Halifax Crane Hire Pty Ltd v Ayton - [2023] WASC 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HALIFAX CRANE HIRE PTY LTD -v- AYTON [2023] WASC 16
CORAM:   FORRESTER J
HEARD:   30 NOVEMBER 2022
DELIVERED          :   2 FEBRUARY 2023
FILE NO/S:   SJA 1049 of 2022
BETWEEN:   HALIFAX CRANE HIRE PTY LTD
Appellant
AND
LEONA YVONNE AYTON
Respondent

FILE NO/S: SJA 1050 of 2022
BETWEEN: HALIFAX CRANE HIRE PTY LTD
Appellant
AND
LEONA YVONNE AYTON
Respondent

ON APPEAL FROM:
For File No:   SJA 1049 of 2022 & SJA 1050 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   BU 1935 of 2020

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction - Whether the verdict of guilty was unreasonable and unsupported by the evidence - Failure to consider reg 1.4 of the Occupational Health and Safety Regulations 1996 in determining whether an offence had been committed against reg 4.54(8) - Whether substantial miscarriage of justice occurred

Criminal law - Appeal against sentence - Whether sentence imposed was manifestly excessive

Legislation:

Occupational Health and Safety Regulations 1996 (WA) (repealed)
Criminal Appeals Act 2004 (WA)

Result:

SJA 1049 of 2022
Leave to appeal refused on ground 1
Leave to appeal granted on ground 3
Appeal allowed
Matter remitted

SJA 1050 of 2020
Leave to appeal refused on all grounds
Appeal dismissed

Representation:

SJA 1049 of 2022

Counsel:

Appellant	:	K Kumar & I R Gregory
Respondent	:	T J Bishop

Solicitors:

Appellant	:	Shaddicks Lawyers Pty Ltd
Respondent	:	State Solicitor's Office (WA)

SJA 1050 of 2022

Counsel:

Appellant	:	K Kumar & I R Gregory
Respondent	:	T J Bishop

Solicitors:

Appellant	:	Shaddicks Lawyers Pty Ltd
Respondent	:	State Solicitor's Office (WA)

Case(s) referred to in decision(s):

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523
Head v The State of Western Australia [2020] WASCA 21
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
M v The Queen (1994) 181 CLR 487
Morgan v Cramer [2019] WASC 68
NYL v The State of Western Australia [2022] WASCA 41
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Table of Contents

Introduction

The trial

Grounds of appeal against conviction

Ground 1

Ground 3

Application to adduce additional evidence in an appeal

Legal framework

Ground 1

Unreasonable verdict - legal principles

Matters in issue at trial

The evidence

Joseph Anthony

Nicole Maunders

Warren Earle

Michael Brown

Nicola DeMarte

Appellant's submissions in relation to ground 1

Respondent's submissions in relation to ground 1

Disposition of ground 1

Ground 3

Substantial miscarriage of justice?

Appeal against sentence

Conclusion

SJA 1049 of 2022: appeal against conviction

SJA 1050…

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.

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Details

Case: [2023] WASC 16
Decision Date

CaseChat Overview and Summary

Halifax Crane Hire Pty Ltd (appellant) brought this appeal against a conviction and penalty imposed by the Magistrates' Court of Victoria (respondent) on the basis of a contravention of regulation 4.54(8) of the Occupational Health and Safety Regulations 2007 (Vic). The appellant was convicted for failing to ensure that a licensed rigger or dogger with experience in 70 tonne cranes was involved in the use of a crane at a construction site. The court was required to decide whether the appellant had fulfilled its duty to ensure that a qualified person was involved in the use of the crane, and whether the magistrate's failure to consider regulation 1.4 of the Occupational Health and Safety Act 2004 (Vic) constituted a substantial miscarriage of justice.

The court considered whether the appellant had satisfied its duty to ensure that a licensed rigger or dogger with experience in 70 tonne cranes was involved in the use of the crane. The prosecution submitted that the appellant had not satisfied its duty as it relied on a vague representation made by the builder, rather than seeking confirmation from Gran Designs Pty Ltd or otherwise. The court also considered whether the magistrate's failure to consider regulation 1.4, which sets out the principles of the Act, constituted a substantial miscarriage of justice. The court found that the magistrate did not specifically address the existence and extent of the appellant's duty under regulation 4.54(8), and thus failed to properly direct herself as to an element of the offence.

As the court found that the magistrate failed to properly direct herself as to an element of the offence, the appeal was allowed. The conviction and penalty imposed by the Magistrates' Court of Victoria were quashed, and the matter was remitted to that court for re‑hearing. The appellant was granted leave to file supplementary submissions on the issue of whether a substantial miscarriage of justice had occurred, and the respondent was also granted leave to file supplementary submissions in response. The court did not make any further orders in relation to the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution submissions summarised the evidence as to the conduct of the appellant and submitted:The evidence establishes that [the appellant] never sought confirmation from Gran Designs Pty Ltd or at all that a licensed rigger or dogger with experience in 70 tonne cranes would be at the construction site and involved with the use of the Liebherr [crane].[74]……the prosecution submits that the Court should find that [the appellant] did not satisfy its duty to ensure that a licenced rigger with experience in 70 tonne cranes was involved in the use of the crane that day. [The appellant] merely relied on a vague representation made by the builder to Mr Earle. These actions did not satisfy the appellant's duty to 'ensure'.[75][74] Prosecution submissions [142].[75] Prosecution submissions [146]. In a case in which one of the fundamental matters in dispute at the trial was whether the appellant had complied with its duty under reg 4.54(8), the nature and extent of that duty were of critical importance. Notwithstanding this, neither the prosecutor nor defence counsel directed the magistrate's attention to reg 1.4 and her Honour did not refer to it, or any of the concepts contained in it, in her reasons for decision. There were indications that the magistrate was conscious that the appellant's duty under reg 4.54(8) was limited. However, it was a fundamental step in the decision‑making process that there be a finding as to the existence and extent of the appellant's duty before consideration could be properly given as to whether the appellant had failed to meet that duty. In those circumstances, the fact that her Honour did not specifically address that issue is significant. In this case, it was necessary for her Honour to determine whether the number of qualified people involved in the use of the crane was a matter over which the appellant had control or could reasonably be expected to have control, and the extent of that control. Identifying the precise basis of the magistrate's findings in relation to this issue is complicated by her Honour's reference to incorporating the prosecution's submissions in her reasons for decision. As I have noted, those submissions did not refer to reg 1.4. Accordingly, it is impossible to reach any conclusion other than that the magistrate did not direct herself in accordance with reg 1.4, and thus failed to properly direct herself as to an element of the offence. Ground 3 has been made out. The ground of appeal having been made out, I am required to consider whether a substantial miscarriage of justice has occurred. At the hearing of the appeal, the appellant argued that the appeal should not be dismissed on the basis that there was no substantial miscarriage of justice. Following the hearing of the appeal, the appellant sought leave to file supplementary submissions on this issue. I granted that leave to the appellant, and also granted leave to the respondent to file supplementary submissions in response.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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