Director of Public Prosecutions v JCS and JMAL (No 3)
[2018] VCC 1005
•5 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 | 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: | 4 July 2018 | |
DATE OF RULING: | 5 July 2018 | |
CASE MAY BE CITED AS: | DPP v JCS and JMAL (No 3) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1005 | |
RULING No 3
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Subject: CRIMINAL LAW
Catchwords: CRIMINAL LAW – Interlocutory Appeal – Occupational Health and Safety Act prosecution – Application for certificate under s 295(3)(b) of Criminal Procedure Act 2009 – Applicant being tried in County Court for failure to ensure persons other than employee are not put at risk – Pre-trial application by accused to amend defence response by adding assertion that the prosecution has to prove that there was a reasonably practicable measure it should have taken to maintain a safe system for unloading a truck which it failed to take – Application for amendment opposed by Crown – Application granted – Whether interlocutory decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal – Certification granted
Legislation Cited: Criminal Procedure Act 2009 s 295 – Occupational Health and Safety Act 2004 s 23(1)
Cases Cited:Chugg v Pacific Dunlop Ltd (No. 2) [1999] 3 VR 934 – Lewis (a Pseudonym) v The Queen [2018] VSCA 40 – Frazier (a Pseudonym) v The Queen [2017] VSCA 370 – Reeves (a Pseudonym) v The Queen [2017] VSCA 343 – DPP v Paulino [2017] VSCA 38
Ruling: Certification 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 |
1 This is an application by the Crown for a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009 in respect of a ruling I gave yesterday (Ruling No 2).[1]
[1][2018] VCC 1004
2 The accused company, JMAL Group Pty Ltd (‘JMAL’), is charged on indictment with one charge of failing to ensure, so far as is reasonably practicable, that persons other than its employees are not exposed to risks to their health or safety arising from the conduct of its undertaking, contrary to s 23(1) of the Occupational Health and Safety Act 2004.
3 The charge arises out of an incident which is alleged to have occurred at Pakenham on 29 June 2018, whereby it is alleged that JMAL, being an employer, failed, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
4 The alleged facts giving rise to that charge are set out in the prosecution opening, which is undated, but was filed with this Court on 29 June 2018. I need not repeat them here.
5 The particulars of the charge include:
(e) The persons other than employees exposed to risks to their health and safety included Leon Unmack.
(f) The health and safety risks to which those persons were exposed were serious injury or death as a result of the load falling from the float trailer during the task of unloading the plant.
(g) 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.
(h) It was reasonably practicable for JMAL to ensure that a forklift supported the plant before the restraint strapping was released.
6 Paragraph 5 of the prosecution opening is as follows:
It is alleged in charge one (JCS) and charge two (JMAL) that both accused:
(i) Failed to maintain a system with respect to the unloading of plant that mitigated the risk of falling objects causing serious injury or death by failing to ensure that a forklift supported the load before the restraint strapping was released. It is alleged that this failure exposed Leon Unmack to a risk of death or serious injury.
7 JMAL filed a defence response, dated 27 June 2018, in which the company responded to paragraph 5 of the Prosecution Opening, inter alia, in subparagraphs 10(vii) and 10(viii) as follows:
vii It was not foreseeable that McRae would depart from that system. [This was a reference to the system JMAL had put in place for unloading the load.]
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.
8 The Crown objected to those sub-paragraphs on the ground that as a matter of law, it was irrelevant whether or not JMAL foresaw that McRae would depart from the system put in place or that Mr Unmack would have been in the truck.
9 In my Ruling No 1 of 4 July 2018,[2] I upheld the Crown’s objection. In that ruling I held, inter alia, that the acts of McRae were the acts of the company for all relevant purposes and, so far as reasonable foreseeability was concerned, it is the foreseeability of the risk of, in this case, the load falling from the float trailer that is relevant to the element of ‘reasonable practicability,’ not the foreseeability of the ‘actual incident which occurred,’ let alone the manner in which it is alleged to have occurred;[3] that is, as alleged by the Crown in this case, by McRae and/or Unmack releasing the restraint strapping before the forklift was in position to support the load.
[2][2018] VCC 1003
[3] Chugg v Pacific Dunlop Ltd (No. 2) [1999] 3 VR 934, 947 [55] (Kaye & Beach JJ). See also ibid 965 [134] (Ormiston J).
10 Consequently, I ruled that JMAL’s defence response paragraph 10 (vii) and the foreseeability aspect of paragraph 10 (viii) were irrelevant to the question of what steps were or were not reasonably practicable for JMAL to have taken in the circumstances to eliminate or reduce the risk alleged.
11 As a result of my ruling, JMAL sought to file an amended defence response dated 3 July 2018. It contained the same paragraphs 10(i) to 10(vi), but added new paragraphs 10(vii) and 10(viii) in these terms:
vii 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.
viii It was against company rules for Mr Unmack, who was not an employee of JMAL, to be in the truck.
12 The Crown objected to the amendment in 10(vii) and now objected to paragraphs 10(i), (ii) and (iii) for the first time.
13 In my Ruling No 2 of 4 July 2018,[4] I disallowed the Crown’s objections and ruled that JMAL could rely on the material contained in these paragraphs and seek to lead evidence supporting these matters at trial.
[4][2018] VCC 1004
14 It is this ruling that the Crown seeks to appeal pursuant to s 295 of the Criminal Procedure Act 2009. By s 295(3)(b) I am required to certify ‘that the interlocutory decision is otherwise of sufficient importance to the trial to justify it be determined on an interlocutory appeal’.
15 Yesterday afternoon I heard argument on this, particularly regarding why it was said that my ruling was of ‘sufficient importance to the trial to justify it be determined on an interlocutory appeal’. In summary, the prosecutor submitted that my ruling ‘would have a substantial impact upon the prosecution case in this trial’ and that the Crown ‘would have to recast its case’ and it would provide JMAL with a possible answer, depending on the findings made by the jury, to the element of what was or was not reasonably practicable in all the circumstances.
16 Counsel for JCS submitted that there may be flow-on effects for it in the conduct of the trial in that my ruling may affect the way the Crown puts its case against JCS, particularly in respect of the forklift driver, Mr Dyall, who was an employee of JCS. The prosecutor accepted that there may be flow-on effects in the way it puts its case against JCS. On this basis I accept that JCS is potentially as affected by my ruling as is JMAL.
17 Senior counsel for JMAL accepted that ‘the ruling on this point would have a serious impact on the trial’. He submitted that if the ruling were reversed ‘It would deprive [JMAL] of the opportunity of an acquittal on a basis which would otherwise have been foreclosed’.
18 The principles governing an application for a certificate pursuant to s 295(3) were recently summarised by the Court of Appeal in Lewis (a Pseudonym) v The Queen[5] and in Frazier (a Pseudonym) v The Queen.[6] Applying those principles, I am satisfied that my interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal. In coming to that decision I have considered ‘the benefits and disadvantages in the administration of justice, in taking one course or the other’.[7]
[5] [2018] VSCA 40 [37]–[43] (Ferguson CJ, Weinberg JA and Kidd AJA).
[6][2017] VSCA 370 [7], [26]–[36] (Maxwell P and Kyrou JA).
[7] Reeves (a Pseudonym) v The Queen [2017] VSCA 343 [38] (Santamaria and Coghlan JJA).
19 Indeed, in my opinion, the effect of my ruling is such that the test for certification which applies under s 295(3)(a) namely, whether the exclusion of the evidence ‘could realistically be expected to affect the outcome of the trial’,[8] would be satisfied in this case. This is mainly because, as senior counsel for JMAL fairly conceded, the effect of my Ruling No 2 is to give his client a pathway to acquittal which would not otherwise be open to it. There may also be flow-on effects to the advantage of JCS.
[8] See DPP v Paulino [2017] VSCA 38 [10] (Weinberg JA, Priest and Ferguson JJA agreeing).
20 Accordingly, pursuant to s 295(3) of the Criminal Procedure Act 2009, I certify that the interlocutory decision contained in Ruling No 2[9] is of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
[9][2018] VCC 1004
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