Guilfoyle v Kouzoukas

Case [2022] QDC 8

DISTRICT COURT OF QUEENSLAND

CITATION:

Guilfoyle v Kouzoukas  [2022] QDC 8

PARTIES:

AARON JOHN GUILFOYLE

(Appellant)

v
CONSTANTINOS KOUZOUKAS

(Respondent)

FILE NO/S:

DC 2037/21

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

31 January 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2021

JUDGES:

Smith DCJA

ORDER:

1.   The order made by the magistrate is confirmed.

2.   I will hear the parties on the question of costs of the appeal.

CATCHWORDS:

COSTS- MAGISTRATES COURTS- Complaint- Dismissal- Discretion to award costs to the respondent- relevant considerations- Section 158A of the Justices Act 1886 (Qld)

CRIMINAL LAW- PRACTICE AND PROCEDURE- Where defence conferred with prosecution expert- whether defence obliged to disclose expert opinion to prosecution- whether section 590B of the Criminal Code 1899 (Qld) applied in summary proceedings  

Acts Interpretation Act 1954 (Qld) ss 14A, 14B
Criminal Code 1899 (Qld) s 590B
Criminal Law Amendment Act 1997 (Qld) s 107
Criminal Law Amendment Bill 1996 (Qld) explanatory note c 107
Electrical Safety Act 2002 (Qld) ss 10, 14, 24, 28, 30, 38, 40D
Justices Act 1886 (Qld) ss 148, 158, 158A, 222, 223, 225

Benson v Matthews (No 2) [2005] QDC 56, cited
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477, cited
Harmony Shipping Co SA v Davis [1979] 3 All ER 177, cited
Hofer v R (2021) 95 ALJR 937, cited
Latoudis v Casey [1990] HCA 59, (1990) 170 CLR 534, cited
Murray v Radford [2003] QCA 91, cited
R v De Voss [1995] QCA 518, discussed
R v Goode [2004] QCA 211, cited
R v King [1983] 1 All ER 929, cited
R v R [1994] 4 All ER 260, discussed
R v Smyth (1956) 73 WN (NSW) 539, cited
Rowe v Kemper [2008] QCA 175; [2009] 1 Qd R 247; 185 A Crim R 526, applied
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304, cited

Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, cited

COUNSEL:

Mr J Underwood for the appellant
Ms K Riedel for the respondent

SOLICITORS:

Office of the Work Health Safety Prosecutor for the appellant
Barry and Nilsson for the respondent

Introduction

  1. This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld) (“JA”) against a Magistrate who on 8 July 2021 ordered the complainant to pay the respondent’s costs after an unsuccessful prosecution.

  2. On 9 December 2021, I allowed the appeal on the grounds that insufficient reasons had been given for this decision. The parties agreed that this Court rehear the matter and this is my decision upon the rehearing.[1] On such an appeal the judge is required to make his or her own determination of the facts giving due deference and weight to the magistrate’s view.[2]

    [1]Section 223 of the JA.

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AGLC
Guilfoyle v Kouzoukas [2022] QDC 8
Case
[2022] QDC 8
Decision Date

CaseChat Overview and Summary

The case of Guilfoyle v Kouzoukas involves a criminal appeal brought before the court. The appellant, Guilfoyle, is appealing against a decision of the Magistrates Court that dismissed a complaint against the respondent, Kouzoukas. The nature of the complaint and the legal issues at stake pertain to alleged breaches of electrical safety duties under the Electrical Safety Act 2002 (Qld). The court was required to decide whether the respondent had failed to comply with the statutory duty to ensure electrical safety, and whether there were any grounds for awarding costs to the respondent.

The legal issues the court had to address included whether the respondent was obliged to disclose an expert opinion to the prosecution, specifically an email exchange between the prosecution expert and a third party. The court also had to consider whether section 590B of the Criminal Code 1899 (Qld) applied in summary proceedings. The court examined the evidence presented, including affidavits and expert reports, and considered whether the prosecution had discharged the burden of proof beyond reasonable doubt.

The court found that the evidence provided by the prosecution was inconsistent and did not support a finding of guilt. The Magistrate noted that the inconsistencies within the prosecution’s own case should be resolved in favour of the respondent. The court accepted the respondent’s evidence that he had engaged electricians to ensure the basement was electrically safe and found that the prosecution had failed to prove the respondent’s alleged breach of duty. Consequently, the respondent was found not guilty.

Following the decision, the court turned to the question of costs. The respondent sought an order for costs, arguing that the case was of special difficulty, complexity, and importance. The respondent submitted that the complainant had failed to properly investigate the matter, leading to inconsistencies in the evidence. The court will hear further submissions on the costs of the appeal before making a final decision on the matter. The court confirmed the order made by the magistrate and will address the costs of the appeal in subsequent proceedings.

Orders

Orders of the court

1. The order made by the magistrate is confirmed.

2. I will hear the parties on the question of costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Both of these matters were not within the knowledge of the prosecution prior to trial.Evidence Two affidavits of Stewart Boland were relied on by the respondent below. In his first affidavit filed 18 June 2020 he states that the prosecution brief of evidence was delivered to his office on 3 July 2021 on a USB and was voluminous. A copy of the index to the prosecution brief is at pages 11 to 14 of his affidavit. Crucially at page 14 the prosecutor disclosed “email chain between Stephen Reynolds[100] and Professor Chris Andrews dated 1 January 2020 forwarded to our office in response to enquiries (4 pages).”[100]From Work Health and Safety. The email exchange is attached to Mr Boland’s second affidavit dated 5 July 2020 together with a report and Professor Andrews’ qualifications. In the report[101] dated 18 February 2018 to Work Health and Safety, Professor Andrews stated there was no evidence to rule in that Mr Viner’s death was caused by electric shock. At page 2 he noted that the machines had not been used for many years, they were not in working order. He had been informed none of the electrical connections were operational.[101]SJB2 pages 1-4. Professor Andrews graduated with Honours in Electrical Engineering and a Master of Engineering Science. He was now practising as a medical doctor. In the email to Mr Reynolds dated 27 December 2019[102] Professor Andrews noted:“For example, a non-fatal shock from thigh contact with an old machine is postulated earthing in waters. There does not seem to be account taken of the advice that the electricity to that machine had been disconnected and even if not, a second fault would have to exist in the machine to make it live. I gave this opinion earlier and to check this and the connections to the submersible pump are part of my reasons for revisiting. To suggest that a switch was turned on and a shock was received and then the switch turned off rather stretches likelihood even if power had not been disconnected. It is hard to postulate any fatal non-electrical event which would have caused death after shock … My memory is that fuse wedges have been removed and that there were exposed terminals at the empty fuse sockets. There are two scenarios to consider. First if the power had been removed to these sockets and I understand this to be the case there would be no risk to anyone standing in water who have touched them. Nonetheless there seems to have crept into the discussion a thought that power had not been fully removed to the socket. In that case there would be a high risk to everyone standing in water and touching the metal teeth on the sockets … Danger of electric shock when a rewireable fuse wedge is inserted to a socket if the person inserting the wedge contacts one of the contact prongs being inserted along with an earth. The design of the rewireable wedge is generally quite robust and steps are taken so this physically cannot occur by its design intent. While it would be cavalier to say this could never occur it is highly unlikely …”[102]SJB2 page 10.

Decision

Reasons for decision

On the question of whether the respondent discharged his duty, reference made to the respondent’s record of interview and his evidence at trial. It was submitted that his evidence regarding the engagement of electricians should be rejected and should be put to one side. It was also submitted his evidence concerning engaging Mr Schumacher was a lie and was relied on as demonstrating a consciousness of guilt. It was submitted the respondent did nothing with the equipment for 23 years and was aware the basement flooded and knew Mr Viner had access to the basement. It would have been reasonably practicable for him to strip out the wires completely from the compressor. It was submitted the respondent did not ensure the compressor was electrically safe and failed in his duty. Reasons for decision The Magistrate referred to the complaint and the particular sections of the Act. He referred to the background and the various witnesses. He then referred to the written submissions. He noted with respect to the difference between Mr Sparks, Mr Hewitt and Professor Andrews said:“The difficulty with that [the prosecution] submission is it is not supported by clear, cogent or consistent evidence. The Court must be satisfied beyond a reasonable doubt that the prosecution have proved each element of the offence before it could find the respondent guilty. Where such a significant inconsistency exists within the prosecution’s own case and that inconsistency remains an issue after all the evidence is adduced, that conflict must be resolved in favour of the respondent.” The Magistrate considered the respondent answered the questions of Mr Underwood in a frank manner. He found the respondent’s oral evidence consistent with the record of interview. There was nothing which suggested any consciousness of guilt on the part of the respondent. The Magistrate accepted his evidence that he did engage electricians to ensure the basement was electrically safe. He was not satisfied beyond reasonable doubt that the complainant had proved the respondent failed to comply with the electrical safety duty under s 40D of the ESA. He found the respondent not guilty.Costs After the decision was given directions were given as to the filing of submissions of costs as to costs and the costs argument was heard on 9 July 2021. The respondent sought an order for costs in the order of $95,000. It was submitted that such an award would be just and reasonable because of the special difficulty, complexity and importance of the case.Respondent’s costs submissions below The respondent referred to the various factors mentioned in s 158A(2) of the JA. It was submitted the complainant failed to take appropriate steps to investigate the matter and failed to investigate the offence in a proper way. This was evidenced from the fact that at the hearing there was a conflict in the evidence given by the complainant’s own witnesses namely whether or not the de-energised testing demonstrated the basement area was electrically unsafe. This was a critical part of the complainant’s case. It was pointed out that the charge was dismissed on the basis that the prosecution had failed to prove beyond reasonable doubt the respondent failed to comply with his electrical safety duty. During the investigation he cooperated and voluntarily participated in a record of interview and answered his questions in a frank and forthright manner. At trial he gave evidence that electricians had inspected the basement and told the Court he had not mentioned those matters because he’d not been asked the question. The property was fitted with a door that was locked with a padlock and access was restricted. It was also submitted that an amount exceeding the scale should be awarded.Appellant’s costs submissions below

Ratio Decidendi

Legal Principle Established

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