Rodney Morrison v Bradley Dean Murray & Ors

Rodney Morrison v Bradley Dean Murray & Ors - [2004] NSWIRComm 174 - NSWIRComm 2004 case summary — Zoe

[11]

1 These matters come before the Commission sitting in Court Session by way of Notices of Motion, one filed on behalf of each of four defendants, against whom it has been alleged breaches of the Occupational Health and Safety Act 1983. The Notices of Motion are being dealt with at an interlocutory stage of proceedings, before trial. The Notices of Motion are all similar and read as follows: 1. An order that the prosecution in matter number . . . be dismissed. 2. In the alternative, an order that the Prosecution be permanently stayed. 3. An order that the Respondent pay the Applicant's costs. The grounds and reasons in support of the Motions are as follows: 1. The prosecution should be dismissed in that: (a) The prosecution was invalidly commenced. (b) It would appear that as at the date the prosecution was commenced, the Prosecutor, Mr Rodney Morrison, did not possess a written consent of a Prescribed Officer (being the Director General of the Department of Mineral Resources) at the time the proceedings were instituted, pursuant to s48 of the Occupational Health and Safety Act . 2. In the alternative, the Prosecution should permanently stayed for an abuse of process as: (a) The Prosecutor, Mr Rodney Morrison, is not able to prove beyond reasonable doubt that he had the written consent of a Prescribed Officer (being the Director General of the Department of Mineral Resources) at the time the proceedings were instituted, pursuant to s48 of the Occupational Health and Safety Act . (b) To proceed with the Prosecution in circumstances where the Prosecutor is unable to prove its case is an abuse of process. (c) To proceed the Prosecution further without such consent is an abuse of process. History 2 On 3 May 2001, Rodney Morrison, filed four Applications for Orders instituting one charge against each of four defendants under the Occupational Health and Safety Act 1983 (the OHS Act). The four defendants named in the Applications were the corporation Powercoal Pty Ltd and the three employees of Powercoal at Wyee Colliery, Bradley Dean Murray, Mechanical Engineer in Charge; Michael John Barrett, Colliery Manager; David Glen Coutts, Maintenance Manager and Mine Engineer.

[156]

123 The prosecutor submits that an appropriate form of relief available in the event of a finding that the prosecutions were not validly instituted is that provided by the combined operations of s196 of the IR Act 1996 and s5AE of the CA 1912: Section 5AE provides: (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 124 I accept for the provision of s5AE to be enlivened a request, pursuant to the section, can be made at any time up to the pronouncement of final orders (EPA v Land and Environment Court of NSW & Anor [2004] NSWCA 50). 125 I further accept, once the request is made, and it is made at the appropriate time, the trial judge should accede to the request. In DPP v Cassell and Anor (1995) 80 A Crim R 160 (at 164), Kirby P said in relation to s5B of the CAA 1916 (a similar section to section 5AE): Although the section is expressed in permissive terms, the obligation cast by it upon a judge of the District Court (as formerly upon the Chairman of Quarter Sessions) is a rigorous one. This was explained by Jordan CJ in Ex parte McGavin; Re Byrne and Ors (1945) 46 SR (NSW) 58 (FC), 60ff: The word 'may' is prima facie facultative only; but it was pointed out in MacDougall v Patterson (1851) 11 CB 755 at 773; 138 ER 672 at 672 that 'Where a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application. . . .' In my opinion it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process.

[160]

129 For authority in support of the above submission, the defendants rely upon the discussion in Joy Manufacturing at [60-61] and [66] and s196(3) of the IR Act: 60 It may well be the case that an application under s 4(1) of the Summary Jurisdiction Act can be regarded as an information. However, it is necessary to consider the context in which the term "information" is used. In Taylor v Environment Protection Authority, s 59 of the Pesticides Act provided that an offence could be disposed of by the Land and Environment Court sitting in its summary jurisdiction and that proceedings could be commenced by information. The EPA commenced the proceedings by way of a summons under Pt 75, r 7 of the Supreme Court Rules , as adapted by Pt 6, r 2(d) of the Land and Environment Court Rules . The Court of Appeal held that s 59(3) of the Pesticides Act was mandatory and required that proceedings had to be commenced by an information. The Court held that the summons was an information. 61 The circumstances before the Court of Appeal in Taylor v Environment Protection Authority were quite different to those that are before us. Even though, as we have said, an application under s 4(1) of the Summary Jurisdiction Act may, depending on its context, be an information, the context in which the word "indictment" is used in s 5F does not permit that conclusion for the reasons we have already addressed. . . . 66 There has been no order of the Court "quashing" any application under s 4(1) of the Summary Jurisdiction Act or any charge specified in such an application. The term "quashed" in the context of the first limb of s 5C was referred to in John L at 517 where Mason CJ, Deane and Dawson JJ said: the reference to an information being "quashed" in the first limb of s.5C should be construed as comprehending a decision by a judge of the Supreme or District Court dismissing an information on the ground that the information placed before the relevant court was insufficient properly to invoke the jurisdiction of the court in a case where proceedings are required to be commenced by information. 130 The defendants submit it is appropriate in the circumstances to dismiss the proceedings.

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