DPP v Frankipile Australia Pty Ltd (Unreported, County Court of Victoria, Judge Wischusen, 18 December 2014)
---
CRIMINAL LAW – Appeal – Conviction – Occupational health and safety – Duty to ensure safe workplace ‘so far as reasonably practicable’ – Duty to provide safe system of work – Duty to provide necessary induction, training, supervision – Collapse of pile-driving machine – Procedures for erection of machine not followed – Risk of collapse – Whether identified measures would have eliminated or reduced risk – Whether measures reasonably practicable – Whether duties of induction/training/supervision subject to ‘reasonable practicability’ qualification – Causation – Death of worker – Whether proof of causal connection required – Verdicts not unsafe – Leave to appeal refused – Occupational Health and Safety Act 2004 ss 20, 21, 23, 33(2).
CRIMINAL LAW – Practice and procedure – Pleading – Particulars – Occupational health and safety – Charge alleged breach of general safety duty – Particulars alleged three separate breaches of specific duties – Joinder of separate allegations undesirable – Inscrutability of guilty verdict – Implications of joinder for sentencing and conviction appeals discussed – Occupational Health and Safety Act2004 s 33(2).
CRIMINAL LAW – Occupational health and safety – Risk-based offences – Objective gravity – Occurrence of death or injury irrelevant to criminal liability – Little relevance to offence gravity – Directly relevant to impact on victims – Sentencing Act 1991 s 3.
Sentence appeal – Vibro-Pile
CRIMINAL LAW – Appeal – Sentence – Occupational health and safety – Failure to ensure safe system of work – Failure to provide necessary induction, training and supervision – Conviction after trial – Aggregate fine of $100,000 – Whether manifestly inadequate – Serious breaches – Significant safety risk – General deterrence – Victim’s family affected as ‘direct result’ – Fine inadequate – Appeal allowed – Resentenced to fines of $250,000 (Charge 3) and $500,000 (Charge 4) – Occupational Health and Safety Act2004 s 21, Sentencing Act1991 s 3.
Sentence appeal – Frankipile
CRIMINAL LAW – Appeal – Sentence – Occupational health and safety – Failure to ensure safe system of work – Failure to provide necessary induction, training and supervision – Conviction after trial – Aggregate fine of $350,000 – Whether manifestly inadequate – Serious breaches – Significant safety risk – General deterrence – Victim’s family affected as ‘direct result’ – Fine inadequate – Appeal allowed – Resentenced to fines $250,000 (Charge 1) and $500,000 (Charge 2) – Occupational Health and Safety Act2004 s 21, Sentencing…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading DPP v Vibro-Pile (Aust) Pty Ltd
Sign in free to access the full text
Details
AGLC
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
Case
[2016] VSCA 55
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed against the conviction and sentence of Vibro-Pile (Aust) Pty Ltd following the death of a worker due to the collapse of a pile-driving machine. The company had been charged with breaches of occupational health and safety duties under the Occupational Health and Safety Act 2004. The primary court found the company guilty of failing to ensure a safe workplace and safe system of work, and of failing to provide necessary induction, training, and supervision. The court considered whether the measures that could have prevented the incident were reasonably practicable and whether the duties to provide induction, training, and supervision were subject to the qualification of being reasonably practicable. The court also addressed the issue of causation in the context of criminal liability, concluding that the proof of a causal connection was not a prerequisite for conviction. The appeal against conviction was dismissed as the verdicts were not unsafe.
The legal issues before the court included whether the charge should have been particularised to specify the separate breaches of specific duties, and whether the joinder of these allegations was undesirable. The court discussed the implications of the joinder for sentencing and conviction appeals. It was determined that the joinder did not make the verdicts inscrutable and was not an undesirable practice under section 33(2) of the Occupational Health and Safety Act 2004. The court also considered the relevance of the occurrence of death or injury to the gravity of the offence, concluding that while it was of little relevance to criminal liability, it was directly relevant to the impact on the victims. The court found that the verdicts were not unsafe and dismissed the appeal against conviction.
The court considered the adequacy of the fines imposed on Vibro-Pile (Aust) Pty Ltd and Frankipile. The fines were assessed against the criteria of the objective gravity of the breaches, the need for general deterrence, and the impact on the victims' families. The court found the initial fines to be manifestly inadequate, given the serious breaches, significant safety risk, and the effect on the victims' families. The appeals were allowed, and the companies were resentenced to higher fines, with Vibro-Pile (Aust) Pty Ltd receiving fines of $250,000 and $500,000, and Frankipile receiving fines of $250,000 and $500,000. The court applied sections 21 and 3 of the Occupational Health and Safety Act 2004 and the Sentencing Act 1991 in reaching its decision.