Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Hearing dates: 13 November 2015 Date of orders: 11 March 2016 Decision date: 11 March 2016 Before: Bathurst CJ; Hidden J; Davies J Decision: 1 Appeal dismissed; 2 Appeal against penalty allowed; 3 Order that in lieu of the penalty imposed by the trial judge, a penalty of $100 000 be imposed on the appellant; 4 Grant the respondent leave to appeal against the costs order made by the trial judge; 5 Allow the appeal against the costs order; 6 Order that the appellant pay 50% of the respondent's costs in the court below. Catchwords: CRIMINAL LAW – breach of duty of employer under former OHS Act – whether employer failed to ensure the health, safety and welfare at work of its employees – whether failure to take steps that only minimise or manage risk can constitute breach of duty – whether particularised measure would have prevented exposure to risk – whether causal nexus between omission and risk

CRIMINAL LAW – appeal – where appeal under s 5AA Criminal Appeal Act – where appellate court finds error in proving charge on one particular, whether court can find appellant should have been convicted on a different particular – whether court has power to order a retrial

SENTENCE APPEAL – whether failure to consider objective seriousness of offence – whether trial judge erred in measuring quantum of fine against extent of employee's injury – whether failure to include in fine components for specific and general deterrence – whether trial judge wrongly took into account defendant's remorse – whether court should resentence