District Court New South Wales Medium Neutral Citation: R v BS & JH Bailey Pty Limited [2016] NSWDC 148 Hearing dates: 19 July 2016 Date of orders: 19 July 2016 Decision date: 19 July 2016 Jurisdiction: Criminal Before: KEARNS DCJ Decision: I grant the defendant leave to withdraw the plea of guilty entered on 9 February 2015. Catchwords: Occupational health and safety; a plea of guilty was entered by defendant; circumstances in which a plea of guilty may be allowed to be withdrawn; defendant not in possession of all the facts when the plea was entered Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: R v Hura (2001) 121 A Crim R 472 Category: Procedural and other rulings Parties: SafeWork New South Wales (prosecutor) BS & JH Bailey Pty Limited (defendant) Representation: Counsel: Mr E James, instructed by SafeWork NSW, appeared for the prosecutor Mr Bailey appeared in person for the defendant File Number(s): 2013/7297 RULING 1. This matter is listed before me for today and tomorrow, on a plea of guilty to a charge that the defendant company had breached an obligation it was under, under the Occupational Health and Safety Act 2000. The prosecution arises in respect of an incident that occurred on 22 January 2011, at a construction site at 131 Willarong Road, Caringbah. 2. Some residential units were being erected there and the defendant was the principal contractor on the site. It had subcontracted with a company called Future Form (NSW) Pty Ltd for the provision of steel fixing and formwork services. It had contracted with a company called Giraffe Scaffolding Pty Ltd for the provision of scaffolding. 3. The incident occurred when an employee of Future Form, Mr Roumaihi, fell from scaffolding adjacent to level 4 of the work being undertaken. In brief, he had a fall to the ground and suffered injury. 4. The plea of guilty was entered by the defendant on 9 February 2015. At the time, Mr Bailey, whom I take to be a director and shareholder of the defendant company, was unaware of a piece of evidence that has relatively recently come to light. That evidence is contained in an affidavit of Troy Mills affirmed on 19 August 2015. He was working on the site as a foreman for Giraffe. He appears to have been responsible for the erection of the scaffolding on the site. In that affidavit, he states that before he left the site on the day before the incident, "…I placed a sign which is commonly referred to as 'Scafftag' on which it is stated, in large capital letters, words to the effect of 'INCOMPLETE SCAFFOLD. DO NOT ENTER', at the entry to the staircase to the scaffold on the ground level." 5. That information was not made available to Mr Bailey until 21 June 2016, or soon thereafter. On that date, the defendants' solicitors, or by then, I think, former solicitors, sent a copy of Mr Mills's affidavit to the solicitor for the prosecutor. Mr Bailey has informed me that for one reason or another he did not get to see that affidavit until yesterday. Whether it was 21 June 2016 or yesterday or some time in between probably does not much matter. This is because the information certainly came to Mr Bailey well after the time that the plea of guilty was entered. 6. It is apparent that Mr Bailey has acted on receipt of the information promptly. 7. Leave to withdraw a plea of guilty is not something that should be granted lightly. Good cause needs to be established. In R v Hura (2001) 121 A Crim R 472, the Court set out circumstances in which the plea of guilty may be allowed to be withdrawn. They are set out particularly in para 32. The circumstances there are not exhaustive, but they do include the circumstance that has arisen in this case. That circumstance is where the person has entered a plea when he was not in possession of all the facts. 8. Clearly, the company was not in possession of all the facts when the plea was entered. The fact that has now emerged is a relevant one and potentially a significant one. At this point it is not for me to determine whether that fact would be determinative of guilt or innocence. It is sufficient that it is a fact that has relevance to that and potentially could be persuasive. 9. The case, regrettably, has a long history, going back to February 2013. Ms James, who appears for the prosecutor, has frankly acknowledged that none of the delays to date is the responsibility or the fault of the defendant in any way. It is unfortunate that the case does have a long history and that if I allow to the plea to be withdrawn, that will be added to. In fairness, however, I think that is the only appropriate course in the circumstances. Accordingly, I grant leave to the defendant to withdraw the plea of guilty entered on 9 February 2015. 10. I note now that the plea entered in this case is a plea of NOT GUILTY. 11. The matter is to be listed on 1 August 2016 for mention before the list judge. ********** 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: 26 July 2016