in the Manual were easily understood and to demonstrate to the personnel where they fit into the risk management system and how safety cascades down to them. Safety videos are produced and they are used at the beginning of all safety sessions. Communication of safety messages is considered important and a number of means is used to communicate those systems to the workforce. Initially, deficiencies were found because it could not be guaranteed that all personnel were receiving the messages and steps have been taken to overcome those deficiencies. The Rail Services Australia Report stated that the company was still looking at ways to improve communication of safety measures to its personnel and has designed a briefing tree which is the process of distribution of information. It is claimed by RSA that as a result of these developments which I have briefly summarised, the safety of the activities it conducts have been improved since 1998 and the improvement is demonstrated by a reduction in the number of safety incidents that have occurred. This summary of the evidence of the attempts to improve the management of safety within RSA indicates they are more likely to produce improvement than the largely bureaucratic approach that has been undertaken by the SRA. I appreciate that the nature of the safety issues that the RSA deal with largely involve track site workers and that there are differences, but the organisation appears to have made efforts to ensure that the provision of safety information and the implementation of safe practices emanates from the top of the organisation, goes down through the various layers and is reinforced to people in the operational areas by such exercises as the pre-work briefings. Whether these processes have been effective is a matter which the Rail Safety Inspectorate can determine. This summary of safety management systems that RSA has been attempting to establish confirms, as previously observed, that RSA is two years ahead of the SRA in beginning to establish an adequate system of safety management and an adequate safety culture. However, weaknesses remain. The most obvious of these is that although they have made genuine attempts to improve workplace safety, there is no evidence that same degree of attention has been given to those aspects of their activities which affect public safety or the safety of other rail organisations and their employees. One of the functions of the Rail Safety Inspectorate will be to require the new body RIC to continue the work previously undertaken by RSA in relation to workplace safety and to establish an adequate system of safety management by RIC of its employees, the employees of other rail organisations and the travelling public.

[75]

27 Mr McDonald expressed the opinion that RIC had responded in an effective and timely manner to the recommendations of McInerney J. He noted that his Honour had recommended the re-writing of the SWUs be given the highest priority. In November 2001, under the hand of Mr McDonald as General Manager, Safe Working Systems and Operational Standards, RIC issued a booklet entitled "RailSafe Rules Overview". The booklet was described as an introduction to the new Network Rules and Network Procedures for New South Wales Rail and stated that they were to apply to all employees, contractors and sub-contractors that operate in the rail infrastructure corporation network. The booklet noted that six of the recommendations made by McInerney J, of the total of 95 recommendations, related directly to the safe working units system. His Honour's recommendations were then reproduced and it is convenient to repeat those recommendations for the purposes of the present proceedings: 20. The project to re-write the Safe Working Units should be given the highest priority. 21. The objectives of the project to re-write the Safe Working Units should be to: (i) develop safe working units structured around a core set of fundamental principles; (ii) eliminate undesirable or unnecessary material within the Rules; (iii) eliminate undesirable or unnecessary Rules; (iv) ensure the Safe Working Units are concise and easy to read and expressed without unnecessary narrative content; (v) use of diagrams and illustrations when appropriate. 22. Continual and detailed input into the redevelopment and redrafting of the Safe Working Units should be sought from persons with expertise and experience in: (i) training, both in the development of training programmes and the teaching of Safe Working Units; (ii) operational activities including train drivers, signallers, guards, train controllers, work site supervisors and any other occupation within the rail environment which may have to apply the safe working units in their day to day duties; (iii) human factors; (iv) engineering expertise in each of the railway engineering disciplines; (v) drafting of operational procedures in other hazardous industries. 23. Hand books should be prepared for distribution to persons employed in specific safety critical railway occupational groups and contain the particular Safe Working Units relevant to each group. 24. The Rail Safety Inspectorate should be responsible for approving all re-drafted Safe Working Units. 25. The Rail Safety Inspectorate should ensure there is proper testing of the Safe Working Units to ensure that they are unambiguous and easily understood.

[116]

69 In relation to the issue of deterrence this is a case where the imposition of a significant penalty will operate as a general deterrent. The issue of specific deterrence is complicated, somewhat, by the changing corporate structure after the date of this accident. The prosecutor draws attention to the fact that shortly before and shortly after this accident there were serious breaches of the Act including a fatal injury arising from work being performed on or around live railway tracks. Those incidents are of particular significance in considering the issue of specific deterrence. Against that admitted background, the defendant, however, points to the fact that there has been a recognition that the previous disaggregation policy instituted in 1996 was a failure, especially in terms of providing a safe system of work on or around live railway lines. It is strongly submitted for the defendant that the new corporate structure and the impetus given to a new approach to safety by the Glenbrook Inquiry has found reflection in a dramatic reduction in time lost through injuries and an overall reduction in work place accidents. I am not convinced that a reduction in time lost due to injury, alone, necessarily demonstrates the existence of a safer work place, but that submission was certainly made to the Glenbrook Inquiry although from the material that I have been shown by way of extracts from the Reports of the Inquiry, they do not endorse by way of a specific holding that such a result has been achieved. I have noted earlier, however, that Mr McDonald's sworn evidence for the defendant was that there had been no deaths recorded and that the level of injuries had decreased markedly since the amendments to the SWUs and the introduction of the NWTs. These matters were not cross-examined upon nor challenged in any other way by the prosecutor. I have come to the view, in those circumstances, that there is a more limited role for the concept of specific deterrence in relation to the present matter. The reduction in injuries is also of importance where it was acknowledged by the prosecutor that the work involving maintenance of railway lines throughout New South Wales is a very large enterprise which involves inherent risks to safety.

[119]

73 An issue has arisen recently as to the use that can be made of the judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383, in light of the recent judgment of the High Court in Cameron v The Queen [2002] HCA 6. In Thomson, the Court of Criminal Appeal gave consideration to the quantification of the utilitarian value of a plea to the criminal justice system, assessing a range of between 10 and 25 per cent discount on the sentence with the primary consideration, determining where in the range a particular case should fall, being the timing of the plea. In the course of the judgment the Court of Criminal Appeal cited with approval the following passage from Siganto v The Queen (1998) 194 CLR 656 (at 663 - 664) in the joint judgment of Gleeson, CJ, Gummow, Hayne and Callinan JJ: A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence. … In dealing with the range of discount and the manner in which it might be applied, Spigelman CJ (speaking for the court) stated: 152. In my opinion the appropriate range for a discount is from 10 to 25 per cent. 153. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. 154. There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) the time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) the complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence the greater the length and complexity of the trial, the greater the utilitarian value of the plea. 155. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. Discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 156. Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options (at 418).

Inspector Vierow v Rail Infrastructure Corporation.

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