Leorke v The Queen

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:

1. I agree with Whelan AJA.

WHELAN AJA:

1. 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. 

1. 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.

1. 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. 

1. 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…