707 Mr Porteous was prosecuted on twelve charges. Each of them related to offences both under ss 15 and 16 of the Act against each of the corporate defendants with respect to the three types of charges levelled against each of the corporate defendants. Mr Porteous was found guilty of each charge, but only referrable to those particulars established against each of the corporate defendants and in the case of four of the charges only with respect to particulars covering the period of Mr Porteous' employment as General and Statutory Mine Manager. Mr Porteous was the Statutory Mine Manager at Gretley on 14 November 1996 and had been appointed Mine Manager on 28 October 1994.
708 In general terms, I agree with the conclusions of the majority judgment with respect to the involvement of Mr Porteous as a person concerned in the management of each of the corporate defendants and with their Honours' determination of the appeals brought by Mr Porteous, save for one critical matter. That is, that Mr Porteous could only be found guilty with respect to the contravention, by each of the corporate defendants, of ss 15 and 16. The conclusion to which I have come would severely circumscribe the breaches of which Mr Porteous would thereby be guilty for the reasons that I have earlier set out. I would conclude, therefore, that it is only those breaches established against each of the corporate defendants that Mr Porteous is deemed to have contravened.
709 This would have a resultant impact on the imposition of any penalty.
710 I would adopt the same approach to penalty as that of Staunton J who applied the principle of the totality to the planning, research and assessment charges and dismissed the proceedings with respect to the remaining charges under s 10 of the Crimes (Sentencing Procedure) Act 1999.
711 I would impose a penalty of $35,000 for each of the four offences found, that is one each under s 15 and s 16 with respect to both corporate defendants. However, I would reduce the totality of the penalties to $40,000 having regard to the principle of totality. Furthermore, I would discharge Mr Porteous without conviction and penalty with respect to four of those charges under s 10 of the Crimes (Sentencing Procedure) Act. This would leave a total penalty of $20,000.
Mr Romcke
712 Mr Romcke was the General and Statutory Mine Manager at Gretley between June 1993 and October 1994. It appears that he had no further involvement in the management of the operation of the mine on behalf of either of the corporate defendants after that date.
713 Staunton J held that as Mr Romcke was employed in a period covering the planning, research and assessment charges, there was "a practical connection" between him and the "acts or omissions making up the offences involving the corporations."([907]). It was on this basis that Staunton J found that Mr Romcke was guilty of certain of the particularised breaches that occurred during that period.
714 For reasons that I have already given, I have concluded that no breach of ss 15 or 16 of the Act was committed by either corporate defendant until 29 October 1996. Accordingly, Mr Romcke was not in employment and, therefore, not concerned in the management of either corporation at the time that any offence under ss 15 or 16 was committed.
715 This raises the question whether s 50 can be construed so as to deem a contravention of a section of the Act if the personal defendant was concerned in the management of a corporation at a time that was prior to the contravention but participated in an activity or conduct that eventually led to the contravention.
716 The resolution of this question involves a matter of statutory construction. I do not apprehend that there is any decided case that has particularly determined this issue.
717 The relevant authorities with respect to s 50 are discussed comprehensively in the majority judgment and it is not necessary that I either refer to them in any detail or repeat what has been set out. I do wish, however, to refer to two judicial observations that, in my opinion, focus attention on the legislative purpose of s 50 and assist in determining the manner in which its provisions are to be construed.
718 In the judgment under appeal, Staunton J said:
"The fundamental principle behind s50(1) it seems to me, is to impose a liability on those persons whose acts or omissions are related to the offence of the corporation. In other words, s50(1) does not deem a director or a manager to have committed an offence simply because the corporation committed it. Section 50(1) imposes a liability because the acts or omissions of the director or manager are complicit in the activities of the corporation that created the breach. That much is abundantly clear when one has regard to the defences available under s50(1)(a) and (b). Those defences go directly to the personal role, function or acts of or by a director or manager of the corporation that, when considered, would establish that he or she was not in a position to influence the conduct of the corporation in relation to the breach or, being in the position, he/she used all due diligence to prevent the breach. As was said by Fisher P in Inspector Cameron v Wanless: Fisher P: 8 October 1997: CT 1127/96 at p16:
'The act under s50 seeks to mark our and underline managements particular responsibility for safe working ...'"([829])
719 In Powercoal Pty Ltd and Foster v Industrial Relations Commission of NSW and Morrison [2005] NSWCA 345, Spigelman CJ in the New South Wales Court of Appeal said of s 50, "The Court is concerned with a person who has a level of complicity in the commission of the offence by the corporation. Such complicity arises in a context where persons in a managerial role could have taken steps to ensure that the object of the Act are achieved." ([112]).
720 These two extracts highlight the opposing approaches to the construction of s 50 that might appropriately be taken. Staunton J has referred to the activities of the corporation that created the breach in terms of complicity, whereas Spigelman CJ has referred to complicity in the commission of the offence. For the purpose of the discussion, I note the finding of Staunton J that Mr Romcke had a significant involvement in the decision of the corporate defendants to rely upon the plans and other material produced by the Department of Mineral Resources, albeit that they contained grave errors.
721 In approaching the construction of s 50, I shall have regard to the beneficial nature of the Act in establishing a regime in New South Wales for the prevention of workplace injuries and for the enhancement of attention to occupational health and safety matters. On the other hand, it is necessary also to have regard to the fact that the Act predominantly creates a criminal regime, so that care needs to be taken so as not to unduly or inappropriately expand the criminality intended to have been created by the legislature.
722 These matters were referred to in the joint judgment of Gibbs CJ, Mason, Wilson and Dawson JJ in the High Court of Australia in Waugh v Kippen (1986) 160 CLR 156. At 164-5, the Honours said:
"A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with furthering industrial safety. In that character it should be construed 'so as to give the fullest relief which the fair meaning of its language will allow', to use the words of Isaacs J. in Bull v. Attorney-General for New South Wales (1913) 17 CLR 370, at p 384; cf. also Pearce, Statutory Interpretation in Australia , 2nd ed. (1981), pars. 187-191, pp. 137-141. On the other hand, there is the consideration, to which McPherson J. referred, that a breach of cl. 25 is attended with a penal sanction. The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen (1976) 135 CLR 569, at p 576 as follows:
'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law , 7th ed. (1971), pp 529-534. The rule is perhaps one of last resort'.
In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the Court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board [1951] AC 639, per Lord Porter at p 650; John Summers & Son Ltd. v. Frost (1955) AC 740, per Viscount Simonds at p 751; McCarthy v. Coldair, Ltd. (1951) 2 TLR 1226, per Denning L.J. at pp 1227-1228. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidents of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd . (1967) 116 CLR 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action."
723 The basic problem in construing s 50 in the context of Mr Romcke's circumstances relates to the temporal aspect in terms of whether or not it is necessary that the personal defendant be concerned in the management at the time of the actual contravention or was concerned in the management of the corporation at a time when there was conduct or a failure to act which brought about the contravention. In an abstract sense, either approach to construction may bring about circumstances that are manifestly unfair. A corporation might embark upon a course of action that would ultimately create a risk of injury constituting a breach of the Act, as was the case in these proceedings. A person who was appointed a director subsequent to the conduct which initiated the chain of events leading up to the breach and who was a director at the time that the breach occurred might have thereby inherited a potential liability under s 50. On the other hand, a person may have hypothetically flagrantly or deliberately brought about a situation leading inexorably at a later stage to circumstances creating a breach by a corporation of a provision of the Act who might otherwise escape prosecution because he or she had left the corporation prior to the actual breach occurring. On one view of it, the opening words of s 50 do not produce any answer. Likewise, the defences which are contained within s 50(1)(b) and (c) may not be indicative of any answer. In the case of Mr Romcke, an obvious defence would be that he was not in a position to influence the conduct of the corporation as at 29 October 1996 because he was no longer in employment or in any way associated with the management of either corporate defendant. The onus of so satisfying the Court would, of course, rest on the personal defendant, presumably to the civil standard. Whichever approach to construction is adopted will not resolve the problem for the newly arrived director or manager who may be placed in a position of potentially becoming a personal defendant under s 50 of the Act by reason of some conduct which may have occurred, as was the case here, many years before.
724 The provisions of s 50, on a prima facie basis, do not include any notion that the section ought only to be applied in circumstances where there is complicity either in conduct leading up to the breach or in the very breach itself. Without this gloss which may be gleaned from the judgments of the Chief Justice and Staunton J, to which I have referred, a very wide power indeed would be conferred on persons entitled to prosecute for breaches of the Act, and it would be left entirely to the good common sense of such persons as to what circumstances might expose an individual to prosecution. Because of concerns that I have about the "good common sense" of the prosecutor in these proceedings, it might be appropriate for the legislature to refine the provisions of s 50, or its equivalent in the current Act, so as to make its intention clear. Obviously, there are pragmatic and just considerations for approaching the circumstances in which guilt might arise by reference to the question of "complicity" as suggested by the Chief Justice and Staunton J, albeit that there may be some tension as to the precise complicity, in a temporal sense, which is necessary.
725 For my part, I am content to apply the qualification of "complicity" as being an appropriate qualification in assessing guilt under s 50, although I concede that no such words are to be gleaned from the provisions of s 50.
726 This leaves, for consideration, whether this purposive approach to construction should be further refined by confining the complicity in the breach temporally to the time when or during which the breach was committed or whether complicity in activities of the corporation as referred to by Staunton J whenever they occurred and which may have occurred prior to the actual breach is permissible.
727 Having regard to the beneficial nature of the legislation overall, the objects of the Act and what I perceive might have been the intention of the legislature, I would adopt a construction which would not limit the application of s 50 to complicity in activities of the corporation which activities necessarily occurred at the time of or during any period that constituted a breach.
728 Accordingly, as it has been clear on the evidence in the proceedings as found by Staunton J that Mr Romcke was concerned in the management of the corporation at a time when the corporation's conduct created circumstances that would assuredly lead at some stage in the future to a breach and Mr Romcke was complicit in that conduct, the provisions of s 50 would prima facie apply to him.
729 This then leaves for consideration whether or not either of the defences referred to in (b) and (c) of s 50(1) may be applied.
730 Obviously, the relevant defence for Mr Romcke is that contained within (b). The words used here are more suggestive of a lack of temporal connection with the time at which or the time during which a breach actually occurred. The defence refers to the conduct of the corporation "in relation to" its contravention. It is not necessary for me to go to authority which points to the wide meaning of the words "in relation to". I would read these provisions as referring to the conduct of the corporation by reference to the contravention of a provision of the Act in a causal sense but not in a temporal sense. That is, it would be necessary for Mr Romcke to satisfy the Court that he was not in a position to influence the conduct of either corporate defendant in relation to the relevant breaches at any time that the conduct occurred, even though that conduct may have preceded the time at which or the period during which the breach occurred. Perhaps, this conclusion follows logically from the in principle approach to construction that I have adopted.
731 On this basis, it would be necessary for Mr Romcke to satisfy the Court that he was not in a position to influence the conduct of the corporation which gave rise ultimately to the breach ("in relation to its contravention of the provision"), assuming that he was complicit in that conduct.
732 I agree with the conclusions in the majority judgment that Mr Romcke was a person concerned in the management of NWCC and not of OPL, for the reasons given. I also agree with their Honours' reasons that Mr Romcke has not proven, having called no evidence, that he was not in a position to influence that part of the conduct of NWCC constituted by the reliance upon the faulty maps and documents provided by the Department of Mineral Resources and a failure to make proper and adequate enquiries concerning the accuracy of that material. Accordingly, I would deem Mr Romcke, by reasons of the provisions of s 50, to have contravened ss 15 and 16 of the Act in the manner in which I have concluded. Those provisions have been breached by NWCC.
733 I would agree with the approach to sentencing adopted in the majority judgment and that the charges against Mr Romcke be dismissed for the reasons therein given.
Conduct of the prosecutions
734 It is then necessary to deal with the question of costs. Before doing so, however, I wish to make some observations about the manner in which the proceedings were constituted and the manner in which they were conducted by the prosecutor. I should state at the outset that I raise these matters for two reasons. Firstly, in my opinion, they are relevant to the question of costs. Secondly, for reasons that I shall shortly state, I have grave concerns about the manner in which the prosecutor has formulated the charges and has conducted himself in and about the prosecution of the proceedings. In my opinion the proceedings constitute an undue waste of the resources of this Court, an undue impost on the finances of the State of New South Wales, an undue expense burden on all of the defendants and, arguably, reflect adversely on the administration of significant beneficial legislation.
735 In essence, the factual background to these proceedings is that when preparing for mining operations and before commencing those operations, the corporate defendants relied upon maps and other documentation produced by the Department of Mineral Resources to identify the location of abandoned workings that adjoined the relevant mining lease. At all times, the corporate defendants were aware of the existence of the abandoned workings, their general proximity, that they were full of water and that if breached would have compromised the safety of persons working in the mining operations. As it transpired, those maps were wrong.
736 Mistakenly relying on the accuracy of those maps and documents, the corporate defendants proceeded inexorably on a path that led, some two years later, to the abandoned workings being breached with tragic results.
737 The failure to ensure the health and safety of persons working in the mining operations occurred at a time when the risk of injury was transformed from one which was merely potential to one which had a greater actuality. As has been held by all judges on appeal, this happened on 29 October 1996. The holing in occurred on 14 November 1996. The proceedings were commenced against a background where there had already been an enquiry conducted by an experienced retired judicial officer and a coronial enquiry. The prosecutor, therefore, had a great deal of information available to him and to those who were advising him about the circumstances surrounding the incident. On one view of it, the "criminality" of both corporate defendants may be characterised by reference to the holing in of the adjoining abandoned workings. It was this event, with tragic consequences, which was the manifestation of the risk created by the mining operations, particularly after the 50-metre barrier had been breached on 29 October 1996. The Act creates what has been described as absolute offences. That is, once the employer or other person has brought about a situation where the health and safety of persons working in the operation are at risk in a relevant sense, there will be a breach, subject, of course, to the defences available under s 53. If proceedings had been instituted which were designed to encapsulate the "criminality" as I have described it, it would only have been necessary for each of the corporate defendants to have been charged under ss 15 and 16 of the Act with breaches constituting the holing in of the adjoining abandoned workings. As the holing in was caused by the mining operations, there could be no doubt that the corporate defendants had, in a causal sense, brought about each breach. Accordingly, the only matters for consideration would have been those raised by s 53. The onus of satisfying the Court about the matters covered by s 53 would rest with the defendants. All that would have been necessary for the prosecution to establish was that mining operations were being conducted by both corporate defendants, that the holing in occurred and that some persons were killed and others injured. It is a prosecution case that should have taken no more than a few court hearing days to establish.
738 Instead, for reasons that have not been explained, the prosecutor issued 12 charges against the corporate defendants, the details of which I have set out and referred to in some detail earlier in these reasons for judgment. There must have been some reason why the prosecutor decided to break up the three charges in the manner in which he did, although this reason has not been shared with the Court. There cannot be any good reason why different employees are mentioned in each type of charge. Surely, the persons affected when the inrush occurred were a finite group. Perhaps, if the totality of the criminality needed to be displayed, all of the persons who worked during the mining operations could have been selected by name. I would have thought, that once a significant number of persons were at risk, this would be sufficient to allow a court to assess the objective seriousness of the offence.
739 The period selected for the planning, research and assessment charge covers the totality of the period commencing with the erroneous depiction of the location of the abandoned workings and ending with the holing in. However, that charge is confined to the planning, research and assessment part of the defendants' activities. The remaining charges cover much narrower periods. I am at a loss to understand why the system of work charge could not have extended to 14 November and why the period 13 - 14 November was reserved for the night shift charge only. That is, the system of work charge could just as conveniently have covered the following day, namely 14 November 1996, and could just as easily have alleged the actual holing in, this being the only significant point of difference in the factual recitals. There is, of course, a great deal of commonality in terms of the particulars of each breach as set out in each charge.
740 In the absence of any explanation as to why the prosecutor has sought fit to present the multiplicity of charges in this manner, it is only appropriate to comment on the consequences. One of the consequences, obviously, is that the proceedings were rendered much more complex and the task of the trial judge much more difficult. Those difficulties obviously had to be met by the legal representatives, who at least, presumably, were being paid for their efforts. It follows that another consequence was greatly expanded legal fees expended by all parties, including the team of lawyers representing the prosecutor. In this latter regard, I note that the prosecutor is an inspector with the WorkCover Authority of New South Wales. It may be assumed that the prosecution was brought in some way by Government or some instrumentality of Government. Indeed, the Act requires prosecutions be brought by a limited number of people. There is no suggestion that these were proceedings brought on behalf of a trade union. Accordingly, the Government purse must, in some manner, have suffered as a result of the proliferation of the proceedings and the vast expenditure of legal costs.
741 Indeed, there were 70 hearing days involved in the substantive proceedings and 5 days involved in the sentencing and costs proceedings. As I understand it, this is in addition to the hearing days involved in the various interlocutory applications brought before Staunton J and before Wright J, President. When one takes into account all of the legal costs associated with the preparation of the proceedings, the total costs to all parties will well exceed one million dollars.
742 Staunton J was concerned with the manner in which the charges had been formulated and the multiplicity of charges.
743 In the substantive judgment, Staunton J, when discussing in particular the night shift and system of work charges said:
"Those differences are what I would describe as relatively minor differences in the proof of facts required as between the two offences identified. But it has to be said those differences are more reflective of the continuing nature of the offences alleged in the first instance rather than them being substantively different offences. In other words, relying on the prosecutor's contentions, allowing employees to work in 50/51 panel in IRC Matter No. 3198/00 was, all other things being equal, if established in IRC Matter No. 3199/00, always going to be a continuing offence regardless of whether the holing-in had occurred or not. It was, on any view, part of the overall system of work. The fact that the prosecutor pleads it again, and this time denotes it as a 'night shift' charge does not, it seems to me, add one iota to the defendants' ultimate liability as far as the substance and objective seriousness of the defendants conduct. [119]
"While the prosecution may say that such an approach is permissible within the widest construction of s49A of the OHSA 1983 , it is an approach that should be discouraged. It carries with it the danger of offending against the rule of double jeopardy. As well, it seems to me that it serves no useful purpose within the context of the Act or s49A in particular to break up the alleged contraventions of the defendants, relying predominantly on a temporal component with duplication of alleged contraventions simply to add to or create additional offences. This is particularly so where the prosecution is faced with a factual situation of continuing workplace activity encompassing those alleged contraventions. Further, it has to be asked whether such a pleading device materially adds to the substance and objective seriousness of the offences charged. And it is no satisfactory answer, it seems to me, for the prosecution to argue that any duplicity that arises can simply be addressed in the sentencing process. In this respect, I can only endorse the sentiments expressed by Haylen J in Robert Darcy Coombs v Patrick Stevedores Holdings Pty Limited [2004] NSWIRComm 77, particularly at paras [5] and [6] as follows:
'I have recently observed that this part of the Court's jurisdiction is something of a hybrid utilising aspects of pleading in cases of common law negligence within a criminal jurisdiction and involving potentially very high penalties (see WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs & ors [2003] NSWIRComm 452; 12 December 2003). This unusual aspect of the jurisdiction, however, provides no warrant to avoid simple and precise pleading and provides no authority for lengthy and multiplicitous particularisation. Over particularisation of a prosecution case inevitably leads to an ill defined defence case where wide ranging matters are raised in cross-examination or in evidence generally only to be discarded by the end of the case.'
... ...
In making these comments, I acknowledge the often difficult task which faces a prosecutor, especially in circumstances where a workplace accident highlights a variety of risks to employees which are available to be pleaded under the provisions of the Act. Nevertheless, there is a public interest in the prosecutor focusing attention on the most serious aspects of those risks when commencing proceedings in the Commission in Court Session. It is not infrequent that the Court is involved, even where there is a plea of guilty to a limited number of particulars, in an extensive hearing and significant time taken in deliberation where the additional particulars or a number of them do not add materially to the substance and objective seriousness of the offence. When that occurs, justice is not served: the resources of the parties are increasingly devoted to minutiae and ultimately the Court is required to consider a case which may not have required such extensive attention.' [120]
"The problems posed for the Court by the form of the pleadings was also recently touched upon by Peterson J in WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 at paras [3] and [4] and Kavanagh J in WorkCover Authority of NSW (Inspector Maltby) and anor v Abigroup Contractors Pty Ltd and Luis Bustamante [2003] NSWIRComm 35 at para [12]. [121]
"To all of the above comments, I would also add the important consideration of public interest. There is the need, in my view, for a prosecutor to weigh the additional time and cost that such overlapping and repetitive pleading creates against the need to charge a person with an offence that balances time and cost considerations against the genuine public interest in pursuing charges that properly reflect the overall criminality of the defendants' conduct. Duplicating contraventions over differing time periods in the context of continuing offences as part of a system of work is not, it seems to me, evidence of such an approach." [122]
744 Furthermore, in her separate judgment ([2005] NSWIRComm 31) dealing with sentencing and costs, Staunton J dealt with an application by those personal defendants (called DG2) for the payment of indemnity costs. Her Honour said:
"In support of indemnity costs, counsel for the DG2 defendants also raised the manner in which the charges were framed. That is, there was considerable overlapping of the offences that unnecessarily prolonged the hearing and the costs borne by the defendants. In support of that submission reference was made to my comments in SJ [112], [119] and [120]. I have earlier referred to those passages in this judgment in relation to my penalty considerations. In my view that is the context in which those comments rightfully belong. While such an approach to framing charges is to be actively discouraged in future prosecutions, the problems it gives rise to go more to assessing a defendant's overall criminality within the context of a continuing system of work as well as issues going to duplicity and double jeopardy. In saying that, I acknowledge it is conceivable that there may be circumstances where the framing of charges may be grounded in vexatious or irrational conduct on the part of the prosecutor warranting indemnity costs to a successful defendant. Such is not the case in the circumstances before me. [365]
"Any costs order to be made will be on a party/party basis. [366]
"Both groups of defendants submit that any order for costs in favour of the prosecutor should be discounted for a number of reasons. The first is the multiplicity of pleadings issue raised on the same bases as the DG2 defendants. For the same reasons I reject that contention. [367]
"Second, counsel for the corporate defendants as well as Mr Porteous and Mr Romcke pointed to two letters sent to the solicitors for the prosecutor on 1 August and 7 August 2003 respectively. I do not propose to set out the letters in full. In essence the letters, on a without prejudice basis, and on terms, stated a willingness on the part of the corporate defendants to enter a plea of guilty to 'all six charges against each company'. The main condition for such an offer was that the prosecutor dismiss all charges against the personal defendants. [368]
"The relevant passage from the correspondence of 1 August 2003 identifies the basis for the offer made:
'We have conferred with the solicitors for the other defendants, and they are aware of this letter.
As you are aware the defendant companies are most concerned about the effect on the health and welfare of the individual defendants. These are tragic matters about which, regardless of criminal liability or lack of it, everyone feels extremely deeply. It is the defendants' desire neither to exacerbate the tragic loss that the families of the victims are undergoing, nor to hinder any capacity for closure, at least in part, of these issues. It is, as you are more than aware, important, also, to seek to avoid these families having to re-live these dreadful events any more than is necessary.' [369]
"Neither the prosecutor or his instructing solicitors replied to that correspondence. [370]
"The DG1 defendants placed this material before the Court in their submissions on costs and in the context of my comments on the record in the substantive proceedings on 16 September 2003 where I stated:
Now, I wish to put onto the record that I asked to see Mr Crawshaw and Mr Rothman and Mr Hodgkinson in chambers. The purpose of that was to simply express my concern about the length of time these proceedings are taking, the fact that there are a considerable number of charges, some 52 which the prosecution has sought to lay in respect of both the corporate defendants and the natural person defendants before me, and that those charges are, as it were, allocated across various periods of time as denoted in the charges.
The evidentiary burden in respect of all of those matters, both for the prosecution to discharge and for the defendants to meet, is considerable on any view. It places a great burden on all concerned to both sensibly and from evidentiary considerations grapple with all of those matters.
There are also what I consider to be important public interest considerations that must be considered in proceeding in respect of 52 charges in relation to the defendants before me, having regard to significant public interest issues of both cost and time. They are matters which I should add are considerations which the DPP is required to consider, if one goes and consults the DPP's practice direction guidelines in the criminal practice procedure manual of this State. I think if anybody wishes me to dig it out, I will be happy to do so.
Accordingly, all I can do is simply express my view that the parties should give some consideration to the matters that I have just raised on the basis of some rationalisation of some of the matters before me. That is a matter that I think should be sensibly considered by all the parties before me.
It's a matter for the parties as to whether they do. I'm not in any way directing that to occur. I'm simply making that comment. It's a matter for the parties as to whether they wish to take note of my comments and act upon them. All I can do is wait to be advised if any decisions are taken in relation to any comments I've made. [371]
"As is evident, no steps were taken that could be said to have acted upon the comment I made at the time. All charges proceeded, were vigorously prosecuted, and likewise defended. [372]
"A prosecutor's discretion is wide but not totally unfettered as to those matters that should be taken into account in the ultimate decision to prosecute. As is reaffirmed in the Prosecution Guidelines of the Office of the DPP (NSW): Guideline 4, which relevantly says:
'It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute "wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest". That is still the dominant consideration.
(per Sir Hartley Shawcross QC, UK Attorney General and former Nuremberg trial prosecutor, speaking in the House of Commons on 29 January 1951.)
That statement applies equally to the position in New South Wales. The general public interest is the paramount concern. The question whether or not the public interest requires that a matter be prosecuted is resolved by determining:
(a) whether or not the admissible evidence available is capable of establishing each element of the offence;
(b) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not
(c) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest.
The first matter requires no elaboration: it is the prima facie case test.
The second matter requires an exercise of judgment which will depend in part upon an evaluation of the weight of the available evidence and the persuasive strength of the prosecution case in light of the anticipated course of proceedings, including the circumstances in which they will take place. It is a test appropriate for both indictable and summary charges. (emphasis added)
The third matter requires consideration of many factors which may include the following:
......
(k) the likely length and expense of a trial;
......
The applicability of and weight to be given to these and other factors will vary widely and depend on the particular circumstances of each case.' [373]
"As well, Guideline 7 re discontinuing prosecutions provides, inter alia:
'Accused persons or their representatives ... may make application that a charge or charges be discontinued ... Such applications are to be dealt with expeditiously.
In considering and preparing such applications, regard is to be had principally to the three tests set out in Guideline 4 bearing in mind any additional considerations of fact or argument put forward by the defence.' [374]
"I accept that the DPP prosecution guidelines are not directly applicable to the offences I had before me. But it is self evident, in my view, that as prosecuting guidelines they provide an acknowledged approach to criminal prosecutions in this State, be it for indictable or summary offences. It was those guidelines to which I was referring in my comments on 16 September 2003. In any event, the prosecutor, in my view, was required to consider the offer made by the corporate defendants in August 2003. As I was advised, neither the prosecutor or his instructing solicitor responded to that correspondence received from the corporate defendants' solicitors. Accordingly, given that all prosecutions continued, it can safely be assumed it was rejected. [375]
"The issue now is whether or not the costs order sought by the prosecutor should be discounted because of its failure to act on the offer made by the corporate defendants in August 2003. I think not. The decision ultimately was the prosecutors to make. Somewhat on that point and in support of the view I have expressed as to the role of the prosecutor I refer to the decision of the High Court in GAS v R and SJK v R (2004) 206 ALR 116 ( Gleeson CJ, Gummow , Kirby , Hayne , Heydon JJ). In that matter the Court was considering an appeal from the Court of Appeal of Victoria which had allowed prosecution appeals against a sentence imposed at first instance. The ground of appeal to the High Court was that the Court of Appeal erred in allowing the DPP to appeal in a manner said to be contrary to a plea agreement at first instance. In setting out the relevant principles affecting plea agreements the Court said, inter alia, at 125:
'First, it is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person. The judge has no role to play in that decision.
......
Secondly, it is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely... Once again, the judge is not... involved in the decision.' [376]
"It is also relevant on the point to note that the offer made by the corporate defendants was conditional on charges against all of the personal defendants being discontinued. At the conclusion of the proceedings I found offences proved against three of the eight personal defendants." [377]
745 It is obvious from the extracts that I have set out above that Staunton J was concerned about the manner in which the charges had been drafted, about the multiplicity of the charges and the complexity that they created. I have already alluded to some of the consequences. Of course, another consequence is the multiplicity of penalties that might be levied against all of the defendants by reason of the multiplicity of charges.
746 The material that I have extracted also highlights the fact that the corporate defendants agreed to plead guilty to all charges if the prosecution dropped the proceedings against the personal defendants. That offer was made in August 2003. That is, it was made 2 days after the substantive hearing, which ultimately lasted 70 days, had commenced. It is conceivable that had the prosecutor accepted that position there would have been a saving of at least one million dollars in legal costs suffered by all of the parties. The decision to reject that offer must only have rationally been made on the basis that the prosecutor wished to secure convictions against the personal defendants, and for no other reason. Irrationally, of course, there are other reasons associated with costs earned by legal practitioners. I do not suggest, for one moment, that this is the situation, because I simply do not know. It could not have been revenue based because the legal costs incurred in pursuing the proceedings solely for the purpose of securing convictions against personal defendants would far have outweighed any penalties in the aggregate which could reasonably foreseeably have been imposed on those personal defendants.
747 The position is exacerbated by the gross discourtesy shown by the prosecutor and by the prosecutor's solicitor, Mr M Carrick of the law firm Geoffrey Edwards & Co, in not replying to that letter. Whatever may be the position concerning prosecutors in legal proceedings, certainly legal practitioners are bound by the standards of professional conduct to respond to correspondence from other legal practitioners with respect to a matter, even if only to indicate that there would be no response to the offer.
748 Finally, the extract which I have set out above demonstrates that Staunton J in the public interest endeavoured to have the legal representatives of the parties approach the conduct of the proceedings with a modicum of common sense, especially in terms of the manner in which the charges had been formulated by the prosecutor. Obviously, her Honour's attempt fell on deaf ears.
749 There are two further matters to which I wish to draw attention in this context. The first relates to the approach of the prosecutor to the fixation of penalty. Staunton J had found that the corporate defendants, and therefore some of the personal defendants, were guilty of a breach of a number of the charges. Accordingly, it was necessary for her Honour to consider the imposition of an appropriate penalty with respect to each of the charges.
750 The prosecutor sought to rely on s 51A of the Act which is in the following terms:
51A Additional penalty for further offence against the Act
(1) A Court that convicts a person of an offence (the current offence ) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties:
(a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act - 2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or
(b) if the current offence is any other offence against this Act - 50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section).
(2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section.
(3) This section applies even if the previous offence concerned was committed before the commencement of this section.
751 Relevantly for the purpose of those proceedings, the maximum penalty for a breach of the Act for a first offence by the corporate defendants was $500,000 and by a natural person was $50,000. Not content with exposing each of the defendants to a multiplicity of penalties with respect to a multiplicity of charges levied out of the one course of criminal conduct, the prosecutor sought to have an initial penalty with respect to each of the defendants set by reference to the maximum amount to which I have referred and proceeded to argue that all subsequent penalties imposed on each defendant should be fixed by reference to s 51A. That is, there had been a multiplicity of offences, the first would be dealt with at the appropriate maximum then prevailing, but all subsequent and later penalties would have a maximum limit fixed at a further 50%. This approach to the fixation of penalties for more than one offence arising out the same course of conduct had been rejected by Boland J and Staff J in this Court in previous proceedings, as noted by Staunton J in her judgment. Nevertheless, the prosecutor was motivated to strive for a greater level of penalties by reference to the provisions of s 51A.
752 The final matter to which I need to refer is the attitude of the prosecutor during the course of the sentencing process. My reading of the judgments of Staunton J and of the transcript of the proceedings before her Honour is that counsel for the prosecutor, and to be assumed on instructions, took every point and proceeded with every argument that was possibly thought available. An example is provided in the course of her Honour's sentencing judgment. The example is adequately set out in [143] of that judgment which is in the following terms:
"On behalf of the corporate defendants, it was submitted they had cooperated with the relevant investigative authorities and this cooperation was a mitigating factor consistent with the provisions of s 21A(3)(m) of the CSPA. The prosecution demurred somewhat on that contention, suggesting that any cooperation by the corporate defendants was more because the offences arose from a serious mining accident and they were legislatively required to cooperate rather than a spontaneous willingness on their part to do so. I have to say I think that assessment, in all the circumstances, is too harsh. There was no evidence I am aware of in the substantive proceedings that evidenced anything other than one of cooperation with the relevant investigating authorities after the inrush. On that basis, I consider the defendants' cooperation is a matter entitled to positive consideration in the sentencing process." [143]
753 The extracts from the judgment of Staunton J, which I have previously set out, include references to guidelines established by the DPP. Those guidelines deal also with the role and duties of the prosecutor. One would hope that those guidelines would have been applied to prosecutions instituted by an inspector with the WorkCover Authority of New South Wales. In dealing with the discretion involved in a decision to prosecute, the guidelines require the prosecutor to take into account a number of matters including: "The likely length and expense of a trial", "whether or not the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive" and "the degree of culpability of the alleged offender in connection with the offence".
754 In this connection, the guidelines conclude with this admonition: "It is recognised that the resources available for prosecuting are finite and should not be extended pursuing inappropriate cases…"
755 If one takes into account the unnecessarily complex, extensive and repetitive nature of the charges and the manner in which they were framed, together with the refusal to allow the corporate defendants to plead guilty upon discontinuance against the individual defendants, the attempt to pursue higher penalties under s 51A and the denial of mitigating factors in favour of the defendants during the sentencing process, one must query the bona fides of the prosecutor in terms of these proceedings. Public monies have, in my opinion, been unduly wasted, the defendants have been put to incredible cost which, ultimately, impacts on the economy of the State, the resources of this State and the resources of this Court have been wasted. In addition, it is fundamental that the criminal law must be administered in an appropriate fashion. The legislature has chosen to emphasise the importance of occupational health and safety matters by creating absolute offences. If the prosecution of offences is undertaken in an arbitrary, capricious and irresponsible fashion, the laws themselves are brought into disrepute for reasons that are obvious. This is especially so in the area of occupational health and safety prosecutions where it is the custom of the prosecutor to seek a moiety of the penalty, that is payment of one half of any amount imposed by way of penalty. Presumably, the prosecutor has not sought to do so in these proceedings because it is abundantly clear that not only did the Department of Mineral Resources prepare the initial erroneous documents but its own personnel including its Chief Inspector could detect nothing wrong with those documents, as referred to in the judgments of Staunton J.
756 I would, advisedly, characterise what has happened in these proceedings as constituting more than prosecution, and amounting to persecution of the defendants.
757 Judicial officers and the legislature both have a role to play in the administration of justice. I take the view that it is appropriate for a judicial officer to make comment about the prosecution and management of proceedings, especially criminal proceedings, where it is thought that the conduct of a prosecutor was inappropriate. For the reasons which I have set out above, I think that the prosecutor, Stephen Finlay McMartin whom I understand to be an inspector with the WorkCover Authority of New South Wales, has acted inappropriately in and about the manner in which he formulated the charges against the defendants and in and about the manner in which the prosecutions were conducted. Perhaps, as is the case with much of the work undertaken by police investigators and investigators with the arms of government, that the prosecution of offences under the Act be undertaken by an independent, objective body with undoubted expertise such as the DPP.
Costs
758 I now come to the question of costs. Because I am in dissent I shall state my position briefly. I would not have awarded the prosecutor any costs beyond 7 August 2004, the date the corporate defendants agreed to plead guilty on a conditional basis. I would have awarded the defendants their costs on and after that date because, for reasons that I have now stated on a number of occasions, I regard the conduct of the prosecutor as being, in all the circumstances, unacceptable and as having compromised the processes of this Court.