Fry v Keating
[2013] WASCA 109
•23 APRIL 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FRY -v- KEATING [2013] WASCA 109
CORAM: PULLIN JA
NEWNES JA
MURPHY JA
HEARD: 13 FEBRUARY 2013
DELIVERED : 23 APRIL 2013
FILE NO/S: CACR 95 of 2012
BETWEEN: NATHAN LEIGH FRY
Appellant
AND
DAVID PATRICK MAJELLA KEATING
Respondent
FILE NO/S :CACR 96 of 2012
BETWEEN :NATHAN LEIGH FRY
Appellant
AND
LUIGI VINCENZO DECESARE
Respondent
FILE NO/S :CACR 97 of 2012
BETWEEN :NATHAN LEIGH FRY
Appellant
AND
D & G HOISTS AND CRANES PTY LTD
Respondent
FILE NO/S :CACR 100 of 2012
BETWEEN :DAVID PATRICK MAJELLA KEATING
Appellant
AND
NATHAN LEIGH FRY
Respondent
FILE NO/S :CACR 101 of 2012
BETWEEN :LUIGI VINCENZO DECESARE
Appellant
AND
NATHAN LEIGH FRY
Respondent
FILE NO/S :CACR 108 of 2012
BETWEEN :DAVID PATRICK MAJELLA KEATING
Appellant
AND
NATHAN LEIGH FRY
Respondent
FILE NO/S :CACR 109 of 2012
BETWEEN :LUIGI VINCENZO DECESARE
Appellant
AND
NATHAN LEIGH FRY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
Citation :KEATING -v- FRY [2012] WASC 15
File No :SJA 1036 of 2011, SJA 1037 of 2011, SJA 1038 of 2011, SJA 1068 of 2011, SJA 1069 of 2011, SJA 1070 of 2011
Catchwords:
Occupational health and safety - Occupational Safety and Health Act 1984 (WA), s 19(1), s 55(1) - Whether company’s failure to provide and maintain a safe working environment was attributable to neglect on the part of its directors - Turns on own facts
Sentence - Sentencing Act 1995 (WA), s 55 - Apportionment of fine - Whether joint offenders - Whether offence committed because legal relationship resulted in each person being criminally responsible for the act or omission constituting the offence - Whether sentence was manifestly excessive
Costs - Criminal Procedure Act 2004 (WA), s 67 - Whether a prosecutor must be a law practice to recover its costs
Legislation:
Criminal Procedure Act 2004 (WA), s 3, s 67
Legal Profession Act 2008 (WA), s 3, s 275
Occupational Safety and Health Act 1984 (WA), s 19(1), s 55(1)
Sentencing Act 1995 (WA), s 55
Result:
CACR 108 and 109 of 2012 dismissed.
CACR 95, 96 and 97 of 2012 allowed.
CACR 100 and 101 of 2012 dismissed
Category: A
Representation:
CACR 95 of 2012
Counsel:
Appellant: Mr C S Bydder
Respondent: Mr S Russell
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Talbot Olivier
CACR 96 of 2012
Counsel:
Appellant: Mr C S Bydder
Respondent: Mr S Russell
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Talbot Olivier
CACR 97 of 2012
Counsel:
Appellant: Mr C S Bydder
Respondent: No appearance
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: No appearance
CACR 100 of 2012
Counsel:
Appellant: Mr S Russell
Respondent: Mr C S Bydder
Solicitors:
Appellant: Talbot Olivier
Respondent: State Solicitor for Western Australia
CACR 101 of 2012
Counsel:
Appellant: Mr S Russell
Respondent: Mr C S Bydder
Solicitors:
Appellant: Talbot Olivier
Respondent: State Solicitor for Western Australia
CACR 108 of 2012
Counsel:
Appellant: Mr S Russell
Respondent: Mr C S Bydder
Solicitors:
Appellant: Talbot Olivier
Respondent: State Solicitor for Western Australia
CACR 109 of 2012
Counsel:
Appellant: Mr S Russell
Respondent: Mr C S Bydder
Solicitors:
Appellant: Talbot Olivier
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Adams v Grayson [1999] WASCA 83
Bunnings Forest Products Pty Ltd v Shepherd [1998] WASCA 119
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Haynes v CI & D Manufacturing Pty Ltd [No 2] (1995) 60 IR 455
Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450
Inspector Corbett v Bbc Hardware Ltd [2006] NSWIR Comm 401
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Keating v Fry [2012] WASC 15
King v City of Fremantle [2004] WASCA 212
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Morrison v Winton (Unreported, WASC, Library No 960698, 12 December 1996)
R v Chargot Ltd (t/as Contract Services) [2008] UKHL 73; [2009] 1 WLR 1
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28
Wotherspoon v HM Advocate [1978] JC 74
PULLIN JA: I agree with Murphy JA.
NEWNES JA: I agree with Murphy JA.
MURPHY JA: On 9 October 2007, Mr Luke Murrie (the deceased) was an employee of D & G Hoists and Cranes Pty Ltd (the Company). He was killed when a pack of crane components, known as an L68 Pack, slipped in the course of it being lifted and moved at his place of work. The Company was prosecuted for breach of s 19 of the Occupational Safety and Health Act 1984 (WA) (the Act) for allegedly failing to provide and maintain a working environment in which employees of the Company were not exposed to hazards. The directors of the Company, Mr Decesare and Mr Keating, were also prosecuted pursuant to s 55(1) of the Act, which provides relevantly, in effect, that where a company is guilty of an offence under the Act and the offence was attributable to any neglect on the part of a director, the director is also guilty of that offence.
The matter was originally heard before Magistrate Hogan, who delivered reasons for judgment on 2 December 2010. Her Honour found that the Company breached s 19 of the Act by failing, so far as practicable, to provide and maintain a working environment in which its employees were not exposed to the risk of being injured or killed as a result of being crushed or hit by L68 Pack crane components when they were being lifted, and that that failure caused the death of the deceased. Her Honour also found that the offence was attributable to neglect on the part of the directors pursuant to s 55(1) of the Act. She subsequently sentenced the Company and the directors on 11 March 2011. She fined the Company $90,000 and fined each of the directors $45,000. Certain costs orders were also made on 9 June 2011.
There were various appeals to McKechnie J. The Company appealed against the fine imposed on it (on the basis of manifest excess), although not its conviction. The directors appealed against their convictions and sentences. The prosecutor also appealed against certain costs orders. McKechnie J dismissed the Company's appeal in relation to manifest excess (although he reduced the fine by apportionment as noted below). His Honour also dismissed the directors' appeals against conviction; he allowed the directors' appeals against sentencing and apportioned the Company's fine of $90,000 as between the Company ($70,000) and as between the directors ($10,000 each); and he allowed the prosecutor's appeals on costs.
There are now various appeals to this court.
The Company did not participate at the hearing. It had, prior to the hearing, indicated that it would abide by the outcome. At the hearing, counsel for the directors said that it had gone into liquidation.
The appeals and grounds of appeal
Directors' conviction and sentence appeals
CACR 108 of 2012 and CACR 109 of 2012 (Directors' Conviction and Sentence Appeals) are identical in terms. The appellants, who are the directors, contend that:
1)McKechnie J erred in law in finding the directors guilty of neglect attributable to the commission of the Company's offence when there were no facts or evidence capable of supporting a finding or an inference that they knew or ought to have known of unsafe methods being used on 9 October 2007, the date of the fatality;
2)McKechnie J erred in law in failing to require the prosecution to particularise the specific act of neglect of the directors, which was said to be attributable to the commission of the offence by the Company; and
3)in the absence of the proper application of s 55 of the Sentencing Act 1995 (WA), McKechnie J should have found that the sentences imposed on the directors by the magistrate were excessive, having regard to current sentencing practices and the level of culpability attributable to the commission of the offence by the Company.
In relation to ground 1, the directors allege that the judge erred because there was no evidence that the directors ought to have known that the unsafe method of lifting was being used. Rather, the directors submit, substantial evidence exists to the contrary. They point to the following matters. For example, there was a system in place to report any unsafe work practices involving the yard supervisor and the hiring of qualified riggers/doggers. Further, when the directors visited the workyard, they would correct employees if they observed unsafe practices. Neither director actually saw the dangerous method being used on the day of the fatality. Also, Mr Decesare was overseas and had no opportunity to observe or remedy the unsafe practice which was being carried out on that day. Further, it is alleged that a finding of liability under s 55(1) of the Act was not open in the absence of expert evidence as to industry practice, and, in particular, as to what reasonable directors in the position of the Company's directors would have done. The directors had also alleged that the primary judge had made findings based on particulars that had been withdrawn by the prosecution at the hearing before the magistrate, but that point was withdrawn at the hearing of the appeal.
In relation to ground 2, the appellants submit that the magistrate failed to require the prosecution to specify the particular act of neglect that occurred on the day of the accident. It is said that at no stage did the prosecution identify 'the fact, act or circumstance alleged to constitute the act of neglect'.
The issues in relation to ground 3 are addressed later in these reasons.
Apportionment appeals
CACR 95 of 2012, CACR 96 of 2012 and CACR 97 of 2012 (Apportionment Appeals) are identical in terms. The appellant, the prosecutor, Mr Fry, contends that:
1)McKechnie J erred in law in holding that Mr Keating, Mr Decesare and the Company were joint offenders within the meaning of s 55 of the SentencingAct and could therefore have the fine of one offender apportioned amongst them; and
2)in the alternative, McKechnie J erred in the exercise of his discretion by apportioning the fine.
In relation to ground 1, the prosecutor submits that the directors and the Company can only be considered joint offenders under s 55 of the Sentencing Act if the legal relationship between them, without more, makes each of them criminally responsible for the act or omission constituting the offence. It follows that if an additional element must be proved so that all persons will be criminally responsible for an offence, such as neglect on the part of the directors, the legal relationship between the Company and the directors cannot be said to result in each of the Company and the directors being criminally responsible. It is submitted that Mr Keating, Mr Decesare and the Company were not one accused, as neglect on the part of the directors was an additional element that needed to be proved. The directors, in response, submitted that an additional element in an offence beyond the legal relationship does not, in effect, oust the operation of s 55 of the Sentencing Act, and that the directors would not have been found criminally liable in this case were it not for the fact that each was a director of the Company. In oral submissions, counsel for the directors accepted, however, that the Company and each director were not 'joint offenders' within the meaning of s 55 of the Sentencing Act.
In relation to ground 2, the prosecutor alleges that if, contrary to the contention in ground 1, apportionment was available, the primary judge erred in the exercise of his discretion to apportion the fines between the Company and the directors in the way that he did.
Costs appeals
CACR 100 of 2012 and CACR 101 of 2012 (Costs Appeals) are identical in terms. The appellants, the directors, contend that McKechnie J erred in law:
1)in finding that the prosecution could claim and be awarded professional costs when it was not a law practice.
The findings of fact
McKechnie J recorded in his reasons, Keating v Fry [2012] WASC 15:
Neither party challenged the findings of fact which the magistrate set out in extensive reasons. Nor is the magistrate's decision as to the criminal responsibility of the company D & G challenged. It is the conclusion from the facts which the directors challenge and the prosecutor supports [13].
That finding is not challenged. It is accordingly appropriate to note the findings of fact made by Magistrate Hogan. All the references below refer to Magistrate Hogan's reasons for decision delivered 2 December 2010. Magistrate Hogan found, in effect, that:
(a)the Company operated a workplace including hoist, crane and storage yards [1];
(b)the Company's operations included the movement of L68 Packs [1];
(c)an L68 Pack comprises 16 components weighing 375 kg each, stacked into interwoven rows of eight [1];
(d)the directors of the Company, Mr Decesare and Mr Keating, were experienced in an industry involving the slinging of loads, and both were qualified doggers and riggers [82];
(e)each of the directors, Mr Decesare and Mr Keating, was 'hands on' in terms of being based at the workplace and frequently in the yard [114];
(f)at the time of the accident, the hierarchy within the workplace (from top to bottom) was [108]:
•Mr Decesare was the General Manager.
•Mr Keating was the Operations Director.
•Mr Richardson was the Operations Manager.
•Mr Davies was the Yard Supervisor.
•Mr Taylor allocated jobs to workers in accordance with instructions from Mr Davies; and
(g)most of the workers were qualified dogmen and/or riggers [108].
Although her Honour made no express finding that the directors knew of the matters in the preceding paragraph, it is obvious that they did and it is necessarily implicit in her Honour's reasons. She also made findings to the effect that the directors knew that:
(a)there was a hazard in the workplace in regard to lifting L68 Packs [68];
(b)any movement of L68 Packs by a method which involved securing only the bottom two of the 16 components of the pack (described as 'Method 2') was incorrect and dangerous and created the risk of injury or death [71], [83], [95], [99], [115];
(c)a method of lifting which properly encapsulated all components ('Method 1') was the appropriate method to lift L68 Packs [60];
(d)in 2004, the directors had discussed with the Yard Supervisor, Mr Davies, the appropriate method for slinging L68 Packs and had decided to use Method 1 [44], [60], [67];
(e)Mr Davies' administrative duties did not permit him to give full attention to the yard [109] (see also sentencing reasons [5]);
Her Honour also found, in effect, that:
(a)Method 2 had nevertheless been in use at the workplace on a regular basis for some time prior to the accident in October 2007 [66] ‑ [67];
(b)the directors did not know that Method 2 was in use [107];
(c)five employees, who were recent employees prior to the accident, believed, based in part on instructions from more senior doggers/riggers, that Method 2 was the method to be used in moving L68 Packs at the workplace [61], [66], [88], [89]; and
(d)the directors believed or thought that the yard supervisor, Mr Davies, was enforcing the use of Method 1 [91].
Her Honour also found, in effect, that:
(a)one of the directors, Mr Keating, accepted that it was one of his responsibilities to oversee the work of employees and to see that it was done safely [53];
(b)the same director also accepted that employees sometimes 'do things in a way that they shouldn't' [55];
(c)it was foreseeable that an employee might use a method other than Method 1 in slinging L68 Packs [95]; and
(d)the provision and maintenance, so far as practicable, of a working environment in which employees were not exposed to hazards required that there be supervision of doggers/riggers (despite their qualifications) to ensure that the correct method of moving L68 Packs was in use [92] ‑ [95].
As to the Company's culpability, her Honour found, in effect, beyond reasonable doubt:
(a)that the Company had failed to have the appropriate slinging method (Method 1) in place and enforced at the time of the accident [85] ‑ [95];
(b)that the omission resulted in the dangerous Method 2 being used [99]; and
(c)that as a consequence, the Company breached the Act by failing, so far as practicable, to provide and maintain a working environment in which its employees were not exposed to the risk of an employee being injured or killed as a result of being crushed or hit by L68 Pack crane components when they were being lifted. That failure caused the death of the deceased [99] [100].
As to the directors, the magistrate also found, in effect, that:
(a)there was not a consistent induction process in place and the deceased had not been the subject of an induction [87], [112];
(b)at the time of the accident, a written safety procedure was being formulated but had not been put in place [112];
(c)there was no consistent system in place whereby dogmen/riggers who were new to the business were shown how to correctly sling an L68 Pack [112];
(d)there was a breakdown of the supervision system in the workplace in that:
(i)insofar as Mr Davies, some time prior to the accident, had reported to his superior at the time (Mr Lim) that Method 2 was in use, nothing was ultimately done about it [112];
(ii)the Operations Manager, Mr Richardson, who was directly above Mr Davies in the workplace hierarchy, had no training in occupational health and safety, and had no experience in dogging or rigging and would not have known whether the slinging was being done properly [112];
(iii)insofar as Mr Davies said that Mr Taylor was his 'eyes' in the yard, the fact was that Mr Taylor had only ever seen slinging done by the use of Method 2 [20], [32]; and
(e)there was no formal safety officer employed [112].
There was a factual issue before the magistrate as to whether Mr Davies had seen the deceased and another person (Mr Holding) using Method 2 in the week prior to the accident and had corrected them. The magistrate did not accept that evidence [32], [64] ‑ [66].
Sections 19 and 55 of the Act
Section 19(1) of the Act provides, relevantly for present purposes:
(1)An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall ‑
(a)provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and
(b)provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards[.]
The operation of s 19(1) was discussed relatively recently in Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 [25] ‑ [39].
Section 55(1) of the Act provides:
Where a body corporate is guilty of an offence under this Act and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he or she, as well as the body corporate, is guilty of that offence.
In his reasons for judgment, McKechnie J referred to two decisions which provide some guidance in relation to the operation of s 55(1) of the Act: Wotherspoon v HM Advocate [1978] JC 74 and R v Chargot Ltd (t/as Contract Services) [2008] UKHL 73; [2009] 1 WLR 1.
In Wotherspoon v HM Advocate, Lord Justice-General Emslie, in dealing with a similar provision in Scottish legislation, said:
… the word 'neglect' in its natural meaning presupposes the existence of some obligation or duty on the part of the person charged with neglect. Where that word appears … it is associated with certain specified officers of a body corporate or with persons 'purporting to act in any such capacity'. It is any neglect on their part to which the commission of an offence within a specified category by a body corporate is attributable which attracts the penal sanction. …
Accordingly, in considering in a given case whether there has been neglect within the meaning of section 37(1) on the part of a particular director or other particular officer charged, the search must be to discover whether the accused has failed to take some steps to prevent the commission of an offence by the corporation to which he belongs if the taking of those steps either expressly falls or should be held to fall within the scope of the functions of the office which he holds. In all cases accordingly the functions of the office of a person charged with a contravention of section 37(1) will be a highly relevant consideration for any Judge or jury and the question whether there was on his part, as the holder of his particular office, a failure to take a step which he could and should have taken will fall to be answered in light of the whole circumstances of the case including his state of knowledge of the need for action, or the existence of a state of fact requiring action to be taken of which he ought to have been aware (78).
In R v Chargot, Lord Hope said:
[T]he circumstances will vary from case to case. So no fixed rule can be laid down as to what the prosecution must identify and prove in order to establish that the officer's state of mind was such as to amount to consent, connivance or neglect. ... In Wotherspoon v HM Advocate 1978 JC 74, 78 Lord Justice-General Emslie said the section is concerned primarily to provide a penal sanction against those persons charged with functions of management who can be shown to have been responsible for the commission of the offence by a body corporate, and that the functions of the office which he holds will be a highly relevant consideration. In R v P Ltd [2008] ICR 96 Latham LJ endorsed the Lord Justice-General's observation that the question, in the end of the day, will always be whether the officer in question should have been put on inquiry so as to have taken steps to determine whether or not the appropriate safety procedures were in place …
The state of mind that the word 'connivance' and 'neglect' contemplate is one that may also be established by inference. The offences that are created by sections 2(I) and 3(I) are directed to the result that must be achieved by the body corporate. Where it is shown that the body corporate failed to achieve or prevent the result that those sections contemplate, it will be a relatively short step for the inference to be drawn that there was connivance or neglect on his part if the circumstances under which the risk arose were under the direction or control of the officer. The more remote his area of responsibility is from those circumstances, the harder it will be to draw that inference [33], [34].
It was common ground in this appeal that in determining liability for 'neglect' under s 55(1) of the Act, a relevant consideration is not only what the director or other officer charged 'knew', but what that person 'ought to have known' in all the circumstances: Morrison v Winton (Unreported, WASC, Library No 960698, 12 December 1996), 21 (Scott J).
The appellants contended that a finding of 'neglect' could not be made under s 55(1) of the Act unless the prosecution led expert evidence of industry practice - in this case as to what a reasonable director would have done in similar circumstances. It is convenient to note here that I do not accept that contention as to the operation of s 55(1) of the Act. The word 'neglect' is an ordinary word and is not a term of art. As indicated in Wotherspoon v HM Advocate (see [28] above), it presupposes the existence of some obligation on the part of the person charged. Expert evidence may be admissible as to industry practice (depending on the circumstances), but, even if it were admitted, the court would not be bound by it or constrained from making its own adjudication on whether there had been 'neglect' within the meaning of s 55(1) of the Act: cf Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 487; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 453.
Directors' Conviction and Sentence Appeals ‑ disposition: Grounds 1 and 2
Ground 1
At the outset, I should indicate that, in my view, the magistrate's uncontested findings referred to earlier are sufficient to enable the inference to be drawn, beyond reasonable doubt, that the Company's offence was attributable to neglect on the part of the directors. As McKechnie J observed in his reasons at [29], in effect, the directors assumed that the safe method (Method 1) was in use, but there were no procedures in place to ensure that the safe method was always used. That occurred in the context that it was foreseeable that an employee might not use Method 1, and that the directors knew that if Method 2 was used, it would create the risk of injury or death. That is the short answer to these appeals. It can be elaborated as follows.
The test, according to the directors' submissions, is that unless it can be proved that the directors ought to have known that the Company's employees were using Method 2 on the day of the fatality, there can be no basis for a finding of liability under s 55(1) of the Act. That submission cannot be accepted.
It does not accurately state the statutory test and its application in this case to the uncontested findings. As noted previously, the magistrate found that the Company had failed to have the appropriate slinging method (Method 1) in place and enforced at the time of the accident; that such omission resulted in the dangerous Method 2 being used; and that the Company thereby breached s 19 of the Act by failing, so far as practicable, to provide and maintain a working environment in which its employees were not exposed to the risk of being injured or killed as a result of L68 Pack crane components being lifted. The question, relevantly, was whether this failure by the Company was 'attributable to any neglect on the part of any directors'.
The directors' functions in this case, as they evidently recognised through their meeting with Mr Davies in 2004, included taking steps on behalf of the Company for the provision and maintenance of a safe system of work in connection with the slinging of L68 Packs. The discharge of those functions arose in circumstances where:
a)the directors knew of the hazard involved in lifting and moving L68 Packs;
b)the directors knew that Method 1 was the appropriate method which ought to be used at all times in slinging L68 Packs;
c)one director accepted that employees did not always do things in ways that they should, and, moreover, there was a finding that it was foreseeable that an employee might use a method of slinging other than Method 1; and
d)the directors had not implemented any of the systems or procedures referred to in [22] above to ensure that Method 1 was used in the workplace ‑ there was no consistent induction process; no written safety procedure; no consistent system for new dogmen or riggers to be shown how to correctly sling an L68 Pack; and no formal safety officer was employed.
In this context, it was found, in effect, that the steps taken by the directors, being the oral decision in 2004 made with and conveyed to Mr Davies that Method 1 should be used, and the directors' belief that thereafter Mr Davies would enforce the use of Method 1, by themselves or in combination with the fact that doggers/riggers were trained and qualified in lifting packs, were inadequate to enable the Company to discharge its statutory obligations with respect to employees in relation to the movement of L68 Pack crane components.
It follows, in my view, that it was properly open to infer, beyond reasonable doubt, that the Company's failure was attributable to neglect on the part of its directors. No expert evidence was necessary to prove that what little the directors did, and what they failed to do, constituted 'neglect' within the meaning of s 55(1) of the Act, involving a failure to ensure that the Company had in place on 9 October 2007 a safe method for slinging L68 Packs and the failure to enforce the use of Method 1. It was not necessary for the prosecution to prove, in addition, that the directors 'ought to have known' that Method 2 was being used on the day of the fatality.
Even if it were necessary to prove that the directors ought to have known that Method 2 was being used, that finding was also made by the magistrate at [115], and the inference was properly open. The magistrate found that Method 2 was being used as a result of Method 1 not being in place and not being enforced. Had the directors taken steps to enforce Method 1, it is to be inferred that they would have become aware that Method 2 was being used in the yard, and ought to have known of its use on the day of the fatality.
I would dismiss ground 1 of the Directors' Conviction and Sentence Appeals.
Ground 2
The directors contend that the prosecution did not identify the fact, act or circumstance alleged to constitute the act of neglect. They refer to a number of cases addressing the question of the provision of particulars at common law, including Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; and Bunnings Forest Products Pty Ltd v Shepherd [1998] WASCA 119. In relation to the last mentioned case, the directors refer, in particular, to the observations by Anderson J that '[w]hen a person is charged on particulars giving one set of facts, he really cannot be convicted on proof of a different set of facts ‑ at least not unless he has had a fair opportunity of defending himself on those different facts'.
By statute, a prosecution notice must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge and, amongst other things, describe the offence with reasonable clarity: Criminal Procedure Act 2004 (WA) sch 1 cl 5(1)(a).
In Kirkv Industrial Court of New South Wales, the High Court discussed the particular statutory regime in New South Wales and, in that context, the potential interaction between the common law and s 11 of the Criminal Procedure Act 1986 (NSW). Section 11 provided that the description of any offence in the words of an Act creating the offence 'is sufficient in law'. Their Honours observed that it was unnecessary to examine whether the orders in that case were made in accordance with the relevant statutory rules, but continued:
However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller [38] where it would act as 'an administrative commission of inquiry' rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences.
It may be inferred from the concluding statements to the charges that it was considered sufficient to allege that, as a consequence of a series of unspecified failures on the part of the employer, there remained present general risks to the health and safety of employees and others [30], [31]. (emphasis added)
In this case, particulars had been provided by the prosecution of the alleged offence by the Company and the alleged offence by each director. In relation to the directors, particulars of the alleged 'neglect' were provided, the effect of which was to allege that the Company's offence was attributable to the neglect of the directors because they failed to ensure that the Company had Method 1 in place and to enforce its use.
The learned appeal judge found that:
Unlike the particulars in Kirk, the particulars in this case were specific and enabled the directors to know the case being put against each of them [40].
I see no error in his Honour's conclusion. There is nothing in the materials in this appeal which would indicate that the directors were put to any real difficulty in understanding and addressing the case against them at the hearing before the magistrate. They were not, adopting the words of Anderson J in Bunnings v Shepherd, 'charged on particulars giving one set of facts … [and] convicted on proof of a different set of facts'. Accordingly, I would dismiss ground 2.
The Apportionment Appeals ‑ disposition
Ground 1
The relevant findings under challenge are contained in McKechnie J's reasons at [47] [48] and [50] [51]:
The magistrate rejected a submission that the fine be apportioned:
[The Company] has failed to provide a safe system in relation to lifting the L68 packs. That offence was attributable to the neglect on the part of each of the two directors. The directors have not been convicted solely because they were directors of [the Company] but because the [C]ompany's offence was attributable to their neglect. The legislature has seen fit to provide separate offence provisions with respect to corporate entities and their directors [30].
While she is correct in her view as to separate offence provisions, she erred in her conclusion that the fines could not be apportioned as a matter of discretion. The Sentencing Act 1995 (WA) s 55 provides:
(1)If a court sentencing 2 or more joint offenders decides to fine them it may apportion between them as it thinks fit the fine it would have imposed if there were only one offender.
...
(3)In this section -
joint offenders means persons who are each convicted of an offence because a legal relationship between them (such as being co-owners of property) results in each of them being criminally responsible for the act or omission constituting the offence.
…
The Occupational Safety and Health Act s 55 provides:
(1)Where a body corporate is guilty of an offence under this Act and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he or she, as well as the body corporate, is guilty of that offence.
There is an additional element that the prosecution must prove, for a director to be found guilty, that element in this case being neglect. However, s 55 is a deeming provision because if the body corporate is guilty and the offence was attributable to neglect, the director is guilty of that offence. 'That offence' can only be referenced to the offence for which the body corporate has been found guilty. Although there is an extra element, there can be no conviction of a director unless an offence has been committed by a company. The legal relationship between them is intertwined to such an extent as to make the sections of the Sentencing Act s 55 applicable. The deeming provision makes each in substance one accused: Adams v Grayson (1999) 106 A Crim R 505 at [13].
In my respectful view, his Honour erred.
The discretion conferred by s 55(1) of the Sentencing Act is only enlivened where a court is sentencing two or more 'joint offenders'. According to s 55(3) of the Sentencing Act, two or more offenders will be considered 'joint offenders' where the legal relationship between them 'results' in each of the offenders being criminally responsible for the act or omission constituting the offence.
That is not the case in relation to s 55(1) of the Act. Directors are not guilty of an offence under s 55(1) of the Act because their legal relationship with the company results in them being criminally responsible with the company. Rather, s 55 of the Act requires there to be consent, connivance or neglect on the part of the director. It is the additional act of consent, connivance or neglect that results in the director's liability; not merely the fact of the director's legal relationship with the company.
This construction is consistent with the apparent policy of s 55 of the Sentencing Act. Where there are two or more persons criminally liable for an act by virtue of a legal relationship between them, for example, through co‑ownership of property, apportionment will operate so as to avoid the situation where punishment is meted out multiple times where there is, in substance, only one offender. However, where multiple offenders are liable because of an act or omission that each is said to have done or not done, it may be seen as appropriate to assess the extent of each offender's liability against their act or omission.
Also, the learned appeal judge's characterisation of s 55 of the Act as a 'deeming provision' which 'deems' the directors and the Company to be 'in substance one accused' is not, in my respectful view, correct. Nor is it borne out by the decision in Adams v Grayson [1999] WASCA 83 to which his Honour referred.
In Adams v Grayson, the two respondents were convicted of possession of abalone in excess of the prescribed possession limit. The issue on appeal was whether the magistrate was correct in apportioning the fine between the respondents pursuant to s 55 of the Sentencing Act. Miller J found that
[Section 55] is intended to apply… where there are two defendants before the court who are prosecuted because they are partners or because of some other legal relationship between them (such as being co-owners of property) and the result is that each is criminally responsible, although 'in substance the one defendant' [13].
Miller J upheld the appeal on the basis that whatever legal relationship might have existed between the two respondents, it was not the legal relationship which brought about their conviction. The two respondents were not 'in substance the one defendant' because it was the offence of each being in possession of the abalone which brought about their respective convictions [14]. Miller J's decision indicates that, to establish that two or more offenders are joint offenders, it is the legal relationship itself that must result in each offender being found criminally responsible.
Further, the observations of Deane, Dawson and Gaudron JJ in Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450 are pertinent. In that case, the relevant provision of the Taxation Administration Act 1953 (Cth) provided, in effect, that where a corporation commits a taxation offence, a person concerned in the management of the company will be deemed to commit the offence (compare s 7 and s 8 of the Criminal Code (WA)). In Hookham v The Queen, Deane, Dawson and Gaudron JJ said:
[T]here may be parties to the one offence, other than the actual perpetrator, with varying degrees of participation, each of whom commits the offence … The [deeming provision does] not create a situation in which one person is to be regarded as having committed another person's offence. Rather, they require persons with the specified complicity in an offence to be regarded as parties to that offence ...
[The deeming provision], in providing that the person is 'punishable accordingly', is not providing for punishment for an offence which was really committed by the corporation and is only 'deemed' to have been committed by that person; it is providing for punishment for an offence to which that person is deemed to be a party because of his or her complicity in it (459).
Section 55 of the Act does not deem a director to be liable for 'an offence which was really committed by the corporation'. A director is liable under s 55 of the Act only where it is proved that the offence occurred 'with the consent or connivance of, or was attributable to any neglect on the part of' the director.
The directors' counsel accepted at the hearing of the appeal that the directors and the Company were not joint offenders within the meaning of s 55(1) of the Sentencing Act. For the reasons given above, that concession was correct. The result is that it was not open to the primary judge to apportion the Company's fine amongst the Company and the directors. The directors' further submission to the effect that, somehow, the primary judge's apportionment between the Company and the directors could be upheld because the directors were purportedly in a legal relationship with each other and purportedly owed each other fiduciary duties, is plainly untenable, not least for its misconception as to the beneficiary of the fiduciary duties of a director.
I would uphold ground 1 of the Apportionment Appeals. The apportionment orders made by McKechnie J should be set aside, as should his orders quashing the sentences imposed by the magistrate.
It is unnecessary, accordingly, to determine ground 2 of the Apportionment Appeals. However, this is a convenient point at which to turn to ground 3 of the Directors' Conviction and Sentencing Appeals.
Ground 3 of the Directors' Conviction and Sentencing Appeals
McKechnie J found that absent apportionment, the fines imposed by the magistrate did not disclose error. His Honour said:
The magistrate, in careful sentencing remarks, weighed all the aggravating and mitigating factors, apart from one matter with which I will shortly deal. There is no discernable error. Manifest excess is a conclusion. I am not persuaded that the fines for the directors were manifestly excessive having regard to their proven neglect and its consequences [46].
The directors contend, in effect, that his Honour was wrong so to conclude.
The directors contend that the fines originally imposed by the magistrate were excessive having regard to the following factors:
a)the employees were all qualified and held a 'blue card';
b)the lift was a simple straight forward lift; the lift which killed the deceased was not considered an unusual lift;
c)meetings were held each morning with the crew to discuss the work to be carried out;
d)the directors did not receive any information that the system of work was not being complied with;
e)while relying upon the qualifications and expertise of its employees, the directors took 'the additional step' of requiring Method 1 to be used;
f)Mr Davies had tried to put a stop to Method 2;
g)any competent dogman or rigger would use Method 1;
h)although the evidence revealed that Method 2 was being used at the yard by some employees on a regular basis, the 'true fault and criminality of the [C]ompany was in failing to ensure compliance with [Method 1]';
i)the failure of the system enforcing compliance apparently arose from two senior employees failing to carry out the directions of the Company;
j)the appointment of a yard supervisor to enforce safety and report on unsafe practices; and
k)current sentencing practices.
The directors observed that, as the magistrate stated, a fine imposed on the Company would have a financial impact on the directors. It is also said that the cumulative effect of the fines which had been imposed by the magistrate resulted in a total of $180,000, and that such a fine would amount to the largest fine imposed for a breach of the Act in Western Australia. Reference is also made to cases in which it was held that in sentencing two closely related companies involved in breaches of safety laws, it was permissible to treat the offence in a 'global way': Inspector Corbett v Bbc Hardware Ltd [2006] NSWIR Comm 401 [35]; Haynes v CI & D Manufacturing Pty Ltd[No 2] (1995) 60 IR 455, 458.
In order to determine whether a sentence is manifestly excessive, it must be viewed from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
As the learned appeal judge correctly observed, the magistrate had set out, in a careful and comprehensive set of reasons, the basis upon which she fined each director $45,000. Her Honour addressed all of the relevant matters in sentencing the directors. Her reasons addressed, in substance, each of the factors referred to by the directors in [61] above. It is unnecessary to repeat all her Honour's reasons here, although it is convenient to draw particular attention to a portion of her sentencing reasons delivered 11 March 2011:
In setting the fine the court must give recognition to the need for specific and, of most relevance in this case, general deterrence. Specific deterrence is not of significance given that [the Company] has taken steps to rectify the problem and has a very good safety record. I see no need in such circumstances for the penalty to contain a component to specifically deter the accused from lapsing in relation to safety systems in the future. However general deterrence is of significant importance. Employers must realise the onerous duties imposed upon them under the Act and the heavy responsibility they carry for the safety of their employees.
The hazard in question has caused the death of a young man. The hazard should have been identified and removed before that death occurred. It is unacceptable that [the deceased] had to die before the breakdown in the system, which produced the hazard, was revealed. Having said that, the penalty to be imposed is not imposed because [the deceased] lost his life but because of the failure to provide a safe working environment. However the penalty has to be assessed in the light of the conduct involved and the risk to an employee emanating from a failure to provide a safe workplace Morrison v Winton and Atlas Group Pty Ltd; unreported; SCt of WA; Lib No 96068; 12 December 1996 at p22 (emphasis added).
Section 24 of the Sentencing Act provides that a victim may give a victim impact statement to a court to assist the court in determining the proper sentence for the offender. The court has been provided with statements made by [the deceased's] mother, father and brother. As a very tight knit family each are devastated by the loss of [the deceased]. No amount of fine imposed by this court can in any way compensate for their tragic loss.
I disagree with the prosecution's submission that this matter falls at the highest end of the scale in terms of seriousness. The accident occurred not due to the total absence of a protective system of work, but to a flawed protective system. Nevertheless the flawed system had placed workers at risk for some period of time. The eventual result of the accuseds' neglect was the death of an employee. The degree of seriousness falls above the mid range given my findings that the accused had not put in place an adequate system of enforcing safety and that safety procedures relevant to the lifting of L68 packs were dealt with in a cursory manner (reasons for decision [112]) …
Having assessed the offending to fall above the mid line in the scale of seriousness and having taken into account the mitigating factors referred to above I consider the appropriate penalties to be substantial fines.
The primary offender in this case is [the Company]. The directors were found guilty on the basis that [the Company's] failure to provide a safe working environment was attributable to their negligence …
Taking into account the seriousness of the offence, the circumstances which led to the occurrence of the offence, the mitigating factors referred to in these reasons for decision, my conclusion that those circumstances bring this case above the mid line of seriousness in the range applicable to the offences under consideration, the importance of general deterrence and the financial information provided in relation to each of the accused, I consider the appropriate penalties to be a fine of $90,000.00 in relation to [the Company] and $45,000.00 each in relation to the directors [17] ‑ [20], [25] ‑ [26], [36].
This was a first offence and the maximum fine for each director was $200,000: s 19A(2), read with s 3A(3) of the Act. The fine imposed by the magistrate on each director was 22.5% of the maximum penalty. On the magistrate's findings and in the circumstances, a fine of that magnitude could not reasonably be described as manifestly excessive. Adopting and adapting the words of Gaudron and Gummow JJ in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330, this is plainly not a case for appellate intervention on the ground that no weight or insufficient weight has been given to relevant considerations in the requisite sense, that is, in the sense that there has really been a failure by the magistrate to exercise the discretion actually entrusted to her.
The authorities referred to by the directors where a 'global' approach was taken to sentencing in relation to offences committed by two closely related companies have no application here. Each of the directors was guilty of neglect in his own right. Neither should receive, in effect, a discount because the other committed a like offence or because the Company committed the offence.
I would dismiss ground 3 of the Directors' Conviction and Sentencing Appeals.
Costs Appeals
Introduction
Section 67 of the Criminal Procedure Act 2004 (WA) provides:
67. Costs
(1)Subject to the Official Prosecutions (Accused's Costs) Act 1973 and this section, a successful party to a prosecution is entitled to the party's costs.
(2)If a court convicts an accused of a charge, the court may order the accused to pay all or a part of the prosecutor's costs.
(3)The amount of costs ordered under subsection (2) may be determined in accordance with the relevant determination made under the Legal Profession Act 2008 section 275 for the purposes of the Official Prosecutions (Accused's Costs) Act 1973 and with the Legal Profession Act 2008 section 280.
(4)A court may reduce the costs that it would otherwise have awarded, or refuse to award costs, under this section to a party if -
(a)any act or omission of or caused by the party (other than an act or omission that is the subject of a charge) was unreasonable in the circumstances and contributed to the institution or continuation of the case; or
(b)any act or omission of or caused by the party during or in the conduct of the case was calculated to prolong the case unnecessarily or cause unnecessary expense.
(5)The court may adjourn an application for costs, or the determination of the amount of costs to be paid.
(6)A question adjourned under subsection (5) is to be dealt with by a magistrate and may be dealt with in chambers.
The term 'prosecutor', which is used in s 67(2) of the Criminal Procedure Act, is defined in s 3 of that Act to mean, relevantly:
[I]n a prosecution in a court of summary jurisdiction, the person who commenced the prosecution or a person who in court represents that person[.]
The directors' argument concerns the proper construction of s 67 of the Criminal Procedure Act. The directors contend, in effect, that in order for a 'prosecutor' to recover costs under s 67(2) of the Criminal Procedure Act, the prosecutor must also be a 'law practice' within the meaning of the Legal Profession Act 2008 (WA) (LP Act). Section 3 of the LP Act contains the following definition:
law practice means -
(a)an Australian legal practitioner who is a sole practitioner; or
(b)a law firm; or
(c)a multidisciplinary partnership; or
(d)an incorporated legal practice;
The directors contend that the meaning of 'prosecutor' in s 67(2) is confined to 'law practice' because:
(a)section 67(3) of the Criminal Procedure Act provides that the costs ordered under s 67(2) may be determined in accordance with, in effect, a relevant costs determination made under s 275 of the LP Act;
(b)under s 275 of the LP Act, a determination may be made with respect to 'legal costs' charged by 'law practices';
(c)the definition of 'legal costs' in s 3 of the LP Act confirms that the power to make a cost determination under s 275 of the LP Act relates to the costs of a 'law practice'.
The directors also contend that confining the term 'prosecutor' to a 'law practice' in s 67(2) is consistent with the fact that the relevant costs determination for the purposes of s 275 of the LP Act is the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 (WA) (Determination) and that the Determination only applies to an accused's costs.
The prosecutor, in reply, argued that, properly construed, the word 'prosecutor' in s 67(2) is not so confined. The prosecutor also contended, in the alternative, that the Determination would apply, on its terms, because it applies to the remuneration of 'legal practitioners' (cl 4 of the schedule to the Determination). The prosecutor contends that the lawyers for the prosecutor employed by the State Solicitor's Office are 'WA Government lawyers' and hence 'legal practitioners', and refers in this regard to s 5 and s 36(2) and (3) of the LP Act. It was not clear to me how this argument addressed the directors' statutory construction argument. The question of whether lawyers of the State Solicitor's Office are 'legal practitioners' would not seem to me to assist in resolving the question as to whether the word 'prosecutor' (who, in this case, is Mr Fry) is confined to 'law practice' on the proper construction of s 67(2). In any event, the directors' rejoinder to the prosecutor's alternative argument was that the Determination was ultra vires insofar as it applied to 'legal practitioners' and not to a 'law practice'.
Disposition
The word 'costs' in s 67(2) of the Criminal Procedure Act is not defined, but in its context refers to the legal costs, including disbursements, of the prosecutor.
It is implicit in the directors' construction argument that there is nothing in s 67(2) itself, read with the definition of 'prosecutor' in s 3 of the Criminal Procedure Act, which would convey the suggestion that 'prosecutor' means 'law practice'. Indeed counsel for the directors accepted that this was clear beyond question (ts 23). Rather, the directors contend, in effect, that this gloss on the meaning of 'prosecutor' in s 67(2) arises by way of necessary intendment from s 67(3) of the Criminal Procedure Act. 'Necessary intendment … means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable': Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28, 32.
In my view, the directors' contention cannot be accepted. Section 67(3), like the words after the word 'or' in s 67(5), deals with the determination of the amount of costs to be paid. Section 67(3) is not addressing the question of which party may be entitled to an order for costs. The question of who may obtain an order for costs, which is logically anterior to the question of determining the amount of such costs, is addressed, relevantly, in s 67(2). Moreover, s 67(3), through the use of the word 'may', gives the court a discretion in determining the amount of costs to be paid to the prosecutor. The Determination is only binding for the purpose of determining the costs of the accused: s 67(1) of the Criminal Procedure Act and s 5(5) of the Official Prosecutions (Accused's Costs) Act 1973 (WA). However, for the purposes of determining the amount of costs under s 67(3) that are payable to a prosecutor, the Determination may be used as a 'guide' or by way of 'an analogy': King v City of Fremantle [2004] WASCA 212 [84]. This construction is confirmed by a consideration of s 280 of the LP Act to which s 67(3) also refers. Section 280(1) permits departures from the Determination and s 280(3) preserves the power of the court to determine the amount of costs allowed in any particular case.
The directors advanced various explanations as to why a prosecutor should not recover its costs - essentially on the basis that there should be no 'impediment' to an accused's 'access to justice'. None of the matters advanced by the directors explained, however, why once Parliament has provided for the prosecutor to recover its legal costs, the provision's operation should be reduced to the point where it has no sensible application - which is the result of their construction.
For these reasons, the Costs Appeals should be dismissed. It is unnecessary to deal with the prosecutor's alternative argument or the directors' rejoinder to that alternative argument. Nevertheless, my preliminary view is that the learned appeal judge was correct to say, in effect, that there is no conflict between the Determination and s 275 of the LP Act [81]. Section 275(5) of the LP Act empowers a determination to be made for purposes other than those set out in s 275(1) where 'another written law' refers either to a 'determination under' s 275 of the LP Act, or a 'costs determination' as defined in s 252 of the LP Act. Section 67(3) refers to the former, and s 5(5) of the Official Prosecutions (Accused's Costs) Act refers to the latter. In the circumstances, the validity of the Determination is capable of being supported by s 275(5) of the LP Act.
Conclusion
I would:
(a)dismiss the appeals in CACR 108 of 2012 and CACR 109 of 2012;
(b)allow the appeals in CACR 95 of 2012, CACR 96 of 2012 and CACR 97 of 2012;
(c)dismiss the appeals in CACR 100 of 2012 and CACR 101 of 2012.
In relation to CACR 95 of 2012, CACR 96 of 2012 and CACR 97 of 2012, the orders made by McKechnie J should be set aside, and the sentencing orders of the magistrate restored.
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