Director of Public Prosecutions v JCS and JMAL (No 2)
[2018] VCC 1004
•4 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CR-17-01446 and CR-17-01447
| Director of Public Prosecutions | |
| v | |
| JCS Fabrications Pty Ltd | First Accused |
| and | |
| The JMAL Group Pty Ltd | Second Accused |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2018 | |
DATE OF RULING: | 4 July 2018 | |
CASE MAY BE CITED AS: | DPP v JCS and JMAL (No 2) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1004 | |
RULING No 2
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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 accused company to amend defence response to raise material relevant to the ‘reasonable practicability’ of it taking certain measures
Legislation Cited: Occupational Health and Safety Act 2004 ss 20, 21(2)(a), 23
Cases Cited:R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 – WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Pty Ltd (2013) 123 IR 121 – Genner Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57
Other material cited: Judicial College of Victoria, Victorian Criminal Charge Book, ‘7.9.1.1 – Bench Notes: Employer’s Duty to Employee’
Ruling: Application 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 In relation to the ruling on JMAL’s existing paragraphs 10(i), (ii) and (iii) of the Response by the JMAL Group Pty Ltd to the Revised Opening of the Prosecution dated 27 June 2018, in my view they are relevant matters of fact that JMAL can open to the jury and seek to prove at trial.
2 What role they ultimately play may be a matter for argument at either the close of the Crown case, or when all the evidence has been given, and we are then discussing issues and the other matters that need to be raised under the Jury Directions Act2015.
3 So far as the proposed paragraph 10(vii) of the Response by the JMAL Group Pty Ltd to the Revised Opening of the Prosecution dated 3 July 2018 is concerned, JMAL wants to remove the existing paragraph 10(vii) and insert the following:
Even if Mr McRae failed to follow the system of supporting the load with a fork lift prior to undoing the loading straps, the Prosecution would still have to prove that there was a reasonably practicable measure which JMAL should have taken to maintain that system.
4 Particular (g) in charge 2 of the Indictment is in these terms: ‘The risk arose from the failure of JMAL to maintain a system with respect to the unloading of the plant by failing to ensure that a forklift supported the plant before the restraint strapping was released during the task of unloading the plant’.[1] ‘Ensure’ means ‘to make certain’.
[1] Emphasis added
5 I accept the submissions of Dr Neal S.C. based on the Judicial College of Victoria, Victorian Criminal Charge Book, ‘7.9.1.1 – Bench Notes: Employer’s Duty to Employee’[2] at paragraph 98, which refers to WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Pty Ltd,[3] where the bench notes say:
Where an employer sets up and properly implements a safe system of work, the mere fact that the system is not complied with does not, of itself, establish that s21 (2) (a) has been breached. The prosecution must prove that it was reasonably practicable for the employer to have taken further steps to guard against the breach of an established and properly implemented system. This may depend on whether the breach of the existing system of work was reasonably foreseeable.
[2] Last updated 2 October 2017
[3] (2013) 123 IR 121, 136 [40]–[42], [59]–[78] (Walton J Vice President, Wright J President, agreeing). See also Genner Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57 [68] (Wright J President, Walton J Vice-President and Hungerford J).
6 So we get back to the concept of reasonable foreseeability. Now that bench note is in relation to the prosecution proofs under s 21(2)(a), but in my opinion it is effectively importable into a prosecution under s 23(1) in the circumstances of this case.
7 In my opinion, that bench note is also supported, as Dr Neal submitted, by what the Court of Appeal said in CICG[4] at paragraphs [23] and [50] as follows:
[23]Had CICG contested the charge, the court would have had to decide whether the company had failed to provide and maintain a safe working environment and, in particular, a safe system of work. The court would not have been called on to decide whether, as a matter of law, the acts and omissions of Bacon were the acts and omissions of the company itself. Rather, the court would have had to decide whether, on the evidence of Bacon’s acts and omissions, and the resultant serious risks to which first Roach and then Podger were exposed, the company had done everything (reasonably) practicable to ensure the safety of its employees.
[50] The events of this day suggest a foolish or deliberate disregard of the company’s safety management system by three of its employees, as a consequence of the company’s failure over time to supervise and monitor its employees sufficiently in the course of the performance of their work and its over-reliance upon the discretion of employees in matters of safety. The conclusion is inescapable that its employees’ non-compliance with its safe system of work was not the consequence of a sudden lapse of judgment by them during these two days. The company’s duty was to ensure that its employees worked in accordance with the safety instructions that they had been given. The company’s submission that it could have done no more to comply with its statutory obligation to provide a safe system of work cannot be sustained.
[4] R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321, 326 [23], 332 [50] (Maxwell P, Buchanan and Redlich JJA)
8 Accordingly, on that basis I allow Dr Neal S.C. and Mr Russell, on behalf of JMAL to respond in the manner that they have foreshadowed in the amended response.
And I so rule.
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