Morrison v Barry John Cahill [2007] NSWIRComm 114 | Case summary

Morrison v Barry John Cahill [2007] NSWIRComm 114 | Case summary | Zoe

(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. 3 The proceedings commenced in 2004 and a defended hearing of those proceedings commenced in August 2006. The hearing of some days took place during which a number of witnesses gave evidence for the prosecution and an inspection of the site of the incident, which gave rise to the proceedings, was conducted. The prosecutor sought and was given leave to amend the charge brought against the defendant. This occurred on 7 December 2006. The defendant immediately pleaded guilty to the amended charge. 4 The proceedings are therefore constituted by a further amended application for order which is in the following terms: "I, RODNEY MORRISON, Director, Mine and Forest Safety Performance, of the Department of Primary Industries (formerly the Department of Mineral Resources), empowered under Section 106 of the Occupational Health and Safety Act 2000 and by the consent given to me by the Director General of the Department of Primary Industries to institute proceedings in the within matter allege that BARRY JOHN CAHILL, of 2/204 Melville Parade, Como, Western Australia contravened Section 8(1) of the Occupational Health and Safety Act 2000, on 28 November 2002 at Wentworth Road, Broken Hill in the State of New South Wales, in that the said BARRY JOHN CAHILL was a Director of PERILYA BROKEN HILL LIMITED (ACN 099 761 289) ("the corporation") and on that date the corporation, being an employer at the Perilya Broken Hill Mine situated at Wentworth Road, Broken Hill in the State of New South Wales, a place of work, failed to ensure the health, safety and welfare at work of all its employees, and in particular, Darren Andrew, contrary to Section 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The Defendant is taken to have contravened Section 8(1) of the Act by operation of Section 26(1) of the Act.The particulars of the charge are: PARTICULARS OF THE CONTRAVENTION OF THE DEFENDANT

(1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. (2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule. (3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. (4) Despite subsections (1), (2) and (3), a court: (a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and (b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so. (5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate. 11 In the unfortunate circumstances of these proceedings, the primary victim of the Victim Impact Statement has died as a direct result of the offence with which the corporation has been charged. I would apply s 28 so that in the circumstances of these proceedings subsection (3) mandates the receipt of Victim Impact Statement and its acknowledgment and there is no temporal condition imposed as to the time when the Victim Impact Statement may be received. This is to be contrasted with the provisions of subsection (1), which, firstly, creates a discretion as to whether a Victim Impact Statement may be received and, secondly, determines the stage in the proceedings when such a statement may be received. Subsection (3) would therefore appear to have the result that the Victim Impact Statement may be received prior to conviction if that pre-condition has been met. Certainly, in the context of these proceedings, the relevant statements were tendered to the Court by the prosecutor prior to conviction, with no objection being raised by the defendant. 12 Evidence given in the proceedings indicated that Mr Andrew undertook an induction process in October 2002. He commenced work on 21 October 2002. 13 Whilst it is clear that Mr Andrew was killed when his head came into contact with the protruding nip point as the cage was ascending, there is no explanation concerning the reason why, or the circumstances in which, the cage door had opened and Mr Andrew had placed his head outside the cage in a position where he was liable to be struck by the nip point. The evidence of Messrs Rowbotham and Morley is to the effect that Mr Andrew had been shown how to operate the cage, although it was clear that he had not been authorised in any formal sense to do so. Having not been so formally authorised, Mr Andrew should not have been left alone in the cage and required to operate it on the ascent up to the level to which he was travelling. This is, in my opinion, the gravamen of the breach of the Act. 14 As the agreed facts document demonstrates, there had been two prior incidents concerning the operation of the cage, both of which had resulted in remedial action by Perilya. 15 The circumstances of the defendant and his involvement in and about the operations of the mine, including specifically the safe operation of the mine, assumed significance for the purpose of the penalty hearing, for reasons that I shall shortly develop. The evidence was that the defendant was the Director of Operations of Perilya from June 2002 to March 2004. He had commenced employment with that company on 1 February 2000 and had previously worked on a contract basis. Mr Cahill has a long history of employment in the mining industry, particularly at senior managerial level. The totality of the evidence in the proceedings was to the effect that Mr Cahill had a strong commitment to safe mining operations and the safety of all persons performing work at the operations for which he had managerial responsibility. He was intricately involved in the acquisition by Perilya of the mine at Broken Hill at which the incident occurred. This involved a lengthy process including a due diligence investigation which led to the acquisition by Perilya of the mine from Pasminco Broken Hill Mine Pty Ltd ("Pasminco"). The due diligence commenced in 2000 and took two years to complete. The mine was acquired by Perilya on 31 May 2002. 16 Upon acquisition, the defendant determined to make a number of substantial changes to the operation of the mine. Many of these were directed to safety issues, particularly as the injury rate at the mine under the Pasminco operation was said to be four times higher than the national average in the mining industry. 17 The defendant was appointed to the statutory position of mine manager on about 31 May 2002. It was determined that much of the mining equipment and mine infrastructure was in poor condition and needed to be replaced or upgraded. 18 Following an extensive audit of the state of the mine, the defendant determined that it was necessary to shut down its operations completely for a period of four weeks to allow it to be upgraded. Significant improvements, including those directed to safety of operations, were made during this period. Some of the matters that were the subject of rectification or improvement included the upgrading of underground roads, removal of a number of hazards, the removal of accumulated lead dust, the repainting and refitting of the change house and crib rooms, the fitting of seat belts to mobile equipment, the provision of appropriate uniforms, the introduction of laundry facilities for uniforms, the prohibition of smoking, the expansion of designated hard hat areas, extensive mapping of the mining operation, and, significantly for safety, the introduction of formal workplace inspections, job safety analysis and the establishment of a safety committee. External consultants were retained to develop a training program. Furthermore, all persons who were employed by Perilya were required to undergo a pre-employment medical examination and a five-day induction program. The evidence is to the effect that employee safety occupied a significant part of the induction program. A complementary safety management program was also developed by external consultants, which is comprehensive in nature and which extended to all facets of the operation of the mine. This included the holding of regular meetings extending over the whole of the workforce to discuss not only the work that was to be performed during each work period but also the safety aspects associated with the carrying out of that work. 19 The defendant ceased being the resident manager of the mine in late August 2002. However, he retained overall authority as Director of Operations. At the date of the incident, the defendant was residing in Perth. 20 In considering the question of penalty, Mr Hodgkinson SC, who with Mr M Shume of counsel appeared for the defendant, submitted that the Court should have regard to the following factual matters: 1) The defendant was not directly involved in the operation of the mine on the date of the incident. 2) The defendant had, throughout his involvement in the mine, engaged proactively in ensuring the safe operation of the mine and had demonstrated a commitment to safety matters. 3) The defendant had had to labour under some difficulty having inherited a poor mining structure and practices and a less than satisfactory safety record. This involved the necessity to change the operational culture of the mine so as to reduce the pre-existing high injury rate. All of this had to be attended to quickly because many of the problems that were encountered had not been disclosed in the due diligence process. 4) The defendant had closed the mine prior to Perilya commencing operations to allow the safety and other matters to be addressed. 5) The defendant ensured that the approach to safety that he implemented applied throughout the whole of the workforce including those at managerial level. 6) The defendant had put in place a process to ensure that only appropriately qualified persons were employed at the mine and that they had been instructed and trained appropriately by reason of a comprehensive induction process with an emphasis on safety. 7) The defendant had ensured that the procedures and protocols used by Perilya particularly with respect to the operation of the cage and the use of platmen had been appropriately reviewed, particularly after the two prior incidents. 8) The regular safety meetings and the involvement of various levels of management and the workforce as a whole were an example of the commitment by the defendant to safety and the manner in which he ensured that commitment pervaded the totality of the operations of the mine. 21 The Court was informed by the defendant's counsel that the defendant had agreed to pay the prosecutor's costs in the sum of $45,000. 22 It was submitted on behalf of the defendant that he should have the benefit of an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. S 10 is in the following terms: 10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 23 Specifically, it was submitted that the charge be dismissed under s 10(1)(a). 24 The application of this provision to prosecutions brought under the Act, and in particular to prosecutions brought against persons caught by s 26 of the Act, has been the subject of consideration by a Full Bench of this Court in Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117. Those proceedings arose out of the collapse of the roof of an underground mine consequent upon the unauthorised removal of safety structures. 25 After citing authority requiring "cogent reasons" to be given in the exercise of any discretion to apply the section, the Full Bench approached the matter by reference to "the culpability" of the personal defendant. At [133] and [134] the Court (Walton J, Vice-President, Boland and Staff JJ) said: 133 In Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal and Coke Pty Ltd and Anor (2001) 105 IR 348, in which Walton J, Vice President determined to apply s 10, his Honour referred to the judgment of Wright J, President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38] and [39] where the President considered the construction of s 50 of the Occupational Health and Safety Act : 178 In assessing the culpability of the second defendant, it is also necessary to consider the application of s50 of the Act. Wright J, President, discussed the construction and implications of s50 of the Act in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38]. His Honour's construction of the section, with which I agree, was as follows at [38]:

134 Walton J then proceeded in Berrima Coal and Coke to consider the culpability of the personal respondent who was in a very similar position to Mr Foster, being a mine manager with duties and responsibilities under the Coal Mines Regulation Act 1982. Taking the same approach in this case, we also consider the culpability of the personal respondent was less than the corporate respondent. Mr Foster could not, by any means, be considered the alter ego of the corporate respondent. 26 In determining to apply s 10 in the circumstances of those proceedings, the Full Bench balanced as against the undoubted responsibilities that reposed upon the personal defendant as a mine manager a number of "countervailing facts". These included the short time in which that defendant had been in his managerial role, that the defendant had carried out underground inspections and noticed nothing untoward concerning the state of the roof, that he had "conscientiously and diligently" attended to his safety responsibilities, that there was nothing that should have alerted that defendant to a risk arising from the instability of the roof and that he had not been involved "in the critical planning stages where decisions were made about assessment procedure in relation to mining conditions…." (At [139]). 27 The Full Bench considered that the personal defendant's culpability was less than that of the corporate defendant in terms of the objective seriousness of the offence and determined to apply s 10 taking into account also the defendant's prior good record and his good character. 28 A Full Bench of this Court also determined to apply the provisions of s 10 of that Act in Newcastle Wallsend Coal Company Pty Ltd v Inspector McMartin [2006] NSWIRComm 339. 29 In a joint judgment, Walton J, Vice-president and Boland J said: 618 Although we are mindful of the Full Bench's decisions to the effect that the discretion available under s 10 would be rarely available in significant offences against the legislation (see WorkCover Authority (NSW) v Profab (2000) 49 NSWLR 700; 100 IR 64 and WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101), it is important to bear in mind that each matter requiring consideration under s 10 needs to be assessed in the light of its own particular circumstances: WorkCover (NSW) v Ecolab Pty Ltd (1999) 90 IR 413 at 430 and Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 at [174].

621 We would assess the seriousness of the offences in these appeal proceedings as considerably greater than those in Morrison v Powercoal . However, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant: WorkCover (NSW) v Walco Hoist (No 2) (2000) 99 IR 163. In our view, in this case, Mr Romcke's personal culpability is markedly less than that of NWCC. Although it is true that Mr Romcke was present and involved in the planning of the development of the mine, was aware of the risk of inrush of water from the old workings, and failed to be in possession of all available information regarding disused excavations or workings in the vicinity of the mine, the extent to which he was involved in the actual commission of the offence was significantly limited. Although he has been found guilty by virtue of the deeming provisions of s 50(1), his criminal culpability must be regarded as diminished by virtue of the fact he left the role of mine manager with NWCC on 28 October 1994. 30 It will be seen that this involves confirmation of the approach referred to in Morrison v Powercoal (No 3) of assessing and comparing the culpability of a personal defendant with that of a corporate defendant. 31 The prosecutor submitted that the application of s 10 of that Act was available to the Court within the Court's discretion. In so submitting, however, Mr P Strickland SC, who appeared with Mr D O'Neil for the prosecutor, said that the Court should take into account that the defendant was a director of Perilya, was aware of difficulties concerning the operation of the cage because of the prior two incidents and had received personal representation about its operation and about the use of platmen from Mr Butcher, as is referred to in the agreed facts document. 32 However, these matters needed to be counterbalanced against a number of indicia that might operate in favour of the application of the provision. These included firstly that at the time of the incident itself the defendant was no longer the resident manager and was in fact on leave. Furthermore, the defendant had had a limited opportunity to become completely familiar with all aspects of the mine, he had acted conscientiously and diligently prior to the incident, he had taken steps to put in place a system which identified "near miss" incidents within 24 hours of their happening, he had approved a system of re-authorising all users of the cage after the second incident even though those steps had not been properly implemented and there had been nothing that alerted the defendant to the fact that the system had not been implemented. It was therefore relevant that the defendant was not personally responsible as statutory mine manager as at the date of the incident. In addition to these matters, the prosecution drew the Court's attention to the fact that this defendant has no prior convictions for any offence under the Occupational Health and Safety legislation and he personally has an exemplary record with respect to his commitment to safety in his prior positions. 33 Mr Strickland emphasised that the prosecutor, on behalf of the Department of Primary Industries, should not be seen to have created any precedent with respect to the attitude of that Department to any other prosecution for breach of the Act brought against any personal defendant who was absent from a place of work at the time that any incident occurred. As it is clear from the authorities that each case must be decided on its own particular facts, the submissions made by the prosecutor in these proceedings must be confined to the particular circumstances of these proceedings. Furthermore, there may be a differential approach to the assessment of culpability depending upon whether a personal defendant is a director or concerned in the management of the corporation. 34 I proceed on the basis, as is well known, that in applying s 10 of the Crimes (Sentencing Procedure) Act and in particular in considering the matters which are mandated by subs (3), it is not essential that each of those matters should necessarily apply before any discretion may be exercised. In the context of these proceedings the offence committed by the corporation and therefore the offence with which this defendant is charged is, viewed objectively, of a most serious kind and could never be described as "trivial". However, there can be no doubt that this defendant is of good character and has an unblemished record concerning his commitment to occupational health and safety matters. 35 This leaves for consideration paragraphs (c) and (d) of subsection (3). In considering "extenuating circumstances" I must have regard to the fact that the offence is an absolute offence and that, save for the observations of the Full Bench in authorities such as Morrison v Powercoal (No 3), I would have been reluctant to consider the personal culpability of the defendant and compare it with that of the corporate defendant. That is, on one view of it, the personal defendant being deemed to have committed the same offence as the corporate defendant, it is only those extenuating circumstances that would apply to the offence committed by the corporate defendant that would apply to the personal defendant. This is, as I have said, in the context of an absolute offence. However, guided by Full Bench authority I take into account the several matters that were submitted on behalf of the prosecutor as enabling the exercise of discretion. Under paragraph (d), I also take into account the impact that this incident has had on this defendant and his family, as attested to in the evidence, and the fact that he has agreed to pay the prosecution costs of $45,000. 36 The defendant submitted that I should take into account as a relevant matter under s 10(3)(d) of the Crimes (Sentencing Procedure) Act the fact that the defendant entered a plea of guilty immediately upon the amendment of the charge. The prosecutor submitted that this was a matter relevant to be taken into account under s 10(3)(d) but submitted that it was not significant because of the timing of the plea of guilty. However, the prosecutor's submission needs to be balanced against the fact that the prosecutor was granted leave to amend the charge some time after the commencement of the substantive hearing of the proceedings and immediately thereafter the defendant entered the plea of guilty. I shall take this matter into account, albeit to a limited degree, in determining whether to exercise discretion under s 10. 37 I accept the submissions made by counsel for the defendant. I acknowledge the submissions properly made by the prosecutor. I am of the opinion that the exceptional matters that require to be identified before a discretion can properly be exercised under s 10 of the Crimes (Sentencing Procedure) Act exist in the circumstances of these proceedings. Accordingly, although I find that the defendant is guilty of the offence with which he is charged, I direct pursuant to s 10 (1)(a) of that Act that the charge be dismissed. I make no order as to costs.

Morrison v Barry John Cahill

At a glance

Court

Decision date

Before

Source

Judgment (128 paragraphs)

Parties

Cases Cited (7)

Cited By (3)