McDonald v Bell

Case [2020] ICQ 7

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

McDonald v Bell [2020] ICQ 007

PARTIES:

WILLIAM JAMES McDONALD
(appellant)

v
STEWART LYNN BELL

(respondent)

FILE NOS:

C/2019/6

C/2019/13

PROCEEDING:

Appeal

DELIVERED ON:

15 June 2020

HEARING DATE:

13 June 2019

MEMBER:

Martin J, President

ORDERS:

1.   Appeal against conviction allowed in part.

2.   The verdict of guilty in respect of Charge 3 is set aside and a verdict of not guilty is entered.

3.   The convictions in respect of Charges 1, 2 and 4 stand.

4.   The sentence imposed by the Industrial Magistrate on 24 May 2019 is set aside.

5.   On each of Charges 1, 2 and 4 the appellant is sentenced to a term of imprisonment of 12 months. The whole term of imprisonment is suspended forthwith, and the appellant must not commit another offence punishable by imprisonment within a period of 3 years if he is to avoid being dealt with for the suspended term of imprisonment.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant appealed a decision of the Industrial Magistrate – where the appellant contended that error is not required to be established in order to justify appellate intervention by the court – whether the appellant must show relevant error

INDUSTRIAL LAW – QUEENSLAND – OFFENCES – PROCEDURE AND EVIDENCE – PROOF – where the appellant was convicted of 4 charges under the Mining and Quarrying Safety and Health Act 1999 – where the Industrial Magistrate found a circumstance of aggravation was made out – whether the prosecution proved each charge and circumstance of aggravation beyond reasonable doubt

INDUSTRIAL LAW – QUEENSLAND – OFFENCES – DEFENCES – where the Industrial Magistrate found that no defence under the Mining and Quarrying Safety and Health Act 1999 was made out – whether the Industrial Magistrate erred in holding that the defences were not made out

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the Industrial Magistrate adopted part of the prosecution’s written submissions – where the Industrial Magistrate did not deal with some of the defence contentions except in a cursory way and did not deal at all with other contentions – where the appellant argued that the Industrial Magistrate erred in failing to give adequate reasons for the decision that was reached – whether the Industrial Magistrate failed to give reasons sufficient to identify the principles of law applied by the Industrial Magistrate and the main factual findings on which the Industrial Magistrate relied

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the appellant was wrongly convicted on one charge – where that is sufficient to show error in the sentencing process – whether the sentence should be varied in the new circumstances

Industrial Relations Act 1999
Industrial…

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McDonald v Bell [2020] ICQ 7
Case
[2020] ICQ 7
Decision Date

CaseChat Overview and Summary

The case of McDonald v Bell involved an appeal by the appellant against a decision made by the Industrial Magistrate. The appellant contested the decision on various grounds, including the necessity of demonstrating error to justify appellate intervention, the sufficiency of evidence presented to prove the charges, the adequacy of reasons given for the decision, and the appropriateness of the sentence imposed. The appeal was heard by the Industrial Court.

The primary legal issues that the court had to decide were whether the appellant needed to demonstrate error to justify the appeal, whether the prosecution successfully proved the charges beyond reasonable doubt, whether the Industrial Magistrate correctly determined that no defence was made out, and whether the Industrial Magistrate provided adequate reasons for the decision reached. Additionally, the court had to assess whether the sentence should be varied given the appellant was wrongly convicted on one charge.

The court found that to succeed in an appeal, the appellant must show relevant error. It was noted that the Industrial Magistrate erred in convicting the appellant on the third charge, leading to the setting aside of the conviction on Charge 3 and entering a verdict of not guilty. The court upheld the convictions on Charges 1, 2, and 4. The court also found that the sentence imposed should be reconsidered due to the wrongful conviction on Charge 3. The appellant's culpability was clear, but various mitigating factors, including his unblemished record, cooperation with authorities, and tangible remorse, were considered. The court ultimately determined a sentence of 12 months imprisonment for each of Charges 1, 2, and 4, with the whole term suspended for 3 years, provided the appellant does not commit another offence punishable by imprisonment.

The final orders of the court included allowing the appeal against conviction in part, setting aside the guilty verdict on Charge 3 and entering a verdict of not guilty, maintaining the convictions on Charges 1, 2, and 4, setting aside the original sentence, and imposing a new sentence of 12 months imprisonment for each of Charges 1, 2, and 4, suspended for 3 years, contingent on the appellant's compliance with the conditions.

Orders

Orders of the court

1. Appeal against conviction allowed in part.

2. The verdict of guilty in respect of Charge 3 is set aside and a verdict of not guilty is entered.

3. The convictions in respect of Charges 1, 2 and 4 stand.

4. The sentence imposed by the Industrial Magistrate on 24 May 2019 is set aside.

5. On each of Charges 1, 2 and 4 the appellant is sentenced to a term of imprisonment of 12 months. The whole term of imprisonment is suspended forthwith, and the appellant must not commit another offence punishable by imprisonment within a period of 3 years if he is to avoid being dealt with for the suspended term of imprisonment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 223(1) of the Justices Act provides:“An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceedings before the justices.” That statement in Forrest v Commissioner of Police does not, with respect, accurately reflect the law. It is, in my opinion, correctly stated in Storry v Commissioner of Police[15] in which the Court of Appeal was dealing with an application for leave to appeal from a decision of the District Court dismissing an appeal to that court under s 222 of the Justices Act. Bond J[16] said:“[14] The learned District Court judge then recorded, correctly, that on the appeal he was required to conduct a real review of the trial, and the learned magistrate’s reasons, and make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the learned magistrate’s view, but that, nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” (emphasis added)[15][2018] QCA 291.[16]With whom Sofronoff P and McMurdo JA agreed. It follows that, in order to succeed in this appeal, the appellant must show relevant error. Each of grounds 1 and 2 make a broad assertion of error. The parties proceeded on the basis that, in large part, they relied upon the submissions made below to either demonstrate error or the absence of error. Before I turn to the grounds of appeal, the context in which the charges were laid should be considered.The context of the charges In order to assess whether there was any error in the determination that the respondent had proved the charges beyond reasonable doubt or that the appellant had not established a defence, it is necessary to understand the basis of the obligations placed upon MCG. First, it should be noted that the objects of the Act are:“6 Object of the ActThe objects of this Act are—(a)to protect the safety and health of persons at mines and persons who may be affected by operations; and(b)to require that the risk of injury or illness to any person resulting from operations is at an acceptable level.” The manner in which those objects are to be achieved is set out in s 7 and one of the methods is by - “(a) imposing safety and health obligations on persons who operate mines or who may affect the safety or health of others at mines; …”. In a general sense, the Act seeks to achieve its objects by imposing health and safety obligations upon various persons with those obligations applying simultaneously. That scheme is then enforced by criminal sanctions for breach of the obligations. For example, s 36 imposes obligations upon any person “who may affect safety and health of persons at a mine”. The Act, in various sections, creates obligations, defines the persons who are required to fulfil those obligations and sets standards for the achievement of those obligations. An important part of the operation of the Act and the prosecution of action alleged to be a breach of the Act, requires consideration of: (a)risk,(b)hazard,(c)acceptable level of risk, and(d)risk reduction.

Decision

Reasons for decision

Causation was established.Conclusion on convictions The Industrial Magistrate erred in convicting the appellant on the third charge. The appeal succeeds to that extent but is otherwise dismissed. The conviction on Charge 3 is set aside and a verdict of not guilty is entered.Appeal against sentence As I have found that the appellant was wrongly convicted of one of the charges, that is sufficient to show an error in the sentencing process and thus an assessment has to be made of the appropriate sentence in the new circumstances. The consequence of the incident was particularly severe. A man lost his life in dreadful circumstances. The legislation is designed to alleviate the risks to workers as much as is practicably possible. The maximum sentence is two years imprisonment. Other people were convicted and sentenced with respect to this tragedy. GCS was engaged by MCG to construct the plant. GCS and two of its executive officers were prosecuted. They pleaded guilty. GCS was fined $30,000 at end of the two executive officers were each fined $15,000. Mr Addinsall was fined $35,000. No conviction was recorded. MCG was convicted and fined $400,000. By that time, MCG was insolvent. I have taken into account the submissions made in writing and orally with respect to an appropriate sentence. Those submissions were made on the assumption that all convictions would stand. I did not recall the parties to deal with this because both of them had made such comprehensive submissions that there could not have been anything more to take into account apart from the obvious factor that only three of the four charges had been established. This is a difficult case. Mr McDonald’s culpability was clear. He failed to exercise the required diligence and undertake appropriate precautions. He was required to ensure that the company had appropriate systems in place and he failed to do that. On the other hand, Mr McDonald has no criminal history. As the Industrial Magistrate put it: he has a long and unblemished record in the industry. He is well regarded in the community and performs public works for the community. He is a family man with four children. His remorse was tangible. The company (MCG) has been wound up and his marriage broke down. He co-operated completely with the authorities and he took substantial and meaningful steps to remedy what he could after the death of Mr Scovell. Counselling was provided to Mr Scovell’s family and co-workers. All the costs of the funeral were covered by MCG. Employees were given the opportunity to attend the funeral on full pay and transport was organised and paid for by the company from anyone who wanted to attend. He caused a memorial to be built to Mr Scovell as a reminder of what was lost. The Industrial Magistrate accepted that the safety of his employees had always been a matter that Mr McDonald had considered of paramount importance and that, had he known that the guard was missing, he would have replaced it within the hour. Her Honour said that there was no suggestion that he was aware that the guard was not in place. That finding is not consistent with other findings made by the Industrial Magistrate about Mr McDonald’s knowledge.

Ratio Decidendi

Legal Principle Established

Section 241 has been repealed, but it then provided:“241 Executive officers must ensure corporation complies with Act(1)The executive officers of a corporation must ensure that the corporation complies with this Act.(2)If a corporation commits an offence against a provision of this Act, each of the corporation’s executive officers also commits an offence, namely, the offence of failing to ensure that the corporation complies with the provision.Maximum penalty—the penalty for the contravention of the provision by an individual. (3)Evidence that the corporation has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with the provision.(4)However, it is a defence for an executive officer to prove—(a) if the officer was in a position to influence the conduct of the corporation in relation to the offence—the officer exercised reasonable diligence to ensure the corporation complied with the provision; or(b) the officer was not in a position to influence the conduct of the corporation in relation to the offence.” The provisions of the MQSH regs which are relevant to this appeal are:“8 Risk reduction(1)A person who has an obligation under the Act to manage risk at a mine must, as far as reasonably practicable, apply hazard controls in the following order—(a) elimination of the hazard;(b) substitution with a lesser hazard;(c) separation of persons from the hazard;(d) engineering controls;Examples of engineering controls—1 using fans and ducting to remove dust2 using guards on conveyors(e) administrative controls;Examples of administrative controls—1 a restriction on the time a worker is exposed to a hazard2 a procedure or standard work instruction(f) personal protective equipment.(2)The site senior executive must ensure hazard controls used to reduce risk in the mine’s work and local environments are appropriate having regard to the following—(a) the interaction of hazards present in the environments;(b) the effectiveness and reliability of the controls;(c) other reasonably available relevant information and data from, and practices in, other industries and mining operations.9Risk monitoring(1)A person who has an obligation under the Act to manage risk at a mine must monitor risk in the person’s own work and activities at the mine.(2)The site senior executive must ensure risk in the mine’s work and local environments caused by the mine’s operations is monitored—(a) when the operations start; and(b) at appropriate intervals or stages during operations at the mine; and(c) when the mine’s risk management practices or procedures change significantly.(3)Monitoring must include the following things—(a) the occurrence of incidents, injuries and ill health;(b) the level of hazards present in the mine’s work environment;(c) for monitoring under subsection (2)—the level of hazards from the mine’s operations present in the mine’s local environment.(4)If it is appropriate, having regard to the nature and level of a hazard present in the work environment, the monitoring must include 1 or more of the following things—(a) personal monitoring to decide a worker’s level of exposure to the hazard;Example of personal monitoring—monitoring a worker using a dosimeter or other instrument to measure the worker’s level of exposure to noise(b) self-monitoring to detect effects of the hazard;Example of self-monitoring—self-recognition of physical symptoms of heat stress or fatigue(c) biological monitoring to decide a worker’s level of exposure to the hazard; Example of biological monitoring—testing a blood sample for lead(d) health surveillance under section 138.…100Selection and design(1) A person who has an obligation under the Act to manage risk at a mine in relation to the selection and design of plant must ensure—(a) the plant—(i)is fit for its intended use and use in its intended work environment, including, for example, a hazardous area; and(ii)is ergonomically compatible with persons operating or maintaining it; and(iii)has appropriate provision for safe access, egress and maintenance; and(b) if it is necessary for managing risk from the plant and it is reasonably practicable, the plant—(i)fails to safety; and(ii)does not fail catastrophically or by common mode or cascade failure; and(iii)incorporates appropriate engineering controls to protect the plant operator and other persons; andExample of engineering controls—guards on moving parts, rollover protection, falling object protection, noise insulation or seatbelts(iv)incorporates appropriate backup systems to ensure plant remains under control if its primary system fails; andExample of a backup system—a vehicle’s parking brake to backup its service brake(v)is designed so its condition and performance can be monitored and incipient failures detected.(2) In this section—hazardous area means an area in which an explosive atmosphere is present, or is likely to be present, in quantities requiring special precautions for the construction, installation and use of potential ignition sources.Examples of potential ignition sources—electrical equipment, naked flames, sparks from grinding and welding operations, and hot surfaces…105Commissioning(1) The operator or site senior executive must ensure plant is commissioned in its operating environment at the mine before it is used to ensure the following—(a) its integration into the operating environment and associated systems;(b) it performs within its specifications, if any, held at the mine under section 112;(c) hazard controls for the plant are adequate and operating within the specifications mentioned in paragraph (b);(d) mine workers who are required to operate the plant are competent to operate it safely.(2) The operator or site senior executive must ensure—(a) the commissioning is carried out in accordance with the manufacturer’s instructions; and(b) adequate precautions are taken to protect the safety and health of persons if—(i)the plant fails during commissioning; or(ii)it is necessary to commission the plant without all hazard controls for the plant operating effectively.”