Inspector Walker v Earthquake Promotions Pty Ltd

Industrial Relations Commission (NSW)|2013-06-20|Before: Boland J

INTERLOCUTORY Judgment 1These proceedings concern a notice of motion filed on 10 January 2013 by Earthquake Promotions Pty Ltd ("first applicant") and Clay Gill ("second applicant") for: 1. An order that the guilty plea entered on the 7 June 2012 by Clay Gill be vacated. 2. An order that the guilty plea entered on the 7th June 2012 by Earthquake promotions (sic) Py (sic) Ltd by Clay Gill as sole director of Earthquake Promotions Pty Ltd be vacated. 2By way of background, on 21 December 2011, Inspector Joanne Walker of the WorkCover Authority of New South Wales instituted proceedings under the Occupational Health and Safety Act 2000 ("the Act") against the first and second applicants alleging contravention of s 8(2) of the Act (in respect of Mr Clay it was alleged he contravened s 8(2) by virtue of s 26(1) of the Act). 3The prosecutions arose out of an incident that occurred on 5 April 2010 at Tyagarah at the Byron Bay Blues Festival site when a gondola of a Ferris Wheel detached and fell 6 to 8 metres to the ground. Three passengers in the gondola were injured, one seriously. 4The Application for Order in respect of the first applicant alleged the first applicant failed: by its acts or omissions as particularised below ensure that persons other than its employees and in particular Nicola Alroe, Lily Havers and Katherine Malouf were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work contrary to section 8(2) of the Act. The particulars of the charge are: (a) The risk was the risk of serious injury to persons on or near an amusement device, namely a Ferris Wheel, when a gondola of the Ferris Wheel detached from the Ferris Wheel and fell to the ground due to the structural failure of the sweep axle causing it to brake away at both ends. (b) The defendant's undertaking was the operation of an amusement device, namely a Ferris Wheel. (c) The place of work was the Byron Bay Blues Festival site at the Tyagarah Tea Tree Farm at lot 103-105 Pacific Highway, Tyagarah in the State of New South Wales. Employees of the defendant, and in particular Paul Duggan and Chris Moore, were performing work for the defendant at the place of work at the time of the incident. (d) The defendant failed to properly inspect the ferris wheel to identify potential risks to the public, in that the defendant: (i) Failed to conduct an adequate inspection of the gondola axles and in particular the load bearing surfaces, namely an inspection that should have included the removal of grease and dirt from these surfaces to adequately assess their integrity. (ii) Failed to carry out inspections in accordance with Australian Standard AS 3533.2 Amusement rides and devices Part 2: Operation and maintenance, in that it failed to ensure that 10-yearly inspections had been performed in circumstances which required that a major inspection be carried out at 10 years of age and each 10 years thereafter; (iii) Failed to ensure that a competent person established a planned inspection and maintenance program for all moving and load bearing and structural members of the Ferris Wheel; (e) The defendant failed to carry out maintenance and repair in accordance with Australian Standard AS 3533.2 Amusement rides and devices Part 2: Operation and maintenance. (f) The defendant failed to carry out testing in accordance with Australian Standard AS 3533.3 Amusement rides and devices Part 3: In service inspection by failing to subject the load supporting shafts of the ferris wheel to periodic non-destructive testing. (g) The defendant failed to adequately identify the hazards, assess the risks and implement appropriate control measures in respect to the maintenance and operation of the Ferris wheel in that the defendant failed to devise and implement an adequate system to undertake hazard and risk assessment procedures in respect to the maintenance and operation of the Ferris wheel; (h) The defendant failed to take steps to obtain relevant information in relation to maintenance, inspection, repair and testing from appropriate sources, such as Showmen's Guild of Australia and other amusement device associations such as the Australian Amusement Leisure and Recreation Association. (i) As a result of the defendant's acts and omissions, Nicola Alroe, Lily Havers and Katherine Malouf were exposed to risk of serious injury and sustained serious injury. 5The Application for Order in respect of the second applicant was in the same terms as that served on the first applicant, albeit relying on s 8(2) and s 26(1) of the Act. 6The Sydney agent for A Ace Solicitors, TW Agency, entered pleas of guilty to the charges on 7 June 2012. Mr Craig Stevenson, of A Ace Solicitors, is the solicitor on the record for the applicants.

Grounds in support of application 7The grounds relied upon by the applicants in support of the application to "vacate" the guilty pleas were set out in the notice of motion. The motion referred to "the applicant" in circumstances where the applicant was identified as both the first and second applicants. I note that Mr Gill was the sole director of the first applicant so I presume, and it was not challenged, that he had the authority to instruct his solicitor to enter pleas of guilty for both applicants and he had the authority to make the application for and on behalf of both applicants to withdraw the guilty pleas. 8The grounds in support of the application were in the following terms: 1. If the pleas of guilty are not vacated, there is likely to be a miscarriage of justice. 2. The pleas of guilty when entered were not really attributable to a genuine consciousness of guilt. 3. The pleas of guilty when entered were not entered in the exercise of the free choice of the applicant or the company and/or were not in the interests of the applicant or the company. 4. The pleas were entered on a misunderstanding of the facts and evidence to substantiate those facts as interpreted by the applicants' solicitor and therefore were induced on a false premise. 5. The pleas of guilty were entered in the absence of the applicant and the company by an agent of the Solicitor instructed (referred to in paragraph 4 above) and the company did not have a separate representative to advise it independently. 6. The applicant and the company were not present when the pleas were entered and no allocutus was administered. 7. The facts as alleged do not and cannot amount to a plea of an offence or offences known to law.

Evidence 9The evidence for the applicants filed in relation to the interlocutory proceedings comprised an affidavit of Mr Gill and an affidavit of Mr Stevenson, representing the applicants. Mr Gill's affidavit addressed the circumstances in which the guilty pleas were entered and the circumstances he asserted that led to him applying to withdraw the guilty pleas. Mr Gill and Mr Stevenson were required for cross-examination. 10Mr Stevenson's affidavit was essentially a mea culpa; that he had not given adequate consideration to factual matters relevant to the charges before advising his clients to plead guilty and that he had wrongly advised his clients. 11For the respondent, Inspector Walker, two affidavits were filed, one by Jennifer Diep, solicitor with the WorkCover Authority who had carriage of the matter for the prosecution up until 22 June 2012 and William Steenson, solicitor with the WorkCover Authority, who took over carriage of the matter for the prosecution from Ms Diep and continues to have carriage. The affidavits of these two solicitors traced the history of the proceedings from January 2012 to February 2013 and the circumstances in which the guilty pleas were entered. 12It is apparent from those affidavits that the Applications for Order were the subject of the Court's Criminal Case Conferencing process and several directions hearings. It is also apparent that Mr Stevenson gave instructions to his Sydney Agent, TW Agency, to enter pleas of guilty in respect of both charges on 7 June 2012 and the Agent complied with those instructions.

Principles applicable to withdrawal of guilty plea 13The principles applicable to the withdrawal of a guilty plea were addressed very recently in Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49 at [43]-[53]. In summarising the relevant principles at [53] the Full Bench stated: It is apparent from the authorities that: (1) The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence. (2) A person who has pleaded guilty will be permitted to withdraw that plea where it has been shown that a miscarriage of justice has occurred. The applicant for such permission bears the onus of showing the existence of that miscarriage. There must be shown to be some circumstance that indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt; there must be a real question about the guilt of the accused. (3) A miscarriage of justice may occur where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. (4) A grant of leave to withdraw a plea would involve a consideration of the circumstances in which the plea was made, with leave being granted if, for instance, it resulted from a mistake of fact or a misunderstanding of the law, or inability to obtain legal representation, or if the interests of justice otherwise require. (5) Withdrawal of a plea of guilty may involve a consideration of whether the advice given to the applicant was or was not imprudent and inappropriate or "flagrantly incompetent". (6) Courts will approach any attempt to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection.

Elements of the offences and defences 14In initially pleading guilty, the first applicant was accepting that it was guilty of all of the elements of the offence under s 8(2), namely: 1. The defendant was an employer; 2. There were persons, not employees, exposed to risks to their health or safety; 3. The risk arose from the conduct of the defendant's undertaking; and 4. The exposure to risk was at the defendant's place of work. 15In respect of the second applicant, s 26(1) provided: 1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. ... 16Thus, in circumstances where the first applicant pleaded guilty, the second applicant is taken to have contravened s 8(2) unless he was to satisfy the Court of one of the defences available to him. Having initially pleaded guilty, it may be accepted the second applicant was not seeking to rely on a defence under s 26(1)(a) or (b). 17As far as the elements of the offence are concerned, it would appear that the applicants now seek to withdraw the guilty pleas on the basis that it could not be proven that the risk arose from the conduct of the first applicant's undertaking. 18Moreover, from what I am able to understand from the applicants' submissions, the applicants seek to withdraw their guilty pleas in order to rely on a defence that was provided for under s 28 of the Act. That section was in the following terms: 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 19The reliance on the defences under s 28 appear to be based on the proposition that the second applicant did all that was required of him regarding inspection of the ferris wheel and having been advised by qualified persons who had regularly inspected the device that it met safety requirements, it was not reasonably practicable for the first applicant to comply with s 8(2) or, alternatively, the offence was due to causes over which the first applicant had no control and against the happening of which it was impracticable for the first applicant to make provision.

Grounds 1, 2, 3 and 4 of the notice of motion 20Ground 1 merely asserts that a miscarriage of justice will occur if the guilty pleas are not allowed to be withdrawn. Grounds 2, 3 and 4 variously assert that there was a misunderstanding as to the facts, that the applicants did not exercise a free choice when pleading guilty and that there was no consciousness of guilt on the part of the applicants. 21The applicants' reliance on the absence of a consciousness of guilt appears to be based on Mr Gill's evidence that he never really believed he was guilty and he only pleaded because: (a) he did not perform a "crack test" on the broken part and was advised by "WorkCover" this was a requirement; (b) he thought he was guilty of something because "the component on my ferris wheel broke and I did not understand the importance of my conduct to the charge". 22The abovementioned factors appear also to be the basis upon which the applicants claim they did not have a free choice in pleading guilty, but that, somehow, they were unduly influenced to plead guilty to charges - the factual basis of which they did not understand. 23In testing these claims, I note that the applicants accepted they were served with the Applications for Order, which particularised the charges including the applicants' alleged acts or omissions that created the risk to safety. The applicants were also served with the affidavits in support of the Applications, which set out in detail the factual allegations said to support the charges. 24In addition, before entering their guilty pleas, the applicants were served with the prosecution brief of evidence, which consisted of five volumes of material. Ms Diep's affidavit had annexed to it an index to the prosecution brief and it is evident from that index that it included all of the material the applicants now seek to rely upon to assert that there was some mistaken basis to the entry of their pleas. It also included the Australian Standards upon which some of the particulars alleged are based. No fresh or new evidence was sought to be adduced. 25The applicants sought and obtained legal advice. Mr Stevenson, in his affidavit, said he advised Mr Gill that he had read the Australian Standards and believed that because the item was a load-bearing item, it was a critical component and, therefore, a breach of the legislation must have occurred and that there was no further element of the crime that needed to be proved. He also stated that he did not advise Mr Gill in relation to the possible defences under the Act in ss 26 and 28. 26Mr Stevenson said he spoke to Mr Gill sometime in March 2012 and in a telephone discussion Mr Gill advised him that he would probably plead guilty because "he had been told by a few people that they would get him no matter what." As I indicated earlier, Mr Stevenson's Sydney agent, on instructions, entered guilty pleas on 7 June 2012. 27Mr Stevenson further deposed that he met Mr Gill on 20 October 2012 and advised him of: [T]he exact nature of the charges and went through the statement of agreed facts in great detail to ensure that he was comfortable with agreeing to these facts. 28Mr Stevenson deposed that during the course of the interview with Mr Gill: I was provided by Mr Gill with a letter written by Jack Wade stating that that (sic) the component in question only needed to be visually tested and not Non destructive (crack) tested. Mr Gill also showed me his full log books for his rides including the maintenance schedules, the engineer certifications and the Governmental National Compliance with Australian standards Audits that he had on the ferris Wheeel (sic). As a result of this I re read both the transcript of the interview with Jack Wade and the Report of Brian Bradley. 29In his affidavit, Mr Stevenson said he had: [M]isread the reports and evidence of Brian Bradley and Jack Wade and had formed the incorrect opinion that Mr Gill (and Earthquake Promotions Pty Ltd) had committed an offence. Mr Stevenson said he then conferred with counsel. 30Relevantly, Mr Gill's evidence was that: (a) he was unaware of any requirements to do non-destructive testing on the ferris wheel, but as he was advised by WorkCover that this was required by the Australian Standards and this would constitute the offence, he decided to plead guilty; (b) Mr Stevenson advised him that he thought that because the item was load bearing it would be classified as a critical component under the Australian Standards and this fact would be enough to constitute a breach of the legislation; (c) he was advised by Workplace Health and Safety officers that this was a minor charge that would result in a small fine; (e) in pleading guilty he was prepared to accept that he did not perform a crack test on the part that broke. This was the extent of what he understood that he was pleading to. He was not prepared to accept that he increased any risks to the public or that it was industry standards to do these tests because no one in the industry did them on parts that were not listed as critical components because he did whatever tests he was told to do by his engineer; (f) he decided to enter a plea of guilty but he did not understand or appreciate: i That in order to commit the offence, I must have failed to ensure that people were not exposed to risks to their health or safety. ii. I had mistakenly thought that I had committed the offence by the mere fact that somebody was injured, regardless of what measures I had taken. iii. I also did not appreciate and did not give any thought to whether or not it was reasonably practical for me to comply with the provision in light of the fact that I had performed all tests understood to be required by all parties and also in light of the fact that the commission of the offence (in so far any offence was committed which is denied) was due to causes over which I had no control, mainly the alleged misadvising of the required tests, the critical components of the ride, and/or the design of the ride by the manufacture or qualified engineers. iv. I did not give any consideration to the differences between myself and the company because I have always considered that we are practically the same thing. The only reason I ever incorporated a company was because I was told by accountant that this was the proper way to set things up for tax reasons. I do not understand the reasoning behind this but accept what he says and incorporated this company. I did not appoint separate representatives for the company. (g) after pleading guilty he was advised by Jack Wade that he did not require non-destructive crack testing of the item and only visual inspection needed to be done. He also read a report of Brian Bradley that stated that the component would not have been picked up in an inspection of the ride, if Mr Bradley had done the inspection; and (h) the process for the ferris wheel is that at the end of each year it is sent to Mr Gill's engineer for certification. The purpose of this is for the engineer to complete all required tests under the Australian Standards. Mr Gill did this each year and obtained the appropriate certifications. Since 2007, three different engineers have certified this. Each of these engineers certified that:. i. repairs and maintenance had been carried out in accordance with the Australian Standards 3533.3 2003 Part 2 and ii that the log book was present with the device and has been maintained up to date including any required non-destructive testing. 31The source of the advice from Mr Wade, apparently a consulting engineer who had been used by Mr Gill since 2009 to inspect the ferris wheel, that Mr Wade "did not require non-destructive crack testing of the item and only visual inspection needed to be done", was a "Queensland Certificate of Inspection For Amusement Device" issued by Mr Wade on 3 September 2010. The Certificate was part of the prosecution brief of evidence. In that Certificate, Mr Wade classified the ferris wheel as a "Class 4" device and indicated Mr Wade had inspected the device on 9 June 2010 and that it was satisfactory to use and operate. Mr Wade also stated: At the inspection I modified the log book adding a critical components list. In particular I required the main axle to have an annual NDT and for the axles supporting the gondolas to be visually inspected ever (sic) 6 months. The NDT of the main axle should be carried out within 4 months of this inspection [i.e. before the end of October 2010]. 32I note that Mr Wade's certificate was issued post-incident and appears to have involved a modification to the logbook. It says nothing about the requirements for inspection of the device or non-destructive testing (NDT) requirements at the time of the incident on 5 April 2010. What is more, it does not say that the gondola axles do not need to be subject to non-destructive testing.

Consideration of grounds 1, 2, 3 and 4 33There is no doubt the applicants were fully apprised of the charges against them and the material upon which the prosecutor intended to rely and they had every opportunity to consider their position before entering pleas of guilty on 7 June 2012. However, there are three considerations that make me hesitate in refusing the applicants' motion to withdraw their guilty pleas. 34Firstly, I am not satisfied that Mr Gill completely understood the nature of the charges against him and his company. Mr Gill is a showman. He has been engaged in that business from an early age and his schooling ended at year 6. He said he read much of the material in the charges and documents provided by the prosecutor. However, whilst the charges, including the particulars, are expressed in relatively plain English I am not sure Mr Gill's level of education would have allowed him to have a good grasp of the nature of the charges he and the first applicant faced. On its own this would not be sufficient grounds to grant the application because Mr Gill consulted a lawyer, Mr Stevenson, regarding the charges and received advice prior to entering the guilty pleas. 35Secondly, Mr Gill seemed to believe that he was guilty because WorkCover and his solicitor told him that the relevant Australian Standard required him to perform a crack test (NDT) on the gondola axles and he had not performed such a test. Mr Gill said he was not aware such a test was required until told by a WorkCover inspector in an interview following the incident in April 2010. However, subsequent advice he received from engineers led him to believe the test was not required and following further consultation with his solicitor, the solicitor (after conferring with counsel) decided the original advice he provided to Mr Gill was wrong. 36Thus, Mr Gill's contention would appear to be that he believed he was guilty and originally pleaded guilty only because a component of the ferris wheel broke and he had been advised he was at fault as he had not crack tested the gondola axle. But he subsequently learned from engineers crack testing of the axle was not required and, therefore, his conduct was not at fault. Mr Gill appeared to contend he did not understand, or was not pleading guilty to, those particulars of the charge other than those that related to the failure to carry out non-destructive testing on the gondola axles. 37Thirdly, whilst Mr Gill consulted a lawyer prior to pleading guilty, he claimed, and his lawyer agreed, that the legal advice given to Mr Gill about the applicants' liability was wrong. That is, based on engineer's advice and counsel's advice obtained by Mr Stevenson after the guilty pleas were entered, Mr Stevenson reviewed his earlier advice that led to the guilty pleas and advised Mr Gill to seek leave to withdraw the guilty pleas. 38These considerations raise some doubt in my mind as to whether: there was a proper degree of understanding on the applicants' part regarding the charges against them; whether the legal advice the applicants were originally provided with was competent advice upon which to enter a plea of guilty or imprudent advice; and whether the pleas may have been entered on the basis of mistaken facts and/or a misunderstanding of the law. 39If it had been apparent to me that the Australian Standards had required non-destructive testing of the gondola axles and the applicants had failed to carry out that testing, thereby contravening cl 139(2) of the Occupational Health and Safety Regulation 2001, it is most unlikely I would have granted leave to withdraw the guilty pleas. However, that evidence is not available in these interlocutory proceedings.

Grounds 5 and 6 40The Court's file indicates that the applicants entered pleas of guilty to the charges in the Applications for Order on 7 June 2012 before Deputy Industrial Registrar Hourigan as part of the criminal case conferencing process set out in Practice Note 20. This is confirmed in a letter from TW Agency dated 7 June 2012 to A Ace Solicitors in Queensland. The letter, which refers to the two applicants, states, inter alia: In accordance with your instructions, we entered a plea of guilty and sought to have the matter set down for hearing.... Entry of the pleas of guilty was also confirmed in Ms Diep's affidavit. 41At the sentencing hearing on 23 October 2012, counsel for the applicants foreshadowed an application to withdraw the guilty pleas and sought an adjournment, which was granted. The sentencing proceedings were vacated. 42Grounds 5 and 6 in the notice of motion appear to suggest the pleas were somehow entered in absentia, without proper advice and were not entered according to law. The evidence demonstrates that the defendants engaged A Ace Solicitors to act on their behalf in the proceedings. A Ace Solicitors entered a Notice of Appearance in the Court on 24 February 2012, wherein it indicated that they appeared for both defendants. A Ace solicitors received instructions from Mr Gill in his personal capacity as a defendant and in his capacity as the sole director of the first defendant to enter pleas of guilty on their behalf to the charges before the Industrial Court. 43The evidence indicates that the Sydney agent was instructed by the applicants' solicitor to enter the guilty pleas and did so against the background of advice to the applicants from the applicants' solicitor that they should plead guilty. To that extent the pleas were properly received. A plea entered by a legal practitioner representing a defendant or its agent, on instructions, is a legitimate and appropriate method for the plea to be entered. There is no requirement for the plea to be personally entered by an individual defendant, noting in this case the first defendant is a corporation, in any event. 44Moreover, the applicants' reliance on the allocutus is misplaced. The allocutus is the step in a criminal proceeding which occurs when, after a plea of guilty or a finding of guilt by the jury, the court asks the accused whether there is any reason why the court should not proceed to pass judgment according to law: see for example, s 253A of the Criminal Procedure Act 2009 (Vic). It is questionable whether there is any requirement for the Court to administer the allocutus, but if there is, it may be done at the sentencing hearing.

Conclusion 45Given the doubts I referred to earlier about the circumstances in which the applicants entered their pleas of guilty, I consider a real question arises about the guilt of the applicants. Accordingly, I propose to grant leave to the applicants to withdraw the guilty pleas.

Orders 46The Court makes the following orders: (1) The plea of guilty entered on the 7 June 2012 by Clay Gill to the charge of contravening s 8(2) of the Occupational Health and Safety Act 2000 pursuant to s 26 of that Act in the Application for Order in Matter No IRC1918 of 2011 filed on 21 December 2011 is vacated. (2) The plea of guilty entered on the 7 June 2012 by Earthquake Promotions Pty Limited to the charge of contravening s 8(2) of the Occupational Health and Safety Act 2000 in the Application for Order in Matter No IRC1917 of 2011 filed on 21 December 2011 is vacated. (3) Costs are reserved. (4) The matters are listed for plea and directions before Boland J, President at 9.30am on Thursday 11 July 2013.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2013

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