Industrial Relations Commission New South Wales Medium Neutral Citation: Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49 Hearing dates: 13 February 2013, 30 April 2013 (written submissions) Decision date: 17 June 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President, Walton J, Vice-President, Staff J Decision: (1) Pursuant to s 196 of the Industrial Relations Act 1996 and s 10(1)(b) of the Criminal Appeal Act 1912 leave is granted to Hunter Quarries Pty Limited and Richard Alexanda Badior to extend time to appeal against convictions and sentences imposed by Backman J on 30 October 2009 under the Occupational Health and Safety Act 2000 and consequential costs orders made by her Honour on 12 November 2009. (2) In respect of any summonses to produce that have been served on the prosecutor or the Department of Primary Industries prior to the date of this judgment and in respect of which the applicants claim material has not been produced pursuant to the summonses, the applicants shall identify to the prosecutor the material that has not been produced and which the applicants wish to have admitted in the appeals. This shall be done within 14 days of the date of this judgment. (3) In the event the prosecutor seeks to set aside the summons in whole or in part, it shall file and serve a notice of motion to that effect within a further 14 days. (4) The proceedings are listed before Walton J, Vice-President at 9.30am on Thursday 25 July 2013 for the purpose of making directions including the fixing of any hearing date in the event that it becomes necessary for the Full Bench to determine any issue arising from orders (2)-(3) hereof. (5) Liberty to apply to Walton J, Vice-President on reasonable notice. (6) Costs are reserved. Legislation Cited: Uniform Civil Procedure Rules 2005 Criminal Appeal Act 1912 Industrial Relations Act 1996 Mines Inspection Act 1901 since repealed Occupational Health and Safety Act 1983 since repealed Occupational Health and Safety Act 2000 since repealed Cases Cited: Boag v R (1994) 73 A Crim R 35 Bradshaw v The Queen (unreported; CCA SCt of WA; Library No 970228; 13 May 1997) Bugeja v R; Johnson v R [2010] VSCA 321 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Cooley v The State of Western Australia [2005] WASCA 160 Cornwell v R [2010] NSWCCA 59 Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 Dewcape Pty Ltd v WorkCover Authority of New South Wales (Insp Jones) [2007] NSWIRComm 212 Donai v R [2011] NSWCCA 173 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57 Gilham v R [2012] NSWCCA 131 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 Igjnatic v R (1993) 68 A Crim R 333 Kelly v London Transport Executive (1982) 2 All ER 842 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 240; (2000) 102 IR 57 Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355; (2006) 158 IR 281 Liberti v R (1991) 55 A Crim R 120 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 Meissner v R [1995] HCA 41; (1995) 184 CLR 132 National Justice Compania Naviera SA v Prudential Assurance Co Ltd ("The Ikarian Reefer") [1993] 2 Lloyd's Rep 68 R v Birks (1990) 19 NSWLR 677 R v Davies (Supreme Court of New South Wales, Court of Criminal Appeal, 16 December 1993, unreported R v Falls [2004] NSWCCA 335 R v Hura (2001) NSW CCA 61 R v Lawrence (1980) 1 NSWLR 122; (1980) 32 ALR 72 R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 R v Richard Lipton [2011] NSWCCA 247 R v Soma [2003] HCA 13; (2003) 212 CLR 299 R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310 Robert Clee v R [2009] NSWCCA 18 Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 Sagiv v R (1986) 22 A Crim R 73 Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 241 IR 373; (2011) 213 A Crim R 340 Universal Music Australia Pty Ltd & Ors v Sharman License Holdings Pty Ltd & Ors [2005] FCA 1242; (2005) 220 ALR 1 Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 Whitehouse v Jordan [1981] 1 All ER 267; [1981] 1 WLR 246 Whitehouse v Jordan [1980] 1 All ER 650 Wood v R [2012] NSWCCA 21 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 WorkCover Authority of NSW (Inspector Mayo-Ramsay v Maitland City Council (1998) 83 IR 362 Category: Interlocutory applications Parties: Hunter Quarries Pty Ltd (Appellant in IRC2012/111) Richard Badior (Appellant in IRC2012/1126) Rodney Morrison (Respondent) Representation: Mr B G Docking (Appellant in IRC2012/1111) Mr D Nagle of counsel (Appellant in IRC2012/1126) Mr M Lee SC (Respondent) McDonald Johnson Lawyers (Appellants) Crown Solicitor's Office (Respondent) File Number(s): IRC 1111 and 1126 of 2012 INTERLOCUTORY Judgment 1In these interlocutory proceedings, Hunter Quarries Pty Limited ("Hunter Quarries") and Richard Alexanda Badior seek an extension of time in which to appeal against convictions and sentences imposed by Backman J on 30 October 2009 under the Occupational Health and Safety Act 2000 ("the Act") and consequential costs orders made by her Honour on 12 November 2009. Her Honour's judgment in relation to sentencing is reported as Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179. Background 2The original Applications for Order charging Hunter Quarries and Mr Badior with offences under s 8(1) of the Act (Mr Badior was charged under s 8(1) by virtue of s 26(1)) were filed on 5 June 2007. These Applications were filed at the same time as Applications charging Grahame Antony Chevalley (Matter No IRC 956 of 2007) and Hilton Ross Grugeon (957 of 2007). Mr Chevalley was a director and managing director of Hunter Quarries and Mr Grugeon was chairman of the board of directors of Hunter Quarries. 3On 7 June 2007, Staunton J made orders exparte in respect of each of the four defendants requiring each to appear before the Court on 27 July 2007 to answer the offence charged in each Application for Order filed on 5 June 2007. Mr Chevalley and Mr Grugeon entered pleas of not guilty before Staunton J on 15 February 2008. Hunter Quarries and Mr Badior subsequently entered pleas of not guilty. 4On 7 October 2008, the trials in respect of all four defendants commenced before Backman J; by consent, all matters were heard together. During the course of that and the following day the prosecutor opened the prosecution case. 5On 9 October 2008, the prosecutor, following discussion between counsel and without objection, sought and obtained orders from Backman J, substituting Amended Applications for Order in all four matters. Following the amendment, Hunter Quarries and Mr Badior entered a plea of guilty to the amended charges, though not accepting the truth of all the facts alleged by the prosecutor against them. Sentencing proceedings then continued against Hunter Quarries and Mr Badior. 6In relation to Messrs Grugeon and Chevalley, there followed a series of cases in the Industrial Court, NSW Court of Appeal and High Court in which the two defendants had sought, unsuccessfully, to have the charges against them dismissed. On 22 October 2012, however, the prosecution apparently decided against proceeding with charges against Mr Grugeon and Mr Chevalley. This led to the proceedings in matter no IRC 956 and 957 of 2007 being dismissed and each defendant being discharged. No reasons were provided to the court as to why the prosecution had decided not to proceed against the two defendants. 7Following the withdrawal of the charges against Messrs Grugeon and Chevalley, on 1 November 2012 Hunter Quarries filed a notice to appeal and application to extend time to appeal. Mr Badior did likewise on 5 November 2012. Sentencing judgment 8In her October 2009 judgment, Backman J observed at the outset that Hunter Quarries and Mr Badior pleaded guilty to the offences in the Amended Applications for Order. At the time of the offence, Hunter Quarries owned and operated the Karuah Quarry. The Quarry provided, inter alia, gravel for road building and concrete mixing. At the Quarry, Hunter Quarries owned and operated two Terex TA30 off-road dump trucks known as T27 and T28. Her Honour further observed that Mr Badior was, at the time of the offence, a director of Hunter Quarries and concerned, in particular, in the management and operation of Karuah Quarry as quarry manager. 9The amended charges against the two defendants and the subsequent guilty pleas arose out of an incident that occurred on 14 June 2005 in which Mr Darren Smith, an employee of Hunter Quarries, was killed. Backman J described the fatal accident at [33]-[38]: [33] Mr Smith was employed as a plant operator at Karuah Quarry. He commenced employment in February 2005. [34] On 14 June 2005, Mr Smith commenced work at about 6.30am. He operated the truck [Terex TA30 off-road dump truck T28] throughout the day transporting material from both Bench No 3 and Bench No 4 to lower levels of the quarry. [35] Immediately before the accident, Mr Smith drove the truck to either Bench No 3 or Bench No 4 where he backed it up for loading with overburden, consisting of clay, earth and rock. After the truck was loaded, at almost 4.15pm, Mr Smith commenced driving the loaded truck down the haul road in the direction of the crushing plant, en route passing another truck waiting its turn to be loaded. [36] On the descent down the haul road, the truck left the road at a left-hand curve. It crossed the flat area at the top of the embankment and struck some concrete blocks. It then travelled over the embankment, striking it and rolling two or three times before coming to rest at the bottom of the embankment, 20 metres below. [37] The point where the truck left the haul road was about 180 metres distance from Bench No 4 and about 32.6 metres below Bench No 4. From Bench No 3, the distance to the same point was about 105 metres and about 21.2 metres below Bench No. 3. [38] Mr Smith's body was found on the side of the embankment. It appears that he was thrown from the truck through the front windscreen. It also appears that he had not been wearing a seat belt at the time. 10As Backman J observed at [3], the amended charges against both defendants were based on the same facts. They each set out four discrete allegations against Hunter Quarries. Each set of four allegations constituted one offence against each defendant. The four allegations were particularised in each charge as follows: A. failure to ensure that the premises controlled by the Defendant, being Karuah Quarry, were safe and without risk to health, in particular by failing to ensure that the haul road was constructed in a manner that was safe. The haul road was unsafe in that: i) it did not have adequate continuous berms or other measures along the side of the road, with some berms being less in height than half that of the Terex truck TA30 wheel height. ii) its design was unsafe given the grade of the haul road at the point where it turned and the absence of berms or adequate berms in that area. B. failure to ensure that the plant provided for the use by Darren Smith, at Karuah Quarry, was safe and without risks to health, namely a Terex TA30 off-road dump truck known as the 'Terex Truck 28', in particular, by failing to ensure that in respect of that truck: i) the braking system was not defective; ii) the steering system was not defective; iii) a competent person was retained to service the truck who could and did periodically test safety critical functions such as braking, steering, alarms and warning systems and who had the capability to identify safety critical defects so as to ensure that repairs were carried out to maintain the truck in a safe working condition. C. failure to provide such information, instruction, training and supervision as was necessary to ensure employees' health and safety at work, in particular: i) by failing to ensure that pre-start checklists were always completed, in particular those that monitored the effectiveness of the braking system and the effectiveness of the steering system. D. failure to ensure that its system of work and the working environment of the employees, were safe and without risks to health, in particular: i) by failing to have an adequate maintenance management system for the Terex 28 Truck to ensure that defects were identified and necessary maintenance work was completed. As a result of the said failures Darren Smith's safety was placed at risk. 11Her Honour was provided with a document that constituted the Agreed Facts in the proceedings and relevant matters were extracted from this document by her Honour at [6]-[48]. Notwithstanding the Agreed Facts, there were a substantial number of facts that were not agreed and Backman J was required to determine the factual matters in dispute. Her Honour's summary of her findings regarding the disputed facts is to be found at [222] of her judgment. 12Her Honour proceeded to consider the relevant objective and subjective factors to be taken into account in the sentencing process. As to the nature and quality of the offences, Backman J found the objective seriousness of the offences was "very high". In that regard her Honour found, inter alia: The haul road had an unsafe design. The section of road leading down to the embankment, which descended at a rate of 20 per cent, or more, required adequate measures to obviate the risk of a descending truck which was out of control and unable to negotiate the left-hand bend. In particular the height and continuity of the berms at the area where the truck left the embankment were inadequate to restrain an uncontrolled truck. The evidence established that the service brakes of the truck were in such a state of disrepair that they could not stop the truck on the haul road. The park brake was also so out of adjustment that it was incapable of providing any braking force on the haul road. The fact that the brakes were in such a bad state they could not stop the truck on the haul road places the offences at the highest level of seriousness. With regard to the truck's emergency steering capability it was an agreed fact that the accumulator was not functional at the time of the accident. The practice of completing the pre-start checklists was not enforced. Hunter Quarries' failure to have in place an adequate maintenance management system gave rise to the risk that the truck would develop faults. The faults, including the defective brakes and inoperable emergency steering system, which were the direct result of an inadequate maintenance system, gave rise in turn to a serious and obvious risk to the safety of any person operating the truck. Mr Boyd Taylor of B&S Plant Repairs was engaged by Hunter Quarries to service and repair the Terex trucks. Mr Taylor was clearly not competent to perform adequate servicing of the Terex trucks. Mr Smith's conduct did not operate to mitigate the objective seriousness of the offences. 13In relation to the defendants' pleas of guilty, Backman J noted these were entered to the amended charges on 9 October 2009, which, as noted earlier, was the third day of the defended hearings. In this respect, her Honour found at [290]-[292]: [290] Here the pleas were entered after the commencement of the summary defended hearings. It is difficult to assess whether the pleas produced benefits (to the administration of justice) arising from the prospective length and complexity of the hearing. The sentence proceedings were heard over several days. The reason for this was that the prosecution sought to rely on additional factors in aggravation of the defendants' culpability, as it was entitled to do, and the defendants disputed the facts relied upon by the prosecution to establish those factors, as they were also entitled to do. [291] The defendants' contention, advanced in general terms only, was that the amendments to the charges were significant and should be regarded as new charges. A comparison of the two sets of charges does not bear this out. In my view, the amendments were relatively minor, resulting in the deletion of some "sub-particulars" of the multiple particulars of the offence under s 8(1) with some re-wording of other "sub-particulars" which did not change the nature of the offence in any substantial or significant manner. [292] The plea, therefore, was a late plea with some utilitarian benefit. I am not convinced that any of the matters raised by the defendants on this issue would have precluded them from entering pleas of guilty at an earlier stage in the proceedings. I assess a discount of penalty for both defendants at 10 per cent. 14Backman J made the following orders: [323] In Matter No 954 of 2007 I make the following orders: (i) the defendant Hunter Quarries Pty Limited is convicted of the offence (ii) the defendant is fined $214,500 with a moiety to the prosecutor [324] In Matter No 955 of 2007 I make the following orders: (i) the defendant Richard Alexanda Badior is convicted of the offence (ii) the defendant is fined $21,450 with a moiety to the prosecutor [325] Matter Nos 954 and 955 of 2007 are stood over for a directions hearing on 12 November 2009 at 9:30am in order for the parties to be heard on the issue of costs. 15On 12 November 2009, Backman J made costs orders against the defendants. Grounds of appeal 16The notices of appeal by the applicants in these interlocutory proceedings (Hunter Quarries and Mr Badior) were materially in the same terms. The grounds of appeal were in the following terms: 1. On 22 October 2102, after a review by the prosecution of the evidence in the co-defendant proceedings involving Mr Grahame Chevalley and Mr Hilton Grugeon, the prosecution independently decided against proceeding with charges against these natural person defendants. This led to, by consent, proceedings no. 956/2007 and no. 957/2007 being dismissed and each defendant is discharged. 2. The prosecution failed to disclose material or evidence to the Appellant contrary to the prosecution's obligation of disclosure. 3. There was a deliberate non-disclosure or suppression of material or evidence by the prosecution arising from the policy reflected in the "Mine Safety Investigation Manual" in relation to "Examining the department's role leading up to the incident." 4. Prosecution expert reports that were tendered by the Respondent offended the following propositions: a) Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation. b) Solicitors and counsel must not settle the evidence of an expert. c) Lawyers should not be involved in the writing of reports by experts in relation to the substance of the reports. 5. Prosecution expert reports and evidence did not comply with rules and tests of admissibility and were therefore wrongly received or should have been afforded no weight. 6. The prosecution did not at all or adequately investigate material matters that weakened and undermined the prosecution's case or would tend to assist the defence case. 7. In the running of the trial and then sentence, there were failings and errors of counsel representing the Appellant that comprise material irregularity and there is a significant possibility that they affected the outcome. 8. Any of the above grounds taken singularly or in any combination constitute a miscarriage of justice. 9. Her Honour erred in making findings on sentence. 10. The Respondent did not have a valid authority or power to prosecute. 11. Such other grounds as this Court deems fit. 17The relief sought on the appeals was: 1. That the Appellant is given leave to rely upon any document which did not go into the public domain but was produced in Matter No's 956 of 2007 and 957 of 2007 under compulsion of law (such as summonses to produce or notices of motion) or were produced as a result of calls on or requests to the prosecution by any co-defendant. 2. That the Appellant is permitted to adduce fresh or new evidence in the appeal. 3. That the application to extend time to appeal is granted. 4. That leave is granted to withdraw the Appellant's plea of guilty entered on 9 October 2008. 5. That the appeal is allowed. 6. That the conviction of the Appellant, the fine imposed and any costs orders are vacated, set aside or quashed. 7. That the whole of the decision and orders of her Honour are vacated, set aside or quashed. 8. In the alternative, that the Amended Application for Order is dismissed. 9. In the alternative, that the Amended Application for Order is permanently stayed. 10. In the alternative, that the Full Bench declines to have the matter set down for a new trial. 11. In the alternative, that the matter of criminal liability is remitted to another judge to determine according to law. 12. In the alternative, that the sentence imposed is vacated and the matter is remitted to another judge to determine according to law. 13. That the Respondent pays the costs of the Appellant of the appeal and of the proceeding below. 14. Such further or other orders as may seem appropriate upon the grounds stated above. Stays were sought. Grounds to extend time to appeal 18The applications to extend time to appeal were contained in the notices to appeal and were in the same terms in both applications. The grounds to extend time to appeal were expressed as follows: 1. The appeal raises the important questions identified in paragraph F above which are matters of general importance. 2. The prosecution failed to disclose material and evidence and this only recently became known to the Appellant. 3. Fundamental flaws and problems in the prosecution's expert reports were only identified recently. 4. The prosecution's failures to investigate at all or adequately material matters that weakened and undermined the prosecution's case or would tend to assist the defence case were only recently identified. 5. Failings or errors of counsel representing the Appellant. 6. The Appellant entered a plea of guilty in the circumstances referred to in 2, 3, 4 and 5 above. 7. The Appellant has been the victim of a miscarriage of justice and this should not go unremedied. 8. The public interest is best served by criminal proceedings being conducted and determined according to law. It would be against the interests of justice if a conviction was allowed to stand. 9. Such other reasons as this Court deems fit. Evidence for the applicants 19In support of the applications to extend time to appeal, the applicants relied on the following evidence: (1) affidavit of Matthew Bryan sworn 7 December 2007. Mr Bryan is the solicitor with carriage of the matter for Hunter Quarries; (2) a memorandum dated 12 February 2007 from Peter Robson, Chair of the Assessment and Review Committee, Department of Primary Industries, to Barry Butler, Director General of DPI, regarding "Fatal Accident involving Darren Smith at Karuah Quarry on 14 June 2005"; (3) affidavit of Matthew Bryan sworn 13 December 2012 and two volumes of material referred to in the affidavit; (4) extract from transcript of proceedings before Backman J on 9 October 2008 (pp1-15); (5) extract from transcript of sentencing proceedings before Backman J on 21 October 2008 (pp 154-156, 163-167, 176-177, 180-184) and 31 July 2012 (pp 566 and 570); (6) letter from Peter Robinson, senior solicitor, Crown Solicitor's Office to Rob Brook, solicitor for Mr Badior dated 28 May 2012 regarding disclosure to the accused of material not contained in the prosecution brief obtained during the course of the investigation which led to the charges being laid together with an amended notice of motion filed on 30 March 2012 seeking the production of certain documents; (7) letter from Mr Matthew Bryan dated 7 February 2013 responding to a letter of Ms Christa Ludlow, Assistant Crown Solicitor, dated 31 January 2013; and (8) affidavit of Matthew Bryan sworn 7 February 2013. 20In considering the case for the applicants we have sought to address the applicants' written and oral submissions. This has not been easy to accomplish. The applicants' written submissions refer extensively to Mr Bryan's first affidavit, which is a mixture of assertions about factual matters, arguments and submissions. Mr Bryan's affidavit is littered with statements to the effect "the applicants respectfully contend..." or "it is respectfully submitted..." 21As an example of the difficulties, in their written submissions the applicants scantily asserted that because of certain alleged failures on the part of the DPI, causation had not been established and the prosecutor had not disclosed certain information. The written submissions leave much of the argument and the evidence about this to Mr Bryan's first affidavit which, because of the mix of factual matters deposed to by Mr Bryan and his assertions that were in the nature of submissions, had to be compared to the applicants' written submissions to see whether there was any divergence. Then in oral submissions, counsel for the applicants returned to the matters addressed in the written submissions and Mr Bryan's affidavits with the Full Bench being required to find and follow references to materials in affidavits and three other volumes of materials. 22The matters the applicants have sought to raise in seeking an extension of time were not without some complexity. We would have expected a more coherent and helpful approach to the issues. The applicants had been directed to file an Application Book, but this direction was not complied with. 23We should also make this observation: these are interlocutory proceedings and the Court is required to consider, inter alia, whether the applicants have a reasonable prospect of success on appeal. In such proceedings the applicants cannot be expected to put on their full case and we have been mindful of that limitation. Evidence for the prosecutor 24The prosecutor relied on the following evidence: (1) affidavit of Christa Ludlow, Assistant Crown Solicitor, sworn 31 January 2013; (2) extract from transcript of sentencing proceedings before Backman J for 9 October 2008 (pp 1-25), 16 October 2008 (pp 1-9), 20 October 2008 (pp 83-86, 149-152), 22 October 2008 (pp 233-234); (3) "Agreed Facts", which was exhibit 8A in the sentencing proceedings before Backman J. 25It should be noted that the evidence in one matter was treated as evidence in the other. Extension opposed by respondent 26The applications to extend time to appeal were strongly opposed by the respondent prosecutor. Essentially, the respondent submitted that the pleas of guilty were properly entered and constituted admission of all of the legal elements of the offences; agreed facts before the sentencing judge were not impugned and were sufficient to make out the elements of the offences and all particulars of the contraventions; the applicants had not demonstrated circumstances in which a plea of guilty could be withdrawn; and the applicants had not satisfied the principles applicable to an extension of time to appeal including that the applicants did not have an arguable case for an extension of time. 27We shall address the respondent's arguments in the course of our consideration. Principles 28The proceedings raise the application of legal principles applicable to an extension of time to appeal and those applicable to withdrawal of a guilty plea. Obviously, we are not at the point of considering whether the pleas should be withdrawn, but it is necessary to understand the relevant principles as part of the background to considering the interlocutory application before us. 29It is appropriate that we identify the relevant principles before proceeding to address the applications themselves. Principles applicable to an extension of time to appeal 30The appeal is brought pursuant to s 5AA of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996. Section 196 provides that the Criminal Appeal Act applies to any appeal or reference to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. Section 5AA provides, inter alia, that a person convicted of an offence by the Supreme Court (or, by virtue of s 196, a judicial member of the Commission in Court Session) in its summary jurisdiction may appeal to the Court of Criminal Appeal (or, by virtue of s 196, the Full Bench of the Commission in Court Session) against the conviction (including any sentence imposed) or order. 31Section 10(1)(a) and (b) of the Criminal Appeal Act provide: (1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person's conviction or sentence: (a) The person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence. (b) The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice. 32In Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355; (2006) 158 IR 281, the Full Bench considered an application under s 10(1)(b) of the Criminal Appeal Act to extend time. The Full Bench stated: [28] In any event, whether or not this Full Bench should grant an extension of time to the applicants is a matter entirely within the Court's discretion. However, whilst the discretion to extend time is a broad one in this case, the discretion is given for the sole reason of enabling the court to do justice between the parties which means that the discretion will usually only be exercised in favour of an applicant upon proof that strict compliance with the relevant provision will work an injustice upon the applicant: Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 480; WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301. In order to determine whether the relevant provision will work an injustice, it is necessary to have regard to the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson per McHugh J citing Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 33In Dewcape Pty Ltd v WorkCover Authority of New South Wales (Insp Jones) [2007] NSWIRComm 212, after quoting the above paragraph from Kirk, Wright J, President added at [30]: Also, as McHugh JA observed in Gallo v Dawson (1990) 64 ALJR 458 at 459 it is always necessary, in cases such as the present, to consider the applicant's prospects of succeeding on the appeal. Accordingly, it is appropriate to also consider, and rule upon, the prosecutor's submissions on jurisdiction since, if correct, the defendants have no prospects of succeeding on the appeal. 34In Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [38]-[39] the Court of Criminal Appeal considered an application to extend time to appeal: [38] There is a clear public interest in the avoidance of delay in bringing appeals to this Court against conviction and sentence. The time limit for the bringing of an appeal to this Court under the Criminal Appeal Act 1912 reflects the principle of finality in litigation: R v Unger [1977] 2 NSWLR 990 at 995-996; R v Gregory at [39]-[41]. There is provision for extension of time to appeal and this power should be exercised with the interests of justice in mind, given the usual consequences of conviction following trial on indictment. However, the longer time passes without an appeal being filed, the more solid ought be the expectation of the community, witnesses, victims and the families of victims that the criminal proceedings are over. This is a significant consideration to be taken into account on a leave application. Should an appeal against conviction succeed and a retrial is ordered, witnesses will be required to testify once again, with the further passage of time resulting from a delayed appeal having the potential to affect detrimentally the administration of justice. [39] This Court has recently refused an extension of time to appeal against conviction for murder because of the absence of any satisfactory explanation for the delay and the lack of merit in the proposed grounds of appeal: McCall v R [2010] NSWCCA 174. When considering the interests of justice in relation to an application for leave to appeal, regard should be had to the interests of the Crown (representing the community) and the administration of justice generally, as well as the interests of the applicant for leave: R v Gregory at [41]; McCall v R at [6]. 35In R v Lawrence (1980) 1 NSWLR 122; (1980) 32 ALR 72 at 148 the Court of Criminal Appeal made it plain that "... where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed." 36In the present proceedings, Backman J gave judgment on sentences on 30 October 2009 and made costs orders on 12 November 2009. The notice of appeal and application to extend time to appeal was filed on 1 November 2012, that is, about two years and 11 months late. 37The applicants contended that they promptly instituted appeals "following the dismissal and discharge of the two co-defendants on 22 October 2012 following the prosecutor's independent review of the evidence..." and that there would be a miscarriage of justice if the extensions were not granted. Further that in appeal ground 4: (a) the prosecution failed to disclose material and evidence and this only recently became known to the Appellant; (b) fundamental flaws and problems in the prosecution's expert reports were only identified recently; and (c) the prosecution's failures to investigate at all or adequately material matters that weakened and undermined the prosecution's case or would tend to assist the defence case were only recently identified. 38The applicants conceded that the reference to "recently" above was a reference to "the period in 2012 in which the summary trial of Mr Chevalley and Mr Grugeon continued". That is, between March and October 2012. In other words, it was contended that the flaws and failures alleged against the prosecutor only came to light in the proceedings against Messrs Chevalley and Grugeon and once the charges in those proceedings were dismissed the applicants "promptly instituted" their appeals. 39Although it seems to be inferred by the applicants, there is no evidence at all that the proceedings in relation to Messrs Chevalley and Grugeon were dismissed because of alleged problems with the prosecution case, now the subject of complaint by the applicants. 40Furthermore, some of the material that the applicants now rely upon, which they submit is most significant and which they contend is exculpatory, was known to them as early as May 2012 (for example, the "Sunol disc" which contained various versions of a draft report allegedly not previously seen by the applicants prepared by Mr Sunol, an inspector of mechanical engineering employed by the DPI, who gave expert evidence in the proceedings for the prosecutor). There was no explanation as to why the revelation of this material in May 2012 did not prompt an appeal application at the time. Moreover, as it will be seen, there was no explanation why the applicants' previous legal advisors, who were aware of some of the facts now relied upon by the applicants, did not act differently. 41As the respondent submitted, there should have been a coherent summary of all the matters that are said to give rise to the appeal and identification by way of admissible evidence as to when the applicants and their initial and current legal advisors became aware of the facts they now rely upon. This should have been done in order that the Court may make an assessment as to whether there was a satisfactory explanation for what is, on its face, a very lengthy delay in bringing the appeal. 42Nevertheless, we do not propose to refuse an extension of time on the basis of a lack of satisfactory explanation for the delay in filing the appeals. This is because we are prepared to give the applicants the benefit of the doubt that the matters they contend came to light in the Grugeon/Chevalley proceedings did not coalesce in their minds as providing grounds for an appeal until dismissal of the charges in those other proceedings. Principles governing change of a plea of guilty 43In Meissner v R [1995] HCA 41; (1995) 184 CLR 132 at 141 (footnotes omitted): A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. 44In the same case at 157, Dawson J stated (footnotes omitted): It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud 45In Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 at 510-511, Dawson and McHugh JJ stated: An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence.... 46In the same case, Gaudron and Gummow JJ stated at 531: There is more to the grant of leave to withdraw a plea than alteration of the record. Ordinarily, it involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law (See, for example, Stanton v Dawson (1987) 31 A Crim R 104. See also Sagiv (1986) 22 A Crim R 73 at 80 per Lee J; R v Roach (1990) 54 SASR 491 at 495.), inability to obtain legal representation (See, for example, R v Clayton (1984) 35 SASR 232; Stanton v Dawson (1987) 31 A Crim R 104) or if the interests of justice otherwise require (See, for example Webb and Hay (1992) 64 A Crim R 38. See also Middap (1989) 43 A Crim R 362; Boag (1994) 73 A Crim R 35 at 36-37 per Hunt CJ.). 47In Sagiv v R (1986) 22 A Crim R 73; Lee J (with whom McInerney and Campbell JJ agreed) stated at 81: The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the Judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence (R v O'Neill [1979] 2 NSWLR 583) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings. 48In Liberti v R (1991) 55 A Crim R 120, Kirby P (with whom Grove and Newman JJ agreed) at 122 stated: This Court has power to set aside a conviction recorded following a plea of guilty. See R v Forde [1923] 2 KB 400, 403; Gower v Ross [1959] SASR 278; R v Stewart [1960] VR 106; R v Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears: (a) That the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or (b) That the appellant, upon the admitted facts, could not in law have been convicted of the offence charged. See esp R v Caruso (1988) 37 A Crim R 1 at 26. For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence. See R v O'Neill [1979] 2 NSWLR 582; 1 A Crim R 59; R v Sagiv (sic) (1986) 22 A Crim R 73 at 81. See also Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599 per Kirby P. 49In R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, Spigelman CJ, in considering the appropriate test to be applied to withdrawal of a plea and after reviewing the relevant authorities, referred with approval at [26] to what Badgery-Parker J (with whom Wood and Matthews JJ agreed) said in R v Davies (Supreme Court of New South Wales, Court of Criminal Appeal, 16 December 1993, unreported): The appellant's submissions that it would in the circumstances be unfair to hold him to his plea draws attention to the two factors which to my mind are the significant factors in this case. The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv) and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea 'was not really attributable to a genuine consciousness of guilt' (per Sholl J in Murphy supra). If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Sholl J 'an issuable question of guilt'- to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial. 50 At [28] Spigelman CJ stated: [28] Nothing in the material before the Court in this case suggests anything of this character [ie, real question about the guilt of the accused].... In the present case no attempt has been made to suggest that the Appellant might not be guilty. The case for the Appellant rises no higher than, if certain evidence had been rejected, he would not have been found to be guilty. 51In R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310, after referring to cases including Boag v R (1994) 73 A Crim R 35 at 36 per Hunt CJ at CL, R v Hura (2001) NSW CCA 61, Maxwell, Davies, Toro-Martinez and Meissner, Wood CJ at CL stated at [20]-[21]: [20] The principles established by these decisions are now settled. As a consequence, the present appeal hinges upon three considerations: a) whether the advice given to the appellant was or was not imprudent and inappropriate; b) whether his plea was or was not attributable to a consciousness of guilt; and c) whether the material before this court shows that there is or is not a real question about his guilt. 52It is also relevant to refer to what Hunt CJ at CL said in Igjnatic v R (1993) 68 A Crim R 333 at 336 and 338 (Finlay and James JJ agreeing): The sole ground of appeal in relation to the appellant's conviction is that a miscarriage of justice had occurred as a result of the incompetence or negligence of his counsel and solicitor at the trial in four specified respects to which I will refer shortly. The law to be applied by this Court in such a situation was recently stated in Birks (1990) 19 NSWLR 677 at 683-685; 48 A Crim R 385 at 390-392. As a general rule, an accused person is bound by the way in which the trial is conducted on his behalf, regardless of whether his instructions were carried out, and a conviction will not be set aside because decisions by his legal representatives as to the conduct of the trial were made without or contrary to instructions or because those decisions involved errors of judgment or even negligence. Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere. ... It is not sufficient that the appellant may have merely lost a chance to raise various issues which were not raised at the trial. There was no miscarriage of justice unless it can be shown that there was at least a substantial chance that the appellant would have succeeded in relation to those issues. 53It is apparent from the authorities that: (1) The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence. (2) A person who has pleaded guilty will be permitted to withdraw that plea where it has been shown that a miscarriage of justice has occurred. The applicant for such permission bears the onus of showing the existence of that miscarriage. There must be shown to be some circumstance that indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt; there must be a real question about the guilt of the accused. (3) A miscarriage of justice may occur where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. (4) A grant of leave to withdraw a plea would involve a consideration of the circumstances in which the plea was made, with leave being granted if, for instance, it resulted from a mistake of fact or a misunderstanding of the law, or inability to obtain legal representation, or if the interests of justice otherwise require. (5) Withdrawal of a plea of guilty may involve a consideration of whether the advice given to the applicant was or was not imprudent and inappropriate or "flagrantly incompetent". (6) Courts will approach any attempt to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. Applicants' complaints 54It is convenient at this stage to identify the applicants' complaints regarding the prosecutor's alleged failures to meet his obligations in relation to certain duties that are imposed on a prosecutor. These included a failure to disclose information, a failure to observe compliance with the code of conduct regarding expert evidence and a failure to act fairly. We also refer to what the applicants submitted regarding the conduct of proceedings by their previous counsel in the sentencing proceedings and how that may cause or contribute to a miscarriage of justice. 55Having elucidated the applicants' complaints and the legal principles that the applicants contend underpin their complaints, we shall then turn to the specific allegations by the applicants that are said to manifest the prosecutor's failure to meet his prosecutorial obligations. Prosecutorial duty and disclosure of information 56The applicants' fundamental complaint in seeking an extension of time to appeal was that the prosecutor failed in his duty to disclose information, which led to a miscarriage of justice. It was alleged that over 88 documents, items of information or things were not disclosed by the prosecutor to the applicants before the trial, during the trial, during the sentencing proceedings or before the sentencing judgment was delivered. 57It would appear to be the case that at common law, subject to the question of public interest, the prosecution must disclose documents that are material. Documents are material if they can be seen, on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case; or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b): R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 at [48] per Hodgson JA, cited with approval in R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 at [20] and in Cornwell v R [2010] NSWCCA 59 at [210] per McClellan CJ at CL, Johnson J agreeing and per Simpson J at [297] and in R v Richard Lipton [2011] NSWCCA 247 at [77] per McColl JA, Hislop J agreeing, R S Hulme J not disagreeing. 58In Lipton, McColl JA also stated at [80]-[82]: [80] Failure by the prosecution (which includes the police) to disclose all relevant evidence to an accused may, in some circumstances, require the quashing of a verdict of guilty: Grey v R [2001] HCA 65; (2001) 75 ALJR 1708; Mallard v R (at [17]) per Gummow, Hayne, Callinan and Heydon JJ. This is because a breach by the prosecutor of the duty to act fairly, with due regard to the interests of the accused, might amount to a material procedural irregularity in the trial producing a miscarriage of justice: Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 (at [58]) per Winneke P, Charles and Chernov JJA. There is nothing, in my view, in either the DPP Act or the Disclosure Guidelines which would render inapplicable the common law principles concerning prosecutorial disclosure: cf Mallard v R (at [63]) per Kirby J. [81] The obligation to disclose includes, in an appropriate case, an obligation to make enquiries: AJ v R [2011] VSCA 215 (at [22]) per Weinberg and Bongiorno JJA (Buchanan JA agreeing). [82] As the Disclosure Guidelines make clear, the obligation to disclose is a continuing one. It clearly encompasses disclosing material relevant to sentencing proceedings. 59The applicants alleged that Mr Sunol, an expert witness for the prosecution whose expert report into the incident was tendered in the sentencing proceedings, made a prior inconsistent statement that was not disclosed by the prosecutor. Counsel for the applicants referred to Cooley v The State of Western Australia [2005] WASCA 160, where the Court of Appeal referred to Bradshaw v The Queen (unreported; CCA SCt of WA; Library No 970228; 13 May 1997) in which Malcolm CJ (with whom Pidgeon and Owen JJ agreed) set out with approval some passages from "Archbold" 1995 that referred to a "material matter" that should be disclosed by the prosecution as being: i) a previous inconsistent statement. Copies of such statements should be given to the defence, and it is submitted that it would not be sufficient simply to inform the defence of the existence thereof.... 60In Cooley it was further stated that: [57] The Chief Justice observed that it was noted in par 4.273 of Archbold that the above was by no means an exhaustive list and went on to say (at 11): "It was submitted that the duty of disclosure included the obligation to make enquiry to ascertain whether discoverable matter existed and to ensure its preservation: Archbold, para 4.268. Further, if material was available to the Crown, on the basis that it was known to the police, for example, the accused was entitled to it, whether or not its existence was known to prosecuting counsel: R v Ward (1993) 93 Cr App R 1. I accept these submissions. In such a case, however, it is not necessary for the appellate court to determine whether there was any fault on the part of the prosecutor in this respect. Innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice: Clarkson v DPP [1990] VR 745 at 755 per Murphy J; and see The Queen v Apostilides...". Expert reports 61The applicants alleged that the prosecutor failed to comply with obligations of experts and the Code of Conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005, namely that: (1) None of the prosecutor's experts say that, at the time he prepared his report, he had any familiarity with the obligations of an expert giving evidence. It was submitted this was contrary to what was stated in Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 at [32], [35]-[36] and Wood v R [2012] NSWCCA 21 at [715]-[758]. (2) The prosecutor settled expert reports, suggested changes to expert reports and was involved in the writing of reports by experts in relation to the substance of the reports. It was submitted this was contrary to what was held in: Whitehouse v Jordan [1980] 1 All ER 650 at 655 per Lord Denning; Whitehouse v Jordan (1981) 1 All ER 267 at 276 per Lord Wilberforce; Kelly v London Transport Executive (1982) 2 All ER 842 at 851 per Lord Denning; National Justice Compania Naviera SA v Prudential Assurance Co Ltd ("The Ikarian Reefer") [1993] 2 Lloyd's Rep 68 at 81-82 per Cresswell J, as cited with approval in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, and Wood at [719] - [721]; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242; (2005) 220 ALR 1 at [227]-[231]; and Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [19] per Lindgren J. (3) The involvement of the prosecutor in the expert reports led to inadmissible evidence being included rather than excluded: see for example, Wood at [466-[467], [726]. Duty of prosecutor to act fairly 62The applicants alleged that the prosecutor failed in his duty to act fairly. Counsel for the applicants referred to authorities regarding this duty and extracted various statements regarding the duty from Gilham v R [2012] NSWCCA 131 as follows: (1) "A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts." (original emphasis) (Rule 82 of the Barristers Rules cited at [384]). (2) Prosecuting counsel in a criminal trial represents the State and he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one (citing with approval what Deane J said at 663 in Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657(at [389])). (3) "A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly: R v Anderson (Hilton Bombing case) (1991) 53 A Crim R 421" (Greg James J at [49] -[51] R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 (at [390]). See also Bugeja v R; Johnson v R [2010] VSCA 321 at [58]-[63] and R v Soma [2003] HCA 13; (2003) 212 CLR 299 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [31] and Callinan J at [113] Conduct of applicants' counsel in the sentencing proceedings 63The counsel representing the applicants in the sentencing proceedings, and who included senior counsel, were not the same counsel representing the applicants in the present proceedings. The present counsel submitted that the general rule that an accused person is bound by the conduct of a criminal trial by that person's counsel is not of universal and inflexible application if the applicants demonstrated that a miscarriage of justice had occurred. 64Reference was made to Robert Clee v R [2009] NSWCCA 18 where it was said: [27] The following principles are applicable: (a) A trial may have been unfair, leading to a miscarriage of justice, by reason of the manner in which counsel appearing for the accused conducted the defence (Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576); (b) The "flagrant incompetence" of trial counsel may give rise to a miscarriage of justice (R v Birks (1990) 19 NSWLR 677); (c) The inquiry about miscarriage must be an objective inquiry - Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, per Gummow and Hayne JJ at [27]; (d) The question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred - Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 per Hayne J (with whom Gummow J agreed) at [25]. (e) The appellant must show that the failing or error of counsel was a material irregularity and there is a significant possibility that it affected the outcome of the trial - TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 per McHugh J at [79]; (f) In the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise (TKWJ per Gleeson CJ at [16]); (g) Regard may be had, inter alia, to the opening address of counsel for the appellant and statements of intention during the course of the trial to determine the tactical result sought to be achieved - Seymour at [37], [39]. See also Donai v R [2011] NSWCCA 173 at [10], [65]-[66]. Specific examples 65The applicants identified and relied upon six specific examples they alleged manifested the prosecutor's failures to comply with his prosecutorial obligations and which established each of the grounds of appeal were arguable and, hence, justified an extension of time. The six examples were referred to as: (1) the leak on the retarder valve; (2) the prosecutor's case that only 250 hour services were done about 400 hours apart; (3) expert reports; (4) the competence of the mechanic, Mr Boyd Taylor, and his familiarity with an accumulator; (5) mobile phone records; and (6) the role of the State of NSW (DPI). 66The applicants referred to other general examples, but presumably the six specific examples, which the applicants addressed at length in their written and oral submissions, constitute their best points. Whether leave to extend time to appeal should be granted 67In the context of considering the applications for leave to extend time to appeal we have examined the evidence, such as it is, and considered the submissions of the parties in relation to: (i) the leak on the retarder valve; (ii) the prosecutor's case that only 250 hour services were done about 400 hours apart; (iii) expert reports; (iv) the competence of the mechanic, Mr Boyd Taylor and his familiarity with an accumulator; (v) the mobile phone records; and (vi) the role of the State of NSW in its emanation as the Department of Primary Industries. 68In considering the evidence and submissions regarding the sixth matter, that is, the role of the DPI, we have come to the firm view that leave to extend time to appeal should be granted. We have reservations about whether the applicants have made out a case for extension of time in relation to the first five of these matters. However, on balance and because of the interconnectedness of some of the issues upon which the applicants rely, we have decided to grant leave to extend time to appeal in respect of the whole of the applications for leave to appeal and appeal. We propose to make appropriate orders and directions for the hearing of the applications once we have provided analysis of the role of the DPI, which immediately follows. Role of the State of New South Wales (DPI) 69There were essentially four limbs to this part of the applicants' contentions. The first was that there were acts or omissions of Departmental officers that broke the causal relationship between any identifiable risk and the applicants' alleged acts or omissions. The second was that non-disclosed and fresh evidence existed regarding inspections by Departmental officers of the quarry including the haul road that was not known to the applicants before they entered their pleas of guilty. Thirdly, that the prosecutor made unfair and incorrect submissions to the sentencing Court given the prosecutor was in possession of all of the evidence not disclosed to the applicants. Fourthly, the prosecutor's continuing duty of disclosure has still not been met. 70Before addressing these contentions we refer to the relevant parts of the sentencing judgment at [226]-[229]: [226] The haul road had an unsafe design. The section of road leading down to the embankment, which descended at a rate of 20 per cent, or more, required adequate measures to obviate the risk of a descending truck which was out of control and unable to negotiate the left-hand bend. In particular the height and continuity of the berms at the area where the truck left the embankment were inadequate to restrain an uncontrolled truck. [227] According to Mr Badior various discussions were held with quarry personnel and DPI inspectors, Messrs Healey and Chilman. Mr Badior said that Mr Chilman visited the quarry on 22 April 2005 at which time the haul road had been completed and was in use between Bench No 1 and No 4. Mr Chilman at that time, according to Mr Badior, did not raise any issues concerning the design of the haul road. Mr Chilman in fact invited Mr Badior to address an industry group about how to develop a quarry. If, the defendants assert, the defects in the haul road were so obvious why then did not one or more experienced and qualified DPI officers bring up the matters or issue some written directions? [228] A closer look at Mr Badior's evidence on this issue however reveals that Mr Badior referred to only one DPI inspector (Mr Chilman) who actually saw the haul road prior to the accident. Mr Badior did not say that the purpose of Mr Chilman's visit was to inspect the haul road. It was not suggested that Mr Chilman attended with the purpose of conducting an audit or inspection of the quarry, or of the haul road in particular. There was an audit of the quarry conducted by a mines safety officer, Matthew Barnes, on 23 July 2003 and a subsequent audit was also conducted by Mr Barnes on 4 April 2005. In oral evidence Mr Badior confirmed that the references to "audit" in his affidavit meant a desk audit. The reference to "inspection" in the affidavit, Mr Badior said, referred to the inspection of plant and equipment at the quarry by DPI inspectors on 15 November 2002, 15 and 16 April 2003, and 1 March 2004. It would appear however from Mr Badior's affidavit that the haul road was not completed until either late 2003 or early 2004. In any event Mr Chilman's failure to comment on safety issues with regard to the design of the haul road during his visit on 22 April 2005 does not detract from the statutory obligation on Hunter Quarries as an employer to ensure that the design of the haul road was safe. [229] With regard to the inadequate bunding on the haul road I have found that the majority of the berms were not at or above the recommended height of half the wheel height of the truck as set out in the Handbook. I have also found that Hunter Quarries was in possession and aware of the contents of the Handbook prior to 14 June 2005. According to Dr Rechnitzer the recommended height for berms on a haul road set out in the Handbook is too low to stop a loaded runaway truck. Dr Rechnitzer concluded that berms even at axle height would have been inadequate. 71In their submissions in the sentencing proceedings, the applicants addressed the issue of inspections by DPI officers: Mr Badior gave evidence about attendances at the quarry by various officers from the DPI. He was cross-examined on this aspect as follows. Q. What are you asking the court to draw from the material you have in here, are you intending the court to draw the inference that the Department in some way approved of the haul road as constructed? A. What I am saying is I have an open door approach to the DPI coming to the quarry. Q. Is that as high as you want to put the matter. You are not suggesting the Department in some way approved of the haul road before this incident are you? A. I am saying they drove on the haul road with me and there was no objection? And Q. When do you say approximately that Mr Chilman was present and saw trucks utilising the haul road? A. He was there I think on 22 May. Q. 2005? A. Yes, and he went up the haul road with me. The haul road was in use. Contrary to what is asserted by the Prosecutor at [54] of their submissions, there was never any suggestion by the Defendants that Mr Chilman was there to only inspect the haul road or to approve the same. Rather, it was understood it was part of his overall attendance at the site. The relevance of Inspector Chilman's attendance and that of other DPI officers goes to foreseeability, the design of the haul road and whether there were any obvious deficiencies in the haul road. The court is asked to have regard to the evidence of the various attendances and inspections of the quarry carried out during its development by a number of inspectors from the DPI and the absence of any directions being given in relation to the haul road design, gradient and provision of berms. That is not to suggest avoidance of the plea or imply that the responsibility ultimately lay with the DPI. Rather, it is raised in relation to the issue of foreseeability. If the design of the road was as transparently flawed as suggested by the Prosecutor then one would have expected a somewhat different reaction from the inspectors and mine safety officers who attended from 2003 onwards. Certainly, one would not expect an invitation to be extended to Mr Badior to speak to an industry group on the development of a quarry by Inspector Chilman, if the flaws in the haul road were so openly plain to see and contrary to the guidelines in the Handbook. Further, the culpability of the Defendants may have been different to the present case if, for example, there had been evidence of notices being issued and directions given to the First Defendant to change the design by lessening the gradient and/or by improving the berms. No such directions or notices were given until after the incident. 72The applicants contended it was "erroneous" that no reference was made by then counsel for the applicants, the prosecutor or Backman J to applicable provisions of the Mines Inspection Act 1901 (since repealed), namely, the powers of inspectors and mine safety officers in that Act in ss 36B and 37(1). Those provisions were relevantly in the following terms: 36B Inspector or mine safety officer to inform mine management of certain matters If, as a result of the exercise at or in connection with a mine or other workplace of any of the powers conferred on an inspector or mine safety officer under section 36 or 36A, the inspector or mine safety officer obtains any information or becomes aware of any practice at a mine that may, in the inspector's or mine safety officer's opinion, be relevant to the continued safe operation of a mine or the safety of the persons employed at a mine, the inspector or mine safety officer must, as soon as possible, so advise the general manager of the mine or, if the general manager is not present at the mine, the next most senior person at the mine. 37 Notice to be given of cause of danger (1) If in any respect not provided for by express provision of this Act or by any general or special rule any inspector finds any mine or any part thereof, or any matter, thing, or practice in or connected with such mine, or in connection with the control, management, or direction thereof to be dangerous or defective, so as in the inspector's opinion to threaten or tend to injure the health or the body of any person, such inspector shall give notice thereof in writing to the owner or general manager of the mine, and shall state in such notice the particulars in which the inspector considers such mine or any part thereof, or any matter, thing, or practice, to be dangerous or defective, and require the same to be remedied within a period named in such notice; and if the cause of danger is not removed or if such defect is not remedied within the period so named, the inspector may take proceedings against the owner or general manager for such default, and on being satisfied that such notice was justified by the matter complained of, the court may impose on such owner or general manager a penalty not exceeding 5 penalty units, and a further penalty of 1 penalty unit for every day after such decision during which such notice is not complied with. 73The applicants submitted that the State of New South Wales, acting through its Departments, was negligent or reckless because of the conduct of the State's Inspectors or Mine Safety Officers at the quarry conducting inspections and audits. That was because the State did not, before the accident on 14 June 2005, identify and recommend or require remedial action in respect of, inter alia, the manner of the construction of the haul road including the berms and the grade of the road at the point that it turned, notwithstanding the obligations imposed on inspectors and mine safety officers by the Mines Inspection Act. Consequently, the chain of causation between the alleged risk and the applicant's alleged failures to avoid the risk was broken. 74Alternatively, the failure to address the Mines Inspection Act was relevant to the statutory defence of not reasonably practicable under s 28(1) of the Act: WorkCover Authority of NSW (Inspector Mayo-Ramsay v Maitland City Council (1998) 83 IR 362 at 381 and WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [90]-[91]. 75In support of their further alternative submission that the evidence regarding the Mines Inspection Act was relevant in relation to sentence, the applicants referred to Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [241]-[242]. 76The first element of the applicants' contention then is that Inspector Chilman was negligent or reckless in failing to take action in accordance with his obligations under the Mines Inspection Act and, therefore, that broke the chain of causation between the risk and the applicants' failures to avoid the risk. This was not a matter pressed by the applicants in the sentencing proceedings, notwithstanding that they did submit that DPI officers, including Inspector Chilman, had travelled on the haul road and must have been aware of its condition. The applicants had asked the court, albeit in the context of foreseeability, to have regard to the evidence of the various attendances and inspections of the quarry carried out during its development by a number of inspectors from the DPI and the absence of any directions being given in relation to the haul road design, gradient and provision of berms. 77Of itself, the fact that there was no reliance placed on the Mines Inspection Act and the causation argument was not relied upon as a defence against the charges, is no reason why leave should be granted to extend time to appeal. Those propositions were available to be relied upon before it was decided by the applicants to plead guilty. The fact that counsel may not have provided advice in this respect, because of incompetence or otherwise, does not justify revisiting the issues on appeal unless it could be said to amount to "flagrant incompetence" involving or causing a miscarriage of justice: R v Birks (1990) 19 NSWLR 677 at 685 per Gleeson CJ or unless it satisfied the tests in R v Wilkes, namely: a) whether the advice given to the appellant was or was not imprudent and inappropriate; b) whether his plea was or was not attributable to a consciousness of guilt; and c) whether the material before this court shows that there is or is not a real question about his guilt. 78It is not surprising the causation argument was not raised prior to pleading guilty. What the applicants' contentions in this regard now amount to is novus actus interveniens: that the failure of Departmental officers, in particular Inspector Chilman, to take action regarding the unsafe condition of the haul road was the cause of the incident and not the applicants' failure to ensure employees were not exposed to risks to their safety because of the unsafe condition of the haul road. To succeed in that argument the applicants would have to show the condition of the haul road was not a substantial factor in causing the risk to Mr Smith to materialise: Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 214 IR 373; (2011) 213 A Crim R 340. 79Considering the fact that the applicants agreed (both in respect of the Amended Application for Order and Agreed Facts) the haul road was unsafe, including an absence of berms, and the evidence was to that effect, it seems to us the likelihood of the applicants being able to transfer the blame for the incident to the DPI, on the basis of a break in the chain of causation, would be negligible. 80In considering whether the haul road was unsafe and whether there should be agreement to that proposition as part of any guilty pleas, the applicants would need to have considered whether it was correct that a loaded truck discovered to be in the condition of truck 28 could safely navigate a road with a 1 in 5 gradient leading to a left hand bend where there was an inadequate bund wall. That seems to us, with the assistance of any advice from the applicants' experts, to be a reasonably straightforward exercise. In that context, having agreed the haul road was unsafe, it is difficult to see how the applicants could successfully contend their failure to ensure the haul road was safe was not a substantial cause of the risk. 81The next aspect of the applicant's argument was that if DPI officers had not foreseen the haul road as being unsafe it could not be expected that the applicants would do so. In other words, previous counsels' failure to advise the applicants that in light of the DPI's failure to foresee the unsafe condition of the road, there was a defence available under s 28 of the Act (namely, it was not reasonably practicable for Hunter Quarries to comply with s 8(1) of the Act because the unsafe condition of the road was not reasonably foreseeable) and this amounted to a miscarriage of justice. In this respect, Mr Bryan deposed that Mr Chevalley had advised him that persons acting for Hunter Quarries prior to entering a plea of guilty did not provide any advice to it concerning the potential availability of a defence based on the role of the DPI. Mr Chevalley was purported to have said that if he had known of the potential for such a defence to be explored, Hunter Quarries would not have entered a plea of guilty. 82The evidence accepted by Backman J, something that was entirely open to her Honour, was that: Mr Badior referred to only one DPI inspector (Mr Chilman) who actually saw the haul road prior to the accident. Mr Badior did not say that the purpose of Mr Chilman's visit was to inspect the haul road. It was not suggested that Mr Chilman attended with the purpose of conducting an audit or inspection of the quarry, or of the haul road in particular. 83Accordingly, on this basis, this case is not in the same class as Maitland City Council or Cleary Bros. In Maitland City Council three experts, years earlier, had specifically examined the safety of the particular issue that had given rise to the risk to safety (a cockerel box) and did not foresee any danger. In Cleary Bros, a Work Cover inspector had earlier examined the pit in question as part of a safety survey and had not recommended any barrier or fencing be installed to prevent falls into the pit. The trial judge held this was further evidence supporting the view that it was not reasonably practicable to construct a safe barrier. 84The applicants, however, referred to material they contend was not disclosed by the prosecution, material they say throws a new light on the question of whether officers of the DPI had inspected the haul road and berms. The material came to light during the Chevalley/Grugeon proceedings in 2012. The more significant aspects of that material included the following: (a) information that emerged from the cross-examination of Mr Paul Raftery, who was Investigation Unit Manager for the DPI who appears to have stated that a decision had been made within the DPI not to record formal interviews with Inspectors and MSOs regarding their dealings with the Karuah quarry because an objection was taken to doing so. The applicants infer this indicated some sort of "cover up". We note Mr Raftery's evidence in this regard was hearsay. Mr Raftery's evidence had not been completed and he was due to be recalled along with Inspector Chilman and MSO Barnes, but the discharge of Mr Chevalley and Mr Grugeon on 22 October 2012 meant this did not occur; (b) an Investigation Report by Mr Alwyn Piggot, Investigator for the DPI into the 14 June 2005 incident dated 7 July 2006, which refers to inspections of the Quarry by Inspector Chilman and MSO Barnes and DPI actions prior to the incident. In respect of Inspector Chilman the Report stated, inter alia: Inspector Chilman reported that he raised issues regarding the bunding of the haul road on several occasions. Grahame Chevalley in his record of interview of 12 December 2005 said that the inspector had advised the quarry to improve the bunding (refer to answer to question 55, Doc 3.21). ... Inspector Chilman said that he did not recall specifically examining the haul road. He reported that during some visits he had seen an excavator operating at a location somewhere near the top of the quarry but he believed that material was being dumped over the edge rather than transported down the haul road.... In respect of MSO Barnes it was stated in the Report that he reported that his activities in relation to the mine included evaluating mechanical equipment (fixed and mobile) and other matters. It was stated that the Terex trucks had not been evaluated by the department officers prior to 14 June 2005. Under the heading "DPI Actions Prior to Incident" it was stated: Department officers visited the quarry throughout the process of the development of the mine and continued visits subsequent to commissioning. First visits occurred on 2001. Department officers reviewed and confirmed documentation, inspected the physical layout of the mine, provided advice and assistance and carried out audits of the mine. (c) handwritten notes of Mr Piggot that, inter alia, recorded that MSO Barnes had visited the quarry eight times prior to 14 June 2005 and that Inspector Chilman had "Raised issues of bund walls on each visit"; (d) handwritten notes of Mr Paul Healey (a DPI Inspector) concerning the DPI's role in seeking telephone records. This concerned inquiries that were sought to be made by the DPI about calls received by Mr Smith on his mobile phone and whether any were received whilst he was driving truck 28 immediately prior to the incident. This is dealt with later in this judgment; (e) information derived from the cross-examination by the applicants of Mr Piggot on 23 July 2012 in the Chevalley/Grugeon proceedings regarding previously undisclosed notes made at an informal interview with Inspector Chilman on 2 May 2006 concerning the role of the DPI. Mr Piggot confirmed that Mr Chilman told him he had raised issues of the bund walls on each visit to the quarry on any parts of the haul road; (f) information derived from the cross-examination by the applicants of Mr Piggot on 23 July 2012 in the Chevalley/Grugeon proceedings regarding a conflict in the official notebook entries of MSO Barnes for 14 June 2005 compared to what Mr Barnes told Mr Piggot at a 2 May 2006 informal interview, namely, that in the undisclosed notes of the interview there were no notations indicating that on any of his visits to the quarry Mr Barnes had inspected the Tex trucks (he had only conducted mechanical inspections of fixed plant) but the notebook entry indicated that there had been an inspection of the Terex truck previously in relation to whether a seatbelt had been fitted; (g) information derived from the cross-examination by the applicants of Mr Warden (an employee of Hunter Quarries) on 13 March 2012 in the Chevalley/Grugeon proceedings that there were other quarries in NSW that had haul roads as steep a gradient as the one at the Karuah quarry; that Mr Warden had seen Departmental inspectors travelling up haul roads, which meant driving by and seeing the bunds Mr Warden had constructed; that Mr Warden stated no direction had been issued by any Inspector to fix up the bunds because they were unsafe. Similar evidence was given by two other witnesses, Mr Melville and Mr Mehan (presumably employees of Hunter Quarries), with Mr Melville saying he had seen a Departmental officer on his visits "go up and check the haul roads and the bund walls". 85The applicants further contended there was other material that the applicants had sought from the prosecution that was considered to be relevant, but as yet had not been disclosed. 86In raising the issue of the undisclosed material, the applicants were contending that it was relevant to whether a defence was available under s 28 of the Act. At the relevant time s 28 provided: 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 87In Cleary Bros, Walton J, Vice-President considered the proper meaning and application of the words "reasonably practicable" in the predecessor provision to s 28 (a) (s 53(a) of the Occupational Health and Safety Act 1983). At [87]-[88] his Honour stated: [87] It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. (emphasis added) [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 88His Honour's pronouncements in Cleary Bros were approved by the Full Bench in WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 at 467. See also Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57 at [68]; WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 259; and Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 240; (2000) 102 IR 57. 89On the evidence that was before Backman J, in considering whether the risk was foreseeable in the context of sentencing, her Honour did not find there had been an inspection by Departmental officers of the haul road. Her Honour seemed to find there was no evidence to support such a finding. Her Honour said (at [228]), "In any event Mr Chilman's failure to comment on safety issues with regard to the design of the haul road during his visit on 22 April 2005 does not detract from the statutory obligation on Hunter Quarries as an employer to ensure that the design of the haul road was safe." 90The undisclosed material appears to suggest Inspector Chilman raised issues regarding the bunding of the haul road on several occasions (apparently confirmed by Mr Chevalley) but on the other hand suggests, "Inspector Chilman... did not recall specifically examining the haul road." Evidence from Hunter Quarry employees in the Chevalley/Grugeon proceedings indicates Departmental officers were seen checking the haul road. 91The undisclosed material also raises the question of whether MSO Barnes may have inspected truck 28 prior to 14 June 2005. No mention is made in the sentencing judgment of any inspections of trucks by MSO Barnes at the quarry other than at [228], where Backman J stated: There was an audit of the quarry conducted by a mines safety officer, Matthew Barnes, on 23 July 2003 and a subsequent audit was also conducted by Mr Barnes on 4 April 2005. In oral evidence Mr Badior confirmed that the references to "audit" in his affidavit meant a desk audit. 92The effect of what the applicants were contending was that on the basis of the undisclosed material, it was arguable (subject to fresh evidence being admitted on any appeal) that Departmental officers had inspected the haul roads, including the bunds or berms and had not foreseen any risk to safety. Therefore, having regard to the approach in such cases as Maitland City Council and Clearly Bros, if experts such as inspectors of the DPI had not foreseen any risk, it was arguable that the risk was not reasonably foreseeable by the applicants, in which case it was not reasonably practicable to make provision against the risk occurring. 93Additionally, it was contended that it was arguable that MSO Barnes had inspected truck 28 prior to 14 June 2005. That being so it was arguable that MSO Barnes had not foreseen the risk associated with the condition of the vehicle and, therefore, it was arguable that the risk was not reasonably foreseeable by the applicants, in which case it was not reasonably practicable to make provision against the risk occurring. 94The applicants submitted the non disclosures were relevant to each of the four particulars of the charge and if it could be shown on appeal that the risk associated with the condition of the haul road and the risk associated with the condition of the truck were not foreseeable that would mean there had been a miscarriage of justice. 95As we perceive it, the position regarding the haul road and berms is as follows: (a) it was alleged in the Amended Applications for Order that the haul road was unsafe in that it did not have adequate continuous berms or other measures along the side of the road and its design was unsafe given its grade at the point where it turned and the absence of berms or adequate berms in that area; (b) the applicants pleaded guilty to the amended charges; (c) in a statement of Agreed Facts, the applicants agreed that: The haul road did not have adequate continuous berms or other measures along the side of the road. Some berms were less in height than half that of the Terex truck TA30 wheel height. There were parts of the haul road where the berms on the right-hand side of the road were not continuous. ... There were some concrete blocks located in a cluster on the embankment area. The blocks themselves were not fit for the purpose of bunding as they did not have energy absorption characteristics of the kind possessed by eg., sand and soil. The section of the road leading down to the embankment, which descended at a rate of 20% or more, required adequate measures to reduce or eliminate the obvious risk of a descending truck that was out of control being unable to negotiate the left-hand bend, crossing the short level space and plunging over the embankment. Such measures had not been taken, and the haul road accordingly had an unsafe design. (d) the expert evidence in the proceedings was that the berm in the embankment area where truck 28 left the road was too low or otherwise inadequate because it lacked the necessary energy absorption characteristics required for adequate bunding (the concrete blocks); (e) Backman J found that: The haul road had an unsafe design. The section of road leading down to the embankment, which descended at a rate of 20 per cent, or more, required adequate measures to obviate the risk of a descending truck which was out of control and unable to negotiate the left-hand bend. In particular the height and continuity of the berms at the area where the truck left the embankment were inadequate to restrain an uncontrolled truck. (f) the evidence before Backman J was that Inspector Chilman visited the quarry on 22 April 2005. Inspector Chilman at that time, according to Mr Badior, did not raise any issues concerning the design of the haul road. Mr Badior referred to only one DPI inspector (Mr Chilman) who actually saw the haul road prior to the accident. Mr Badior did not say that the purpose of Inspector Chilman's visit was to inspect the haul road. It was not suggested that Inspector Chilman attended with the purpose of conducting an audit or inspection of the quarry, or of the haul road in particular; (g) undisclosed material indicates that Inspector Chilman raised with Hunter Quarries issues regarding the bunding of the haul road on several occasions. This appears to be confirmed by Mr Chevalley who is reported to have said that the Inspector had advised the quarry to improve the bunding; and (h) undisclosed material indicates that Inspector Chilman did not recall specifically examining the haul road. 96If it were the case that Inspector Chilman did raise with the applicants issues regarding the bunding on each of his visits (and it appears Mr Chevalley acknowledged he had been advised to improve the bund walls), then depending on the nature of the issues raised by Inspector Chilman there would be no defence that it was not reasonably practicable to make provision against the risk occurring, at least in so far as the condition of the bund walls was concerned, because the applicants would have known of the risk. 97However, it is not known what the nature of the issues Inspector Chilman raised was and whether they were addressed. The indication in the undisclosed material was that Inspector Chilman raised issues regarding the bunding of the haul road on several occasions. If that is right, it means he must have inspected the walls (or some part of them) and made an evaluation about their condition. Despite the indication of Inspector Chilman raising issues about the bund walls, the walls at the point where the truck left the road remained inadequate. 98It may be the applicants ignored the issues raised by the Inspector. On the other hand, it remains a reasonable possibility that having inspected the berms Inspector Chilman failed to foresee - and consequently failed to bring it to the notice of the applicants - that on a section of road with a gradient of 1 in 5, in the absence of adequate bund walls, there was an "obvious risk of a descending truck that was out of control being unable to negotiate the left-hand bend, crossing the short level space and plunging over the embankment." If that was the case, the applicants had an arguable case for a defence under s 28 of the Act in respect of Particular A of the amended charge, but being unaware Inspector Chilman had inspected the bund walls - a fact allegedly not disclosed by the prosecution - were deprived of the opportunity to forensically explore this aspect. 99In relation to the question of inspection of truck 28 by MSO Barnes, there is no reference in the sentencing decision regarding any such inspection by DPI officers prior to 14 June 2005. Mr Piggott's notes of his interview with MSO Barnes on 2 May 2006, which were not disclosed to the applicants, has no notation of MSO Barnes having inspected the Terex trucks on any of his visits to the quarry. The only mechanical inspections referred to were in relation to fixed plant. Mr Piggott appeared to confirm this in his cross-examination by the applicants in the Chevalley/Grugeon proceedings on 23 July 2012. 100This would appear to give rise to an inconsistency in that in Mr Barnes' official notebook (a copy of which we do not have, but which is quoted from by counsel in the cross-examination of Mr Piggott and in respect of which it is not clear from the materials whether this notebook was disclosed to the applicants before they pleaded guilty) it purports to attribute to MSO Barnes (on some unidentified date) the statement, "A discussion took place between Paul Healey and Paul Drain and myself as to whether the truck [query whether "the truck" is truck 28] was fitted with a seatbelt. I said I was sure it had one as I had done an inspection previously and noted there was one". 101There are some deficiencies in the material put forward to justify an extension of time regarding departmental inspection of truck 28 prior to 14 June 2005 that reduces its probative value. However, if MSO Barnes did carry out a mechanical inspection of truck 28 before 14 June 2005 and did not foresee any risk arising from the condition of the truck, the applicants had an arguable case for a defence under s 28 of the Act in respect of Particular B and also perhaps Particulars C and D. 102On the basis of this analysis of the evidence and the potential for further evidence to be adduced on appeal, we consider leave to extend time to appeal should be granted. Applicants' Reply submissions 103The applicants submitted their Reply in written form. The respondent filed a "Rejoinder" to the Reply. The applicants were subsequently given leave to respond to the Rejoinder and did so in written form on 30 April 2013. 104 Most of what is said in the Reply, the Rejoinder and the applicants' response to the Rejoinder we have dealt with and, if not, it is because we consider it unnecessary to do so. That does not preclude matters such as the status of the Agreed Facts being the subject of further argument. However, we note that in R v Falls [2004] NSWCCA 335 it was held it will not be an error if the Court does accept and act upon the parties agreed facts. There it was held that in circumstances where the defendant had pleaded guilty and agreed to facts upon which the charge was to be based, that the court at first instance was entitled to disregard the evidence of the defendant in so far as it was inconsistent with, or additional to, the agreed facts. Howie J stated at [33] and [37]-[38]: [33] But the applicant's evidence that he simply wished to have a conversation with the complainant did not, in my opinion, have to be accepted by the sentencing judge. Nor in my view did his Honour have to sentence the applicant on the basis of his assertion that he withdrew from his conduct toward the complainant because of his sudden realisation of the consequences of what he was doing. I do not believe that a sentencing court is bound to accept evidence of any witness, the offender included, simply because the Crown does not deign to test the assertions made by the witness in cross-examination or to address the sentencing judge to the contrary of submissions made on the basis of the evidence given by the witness. ... [37] Where, as here, there is an agreed statement of facts placed before the sentencing judge, and there is also material either inconsistent with, or in amplification of, some aspect of the facts in that statement, the sentencing judge should not act upon that material without having brought it to the attention of the parties during the course of submissions so that the parties can deal with it. If the judge determines to sentence the offender on a factual basis other than in accordance with the agreed statement of facts, clearly the judge should refer to that matter during the course of the remarks on sentence. But if the sentencing judge determines to sentence the offender on the basis of the agreed facts, ignoring the material inconsistent with, or in amplification of those facts, then in my view there is no requirement for the judge to refer to the other material either during submissions or in the course of the remarks. Neither party can complain if the sentencing judge acts upon their formal agreement as to what are the relevant facts. [38] In the present case, during the course of his remarks Blanch DCJ recited the factual basis upon which he was sentencing the applicant in terms that were almost identical with the agreed statement of facts without venturing outside them either by reference to the applicant's testimony or the statement of the complainant that was in evidence before him. His Honour did not indicate either his acceptance of, or rejection of, the assertions of the applicant that he was simply wishing to speak with the complainant and that he had withdrawn from his attempt to detain her voluntarily and independently of any action by the complainant. In my view, his Honour was not required to come to any view about those two assertions because he had apparently determined to sentence on the basis of the agreed statement of facts. I believe he was entitled to do so even if it meant ignoring the other evidence before him, regardless of whether it favoured the accused or not and whether or not it was challenged or disputed. Further evidence 105As we earlier stated, we have decided to grant the applicants' applications for leave to extend time to appeal. It would appear, however, necessary to resolve the question of what evidence is to be received on the appeals pursuant to s 191(2) of the Industrial Relations Act before the hearing of the appeals may proceed. That will ultimately require a consideration of whether the material relied upon by the appellants in their application to extend time and any further material (which might arise from summonses to produce issued prior to the date of this judgment) should be admitted as fresh evidence in the appeal. Logically, that would seem to first require a consideration as to any issues arising in relation to the summonses. We have addressed this issue in the orders and directions that follow. Orders and directions 106The Full Bench makes the following orders and directions: (1) Pursuant to s 196 of the Industrial Relations Act 1996 and s 10(1)(b) of the Criminal Appeal Act 1912 leave is granted to Hunter Quarries Pty Limited and Richard Alexanda Badior to extend time to appeal against convictions and sentences imposed by Backman J on 30 October 2009 under the Occupational Health and Safety Act 2000 and consequential costs orders made by her Honour on 12 November 2009. (2) In respect of any summonses to produce that have been served on the prosecutor or the Department of Primary Industries prior to the date of this judgment and in respect of which the applicants claim material has not been produced pursuant to the summonses, the applicants shall identify to the prosecutor the material that has not been produced and which the applicants wish to have admitted in the appeals. This shall be done within 14 days of the date of this judgment. (3) In the event the prosecutor seeks to set aside the summons in whole or in part, it shall file and serve a notice of motion to that effect within a further 14 days. (4) The proceedings are listed before Walton J, Vice-President at 9.30am on Thursday 25 July 2013 for the purpose of making directions including the fixing of any hearing date in the event that it becomes necessary for the Full Bench to determine any issue arising from orders (2)-(3) hereof. (5) Liberty to apply to Walton J, Vice-President on reasonable notice. (6) Costs are reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2013