19 I also accept that, notwithstanding the respondent's contentions to the contrary, the individual appellants have numerous grounds of appeal which are at least arguable; without wishing to pre-empt any consideration of these matters on appeal, I note in particular the grounds relating to the relationship between ss 15, 16 and 50 of the Act and the meaning of the term "a person concerned in the management of the relevant corporation" in s 50. It does appear that, particularly in the case of Mr Robinson (who was at the time of the accident a mine surveyor), there may be substantial matters to be reviewed by an appellate court.
20 The difficulty for the individual appellants lies in the incomplete nature of their substantiating evidence as to their financial position. Apart from affidavits sworn in October 2004 for the sentencing hearing (which I accept as applicable at the present time, on the basis of their solicitor's affidavit to that effect), no fresh evidence was adduced in support of their stay application.
21 It is apparent from the affidavits and the sentencing judgment that:
· Mr Porteous (who was fined $42,000) has a gross income of approximately $160,000; supports his wife (who suffers from chronic fatigue syndrome) and three children; owns his house; and has a unit trust of approximately $200,000 set aside for the education of his three children and for retirement;
· Mr Romcke (who was fined $30,000) has a gross income of approximately $180,000; supports his wife and four children; and has properties at Broke, Maitland and Mackay with respective mortgages of approximately 65 per cent, 60 per cent and 100 per cent of the properties' value;
· Mr Robinson (who was fined $30,000) has a variable weekly income of approximately $1200 after tax (this extrapolates to approximately $62,000 per annum after tax) and he has a wife and three children. There is no evidence as to whether Mr Robinson's wife works, or whether they own any property.
22 I note that there was no suggestion of financial impecuniosity of the personal appellants in the proceedings at first instance; nor is there any evidence of any application for time to pay or to pay the fine by instalments pursuant to s 10 of the Fines Act 1996.
23 Mr S Crawshaw SC, who appeared on behalf of the prosecutor with Mr B Docking of counsel, noted that in the first instance proceedings there was evidence of other defendants having all (or nearly all) of their costs paid by the corporate defendant or a related entity. On this basis, Mr Crawshaw contended that it had not been demonstrated or even suggested that the personal appellants rather than a corporate appellant or another corporate entity would, in fact, fund the payment of the fine. However, there is insufficient evidence to draw an inference that the fines of the personal appellants will be funded by a corporate appellant or another corporate entity. I do not consider the evidence at first instance as to payment of costs of the other defendants by the corporate defendant (or a related entity) to be necessarily relevant to this issue. (I note that this conclusion does not, however, support the appellant's contentions that the respondent acted improperly in raising this issue).
24 In the original notice of appeal, the individual appellants had sought to rely on the ground of appeal that they would not be able to pay the penalty without incurring substantial borrowings. As already mentioned, the personal appellants have desisted from this ground in their amended notice of appeal. Mr Crawshaw had contended that the evidence as to their financial position does not give a picture that is detailed or exhaustive enough to make out this ground. I observe that the test for determining whether financial hardship would result from the payment of the penalty is not whether the payment can only be made by incurring substantial borrowings; rather each application requires a case by case examination of the individual appellant's financial circumstances.
25 Notwithstanding the somewhat limited nature of the individual appellants' financial evidence, I consider that the evidence presented at first instance is sufficient in this case to establish a significant level of financial hardship for each man and his family, against a background, as Mr Rothman described, of nearly nine years of difficulty since the accident. In my view, the individual appellants have established an adequate reason for a stay on these bases. In relation to the balance of convenience, I am prepared to accept that there will be no prejudice to the prosecutor should the stay be granted (nor did the prosecutor suggest otherwise), whereas, as I have noted, there would be considerable hardship suffered by the individual appellants in circumstances where they have arguable grounds of appeal and it may take some considerable time for the resolution of a lengthy, complicated appeal. This may be contrasted starkly with the position of the corporate appellants, in respect of which no evidence has been adduced suggesting financial or other hardship.
26 However, the applications for a stay of the penalty orders seek a stay without conditions. The present circumstances in which the individual appellants have pleaded financial hardship as a ground in support of their applications (as well as other grounds) give rise to the consideration as to whether an undertaking as to diligent prosecution of the appeals is appropriate. I note, in this respect, Rule 15 of the Criminal Appeal Rules, which provides:
Where a person is ordered to pay money as a penalty or for costs, the Judge of the Court of Trial may suspend the payment thereof upon such person entering into recognisances (Forms No XX and XXI) to prosecute an appeal and abide the judgment of the Court thereon, before such persons, in such amount and with or without sureties, or upon any other terms and conditions that such Judge directs.
27 Whilst Rule 15 is not directly applicable (as it applies to a trial judge), it raises considerations relevant to the present applications. In all the circumstances of the applications of the individual appellants, I consider it appropriate to require undertakings to be given by the individual appellants to diligently prosecute their appeals as a condition to the stay of the penalty orders being granted. (The Court raised this issue during the hearing on 26 April 2005 and was subsequently provided with copies of a written undertaking given to the Industrial Registrar by Messrs Porteous, Romke and Robinsonsuch that they "will and will instruct [their] legal representatives to diligently prosecute the appeal against the convictions and abide by any subsequent judgment of the Court").
28 In the applications before the Court, no orders have been sought in relation to the directions of Staunton J regarding costs and submissions as to moiety. As no applications have been made, I do not propose to make any orders regarding costs and moiety.