Keating v Fry
[2012] WASC 15
•13 JANUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KEATING -v- FRY [2012] WASC 15
CORAM: McKECHNIE J
HEARD: 18 OCTOBER 2011
DELIVERED : 13 JANUARY 2012
FILE NO/S: SJA 1036 of 2011
BETWEEN: DAVID PATRICK MAJELLA KEATING
Appellant
AND
NATHAN LEIGH FRY
Respondent
FILE NO/S :SJA 1037 of 2011
BETWEEN :LUIGI VINCENZO DECESARE
Appellant
AND
NATHAN LEIGH FRY
Respondent
FILE NO/S :SJA 1038 of 2011
BETWEEN :D & G HOISTS AND CRANES PTY LTD
Appellant
AND
NATHAN LEIGH FRY
Respondent
FILE NO/S :SJA 1068 of 2011
BETWEEN :NATHAN LEIGH FRY
Appellant
AND
DAVID PATRICK MAJELLA KEATING
Respondent
FILE NO/S :SJA 1069 of 2011
BETWEEN :NATHAN LEIGH FRY
Appellant
AND
D & G HOISTS AND CRANES PTY LTD
Respondent
FILE NO/S :SJA 1070 of 2011
BETWEEN :NATHAN LEIGH FRY
Appellant
AND
LUIGI VINCENZO DECESARE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE HOGAN
File No :MI 15172 of 2009, MI 15173 of 2009, MI 15174 of 2009
Catchwords:
Occupational health and safety - Directors' liability - Penalty - Whether global penalty appropriate - Costs for prosecution
Legislation:
Criminal Procedure Act 2004 (WA), s 3, s 67, Sch 1 cl 5(1)(a)
Interpretation Act 1984 (WA), s 56(1)
Legal Practitioners (Official Prosecutions) (Accused Costs) Determination 2010
Legal Profession Act 2008 (WA), s 5, s 36, s 275, s 280
Occupational Safety and Health Act 1984 (WA), s 3A(3)(b), s 19(1), s 55
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Sentencing Act 1995 (WA), s 55
Result:
Appeals against conviction dismissed
Appeals by directors against penalty allowed
Prosecution appeal in respect of costs allowed
Category: B
Representation:
SJA 1036 of 2011
Counsel:
Appellant: Mr W R Ray QC & Mr S Russell
Respondent: Mr C S Bydder
Solicitors:
Appellant: Talbot Olivier
Respondent: State Solicitor for Western Australia
SJA 1037 of 2011
Counsel:
Appellant: Mr W R Ray QC & Mr S Russell
Respondent: Mr C S Bydder
Solicitors:
Appellant: Talbot Olivier
Respondent: State Solicitor for Western Australia
SJA 1038 of 2011
Counsel:
Appellant: Mr W R Ray QC & Mr S Russell
Respondent: Mr C S Bydder
Solicitors:
Appellant: Talbot Olivier
Respondent: State Solicitor for Western Australia
SJA 1068 of 2011
Counsel:
Appellant: Mr C S Bydder
Respondent: Mr W R Ray QC & Mr S Russell
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Talbot Olivier
SJA 1069 of 2011
Counsel:
Appellant: Mr C S Bydder
Respondent: Mr W R Ray QC & Mr S Russell
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Talbot Olivier
SJA 1070 of 2011
Counsel:
Appellant: Mr C S Bydder
Respondent: Mr W R Ray QC & Mr S Russell
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: Talbot Olivier
Case(s) referred to in judgment(s):
Adams v Grayson [1999] WASCA 83; (1999) 106 A Crim R 505
Johnson v Miller (1937) 59 CLR 467
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531
Morrison v Winter (Unreported, WASC, Library No 960698, 12 December 1996)
R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73; (2009) 2 All ER 645
Wotherspoon v HM Advocate [1978] JC 74
McKECHNIE J:
What this appeal is about
D & G Hoists and Cranes Pty Ltd (D & G) is a company of which Mr Keating and Mr Decesare are directors. The business of D & G includes hoist, crane and storage yards.
On 9 October 2007, an L68 pack of 16 crane components slipped when it was being lifted and repositioned, killing Mr Luke Aaron Murrie, a D & G employee. There was a safe way of lifting L68 packs which the directors had decided was the appropriate method. This was called 'method 1' in the trial. However, some riggers used an unsafe method known at trial as 'method 2'. Because this unsafe method 2 was used, Mr Murrie was killed.
After trial, D & G was convicted of breaching its duty to provide and maintain a safe working environment: Occupational Safety and Health Act 1984 (WA) s 19(1). It was fined $90,000.
Mr Decesare and Mr Keating were convicted because the offence by D & G was attributable to neglect on their part. They were each fined $45,000.
The prosecution applied for costs. The magistrate held that there was no entitlement to costs apart from disbursements. The magistrate also awarded costs in favour of D & G for winning the argument on costs.
And so everybody comes to this court on appeal. D & G accepts its conviction. It appeals against the amount of the fine.
Mr Decesare and Mr Keating appeal against their convictions and fines.
Mr Fry, the complainant, appeals against the refusal of a costs order in favour of the prosecution and the making of the costs order in favour of D & G. Mr Ray QC concedes that the magistrate ought not to have made a costs order in favour of D & G under the Official Prosecutions (Accused's Costs) Act 1973 (WA).
Mr Decesare's and Mr Keating's appeals against convictions
The appeals are identical except for a further ground in relation to Mr Decesare that the magistrate erred in failing to have regard to the fact that he was not actually in Western Australia on 9 October 2007. It therefore is convenient to deal with the appeals together.
The magistrate held that neither director knew that method 2 was utilised. The prosecution does not challenge this finding. The magistrate concluded that each of them ought to have been aware that the supervision system had broken down and that method 2 was in use [114]. This finding is challenged by the directors in grounds 1, 5, 7 and 8.
There was no evidence led as to industry practice or state of knowledge in the industry: Ground 2. The prosecution failed to specify the particular act of neglect by a director that attributed to the commission of the offence.
As the argument developed, ground 4 and 6 were developed as part of ground 1, and ground 5 effectively re‑expresses ground 1.
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.
The magistrate found that there was an intent that method 1 be used by D & G but was also satisfied beyond reasonable doubt that method 2 was also in use in the yard on a regular basis and had been for some time prior to 9 October 2007. As a result of these findings, she found that D & G failed to provide a consistently safe method of slinging the L68 crane pack components before they were moved. The magistrate found there can be no doubt that method 1 was practicable. She noted Mr Decesare's and Mr Keating's evidence in her reasons at [79] ‑ [81].
Mr Decesare agreed originally that method 1 was suitable and it was then implemented. If he had seen method 2 being used he would have stopped it.
Mr Keating would also have stopped method 2 and forced riggers to use method 1.
The magistrate dealt with the enforcement of method 1 in [85] to [95] and noted that D & G had an induction process but not all workers had been through the induction. Although doggers and riggers were competent, their competency was overridden by instructions given by certain senior doggers and riggers to use method 2 on occasions. There was not adequate supervision to ensure that only method 1 was used. The magistrate found it was necessary to supervise the doggers and riggers to ensure the correct method of slinging an L68 pack was in use. The consequences of using method 2 were that a pack could break apart and cause injury or fatality and was clearly foreseeable. It is implicit from the evidence that D & G considered it necessary to supervise the doggers and riggers, despite the fact they were qualified. These findings are not challenged. The magistrate drew as the only rational conclusion that it was foreseeable that a dogman/rigger might use a method other than method 1.
The magistrate dealt with the position of the directors:
108.The circumstances of this case are considerably different. Each of the Directors were experienced dogmen/riggers. They had been involved in the original unloading of L68 Packs and the discussion and decision at that time as to how those Packs would be lifted. Although Mr Decesare travelled a lot in the course of his position as Managing Director, he was based at the workplace and attended there about two thirds of the year. Although Mr Keating often went to other sites to supervise erection of cranes, he also spent a considerable amount of time at the workplace. Each Director's office was located at the workplace. It is clear from the evidence that each of the Directors regularly visited the yard at the workplace and engaged with employees. There is evidence that each Director would correct an employee if it was observed that he was not complying with any safety regulation. At the time of the accident the hierarchy within the workplace went as follows:
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
Most of the workers were qualified dogmen and/or riggers.
Both directors understood that a part of Mr Davies' duty in the yard was to ensure a safe method of lifting was being used. The reasons given by the magistrate for her conclusion that the directors were guilty were:
The only rational conclusion that can be reached from the evidence is that the Directors knew of the hazard associated. with the use of method 2. The question then is whether the Directors ought to have known there was an inappropriate method of slinging in place? Alternatively, whether the Directors ought to have known that method 1 was not being enforced?
The only rational conclusion available on all the evidence is that the Directors had not put in place an adequate system of enforcing safety. There was not a consistent induction process in place. The only rational conclusion available on the evidence is that safety procedures were dealt with in a cursory manner. At the time of the accident a written safety procedure was being formulated but had not been put in place. It is clear from all but one of the workers who gave evidence that there was no consistent system in place whereby dogmen/riggers new to the business were shown how to correctly sling an L68 Pack. There appears to have been a breakdown of the supervision system in the yard. Mr Davies said that he reported a problem in relation to the use of method 2 to his superior Mr Lim. For reasons unexplained the Court has not heard from Mr Lim. Even if Mr Lim did override Mr Davies, it is clear that Mr Davies did not avail himself of the 'open door policy' spoken of by Mr Keating. (Nor indeed did any of the workers called by the prosecution) Mr Richardson was employed as Operations Manager and gave positive evidence in terms of the management structure however he had no training in occupational health and safety and no experience in dogging or rigging and would not himself be in a position to observe or assess whether a particular load was properly slung. There was no formal safety officer employed. Mr Decesare and Mr Keating were in and out of the yard frequently. In terms of whether or not they ever saw an L68 Pack being slung incorrectly Mr Decesare's evidence was 'I might have walked out with a client, and somebody might have been handling a Pack over here. I didn't notice the way it was being slung, or didn't notice it was being slung incorrectly, as might have been the case.' (T19/11/10 p18).
Under cross-examination Mr Keating was asked 'if you saw an L68 being lifted you would have a look at how that was happening if it was somewhere near where you were in the yard?' His answer was 'if it was in my eyes. Yes.' (T19/11/10 p69).
It is clear from the evidence that each of the Directors ought to have known of the hazards associated with failing to incorrectly (sic) lift an L68 Pack. It is also clear from the evidence that the system of supervision of the yard had broken down. Each of the Directors were 'hands‑on' in terms of being based at the Workplace and frequently in the yard. The only rational conclusion available on the evidence is that each Director ought to have been aware that the supervision system had broken down and that method 2 was in use [111] - [114].
Leaving aside for the moment the argument about particulars, the particulars on neglect by the directors relied on by the prosecution were:
Slinging Method
5.3Ensure D & G Hoists & Cranes Pty Ltd had a method of slinging the L68 packs in a way that removes or minimizes the risk of a L68 pack breaking apart and L68 crane components falling free of the sling or rig and hitting an employee; and/or
5.4Enforce the use of the method of slinging the L68 Packs referred to at 5.3 above by D & G Hoists & Cranes Pty Ltd's employees; and/or
The magistrate is correct that the evidence established the directors ought to have known the hazards associated with failing to correctly lift an L68 pack. That is abundantly clear from the directors' evidence.
It was also open for the magistrate to conclude, as she did, that the system of supervision of the yard had broken down. Apart from anything else, despite the directors' adoption of method 1, as the magistrate found, method 2 was also used in operations. It was also established that the directors were hands‑on, based in the workplace, and frequently in the yard.
The magistrate followed Morrison v Winter (Unreported, WASC, Library No 960698, 12 December 1996) (Scott J). The test she applied under the Occupational Safety and Health Act s 55 is not only what the employer and manager actually knew but also what they 'ought to have known'.
In the present case, Mr Decesare and Mr Keating were the two directors of D & G, both very active in the company.
Mr Keating agreed that one of his responsibilities was to oversee the work that D & G employees do and that it is done safely. He accepted that sometimes doggers and riggers will do things in a way that they should not and if he was in the yard and saw things happening he would stop it.
From the magistrate's finding that the directors did not know that method 2 was in use, it can be accepted that they had not personally witnessed method 2 in use. There is no evidence that they did. Nor is there any evidence that they were present in the yard at times when method 2 was in use; that is, no other witness observed the directors in the yard in a position to see a lift involving method 2. There is no evidence that Mr Davies ever reported to them that method 2 was in use.
This is not to shift responsibility onto Mr Davies as the duty of the directors is non‑delegable. Rather, it is a question of fact, or lack of fact.
There is evidence that there were about 300 lifts over a four year period. The directors were not always in the yard. Mr Decesare was frequently overseas and Mr Keating on building sites. This is not a case where there was continuous observation by a person of an unsafe process. Rather, it is a case where there was an unsafe process used from time to time but not consistently.
The case for the directors was ably argued by Mr Ray who subtly tried to conflate 'did not know' with 'ought to have known', with the consequence that because the directors did not know that method 2 was used occasionally they could not be found guilty because they ought not to have known. However, the two concepts are different. The magistrate accepted, and the evidence overwhelmingly pointed to the fact, that the directors did not know method 2 was in use. However, Mr Decesare was the general manager and Mr Keating was the operations director. There was clearly a safety problem in the workplace because some of the dogman/riggers were using method 2. Mr Davies was the yard supervisor but the magistrate found that it was clear that Mr Davies was not able to give his full attention to supervision in the yard and that both directors understood part of his duties was to ensure a safe method of lifting was being used. A written safety procedure was being formulated but had not been put in place. There was no consistent system in place whereby dogman/riggers new to the business were shown how to correctly sling an L68 pack. Mr Richardson, the operation manager, had no training in occupational, health and safety and no experience in dogging and rigging. He would not be able to observe or assess whether a particular load was properly slung. There was no formal safety officer employed. The directors were not remote from the business. They were active, hands‑on and, in the circumstances, were neglectful in being unaware that the supervision system had broken down and by failing to enforce the use of method 1 in slinging the L68 packs. They assumed method 1 was in use but the company had no sufficient procedures in place to ensure method 1 was always used. Their eyes might have been shut to the possibility that method 2 might, on occasion, be used, but in the absence of a system to enforce the use of method 1 at all times, or to have a proper induction procedure in place, the directors should have recognised the possibility that an employee might not always use method 1. They ought to have known.
In Wotherspoon v HM Advocate [1978] JC 74, 78 Lord Justice‑General Emslie, in dealing with a similar provision in Scotland said:
Accordingly, in consideration in a given case whether there has been neglect within the meaning of s 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 the functions of the office of the person charged with the contravention of s 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 the 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.
In R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73; (2009) 2 All ER 645. Lord Hope dealt with Wotherspoon v HM Advocate [1978] JC 74, 78 saying:
[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] 1 CR 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. [33]
The state of mind that the word 'connivance' and 'neglect' contemplated was 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 [34].
As Lord Hope observed in Chargot, it is a relatively short step for an inference of neglect to be drawn when, as here, the risk arose in circumstances where the directors were intimately involved in the business of the company and ultimately responsible for its safety procedures.
The grounds of appeal, and the arguments advanced in support of them, both in the written submissions and orally, focus on the directors' lack of knowledge that method 2 was in use on the day of the accident. However, as the magistrate found, and as the evidence abundantly supported, D & G did not enforce the use of method 1 at all times. While the directors were aware that method 1 was the safe method of lifting, although both of them were intimately involved in the running of the company, neither of them took any steps to ensure that method 1 was a constant part of the induction process or that their instructions were that method 1 was always to be employed. It is not to the point that the directors were unaware that method 2 was used on 9 October 2007. The seeds for the accident were sown by the directors' neglect leading up to that date by failing to ensure that method 1 was always utilised and that there were clear and specific instructions to that effect that were enforced.
The magistrate's conclusion is correct. Grounds 1, 4, 5, 6 and 8 are dismissed.
Ground 2 - No evidence of industry practice
There was no need for the prosecution to lead evidence of industry practice in this case. The directors clearly accepted that method 1 was safe and method 2 was unsafe. The state of knowledge of the industry would not have advanced anything nor would industry practice. Industry practice or knowledge could not avail against a finding that the directors knew of an unsafe practice or, in this case, that they ought to have been aware of an unsafe practice. While the directors were entitled to rely on the expertise and skill of dogmen and riggers, they could not do so to the extent of abrogating their responsibility to enforce safety procedures.
The particulars were sufficient
At the beginning of the trial there was a lengthy argument about the particulars which the prosecution had given, that argument centering chiefly on questions of duplicity.
In a preliminary ruling the magistrate ruled that the particulars that had been filed were not duplex and sufficient particulars to enable the defence to meet the allegations before the court. In this she was correct.
There are many cases on particulars and a number were cited to the magistrate. The most recent and authoritative decision is Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 [28]
A charge in 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 in particular must (a) describe the offence with reasonable clarity: Criminal Procedure Act 2004 Sch 1 cl 5(1)(a). The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller (1937) 59 CLR 467, 489.
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.
The directors ought to have known that the system of lifting an L68 pack was unsafe because method 2 was sometimes used. They neglected their responsibilities because they did not do all that was reasonably practical by way of training and supervision to ensure that only method 1 was used. This is effectively what the particulars alleged and what the prosecution proved. Ground 3 is dismissed.
Ground 9 - Mr Decesare
For the reasons I have set out, it is immaterial that Mr Decesare was absent from the State at the time of the accident as his neglect was failing to enforce a safe system of work. He ought to have known that there was an unsafe system of work in operation and did nothing to ensure that a safe system of work was followed. His neglect crystallised on 9 October 2007, no matter where he was.
Appeals against sentence:
(a) D & G
Mr Ray accepts that it is hard to maintain that, by itself, the fine is manifestly excessive. It is not.
The appeal against the sentence on behalf of D & G is dismissed. The amount of the fine is 22.5% of the total possible penalty. It reflects a proper appreciation of the aggravating and mitigating factors in relation to D & G bearing in mind that a death resulted. The magistrate correctly put the degree of seriousness above mid‑range:
20.I disagree with the prosecution's submissions 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]).
(b) The directors
In the course of argument, I observed that the magistrate had applied a 22.5% to both the company and each of the directors and that this would appear to indicate error. I have now reviewed the magistrate's findings and it is clear that she regarded each as equally culpable for the reasons expressed above. This being her finding, there is no error in applying the same percentage to the maximum permissible fine (which for an individual is half as that for a body corporate): Occupational Safety and Health Act s 3A(3)(b).
Manifest excess
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.
The fine should have been apportioned
The magistrate rejected a submission that the fine be apportioned:
D & G 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 D & G but because the company'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.
There is no issue that the directors are in a legal relationship both with each other and with the company D & G. The issue is whether the three are each convicted of 'an offence because a legal relationship 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] WASCA 83; (1999) 106 A Crim R 505 [13].
Because of her conclusion, the magistrate did not exercise any discretion to apportion the fine. As a consequence the fines must be set aside and the directors re‑sentenced. Apportionment is not automatic. It requires an exercise of discretion in every case and will depend on all the circumstances.
In this case, the directors' neglect, and D & G's failure to maintain a safe system of work, are indistinguishable. The directors in many respects are D & G.
The magistrate did not apportion a fine of $180,000 in three ways. She considered the principal offender, D & G, required a fine of $90,000. I would apportion the fine of $90,000 as follows:
•D & G - $70,000
•Mr Decesare - $10,000
•Mr Keating - $10,000
The application for a spent conviction
The magistrate rejected a request for a spent conviction. She correctly referred to the relevant principles in her judgment on sentence from [38] to [42] and it has not been established that her discretion in any way miscarried.
Appeal against costs
The costs order in favour of D & G
Counsel for D & G and the directors concede, correctly, that successfully persuading the magistrate to the contrary, they do not have any entitlement to a costs order in their favour. The concession is correct. The prosecution's appeal is allowed.
The prosecution's costs of the trial
The prosecution sought its costs of trial. The primary amount sought was for the legal costs incurred for getting up and trial. The trial was conducted on behalf of the complainant by a lawyer employed by the Department of Commerce. Arguments were raised as to entitlement, complexity and reference to the amount of fines imposed.
The magistrate held that if there was an entitlement to costs, an appropriate sum to be allowed is $51,576 and disbursements. The prosecution accepts this figure and does not seek now to argue for a greater sum. Mr Russell who argued this aspect of the appeal does not take issue on the amount in terms of complexity.
However, the magistrate held that the complainant was not entitled to recover legal costs, essentially because counsel was not a lawyer in a law practice.
Is the prosecution entitled to its legal costs?
The answer to this questions depends on an examination of a number of legislative instruments commencing with the Criminal Procedure Act 2004 (WA) s 67 which provides:
(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.
'Prosecutor' is defined under s 3:
prosecutor means -
(a)in a prosecution in a court of summary jurisdiction, the person who commenced the prosecution or a person who in court represents that person;
The Legal Profession Act 2008 (WA) s 275 materially reads:
(5)If -
(a)another written law refers to a determination under this section or a costs determination as defined in section 252; and
(b)the determination is for purposes of the written law that are, or include, purposes other than the purposes of subsection (1) (the other purposes),
the Legal Costs Committee may make a determination for the other purposes.
Section 280 provides:
Effect of costs determination
(1)Subject to any costs agreement made in accordance with Division 6 or the corresponding provision of a corresponding law, section 306 and the Legal Aid Commission Act 1976 section 14 -
(a)the taxation of bills of law practices; and
(b)any other aspect of the costs charged by law practices,
is regulated by an applicable costs determination.
(2)Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
(3)Nothing in subsection (1) is to be construed as limiting the power of a court, a judicial officer or a taxing officer of a court to determine in any particular case before that court or judicial officer the amount of costs allowed.
The Legal Practitioners (Official Prosecutions) (Accused Costs) Determination 2010 in pt 3 reported the committee's conclusion r 4:
(1)It is the recommendation of the Legal Costs Committee, after reviewing the information gained as a result of the inquiries and the submission described in clause 3, that the hourly and daily rates set out in the Tables to clause 5 of the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 be adopted for the supply of legal services for an official prosecution and the awarding of costs to a successful accused under sections 5 or 7 of the Official Prosecutions (Accused's Costs) Act 1973.
Clause 4 and cl 5 of the Schedule:
4.Application
(1)This Determination applies to the remuneration of legal practitioners in respect of an official prosecution in or for the purposes of proceedings before a Magistrates Court or an Appeal Court, as defined in the Official Prosecutions (Accused's Costs) Act 1973 and the amount of costs ordered to be paid to a successful accused under sections 5 or 7 of the Official Prosecutions (Accused's Costs) Act 1973.
(2)This Determination does not apply to the remuneration of legal practitioners or the calculation of costs to be awarded to a successful accused for costs incurred in respect of business carried out before the commencement of this Determination.
5. Rates
(1)The hourly rates set out in the table to this sub clause are the hourly rates which the Legal Costs Committee determines shall apply to the remuneration of legal practitioners and the award of costs to a successful accused (where the successful accused has been represented by a legal practitioner) in respect of an official prosecution in or for the purposes of proceedings before a Magistrates Court.
Table
Fee Earner
Rates
Senior Practitioner a(admitted for 5 years or more) (SP)
-hourly rate
$352
Junior Practitionera (admitted for less than 5 years) (JP)
-hourly rate
$253
Clerk/Paralegal (CPL)
-hourly rate
$121
a The reference to Junior Practitioner or to Senior Practitioner in this Determination includes all Australian legal practitioners even if the services were rendered in another State or Territory. Where a local legal practitioner has held an interstate practising certificate, the length of admission in that other jurisdiction is to be counted in assessing that practitioner’s years of admission for the purposes of this Determination.
(2)The daily rates set out in the table below are the daily rates which the Legal Costs Committee determines shall apply to the remuneration of legal practitioners in respect of an official prosecution in or for the purposes of proceedings before a Magistrates Court.
Table
Fee Earner
Rates
Counsel§
-daily rate
$2,750
Senior Counsel*
-daily rate
$4,620
§ The reference to Counsel in this Determination means a practitioner acting as a barrister other than as Senior Counsel.
* The reference to Senior Counsel in this Determination includes reference to Queen’s Counsel or Senior Counsel appointed in Western Australia, or appointed in any State or Territory in Australia and whose appointment is afforded recognition by the Chief Justice of the Supreme Court of Western Australia.
(3)The daily rates set out in the table above are intended to cover all work done on a hearing or trial day whether in or out of court including preparation of written submissions and is not intended to be supplemented in any way by additional hourly charges given that the maximum number of hours allowed for the daily rate is 10 hours per day.
Under the Table there is reference to senior and junior practitioners and the note to the Table reads:
The reference to Junior Practitioner or to Senior Practitioner in this Determination includes all Australian legal practitioners even if the services were rendered in another State or Territory. Where a local legal practitioner has held an interstate practising certificate, the length of admission in that other jurisdiction is to be counted in assessing that practitioner’s years of admission for the purposes of this Determination.
Under the Legal Profession Act 2008, 'law practice' is defined:
law practice means -
(a)an Australian legal practitioner who is a sole practitioner; or
(b)a law firm; or
(c)a multi‑disciplinary partnership; or
(d)an incorporated legal practice;
'Legal costs' is also defined:
legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest;
A 'legal practitioner' is defined under s 5:
Terms relating to legal practitioners
For the purposes of this Act -
(a)an Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate; and
(b)a local legal practitioner is an Australian lawyer who holds a current local practising certificate; and
(c)an interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.
Section 36:
WA government lawyers taken to be local legal practitioners
(1)In this section -
employing authority of a WA government lawyer means -
(a)the employing authority of the lawyer under the Public Sector Management Act 1994; or
(b)if the lawyer does not have an employing authority under that Act, the employing authority of the lawyer specified in the regulations for the purposes of this definition;
government agency means -
(a)a body, whether corporate or unincorporate, or the holder of an office, established under a law of this jurisdiction for a public purpose or to exercise governmental functions; or
(b)a person or body (or a class of persons or bodies) prescribed by the regulations as being within this definition;
The magistrate held:
9.The Determination is of course made under the LPA. Part 10 of the LPA deals with legal costs. All references are made to a law practice as opposed to a legal practitioner. A legal practitioner's ability to recover costs under the Determination requires that that practitioner fall within the definition of 'law practice'.
...
12.I agree with the submission made by counsel for the accused that only a law practice is entitled to an order for costs pursuant to the Determination. As I understand it, neither the Department nor counsel appearing on behalf of the prosecution falls within the definition of 'law practice'.
The grounds of appeal are:
1.Having convicted the accused of the charge, the learned Magistrate erred in failing to order the accused to pay the prosecutor's professional costs in that the learned Magistrate erred in law in concluding that the Department of Commerce had no entitlement to recover remuneration paid to its in‑house counsel because neither the Department nor its in-house counsel was a 'law practice' as defined in the Legal Profession Act 2008 (WA).
2.The learned Magistrate erred in law in concluding that clause 5(3) of the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 restricted the prosecutor's costs to the daily rate provided in clause 5(2) of that Determination.
3.The learned Magistrate should have concluded that the costs awarded to a prosecutor where an accused is convicted are in the discretion of the Court, that discretion may be guided by the rates and amounts specified in the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 and, in appropriate cases, costs may be awarded for more than the amounts specified in the table in clause 6 of that Determination.
These grounds must be upheld.
The construction adopted by the magistrate would have the effect of frustrating the clearly expressed intention of Parliament under the Criminal Procedure Act s 67 to require an accused to pay the prosecutor's costs when ordered to do so. It may be inferred that these are legal costs by virtue of s 67(3). Mr Bydder argues that the 'may' in s 67(3) imports a discretion. It is the case of course that where in a written law the word 'may' is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not at discretion: Interpretation Act 1984 (WA) s 56(1).
Parliament might have required a separate determination for a prosecutor's costs. Instead it adopted the device of using the accused's costs determination as a guide.
Plainly the Accused's Costs Determination cannot govern the prosecution's costs directly for the obvious fact that the costs are not accused's costs. Clearly the intention of Parliament is that so much of the determination as can be applied should be applied so that costs are determined in accordance with those relevant portions.
Those parts of the Accused's Costs Determination which are obviously inapplicable to prosecution costs are irrelevant when a court is determining costs in accordance with the scale.
When the Criminal Procedure Act and the Legal Profession Act were respectively enacted, the bulk of prosecution in courts of summary jurisdiction were conducted either by police officers or by government lawyers. A police officer does not fulfil the definition of 'legal practitioner' and has no entitlement to the recovery of costs because, by reference to the Criminal Procedure Act s 67, Parliament intended to limit a claim to costs incurred in respect of legal practitioners. However, it cannot be supposed that Parliament intended to exclude the recovery of costs by the prosecution simply because a government lawyer does not fit within the definition of a 'law practice'. Such a construction would make no sense.
Properly construed, the Criminal Procedure Act refers to the costs incurred by the prosecution in respect of legal practitioners and when ordered those costs shall be determined, so far as is possible, in accordance with amounts and principles set out in the Accused's Costs Determination.
Mr Bydder also draws a distinction between 'legal practice' and 'legal practitioner' and the fact that the determination refers to legal practitioners. In the view I have taken of the proper construction of s 67, the wording of the actual determination and its reference to 'legal practitioners' is not important.
However, if I am wrong, then the fact that the determination refers to legal practitioners is an indication that the determination was intended to cover a wider group than those caught within the definition of 'law practice' and the definition of 'legal practitioner' is sufficient to cover government lawyers. There is no conflict with the Legal Profession Act. While s 275(1) refers to determinations that may be charged by law practices, the Official Prosecution Accused's Costs Determination is under s 275(5). The Criminal Procedure Act and indeed the Official Prosecutions (Accused's Costs) Act 1973 (WA) come within s 275(5). They are each 'another written law' referring to a determination under the Legal Profession Act.
The prosecution is entitled to a costs order.
Conclusion
Mr Decesare's and Mr Keating's appeals against conviction are each dismissed.
Their appeals against penalty are allowed. In each case I set aside the fine of $45,000 and in lieu they are each fined $10,000.
D & G's appeal against penalty is dismissed.
The prosecutor's appeal against the costs order in favour of D & G, Mr Decesare and Mr Keating is allowed. The costs order is set aside and I order that there be no costs order in their favour.
The prosecutor's appeal against the refusal to make a costs order is allowed. I make a costs order in favour of the prosecution for $51,576 plus disbursements.
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