NSW Caselaw
Industrial Court of New South Wales
CITATION: Morrison v Chevalley [2010] NSWIRComm 116
Rodney Morrison (Prosecutor in Matters IRC2007/956 & 957) PARTIES: Grahame Antony Chevalley (Defendant in Matter IRC2007/956) Hilton Ross Grugeon (Defendant in Matter IRC2007/957) Attorney General of New South Wales (Intervenor in Matter IRC2007/956)
FILE NUMBER(S): IRC 956 and IRC 957 of 2007
CORAM: Boland J President; Walton J Vice-President; Haylen J; Staff J
OCCUPATIONAL HEALTH AND SAFETY - Corporation pleaded guilty to contravention of s 8(1) of Occupational Health and Safety Act 2000 - Directors of corporation charged with contravention of s 8(1) by operation of s 26 of Occupational Health and Safety Act 2000 - Notices of motion by directors contending charges invalid - Reliance by directors on Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; (2010) 262 ALR 569 - Questions of law referred to Full Bench of Industrial Court - Whether the Court has power to determine the questions of law - Whether the charges are a nullity for the reason that they do not identify either the essential legal elements of the offences or the essential factual ingredients - Whether the prosecutor is required to plead the acts or omissions of the directors that are said to have given rise to the risk - Whether, if the charges are defective, they may be rectified - Whether s 26 of the Occupational Health and Safety Act 2000 is constitutionally valid CATCHWORDS: STATUTORY INTERPRETATION - Whether s 26 of the Occupational Health and Safety Act 2000 is constitutionally valid - Whether s 26 infringes Ch III of the Constitution - Reversal of onus of proof - Presumption of innocence - Presumption of guilt - Absence of requirement to prove mens rea and actus reus - Whether right to silence removed - Imprisonment an option - Rule against double jeopardy - Whether defences under s 26 illusory - Whether power to judge criminal guilt under s 26 removed - Nature of s 26 - Regulatory offences
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