Director of Public Prosecutions v Multiworks Australia Pty Ltd (Ruling No 3)
[2021] VCC 929
•10 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01366
Indictment No. K10612328.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MULTIWORKS AUSTRALIA PTY LTD (ACN 163 646 017) |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2020 | |
DATE OF RULING: | 10 December 2020 | |
DATE OF REASONS: | 31 March 2021 | |
CASE MAY BE CITED AS: | DPP v Multiworks Australia Pty Ltd (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 929 | |
REASONS FOR DECISION
---
Subject:
Catchwords: Validity of charge on an Indictment – Pre-trial ruling – Whether a charge was “misconceived” – Whether question of law or question of fact – Interpretation of the Occupational Health and Safety Regulations2017 – Charge not invalid or “misconceived”
Legislation Cited:
Cases Cited:
Decision:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D D Gurvich QC with Mr T Bourbon | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr G H Livermore SC with Ms C E Currie | Sparke Helmore Lawyers |
HIS HONOUR:
Introduction
1 This is a joint application by the Director of Public Prosecutions (Victoria) (‘DPP’) and Multiworks Australia Pty Ltd (‘Multiworks’) for the hearing and determination before trial of an issue of law that is anticipated to arise in the trial of this proceeding pursuant to Criminal Procedure Act 2009 (‘CPA’) s 199(1)(a).[1]
[1] See Appropriateness of Matter for Emergency Case Management – Submissions on Behalf of the Director of Public Prosecutions, dated 30 April 2020 (Exhibit P3) [1b] and [6]–[10] and Multiworks Response to Questions Raised by His Honour Judge Trapnell, 6 July 2020, dated 8 July 2020 (Exhibit D6) [2]–[7] & [9]–[11].
2 Multiworks is charged on an indictment with three offences alleged to have been committed against the provisions of the Occupational Health and Safety Act 2004 (‘OHSA’) and the Occupational Health and Safety Regulations 2017 (‘OHSR’). Multiworks intends to plead ‘not guilty’ to all charges. The pre-trial issue relates to the ‘validity’ of Charge 1 on the Indictment.
3 This proceeding was accepted for emergency case management pursuant to the County Court – Criminal Division Covid-19 Emergency Case Management Model Protocol dated 9 April 2020 (‘ECMMP’), inter alia, so I could hear and determine an issue of law raised by the parties before trial.[2]
[2] See County Court — Criminal Division: COVID-19 Emergency Case Management Model Protocol, dated 9 April 2020 (‘ECMMP’) [5] & [14A].
4 As Multiworks points out in its response to questions I raised on 6 July 2020, the provisions of s 199(1)(a)–(d) of the CPA provide broad powers designed to determine issues at an appropriate stage in the proceedings so as to permit the efficient operation of the Court.[3]
[3] Exhibit D6 [4].
5 The ECMMP recognises the proper exercise of this power is particularly critical in the present COVID-19 crisis where it states: ‘There is a powerful public interest and utilitarian benefit in reducing [the impending backlog in criminal jury trials]’.[4] One of the strategies adopted is to accept a matter for emergency case management where an ‘advance pre-trial ruling … will have a substantial effect on the duration of the trial’.[5] The parties agree a pre-trial ruling on the present issue of law satisfies this requirement.
[4] ECMMP [4].
[5] ECMMP [14A].
6 Accordingly, I consider it appropriate for me to determine before trial an issue of law that is anticipated to arise in the trial regarding the ‘validity’ of Charge 1 on the Indictment.
7 I note my decision will not eliminate the need for a trial altogether. The trial is currently listed to commence in the Mildura sittings of this Court on 24 May 2021.
8 On 10 December 2020 I ruled Charge 1 on the Indictment is not ‘invalid’. I said I would give my reasons for that decision in the new year. These are my reasons.
The Issue of Law to be Determined
9 Remarkably, the parties appear not to agree on the precise issue of law I am to determine.
10 It is clear Multiworks disavows reliance on the Court’s power to permanently stay Charge 1 on the basis that, on the facts agreed for the purposes of this ruling,[6] the prosecution case taken at its highest is foredoomed to fail.[7]
[6] The agreed facts are taken to be the facts alleged in the Summary of Prosecution Opening, dated 13 September 2019 [1]–[23].
[7] See ‘Multiworks Response to Questions Raised by His Honour Judge Trapnell, 6 July 2020 (Exhibit D6) [1(1)] & [12(1)]. See also ‘Supplementary Submissions on Behalf of the Accused’, dated 18 June 2020 (Exhibit D4); ‘Accused’s Submissions in Response to Prosecution Supplementary Submissions Dated 3 July 2020’, dated 3 July 2020 (Exhibit D5) [5]–[6]. See generally Nelson (a pseudonym) v DPP (Cth) (2014) 44 VR 461, 462–463 [6]–[11] (Maxwell P, Redlich and Priest JJA).
11 Multiworks also disavows reliance on the Court’s common law power to quash a charge on an indictment because it has a substantial and apparent defect,[8] or the offence charged is not known to law,[9] or under the Criminal Procedure Act 2009 s 199(1)(c).[10]
[8] See eg R v Jones (1974) 59 Cr App R 120.
[9] See eg Taylor v The Queen [2020] VSCA 50. See generally Criminal Procedure Act 2009 (‘CPA’) s 199(1)(c).
[10] See email from my chambers to the parties dated 9 July 2020 (Exhibit C2) and ‘Multiworks Response to Questions Raised by His Honour Judge Trapnell, 9 July 2020’, dated 13 July 2020 (Exhibit D7) [11].
12 The Director’s written submissions regarding acceptance of this case under the ECMMP assert the parties ‘agree’ the relevant pre-trial issue is ‘whether or not it would be open to a jury to convict the accused on charge one on the Indictment.’[11] This question is further refined by the DPP in her written submissions on the pre-trial argument[12] as:
The prosecution understands that the issue to be determined in this pre-trial argument is whether or not it would be open to a jury to find that the task [of loading and unloading plant onto and off trailers] falls within the meaning of ‘construction work’ and ‘high risk construction work’ in regulations 321 and 322 of the Regulations, respectively.
[11] Exhibit P3 [1b].
[12] Pre-trial argument in relation to charge one – outline of submissions on behalf of the Director of Public Prosecutions, dated 30 April 2020 (Exhibit P4).
13 In my opinion, answering either of these related questions at this stage in the proceedings effectively brings forward as a pre-trial issue what would ordinarily be a submission made at the close of the prosecution case that Multiworks has no case to answer on Charge 1.[13]
[13] See CPA s 226(1)(a); May v O’Sullivan (1955) 92 CLR 654; Doney v The Queen (1990) 171 CLR 207; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410.
14 A similar expedient was adopted by the parties in Linfox Resources[14] where, at the start of the trial, the accused companies ‘sought a dismissal of the charges against them, arguing that they were unsustainable.’[15] The Court of Appeal observed:
There was debate at the hearing as to whether it was appropriate for the defendants to have made what amounted to a no-case submission before any evidence was called. In our view, that was an appropriate course in this case, given that the legal issues raised went to the very foundation of the case brought against the defendants. … In the event, this timely action has saved several weeks of trial time and avoided a great deal of inconvenience to witnesses.[16]
[14] Linfox Resources Pty Ltd v The Queen, Downer EDI Mining Pty Ltd v The Queen, Thiess Pty Ltd v The Queen (2010) 30 VR 507 (Maxwell P, Weinberg and Mandie JJA).
[15] Ibid 509 [4].
[16] Ibid 509 [6].
15 The circumstances in the present case are not as sharply focused or as foundational to the charges as they were in Linfox Resources. Nor is Multiworks alleging there is some irregularly or error in the way Charge 1 is pleaded or particularised, as was the position in cases such as Downer EDI Works[17] and Vibro-Pile.[18] Nonetheless, in my opinion the expedient of determining what amounts to a no-case submission at this stage of the proceedings is appropriate,[19] notwithstanding that at the hearing of this application the Director withdrew her consent to my adopting this procedure.[20]
[17] Downer EDI Works Pty Ltd v The Queen (2017) 53 VR 1 (‘Downer EDI’).
[18] DPP v Vibro-Pile (2016) 49 VR 676 (‘Vibro-Pile’).
[19] See eg the comments regarding the role of counsel and the importance of raising issues of law regarding the validity of charges on an indictment early in proceedings in Downer EDI 4–5 [11], 11–13 [34]–[41] (Maxwell P and Redlich JA); Vibro-Pile 708 [131] (Maxwell P, Redlich and Whelan JJA). See also R v NM [2013] 1 Qd R 374, 379 [15] (Fryberg J, Holmes JA and Martin J agreeing).
[20] See DPP v Multiworks Australia Pty. Ltd, Transcript, 19 June 2020 (‘T’) pp 64–68.
16 It is clear beyond argument that my answering the question of whether or not it would be open to a jury to convict the accused on Charge 1 raises an issue of law[21] that is anticipated to arise in the trial of this proceeding pursuant to CPA s 199(1)(a). I am treating the Director’s formulation of the question of law as effectively equivalent to:
… whether the defendant could lawfully be convicted on [the agreed facts] - whether, that is to say, there is with respect to [the element of ‘high risk construction work being performed’[22]] some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.[23]
[21] See May v Sullivan (1955) 92 CLR 654, 658 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ); Zanetti v. Hill (1962) 108 CLR.433, 442 (Kitto J) (‘Zanetti’); Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410, 414–418 (Young CJ, Anderson and Gobbo JJ).
[22] See Indictment No. K 10612328.1 Charge 1.
[23] Zanetti 442 (Kitto J).
17 Multiworks, on the other hand, does not seek the pre-trial determination of this or any similar question. In its defence response dated 11 October 2019 (‘defence response’),[24] Multiworks asserts that ‘Charge 1 is misconceived’.[25] This is what the accused sometimes called ‘the charge 1 issue’.
[24] Exhibit D1.
[25] Ibid [19].
18 Charge 1 on the indictment is as follows:
The Director of Public Prosecutions charges that MULTIWORKS AUSTRALIA PTY LTD (A.C.N. 163 646 017) (‘Multiworks’) at Mildura in Victoria on or about 24 October 2017, being an employer failed, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health when in contravention of regulation 327 of the Occupational Health and Safety Regulations 2017 (‘the Regulations’) it did not prepare a safe work method statement (‘SWMS’) for high risk construction work being performed.
Particulars
1.Multiworks was engaged to perform construction work being the removal and replacement of railway crossings at Mildura.
2.Multiworks was an employer within the meaning of section 5 of the Occupational Health and Safety Act 2004 (‘the Act’), employing Graham Tranter and others.
3.Pursuant to sections 21(3)(a) and (b) of the Act, others, including Brendan O’Shea and James Snow, were employees of Multiworks:
a. Protech Personnel (VIC) Pty Ltd (‘Protech’) was an independent contractor engaged by Multiworks;
b. Brendan O’Shea and James Snow, and others, were employees of Protech;
c. the duties of Multiworks extended to Protech and its employees in relation to matters over which Multiworks had control;
d. Multiworks had control over matters, which included the loading and unloading of plant onto and off trailers (‘the task’).
4.Multiworks used a yard in Walnut Avenue, Mildura to store equipment and plant. Its employees attended this yard from time to time to perform the task.
5.There was a risk of injury or death as a result of loading and unloading plant onto and off a trailer if plant came into contact with persons causing crush or impact injuries, or death.
6.Regulation 7 of the Regulations states that a regulation containing an ‘Act compliance’ note sets out the way in which the employer’s duty under a section of the Act is to be performed.
7.Regulation 327 of the Regulations prescribes that an employer must not perform high risk construction work if there is a risk to the health and safety of any person arising from the work unless a SWMS is prepared for the work before the work commences, and the work is performed in accordance with the statement.
8.The task was construction work as defined by regulation 321(1) of the Regulations as it was work performed in connection with the construction of a structure, namely railway line.
9.A railway line is a structure under regulation 323(c) of the Regulations.
10.The task was high risk construction work defined by regulation 322(p) of the Regulations as it was construction work at a workplace where there was movement of powered mobile plant.
11.Regulation 327 of the Regulations contains an ‘Act compliance note’ referring to regulation 7 indicating that the obligation in section 21 of the Act is to be performed in compliance with regulation 327.
12.Multiworks did not prepare a SWMS for the task.
13.Persons who were exposed to a risk to their health and safety by Multiworks’ conduct were any employee within the exclusion zone while the task was being performed, including, but not limited to, Graham Tranter and Brendan O’Shea.
19 According to paragraph 32 of the summary of prosecution opening, dated 13 September 2019 (‘prosecution opening’):[26]
Charge one relates to Multiworks performing high risk construction work – namely, the use of powered mobile plant at a workplace in connection with the construction of a structure – without having prepared and implemented a safe work method statement, as it was required to do pursuant to regulation 327(1) of the Occupational Health and Safety Regulations 2017.
OHSR rr 321(1), 322(p) and 323 are referenced.
[26]Exhibit P1.
20 Paragraph 33 of the prosecution opening alleges:
Regulation 327(1) contains an ‘Act compliance note’, which refers to section 21 of the Act. A finding of non-compliance with regulation 327(1) mandates a finding of non-compliance with the duty imposed on an employer by section 21.
The decision of McDonald J in Glenister v Wayne Home Earthmoving Pty Ltd[27] was cited in support of this proposition.
[27] [2018] VSC 390 [20].
21 In its defence response, Multiworks asserts Charge 1 is ‘misconceived’ because the task Multiworks performed at the relevant time, loading plant onto a trailer, did not fall within the provisions of OHSR r 327 because, ‘Loading plant onto a trailer is not construction work. It therefore cannot be and is not high risk construction work’[28] as required by r 327, under which the preparation of a safe work method statement (‘SWMS’) is mandated.
[28] Defence response (Exhibit D1) [24] (original emphasis).
22 In my opinion, at this stage of the proceedings, Multiworks is effectively asserting Charge 1 is ‘misconceived’ because, taking the prosecution case at its highest, the element of ‘high risk construction work’ (as defined) being performed by Multiworks at the relevant time cannot be made out on the agreed facts. In other words, the prosecution case on Charge 1 is foredoomed to fail.
23 However, as I earlier observed, Multiworks expressly disavows any reliance on this doctrine. Rather, it appears the accused company wants me to construe the relevant statutory provisions, which it submits is a question of law, and apply the agreed facts to the provisions so construed and, thereby, determine whether Multiworks was required by law the prepare a SWMS for the task.
24 If the answer is ‘no’, Charge 1 is ‘misconceived’ and ought to be ‘dismissed’,[29] as was the charge in Linfox Resources. If the answer is ‘yes’, then Charge 1 would remain on the Indictment, and it would fall to the trial judge to direct the jury as she or he determines is appropriate.
[29] I am unaware of any power I have to dismiss or strike out a charge on an indictment. It may be that the Indictment could be stayed as an abuse of process if the Director refused to file a fresh indictment under CPA s 164 without the offending charge on it. See Maxwell v The Queen (1996) 184 CLR 501; DPP (SA) v B (1998) 194 CLR 566, 579–80 [20]–[22] (Gaudron, Gummow and Hayne JJ); and Likiardopoulos v The Queen (2012) 247 CLR 265, 269–70 [2]–[5] (French CJ), 279–81 [37] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
25 Regardless of which issue of law falls to be determined on this application, it is necessary for me to decide whether, on the agreed facts, the task being performed by Multiworks at the relevant time falls with the meaning of ‘construction work’ and ‘high risk construction work’ as contained in Part 5.1 of Chapter 5 of the Occupational Health and Safety Regulations 2017 (‘the Regulations’).
The Prosecution Case
26 It is part of the prosecution case that:
(a) Multiworks had been engaged as a sub-contractor by McConnell Dowell to work on the Murray Basin Rail Project, which involved the removal and replacement of railway crossings from Ararat to Mildura.
(b) The rail track works consisted of removing the existing crossings, excavating existing track, installing a new track base, new rock, and new sleepers, shortening the rail gauge, and laying asphalt either side of the new track.
(c) Multiworks employees and contractors used a variety of plant and equipment to complete the rail works; including, an octopus concrete sleeper handler (‘the sleeper handler’) and a Bomag single drum roller (‘the roller’).
(d) The plant and equipment that was used as part of the rail works was transported to and from worksites by truck drivers, including the deceased, Graham Tranter, who was employed by Multiworks.
(e) Between 20 and 24 October 2017, Multiworks stored various items of plant and equipment in a storage yard at The Rocks Landscape Supplies, which was located at 785 Walnut Avenue, Mildura. These included the sleeper handler and the roller.
(f) Tranter was killed on 24 October 2017 when he was crushed between the sleeper handler and the roller, which were being loaded onto a drop deck trailer, so that Tranter could transport them to a worksite on Eleventh Street, Mildura.
27 None of the matters outlined above appear to be disputed by Multiworks.[30]
[30] See Defence Response, dated 11 October 2019 [2]-[5] and [8]-[9].
The Legislative Scheme
28 As noted earlier, the application relates only to Charge 1, which alleges Multiworks, being an employer, failed, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health, when, in contravention of regulation 327 of the Regulations, it did not prepare a safe work method statement (‘SWMS’)[31] for high risk construction work being performed at Mildura in Victoria on or about 24 October 2017.
[31] Safe work method statement has the meaning given by regulation 324.
29 Regulation 7 provides:
If a note at the foot of a provision of these Regulations states "Act compliance" followed by a reference to a section number, the regulation provision sets out the way in which a person's duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the regulation provision.
Note
A failure to comply with a duty or obligation under a section of the Act referred to in an "Act compliance" note is an offence to which a penalty applies.
30 Regulation 327 contains an act compliance note referencing, inter alia, s 21 of the Act and, accordingly, the obligations imposed by s 21 on an employer are to be performed in compliance with regulation 327.
31 The ‘high risk construction work’ the subject of the charge was the loading and unloading of plant onto and off trailers (‘the task’) carried out at a ‘workplace’,[32] being a plant and equipment storage yard located at 785 Walnut Avenue, Mildura (‘the storage yard’) on 24 October 2017.
[32] As defined in Occupational Health and Safety Act 2004 s 5 (‘Act).
32 The prosecution alleges, ‘the task’ was ‘construction work’ as defined in the Regulations[33] because the task was ‘any work performed in connection with the construction … of any … structure’.[34]
[33] See Occupational Health and Safety Regulations 2017 (‘Regulations’) r 321(1).
[34] Emphasis mine.
33 The word ‘structure’ is defined to include any ‘railway line’.[35] For the purposes of this ruling, the parties agree Multiworks was removing and replacing railway lines in the Mildura area at the relevant time.
[35] Regulation 323(c).
34 Moreover, it is alleged the task involved ‘high risk construction work’ because it was construction work at a workplace where there was movement of powered mobile plant.[36]
[36] Regulation 322(p).
35 It is accepted, for the purposes of this ruling, that ‘powered mobile plant’ was being moved at the storage yard at the relevant time. In any event, it is clear the sleeper handler and the roller both fall within the definition of ‘powered mobile plant’.[37]
[37] Regulation 5; Act s 5.
36 The Director submits for the task to fall within the meaning of ‘construction work’ for the purposes of the Regulations, a jury would need to be satisfied that the task was ‘any work performed in connection with’ the construction of the railway line.
37 Accordingly, the question posed by the Director for my decision is whether or not, on the agreed facts, which are presumed to be the facts found by the jury, it would be open to a jury to find that the task was work performed in connection with the construction of the railway line.
38 The Director submits the words ‘in connection with’ are used in their ordinary English meaning, and this is therefore a question for the jury.
39 The meaning of the words ‘any work performed in connection with’, as contained in regulation 321 of the Regulations, do not appear to have been previously considered by the Court of Appeal.
40 The meaning of the phrase ‘in connection with’ will depend on its context, nonetheless, it is well-established from a number of authorities that a phrase such as ‘in connection with’ is to be regarded as an expression with a broad meaning.[38]
[38] See eg Central Park Estate (Vic) Pty Ltdv Commissioner of State Revenue (2018) 53 VR 690, 702 [40] (Croft J).
41 In Our Town FM Pty Ltd v Australian Broadcasting Tribunal,[39] Wilcox J held that:
The words ‘in connection with’ have a wide connotation, requiring merely a relation between one thing and another. They do not necessarily require a causal relationship between the two things.[40]
[39] (1987) 77 ALR 577.
[40] Ibid 591–592.
42 In Chalmers v The Queen (‘Chalmers’),[41] the Victorian Court of Appeal considered the meaning of the phrase ‘used in connection with the commission of the offence’, which appears in the definition of ‘tainted property’ in the Confiscation Act 1997 (Vic).
[41] (2011) 37 VR 464 (Maxwell P, Redlich JA and Kyrou AJA).
43 After reviewing a number of decisions of intermediate appellate courts of several other states, which had considered the same phrase, or close equivalents of it, the Court adopted four propositions that it found had emerged from those authorities. Two of those propositions are relevant to the present question; namely:[42]
(1) The statutory phrase is of wide scope. The inclusion of the words ‘in connection with’ was plainly intended to extend the scope of the definition of ‘tainted property’ beyond circumstances where the property could be said to have been ‘used in the commission of’ the offence.
(2) Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a ‘substantial’ connection, or that the crime could not have been committed without using the property.
[42] Ibid 479-480, [76]–[78].
44 In Cini v The Commissioner of the Australian Federal Police,[43] the Victorian Court of Appeal considered the meaning of almost identical language, which was contained in section 329(2) of the Proceeds of Crime Act 2002 (Cth) (‘POCA’).
[43] (2016) 312 FLR 432 (Priest, Santamaria and Kaye JJA).
45 The Court referred to Chalmers and held that the words of s 329 of the POCA do not require the establishment of a ‘substantial connection’ or ‘a sufficiently significant connection’.[44]
[44] Ibid [48] and [53].
46 Further, the Court observed that the question of whether ‘there is a connection between the use of the property and the commission of an offence will be a question of fact and degree’.[45]
[45] Ibid [53].
47 Cases considering the phrase ‘in connection with the driving of a motor vehicle’ are also of assistance here.
48 In R v Novakovic,[46] the Victorian Court of Appeal considered the meaning of the phrase ‘in connection with the driving of a motor vehicle’, as it appeared in s 28(1)(b) of the Road Safety Act 1986. Ashley JA found that, as s 28(1)(b) is a highly penal provision, ‘there must be a substantial relation between the other offence and the driving of a motor vehicle’. His Honour stated that while each case must turn on its own particular facts, he did not agree with the statement of Nathan J in Rochow v Pupavac[47] that it will be sufficient that ‘a connection not be so remote and fanciful as to offend a reasonable man’s concept of relationship of one event with another’.
[46] (2007) 17 VR 21 (Nettle, Ashley and Redlich JJA). See, in particular, [57]-[62] (per Ashley JA), citing Murdoch v Simmonds [1971] VR 887, 889 (Adam J).
[47] [1989] VR 73.
49 As the Director correctly submits, determining the meaning of the phrase ‘any work performed in connection with’ must begin and end with the words of the statute.[48]
[48] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ); DPP v Walters (a pseudonym) (2015) 49 VR 356, 358 [2] (Maxwell P, Redlich, Tate and Priest JJA).
50 In Muscat v Magistrates’ Court of Victoria,[49] Richards J observed the following in the context of considering the scope of the application of section 23 of the Act:
One starts and ends with the text of the relevant provision, with the object of construing it so that its legal meaning is consistent with the language used and the legislative purpose of the statute. Legislative purpose is determined by considering the text of the relevant provisions in the context of the entire statute, as well as the existing state of the law, the mischief that the statute was intended to remedy, the history of the legislative scheme and the extrinsic materials.
Where there is a choice to be made between possible meanings of a provision, a meaning that promotes the purpose or object underlying the statute is to be preferred over one that does not. In the case of legislation with a beneficial or protective purpose – which includes occupational health and safety legislation – even a penal provision must be construed so as to give the fullest possible effect to the legislative purpose.[50]
[49] [2018] VSC 650.
[50] Ibid [30]-[31] (citations omitted).
51 In my opinion the use of the words ‘any work performed in connection with’ was plainly intended to extend the scope of the definition of ‘construction work’ beyond the various works stated in the relevant definition. That interpretation is consistent with the language of the Act, its objects and principles, and the objectives of the Regulations. The objects of the Act and ‘the principles of health and safety protection’ are clearly set out in sections 2 and 4 of the Act respectively. The ‘objectives’ of the Regulations are set out in regulation 1. None of these needs repeating here.
52 It is therefore clearly open, in my opinion, to the jury to find that the task was work performed in connection with the construction of the railway line by Multiworks.
53 The transportation of plant to worksites was fundamental to the construction of the relevant railway line by the accused. Indeed, the railway line could not have been constructed without the use of the plant that was being loaded onto trailers and transported to relevant worksites. In those circumstances, the connection between the loading of plant onto trailers and the construction of railway line is clear and substantial.
54 Whether the task, in this case, is in connection with the construction of the railway line is a question of fact and degree, which, is within the function of the jury to determine.
55 If it is accepted that it would be open to a jury to find that the task was ‘construction work’, it follows it must also be open to a jury to find that the task was ‘high risk construction work’. This is because the task was construction work performed at a workplace where there was movement of powered mobile plant, namely, the sleeper handler and the roller.
Multiworks’s Formulation of the Question for Determination
56 Multiworks submits: ‘The question as to whether the work being performed at the yard as alleged by the prosecution was high risk construction work within the meaning of the legislation is a question of law’, which I should determine.[51] This is what came to be called, ‘the charge 1 issue’.
[51] ‘Pre-trial Argument in Relation to Charge One – Outline of Submissions on Behalf of the Accused’, dated 15 June 2020 [5].
57 I do not consider this submission is correct.[52] In Chopra v Department of Education and Training,[53] the Victorian Court of Appeal opined:
The principles for distinguishing between questions of law, questions of fact and mixed questions of law and fact are well established. However, those principles are difficult to apply in practice. What is the proper meaning, as a matter of construction, of a statutory provision is usually a question of law. Ordinarily, whether facts fully found fall within a statutory provision, properly construed, is a question of law. However, where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts as found fall within those words, the question whether they do or not is one of fact.[54]
[52] Much ink has been spilt on this topic. Some of the caselaw is conveniently collected by Beazley ACJ (Preston CJ of LEC agreeing) in Norrie v NSW Registrar of Births Deaths and Marriages (2013) 84 NSWLR 697, 709–711 [52]–[64]. See also Cosmopolitan Hotel v Crown Melbourne Ltd (2014) 45 VR 771, 783–4 [47]–[51] (Warren CJ), 805–7 [167]–[807] (Whelan JA, Santamaria JA agreeing).
[53] [2019] VSCA 298 (Tate, Whelan and Kyrou JJA).
[54] [88] (citations omitted).
58 It is undoubtedly a question of law for me to determine whether the words ‘in connection with’ are used in their ordinary meaning in regulation 321(1).[55] I am satisfied they are. Moreover, as I have earlier determined, I am satisfied it is reasonably open to hold that ‘the facts as found’, or in this case, the agreed facts, fall within those words. Accordingly, ‘the question whether they do or not is one of fact’.
[55] See eg Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 principle 1 (Neaves, French and Cooper JJ).
59 Pursuant to Criminal Procedure Act 2009 s 199(1)(b), at any time before trial, I may hear and determine an issue of fact ‘that may be determined lawfully by a judge alone without a jury’. Following the hearing in this matter, I sought submissions from the parties, inter alia, regarding the basis on which I could lawfully determine the charge 1 issue as formulated by Multiworks, as a judge sitting alone without a jury.[56] I did not receive a satisfactory answer to this question from Multiworks. Instead, the accused company simply reiterated its submission that this issue involved the determination of a question of law.
[56] See email from my chambers to the parties, dated 9 July 2020 (Exhibit C2).
60 Accordingly, I am satisfied that I have no power to determine the charge 1 issue. In any event, even if power does exist pursuant to s 199 of the Criminal Procedure Act 2009, or otherwise, I consider it is not appropriate for me to determine that issue ‘at any time before trial’. In my opinion whether or not ‘the task’ was ‘work performed in connection with the construction … of any … structure’ is quintessentially a question for the trial jury.
61 If I am wrong, and the resolution of the charge 1 issue is a question of law, I would determine that question against Multiworks.
62 In interpreting the Regulations, I am required to prefer a construction of the words ‘in connection with’ that would promote the purpose or object underlying the Act and the Regulations.[57] Preferring a narrow construction of those words, as contended for by Multiworks, would not promote the objects and principles of the Act[58] or the objectives of the Regulations.[59]
[57] Interpretation of Legislation Act 1984 s 35.
[58] As set out in the Act ss 2 and 4.
[59]As set out in the Regulations reg 1.
63 Moreover, in my opinion the principles espoused by the High Court of Australia in Beckwith v The Queen[60] have no operation in this case, because there is no ambiguity in the meaning of the words ‘in connection with’ that cannot be resolved by applying a purposive approach to the interpretation of those words in the context of the legislative provisions as a whole.
[60] (1976) 135 CLR 569, 576 (Gibbs J). See also Walker Corporation Pty Limited v Director-General Department of Environment Climate Change and Water [2102] NSWCCA 210, [27] (McLelland CJ at CL, Hidden and Garling JJ agreeing).
64 Adopting a broad approach to the interpretation of the words ‘in connection with’, I have no doubt ‘the task’ was ‘work performed in connection with the construction … of any … structure’, namely, the railway works conducted by Multiworks. The fact the storage yard was some miles away for the work site is not determinative of this issue, but merely one matter to take into consideration. In this context, I note the regulation dealing with ‘What is construction work’ contemplates work being performed at ‘a place specifically established for the construction project.[61]
[61] See eg Regulation 321 2(c).
65 Accordingly, Charge 1 on Indictment No. K10612328.1 is not ‘misconceived’ or ‘invalid’ or otherwise inappropriate to be tried before a jury.
And I so rule.
0
24
0