Cummins v Guilfoyle

[2021] QDC 127

DISTRICT COURT OF QUEENSLAND

CITATION:

Cummins v Guilfoyle [2021] QDC 127

PARTIES:

ROLAND CUMMINS
(appellant)
v

AARON JOHN GUILFOYLE

(inspector)

FILE NO:

Appeal No 153 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

25 June 2021

DELIVERED AT:

Cairns

HEARING DATE:

20 May 2021

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   Set aside the orders and sentence made by the Magistrates Court on 17 March 2020 and 3 September 2020.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGSINT CONVICTION - appeal pursuant to s 222 Justices Act 1886 – charge of intimidating a Work Health and Safety inspector contrary to s 190 of the Work Health and Safety Act 2011 (Qld) – sufficiency of reasons for decision - whether reasons adequate to disclose onus and standard of proof to sustain verdict – witness credit – onus of proof – whether defect in evidence and other reasons militate against a retrial.

LEGISLATION:

Justices Act 1886 (Qld) s 222, s 223(1) & 227
Work Health and Safety Act 2011 (Qld), s 190
Criminal Code 1899 (Qld), s 24, 31 & 270.

CASES:

COUNSEL:

T Ryan for the Appellant

B Power for the Inspector

SOLICITORS:

Hall Payne Lawyers for the Appellant.

The Office of the Work Health and Safety Prosecutor for the Inspector.

Introduction

1. The appellant appeals his conviction on 3 September 2020 in the Magistrates Court held in Cairns, for intimidating a work health and safety inspector at a construction site on 4 April 2018 contrary to s 190 of the Work Health and Safety Act 2011 (Qld).

2. The trial proceeded over two days on 3 and 4 December 2019 when evidence was adduced by the prosecution and defence.  The parties were permitted time to prepare written outlines of argument and addresses were made on 29 January 2020.

3. The prosecution alleged that at the construction site of the Cairns Performing Arts Centre on 4 April 2018, appellant intimidated a workplace health and safety inspector, by moving closely towards him and screaming words to the effect of “you’re a fucking dog” three times.  The appellant does not deny this verbal outburst, but says that it was excusable because of the inspector’s conduct immediately before the outburst.  He contended that as he showed an iPad image to the inspector and pointed out deficiencies in the emergency evacuation plan, the inspector moved his arm and pointed his finger close to the CFMEU logo on the appellant’s shirt and aggressively said: “Is that what the CFMEU teaches you? Unsafe work practices?”  The appellant testified that he then felt belittled, embarrassed, and intimidated and responded as he did.  The appellant argued that the whole of the circumstances coupled with the inspector’s testimony showed that the prosecution did prove intimidation beyond reasonable doubt.  And, even if so proved, the appellant argued that the prosecution did not exclude defences under the Criminal Code (Qld) to prevent a repetition of act or insult (s 270) or reacting to a perceived threat of…