Michael Dalzell v Andrew James Ferguson [2009] NSWIRComm 81

Michael Dalzell v Andrew James Ferguson [2009] NSWIRComm 81

Leave was granted but the appeal was dismissed because s 136(1)(a) of the Occupational Health and Safety Act 2000 is properly characterised as a strict liability offence to which the ground of exculpation of honest and reasonable mistake of fact may apply, and the Chief Industrial Magistrate did not err in finding that the appellant had no genuine or reasonably held belief that Mr Quirk and Mr Whitehead attended for improper purposes. The prosecution proved beyond reasonable doubt that both officials were authorised and attending for a legitimate site safety inspection and that the appellant obstructed them; the factual findings and treatment of the burden of proof disclosed no appealable...

Jurisdiction
Australia
Judgment Date
29 May 2009
Procedural Posture
Occupational Health and Safety Prosecution Appeal / Application for Leave to Appeal and Appeal Under S 197 of the Industrial Relations Act 1996 and S 105(3) of the Occupational Health and Safety Act 2000 From Conviction and Sentence by Chief Industrial Magistrate Hart
Outcome
Leave to appeal granted to the extent required; appeal dismissed; appellant ordered to pay respondent's costs of the appeal.
Legal Topics
['strict Liability' 'honest and Reasonable Mistake of Fact' 'obstruction of Authorised Officials' 'union Right of Entry' 'burden of Proof' 'duplicity' 'costs']
['occupational Health and Safety' 'industrial Relations' 'criminal Law' 'statutory Interpretation' 'appellate Procedure'] ['strict Liability' 'honest and Reasonable Mistake of Fact' 'obstruction of Authorised Officials' 'union Right of Entry' 'burden of Proof' 'duplicity' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Occupational Health and Safety Prosecution Appeal / Application for Leave to Appeal and Appeal Under S 197 of the Industrial Relations Act 1996 and S 105(3) of the Occupational Health and Safety Act 2000 From Conviction and Sentence by Chief Industrial Magistrate Hart

Legal Issues

  1. 1 ['Whether s 136(1)(a) of the Occupational Health and Safety Act 2000 is an offence of strict liability to which honest and reasonable mistake of fact may apply.' "Whether the Chief Industrial Magistrate erred in rejecting the appellant's asserted honest and reasonable belief that the union officials attended for purposes outside s 77 of the Occupational Health and Safety Act 2000." 'Whether findings of fact were against the weight of evidence, not open on the evidence, or not established by the prosecution.' 'Whether the charge was objectionable for duplicity because it alleged obstruction of both Mr Quirk and Mr Whitehead in one charge.' 'Whether leave to appeal should be granted.']

Ratio Decidendi

Leave was granted but the appeal was dismissed because s 136(1)(a) of the Occupational Health and Safety Act 2000 is properly characterised as a strict liability offence to which the ground of exculpation of honest and reasonable mistake of fact may apply, and the Chief Industrial Magistrate did not err in finding that the appellant had no genuine or reasonably held belief that Mr Quirk and Mr Whitehead attended for improper purposes. The prosecution proved beyond reasonable doubt that both officials were authorised and attending for a legitimate site safety inspection and that the appellant obstructed them; the factual findings and treatment of the burden of proof disclosed no appealable...

Court Disposition

Leave to appeal granted to the extent required; appeal dismissed; appellant ordered to pay respondent's costs of the appeal.

Orders

  • ['To the extent required, leave to appeal is granted.' 'The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal in an amount as agreed or assessed."]