Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin [2006] NSWIRComm 339

Industrial Court of New South Wales

CITATION: Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin [2006] NSWIRComm 339 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPELLANTS Richard Porteous Newcastle Wallsend Coal Company Pty Limited Jonathan Romcke PARTIES: Oakbridge Pty Limited Mark Robinson

RESPONDENTS Stephen McMartin

FILE NUMBER(S): IRC 1591, 1592, 1593, 1594, 1595 of 2005

CORAM: Walton J Vice-President at [1]; Marks J at [633]; Boland J at [1]

Appeal - Occupational health and safety - Mine - Inrush of water - Death of four miners by drowning - Multiple prosecutions under Occupational Health and Safety Act 1983 - Reliance by defendants on inaccurate plans showing wrong location of old workings full of water - Multiple failures to ensure safety - Two corporate defendants and three personal defendants found guilty at first instance of offences under s 15(1), s 16(1) and s 50(1) of Occupational Health and Safety Act 1983 - Sentences imposed - Appeals by all of the defendants - Whether proceedings at first instance a nullity- Autrefois convict - double jeopardy - Duplicity - Abuse of process - Elements of the offences - Essential factual elements of offences - Risk - Potential risk -Consideration of when risk arose - Implications for charges of when risk arose -Expert evidence - Whether trial judge entitled to rely on evidence of experts - Causation - Consideration of each of the alleged failures to ensure safety and whether any error at first instance - Derivative failures to ensure safety - Absolute liability - Whether statutory defences made out - Concerned in the management of the corporation - Sentencing - Totality - Consideration of penalties imposed at first instance - Section 10 of Crimes (Sentencing Procedure) Act 1999 - Conduct of prosecutor - Section 51A of Occupational Health and Safety Act 1983 - Costs CATCHWORDS: Occupational health and safety - Appeal - Mine - Inrush of water - Death of four miners by drowning - Multiple prosecutions under Occupational Health and Safety Act 1983 - Reliance by defendants on inaccurate plans showing wrong location of old workings full of water - Multiple failures to ensure safety - Two corporate defendants and three personal defendants found guilty at first instance of offences under s 15(1), s 16(1) and s 50(1) of Occupational Health and Safety Act 1983 - Sentences imposed - Appeals by all of the defendants - Whether proceedings at first instance a nullity- Autrefois convict - double jeopardy - Duplicity - Abuse of process - Elements of the offences - Essential factual elements of offences - Risk - Potential risk -Consideration of when risk arose - Implications for charges of when risk arose -Expert evidence - Whether trial judge entitled to rely on evidence of experts - Causation - Consideration of each of the alleged failures to ensure safety and whether any error at first instance - Derivative failures to ensure safety - Absolute liability - Whether statutory defences made out - Concerned in the management of the corporation - Sentencing - Totality - Consideration of penalties imposed at first instance - Section 10 of Crimes (Sentencing Procedure) Act 1999 - Conduct of prosecutor - Section 51A of Occupational Health and Safety Act 1983 - Costs