Director of Public Prosecutions v JCS and JMAL (No 1)
[2018] VCC 1003
•3 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01446 and CR-17-01447
| Director of Public Prosecutions | |
| v | |
| JCS Fabrications Pty Ltd and | First Accused |
| The JMAL Group Pty Ltd | Second Accused |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2018 | |
DATE OF RULING: | 3 July 2018 | |
CASE MAY BE CITED AS: | DPP v JCS and JMAL (No 1) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1003 | |
RULING No 1
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Subject:CRIMINAL LAW
Catchwords: CRIMINAL LAW – Occupational Health and Safety Act prosecution –Prosecution of employer under s 23(1) – Application by Crown to prevent second accused relying on material contained in its defence response which was irrelevant – Whether acts of employee acting in the scope of his employment are the acts of the employer – ‘Reasonable practicability’ – relevance of foresight of particular circumstances creating risk to health and safety
CRIMINAL LAW – Occupational Health and Safety Act prosecution –Prosecution of employer under s 23(1) – Application by first accused to lead evidence of good character
CRIMINAL LAW – Occupational Health and Safety Act prosecution –Prosecution of employer under s 23(1) – Application by first and second accused to prevent Crown relying on job safety analysis carried out by third party – Whether relevant evidence
Legislation Cited: Occupational Health and Safety Act 2004 ss 20, 21, 23 – Evidence Act 2008 s 55
Cases Cited:ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409 – R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 – Chugg v Pacific Dunlop Ltd (No 2) [1999] 3 VR 934 – Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 – R v Powercor (Australia) Ltd (2005) 147 IR 279 – R v Rowton (1865) 169 ER 1497 – Melbourne v R (1999) 198 CLR 1 – Attwood v R (1960) 102 CLR 353.
Other material cited: Judicial College of Victoria, Victorian Criminal Charge Book, ‘7.9.1.1 –Bench Notes: Employer’s Duty to Employees’ – ‘4.3.1 – Bench Notes: Character Evidence’
Ruling: Prosecution application granted in part – First accused application refused – First and second accused application for exclusion granted
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Hannebery with Ms S Keating | Mr J Cain, Solicitor for Public Prosecutions |
| For the First Accused | Mr M Latham | Destra Law |
| For the Second Accused | Dr D Neal S.C. with Mr S Russell | Sparke Helmore Lawyers |
HIS HONOUR
1 Dealing first with paragraph 5 of the defence response of the JMAL Group dated 28 February 2018, I see no problem with the content of that paragraph. If the Crown seek to lead evidence to contradict the statement that, ‘Mr McRae was a very experienced and capable driver’, I will deal with the admissibility of that evidence at the appropriate time. The same applies to a similar statement in paragraph 10(i).
2 Turning then to paragraph 6, I understand that paragraph will be reformulated to remove the reference to Mr Dyall being ‘surprised’. Accordingly, I no longer have to rule on that.
3 In so far as sub-paragraphs 10(vii) and (viii) are concerned, I have been greatly assisted by the decision of the Victorian Court of Appeal in ABC Developmental Learning Centres Pty Ltd v Wallace.[1] I particularly refer to the court's discussion regarding attributing to the company the conduct of its staff at paragraphs [13]–[17], [19]–[21], [24]–[26] and [28].
[1](2007) 16 VR 409
4 The general facts of that case dealt with s 27(1) of the Children Services Act 1996, however, the court drew analogies between that provision and the comparable provisions of the Occupational Health and Safety Act 2004. What had happened in that case was that a child got out of the playground and it was alleged there had been a failure to supervise the child. There were three staff members who were on duty and who should have been supervising the children.
5 The company was prosecuted for its failure to ensure, in accordance with s 27(1), that all children being cared for and educated by the service were adequately supervised at all times.
6 It was argued that because the company had engaged the teachers to supervise the children, that that was all they needed to do, and the acts of the teachers could not be effectively brought home to the company.
7 At paragraph 13 the court drew parallels between the provisions of the Children's Services Act and the Occupational Health and Safety Act. The court referred to CIGC,[2] which was discussed yesterday. The court said:[3]
[2] R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
[3] Citations omitted
[13] CIGC concerned a breach of the general safety duty imposed by s 21 (1) of the Occupational Health and Safety Act 1985, which obliged an employer to:
…provide and maintain so far as is practicable for employees a working environment that is safe without risk to health.
[14] The same duty is now imposed by s 21 (1) of the Occupational Health and Safety Act 2004. Breach of that general safety duty does not depend on proof of mens rea. There is no defence of honest and reasonable mistake, so the liability is properly to be regarded as absolute.[4]
[4] ABC Developmental Learning Centres Pty Ltd v Wallace 16 VR 409 [13]-[14] (Maxwell P, Chernov and Neave JJA).
8 Now, I understand what Dr Neal S.C. says about what the High Court has since said about that, but for present purposes, the court goes on to explain what it means by that. And I think, Dr Neal, in your submissions you make that point.
[14] Because of the practicability qualification, the obligation is not absolute but the liability for breach is absolute nevertheless. Unlike the position in Tesco Supermarkets Ltd v Nattrass, there is no ‘due diligence’ defence, nor is it a defence to show that the breach was ‘due to the act or default of another person.
[15] It is immaterial at what level in an organisation the safety breach occurs. Adapting what was said by the Court of Appeal in R v British Steel plc (‘British Steel’) (in relation to the UK equivalent of s 22 of the Occupational Health and Safety Act 1985), an employee:
…will only be exposed to the risk if the system (if any) designed to ensure his safety has broken down and it does not matter for the purposes of [s 21] at what level in the hierarchy of employees that breakdown has taken place.
In a commentary on British Steel, published in the Criminal Law Review, Professor Sir John Smith said:
…Where a statutory duty to do something is imposed on a particular person (here, an ‘employer’) and he does not do it, he commits the actus reus of an offence. It may be that he has filed to fulfil his duty because his employee or agent has failed to carry out his duties properly but this is not a case of vicarious liability. If the employer is held liable, it is because he, personally, has filed to do what the law requires him to do and he is personally, not vicariously, liable. There is no need to find someone – in the case of a company, the ‘brains’ and not merely the ‘hands’ – for hose acts the person with the duty can be held liable. The duty on the company in this case was ‘to ensure’ – ie to make certain – that persons are not exposed to risk. They did not make certain. It does not matter how; they were in breach of their statutory duty and, in the absence of any requirement of mens rea, that is the end of the matter (emphasis by Court of Appeal).
9 Our court then proceeds by quoting from R v Gateway Foodmarkets Ltd[5] as follows:
[5][1997] 3 All E R 78
[16] The English Court of Appeal adopted the same approach in. The court held that the employer company had breached the equivalent of s 21 (1) when its employee was exposed to the risk of injury:
…Not by any act or omission of the [company], meaning their head office personnel or senior management who could be identified with the company itself, but by those of their employees who were not in that category, specifically the store manager or the section managers who had allowed the irregular [unsafe] system to grow up [which led to the employee's death] and who had implemented it in contradiction of their instructions from head office.
[17] In the view of the Court of Appeal, the general duty provision should be interpreted so as to impose liability on the employer whenever the relevant event occurred, namely, a failure to ensure the health and safety of an employee:
…The duty under each section is broken if the specified consequences occur, but only if ‘so far as is reasonably practicable’ they have not been guarded against. So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning ‘taken by the company or on its behalf’. In other words, the breach of duty liability under the section does not depend upon any failure by the company itself, meaning those persons who embodied the company, to take all reasonable precautions. Rather, the company is liable in the event that there is a failure to ensure the safety etc of any employee, unless all reasonable precautions have been taken — as we would add, by the company or on its behalf…
…
[I]f the test is whether all reasonable precautions have been taken by the company or on its behalf, then it would not seem to be material to consider whether the individual concerned, who acted or was authorised to act on behalf of the company, was a senior or a junior employee. [Emphasis added.]
10 Our Court of Appeal, after quoting those passages, continues:
[17] …This analysis was adopted by a differently-constituted Court of Appeal in R v Nelson Group Services (Maintenance) Ltd, a case relied on by ABC in this appeal.
11 Then at paragraphs 19–21, and this is of course addressing the particular legislation there, our Court of Appeal continues:
[19] Under s 27 (1), the proprietor has a duty to ensure — that is, make certain — that a certain state of affairs exists viz adequate supervision of all children. Like s 21 (1) of the Occupational Health and Safety Act, s 27 (1) is framed to achieve a result. Unless there is adequate supervision, the company is in breach. Liability under the section does not depend upon any failure by the company itself, meaning by those persons who “embody the company”. If it is proved that there was not adequate supervision, it is immaterial where in the organisation the failure occurred (emphasis in original).
[20] Senior counsel for ABC argued that the duty under s 27 (1) of the CS Act was distinguishable on two grounds from the duty under s 21 (1) of the Occupational Health and Safety Act. The first was that the word “adequate” in s 27 (1) introduced an element of fault, such that proof of negligence on the part of the proprietor was an element of the offence under s 27 (1). Reference was made to s 12.3 of the Criminal Code Act 1995 (Cth). The second ground of distinction was said to be that s 27 (2) imposed a separate and complementary duty on staff members to ensure adequate supervision.
[21] In our view, there is no distinction on either ground. As to the first ground, the word “adequate” in s 27 (1) does not introduce the notion of fault (negligence) into that provision, any more than the words “so far as is reasonably practicable” introduce the notion of fault into s 21 (1) of the Occupational Health and Safety Act. In each case, the words of qualification define the scope of the duty, that is, define the state of affairs which it is the duty of the employer/proprietor to bring about and maintain. They “prescribe the measure of the precautions to be taken”. What it is “reasonably practicable” for an employer to do depends, in part, on what the employer knows — or ought to know — about the risk in question and about how it might be eliminated or reduced. But this does not mean that a breach of the duty (under s 21 (1)) to do what is reasonably practicable requires proof of negligence.
12 Then at paragraph 24:
[24] As to the second ground of distinction, the Occupational Health and Safety Act also imposes a complementary safety duty on employees: s 25 (1). The existence of that parallel duty does not limit the scope or nature of the duty imposed on the employer. Rather, the imposition of parallel duties on employer and employee is intended to promote the object of ensuring workplace safety…
13 Then further at paragraphs 25 and 26:
[25] ABC submitted that the conclusion arrived at by the magistrate, and by the judge, amounted to the imposition of vicarious liability on the company as proprietor. For the reasons we have given, no question of vicarious liability arises. The duty to ensure adequate supervision is imposed on the proprietor itself. If that duty is breached, the proprietor itself is directly liable.
[26] ABC argued that, if the legislature had intended to make a corporate proprietor liable for all of the acts of every employee, agent and officer, no matter where in the employment hierarchy that person might be and no matter what his/her responsibility might be, that could have been done expressly. Attention was drawn to s 143 of the Occupational Health and Safety Act 2004, which provides:
143 Imputing conduct to bodies corporate
For the purposes of this Act and the regulations, any conduct engaged in on behalf of a body corporate by an employee, agent or officer (within the meaning given by section 9 of the Corporations Act) of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.
14 And then finally at paragraph 28:
[28] Statutory attribution provisions of this kind are engaged only where it is necessary to decide whether the conduct, or state of mind, of a servant or agent of a company is to “count as” the conduct, or state of mind, of the company. For the reasons we have given, no such question arises under s 27(1) of the CS Act. Thus the absence from the CS Act of a statutory attribution provision is irrelevant, just as the presence of such a provision (dealing with intention) in the Occupational Health and Safety Act 1985 was irrelevant in CIGC.
15 In my opinion, it follows from the Court of Appeal’s decision that the acts of McRae are the acts of the company for all relevant purposes.
16 I will now deal with the foreseeability aspect, and that is Chugg. In Chugg v Pacific Dunlop Ltd (No 2)[6] the headnote reads:
Per Ormiston J. The magistrate erred in dismissing two of the informations on the basis that the malfunction of the hopper was not reasonably foreseeable by the employer. Questions of foreseeability were imported into the test of what is practicable by the definition in s. 4, in particular para. (b). The fact that para. (b) of the definition in s. 4 referred to knowledge of a hazard or risk connoted that harmful consequences from the use of the plant or equipment would be foreseeable, but only in the sense that its hazardous or risky nature was known or ought to have been known by the employer. Once it was shown that the hazard or risk was either known or ought to have been known, it was irrelevant to look to questions of the reasonable foreseeability of any or any particular harmful consequences
[6] [1999] 3 VR 934, 964–966 [133]–[138] (Ormiston J dissenting in the result but not on this point). Note: - the judgment was delivered on 5 May 1989.
17 That was said in relation to the 1985 Act; in the current Act the equivalent provision is s 20(2)(c), which, I think, Dr Neal S.C. referred me to yesterday. So that is the headnote. It is elaborated slightly further in the judgment at paragraph 135 on page 965.
[135] The fact that para. (b) of the definition refers to knowledge of a hazard or risk connotes that harmful consequences from the use of the plant or equipment would be foreseeable, but only in the sense that its hazardous or risky nature was known or ought to have been known by the employer. Once it is shown that the hazard or risk was either known or ought to have been known [and I interpolate that in this case the hazard or risk was of the oven falling off the truck whilst being unloaded] it is irrelevant to look to questions of the reasonable foreseeability of any or any particular harmful consequences. The question then arises of taking that knowledge into account together with the other factors in the definition, namely the severity of the particular hazard or risk, any ways of removing or mitigating the hazard or risk which were known or ought to have been known by the employer, the availability and suitability of those means of removing or mitigating the hazard or risk, and finally the cost of its removal or mitigation. All those factors will have to be weighed objectively by the magistrate or jury in determining whether, so far as was practicable, the employer provided or maintained a safe working environment and one which was without risks to health. [My emphasis]
18 When the matter went on appeal to the High Court,[7] Dawson, Toohey and Gaudron JJ at pp 264–5 turned their minds to the relevance of reasonable foreseeability under s21 of the 1985 Act, which for present purposes is the same as the current Act. Their Honours said:
[7]Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
On behalf of the informant it was submitted that, quite apart from the question as to the onus of proof, the orders nisi obtained by him should be made absolute on the ground found by Ormiston J. in the Full Court, namely, that the magistrate erred in holding that s. 21(1) and (2)(a) of the Act permit “[a]n employer … to [raise] in his defence that the consequences were not reasonably foreseeable.”
It is clear from the definition of “practicable” in s. 4 of the Act that the issue of practicability requires some consideration of the question of foreseeability.
19 Now, Dr Neal S.C. and Mr Russell in their submissions drew my attention to that quote from Chugg, however, the High Court does not go on to explain what that means; that is, what ‘some consideration of the question of foreseeability’ actually involves. But their Honours do go on to say this:
But, in the view of Ormiston J., the magistrate wrongly held that the workplace was safe because the events which occurred on 2 November 1985 were not foreseeable and, presumably also in the view of Ormiston J., for that reason the question of practicability did not arise. Given the finding, on the charge brought under the Regulations, that the hopper door was dangerous, it would seem inevitable that the magistrate had regard to foreseeability on the particular issues of practicability as raised by the charges laid under the Act and not on the general issue whether the workplace was safe. However, for reasons that we now state, that matter need not be explored. [My emphasis]
20 Unfortunately, we do not get any further assistance from the High Court because as their Honours observed:
During the course of argument it was conceded by counsel for the informant that, if special leave were revoked in respect of the defendant's appeal, it would be appropriate to limit the grant of special leave to the informant to the primary question concerning onus of proof. In our opinion that concession was rightly made. It would be inappropriate to grant special leave to argue what is, in effect, an appeal against acquittal on factual grounds. Moreover, assuming the correctness of what was said by Ormiston J., the question would then arise whether, in the particular circumstances of this case, the charge under the Regulations should have been made in the alternative rather than cumulatively upon the charges under the Act. [My emphasis]
21 In the majority judgment in the Full Court in Chugg, Kaye and Beach JJ refer to a concept of reasonable foreseeability at page 947, paragraph 55 where their Honours say:
As to the defendant's contentions that it was not reasonably foreseeable that Everest would test the machine, that in the process of testing it he would place his head and upper portion of his body in the hopper and that whilst in that position the machine would malfunction causing the hopper door to close thereby crushing him, we simply say that the question of foreseeability of danger does not relate to the actual accident which occurred but relates to the risk to life and limb posed by the machine itself and/or the part of the machine in question. In other words, it is no answer for an employer to say, “I could not have foreseen that an accident would happen in this particular way.” If it is foreseeable that a machine or part of a machine might cause injury to a person if it is operated in an unguarded state, then there is a duty upon the employer to ensure that the machine or part of the machine in question is guarded. [My emphasis]
22 In the Bench Notes[8] under the heading, ‘Reasonable foreseeability’, at paragraph 69 it says:
Foreseeability of risk is related to reasonable practicability because it is not reasonably practicable to protect against unforeseeable risks. [My emphasis]
[8] Judicial College of Victoria, Victorian Criminal Charge Book, ‘7.9.1.1 – Bench Notes: Employer’s Duty to Employees’ (last updated 2 October 2017)
23 The Bench Notes cite, among other cases,[9] R v Powercor (Australia) Ltd[10] where at pages 301–2, paragraph 111 Cummins AJA (with whom Winneke P and Chernov JA agreed) said:
Counsel for the respondent submitted that the use of the notion of “foreseeability of the risk” may be appropriate to explain the employer's duty.[11] The use of the concept of foreseeability of risk was acceded to by both counsel below as appropriate in this case in the written directions
[9] The following cases are cited for this proposition: R v Powercor (Aust) [2005] VSCA 163; MacCarron v Coles Supermarkets Australia Pty Ltd & Ors (2001) 23 WAR 355; WorkCover v Fletcher Constructions [2002] NSW I R Comm 316; Marshall v Gotham Co Ltd [1954] AC 360
[10](2005) 147 IR 279
[11]Cummins AJA cited Chugg v Pacific Dunlop (No 2) [1999] 3 VR 934, 947, 966
24 Apparently, in the trial court the judge used the expression ‘reasonable foreseeability of risk’ with the consent of all parties. Cummins AJA at pages 302, paragraph 113 continued:
Foreseeability of risk was a notion appropriate as an expositional tool for the jury's consideration of the elements of the charge in the light of how the issues were joined by the parties. [My emphasis]
25 So whilst reasonable foreseeability is not in terms referred to in the legislation as a component of the concept of reasonable practicability, it does seem that some concept of reasonable foresight as an expositional tool has been imported into the element of reasonable practicability as provided for in the legislation.
26 Accordingly, in my opinion based on the Full Court’s decision in Chugg, which as far as I can ascertain still represents the law in this State, foreseeability is directed to the foreseeability of the particular hazard or risk eventuating, and not to the foreseeability of the actions of a particular individual bringing about that event. On that basis, I rule that it is not relevant and therefore not to be opened or to form part of the defence reply as stated in paragraph 10(vii) of the defence response, that it was not foreseeable that Mr McRae would depart from that system. In other words, the foreseeability of Mr McRae departing form the system is not to the point. It is the foreseeability of the risk or hazard eventuating, which is what has to be foreseeable.
27 Similarly, in paragraph 10(viii): ‘It was not foreseeable and against company rules for Mr Unmack, who was not an employee of JMAL to have been in the truck’. Once again, the foreseeability of Mr Unmack being there or not is not to the point. I would however hear argument as to whether that paragraph could remain in the following form: ‘It was against company rules for Mr Unmack, who was not an employee of JMAL, to have been in the truck’, by simply removing the reference to ‘not foreseeable’.
28 And in relation to the second accused’s defence response I so rule.
29 Now, on the matter of the character evidence raised by Mr Latham on behalf of the first accused, as I earlier read in CICG and also in ABC Developmental Learning Centres, a breach of s 21(1) of the 1985 Act does not depend on proof of mens rea. And the Court of Appeal also said there is no room for a defence of honest and reasonable belief, and there is no due diligence defence.
30 Moreover, the Bench Notes to character evidence, Bench Note 4.3.1[12] at paragraph 1 says: ‘Character evidence addresses a person's inherent moral character’. Reference is made there to R v Rowton (1865) 169 ER 1497; Melbourne v R (1999) 198 CLR 1, which I think we looked at yesterday; and Attwood v R (1960) 102 CLR 353. Since a company does not have an ‘inherent moral character’, in my opinion it is not open to a company to lead evidence of its good character in a prosecution of this nature.
[12] Judicial College of Victoria, Victorian Criminal Charge Book, ‘4.3.1 – Bench Notes: Character Evidence’ (last updated 29 June 2015)
31 Accordingly, I rule against the first accused leading evidence of good character.
32 That brings me to the Advance Crane Trucks ‘Job Safety Analysis’ document, which is relied upon by the prosecution in paragraph 6 of the Prosecution Opening where it says: ‘The evidence relied upon by the prosecution to establish that the step particularised in both the s.23 charges was reasonably practicable includes; (i) the Odrocs Towing SWNS dated 6 August 2014; (ii) The JCS Safe work procedures truck loading; and (iii) The Advanced Crane Trucks JSA’s (sic)". I understand no objection is taken paragraphs (i) or (ii).
33 It is my ruling that evidence relating to the job safety analysis (JSA) is not relevant evidence and, therefore, not admissible, as it envisages an entirely different procedure for unloading the second oven from the flatbed trailer using a crane and not a forklift. Accordingly, in my opinion, the matters referred to in the JSA, ‘could [not] rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.
34 I note in this context that it is not alleged by the prosecution that using a forklift to unload the first oven was inappropriate in the circumstances.
35 And I so rule.
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