Industrial Relations Commission of New South Wales CITATION : WorkCover Authority of New South Wales (Inspector Page) v RGM Building Services Pty Limited [2000] NSWIRComm 27 PROSECUTION PARTIES : WorkCover Authority of New South Wales DEFENDANT RGM Building Services Pty Limited FILE NUMBER: IRC 1932 of 1998 CORAM: Wright J President CATCHWORDS : Occupational Health and Safety - Plea of guilty - Application for withdrawal of plea - Principles to be applied - Exercise of discretion - Consideration of circumstances relevant to exercise of discretion to grant leave to withdraw plea - application granted. Maxwell v The Queen (1996) 184 CLR 501 CASES CITED : Regina v Lars (1994) 73 A Crim R 91 Regina v Marchando [2000] NSWCCA 8 WorkCover Authority of New South Wales (Inspector Gilbert) v Energy Australia (1998) 85 IR 99 HEARING DATES: 03/10/2000 EXTEMPORE JUDGMENT DATE : 03/10/2000 PROSECUTOR Mr McColm, Solicitor WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr G Vardas, Solicitor Gunn Hamilton & Blay JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President Friday, 10 March 2000 Matter No. IRC 1932 of 1998 IRC98/1932 - WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR PAGE) v RGM BUILDING SERVICES PTY LIMITED. Prosecution under s 16(1) and 49(4) of the Occupational Health and Safety Act 1983. JUDGMENT (extempore) [2000] NSWIRComm 27 1 In these proceedings an application has been made by the defendant to withdraw a plea of guilty which was entered before me on 13 September last year. Mr Vardas, solicitor for the defendant, in very helpful submissions on behalf of his client, has indicated that there are essentially two grounds upon which the application to withdraw the plea of guilty is made. 2 Broadly, the first ground is that the principal of the company, Mr Rocco Panzarino, has suffered some medical problems involving inter alia acute depression and, although he may have recovered from that condition now, he was, at times relevant to the entering of the plea, suffering from that disability. 3 That submission is supported by exhibit A, a medical report which was marked as a confidential exhibit on 13 December. I have considered that exhibit again for the purposes of this application. 4 The second ground is that, at the time the plea was entered, it was entered on a misunderstanding of the factual circumstances involving certain other defendants and also in the absence of counsel's advice which has now been obtained which, without being advised of the precise details of it, apparently indicates the inappropriateness of the plea having been entered. Mr McColm, solicitor for the prosecutor has, quite properly in my view, advised the Court that the prosecutor consents to the application. 5 Mr Vardas has also very helpfully referred to the judgment of Simpson J of the Court of Criminal Appeal delivered on 11 February 2000 in Regina v Marchando [2000] NSWCCA 8 at 4 in which her Honour stated in a helpful and succinct way the nature of a court's discretion to grant leave for the withdrawal of a plea of guilty and the principles that are to be applied. 6 In the relevant paragraph of her Honour's judgment, which was concurred in by Wood CJ at CL and Sully J, her Honour observed: The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: R v Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: R v Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: R v Davies (1993) 19 MVR 481. 7 This statement is in accord with other pertinent authorities; for example Maxwell v The Queen (1996) 184 CLR 501 at 509 – 510, the judgment of Hungerford J of this Court in Workcover Authority of New South Wales (Inspector Gilbert) v Energy Australia (1998) 85 IR 99 at 102 and the cases there referred to by his Honour, such as the judgment of Court of Criminal Appeal in Regina v Lars (1994) 73 A Crim R 91 at 109 - 111. 8 I am satisfied that, on the basis of those authorities, I have a discretion to grant leave to withdraw the plea and I consider that the grounds summarised from the submissions of Mr Vardas are matters which, without further elaboration, should lead me to exercise my discretion in favour of granting the application. 9 I therefore grant leave to the defendant to withdraw its plea of guilty. _________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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