Director of Public Prosecutions v Yarra Valley Park Lane Holiday Park Pty Ltd
[2024] VCC 1051
•17 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00647
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YARRA VALLEY PARK LANE HOLIDAY PARK P/L |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2024 | |
DATE OF RULING: | 17 July 2024 | |
CASE MAY BE CITED AS: | DPP v Yarra Valley Park Lane Holiday Park Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1051 | |
RULING
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Subject:CRIMINAL LAW – pre-trial ruling
Catchwords: Prosecution of caravan park owner – Fatal tree fall - Admissibility of evidence of fatal accident – Fairness to accused - Admissibility of evidence of arborist – whether arborist an ‘expert’ – Obligation of prosecution to call expert retained by accused.
Legislation Cited: Occupational Health and Safety Act 2004 (Vic); Evidence Act 2008 (Vic); Jury Directions Act 2015 (Vic).
Cases Cited:DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; R v Apostolides (1984) 154 CLR 563; Velevski v R [2002] HCA 4; Gilham v R [2012] NSWCCA 131; WG v R [2020] NSWCCA 155.
Ruling: Evidence of accident allowed to be led – evidence of arborist allowed to be led – No direction to call defence expert.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D. Chisholm | Office of Public Prosecutions |
| For the Defence | Mr S. Russell | HWL Ebsworth Lawyers |
HIS HONOUR:
1The accused is charged that on or about 13 March 2021, being a person who had, to any extent, the management or control of a workplace at 419 Don Road, Healesville, failed to ensure that, so far as is reasonably practicable, the workplace and the means of entering and leaving it were safe and without risks to health contrary to section 26 of the Occupational Health and Safety Act 2004 (Vic) (‘OHSA’).
2The prosecution alleges in particulars appended to the charge that the accused operated a Holiday Park at the workplace and that there were several large trees that were located at the workplace. It is further alleged that some of these trees were located near the southern boundary of the workplace, as was ‘Campsite 93’.
3The prosecution further alleges that:
(a) ‘there was a risk that a large tree branch or tree limb (or both) could break from the tree and fall to the ground (‘the risk’)’; and
(b) If a person or persons were underneath the tree at the time, they could be struck by the falling tree branch or tree limb resulting in serious injury or death.
4It is the prosecution case that it was reasonably practicable for the accused to have reduced the risk ‘by engaging an arborist to undertake an annual assessment of the trees at the workplace and follow any recommendations made by the arborist’.
5The persons said to have been exposed to the risk ‘included, but were not limited to, Benjamin Murphy’.
6Particular 9 is as follows:
On or about 13 March 2021, a large tree branch or tree limb broke from a tree and landed on Benjamin Murphy as he slept in his tent at campsite 93. Benjamin Murphy died from his injuries.
7It is apparent that the date on which it is alleged the accused failed to meet its statutory duty to ensure, so far as reasonably practicable, the safety of its camping ground, is the date of the incident that led to the death of Mr Murphy.
8The prosecution opening dated 12 January 2024 commences with a recitation of the circumstances of the incident on 13 March 2021. The document goes on to allege that the accused had no formal or documented system of work for routinely inspecting trees and their branches to identify the risk of trees or branches falling, nor a policy concerning the frequency with which an arborist should attend the park to perform inspections’.[1]
[1] Prosecution Opening on Plea dated 12 January 2024, [11].
9At [14]-[18], the opening refers in more detail to the circumstances surrounding the fatal incident on 13 March 2021.
10Finally, the opening summarises the ‘expert’ opinion of Graham Hughes, an arborist who considers that ‘an annual assessment [of trees] should be conducted in locations where people are in the vicinity of trees for periods of time, such as camping grounds’ and that such an assessment should be performed by ‘a trained arborist’.[2]
[2] Ibid, [24].
11The prosecution will also rely on ‘evidence of the industry practice in respect of tree management and assessments’. According to the prosecution opening, that evidence is, in summary, that ‘tree audits are performed annually by arborists at the caravan/campgrounds to mitigate the risk posed by trees’.[3]
[3] Ibid, [27].
12The prosecution case is summarised at paragraphs [29]-[31] of the opening under the heading ‘The risk and reasonably practicable measures’:
29. The risk was well known as were the measures available to ameliorate the risk.
30. At the time of the incident, it was reasonably practicable for the Accused to engage an arborist to undertake an annual assessment of the trees at the workplace and follow any recommendations made by the arborist.
31. The Accused failed to implement the above reasonably practicable measures.
13A defence response dated 5 February 2024 has been filed with the court.
14In response to the prosecution opening, the accused states that the prosecution ‘is attempting to impose on the Accused a level of perfection which WorkSafe does not require of other caravan parks or similar premises’.[4]
[4] Defence Response dated 5 February 2024, [14] (‘Defence Response’).
15At paragraph [16] of its response, the accused:
(a) objects to the prosecution leading any evidence of the incident as ‘inadmissible’; and
(b) states that failing to lead evidence of an investigation carried out by Cameron Ryder ‘would be unfair to the Accused’.
16In response to [29]-[31] of the opening, the accused states:
30. The Accused had in place a comprehensive procedure for safely managing risks associated with trees at the park. Daily walks were conducted by maintenance staff and management. After the storm activity, the walks concentrated on observing any tree damage from the storm that may need immediate attention. Any identified concerns were rectified by maintenance staff or outside contractors.
31. The suggested control measure contained in these paragraphs lacks the required specification that needs to be identified by the Prosecution. Any necessary licences, certifications and qualifications are not inherent in the term “arborist” and the term is not otherwise specified. The nature and scope of the “assessment” that is alleged to be reasonably practicable is not specified. The words “trees at the workplace” are vague and uncertain.
32. Suggesting that an accused is required to follow any recommendations made by an arborist, without reference to any other objective standard, takes the suggested control measure beyond the requirements of reasonable practicability, including because an arborist is not confined to making recommendations which are themselves reasonably practicable.[5]
[5] Emphasis in original.
17Finally, the defence response identifies the following pre-trial issues:
(a) The admissibility of evidence of the accident;
(b) The admissibility of the evidence of Graham Hughes;
(c) A challenge to particulars 3 and 5-9 of the indictment;
(d) The admissibility of evidence of the prohibition notice issued by a WorkSafe inspector;
(e) Whether the prosecution is obliged to call Cameron Ryder, an expert who wrote a report for the accused about the tree involved in the accident; and
(f) Whether the prosecution should be able to rely on two reports without calling their authors.[6]
[6] Defence Response (n 4), [34]-[40].
18The accused filed written submissions in respect of these issues[7] and the prosecution responded in kind.[8]
[7] Outline of Pretrial Issues on behalf of Yarra Valley Park Lane Holiday Park dated 24 June 2024.
[8] Director’s Outline of Submissions dated 27 June 2024 (‘Director’s Outline of Submissions’).
19The court heard oral argument on 28 June 2024.
20During the course of the argument, Mr Chisolm who appeared for the Director, indicated that the prosecution:
(a) would not lead evidence of the prohibition notice issued by the WorkSafe inspector;
(b) was seeking statements from the authors of the reports referred to at 17(f) above; and
(c) was in discussions with defence about a request for further and better particulars of the charge.
21As a result, there are three issues that require rulings from the court at this time:
(a) the admissibility of evidence of the incident;
(b) the admissibility of the evidence of Mr Hughes; and
(c) whether the prosecutor should call Mr Ryder.
22Before addressing these questions, I will summarise the legal principles that apply to prosecutions under the OHSA.
Legal Principles
23The accused faces a single charge that it contravened s 26 of the OHSA. Section 26 relevantly provides:
(1) A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.
(2) The duties of a person under subsection (1) apply only in relation to matters over which the person has management or control.
24It is well settled that what the prosecution must establish to the criminal standard in a case such as the present is that:
(a) the accused had, to any extent, management or control of a workplace;
(b) there was a risk to a person’s health and safety at the workplace;
(c) the measures identified as necessary would have eliminated or reduced the risk (as the case may be);[9] and
(d) it was ‘reasonably practicable’ in the circumstances for the accused to have taken those measures.[10]
[9] Particular 5 of the Indictment alleges that it was reasonably practicable for the accused to reduce the risk by taking the identified steps. It is not the prosecution’s case that the risk could be eliminated.
[10] Adapting DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, [6] (‘Vibro-Pile’).
25Importantly, the prosecution does not have to establish that the measures it has identified as being necessary to eliminate or reduce the particularised risk would have changed the course of events on the day in question. In other words, the prosecution does not have to prove that the accused’s breach caused the accident.[11]
[11] Vibro-Pile, [5] and [196]. The question of causation will however generally be relevant to sentencing – see at [200].
26As the High Court explained in a case about employee safety under the New South Wales equivalent of the OHSA, ‘it is not necessary that harm has already befallen an employee for an offence to have been committed’.[12] The offence is risk-based and not outcome-based: the breach consists ‘in the failure to eliminate or reduce risk, not in causing the accident to occur’.[13]
[12] Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531, [13].
[13] Vibro-Pile (n9), [90].
27This does not mean, however, that where an accident has occurred, evidence of the accident will have no evidentiary significance. As the Court of Appeal explained in the case of Vibro-Pile, the circumstances of an accident:
may shed light on:
·the existence of the risk;
·the likelihood of the risk eventuating;
·the gravity of the consequences should the risk eventuate; and
·hence, whether all reasonably practicable steps had been taken to eliminate or reduce the risk.[14]
[14] Ibid, [91].
28The significance of these matters is explained by s 20(2) of the OHSA. That section provides that, in a jury’s assessment of the reasonable practicability of the proposed risk control measures in a prosecution under OHSA, it will be required to have regard to:
(a) the likelihood of the hazard or risk concerned eventuating;
(b) the degree of harm that would result if the hazard or risk eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
29It is important that a jury does not unduly focus on the accident during the trial as to do so may lead to an ‘inappropriately narrow definition of the risk the subject of the charges’.[15] For example, in the present case, the risk that is the subject of the charge is the risk of a limb or branch of any tree at the workplace falling to the ground below. It is not the risk of a branch or limb falling off the tree involved in the incident that led to the death of Mr Murphy.
[15] Ibid, [86].
30To assist a jury to appropriately consider the circumstances of the accident in a prosecution under the OHSA, the jury should be directed in accordance with the suggestions at paragraph [99] of the Court of Appeal’s judgment in Vibro-Pile.
31In addition, careful consideration should be given by the prosecutor and the trial judge as to how the evidence of the accident is to be adduced and what evidence will be adduced in this regard.
32In the present case, it appears that the evidence of the accident will be led from a police officer who attended the scene.[16] With the exception of three photographs that show the deceased, the relevant photos are not graphic.[17]
[16] See prosecution opening at notes 15 and 16.
[17] Depositions, 114ff.
Issue 1: Evidence of the Accident.
Submissions
33Mr Russell, who appeared for the accused, accepted that evidence of an accident will generally be relevant and admissible in an OHSA prosecution in accordance with the principles discussed earlier.
34However, according to Mr Russell, in this case there is ‘no evidentiary support to be achieved from the leading of the evidence of the accident’. This is said to be because the prosecution has a report from a qualified arborist Cameron Ryder in which Mr Ryder opines that, had the tree involved in the accident been inspected, ‘there was no significant defect evident to suggest this limb would fall’ and ‘it is highly unlikely that a trained arborist would have identified the branch as defective’.[18]
[18] Outline of Pretrial Issues on behalf of Yarra Valley Park Lane Holiday Park dated 24 June 2024, [5]-[7].
35Mr Russell submits that ‘there is no contrary evidence to the evidence of Mr Ryder’ and it follows, so the argument goes, that ‘the evidence of the failure of the tree and the accident involving Mr Murphy provides no evidentiary assistance to the decision required to be made by the jury in this case’.[19]
[19] Ibid [9].
36In oral argument, Mr Russell addressed the way in which the Court of Appeal explained that evidence of an accident can be relevant in a prosecution under the OHSA (as summarised at [27] above).
37Mr Russell submitted that the existence of the risk to health and safety of branches falling on people is ‘pretty obvious’. He asked rhetorically whether the jury needs that evidence. He also submitted that, as to likelihood of the risk eventuating, ‘we’re all aware of branches falling off trees’. Further, as to the gravity of the consequences, ‘well that’s pretty straightforward too’.[20]
[20] T11.2-8.
38Mr Russell submitted that if the court is satisfied that the evidence is relevant, it should be excluded under s 135 of the Evidence Act 2008 (Vic) on the basis that the probative value of the evidence is ‘substantially outweighed by the danger that the evidence might be unfairly prejudicial’ to his client.
39Mr Russell submitted that ‘the prejudicial value is huge’[21] and the evidence is ‘highly prejudicial’.[22] He agreed that the gist of this argument was that the evidence of the death of Mr Murphy would cloud the judgment of the jury about the other issues in the case and that the jury would not be able to put the accident out of their heads.[23]
[21] T22.24.
[22] T22.29.
[23] T24.11-12.
40On the question of relevance, Mr Chisolm, who appeared for the Director, submitted that the evidence was relevant in accordance with the Court of Appeal decision in Vibro-Pile. He submitted that the views of Mr Ryder are irrelevant to this issue because he will not be a witness in the case.
41On the question of prejudice, Mr Chisolm submits that there is no real risk that the evidence will be misused by the jury because the jury will receive the ‘usual directions’ in respect to the use it can make of the evidence.[24]
[24] Director’s Outline of Submissions (n 8), [18].
Consideration
42Evidence will be relevant to a fact in issue if, were the evidence accepted it could ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.[25] Here the principal question for the jury will be whether the measures were reasonably practicable.
[25] Evidence Act 2008 (Vic), s 55.
43Contrary to the submissions of Mr Russell, I do not consider that the case is relevantly different to Vibro-Pile. While it is not necessary for the prosecution to prove that the failure by the accused to have taken the identified steps caused the accident that led to Mr Murphy’s death, I am satisfied that the evidence of the circumstances of the accident is relevant to the matters identified at paragraph [27] above. Mr Ryder’s report (which will not be before the jury as matters stand) is really only relevant to the question of narrow causation.
44The jury will be required to apply s 20(2) of the OHSA. While it may be the case that some members of the jury consider that the risk of branches falling is ‘obvious’, that may not be the case for all jurors. Further, that there is some evidence about an issue hardly renders other evidence on the issue irrelevant.
45On the question of unfair prejudice, I accept Mr Chisolm’s argument that any risk of the jury misusing the evidence can be minimised sufficiently by the jury being directed about its correct use. The risk of the jury responding emotionally to the evidence can be further reduced by it not seeing the three photographs of the deceased.
Issue 2: the evidence of Graham Hughes.
46Graham Hughes made two statements as part of the investigation.[26] Mr Hughes has a Diploma Arboriculture AQF Level 5, an Advanced Certificate Arboriculture and 40 years of experience in the Arboriculture industry. His CV is in the depositions.[27] His report is in the depositions.[28]
[26] Depositions, 112.62-67.
[27] Depositions, 1387.
[28] Depositions, 1367-1375.
47As noted earlier, it is the opinions of Mr Hughes expressed in that report that are central to the prosecution case about both the steps that it alleges should have been taken by the accused to reduce the pleaded risk, and that such steps were reasonably practicable.
48Defence submits that Mr Hughes’s opinions are inadmissible on two bases. The first is that he is not qualified to give opinion evidence. Secondly, even if he is qualified, he gives no ‘supporting evidence’ for his opinion – he ‘fails to identify supporting publications or research to support those opinions’.[29]
[29] Outline of Pretrial Issues on behalf of Yarra Valley Park Lane Holiday Park dated 24 June 2024, [15].
49In his written submissions, Mr Russell also complained that Mr Hughes had not complied with the Code for Expert Witnesses and that his opinion ‘has not been peer reviewed’.[30] These complaints were not pressed at the hearing.
[30] Outline of Pretrial Issues on behalf of Yarra Valley Park Lane Holiday Park dated 24 June 2024, [13] and [15].
50Section 79 of the Evidence Act enables a witness to express an expert opinion provided the witness:
(a) Has ‘specialised knowledge based on the person’s training, study or experience’; and
(b) The opinion is ‘wholly or substantially based on that knowledge’.
51These are legal questions to be determined by the trial judge in a given case. If the judge concludes that the witness satisfies both criteria, the weight to be given to the evidence is purely a matter for the jury.[31]
[31] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, [42] (‘Dasreef’).
52The accused submits that Mr Hughes is not qualified to express an opinion because he ‘fails to hold the necessary qualifications and experience to provide testimony of an expert nature’.[32] When pressed, Mr Russell appeared to submit that a degree in arboriculture was required whereas Mr Hughes only has a diploma. That argument is unpersuasive. In a field such as arboriculture, the industry experience of the person will be as important if not more so than their formal qualifications.
[32] Outline of Pretrial Issues on behalf of Yarra Valley Park Lane Holiday Park dated 24 June 2024, [12].
53I consider that the specialised knowledge about tree safety that Mr Hughes has based on his qualifications and experience satisfies the requirements of s 79.
54Turning to the second question, I accept that it is not enough that an expert witness merely state her or his qualifications and then state a conclusion. The evidence must ‘reveal the expert’s reasoning – how the expert used experience to reach the opinion stated’.[33]
[33] Dasreef (n31), [129]; see also [35].
55Mr Russell submitted that Mr Hughes ‘gives no supporting evidence’ for his opinion that an arborist should examine the trees in the caravan park annually and provide a written report.[34] The complaint is that Mr Hughes refers to no ‘published information’ that requires an annual inspection.
[34] Outline of Pretrial Issues on behalf of Yarra Valley Park Lane Holiday Park dated 24 June 2024, [15].
56However, Mr Hughes does refer to ‘Evaluation of Trees in Urban Areas’ published by the International Society of Arboriculture as well as other risk assessment methodologies which he says are ‘widely used by arborist [sic]’.[35]
[35] Report, Depositions 1370.
57I also assume that, in expressing the opinions he expresses about the risks associated with trees in a workplace and the available measures to reduce those risks, he is drawing on his specialised knowledge. That could be explored during a voir dire if it is contested.
58Contrary to the submissions of the accused, I consider that the opinion evidence of Mr Hughes is admissible as part of the prosecution case. Of course whether Mr Hughes’s reasoning is accepted by the jury is a different matter.
Issue 3 – the Evidence of Cameron Ryder
59Cameron Ryder, Director C&R Ryder Consulting, is an arborist with over 18 years’ experience in arboriculture. He has investigated a number of tree failures.[36]
[36] Depositions 768-771.
60Mr Ryder was engaged in March 2021 by the accused to complete an assessment of the tree involved in the incident on 13 March 2021. He was asked to express an opinion about whether the branch could have been assessed as defective from ground level. Having inspected the tree concerned, Mr Ryder concluded that ‘assessment of the tree by a qualified arborist or grounds maintenance staff is unlikely to have identified the branch as a hazard’.[37]
[37] Depositions 764.
61The accused provided a copy of Mr Ryder’s report dated 25 April 2021 to WorkSafe after a request for documents was served on it pursuant to s 100 of the OHSA.[38]
[38] Director’s Outline of Submissions (n 8), [45].
62Mr Chisolm informed the court that the prosecution does not propose to call Mr Ryder at the trial of the accused as ‘he is not a material witness, a witness as to the facts, nor can he provide evidence relevant to the unfolding of the narrative’.[39]
[39] Director’s Outline of Submissions (n 8), [44].
63Mr Russell submits that, if the prosecution is permitted to lead evidence of the accident, ‘the evidence of the only expert witness to have examined the branch that failed and to have expressed an opinion on the ability to observe any issues should also be led’.[40]
[40] Outline of Pretrial Issues on behalf of Yarra Valley Park Lane Holiday Park dated 24 June 2024, [22].
64While Mr Russell acknowledges that the decision of which witnesses to call in the prosecution case ‘normally lies with the prosecutor’, he submits that ‘this case is very different’.
Legal Principles
65The legal principles applying to the question of a prosecutor’s decision to call a witness and the role of the judge in that respect are clear. They were relevantly summarised by the High Court of Australia in the case of R v Apostolides:[41]
1. The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the prosecution.
2. The trial judge may, but is not obliged to, question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He or she is not called upon to adjudicate the sufficiency of those reasons.
3. While at the close of the prosecution case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he or she cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he or she then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. Any such comment will be affected by such information as the prosecutor has provided relating to the reasons for his or her decision.
5. Save in the most exceptional circumstances, the trial judge should not call a person to give evidence …
6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
[41] (1984) 154 CLR 563, 575.
66While these general principles are ‘primarily concerned with evidence about the facts of the case’,[42] they also apply where the witness concerned is an expert witness such as Mr Ryder.[43]
[42] Velevski v R [2002] HCA 4, [47] (‘Velevski’).
[43] Gilham v R [2012] NSWCCA 131, [383]-[412].
67The prosecution has a duty to conduct the case against the accused fairly. However, it is important to recognise that the obligation ‘arises in the context of an adversarial system’.[44] It does not oblige the prosecution to call any expert ‘retained by the accused who happens to disagree with the views expressed by an expert retained by the Crown’.[45]
[44] Velevski (n42), [47].
[45] WG v R [2020] NSWCCA 155, [977].
Application of Principles
68Having regard to the above principles, and the need for restraint by a trial judge in interfering with a decision of a prosecutor, I will not at this stage direct the Director to call Mr Ryder.
69In accordance with points 3 and 4 in Apostolides, I consider that it is premature to determine the issue finally at this stage. Much will depend on the conduct of the prosecution case. It is open to the accused to raise the matter again during the trial if it wishes to.
70I have taken into account that, subject to establishing that his evidence is relevant to the questions for the jury, Mr Ryder could be called to give evidence by the accused.[46] After all, he was retained by the accused to answer questions put to him by the accused.
[46] Ibid, [983].
71The accused’s lawyers will need to comply with s 189 of the Criminal Procedure Act 2009.
72Finally, if the accused decides not to call Mr Ryder as a witness, it can seek a jury direction pursuant to s 43 of the Jury Directions Act 2015 (Vic). In Velevski, Gummow and Callinan JJ considered that such a direction cured any disadvantage the accused may have suffered by the Crown’s failure to call an expert.[47]
[47] Velevski (n 42), [176].
73I note that the other unresolved pre-trial issues identified by Mr Russell are the subject of ongoing discussions. The Court is of course available to assist in their resolution as necessary at short notice.
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