Inspector Vierow v Rail Infrastructure Corporation

PROSECUTOR: Ms A F Backman of counsel SOLICITOR: Andrew McColm WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr J N Gleeson QC with Mr M Shume of counsel SOLICITOR: Wendy Thompson Freehills

JUDGMENT: - 46 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

23 April 2002 Matter No. IRC 3458 of 2000 Inspector Maurice Vierow v Rail Infrastructure Corporation. Prosecution under Section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] NSWIRComm 80 1 The Fifteenth of October 1998 should have been just another working day for maintenance gangs performing work on the railway lines at Bell in the Blue Mountains. Two gangs had been allocated maintenance tasks in an area of the track where, for a considerable distance, there was a clear view of these working parties from the trains using the down line. The weather was clear and there was good vision. However, between approximately 10.35 am and 10.39 am, a train on the down line had hit and killed one of the members of the maintenance gang and had seriously injured another. At the time of this accident the maintenance gang was working under the defendant's system of work known as "Safe Working Units" and in particular, was working under the system approved by those rules whereby they were looking out for their own safety.

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.

3 In response to this action by the prosecutor, the defendant indicated that it would enter a plea of guilty to the one amended summons referred to in the preceding paragraph. With the consent of the parties, six of the hearing days were vacated and one day was utilised for the purpose of taking the evidence and submissions on the plea.

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;

ii. The number of the railway stanchion near the work site was 134.731 kilometres;

iii. The re-enactment identified that the power shears were situated 0.75 metres from the down main railway line and 1.2 metres from the up main railway line (…);

iv. A second work group consisting of five workers wearing orange safety vests were located on the up main railway line, 100 to 150 metres further west from the work site 1 at 134.864 kilometres. A blue truck was parked adjacent to the up main and a white four-wheel drive vehicle was parked adjacent to the down main (…). The maintenance work at work site 2 had been completed at the time of the incident;

v. The view was clear for several hundred metres from the work site at 134.731 kilometres looking in an easterly direction toward Mount Victoria (…);

vi. During the re-enactment at approximately 10.40am a passenger train similar to which departed Mount Victoria and operating on the same schedule as W529 could be clearly seen looking in an easterly direction from the work site 1 at 134.731 kilometres as it rounded a bend on the down main (…);

vii. Two speed signboards were located at approximately 134.460 kilometres to the left of the down main. The yellow sign board bore the numbers 70 (indicating a maximum speed of 70 kilometres per hour for passenger trains) and the white sign board bore the numbers 75 (indicating a maximum speed of 75 kilometres per hour for freight trains)(…);

viii. The first possible view of the work site 1 at 134.731 kilometres from a ground level position looking west along the down main was at 134.375 kilometres ie 360 metres from the work site (…). The next full view of work site 1 at 134.731 kilometres could be seen from a ground level position looking west along the down main at 134.390 kilometres ie 340 metres from the work site (…) due to the presence of ballast near the line;

ix. After being struck by W529 Mr Hiley came to rest laying diagonally on his left side between the up and down main railway lines 5.6 metres from the position he was in immediately preceding the accident. The employee taking the position of Mr Crowther was positioned between the lines of the up main railway line (…); and

x. Mr S King, employed by the State Rail Authority as a Surveyor, was also present during the re-enactment. Mr King took measurements, photographs and compiled a site plan. (…)

25. On 15 October 1998 Rail Services Australia's procedures for work on or about railway lines was governed by a written manual entitled "Safe working procedures for Engineering Work" - the 900 series. The manual set out the procedures to be adopted when any type of engineering work was carried out on or about railway infrastructure. The work could relate to the repair, maintenance or upgrading of railway tracks or associated works. The manual comprised a significant number of individual safe working units identified and distinguished by numbers. The individual safe working units, depending on the prevailing circumstances, could be implemented in concert in any one work situation. 26. Safe working unit 900 ("SWU 900") is entitled "General safety precautions". SWU 900 [d] entitled "safety clearances for engineering work", defines for the purpose of the procedures in the manual, "work on or about the line" as a reference, inter alia, to any work situation where employees, plant, equipment or material are located within, or are likely to be within, 2.5 metres horizontally from the nearest rail of any running line.

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 (…).

5 Evidence was called from Inspector Hes who was the investigating inspector in relation to this incident and who prepared the accident report for the WorkCover Authority. The Inspector explained a number of the documents and photographs appearing as part of the annexures to the Statement of Agreed Facts. In cross-examination, Inspector Hes stated that the photographs which he took (and which formed part of the annexures to the Statement of Agreed Facts) did not give a true picture of the visibility he had of the truck parked near the railway lines and he confirmed that he had a much clearer view of the truck on the day he took the photographs. He could clearly see from a distance that the truck was close to the line and he could see people, including their orange working vests.

6 For the defendant, an affidavit of Mr J M McDonald was read. He was the Rail Infrastructure Corporation General Manger, Safe Working Systems and Operating Standards. Mr McDonald was not cross-examined and did not give oral evidence.

7 Mr McDonald briefly outlined the changing corporate structure of the New South Wales rail network. Until July 1996 the New South Wales rail network was owned, managed and maintained entirely by the then State Rail Authority, a statutory body created under the provisions of the Transport Administration Act 1988. Mr McDonald described the State Rail Authority as a "vertically integrated rail organisation within one statutory authority" being divided into four divisions: City Rail; CountryLink; Freight Rail; and a property division: all reported to a single Chief Executive Officer and Board. In July 1996 the rail industry was restructured into four separate organisations with their own Board and Chief Executive Officer. The Rail Access Corporation (RAC) under this new structure had functions including the holding, managing and establishing of efficient, safe and reliable railway infrastructure facilities on behalf of the State and providing rail operators with access to the New South Wales rail network. The State Rail Authority (SRA) was a new statutory body responsible for the operation of efficient, safe and reliable railway passenger services while the Freight Rail Corporation (FRC) was established to operate efficient, safe and reliable rail freight services. The Railway Services Authority, in 1998 re-named Rail Services Australia (RSA), was a new statutory corporation whose principal objectives included being an efficient, safe and reliable supplier of goods and services to the rail industry.

8 At the time of the incident at Bell involving Mr Hiley on 15 October 1998, the Rail Access Corporation was the owner of the New South Wales infrastructure and managed the maintenance and construction of the rail infrastructure that it owned. The Rail Access Corporation let the maintenance work to contractors, one of which was the Railway Services Authority.

9 In October 1998, the rail network was governed by a number of rules including a series of rules known as Safe Working Units (SWUs). These Units applied to all users and operators of the rail network and covered all aspects of the use, operation and maintenance of the rail network. As at October 1998, the Railway Services Authority employed 6,733 employees.

10 Mr McDonald said that, in October 1998, the Railway Services Authority had its own incident investigation unit which investigated major incidents, established the cause of the incident, and recommended any changes necessary to ensure similar incidents did not occur. In October 1998 his own role in the Rail Access Corporation, when an accident or near miss was reported, was to determine whether or not there was any deficiency in the relevant SWUs. This task was undertaken in conjunction with the Railway Services Authority and should a deficiency be found in the SWUs, then it would be revised and staff would be made aware of the revision and trained if necessary. He stated that an Accident Investigation Unit with these same functions continues to exist under the present Rail Infrastructure Corporation.

11 The Railway Services Authority had a policy that anyone involved in a serious incident or accident, including a near miss, was offered grief counselling. All of the workers involved in the accident at Bell on 15 October 1998 were offered counselling for as long as they required this service. The defendant, Rail Infrastructure Corporation, continues to provide this service to its employees.

12 On 16 October 1998 the Chief Executive Officer of the Railway Services Authority issued a memorandum and safety bulletin to all general managers/directors. The bulletin outlined minimum additional protection to be used where traffic could operate on a line adjacent to any work site. The bulletin was subsequently amended on 23 October 1998 and distributed to all staff. The bulletin stated the following: (1) for work exceeding thirty minutes at a fixed work location visual separation of the work site and the adjacent line(s) is to be provided by demarcation tape or fencing between the worksite and the adjacent line(s); (2) where work is carried out on platforms, in tunnels or on turn outs, demarcation can be provided using a line of red witches hat markers no more than three metres apart; (3) there must be a handsignaller acting as a lookout placed adjacent to the worksite (where approaching trains can be clearly seen and the handsignaller clearly heard and seen by all at the work site) in accordance with SWU 912. The lookout will have no other duties; (4) where work is carried out for more than 30 minutes at a single location an additional handsignaller will be placed about 200 metres from the handsignaller acting as lookout and will place one detonator on the line 75 metres away between him/herself and any approaching train and replace it after the passage of each train. The detonator may be eliminated if the work site supervisor determines it would cause confusion to the train driver and staff; and (5) existing protection procedures will continue for routine maintenance inspection and certification work which is not continuous at one location for more than 30 minutes or where warning lights are in place or at level crossings;

13 On 21 October 1998, a further memorandum was issued: the Track Manager, Blue Mountains issued the memorandum stating that no materials, tools or equipment were to be placed in the "six foot" area between lines. Materials, tools or equipment were to be placed in either the four foot or the cess of the track, being a protected area.

14 As a result of the circulars issued in October 1998, a new circular was issued by the Rail Access Corporation to all rail personnel from 23 August 1999. The circular sought to improve the working procedures for infrastructure work carried out on or about running lines particularly in multiple track areas. The circular set out instructions on the separation of workers and operating train services to ensure all workers had access to a safe place and implemented a practice of adjacent line protection for workers at established work sites and to ensure fewer workers were placed in multiple track areas. This circular was developed through a consultative process involving representatives of the users and operators of the rail network. Prior to the circular coming into effect on 23 August 1999, all users and operators of the rail network were made aware of the effect of the circular. All employees were informed of the circular and all employees of State Rail Authority, Rail Access Corporation and the other rail operators were trained in the content of that circular.

15 SWU 910 and 912 were subsequently amended in 2000 to include the directions contained in the Rail Access Corporation circular of August 1999.

16 Mr McDonald asserted that, as at October 1998, the Railway Services Authority had a comprehensive system of training in operation. Mr Hiley was qualified as an Infrastructure Worker and was certified as having attained the Work Site Protection Certificate, Class 4 in 1996. He also held numerous qualifications that related to safe working practices and the application of the SWUs. Mr Noble was qualified as an Infrastructure Worker and was certified as having attained the Work Site Protection Certificate, Class 4 in 1996. He also held numerous other qualifications which related to safe work practices and the application of the SWUs. Mr Crowther was a qualified Infrastructure Worker and had attained the Work Site Protection Certificate, Class 4 in 1996. Like the others, he also held numerous other qualifications that related to safe working practices and the application of the SWUs.

17 Mr McDonald said that the training provided to employees to attain certification as a Work Site Protection Officer Class 4 was extensive. The course was designed to be presented in modules and particular modules referred to the application of SWU 912 and SWU 922. A supervisor was trained to regard himself as a risk manager and was taken through the steps of identifying risks, understanding risks and managing risks. Half day induction training was provided to all new Railway Services Authority personnel and before employees were allowed to work on the track it was a pre-requisite that RSA personnel attend a revised safety induction course which taught a risk management approach to safety. This was implemented in 1999. In addition to induction training and safety induction training, specific occupational health and safety induction training was also carried out for each project. All personnel, contractors and sub-contractors were required to attend.

18 In early 1998, the Railway Services Authority requested one of the world's leading engineering and construction firms to review the Authority's business management systems and to second executives to Australia from England who were capable of re-organising and restructuring the business of the RSA. The restructuring involved the design, development, implementation and training in policies, procedures and instructions specific to the Authority's role as an infrastructure construction and maintenance business. The restructure was completed by December 1999.

19 Before the incident at Bell, RSA had investigated a number of different safety systems and as a result introduced the following Occupational Health Safety and Rehabilitation Instructions, namely: (a) Job Safety Analysis; (b) Safety Awareness Briefings (Tool Box Meetings); and (c) Pre Work Briefing.

20 Mr McDonald stated that, prior to October 1999, a data base operated by the Railway Services Authority recorded all incidents state-wide which were reported by each of the rail entities. The data base was regularly reviewed to establish patterns in safety issues and relevant SWUs were re-assessed in light of any incident. The RSA also created a safety recommendations data base for the purpose of recording the recommendations arising from past reports, accidents and inquiries. He said that the aim was to ensure that the recommendations were brought into effect. Mr McDonald did not link this particular incident with the operation of the data bases and whether or not as a result of a review any pattern in safety issues emerged in the operation of the SWUs and in particular SWU 910 and 912.

21 In December 1999, RSA had in place an Integrated Management System (IMS). Mr McDonald said that the IMS documented RSA's preferred work practices and introduced a level of standardisation and consistency to the way in which RSA personnel were expected to undertake specific elements of their work. IMS encompassed the whole organisation, including project management, safety management, quality management, resource management, finance and planning. He said that safety management was the key component of IMS.

22 In March 1999, RSA engaged DuPont Safety and Environment Management Inc which Mr McDonald described as an internationally recognised Risk Management Consulting company. DuPont was engaged to review the then current safe work systems and safety behaviours in the organisation and to recommend any changes. Du Pont proposed an 11 Step Safety Improvement Plan which was implemented for the purpose of preventing injuries and incidents, to improve overall safety awareness, to build a stronger safety culture and a continuously and significantly improved performance each year. Mr McDonald described how the DuPont's system relied on "safety observation" training which required a manager or supervisor trained in the IMS to observe what was happening in the field in terms of safety. A system of reports and analysis resulted in the Safety Manager reporting directly to the General Manager of Safety and Standards who in turn reported to the CEO on these matters. It was said that both the DuPont system and the Safety Management Committees still operate within the defendant RIC.

23 Mr McDonald then referred to the Special Commission of Inquiry into the Glenbrook rail accident beginning with the appointment of McInerney J in December 1999 to inquire into all aspects of rail safety including, among others, any safety improvements to rail operations.

24 In November 2000, McInerney J handed down his Second Interim Report. As a result of this Report, as of 1 January 2001, the Rail Access Corporation and Rail Services Australia were dissolved as separate entities by statute and amalgamated to form a new statutory State owned corporation, the defendant in the current proceedings, the Rail Infrastructure Corporation.

25 On 11 April 2001, McInerney J handed down the Final Report of the Special Commission of Inquiry. Among his findings, McInerney J found the disaggregation of the State Rail Authority in July 1996 had failed to work in practice. The Report contained a number of recommendations relating to SWUs, track site workers and training.

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.

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.

28 It was said that it was significant that the "Overview" booklet contained the following entry which encapsulated the new approach to safety: Remember: choose the highest level of safety. The various means of carrying out work on track and other safety critical tasks have been designed to provide multiple levels of safety. Care must be taken to choose the most appropriate means for carrying out work. Choose the method the safety assessment indicates is best. There must be no "rule shopping" to find a lower level of protection. Don't determine your protection arrangements on the resources you have available and choose a lower level of safety. If you don't think an activity is safe, don't do it!

29 Mr McDonald said that, on 4 November 2001, "Network Rules" for users and operators of the rail network were introduced and that part of these Rules replaced the SWU 900 series and extended the SWU formerly known as SWU 912 and 922. Mr McDonald described the main features of the new safe working system as follows: (1) The Network Rules - these provide requirements for the safe operation on the RIC network and for ensuring workers' safety. They apply to all users of their rail network. In addition, the NWT's contain a Glossary of terms. The Glossary specifies amongst other matters, the four - foot area; the six - foot area; the difference between the words "may" and "must" and other terms used throughout the NWT's. (2) Network Procedures - these give detailed instructions on how to perform safety-related tasks to meet the requirement of the NWT's. (3) Operator Specific Procedures (OSP) - these give detailed instructions for the carrying out of particular tasks or responding to certain situations. They are applicable to individual groups. The OSP's are entirely new procedures not found under the former SWU system.

30 Mr McDonald said that there was a fundamental change of focus within the RIC in its approach to the rules to apply to the rail network system - the approach had changed from having a focus on the application of the rules to one of risk management. In applying the new network rules to the factual background of the Bell incident, workers are required to appoint a Protection Officer and have the Protection Officer conduct the safety assessment as well as applying provisions of the NWT. Under these rules the protection officer has the primary duty to keep the work site and workers safe; to ensure the work is done safely and to keep records of protection arrangements. Each Protection Officer is issued with a log which contains a summary of duties of a Protection Officer. Under the new rules and procedures, both the up and down lines at Bell would have had a handsignaller/flagman in position to prevent trains entering the work site while workers were on or about the line.

31 Mr McDonald also noted that the Government had established the office of Co-Ordinator General of Rail as a Department of the Public Service responsible to the Minister of Transport and had appointed Mr Ron Christie as the Co-Ordinator General of Rail on 7 June 2000.

32 It was also stated that the RSA (as it was at the time) had fully co-operated with the WorkCover Authority investigation as demonstrated by its complete involvement with RSA employees in a re-enactment of the incident which was organised by Inspector Hes on 3 November 1998.

33 Mr McDonald also pointed to the fact that regular audits are conducted both internally and externally by the RIC. In addition, since the amendment to the SWUs and the introduction of the NWTs, there had been a significant decrease in the number of workplace injuries. He stated that there had been no deaths recorded and that the level of injuries had decreased remarkably. A diagram dealing with lost time injuries statistics demonstrated a significant reduction between July 1996 and June 2000. These matters were not cross-examined upon nor challenged in any way by the prosecutor.

SUBMISSIONS FOR THE PROSECUTOR 34 It was noted that Mr Noble, who had overall supervision of both work sites on the day, proposed to apply SWU 922 for the up main railway line but applied SWU 912[b] and [c] for the down main railway line. SWU 900[d] dealt with safety clearances for engineering work and defined "work on or about the line" as any work situation where employees and equipment were located within, or likely to be located within, "2.5 metres horizontally from the nearest rail of any running line or siding". This SWU also cautioned that where work did not or was not likely to come within the safety clearances but was being performed close to the minimum safety distances, "extreme care must be exercised".

35 SWU 912 outlined two alternative methods of protection for workers working on or about the line when trains were not required to slow down or stop. The first method of protection provided that employees were to be responsible for their own protection by looking out for the train themselves. The second method provided for a handsignaller to provide protection as determined by a work site supervisor. Neither method required a worker to obtain train running information. SWU 912 was silent as to who was responsible for adopting one of the two methods. It was submitted that the first method outlined in SWU 912[d], by implication, left it to the workers to decide for themselves whether the level of protection afforded by this method was appropriate. The method of protection that was implemented at both work sites on 15 October 1998 for the down main railway line was the first method appearing in SWU 912[b] and [c].

36 SWU 922 was the procedure implemented for the up main railway line only. This SWU required the signals protecting the work sites to be kept at stop until completion of the work. It also required handsignallers to be positioned at each affected signal in order to advance trains through the work site if the work site was more than 500 metres past the signal which immediately protected the work site. SWU 922 required an inner handsignaller to be located not less than 500 metres from the work site.

37 On 15 October 1998, the effective implementation of SWU 922 and SWU 912[b] and [c] was: (i) SWU 922 did not provide protection at work sites 1 and 2 in regard to trains travelling in a westerly direction along the down railway line. Workers at the work sites therefore took responsibility for their own protection in regard to trains travelling in that direction by looking out for trains themselves in circumstances where they were simultaneously engaged in work related tasks; (ii) neither SWU 922 nor SWU 912 required the signaller at Mt Victoria signal box to inform trains travelling on the down main railway line of the existence of the work groups at work site No 1. As a result the driver of the train involved in this incident was not advised that workers were performing work at either work site No 1 or No 2; (iii) neither SWU 922 nor SWU 912 required the workers to inform themselves of the times trains were expected to travel on the down railway line. SWU 912 expressly stated, "there will be no need to obtain train running information", and SWU 922 was silent on this point.

38 The implementation of SWU 912[d] in combination with SWU 922 was an available means of work site protection which would have afforded greater protection for the workers in regards to trains travelling on the down main railway line. However, the implementation SWU 912[d] was not mandatory but within the discretion of the workers and provided as an alternative to SWU 912[b] and [c] when individuals working on or about the track considered they could not safely look out for themselves. Relevant to the exercise of that discretion: (i) Mr Noble 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; (ii) Mr Noble had not previously received instructional training in the operation of SWU 922 in combination with SWU 912. He did not consider it necessary in the circumstances that prevailed on 15 October 1998 to implement SWU 912[d] because he believed, mistakenly, the workers had over 500 metres clear vision and trains approaching on the down main railway line would be warned of the location; (iii) both Mr Noble and Mr Hiley, as the respective site supervisors, did not consider it necessary on 15 October 1998 to implement SWU 912[d] in combination with SWU 922. The eight other workers at work sites 1 and 2 considered they could safely look out for themselves and did not request either Mr Noble or Mr Hiley to provide further protection.

39 The primary factor to consider in relation to penalty was the objective seriousness of the offence (Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81; Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoists Rentals Pty Ltd and anor (No 2) (2000) 99 IR 163 at 185 - 187). It was submitted that a number of objective features were present in the case which called for the imposition of a substantial penalty. They were: (i) the maximum penalty (for corporations) prescribed by Parliament for the offence at the time it was committed was $550,000 for the first offence and $825,000 for subsequent offences; (ii) the need for general deterrence; (iii) the need for specific deterrence; (iv) the defendant's failure to provide a safe system of work and inform itself of safe working; (v) the nature of the offence and that there were available simple steps to remedy the defective systems of work; (vi) the nature of the offence and the injuries manifested the degree of seriousness of the relevant detriment to health and safety; (vii) there were obvious and foreseeable risks to safety against which appropriate measures were not taken.

40 The defendant had prior convictions, thus triggering the operation of s 51A of the Occupational Health and Safety Act 1983. The maximum penalty in relation to the offence before the Court was therefore $825,000 (Capral Aluminium v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at 48).

41 In fixing an appropriate penalty in the present case, an objective feature was the need for general deterrence as this is one of the main purposes of punishment (Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388).

42 In relation to offences committed under the 1983 Act, the factor of specific deterrence assumed significance. This was especially so where an offender conducts a large enterprise which involves risks to safety (Capral Aluminium at pars 76 - 77). In this case, the defendant conducts a large enterprise which involves maintenance of railway lines throughout New South Wales. Such work often involves being placed in situations of close proximity to moving trains. Four months prior to this offence a railway worker was seriously injured when he was struck by a train while walking across a live line (Inspector Barnard v Rail Infrastructure Corporation (2001) NSWIRComm 255 at pars 26 - 28). On 27 October 1998 (less than two weeks after the accident on 15 October 1988 in this case) a worker, an employee of the defendant, was fatally injured at the Trangie Railyard when he was crushed between a stationary and a moving train while carrying out shunting duties (Inspector Belley v Rail Infrastructure Corporation (2001) NSWIRComm 323, par 6).

43 The prosecutor submitted that, when considering a statute giving expression, as a matter of public policy, to standards of safety, management has a positive obligation of informing itself of circumstances of safe working (WorkCover Authority of New South Wales (Inspector Dawson) v Waugh & Thora Sawmilling Pty Ltd (1995) 59 IR 89 at 100.

44 Another factor demonstrating the seriousness of the defendant's offence was that simple and straightforward steps could have been implemented thereby avoiding or minimising the risk of injury. On 16 October 1998, the day after the accident, the defendant issued a Safety Bulletin which effectively amended SWU 912, making it a requirement to have a handsignaller acting as a lookout whenever and wherever work was being performed adjacent to a live rail. Further measures following the accident were implemented by the defendant in an effort to minimise the risks associated with working near adjacent live lines.

45 The gravity or otherwise of the potential risk to safety flowing from a breach of the Act is relevant as a measure of the gravity of the breach and the culpability of a defendant (Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Flectcher Constructions Australia Ltd (supra) at 79, 80).

46 Here there were risks for the safety of workers working with equipment in close proximity to railway lines (within 2.5 metres) with the likelihood, even certainty, of trains passing by and where safe working procedures were discretionary; where no system existed for notifying train drivers of the presence of workers working nearby; and where the implemented procedure was that workers ensure their own safety by looking out for trains themselves in circumstances where they were simultaneously engaged in work related tasks.

47 Given these causative factual circumstances, the risks of serious injury to Mr Hiley and Mr Crowther were extremely high. As a result of the extreme risks, Mr Hiley was fatally injured and Mr Crowther suffered serious injury.

48 Given the causative factual circumstances referred to above, the risk of serious injury was also obvious and foreseeable (WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and anor (2000) 95 IR 383 at 450).

49 The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being made more serious in nature (Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 at paras 81 and 82).

50 The prosecutor accepted that the defendant was entitled to have taken into account, as mitigating the objective seriousness of the offence, its plea of guilty (R v Winchester (1992) 58 A Crim R 345 at 350). Where a defendant enters a plea of guilty in this Court, it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton (2000) 115 ACrimR 104 at 138 and WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of New South Wales (2000) NSWIRComm 179 at para 40.

51 Here, the plea has been entered in circumstances where the prosecution case in relation to the offence could be described as strong. Where, for example, the plea has been entered in recognition of the inevitability of conviction, the extent of leniency to be afforded by way of discount on sentence may have much less weight (see Winchester at 350; see also R v Ellis (1986) 6 NSLR 603 at 604; Regina v Carter (2001) NSW CCA 245 at par 13).

52 In oral submissions, the prosecutor drew attention to two judgments of mine concerning the Rail Infrastructure Corporation, namely, Inspector Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255 and secondly, Inspector Belley v Rail Infrastructure Corporation [2001] NSWIRComm 323. The prosecutor pointed out that in Barnard I had been critical of the system of work which left it to employees to look after themselves and to my description of that system as being at best a skeletal system of safety at work which did not ensure the safety of employees near a live line. I should note here that Senior Counsel for the defendant pointed out that in Barnard the case had not concluded, with the question of penalty yet to be considered after a finding of guilt was reached in contested proceedings. In relation to Belley, the offence which was pleaded to occurred on 27 October 1998, almost two weeks after the incident involved in the present proceedings. It was said that these matters were appropriate to take into account on the aspect of specific deterrence.

53 Also relevant to the issue of specific deterrence were the remedial measures already taken by the defendant. It was accepted tha, on the evidence of Mr McDonald, a number of remedial measures had been taken by the defendant although these measures then became a relevant consideration in the assessment of the objective seriousness of the offence.

54 Reference was also made to the operation of the SWUs where certain procedures were laid down where work could be performed within 2.5 metres of a live railway line. It was submitted that it was inevitable that in the performance of this work, trains would pass in close proximity to these workers and their equipment within the "six foot". Here the safe working procedures were discretionary, in the hands of the employees and relied on the workers ensuring their own safety by looking out for trains themselves whilst they were simultaneously engaged in their work tasks. This occurred in circumstances where the train driver was not informed of the presence of workers working at that particular work site, and further where the workers themselves were not informed of the train timetable. In those "causative, factual circumstances" the risk of serious injury to Mr Hiley and Mr Crowther "was extremely high". The objective features of the case elevated the offence into the "high range".

55 The prosecution also submitted that this was a case where the plea of guilty was late. There had been seven mentions after the Premier's conference and before the matter was set down for sentence. The matter had originally been set down for seven hearing days, five of them in Katoomba in order to hear the oral evidence of local witnesses. There was an amended summons but that summons contained particulars of all the failures that were originally alleged in the three summonses before the Court, two of which had been withdrawn. The only difference was that an allegation of a failure to properly supervise was not contained within the amended summons, although that was a particular when there were three summonses being pursued against the defendant. It was submitted that effectively the same failures were alleged on sentence as were initially alleged at the commencement of proceedings. In this regard, the prosecutor distinguished the recent decision of the High Court in Cameron v The Queen (2002) HCA 6, 14 February 2002. It was accepted that in Cameron the court spoke of the appellant not having to acquiesce in procedures which might result in an error in the court record or being put in a position of having to plead guilty to a wrongly particularised charge. That was not the case in the present proceedings: the initial charges were not wrongly particularised and all that had happened was a consolidation of allegations into one summons, although it was accepted that the charge in relation to an absence of proper supervision was not continued.

SUBMISSIONS FOR THE DEFENDANT 56 The defendant immediately took issue with the prosecutor's submission that this was not an early plea: properly considered, the case should not be elevated "into the high range" of penalties. In relation to the timing of the plea, the defendant pointed out that until the day of the hearing of the plea there had been three summonses and two of them were withdrawn on that day. The summons to which the defendant pleaded guilty was dated 16 January 2002 following an agreement to amend the charge in that summons. The amendment took place during the January holidays when many legal practitioners were not available but, on 31 January 2002, the defendant had written to the Court advising of its intention to plead guilty to the amended summons. The amended summons dated 16 January 2002 was dealt with by the Court on 8 February 2002. In those circumstances, the defendant emphasised that it had pleaded guilty at the first available opportunity especially bearing in mind that there was a great deal of activity between the parties related to the withdrawal of two summonses, the amendment of the third summons and the preparation of an Statement of Agreed Facts. It was also significant that the charge relating to a lack of proper supervision was not proceeded with and that was a matter to be taken into account in understanding the timing of the defendant's plea. There had been three summonses and now there was only one, and the issue of supervision was not being pressed by the prosecutor. In those circumstances there was a forensic benefit obtained by the defendant which allowed it to plead to the amended summons. It was therefore entitled to the benefits of having entered an early plea, at least, "to some extent".

57 Senior counsel emphasised that the defendant had not come to the present proceedings to excuse or justify its failures - it had come to explain the circumstances as to what had happened since the accident in the hope of convincing the Court that this matter should not be elevated into the high range of penalties. The prosecutor seemed to be submitting that this was a grossly negligent defendant who had no care for its employees. That was not the case and the defendant's focus was upon the substantial steps taken since the accident to implement a safe system of work for those performing work on and around live railway lines. It was accepted that in the circumstances the defendant should have implemented Safe Working Unit 912[d] and [e] in combination with SWU 922.

58 It was submitted that there was a system but the difficulty was that the system was inadequate in circumstances where the training and instruction to employees was not such as to draw their attention and to make them appreciate the risks of what they were doing. It was accepted that there was no obligation on the signal box operator at Mt Victoria to tell train drivers that workers were involved in maintenance tasks on the lines. This was a case where there were possibly many errors of judgment including errors made by the train driver, but the defendant nevertheless acknowledged the deficiencies particularised in the amended summons.

59 It was submitted that the real issue for the defendant was what had happened since the accident. Quite apart from the changes which followed upon McInerney J's Inquiry into the Glenbrook accident, on the day after this accident there was a new safety bulletin and a memorandum which altered the system of work in relation to the utilisation of handsignallers and making provision for equipment to be kept in specific places rather than in the six foot.

60 The organisation of the railway network was identified as contributing to the breakdown of safe working practices. Mr McDonald's evidence made it clear that until 1996 the State Rail Authority was the statutory body created to run the rail network but that after July 1996 there was a restructuring resulting in four organisations performing the various tasks associated with the operation of the network. It was submitted that there was "no change of programme implemented so that these organisations were established without any planning as to how they were going to operate, in the sense that they had one workforce from the SRA split up into four and the culture of safety and the experience of this workforce was dissipated". As a result of the recommendations of the Glenbrook Special Inquiry there had been major structural changes and new statutory bodies created with an emphasis on promoting the safe operations of the rail network in New South Wales.

61 Senior counsel submitted that the starting point for consideration of an appropriate penalty was the fact that the Chief Executive of the original defendant, Rail Services Australia, was removed and that statutory corporation was dissolved. The Chief Executive of that corporation had to take responsibility and these were the matters which were identified in the Glenbrook Inquiry. It was submitted that not much more could be done to show disapproval than the dissolution of the corporation. The defendant today was, in a sense, suffering double jeopardy: the original corporation had been punished; its Chief Executive officer had been removed; and, the corporation had been dissolved. There could be no greater deterrent.

62 Following the Glenbrook Inquiry there had been dramatic change. New safety rules had been implemented with an instruction that employees were to implement the highest level of safety first rather than the lowest level. The new network rules replaced the SWU 900 series and, it was submitted, this accident which occurred in October 1998 would now not happen under the new system of safety rules. The new rules even incorporated a system for communication between the signal box and the driver. This led to Senior counsel making the following submission: So whether it is dressed up as general deterrence or specific deterrence, we say that since 1996 there was legislation put in force. There was no change of programme put it. There was dissipation of the rail entities and there was a development of the problem which resulted in this unfortunate and tragic accident. Attempts were made by the circulars referred to in October to fix it; there was an Inquiry. The Government was concerned. As a result of that Inquiry drastic steps were taken, steps which resulted in the dissolution of the defendant, its amalgamation on recovery, a new entity, new management, new system, a new system which is of such sophistication that it is quite clear it would have stopped this accident ever happening. So we say that when one looks at specific deterrence or when one looks at general deterrence, your Honour would reach the conclusion that whilst it is true that this is an organisation, a large organisation which is exposed to accidents, exposed to problems, it is almost as if the slate should be wiped clean and start again, because different systems, different organisations, different culture. We look forward, not back.

63 Senior counsel for the defendant accepted that it was not an impressive system to look after yourself when there are trains moving around the operation. While that may have been acceptable years ago when there was one organisation and lots of employees and when the organisation was not under economic imperatives of performance as found today, that system nevertheless seemed to work but did not work in the period 1996 to about 1998 or 1999. It had been changed.

64 In dealing with the issue of punishment as general or specific deterrence, the Court should be persuaded to set the penalty in a lenient way rather than, as argued by the prosecutor, on the highest scale. The Court should take into account the plea of guilty and the saving of time and the consequential saving to the public purse by the entering of the plea. There had been co-operation with the WorkCover Authority to the extent that the defendant organised the re-enactment of the incident which occurred within a few weeks. 65 Finally, it was put that the defendant's primary submission was that it had been punished, it had fixed the problems of safety which had previously existed and, although it was a corporate entity and a semi-government entity, it was in the interests of the public and in the interests of the corporation "that it gets its act right". It was in everybody's interest that the new corporate entity be given a chance with this new system of safety and to be dealt with leniently on this occasion.

DELIBERATION 66 The objective seriousness of the offence in this matter is not in doubt and, in many respects, has been readily acknowledged by the defendant. In this case, numerous elements combined to present a very dangerous work situation: the work was to be performed on live railway lines; in relation to the down line the work practice was adopted whereby the employees would look after their own safety; the work was to be performed not only on a live line but also close to an adjacent live line; trains using the line could travel at speeds of up to 70 kph for a passenger train and 75 kph for a freight train; the work system did not require train drivers to be advised that work was being performed on the line; and the work system did not require the employees to be made aware of train timetables and the time that trains may be present in the work area during the period that the maintenance task was being performed; there was no requirement for a person to be allocated the task of a lookout or to act as a handsignaller under the Safe Working Units; the working area was not required to be clearly marked so that passing trains would have advance warning of the fact that a maintenance gang was working on the line; and there was no system of direct contact with the nearest signal box so as to be informed that a train was approaching. In addition, the overall supervisor of this work had not received adequate instruction or training in identifying potential risks or hazards associated with track maintenance.

67 In other cases involving the railway system, I have commented on the inadequacy of the system of work which permitted employees to look after their own safety. Those observations are simply confirmed by the evidence in the present case, but it is also apparent from the material presented by the defendant that, following the Glenbrook Special Inquiry, it is now accepted by the defendant that the approach encompassed in the Safe Working Units system failed to provide adequate safety for persons working on or around live railway lines. This acknowledgement was a central theme in the defendant's submissions on penalty. This is, therefore, not a case where the existence of settled safety procedures and instructions is 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 at par 135. I accept the submissions on this matter made by the prosecutor. The fact that there has been a fatal accident and that another worker was seriously injured is evidence of the seriousness of the breach.

68 I also conclude, regrettably, that this accident and the detriment to safety which it exposed was entirely foreseeable and could have been avoided by a simple application of a combination of the existing Safe Working Units. The use of a dedicated handsignaller and lookout was likely to be effective in the circumstances where there was a clear view of oncoming rail traffic. It was open to the defendant to adopt the system of stopping the traffic by signals until the work was performed - inexplicably applied to one gang but not the other on the day of the incident. It is significant that on the very next day the defendant issued a new circular requiring the presence of a handsignaller acting as a lookout whenever work was being performed adjacent to a live rail.

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.

70 I am not able to accept the defendant's submission that it has already been punished to a significant extent by having a previous corporate structure dissolved and a previous Chief Executive Officer removed. It is undoubtedly correct that those developments took place in the wake of a serious accident at Glenbrook and in the context of a loss of confidence in the safety of the railway system operating in New South Wales. I do not, however, regard those changes, which are not extraordinary in the provision of Government services, as equating with a penalty imposed for the same detriment to safety such as to be taken into account in reducing the appropriate penalty to be set in relation to this particular incident and the risks to safety it demonstrated. For the same reason, I reject the submission that equates the imposition of a penalty in this matter with the notion of double jeopardy accepting, as I do, that such a submission was put by way of analogy. Nor do I accept the submission that the legislative changes have effectively left the defendant with a "clean slate" - it is clear from the transitional provisions accompanying these legislative changes that the liabilities of the former statutory bodies have become the liability of the new statutory entities. In such circumstances there is no room for treating, even on some notional basis, the present defendant as having effectively no previous convictions or no previous record of inadequate systems of safety.

71 The defendant's submission that it should be permitted, in effect, a "clean slate" because of statutory re-organisation of railway entities in New South Wales is not only inconsistent with the transition provisions, whereby the liability of the previous entity was transferred to the new entity, but is also inconsistent with the provisions of s 51A of the Occupational Health and Safety Act 1983. In this regard attention is drawn to the judgments in WorkCover Authority of New South Wales (Inspector Gilbert v Energy Australia - formerly Sydney Electricity) (1998) 85 IR 99, a decision of Hungerford J, the decision of Kavanagh J in Inspector Vierow v Rail Services Australia [2001] NSWComm 153 delivered on 22 June 2001 and my judgment in Inspector Belley v Rail Infrastructure Corporation (2001) NSWIRComm 323 delivered on 7 December 2001. 72 In relation to subjective features, I accept the defendant's submission that effectively there was an early plea once the summons was amended and a significant allegation regarding a failure to supervise had been omitted from the charge. It may well be, as submitted by the prosecutor, that the amended summons collected the various charges (with the exception of the charge relating to supervision) which had been made in three separate summons but in my view it would be wrong to treat the prompt response of the defendant in pleading guilty literally within days of the amended summons being filed as reflecting nothing more than the inevitable (now to be regarded as an appropriate consideration in this context) and, overall, as a late plea.

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).

74 In Cameron, Gaurdon, Gummow and Cullinan JJ referred to the well established principle that the fact that an accused person had pleaded guilty was a matter properly to be taken into account in mitigation of his or her sentence and cited a passage in Siganto which is part of the same passage quoted by the Court of Criminal Appeal in Thomson. The joint judgment in Cameron then goes on to state: It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and the willingness to facilitate the course of justice. Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial (Siganto v The Queen (1998) 194 CLR 656 at 663 [22] per Gleeson, CJ, Gummow, Hayne and Callinan JJ. See also R v Gray [1977] VR 225 at 231. The distinction between allowing reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory … Reconciliation of the requirement for the person not to be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

75 The joint judgment in Cameron then turned to the question of the role to be played by an early plea in assessing an appropriate discount. Their Honours stated: The question whether it was possible for a person to plead at an earlier time is not one that is answered simply by looking at the charge sheet. As was acknowledged in Atholwood by Ipp J, in the Court of Criminal Appeal of Western Australia, the question is when it would first have been reasonable for a plea to be entered. In Atholwood, the person concerned had been charged with several counts. After a process of negotiation, the prosecution withdrew a number of the charges and the offender pleaded guilty to one of the remaining charges. Ipp J said this:

It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts … to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity. The remarks of Ipp J in Atholwood reflect what has earlier been said in relation to the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. Once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a "fast track" plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity …

76 It is clear therefore that the view expressed in Thomson, that the top of the discount range for a plea should be restricted to those entered at the earliest opportunity and should not, except in exceptional cases, be applied after a matter has been set down for trial now needs to be considered in the light of the judgment in Cameron - all factors need to be considered. That approach has guided me in considering the appropriate penalty to apply this case. Reference should also be made to the discussion of these issues in WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Ltd [2002] NSWIRComm 58, [124] - [128].

77 The defendant is also entitled to have taken into account its prompt action in having a new safety bulletin issued the day after this accident specifying the requirement for a handsignaller when working in and around live railway lines, and the manner in which that instruction was amended and promulgated. The defendant also co-operated with the investigation carried out by the WorkCover Authority and obviously went to some considerable length in organising and making possible the re-enactment of the accident approximately two week after its occurrence. There was also evidence that grief counselling was made available to those involved in the work gangs and on a continuing basis for as long as it was desired by such workers. Although there was no evidence as to the extent to which this counselling was taken up, it is a matter which the defendant is entitled to have taken into account.

78 In light of the findings I have made and the views I have expressed in the foregoing paragraphs, I determine that the defendant is to have a discount of 20 per cent for its plea with a further 5 per cent discount for the other subjective factors to which I have referred.

79 I make the following orders: 1. The defendant is convicted of the offence to which it pleaded guilty on 8 February 2002. 2. The defendant is fined the sum of $150,000 with a moiety thereof to the prosecutor. 3. The defendant is to pay the prosecutor's costs of these proceedings as agreed, or failing agreement, as ordered by the Court.

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