From the silent voice of death come the soundest lessons in life

The matter before us involved the death of a worker whose partner Cynthia I had come to know through the group.

The first thing that always hits me as I walk into the Industrial courts is how small and insignificant these court rooms feel.  You’d be lucky to seat 20 people in the area provided for public / family members and anyone listening in.  

It causes me to consider the possibility that perhaps there’s been little need for more because maybe history has shown there’s not that much interest in these matters after the initial news coverage of the incident is long forgotten.  In spite of having alerted the media to the matter today, I could see not one journalist.  My heart sinks.  I wish the public could see what goes on here and what happens beyond what they see on TV.

Brian Murphy was a truck driver.  He was killed in December 2006 when a load of steel that he was delivering to the defendant’s premises (Normetals Pty Ltd) became unstable as the forklift was unloading it.  Brian Murphy was on the opposite side of the truck as the load rolled over him.  Brian died that day leaving behind his children, his partner Cynthia, his father and sisters.  They were all there minus two of the children.

As I enter, I notice the Crown’s Solicitor, a young and very pretty lady, briefing Brian Murphy’s family.  Gosh ... Are these lawyers getting younger or is it just me getting old?  I so admire the my eye they fight the good fight.  Minus the pomp and glamour of their profession, I also think they have the toughest of jobs - it’s not only the good fight but it’s also the hard fight.   

Their work goes well beyond proving their cases in a court.  They also have the family to contend with.  They play an important role in assisting heart broken human beings through the process - because I’m certain she knows that these people will hear things today that they will never have heard before.  They (the family) all looked tentative and nervous...and of course that’s perfectly understandable.  The mind has to process all of what will be revealed piece by piece.  After more than 2 years of grief, questions, anger ... Well, yes, it’s a long time to be left wondering and hanging.  Now - their moment of truth.

Enter the defence team.  Ahh - there’s a familiar face.  I have seen this man many times when I was present over the years of ‘legal argument’ in relation to team Santos / Diemould and my own son’s death.  Well, Normetals had not skimped when it came to hiring a ‘gun’ legal rep.  I mean, a QC is a QC and they don’t come cheap.

The matter begins as the Magistrate enters the court room.  I will admit that I very much admire this gentleman having been where this family is before him in September 2006.  I was then so impressed with how he seemed to ask the very questions that I personally was at that moment asking myself -- and so I was really pleased to have the opportunity once again to see him at work.

Prosecution begins by outlining the complaint laid against the company.  I notice the charges have been ‘rolled’ into one.  I am pretty sure this has something to do with the matter that was being challenged by team Santos/Diemould ... Even though they were defeated at every turn to the High Court, I suppose some changes to the way complaints are drawn up were inevitable.  Legal jargon - we don’t need to bore anyone with that.

The Crown Solicitor outlines the events that ultimately ended up in Brian Murphy’s death.  The forklift driver had evidently made Brian aware that he was about to begin unloading.  Brian was on the left hand side of the truck and the forklift was on the right.  Brian was not seen leaving the area - but clearly the assumption was made that he had left the area...though no one thought to check - the safety system was woefully lacking.  Hence the complaint and why this matter is before the court.

Remembering that complaints laid against the OHS&W Act are required to be proven beyond reasonable doubt, without the testimony of the man that is now dead, no one can say for certain what was said to Brian Murphy - or what he heard  - and how aware he was as to when precisely that unloading would begin.  That’s the quandary - and it frustrates me to no end.  

There were no victim impact statements read out - and that’s a very personal decision.  There were quite a few submitted though.

From there the defence begins.  The first thing that was mentioned was how truly sorry and remorseful the company is.  They were looking for a discount because there was a guilty plea at the earliest possible opportunity.  I’m scratching my head - 10 months after a complaint is laid?  This is early?  Hmmm....

It gets rather uncomfortable after that.  We begin to hear things that suggest Brian Murphy ignored the directions that the truck was about to be unloaded and that he had left and then re-entered the zone.  There was suggestion that short of physically restraining him, what more could they do to stop truck drivers entering the unloading zone?  In other words - what was being implied here was that the deceased man (who is not here to defend himself) was being defiant and careless in relation to his own safety.

I looked over at Brian’s family and it was easy to see the distress at what they were hearing.  It’s gut wrenching to watch and I didn’t know Brian.  I can only imagine what they must have been feeling.  Cynthia had already left the court room unable to listen to this.  One of the family members went to be with her.  

I guess to some degree we all have to expect that a defence team will try to minimise ‘damage’ by creating scenarios that are ‘possible’ but I remind myself -- this is proof beyond reasonable doubt isn’t it?  Where was it said that this man ever left the side of the truck and then re-entered the zone?  

The Magistrate was immediately all over this in a flash - sticking to the facts.  He is a fair man and we are fortunate to have him in South Australia.

Finally - the defence finishes with questions of compensation in relation to the victim impact statements.  We’re now being told that just because someone’s caused you grief / loss etc, doesn’t mean you actually deserve to be compensated.  Hohum --- well our learned friend clearly is a detached man with little to no understanding of how this kind of trauma inflicts damage.  Alas - he’s doing his job ... Yes, yes, yes...get that.

Final response - prosecution comes back with comments relating to ‘facts’ in relation to Brian Murphy supposedly re-entering the ‘zone’ - and the lack of safety systems that could very easily have avoided this tragic event in the first place.

It was all over in a little over 2 hours.  Sentencing advise to follow on the 30th April 2009.

26th MARCH 2009