Leorke v The Queen
[2011] VSCA 213
•28 July 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0137 | |
| ANDREW JOHN LEORKE | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | HANSEN JA and WHELAN and ROSS AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 July 2011 | |
DATE OF JUDGMENT: | 28 July 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 213 | |
JUDGMENT APPEALED FROM: | R v Permanent Erection Constructions Pty Ltd & Ors (Unreported, County Court of Victoria, Judge Nixon, 30 April 2010) | |
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CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Contravention of Occupational Health and Safety Act 2004 – Applicant in person – Grounds of appeal misconceived – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| The Applicant appeared in person | ||
| For the Respondent | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
HANSEN JA:
I agree with Whelan AJA.
WHELAN AJA:
On 22 April 2010 Andrew John Leorke was found guilty by a jury of an offence under s 144 of the Occupational Health & Safety Act 2004 (‘the Act’). The trial which preceded that verdict had occupied eight days and had been presided over by Judge Nixon. Mr Leorke was a director of a company named Permanent Erection Constructions Pty Ltd. That company was found guilty by the jury of an offence under s 21 of the Act. Mr Leorke’s co-director, David Ian Spedding, was also found guilty of an offence under s 144 of the Act.
The presentment gave particulars of the three alleged offences in the same terms namely, failing to engage an engineer to prepare calculations determining the safe bearing capacity of the partially built first floor of 121 Great Ocean Road, Apollo Bay before permitting the storing of packs of Hebel floor panels and Hebel blocks on it during construction works.
In substance, what had occurred was the following. Permanent Erection Constructions Pty Ltd was the builder on a project at 121-123 Great Ocean Road, Apollo Bay. The project involved the extension of an existing building and in particular the renovation and extension of a first floor residence. Mr Leorke was the site supervisor on the project. Mr Spedding was acting as dogman to the crane operator. On the morning of 21 June 2006, under Mr Spedding’s direction, the crane began lifting building materials up onto the partially constructed first floor. That process continued throughout the day. At about 3.05 pm a load of materials had just been lowered onto the floor when one of the beams became free of the recess in the southern wall which was supporting it and the building materials fell to the ground below. As a consequence, one of the workers on the site suffered fatal injury and another worker sustained a fractured arm.
Without going into detail as to the issues in the trial, the substance of the
prosecution case was that there had been a failure to provide and maintain a safe working environment, in contravention of s 21 of the Act, because the company, Mr Leorke, and Mr Spedding had loaded materials onto the partially completed first floor without first engaging an engineer to ensure that that was safe. In substance, the defence was that the accident was out of the control of the defendants. Amongst other things, it was suggested on their behalf that the accident occurred because a civil engineer, David Dorman Melrose, who had made some computations based upon drawings which had been prepared by a draughtsman, had not detected that the particular beam was not to be supported by brickwork, as he had assumed when he made his computations, but rather was to be supported on a Hebel block wall. Hebel blocks are made of aerated concrete material. They are significantly less strong than clay bricks.
In the trial the prosecution called two expert witnesses. One was an engineer employed by WorkSafe, Dr Russell Horwood Keays. He had been engaged shortly after the accident to advise on remedial measures and to form an opinion as to how the incident had occurred. The other was an engineer engaged as an independent expert named Russell Nisbet. His brief was to specifically consider the five matters set out in s 20(2) of the Act to which regard must be had when considering whether there has been a contravention of s 21 of the Act. The five enumerated matters concern risk, the degree of harm if the risk eventuates, what was known or ought to have been known, ways to eliminate or reduce the risk, and cost.
On 30 April 2010 Judge Nixon sentenced the three defendants. Mr Leorke was convicted and fined the sum of $60,000.
Mr Leorke appeared in person both at the trial and before this Court. He seeks leave to appeal against his conviction and against the sentence. Mr Leorke set out the grounds of his application in two written documents. The documents set out nine numbered paragraphs, seven of which refer to the conviction. Two refer to the sentence. Save for one matter, his oral submissions closely followed his written grounds.
I will deal with the conviction grounds first and I do so by reference to Mr Leorke’s numbered paragraphs in his written documents.
Conviction grounds
Paragraph 1
Mr Leorke submitted that there was a failure by an expert witness, Russell Douglas Nisbet, to properly and fully investigate the facts of the accident and that that failure ought to have led Judge Nixon to rule that his evidence was inadmissible. The particular failure relied upon concerns the issue of Mr Melrose’s failure to notice that the wall supporting the relevant beam was not clay brickwork but a wall of Hebel blocks.
This is an issue that was canvassed during Mr Nisbet’s evidence at the trial both by counsel on behalf of Mr Spedding and the trial judge. Objection to the admissibility of Mr Nisbet’s evidence on this ground was not made at the trial. No reason is now advanced as to why the evidence was inadmissible. What Mr Leorke really says is that Mr Nisbet’s evidence was not credible or not reliable. The contention that that issue should have been dealt with by way of a ruling on admissibility is misconceived.
Paragraph 2
Mr Leorke then submitted that Judge Nixon should have requested Mr Nisbet to ‘review’ his report in the light of what are said to be the shortcomings in Mr Nisbet’s inquiries. Again, this contention is without foundation. Mr Nisbet’s report was not tendered. He gave oral evidence. There was no basis upon which Judge Nixon could properly have required Mr Nisbet to ‘review’ his report in the manner suggested.
Paragraph 3
Mr Leorke submitted that Judge Nixon’s charge had been ‘prejudicial’ because, when referring to s 20(2) of the Act, he had said that the five matters enumerated in that sub-section had formed the brief to Mr Nisbet. This complaint is also without foundation. The reference was merely a passing one, and it was, in any event, accurate. That is what Mr Nisbet’s brief had been.
Paragraph 4
Mr Leorke submitted that Judge Nixon should have clarified the situation as to what is said to have been the ‘conflicting views’ of the experts, Dr Keays and Mr Nisbet. Judge Nixon directed the jury in clear terms in relation to the general position concerning expert evidence and he summarised the evidence each of them had given in detail. There is no proper basis for any complaint in that regard. The issue of whether their respective views were ‘conflicting’ was itself a contentious one. The trial judge properly instructed the jury on all the relevant matters, and he summarised the submissions made by the prosecution and the defence (including Mr Leorke) on the issues the experts had dealt with.
Paragraph 5
Mr Leorke referred to a passage in the charge where the judge was summarising the evidence of Dr Keays, and submitted that the trial judge ought to have pointed out to the jury that the directors of the builder had the same obligations as a building surveyor in relation to relying on a certificate of compliance from an engineer. The complaint is misconceived. The trial judge was summarising the evidence. It was not for the trial judge to add to the evidence. It would have been wrong to do so.
Paragraph 6
In his written grounds Mr Leorke submitted that an ‘amended statement’ of Dr Keays was not exhibited by the prosecution and that that amounted to dishonesty and subterfuge which should have been addressed by Judge Nixon. No submission was made as to the basis upon which this statement could have been tendered by the prosecution. Moreover, Dr Keays gave evidence at length orally and was cross-examined, and all parties had both his reports. There is no substance in this complaint.
In the course of his oral submissions Mr Leorke raised a different but related complaint. He asserted from the bar table that he had requested the prosecutor to tender all the exhibits from an earlier trial, where the jury had not been able to agree, including both Dr Keays’ original report and his amended report. Mr Leorke then asserted that the original report was tendered but the amended report was not. Senior Counsel for the Crown said that he had no instructions as to the asserted request (the matter having been first raised during the hearing of the appeal) however the fact was that neither report was tendered, and Dr Keays gave oral evidence of both reports. It was not suggested by Mr Leorke that there was any matter in Dr Keays’ amended report that he did not address in his oral evidence.
Paragraph 7
Mr Leorke referred to a comment made by the prosecutor in her closing address, as to the absence of a Hebel manual in the materials which had been obtained by a WorkSafe officer, Anthony William Cockerell, on the site. Mr Leorke complained that there was no evidentiary basis for the submission. However, there was a document in evidence which listed the materials which Mr Cockerell had obtained, and the manual was not on that list. Thus, there was a basis in the evidence for the comment. Furthermore, the comment was a brief, and, in the context, largely insignificant reference to that circumstance.
The grounds relied upon in seeking leave to appeal against the conviction are not made out. The application for leave to appeal against the conviction should be refused.
Sentence grounds
In relation to sentence, two grounds are relied upon.
In paragraph 8 of his written documents Mr Leorke took objection to the fact that in the course of his sentencing remarks Judge Nixon referred to some observations of Cummins J in DPP v Esso.[1] Mr Leorke characterised Judge Nixon’s reference as being a comparison of his own situation with that of Esso Australia Pty Ltd, the defendant in that case. Mr Leorke has misconceived the position. Judge Nixon was doing no more than referring to a passage in a previous decision of a superior court expounding upon the purposes of the relevant legislation.
[1][2001] VSC 263.
Finally, in paragraph 9, Mr Leorke contended that a conviction should not have been recorded as he had no prior charges or convictions and the accident was without malice or intent. Judge Nixon took all relevant factors into account, including some subsequent contraventions of the Act, and in my view there is no substance in the complaint made.
In his oral submissions Mr Leorke also complained as to the amount of the fine and asserted his inability to pay it. The fine imposed was $60,000, or approximately one third of the maximum. I can see no appellable error in relation to the quantum of the fine.
The application for leave to appeal against the sentence should also be refused.
ROSS AJA:
I also agree with Whelan AJA.
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