Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 30 March 2012 M126/2011
ORDER
1.Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 18 February 2011 and, in its place, order that:
(a)leave to appeal to that Court be granted;
(b)the appeal to that Court be allowed;
(c)the conviction and sentence of the appellant, Baiada Poultry Pty Ltd, be quashed; and
(d)a new trial be had.
On appeal from the Supreme Court of Victoria
Representation
P G Priest QC with M J Croucher SC for the appellant (instructed by Norton Rose Australia)
D A Trapnell SC with K Argiropoulos for the respondent (instructed by Solicitor for Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Baiada Poultry Pty Ltd v The Queen
Criminal law – Appeal – Jury misdirection – Application of "proviso" – Appellant convicted of offence under Occupational Health and Safety Act 2004 (Vic) – Trial judge failed to direct jury that prosecution had to prove beyond reasonable doubt particular element of offence in issue – Whether appellate court able to conclude that no substantial miscarriage of justice occurred – Whether judicial "discretion" in applying proviso.
Words and phrases – "proviso", "substantial miscarriage of justice".
FRENCH CJ, GUMMOW, HAYNE AND CRENNAN JJ. The appellant was tried in the County Court of Victoria for failing, as an employer, "so far as is reasonably practicable, [to] provide and maintain for employees … a working environment that is safe and without risks to health"[1]. It is now accepted that the trial judge should have, but did not, direct the jury that the prosecution had to prove beyond reasonable doubt that the appellant's engagement of apparently skilled subcontractors to perform the work in the course of which fatal injury was inflicted did not discharge its obligation so far as was reasonably practicable to provide and maintain a safe working environment.
On appeal, the Court of Appeal of the Supreme Court of Victoria found[2] that the trial judge had made this error and that there was, accordingly, either "a wrong decision of any question of law or … on any ground … a miscarriage of justice"[3]. By majority, however, the Court of Appeal (Neave JA and Kyrou AJA, Nettle JA dissenting) concluded that "notwithstanding … the point raised in the appeal might be decided in favour of the appellant" the appeal should be dismissed, "no substantial miscarriage of justice [having] actually occurred".
[2]Baiada Poultry Pty Ltd v The Queen (2011) 203 IR 396.
[3]Crimes Act1958 (Vic), s 568(1). Although the Court of Appeal gave its judgment…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Baiada Poultry Pty Ltd v The Queen
Sign in free to access the full text
Details
AGLC
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14
Case
[2012] HCA 14
Decision Date
CaseChat Overview and Summary
Baiada Poultry Pty Ltd (the appellant) was convicted of an offence under section 21(1) of the *Occupational Health and Safety Act 2004* (Vic). The charge arose from a fatal incident on a farm where an independent contractor, engaged by the appellant, was killed while loading crates of chickens onto a trailer. The appellant appealed its conviction to the Court of Appeal of Victoria, which found that the trial judge had erred in failing to direct the jury that the prosecution must prove beyond reasonable doubt that the appellant's engagement of subcontractors was insufficient to discharge its statutory duty. Despite this finding, a majority of the Court of Appeal applied the proviso to section 568(1) of the *Crimes Act 1958* (Vic), dismissing the appeal on the basis that no substantial miscarriage of justice had occurred. The appellant then appealed to the High Court of Australia.
The High Court was required to determine whether the Court of Appeal erred in applying the proviso to section 568(1) of the *Crimes Act 1958* (Vic). Specifically, the Court had to consider whether, in light of the trial judge's misdirection regarding the prosecution's burden of proof concerning the appellant's statutory obligations under the *Occupational Health and Safety Act 2004* (Vic), it could be concluded that no substantial miscarriage of justice had occurred. The central legal issue was whether the evidence, as presented at trial and considered by the Court of Appeal, was sufficient to satisfy the jury beyond reasonable doubt of the appellant's guilt, notwithstanding the identified error in the jury directions.
The High Court allowed the appeal, holding that the proviso to section 568(1) of the *Crimes Act 1958* (Vic) could not be engaged. The Court reasoned that the trial judge's failure to direct the jury on the necessity for the prosecution to prove beyond reasonable doubt that the appellant had not discharged its duty under section 21(1) of the *Occupational Health and Safety Act 2004* (Vic) meant that the appellate court could not be satisfied that no substantial miscarriage of justice had occurred. Consequently, the High Court set aside the order of the Court of Appeal and ordered that leave to appeal be granted, the appeal be allowed, the conviction and sentence be quashed, and a new trial be had.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 18 February 2011 and, in its place, order that:
(a) leave to appeal to that Court be granted;
(b) the appeal to that Court be allowed;
(c) the conviction and sentence of the appellant, Baiada Poultry Pty Ltd, be quashed; and
(d) a new trial be had.
Background
Background to the litigation
The appellant now appeals to this Court and submits that the proviso was not engaged. That submission should be accepted. The appeal should be allowed, the orders of the Court of Appeal set aside and consequential orders made.The facts The appellant, Baiada Poultry Pty Ltd ("Baiada"), carried on a business of processing broiler chickens at its plant in Laverton North, Victoria. Baiada agreed with growers to supply them with chickens, feed and assistance; the growers agreed to raise the chickens until they were about 32 days old. Baiada agreed with growers that it would round up the chickens and transport them to its plant. Baiada engaged independent contractors, known as "chicken catchers", to round up and pack the chickens into crates and it engaged other independent contractors to carry the crates to its plant. Andrea and John Houben were contract growers for Baiada. Baiada arranged for a collection of chickens from the Houbens' farm to take place on the evening of 4 December 2005. Baiada engaged DMP Poultech Pty Ltd ("DMP") to do the chicken catching and Azzopardi Haulage Pty Ltd ("Azzopardi Haulage") to transport the crates of chickens from the farm to the plant. Azzopardi Haulage had to provide a prime mover and a driver; Baiada provided a trailer loaded with empty crates stacked into a series of steel pallets or "modules". DMP had to provide a forklift truck and driver to unload the modules at the farm, provide chicken catchers to catch the chickens and then use the forklift to load the modules of filled crates onto the trailer for Azzopardi Haulage to take back to the plant. All went well at the Houbens' farm until most of the crates had been filled and most of the modules put back onto the trailer. One of the chicken catchers, Jacob Devent, then asked if he could use the forklift to put some remaining modules onto the trailer. Although unlicensed, Mr Devent had been allowed to drive the forklift under the supervision of the supervisor of the chicken catching crew – Aaron Slocombe – and Mr Devent was permitted to drive the forklift to load the remaining modules. By this stage, the principal of Azzopardi Haulage, Mario Azzopardi, who had driven the prime mover and trailer to the farm, was strapping down the load. He asked Mr Devent to shift some of the modules to even up the load. As Mr Devent was doing this, he found a module he was trying to move was stuck and he asked Mr Azzopardi to give him a hand to get it unstuck. As Mr Devent moved the module, another module fell on and killed Mr Azzopardi.The legislation Part 3 (ss 20-34) of the Occupational Health and Safety Act 2004 (Vic) provided for general duties relating to health and safety. Division 2 of Pt 3 (ss 21‑23) provided for the main duties of employers. So far as now relevant, s 21 provided:"(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.Penalty:1800 penalty units for a natural person;9000 penalty units for a body corporate.(2)Without limiting sub‑section (1), an employer contravenes that sub‑section if the employer fails to do any of the following—(a)provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;(b)make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;(c)maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;(d)provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;(e)provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health."The provisions of s 21 were to be construed and applied having regard to s 20 of the Act which, as its heading recorded, dealt with "[t]he concept of ensuring health and safety". Section 20 provided:"(1)To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—(a)to eliminate risks to health and safety so far as is reasonably practicable; and(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—(a)the likelihood of the hazard or risk concerned eventuating;(b)the degree of harm that would result if the hazard or risk eventuated;(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;(e)the cost of eliminating or reducing the hazard or risk."The provisions of s 21(1) and (2) were also to be construed and applied having regard to sub‑s (3) of s 21 which, in effect, provided that reference in sub‑ss (1) and (2) to an "employee" included a reference to an independent contractor engaged by an employer and any employees of the independent contractor and that the duties imposed on the employer extended to those persons in relation to matters over which the employer had control. Section 21(4) provided that an offence against sub‑s (1) is an indictable offence.The presentment
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE AND CRENNAN JJ
(dissent)
HEYDON J
(dissent)
It was, therefore, not open to the Court of Appeal to conclude from the record of the trial that the charge laid against Baiada was proved beyond reasonable doubt. Because the majority in the Court of Appeal were wrong to reach the conclusion that the evidence led at trial proved the guilt of Baiada beyond reasonable doubt, the proviso could not be engaged. The Court of Appeal could not be satisfied that no substantial miscarriage of justice had actually occurred.Conclusion and orders For these reasons the appeal to this Court should be allowed. The order of the Court of Appeal of the Supreme Court of Victoria made on 18 February 2011 should be set aside. In its place there should be orders that leave to appeal to the Court of Appeal against conviction is granted, the appeal is allowed, the conviction and sentence are quashed and a new trial be had. This case concerns two important topics. One is workplace safety. The other is justice in criminal procedure. The appellant processed chickens at its plant. It made arrangements to raise, catch, crate, load and deliver them to that plant. Mr and Mrs Houben raised chickens for the appellant. The appellant arranged to collect some chickens from the Houben farm on 4 December 2005. The appellant provided a trailer containing empty crates into which the chickens were to be placed. The appellant also engaged two subcontractors. One was DMP Poultech Pty Ltd. It was to provide a forklift and driver to unload the empty crates. It was also to provide chicken catchers who were to catch the chickens on the farm, fill the crates, and load the full crates onto the trailer. The other subcontractor was Azzopardi Haulage Pty Ltd. It was to provide a driver and a prime mover to convey the loaded trailer from the Houben farm to the appellant's plant. One of the chicken catchers, who was not licensed to drive a forklift, began to do so while the trailer was being loaded. In the course of this activity Mr Azzopardi, the principal of Azzopardi Haulage Pty Ltd, was killed.The proceedings The appellant was convicted on one count of failing to promote and maintain for its employees, so far as was reasonably practicable, a working environment that was safe and without risks to health. That was a contravention of s 21(1) of the Occupational Health and Safety Act 2004 (Vic) ("the Act")[36]. Section 21(3) of the Act provided that "employee" included an independent contractor engaged by an employer and any employees of the independent contractor. And s 21(3)(b) of the Act provided that: "the duties of an employer under [s 21(1) and (2)] extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control."[36]See above at [8]. The appellant applied for leave to appeal to the Court of Appeal of the Supreme Court of Victoria. That Court held that the trial judge had erred in failing to direct the jury that they had to be satisfied that the appellant's engagement of two subcontractors was not sufficient to discharge the appellant's obligation under s 21(1). However, a majority of the Court of Appeal applied the proviso to s 568(1) of the Crimes Act 1958 (Vic)[37]. That is, although it decided the jury direction point in favour of the appellant, it dismissed the application for leave to appeal because it considered "that no substantial miscarriage of justice [had] actually occurred". [37]Section 568(1) provided:"(1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."The Notice of Appeal