R v Irvine
[2009] VSCA 239
•23 October 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 568 of 2008
| THE QUEEN |
| v |
| ANDREW IRVINE |
No 595 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYNAMIC INDUSTRIES PTY LTD |
No 596 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW IRVINE |
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| JUDGES | NETTLE, NEAVE JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 September 2009 |
| DATE OF JUDGMENT | 23 October 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 239 |
| JUDGMENT APPEALED FROM | R v Irvine; R v Dynamic Industries Pty Ltd; R v Cini (Unreported, County Court of Victoria, Judge Campbell, 29 February 2008) |
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CRIMINAL LAW – Factories, shops and industrial safety – Application for leave to appeal against conviction – Failure to take reasonable care for safety of other employees, contrary to s 25(1)(a) of the Occupational Health and Safety Act 1985 – Whether necessary for Crown to prove gross negligence – Charge to jury – Whether judge’s direction to jury unbalanced – Whether Faure warning required to be given – Whether judge failed to relate evidence of applicant’s good character to credibility as a witness – Whether judge failed to adequately relate the evidence to Crown case and the law – Application granted and appeal allowed.
PRACTICE AND PROCEDURE – Particulars – Whether Crown failed to adequately particularise its case.
APPEAL – Procedure - Whether Court should order new trial or direct acquittal – Judgment and verdict of acquittal entered.
CRIMINAL LAW – Factories, shops and industrial safety – Director’s appeal against sentence – Failure to provide and maintain a safe working environment, contrary to s 21 of the Occupational Health and Safety Act 1985 – Whether insufficient weight given to gravity of offence – Seriousness of employer’s duty to provide a safe working environment – Relevance of employees’ failure to take care for their own safety – Whether insufficient weight given to general and specific deterrence – Purpose of Occupational Health and Safety Act 1985 to protect employees from injury or danger to health – Whether principle of double jeopardy applicable to small company – Whether sentence manifestly inadequate – Excess weight given to the respondent company’s financial situation and to its safety record – Appeal allowed – Respondent re-sentenced – Effect of delayed hearing of appeal
on re-sentencing discretion.
PRACTICE AND PROCEDURE – Sentencing – Whether court should exercise discretion not to re-sentence offender because of Crown’s failure to assist judge as to sentencing range.
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Appearances: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant/Respondent (Mr Irvine) | Mr M J Croucher | Robert Stary & Associates |
| For the Respondent (Dynamic) | Mr P G Priest QC with Mr A G Burns | Nevitt Ford |
NETTLE JA:
I agree with Neave JA.
NEAVE JA:
On 23 October 2003 Mr Raymon Mastek, an employee of Dynamic Industries Pty Ltd (‘Dynamic’) died from injuries suffered when he fell seven metres through the asbestos cement roof of a building onto the concrete floor below. After the accident Dynamic, and its employees Mr Paul Cini and Mr Andrew Irvine, were prosecuted for breaches of the Occupational Health and Safety Act 1985 (‘the Act’).
On 29 February 2008 Dynamic pleaded guilty to the offence of failing to provide and maintain so far as practicable a safe working environment, contrary to s 21 of the Act. The maximum penalty for that offence was a fine of $250,000. After hearing a plea in mitigation of sentence the learned sentencing judge fined Dynamic $8,000.
The Director of Public Prosecutions (‘DPP’) now appeals against that sentence, on the ground that it was manifestly inadequate (ground 1). Particulars of the complaint of manifest inadequacy are set out in ground 2, which appears at [35] below.
Mr Irvine, who went onto the roof of the building with Mr Mastek, was charged with two offences in the alternative. Count 1 was the offence of wilfully placing at risk the health or safety of any person at the workplace contrary to s 25(2)(b) of the Act and count 2 was the offence of failing to take reasonable care for the safety of anyone else who might be affected by his acts or omissions at the workplace, contrary to s 25(1)(a) of the Act.
Mr Irvine pleaded not guilty to each count and was convicted by a jury on count 2. After hearing a plea in mitigation of sentence on 27 February 2008, the
imposed a fine of $3,000. The maximum penalty for that offence was a fine of $50,000. Mr Irvine now appeals against his conviction and sentence.
Mr Cini, who was supervising the demolition of the buildings on behalf of the company, pleaded guilty to the offence of failing to take reasonable care for the safety of a person who might be affected by his acts or omissions at the workplace, contrary to s 25(1)(a) of the Act. The proceedings against Mr Cini were adjourned without conviction for a period of 12 months, subject to various conditions, including a condition that he pay $1,500 to the court fund of the Melbourne Magistrates’ Court. Mr Cini has not appealed against that sentence.
These reasons deal both with Dynamic’s appeal against sentence and Mr Irvine’s appeal against conviction.
Background to the offending
Dynamic was prosecuted following a tragic accident at the premises of Coffey Ford’s car dealership in Dandenong which resulted in the death of Mr Mastek. The background to the events which preceded his death were as follows.
Dynamic specialised in the asbestos removal. In October 2003, it was sub-contracted to remove asbestos sheets from buildings at the Coffey Ford car dealership premises, as part of a reconstruction project. There were a number of roofs, described by the sentencing judge as Roofs 1, 2 and 4, from which corrugated asbestos sheets were to be removed. Each of them had wire safety mesh attached to the roof beams underneath. The safety mesh provided protection against the recognised danger that the roof would become brittle so that a person on top of the roof might fall through it, if the corrugated sheeting collapsed beneath that person’s weight.
On 13 October 2003 a meeting was held with representatives of the three companies involved in the demolition and reconstruction project, to discuss whether the asbestos could be removed in stages, so that the dealership could continue operating. It was agreed to hold a meeting with Worksafe inspectors to discuss how the asbestos sheeting should be removed. That meeting was held on 14 October 2003, and attended by two inspectors from the Victorian WorkCover Authority. The main concern of the meeting was to discuss concerns about dealing safely with asbestos dust. Because the companies were unable to obtain independent verification of the safety of the wire mesh, a decision was also made that the asbestos sheeting would be removed from underneath the roofs. As the wire mesh covered the underside of the roofs, this method of removal involved the cutting and removal of the safety mesh from a large area of the relevant roofs.
On 20 October 2003 work sheets were prepared for the task of ‘removal of asbestos roof and wall sheets’. These listed tasks, hazards, risk control measures and who was responsible for each activity. ‘Roman’ (presumably Mr Mastek), and Mr Irvine were listed as supervisors for the various activities, with Mr Cini taking responsibility for ‘minor injuries’.
On the same day Mr Cini prepared a ‘job safety analysis’ worksheet (‘JSA’) setting out ‘job steps’, ‘potential hazards’, ‘controls’ and the person who would ensure that the various controls were put in place.[1] Mr Cini and Mr Irvine, were listed as the persons responsible for those activities. A ‘fall from height’ was identified as one of the hazards against the job step ‘installing roof and wall shifts to scissor lift.’ The ‘control’ was that all work was to be ‘conducted from inside platform area only’. Mr Cini and Mr Irvine were listed as the persons who would ensure that happened. The form also noted that ‘background monitoring was to be conducted during removal’ and that in ‘areas where personnel need to get on top of roof personnel must wear safety harness’.
[1]For a description of the purposes of a JSA see The Queen v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181, [10].
Mr Cini was the overall supervisor of the project. While Mr Irvine had been originally nominated for that role and was qualified for the job, Mr Cini took over as supervisor after he had returned from another project, because of his higher standing in the company hierarchy.
The JSA for removal of asbestos from Roof 1 was signed the following day by the employees involved in the project, including the victim, Mr Mastek.
His Honour found that :
It is plain from that document that all persons involved on the site and in the employ of the company were aware that the wall and roof sheeting removal was to be conducted from the inside of the building and from what is called an ‘EWP’, namely an elevated work platform.
His Honour also found that ‘it was known and understood that persons who may be required to work on top of a roof such as this must wear a safety harness connected to an inertia reel, and in turn connected to a strong point on the roof structure’ and that Mr Mastek was experienced in the removal of asbestos materials from buildings, being the occupational health and safety officer of the site and having the qualifications required to be a site supervisor.
Work on removal of the asbestos sheets commenced on 22 October 2003. The judge noted that the day, or at least part of the day was wet, and that the majority of the work, which was of a preparatory nature, was undertaken from under Roof 1 and at the sides of the building. Five employees were involved in the work.
Work recommenced the following day at about 7 am. At about 2 pm, when a lunch break was being taken, a decision was made to work from on top of Roof 1. The events that lead up to this decision were contested by Mr Cini and Mr Irvine. Mr Irvine said that Mr Cini had suggested that the sheets be removed from on top of that roof in the areas where the EWP could not be manoeuvred. Mr Cini disputed this account. He said that Mr Irvine suggested that he (i.e Mr Irvine) work from on top of Roof 1 because the asbestos sheets could be more easily disposed of into a bin that Mr Cini wanted emptied the next day. Mr Cini said that he had vetoed this and that he had said that to fill the bin the two men should begin taking sheets off Roof 2. He had then walked away.
Mr Irvine moved the EWP into a position from which he and Mr Mastek could get onto Roof 1. Another employee, Mr Jablonka, remained in the lift and another man stood in the bin. Mr Mastek removed the roofing sheets and passed them to Irvine, who in turn gave them to Mr Jablonka.
Although both Irvine and Mastek were wearing harnesses they were not connected by inertia reels to any point on the roof, so that when Mr Mastek fell through the roof there was nothing to arrest his fall. According to Mr Irvine he had asked Mr Mastek to get a harness and two inertia reels, but when Mr Mastek questioned the need for inertia reels Mr Irvine acquiesced. After a short while, Mr Mastek walked to a point where the safety mesh had earlier been removed. The corrugated sheeting cracked and he fell to the floor, later dying of the injuries he sustained from the fall.
DPP v Dynamic Industries Pty Ltd – DPP appeal against sentence
Dynamic’s guilty plea
The offence to which Dynamic pleaded guilty was:
… failing to provide and maintain so far as was practicable for employees a working environment that was safe and without risks to health, in that it failed to provide such information, instructions, training and supervision as were necessary to enable employees to perform their work in a manner that was safe and without risks to health.
The particulars in the presentment were:
a)failing to instruct employees not to use an elevated work platform or scissor lift to gain access to the roof of the building;
b)failing to prohibit employees from using an elevated work platform or scissor lift to gain access to the roof of the building;
c)failing to provide adequate written procedures on the safe method of removing asbestos sheeting from the roof; and
d) failing to adequately instruct employees on the safe method of removing asbestos sheeting from the roof.
In discussing Mr Irvine’s appeal against conviction, I refer to the lack of clarity in the particularisation of the Crown case against the three defendants. This gave rise to some difficulty in ascertaining the precise basis of Dynamic’s guilty plea. In the Crown opening of the plea hearing the Crown said that the case against Dynamic:
… has never been limited in relation … to the specific time concerning the demise of Mr Mastek. It was so limited in relation to Mr Irvine because of his actions immediately preceding the accident.
His Honour’s sentencing reasons indicate that Dynamic pleaded guilty on two bases. The first was that Mr Cini should have prepared a JSA setting out the steps to be taken to ensure safe removal of sheets from the top of roof 2, when he decided that asbestos should be removed from the top of that roof. The second was that the company accepted responsibility for Cini’s behaviour in failing to properly supervise workers to ensure that they did not get onto Roof 1, without wearing safety harnesses attached to inertia reels.
The judge’s reasons
The judge began his reasons with an account of the events leading up to the accident. He said that it was clear from their signatures on the JSA that all employees were aware that the wall and roof sheeting removal from Roof 1 was to be done from inside the building and from an elevated scissor lift. The document had also referred to the possibility that some work might have to be done from the top of the roof, in which case a safety harness attached to an inertia reel had to be worn.[2]
[2]R v Irvine; R v Dynamic Industries Pty Ltd; R v Cini (Unreported, County Court of Victoria, Judge Campbell, 29 February 2008) (‘Reasons’), [15].
The judge noted there was a dispute as to the circumstances which led Mr Irvine and Mr Mastek to get onto Roof 1. He said that in sentencing Dynamic it was not necessary for him to determine whether Mr Cini or Mr Irvine’s account should be accepted. The judge then said that:
For reasons I need not now articulate, however, I would be very hesitant to accept an account that Cini ordered or sanctioned getting onto Roof 1 at that time to remove sheets from above. According to Cini the matter virtually developed into an argument and to avoid that argument he merely said no to the proposition that Irvine had put and moved off. That was an unfortunate decision. Irvine then [made] a fateful decision. He decided that some of the sheets at least could and should be removed from above Roof 1 … There is no doubt in my own mind that Irvine took the leading role in this exercise. His own statement made in 2004 with his solicitors makes that clear …[3]
[3]Reasons, [26].
His Honour referred to the Crown case that when Mr Cini decided there should be work on top of Roof 2, there should have been a JSA dealing with work on that roof. The Crown case was that because Mr Cini intended that workers were to go on top of that roof there had been a failure to provide a safe working environment and give the necessary instruction and supervision required in those circumstances.
He also recorded the submissions of counsel for Dynamic that the offences were ‘low level omissions and fairly well removed from the actual circumstances of the death of Mr Mastek’. In particular he noted that counsel for Dynamic had submitted that:
1.the employees had been told to wear full protection on the roof or roofs;
2.the Crown had to accept it, at least with regard to Roof 1, the employees had been told not to go onto the roof;
3.that Irvine and Mastek when they went onto the roof were not acting within the scope of their instructions; and
4.that the deceased had had eleven years experience and was the most recently qualified of the member workers onsite and was designated as the Occupational Health & Safety representative on that site.
Although his Honour recorded the submissions of counsel as to the gravity of Dynamic’s breach, he did not express any clear view on that matter. However, in sentencing Mr Cini he said that he was inclined to think that his failure to prepare an additional JSA was ‘more a technical breach than anything else. I remind myself that all workers on the site were very familiar with the requirements for working on top of roofs such as this and they should not have needed telling in any event’.
Although his Honour did not make a similar comment about the company, it was through Mr Cini that the company was held to have breached s 21.
His Honour noted that the company had earned a net profit of $73,178 in the last financial year and that over the last fifteen years the time lost due to injuries was only about 2 percent of the overall total of hours worked and was partly accounted for by two people having had back injuries.
His Honour referred to Dynamic’s register of injury which was said to show that the company ‘had an excellent record for the safety of its employees’. His Honour then referred to the fact that the company had spent some $45,000 over the last three years on occupational health and safety training for its employees, had been audited by WorkSafe without adverse comment and had received references from other companies which had spoken favourably of its reputation for occupational health and safety.
His Honour noted Dynamic’s prior conviction for breach of a condition of demolition permit. He noted that the explanation given by Dynamic’s counsel as to this conviction was not contradicted by the Crown and said that he did ‘not regard it as a particularly salient matter in determining the penalty appropriate in this instance’. He noted that the company had contributed to a union fund set up for Mr Mastek’s family and had made other contributions to charity and that the company had pleaded guilty. He said also that he took account of the issue of delay.
Grounds of appeal
As I have said, the first ground of appeal complains that the sentence was manifestly inadequate. The particulars provided by ground 2 were as follows:
2.In imposing a fine of $8000 in respect of Count 1 the sentencing Judge –
(a)failed to adequately reflect the gravity of the offence generally and in this case in particular;
(b)failed to take into account or sufficiently to take into account the aspect of general deterrence;
(c)failed to take into account or sufficiently to take into account the aspect of specific deterrence;
(d) gave too much weight to factors going to mitigation;
(e)gave insufficient weight to the fact that Count 1 was comprised of two rolled up offences;
(f)gave insufficient weight to the maximum penalty for the offence;
(g)gave insufficient weight to the Respondent’s criminal history; [and]
(h)gave insufficient weight to the effect of the offence upon the family of the deceased.
Conclusion
The nature and gravity of the offence
Counsel for the DPP submitted that his Honour underestimated the gravity of the offence by treating it as a mere technical breach and by giving too much weight to the obligation of employees to take care for their own safety.
He also submitted that his Honour should have sentenced Dynamic on the basis that the offence was, in effect, a rolled up count covering two breaches of duty, one being the failure to supervise Irvine and Mastek in relation to Roof 1 and the other being the failure to prepare a JSA in relation to work on Roof 2.
Dynamic’s counsel submitted that the offences were low level offences, which had little to do with Mr Mastek’s death. There was no evidence that the company had required or permitted workers to walk around on roofs without wearing harnesses. Mr Irvine and Mr Mastek had gone onto Roof 1 contrary to the directions given by Mr Cini.
Dynamic’s counsel conceded that it would have been open to the Crown to present Dynamic for separate offences arising out of the failure to prepare a JSA and the failure to supervise workers on safety matters.[4] He also observed, correctly, that in any event it would have been open to attack the presentment as duplicitous.[5] However, he submitted that in any event his Honour was not entitled to sentence Dynamic on that basis because the presentment referred to only one offence under s 21(1)(a) of the Act and had referred to both failures as a single instance of that offence.
[4]See Chugg v Pacific Dunlop Ltd [1988] VR 411; R v Australian Char Pty Ltd [1999] 3 VR 834, 842-3.
[5]Chugg v Pacific Dunlop Ltd [1988] VR 411.
I accept the respondent’s submission that it would have been an error for the judge to have sentenced the applicant as if it had pleaded guilty to a rolled up count, comprising two separate breaches. An employer may be charged with more than one offence arising out of separate breaches of sub-ss 21(2)(a) to (e). Alternatively, by agreement, an employer could be charged with a single rolled up count, alleging more than one breach of that sub-section. In this case, however, the charge in the presentment was:
… failing to provide and maintain so far as was practicable for employees a working environment that was safe and without risks to health, in that it failed to provide such information, instructions, training and supervision as were necessary to enable employees to perform their work in a manner that was safe and risks to health.
His Honour was therefore required to sentence Dynamic on the basis that it had committed a single offence.
Nevertheless, I consider that his Honour failed to give sufficient weight to the seriousness of this offence. The essence of a breach of s 21 is the failure to provide a safe working environment, thus placing the health and safety of workers at risk. The section does not require proof that injury has actually occurred.[6]
[6]R v Australian Char Pty Ltd [1999] 3 VR 834, 847.
In Director of Public Prosecutions v Amcor Packaging Pty Ltd[7] this Court said that:
When determining the appropriate penalty in a case of the breach of a statutory duty imposed for the purpose of protecting the lives and well being of those who may be affected by the breach, the foreseeable potential consequences must be taken into account as it is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d’être for the establishment of the legislated regime in the first place. To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances.[8]
[7](2005) 11 VR 557 (‘Amcor’).
[8]Ibid 565. The Court referred in that context to Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700, 714.
The failure to prepare a JSA covering the removal of asbestos sheeting from the top of the roofs was not a mere technical breach. The purpose of a JSA is to bring home to employees the hazards involved in the work and advise them of the precautions which need to be taken to avoid injury or danger to health. I would accept, however, that the preparation of a JSA covering Roof 1 which required the warning of a safety harness, went some way towards mitigating the company’s culpability for this offence.
The potential consequences of the failure to supervise workers to ensure that they wore proper safety equipment, were grave, as the death of Mr Mastek showed.
In my opinion his Honour’s emphasis on the fact that ‘all workers on the site were very familiar with the requirements for working on top of roofs … and … should not have required telling in any event’, resulted in a failure to appreciate the seriousness of the offence committed by Dynamic, through Mr Cini.
Both Mr Irvine and Mr Mastek, had qualifications as supervisors and should have been aware of the vital importance of taking precautions against falling through the roofs on the site. But the fact that employees may breach safety standards does not necessarily reduce the gravity of a breach committed by an employer.[9] The duty which the Act imposes on employers by s 21(1) (particularised in this case by s 21(2)(e)) is intended to ensure that employers instruct and supervise employees to ensure they perform their work safely and do not take short cuts.
[9]R v ACR Roofing Pty Ltd (2004) 11 VR 187, 214.
The safety mesh had been cut away from portions of Roof 1. It was known that corrugated asbestos sheets tend to collapse. The obvious danger of working on top of roofs was that a worker who fell through the roof was likely to suffer serious injury or death. Workers on the top of Roof 1 required supervision to ensure that workers complied with the requirement to wear a safety harness attached to an inertia reel. Dynamic’s guilty plea amounted to an admission that it had not done everything practicable to protect its employees from harm.[10]
[10]Cf The Queen v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181, [35].
The seriousness of the offence was not lessened because Mr Irvine and Mr Mastek took foolish risks for their own safety. As this Court said in The Queen v Commercial Industrial Construction Group Pty Ltd:[11]
… the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer’s active implementation of the system in the workplace.[12] The employer’s duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure ‘that procedures and instructions are actively and positively complied with by employees’.[13] Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.
An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety[14] to deliberate non-compliance with the prescribed safe system of work. In R vAustralian Char Pty Ltd[15] and DPP v Amcor Packaging Pty Ltd,[16] this Court has referred with approval to the observations of Harper, J in Holmes v R.E.Spence & Co Pty Ltd[17] that an employer’s responsibility for the safety of its workers will not be discharged unless the employer takes ‘an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality’.[18]
[11]Ibid.
[12]See WorkCover Authority v Fernz Construction (2000) 100 IR 23, 35 (Walton J); WorkCover Authority of New South Wales (Inspector Campbell) v James Gordon Hitchcock (2004) 135 IR 377, 433 (Walton J).
[13]Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIR Comm 16, [118] (Haylen J); WorkCover Authority of New South Wales v Kellogg (Aust) (No. 1) (1999) 101 IR 239, 257 (Walton J).
[14]Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIR Comm 16, [117] (Haylen J).
[15][1999] 3 VR 834, 847.
[16](2005) 11 VR 557, 564-5.
[17](1992) 5 VIR 119, 123.
[18][2006] VSCA 181, [48]-[49].
General and specific deterrence
Counsel for the DPP submitted that his Honour should have given greater weight to general deterrence in sentencing Dynamic. Mr Cini had failed to adequately supervise employees to prevent them from getting on to the top of roofs to remove asbestos, without using safety harnesses. Further, the respondent had a prior conviction for failing to comply with occupational health and safety requirements.
Counsel for the respondent submitted that the nature of the breach did not require great emphasis to be placed on general deterrence. His Honour was not required to give much weight to specific deterrence because he had not regarded Dynamic’s prior conviction as ‘a particularly salient matter’.[19]
[19]Reasons, [45].
In the absence of any challenge to his Honour’s factual finding, there is no basis for the submission that his Honour gave insufficient weight to specific deterrence. However the judge made no reference to general deterrence in sentencing Dynamic, although he noted the Crown’s submission that it was an important sentencing factor in the case of Mr Cini.
In my opinion the sentence imposed reflects the failure to give sufficient weight to general deterrence. The purpose of the Act is to protect employees from injury or danger to health.[20] Workplace safety requires employers to take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is therefore a significant sentencing factor when safety obligations are breached. The fine in this case was only about 3 percent of the maximum penalty, and does not adequately reflect that sentencing factor.
[20]See s 5 of the Act.
Double jeopardy
Counsel for the DPP submitted that the principle of double jeopardy did not apply to a Crown appeal against a sentence imposed on a corporate offender for a breach of occupational health and safety legislation. He said that in Amcor[21] it was accepted that double jeopardy was less significant in the case of a corporate offender, and that in any case Dynamic had not shown that it would suffer any adverse impact as the result of the appeal against sentence.
[21](2005) 11 VR 557.
Counsel for the respondent relied on Director of Public Prosecutions v Yarra Valley Water Ltd,[22] in support of the submission that the principle of double jeopardy was relevant in considering whether the appeal against sentence should be allowed, and if so, in re-sentencing Dynamic.
[22](2006) 159 IR 395, 396.
I would accept that submission. In Director of Public Prosecutions v Yarra Valley Water Ltd,[23] Nettle JA commented that what was said in Amcor was ‘largely referable to public corporations’ and that in the case of small or private family companies, the consequences of an appeal against sentence more closely resembled the effects on a natural person.[24] Dynamic was a small company with two directors, Mr van Rooy and Mr Borcic. These men have had to deal with anxiety associated with the DPP’s appeal against sentence, and its possible effect on their reputation. It follows that double jeopardy must be taken into consideration.
[23]Ibid.
[24]Ibid 396.
Was the sentence manifestly inadequate?
It is unnecessary to restate the principles relating to DPP’s appeals against sentence, which are set out in cases such as Everett v Queen,[25] R v Clarke,[26] and Director of Public Prosecutions (Vic) v Bright.[27]
[25](1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ).
[26][1996] 2 VR 520, 522 (Charles JA).
[27](2006) 163 A Crim R 538.
This was not a case of blatant disregard of employee safety, such as occurred in R v Commercial Industrial Construction Group Pty Ltd.[28] The JSA which Mr Cini prepared following the meeting on 13 October 2003, anticipated that workers would use safety harnesses with inertia reels if they went on top of Roof 1. The company had spent some $45,000 on safety training for its employees (although there was no evidence of its content.)
[28][2006] VSCA 181.
Unlike the situation in Amcor, where an employee was killed by being pulled into an unguarded paper manufacturing machine, the company had not disregarded earlier risk assessments. There was no evidence that any employee had previously been injured by falling from a roof. It was appropriate for his Honour to take account of the references indicating that the company had a good work and safety record and the fact that Dynamic’s guilty plea saved time and expense.
However, as this Court remarked in R v Commercial Industrial Construction Group Pty Ltd:[29]
… the risk of falling when work is carried out at height is notorious and grave. The risk of death or serious injury is ever-present … The obligation imposed on employers by the 1985 Act – and now by the 2004 Act – is to protect employees against risks.[30]
[29]Ibid.
[30]Ibid [61].
In my opinion, the fine of $8,000 imposed on Dynamic underestimated the gravity of the offence, failed to give sufficient weight to general deterrence and gave too much weight to the company’s financial situation and to its safety record.
Although Mr Mastek foolishly went on to the roof without safety equipment, Mr Cini’s failure to adequately supervise him contributed to his tragic death, which has seriously affected his family.
In Director of Public Prosecutions v Yarra Valley Water Ltd[31] an employee was killed as the result of another employee using high pressure air testing on PVC mains water pipes. The employee of the respondent did not know that in using this method of testing he was exposing other employees to a high level of risk. Improvements were made to the respondent’s systems after the death occurred. In those circumstances this Court held that a fine of $50,000 was not manifestly inadequate. It seems to me that a sentence of that order would have been appropriate in the circumstances of this case.
[31](2006) 159 IR 395.
Having regard to my view that the penalty imposed was well below the range of sentences which could reasonably be imposed, it is necessary to consider whether the respondent should be re-sentenced.
During the plea hearing, counsel for the Crown told the judge that in Amcor the sentence imposed on the company was increased by the Court of Appeal to $360,000 on a director’s appeal and that the lowest fine imposed between 2004-2007 was $35,000. He also said that ‘the majority [of fines] are over $100,000, there’s $135,000, one $100,0000 exactly, $150,000, $200,000, $130,000 and there’s one involving Leighton’s which was $325,000.’ During the hearing of the appeal counsel for the respondent pointed out that these fines (or some of them) related to offences committed after 2004, when the maximum penalty for a breach of s 21 was increased from approximately $250,000 to $900,000.[32]
[32]See sub-s 47(2)(a) of the Act and s 21(1) of the 2004 Act.
Later during the plea hearing his Honour requested assistance on the appropriate range of sentences. Counsel for the Crown said that pending determination of the appeal in R v S[33] the DPP’s policy was that assistance on the range of sentences which could be imposed would not be provided to the Court, except where it was necessary to do so to respond to a submission from the defendant’s counsel about an appropriate disposition.
[33][2006] VSCA 134.
In R v MacNeil-Brown; Queen v Piggott[34] the majority of this Court[35] held that the making of submissions on sentencing range was an aspect of the prosecutor’s duty to assist the court. Such a practice promotes consistency in sentencing and reduces the risk of appellable error.[36]
[34][2008] VSCA 190 (‘MacNeil-Brown’).
[35]Maxell P, Vincent and Redlich JJA.
[36]See also R v S [2006] VSCA 134.
The respondent’s counsel submitted that even if this Court considered that the sentence was manifestly inadequate, it should exercise its discretion not to alter the sentence, because of the Crown’s failure to assist his Honour as to the sentencing range.
I have some doubts as to whether that submission should be accepted. The DPP’s failure to nominate a range occurred prior to the decision of this Court in MacNeil-Brown.[37] Although MacNeil-Brown followed earlier decisions[38] the extent of the prosecutor’s duty was not entirely clear before that decision. Further, counsel for the DPP did make some reference to sentences imposed in other cases, though he declined to nominate a range.
[37][2008] VSCA 190.
[38]See for example R v Tait (1979) 24 ALR 473; R v Casey (1986) 20 A Crim R 191; R v S [2006] VSCA 134.
Standing by itself, therefore, I would not have considered the failure to make submissions on range a sufficient reason for failing to alter the sentence imposed on Dynamic. However, the delay of almost six years between the commission of this offence in October 2003 and the hearing of this appeal is also relevant to the exercise of the Court’s re-sentencing discretion. Because of this combination of factors I consider that the sentence which his Honour imposed on Dynamic should not be altered.
For these reasons I would allow the DPP’s appeal and sentence Dynamic to the same fine as that imposed by his Honour.
R v Irvine – appeal against conviction
Ground 1
The first ground of appeal claims that:
The learned judge erred in his directions on the elements of the offence under section 25(1)(a) of the Occupational Health and Safety Act1985 (Vic) …
(a)in directing that failing to take reasonable care for the health and safety of anyone else who may be affected by his acts or omissions meant proof that the applicant, ‘in his capacity as an employee, was guilty of an act or omission which an informed and objective observer, having regard to all the circumstances, would reasonably have foreseen would affect the health and safety of Mr Mastek’ …
(b)in failing to direct instead to the effect that the act or omission relied on must be proved to have been performed consciously, voluntarily and deliberately, without any intention or awareness in the applicant that his act or omission placed at risk the health or safety of Mr Mastek, but in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk to Mr Mastek’s health or safety that the act or omission merited criminal punishment.
Background
Mr Irvine was convicted by a jury of the offence of failing to take reasonable care for the safety of anyone who might be affected by his acts or omissions at the workplace, contrary to s 25(1)(a) of the Act.
Before the judge charged the jury, both counsel made submissions on the elements of the two offences with which Mr Irvine was charged. Mr Irvine’s counsel submitted that because s 25(1)(a) of the Act imposed a criminal sanction, the breach of the standard of care required for commission of the offence was similar to that required for other criminal offences involving gross negligence, for example culpable driving or negligently causing serious injury. In support of that submission he relied on the jury charge given by McInerney J in R v Reynolds.[39]
[39](Unreported, County Court of Victoria, McInerney J, 24 February 2004).
Counsel for the Crown relied on the unreported decision of the Full Court of the Industrial Court of New South Wales in which the court held that the duty imposed on an employee under s 19(a) of the Occupational Health and Safety Act 1983 (NSW) (which is expressed in similar terms to s 25 of the Act) was to take reasonable care for the health and safety of others.
His Honour ruled that the civil standard of care applied. He directed the jury on the elements of the offence created by s 25(1)(a) as follows:
A common element is firstly that the accused was an employee as defined by the Act, and secondly, that the site was a workplace as defined. The next element which the Crown must establish beyond reasonable doubt is that the accused failed to take reasonable care for the health and safety of persons who may be affected by his acts or omissions.
He told the jury that the test was an objective one and said that the question for the jury was:
Has the Crown satisfied you that Mr Irvine, in his capacity as an employee, was guilty of an act or omission which an informed and objective observer, having regard to all the circumstances, would reasonably have foresee would affect the health and safety of Mr Mastek.
That is a bit of mouthful, and indeed, when I think Mr Livermore was talking to you about it, he added ‘sober’ as well. I am not sure why that was, but never mind. Perhaps I should say to you again, has the Crown satisfied you that Mr Irvine, in his capacity as an employee, was guilty of an act or omission which an informed and objective observer, having regard to all the circumstances, would reasonable have foreseen would affect the health and safety or Mr Mastek.
When I say, ‘in all the circumstances’, you may take into account such circumstances in determining whether reasonable care was taken by Mr Irvine in this instance. Thus you might, if you choose, take into account Mr Irvine's training and experience, the circumstances that pertained at the time on the workplace at that day, and any circumstances that you regard that an objective and informed observer would take into account.
Counsel’s submissions
Counsel for the applicant submitted that it could not have been intended that the civil standard of care should apply to the offence. Section 25(1)(a) attracted a maximum penalty of 500 penalty units (approximately $50,000) under the Act. A similar provision appeared in s 25(1) of the Occupational Health and Safety Act 2004 (‘the 2004 Act’),[40] which had increased the fine to 1,800 penalty units (approximately $180,000). The size of the penalty imposed and the fact that the section created an indictable offence indicates that a high level of negligence was required for conviction. Counsel said that the situation was analogous to that arising in R v Shields[41] where the offence of negligently inflicting grievous bodily harm was held to require gross negligence on the part of the offender.[42]
[40]The 2004 Act also requires employees to co-operate with the employer as to any requirement imposed by the Act or regulations.
[41][1981] VR 717.
[42]Counsel also relied on R v De’Zilwa (2002) 5 VR 408, 420-3.
Counsel further submitted that the legislative context supported the inference that the offence required criminal negligence. Section 25(2)(b) of the Act created the offence of ‘wilfully placing at risk the health or safety of any person at the workplace.’ This required proof of subjective wilfulness, whilst s 25(1)(a) required only objective carelessness. Since both s 25(1)(a) and s 25(1)(b) attracted the same maximum penalty, it should be inferred that a high level of negligence was required to make out the offence in s 25(1)(a).
Counsel for the applicant also contended that if s 25(1)(a) required only a breach making the civil standard this would create disharmony with other offences in the Act (and in its successor, the 2004 Act). He gave two examples. The first example was s 21 of the Act, which requires an employer to provide and maintain for employees a working environment that is safe and without risks to health, ‘so far as practicable.’ He submitted that it would be incongruous if s 25(1)(a) was interpreted as imposing a higher standard of behaviour on an employee than the standard imposed on an employer.
The second example was s 144 of the 2004 Act, which permits prosecution of an officer of the company for an offence committed by the company, if the contravention is attributable to the officer failing to take reasonable care. Section 144 (3) sets out a number of matters which are to be taken into account in deciding whether the officer is guilty of that offence, including the officer’s knowledge of the matter, the extent of the officer’s ability to make or participate in the making of decisions by the company and whether the contravention by the body corporate was also attributable to the act or omission of another person. Counsel submitted that the absence of reference to similar factors in s 25 of the 2004 Act indicated that it required a higher level of culpability than a simple failure to take reasonable care.
Counsel for the respondent submitted that s 25(1)(a) of the Act clearly provided that the civil standard of negligence applied. This was consistent with s 5 of the Act, which stated that its objects (among others) were to
(a) to secure the health, safety and welfare of persons at work;
(b) to protect persons at work against risks to health or safety;
(c) to assist in securing safe and healthy work environments;
(d)to eliminate, at the source, risks to the health, safety and welfare of persons at work.
This construction was also said to be consistent with the history of the legislation and its beneficial purposes, as described in R v ACR Roofing Pty Ltd.[43]
[43](2004) 11 VR 187.
Conclusion
In my opinion the judge correctly directed the jury that an offence is committed under s 25(1)(a) if an employee fails to take reasonable care for the health and safety of another person in the workplace. That construction of the section is supported by its plain meaning and its legislative purpose.
The words of the legislation indicate that the civil standard of negligence applies. As I have said, s 25 contains two offences, one requiring proof of ‘wilfulness’ (s 25(2)(b)) and the other requiring failure to take reasonable care (s 25(1)(a)). If s 25(1)(a) were intended to require criminal negligence that intention could have been indicated by the use of a qualifying adjective such as ‘gross’. The offence of culpable driving can be committed in several ways, including by failing ‘unjustifiably and to a gross degree to observe the standard of care that a reasonable man would have observed in all the circumstances of the case’.[44] The omission of ‘gross’ or a like qualifying adjective supports the view that only a civil standard of negligence was contemplated in s 25(1)(a).
[44]Crimes Act 1958, s 318 (2)(b) and (2A).
I am fortified in that view by the decision of the Full Court of the Industrial Court of New South Wales in WorkCover Authority of New South Wales (Inspector Gordon) v Wallis,[45] although I note that s 19 of the Occupational Health and Safety Act 1983 (NSW) creates only a summary offence.[46] The standard of care imposed on employees under s 19 was also considered in Workcover Authority of New South Wales (Inspector Thomas) v Cruden,[47] where Marks J held that:
… the requisite standard to be applied is that which should reasonably in all the circumstances have been expected of an employee carrying out the duties and discharging the responsibilities in a manner appropriate to the skills and expertise expected of a person holding himself or herself out to be able to undertake that work.[48]
[45](Unreported, Full Court of the Industrial Court of New South Wales, Fisher CJ and Glynn and Hill JJ, 14 August 1996). See also Inspector Callaghan v Starr (1993) Australian Industrial Safety, Health and Welfare ¶52-909. The Full Court had jurisdiction to hear appeals from decisions of the Industrial Court and is therefore equivalent to an appellate court: see Industrial Relations Act 1991 (NSW), ss 297(2) and 301 and Walker v Industrial Court of New South Wales (1994) 53 IR 121; Rothmans Distribution Services Ltd v Full Court of the Industrial Court of New South Wales (1994) 53 IR 157.
[46]Breach of the duties under s 19 were dealt with summarily: Occupational Health and Safety Act 1983 (NSW), s 47.
[47](1996) 67 IR 469.
[48]Ibid 475.
Counsel for the applicant relied on R v De’Zilwa[49] and R v Shields,[50] in support of the submission that the judge should have directed the jury that s 25(1)(a) required proof of negligence to the criminal standard. R v De’Zilwa is of little assistance. In that case the applicant was charged with culpable driving by gross negligence and one of the issues on appeal related to the jury direction which should be given on the elements of that offence.
[49](2002) 5 VR 408.
[50][1981] VR 717.
The decision of the Full Court in R v Shields is more directly in point. In that case the Full Court (Young CJ, Anderson and Brooking JJ) considered the effect of s 26 of the Crimes Act1958 which provided that:
… whosoever by negligently doing or omitting to do in any act causes grievous bodily injury to any other person, shall be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than three years.
The Court held that the provision required a level of negligence appropriate to manslaughter, despite the lack of reference to gross negligence. That decision was based partly on the history of the provision, which was derived from Act 25 Vict. No. 146 (passed in 1862).[51] The preamble to that legislation made it clear that the provision was intended to impose criminal liability for causing grievous bodily injury in circumstances in which, had death resulted, the offender would by reason of his or her negligence have been guilty of manslaughter.
[51]An Act for the punishment of any person who shall by his negligence cause grievous bodily injury to any other person: Act 25 Vict. No. 146 (1862).
Further, the Full Court noted that the section was very broad and general in its application. It was said to be unlikely that the legislature intended that an indictable offence[52] would be committed by a person who negligently slammed a carriage door and crushed a passenger’s finger, by a dentist who negligently broke a patient’s jaw or by a pedestrian who, hurrying along the footpath, negligently bumped into another causing him to lose his balance and fall. No such considerations apply here, since s 25(1)((a) is confined to the negligent acts of a worker in the workplace, which affect the safety of others.
[52]Note that the offence under its 1862 predecessor, Act 25 Vict. No. 146 (1862), amounted to a misdemeanour.
Counsel for the applicant did not submit, as he might have done, that the penal nature of s 25(1)(a) required any ambiguity in the provision to be interpreted in favour of the applicant. In my opinion there was no relevant ambiguity in the provision. Further, as Gibbs J said in Beckwith v The Queen:[53]
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort.[54]
[53](1976) 135 CLR 569.
[54]Ibid 576. See also Deming No 456 Proprietary Limited v Brisbane Unit Development Corporation Proprietary Limited (1983) 155 CLR 129, 145.
Even if I am wrong in considering that this principle does not apply, there is a conflict between the principle that penal legislation should be interpreted strictly and the principle that beneficial legislation should be interpreted to give effect to its purpose.[55] Section 5 of the Act, set out at [81] above, emphasises that the Act is intended to protect workers from injury and danger to health.[56] Laws promoting occupational health and safety laws must be construed to ‘give the fullest relief which the fair meaning of [their] language will allow’.[57] In Stratton v Van Driel Limited[58] Byrne J considered that the Act should be construed generously and consistently with the fact that ‘it is social legislation intended to ensure the safety and welfare of persons at work and to protect them against …risks’.[59]
[55]DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) 283-4.
[56]The Act was, in part based on the philosophy of the 1972 report of the Committee on Safety and Health at Work (chaired by Lord Robens), which influenced the development of occupational health and safety laws across the common law world: see Committee on Safety and Health at Work, Safety and Health at Work: Report of the Committee 1970–72, Cmnd 5034 (1972) (‘the Robens Report’), [59].
[57]Bull v Attorney-General(NSW) (1913) 17 CLR 370, 384 (IsaacsJ).
[58](1997) 87 IR 151.
[59]Ibid 155.
In Waugh v Kippen[60] the majority of the High Court said that:
[Where] the two principles of interpretation ... come into conflict ... the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have … In such a context the strict construction rule is indeed one of last resort.[61]
[60](1986) 160 CLR 156.
[61]Ibid 164-5.
In R v ACR Roofing Pty Ltd this Court applied that approach in interpreting s 21 of the Act.[62] A similar approach should apply in interpreting s 25(1)(a). There is nothing in the legislative history of s 25(1)(a) which detracts from that conclusion.
[62](2004) 11 VR 187.
The precursor to s 25(1)(a) was s 14 of the Industrial Safety Health and Welfare Act 1981, which in turn reflects s 7 of the Health and Safety at Work Act 1974 (UK). The Health and Safety at Work Act 1974 (UK) was enacted following the tabling of the Robens Report. The philosophy of the Robens Report was, to some extent embodied in the Industrial Safety Health and Welfare Act 1981.[63]
[63]See B Creighton and P Rozen, Occupational Health and Safety Law in Victoria (3rd ed 2007) 3-7, 9.
The Robens Report advocated greater reliance on self-regulation by employers and workers jointly, backed up by an effective inspectorate. It remarked that the lengthy process of investigating breaches, warnings, institution of criminal proceedings conviction and the ultimate fine was not a very effective way of preventing health and safety breaches and that criminal prosecutions should be reserved for breaches that were flagrant and wilful.[64] At first glance that comment provides some support for the applicant’s claim that s 25(1)(a) contemplates the criminal standard of negligence.
[64]Robens Report, [263].
However it is apparent from the context that these remarks relate to the approach to be taken to the prosecution of employers. The Robens Report emphasised the importance of employee involvement in improving work safety,[65] but did not discuss whether employees should be held criminally liable for breach of occupational health and safety standards.
[65]Ibid [59]-[60].
I have been able to find only one case in which the nature of the duty imposed by s 7 of the Health and Safety at Work Act 1974 (UK) was considered.[66] In R v Beckingham,[67] the Court of Appeal held that the judge had correctly directed the jury:
… that they were to set the standard of what was reasonable care. He directed them that, in determining that question, they should consider all the circumstances; and he identified, specifically, a number of matters to which they should have regard.[68]
In that passage it was obviously assumed that s 7 applied the civil standard of care.
[66]See also Skinner (Colin) v HM Advocate (1994) SCCR 316 (HJC appeal) where a similar approach appears to have been taken.
[67][2006] EWCA Crim 773.
[68]Ibid [18].
More recently, in Victoria, the Maxwell Review noted that the core legislative concept in the Act was that:
… employers and employees have complementary duties. Safety in the workplace depends on both duties being performed. The Act gives no primacy to one duty or the other.
Unarguably, therefore Parliament must be taken to have intended that the respective duties of employer and employee be enforced with equal stringency.[69]
[69]C Maxwell, Occupational Health and Safety Review (March 2004) 163.
The report noted that enforcement was weighted towards employer prosecution, but expressed no view as to the standard of care which should apply to employees. As I have said, this issue was not explicitly addressed in the 2004 Act.
Counsel for the applicant submitted that if the legislation were interpreted literally, the duty imposed on an employee would be more onerous than that of an employer. I do not agree.
An employee is liable to prosecution under s 25(1)(a), if his or her acts or omissions do not conform to the relevant standard of care. By contrast the words ‘so far as practicable’ qualify the employer’s obligation under s 21 to provide a safe working environment. Despite this qualification the latter is a more extensive duty.[70] An employer must comply with the requirements set out in s 21(2) and may be held liable for the acts of third parties (as was Dynamic for the acts of Mr Cini in this case).
[70]For the definition of ‘practicable’ see s 4 of the Act. For discussion of ‘so far as practicable’, see ibid chapter 10.
Counsel for the applicant also contrasted the liability of an employee with the provisions relating to the liability of an officer of the company. Under s 52 of the Act an officer could be held guilty of an offence committed by the company if that offence was ‘committed with the consent or connivance of the officer’ or was attributable to any wilful neglect on the part of the officer. Counsel submitted that this provision (or rather of s 144 (3) of the 2004 Act), was at odds with the imposition of criminal liability on an employee who simply breached the civil standard of care.
That submission is not well-founded, because of the different purpose of the provisions. Section 52 imposes a form of accessorial liability on an officer who is involved in a breach committed by the company.[71] Section 25(2)(b) imposes a duty on employees in relation to their own acts of omissions.
[71]AB Oxford Cold Storage Co Pty Ltd v Arnott [2003] VSC 452, [75]. An unsuccessful appeal was brought against this decision on grounds irrelevant to this point.
For the above reasons ground 1 is not made out.
Ground 2
This ground was as follows:
The learned judge’s directions on the prosecution and defence cases were in error and resulted in a charge that lacked balance; and in particular his Honour erred:
(a)in directing the jury in effect either to ignore as wrong or irrelevant, or treat as of little moment, the four points counsel for the applicant made in his final address … ; [and]
(b)in unduly emphasizing [sic] the prosecution case and in failing adequately to convey the defence case in his summary of the final addresses.
Background
The Summary of Prosecution Opening in Mr Irvine’s trial alleged that:
Cini and Irvine were employees of Dynamic Industries as supervisors of the workplace … As part of that supervisory role they were required to ensure the safety of employees of Dynamic Industries working at the workplace. It is alleged that they:
·became aware that employees of Dynamic Industries were working at height without adequate fall protection;
·failed to warn the employees against the unsafe practice of working at height without adequate fall protection;
·failed to stop the work until the safety of the employees was ensured;
·failed to notify their employer that unsafe practices were being implemented;
·omitted to adequately supervise the employees; and
·failed to take action to prevent the unsafe work practice knowing that the employees were acting unsafety.
After some witnesses had given evidence at the trial, counsel for Mr Irvine foreshadowed an application to his Honour that Mr Irvine had no case to answer. He then sought further particularisation of the Crown case against Mr Irvine.
Counsel for the Crown responded by saying that the Crown case was that Irvine ‘intentionally led, directed or permitted’ Mr Mastek to ‘unsafely use an [elevated work platform] to access the roof area’, or ‘did not do anything to prevent Mr Mastek unsafely using the work platform and unsafely walking on roof number one’.[72] Counsel for the Crown said that this did not require proof that at the time of the incident Mr Irvine was the supervisor of the work, or was acting in some other formal capacity. Counsel for the Crown said that it had always been the position of the Crown that Mr Cini was the supervisor for the site. He said:
… we say that [Mr Irvine] was directing what was going on but we say we don’t need to say that; all we have to show is that he was in a position to do something such as what I dictated to you on before; failing to warn the employee, failing to stop the work or failing to take any action to prevent the unsafe work and from all the circumstances the jury will make up its mind whether they regard him as being in a position to do that or not.
[72]T 206.
Counsel for Mr Irvine submitted that the Crown was seeking to change the way that it had initially put the case, contrary to s 8 of the Crimes (Criminal Trials) Act1993 and that this was unfair to his client. In support of that submission, counsel relied on paragraph 18 of the Crown opening, set out above. He submitted that:
… the Crown case rests upon the assertion that my client had a supervisory role on the roof. I submit that that was made clear in the opening … and that counsel for the Crown was now attempting to put forward … an alternative basis for my client to be convicted, namely that he was a fellow employee with not necessarily any supervisory role but that he still as a fellow employee failed to fulfil those six responsibilities.
Counsel for Mr Irvine contended that the Crown should be held to the particulars as originally opened and on that basis there was no case to answer.
After hearing further submissions on this matter, his Honour ruled that the Crown was not confined to the case that Mr Irvine was formally acting as a supervisor. In light of that ruling, counsel for Mr Irvine did not persist with the no-case submission and said that his understanding was that ‘my learned friend is effectively able to go to the jury not solely on the basis that my client was the supervisor or person in charge on the roof’.
In his closing address to the jury, defence counsel began by saying that there were four ‘fundamental reasons’ why they should not be satisfied of Mr Irvine’s guilt on either of the two counts. These were that :
(1) the Crown could not establish that Mr Irvine was in charge of what was happening on the roof or supervising what was happening on the roof;
(2) the Crown could not establish the decision to go on the roof at that time was Mr Irvine’s;
(3) the Crown could not establish that the work method used on the roof was Mr Irvine’s rather than work done at Paul Cini’s direction and under his supervision; and
(4) the Crown could not establish exactly what had happened on the roof just before Mr Mastek fell.
In relation to the first matter, defence counsel commented that the Crown had, in its opening, ‘nailed its colour to the mast’ by suggesting that Mr Irvine was ‘the man in charge on the roof, supervisor, however you want to put it, he was the man in charge’. He then took the jury to the evidence in cross-examination of Mr van Rooy, one of Dynamic’s directors, who had said that Mr Cini was the ‘number two supervisor under himself and Mr Borcic and that Mr Irvine and Mr Mastek were at an equal level in the company’.
In elaborating the four points set out above, Mr Irvine’s counsel referred to client’s evidence that:
·he was acting under Mr Cini’s directions when he got on the roof;
·he and Mr Mastek were simply co-workers doing a job and that he had not directed Mr Mastek to get on to the roof ;
·that he and Mr Mastek had discussed the positioning of the safety wire under the roof; and
·that Mr Mastek had gone on to an unsafe area of the roof, when he fell.
After the judge had commenced his jury charge there was discussion between his Honour and Mr Irvine’s counsel as to the content of counsel’s closing address. His Honour said that he thought that the thrust of counsel’s address was that if Mr Irvine had any duty ‘it was subrogated by the assertion that he was being supervised’. His Honour then said it did not matter whether this was or was not the case, as Mr Irvine had a duty to take reasonable care under s 25. Counsel for the Crown submitted that the four matters on which defence counsel had relied did not have to be proved.
There were a number of breaks during the charge when there was further discussion between counsel and the judge as to the four points relied upon by counsel for the defence. During that discussion the judge said that he was ‘enormously disturbed’ by the content of defence counsel’s address and that it seemed to him that his assertions placed the Crown case on an incorrect basis. His Honour said that the fact that Mr Cini was the supervisor and Mr Irvine a fellow employee working on the roof was irrelevant, as was the assertion that the Crown could not establish that it was Mr Irvine’s decision to go onto the roof. His Honour also said that the third proposition put by defence counsel, that it was not Mr Irvine’s idea as to what was to be done on the roof ‘seems to me to fly in the face of the evidence’.
His Honour then said that if the jury took account of what defence counsel had told them, they would be taking into account matters that ‘are not the case’. He said that he was left with the alternative as to whether he should discharge the jury on that basis or in some way ameliorate what had been put in the final address.
In the lengthy discussion which followed, counsel for Mr Irvine said that the Crown had tried, and in his submission, failed to prove that Irvine was the second in charge. His Honour asked ‘what does it matter’. His Honour said that the question whether s 25(1)(a) was breached would not depend on the applicant being a supervisor.
Defence counsel also said that if it had been shown that if the jury had accepted Mr Irvine’s evidence that Mr Mastek suddenly and unpredictably went to an area of the roof where there was no under-wiring, it would also establish that Mr Irvine was not guilty of the offence. His Honour then said that he did not understand how that could ameliorate the fact that the applicant had acquiesced Mr Mastek’s decision not to use a safety reel.
His Honour said that it would have been permissible for counsel to say that the Crown could not establish that a reasonable person would have foreseen Mr Mastek’s health and safety was put at risk, but that counsel’s address had gone beyond that point. Counsel for the Crown submitted that his Honour could direct in relation to the first two points and possibly by reformulating the third point that these were general circumstances that the jury might take into account if they saw fit in determining the situation in which they applied the reasonable person test.
Counsel for the Crown said that his Honour was required to tell the jury that the Crown did not need to prove or disprove those four matters beyond reasonable doubt to succeed.
His Honour then said that he was left with two choices. These were either to discharge the jury on the basis of counsel’s address or disavow the propositions put by defence counsel. His Honour said he was prepared to make mention of at least the first two factors as being circumstances they could weigh up in determining the elements of the offence but was not going to instruct the jury that the Crown was obliged to satisfy them beyond reasonable doubt of the four topics that were put by defence counsel.
After charging the jury on the elements of the offence, his Honour summarised the evidence in some detail. He referred to the cross examination of Mr van Rooy about the hierarchy of supervision, to which I have already referred. In relation to Mr Cini he said:
He told you on the second day he had Irvine removing and fixing screws on Area 2 in the morning, and after two o'clock he decided he wanted the bin filled, that is the bin in Area 1, and they would start working a bit earlier than their normal lunchtime break. He said that there was a discussion with Irvine and Mastek. Irvine suggested that he, Irvine, should get on top of the roof in Area 1 because it was closer to the bin, and because - some issue has been made about conversations, maybe I should say something to you about what he said. He was asked in evidence-in-chief by Mr Livermore, this is Mr Cini, ‘When you came back from that break, did you have a discussion with Andrew?’ Answer: ‘Yes, and Raymon’. ‘What was that discussion?’ ‘As I said, we needed to get that bin filled before we left that night, and Andrew suggested that he gets on top of the roof in Area 1 because it was closer to the bin. We basically had a bit of an argument. I said, no, you need to do Area 2, that's what we planned to do. I wanted to do. And I walked off.’ Question: ‘Did you explain to him why you wanted him to do Area 2 rather than Area 1 from the top?’ ‘Well, I pretty much said that there is no mesh in Area 1’. Question: ‘Yes?’ ‘The majority of it had been done from underneath, why change it, sort of thing.’ ‘Did he reply? Did he say anything to you?’ ‘He just said it would be quicker.’ ‘Did you say anything to him when he said that?’ ‘I said, no, and I walked off … ‘
He said that the plan after the break was to do Area 2. It was put to him that the conversation he had said took place did not take place. He said it did and that it was with Irvine. He mentioned that the plan had been to do Area 2 after the break and that is why he had Irvine up on the roof earlier in the day cutting the bolts. He denied that there was a plan to complete Area 1 before moving on to Area 2. It was put to him that since the accident he had been attempting to put much of the blame onto Irvine as possible. He responded that he probably blamed both of them actually. He said he could not believe that it was his, Cini's, fault.
His Honour then summarised the evidence of Mr Irvine. He referred to the fact that Mr Irvine said that he had ‘done supervision work, or worked as a supervisor, but told you that he had not been a supervisor on asbestos removal’. His Honour then said:
Coming to perhaps the more important aspect of it, he talked about the discussion between he and Cini with Mastek not far away after lunch on the day in question. He said that Cini had wanted them to fill the bin so that a new one could be brought the next day for Area 2. He said that Cini wanted them to go on top where the access problems were - this is in Area 1 - to remove sheets over the bowser and the bin. He said Cini told him them to go over the top, as it was put, to get at those matters.
He described how he had got the scissor lift and told Mastek to get a harness, then to get an inertia reel, and that Mastek had said, ‘What for, if it's only for a couple of sheets?’ You will know that much of this is contained in that statement. I perhaps ought not bother - not bother, but it is unnecessary for me to summarise just what is said there, because you actually have it in print before you.
Indeed, I will not waste time going through his statement because, as I say, you have it, but you will remember that there is a good deal of detail there in that.
He was asked a lot of questions by the prosecutor in cross-examination. He was asked about conversations about finishing the Area Number 1, and he was pressed on that, and ultimately said that that conversation is what Cini, in his version of it, that is Mr Irvine's version, would have said that he was to go over the top. It was put to him that this conversation was not to be found in his earlier statement, that is the one that you have, in paragraphs - you will recollect 9 and 13, and it was put to him that that was not part of the conversation that was put to Cini when he was being cross-examined.
I should say to you at this stage that you will recollect that the prosecutor at this point made some - took on at some length the proposition that when the accused has made his statement in 2004 through his solicitors, which had been then sent to Worksafe, that this conversation upon which he relied had not been put by way of cross-examination to - Mr Matthews, or that part of it, to Mr Cini.
His Honour directed the jury on the proper use of prior inconsistent statements and then referred to a number of answers which Mr Irvine gave in cross examination:
Mr Livermore was asking about burning off bolts and so on and he went on to put to Mr Irvine, ‘You were aware and had been trained, had you not, as at October 2003 that unless it was proved otherwise an asbestos roof should be treated as a fragile roof?’ Answer: ‘That's correct.’
Question: ‘You should make the assumption that it is not safe to walk on, that you might go through it?’ ‘Correct.’ ‘That was very well known, wasn't it, and well known to you?’ The shorthand writer recorded the witness nodded. Question: ‘You were also aware as at October 2003 that even if a fragile asbestos roof had secure protective wire throughout that had been certified, if you were working near a perimeter you still needed additional fall protection?’ ‘That's correct.’
Question: ‘The fall protection could be by way of scaffolding around the outside?’ ‘Yes.’ ‘You had worked in that situation before?’ ‘Yes.’ ‘Or by way of harness and inertia reel fixed to a solid object to prevent a person falling to the ground?’ ‘That's correct.’ ‘You knew as at October 2003 that it was unsafe to work on a roof without the additional fall protection of perimeter protection or harness properly connected? You knew that it was unsafe to work on a roof in the state that that roof, number one, was in when you got up there on 22 October 2003, didn't you?’ ‘That's correct.’
‘You knew it was unsafe?’ ‘Yes.’ ‘And you didn't do anything to prevent Mr Mastek from getting up and walking on the roof did you?’ ‘We did describe where, discuss, sorry, where the wire was.’ ‘Is that good enough? Well?’ ‘We both got onto the roof to have a look.’ ‘Do you think it's good enough?’ ‘We both got onto the roof where there was secure wire.’ ‘Do you think it's good enough, no harness connected, no perimeter protection, gaps in the wires? As you sit there today do you think it was good enough to discuss where the wire was?’ ‘We discussed from below, we discussed from above.’
Question; ‘Do you think it was good enough, Mr Irvine?’ ‘No, it wasn't good enough.’ ‘Because you could have done more, couldn't you?’ ‘We all could have done more.’ ‘Mr Mastek could have done more?’ ‘Yes.’ ‘You could have done more?’ ‘Yes.’ It went on at line 7 on p.294: ‘You knew precisely what you were doing and you took the risk, didn't you?’ ‘We knew the area we had to remove, yes.’
‘You knew precisely what you were doing and you took the risk, didn't you?’ Answer: ‘Like I said we knew the area that we were to remove, yes, directly over the bin.’ Question: ‘You knew there was a risk because you didn't have proper fall protection, did you, when you went up on the roof?’ ‘Yes.’ ‘And you took the risk because you didn't in fact think it would take very long to get the job done?’ ‘That's correct.’
‘You were also aware, weren't you, that despite the fact that the rule might have been contravened in the past that you were not supposed to access a roof by use of the scissor lift, are you?’ ‘That's correct.’ It went on to talk about scissor lifts and them being unstable and the reason why you were not meant to get out onto the roof from a scissor lift.
That should be read and understood in conjunction with the statements in his statement. The accused was also asked a number of questions about removal of sheets as depicted on photo 31, and agreed that some of those sheets could have been removed from below. They were, he said, not removed before they got on top of the roof because they were trying to fill the bin because you had to work right to left because the sheets overlapped that way.
He was asked questions about the documents behind Tab 4 and his name appearing with Cini as being responsible and his signature on it. He said that the naming of him in effect only operated with him taking over as supervisor if Cini was off site. If he was actually on the site he said that he, Irvine, had no responsibility for supervising.
You will recollect there was a passage of cross-examination where he asserted that it was one foot outside the perimeter fence and then he would be the titular supervisor. I want to make a comment, ladies and gentlemen, about this aspect of supervisor. It seems to have taken on a meaning, a special meaning, here. I suppose you could say that there is the officially he has to be a nominated supervisor of someone who is competent to conduct the activities on the site.
Being the supervisor doesn't necessarily just because of that mean that someone can't tell others to do it or direct others to do it, as I understand it. I'll say to you shortly there seems to be from the defence point of view some magic about whether you're the titular nominated supervisor or not.
His Honour then referred to the statement in Mr Irvine’s counsel’s closing address that there were four fundamental reasons why they could not be satisfied of the accused’s guilt. He said:
I have to tell you as a matter of law, that the Crown does not have to establish that Irvine was the or a supervisor. It is not necessary for you deliberations [sic] as to the elements of the offence that they establish that. Further, they do not have to establish that it was in a formal sense Irvine's decision to go on to the roof. The fact is, in any event, that he did go on the roof, and he says he did, and it is contained in his statement. But, nevertheless, if it means anything at all, it does not require proof beyond reasonable doubt in that regard.
The third factor is that he talked to, is a difficult factor, namely that the Crown could not establish that the work methods were Irvine's. Now what precisely that meant he went on to say a good deal about and talked about the practices of Dynamic and some of its employees and so on, but I tell you that that is not a matter that the Crown has to establish and you must bear in mind in the terms of the section, as I put to you, that the obligation imposed by Parliament is a personal one on each employee. So if the employee adopts a course of conduct or a mission in terms of his work that endangers or brings into possibility a risk of harm, then it does not matter what the employer or anyone else might have said.
The first two matters are matters of general perhaps interest in terms of the evidence that is given, and if you think there are matters contained in the evidence that relates to the question of who was in charge of the room, if anybody, if that assists you in your assessment of what a reasonable objective observer knowing all the circumstances of the case, then by all means those matters in those two categories that Mr Matthews spoke to you of, you may, if you wish, take into account, but I reiterate, they are not fundamental points that the Crown has to prove to that standard. …
The fourth matter as to what happens on the roof and it was put to you that the Crown could not establish which sheet came down, second last. Now I confess (indistinct) not being sure as to why that was thought by Mr Matthews to be germane. He sought to explain it to you, but in the end result the fact seems to be that Mr Mastek went off to an area of the roof which, as we all sadly know, was unwired, even though it is claimed that they both examined the wire from above and below. The fact that he removed a sheet from the unwired portion of the roof demonstrates very sadly that the risk came to pass.
Counsel’s submissions
Counsel for the applicant submitted that each of the four points made by Mr Irvine’s counsel were relevant to whether or not the applicant breached his duty of reasonable care for the safety of Mr Mastek. Because of the way the Crown’s case was formulated, breach of the duty of care could not have been established beyond reasonable doubt if the applicant was the workplace equal of Mr Mastek, if Mr Irvine had gone onto the roof and worked on it as a result of Mr Cini’s instructions, or if Mr Irvine had not instructed Mr Mastek on the method of removing the sheets and the latter had been injured as a result of his decision to walk onto a dangerous area of the roof. Counsel for the applicant submitted that the judge should not have directed the jury to disregard the four matters raised by counsel and that his direction to do so had resulted in an unbalanced charge.
Counsel for the respondent submitted that the charge was balanced and appropriate. It would have been misleading for his Honour to give directions relating to the fact that Irvine was not supervising Mr Mastek and that they were co-workers because this was not relevant to the offence created by s 25(2)(a).
Conclusion on Ground 2
Much of the difficulty in this case arose from uncertainty as to the precise nature of the Crown case against Irvine. This difficulty would have been avoided if the prosecution had been held to the proposition in paragraph 18 of the Crown’s opening that Irvine was a supervisor of work at the Dandenong premises.
Following his Honour’s ruling that the prosecution was not confined to this allegation, the case against Mr Irvine was that although Mr Cini was supervising the work, Mr Irvine was in a position to direct Mr Mastek not to get onto the roof or to require him to wear a safety harness with an inertia reel attached if he did so.
Because of the way that the Crown case was put Mr Irvine could not have been convicted of an offence under s 25 simply on the basis that he disregarded his own safety or that he had acquiesced in Mr Mastek’s decision to get onto the roof without a safety reel. Mr Irvine’s defence was that he and Mr Mastek were co-employees and that each of them had made the decision to get onto the roof without a safety harness, having made an attempt to ascertain the location of the safety wire underneath the roof.
Unfortunately, his Honour’s jury charge did not address these issues at all. By telling the jury only that the Crown did not have to establish that Mr Irvine was ‘a’ or ‘the’ supervisor in order to prove a breach of s 25(1)(a), his Honour led the jury to believe that it was irrelevant whether or not Mr Irvine had the capacity to direct Mr Mastek not to get onto the roof or to wear a safety harness if he decided to do so. That view would have been reinforced by his Honour’s direction ‘that it was not necessary for the Crown to establish that it was Irvine’s decision to go onto the roof’. The deficiency in the charge was not overcome by his Honour’s direction to the jury that these two matters were of ‘general interest’ but not fundamental aspects of the Crown’s case.
It was not, strictly speaking, an error for the judge to tell the jury that it was unnecessary to establish that ‘the work methods were Irvine’s,’ because the Crown case came down to an allegation that the breach occurred at the time the men got onto the roof without wearing safety harnesses. However, his Honour’s direction would have reinforced the impression that Mr Irvine’s capacity (or lack of capacity) to direct Mr Mastek as to what should be done was irrelevant to the proof of Crown case.
Because the prosecution’s case against Irvine related to the decision to get onto the roof without wearing a safety harness, his Honour correctly told the jury that what happened after the men go onto the roof was not relevant to the breach of s 25(1)(a).
When his Honour’s direction to the jury is taken as a whole, I consider that it did not fairly summarise the arguments of both counsel[73] and was, in that sense, unbalanced. The inadequate particularisation of the Crown case resulted in the judge failing to instruct the jury on the real issue which it was necessary for them to determine, namely whether Mr Irvine failed to take reasonable care for Mr Mastek’s safety, in the circumstances of this case. [74]
[73]R v Demiri [2006] VSCA 64.
[74]Alford v Magee [1952] 85 CLR 437, 466.
Ground 2 is therefore made out.
Ground 3
This ground was as follows:
The learned judge’s directions on the evidence of Mr Cini and the applicant were in error and resulted in a charge that lacked balance; and in particular his Honour erred:
(a)in failing to give a Faure or similar warning in respect of the evidence of Mr Cini and in commenting in a way that undermined the applicant’s legitimate attack on Mr Cini’s credit; and
(b)in failing to extend the good character direction to the applicant’s credibility.
Background
As I have said, both Mr Cini and Mr Irvine were prosecuted for an offence under s 25(1)(a) of the Act. On 12 February 2008, the second day of proceedings against the three defendants, counsel for the Crown indicated that Mr Cini would plead guilty to that offence. He then did so and admitted prior convictions.
Counsel for the Crown told his Honour, correctly, that it would be preferable for Mr Cini to be sentenced prior to giving evidence in Mr Irvine ‘s trial, because it might otherwise be suggested that he had coloured his evidence to favour the prosecution. It is not clear why Mr Cini has not sentenced before giving evidence against Mr Irvine. Mr Cini gave evidence at Mr Irvine’s trial on 15 February 2008 and was sentenced for the offence he had committed on 29 February. I have already referred to the evidence which Mr Cini gave at Mr Irvine’s trial.
Prior to final addresses counsel for Mr Irvine submitted that the judge should give a Faure warning in respect of Mr Cini’s evidence. Counsel said that Mr Cini had an incentive to shift the blame for the breach of occupational health and safety requirements as he was yet to be sentenced. He also relied on Mr Cini’s history of dishonesty offences. Counsel for the Crown submitted that it was unnecessary for a Faure warning to be given, because Mr Cini was not an accomplice and did not have a serious and substantial motive to minimize his involvement. The judge declined to give such a direction.
Counsel’s submissions
Counsel for the Crown relied on The Queen v Powercor (Australia) Ltd[75] in support of his submission that ground 2 was not made out. He submitted that the applicant was charged with a breach of a duty which was imposed on him personally and that Mr Cini was not a participant in that offence. Nor did he fall into the category of an unreliable witness. His convictions for dishonesty had occurred many years ago. In these circumstances no warning was required. He said that if ground 2 were accepted, a Faure warning would have to be given in every case involving prosecution of a company or an employee for breach of the Act if another employee gave evidence.
[75][2005] VSCA 163.
Counsel for the applicant submitted that the prosecutor’s reliance on The Queen v Powercor (Australia) Ltd was misplaced, because in that case the witness had not pleaded guilty to an offence, was not in conflict with the accused company, did not have an admitted opinion that the accused was to blame and did not have prior convictions for dishonesty. He submitted that the jury should have been warned of the potential unreliability of Mr Cini’s evidence.
He also submitted that his Honour made comments undermining counsel’s attack on Mr Cini’s credit. This was all the more damaging because his Honour had failed to give a direction on the relevance of good character to the applicant’s credibility. It was submitted that a miscarriage of justice had arisen as a result of the failure to give the good character direction, because of the suggestion by the prosecutor, which was repeated by the judge in his charge, that the applicant may have made up his evidence of the conversation with Mr Cini.
Conclusion
Director of Public Prosecutions v Faure[76] is authority for the proposition that a trial judge should warn the jury against the dangers of acting on the uncorroborated evidence of a witness, where the circumstances indicate that that evidence is potentially unreliable. The obligation to give such a warning is not confined to the evidence of witnesses falling into specific categories, for example, an accomplice of the accused or a prison informer, but arises wherever there is a perceptible risk of miscarriage of justice[77] if such a warning is not given.
[76][1993] 2 VR 497.
[77]See for example R v Miletic [1997] 1 VR 593, 605.
In R v Strawhorn[78] this Court referred to four aspects of that principle:
The first is that a perceptible risk is one that is real, or of substance, as opposed to a theoretical or insignificant risk. Secondly, the factors calling for the warning must be such that it would be unsafe to leave the jury to rely only upon the arguments of counsel. Thirdly, weight should be given by an appellate court to the judge’s assessment of what was necessary in the circumstances of the trial. Finally, the consequences of failure to give the direction depend upon whether, in the event, there has been a miscarriage of justice. In Bromley v R,[79] Brennan J in referring to the circumstances in which a warning is required stated:
‘The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer ... “partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind”: ... if the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the Court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given’.[80]
[78][2008] VSCA 101.
[79](1986) 161 CLR 315, 324.
[80][2008] VSCA 101, 162.
In The Queen v Powercor (Australia) Pty Ltd[81] Powercor was prosecuted for breach of the obligations imposed on it by s 21 of the Act, in that it had failed to provide adequate supervision for work being done by its linesmen at a specific location. Mr Kelly, who had dropped the switch wire which had resulted in a co-employee being electrocuted, gave evidence as to the circumstances leading to the accident.
[81][2005] VSCA 163.
On appeal, counsel for Powercor submitted that a warning should have been given because the crux of the prosecution’s case was that the company had failed to supervise Mr Kelly’s work, Mr Kelly had been indemnified by the prosecution and the defence case was that he did not require supervision because he was a trained and experienced linesman. The Court of Appeal held that it was not necessary for the trial judge to give a Faure warning to avoid a risk of miscarriage of justice. Cummins AJA said that:
Apart from the categorical occasions calling for a warning – which I have said do not apply – the need for a warning would arise where the witness may be afflicted by considerations unlikely to be apparent to a jury but known to the law through long experience. Mr Kelly was not such a case. The risk of affliction in his evidence would have been readily apparent to a jury as a matter of ordinary human understanding. More fundamentally the issue in the case was the question of supervision, not of Mr Kelly’s fault. In support of the contention … that a warning ought to have been given concerning the evidence of Mr Kelly, senior counsel for the applicant stated that ‘Defence counsel attributed blame to Kelly.’ The submissions on behalf of the applicant reveal a misconception of the operation of s 22 and of the nature and function of the Act. Section 22 and its allied sections are preventative and are directed to the duties of the employer. Mr Kelly’s fault if it be such was not the issue. Blaming the worker is as inappropriate in occupational health and safety as is blaming the victim in crime’.[82]
[82]Ibid [93].
In my opinion, that principle also applies in this case, although here the evidence of Mr Cini was relevant to Mr Irvine’s alleged breach of s 25(1)(a), rather than to Dynamic’s breach of duty as an employer. Mr Cini pleaded guilty to the offence of failing to take reasonable care for the health and safety of an employee, who might be affected by his acts or omissions. The fact that he was guilty of that offence did not mean that Mr Irvine could not also be found guilty of the same offence. Further, the fact that he may have had some motivation to minimise his contribution to Mr Mastek’s death and to place greater emphasis on Mr Irvine’s contribution to that death, would have been self-evident to the jury.
Nor do I accept the submission of counsel for the applicant that his Honour’s comments undermined the applicant’s arguments attacking Mr Cini’s credibility. His Honour told the jury that Mr Cini had admitted that fifteen years previously he had been convicted of offences of dishonesty, but had denied that he was lying about what he had said to Mr Irvine. His Honour noted that it had been put to Mr Cini that he was attempting to obtain the best possible sentence by shifting the blame from himself to Mr Irvine. His Honour said that this was a matter for the jury. His Honour said that the suggestion that Mr Cini was tailoring his evidence to get a better sentence should be considered in light of the fact that he had ‘made denial of the matters that are put in the question, and he should be assessed by you perhaps in the same way as any other witness’.
His Honour also told the jury that the reference to Mr Cini having been convicted of offences fifteen years ago could be taken into account in assessing Mr Cini’s credibility. His Honour then said ‘if he were represented here it would no doubt be pointed out that these matters were fifteen years ago and they did not involve anything like what he has pleaded to or what this case is about’.
It would have been preferable for his Honour not to have made that final comment. However, elsewhere in his reasons he clearly differentiated between comments and directions and told the jury that they were free to disregard his comments.
Counsel also complained that the judge had failed to extend the direction on good character to Mr Irvine’s credibility. In his jury charge his Honour referred to Mr Irvine’s evidence that he had not been convicted of any offences in the past. He said:
That evidence is led, as the lawyers say, in disproof of guilt. It is a rather odd way of saying it, but it bears directly on the probability of the accused having committed the offences, or one or other of them, with which he is charged.
Of course, good character cannot alter proven facts. However, it is evidence that you should consider along with other evidence in reaching a conclusion as to whether the facts relied upon the Crown have been proven to your satisfaction beyond reasonable doubt. Evidence of good character raises a presumption that the accused is not capable of committing a crime or crimes with which he is charged, but of course that presumption lasts only up to the point at which you find that in spite of that evidence the Crown has proved beyond reasonable doubt that the accused is guilty of the crime or crimes with which he is charged.
Although his Honour did not specifically relate Mr Irvine’s good character to his credibility, I do not consider that his failure to do so resulted in any miscarriage of justice. A judge is not obliged to direct a jury about an accused’s good character, although he or she has a discretion whether or not to do so after evaluating the probative significance of the evidence.[83]
[83]Melbourne v The Queen (1999) 198 CLR 1.
In these circumstances, I do not consider there was any risk that the jury would have taken account of Mr Irvine’s good character in assessing whether he had committed the offence, but then disregarded it in assessing his credibility.[84] Ground 3 therefore fails.
[84]See and compare R v Murphy (1985) 4 NSWLR 42, 54; R v Zecevic [1986] VR 797, 810.
Ground 4
This ground was as follows:
The verdict is uncertain in view of, and/or a miscarriage of justice resulted from, the learned judge’s failure adequately to particularise for the jury precisely what act or omission was relied on in proof of each count and the failure adequately to relate the evidence of such acts or omissions to the applicable law (Charge at T 353-359 & 406-411).
Counsel for the applicant submitted that in directing on the elements of the offences charged the judge did not particularise for the jury precisely what acts or omissions were relied on in proof of each count. It was said that the only particularisation of the elements in an attempt to relate the law to the evidence was in the judge’s summary of the prosecutor’s final address. Counsel for the respondent submitted that the charge was sufficient to make it clear to the jury the elements of the offence and to relate the facts to those elements.
Conclusion
To some extent Ground 4 recapitulates the complaint in Ground 2 that his Honour did not deal appropriately with the four points made by counsel for the applicant in his final address. I have already set out the relevant passages in his Honour’s reasons relating to that matter. For the reasons given in relation to Court 2, I consider that this ground is also made out.
For the above reasons I would allow Mr Irvine’s appeal. It is therefore unnecessary to consider Mr Irvine’s appeal against sentence.
The remaining matter to be considered is whether the Court should remit the matter for retrial or should exercise its discretion under s 568 of the Crimes Act 1958 to direct an acquittal.[85] If the Court were to order that the matter be remitted for retrial I would consider that the Crown should be held to the case which it ultimately relied upon at the trial – that is that Mr Irvine ‘intentionally led, directed or permitted’ Mr Mastek to get on to the roof unsafely. As I have already said, (see [107]) the Crown changed the basis of its case against Mr Irvine during the trial. It would be unfair for the Crown to change the basis of its case yet again,[86] if a retrial were ordered.
[85]AJS v The Queen (2007) 235 CLR 505, 516.
[86]Parker v The Queen (1987) 186 CLR 494, 520 (Dawson, Toohey and McHugh JJ); 539 (Kirby J).
In my opinion however, the Court should exercise its discretion to direct an acquittal. In King v The Queen[87] Dawson J (with whom Gibbs CJ and Murphy J agreed) said that:
It is well established that the discretion to order a new trial should not be exercised when the evidence in the Court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial ...[88]
[87](1986) 161 CLR 423.
[88]Ibid 433.
It is doubtful whether the evidence would warrant Mr Irvine’s conviction, assuming that the Crown was held to the case it relied upon below. However the Court’s discretion to direct a judgment and verdict of acquittal is not limited to the situation where the evidence is insufficient to permit a conviction. As Callaway JA said in R v Tadic:[89]
… there is no doubt that s 568(2) [of the Crimes Act 1958] confers a discretion which, in exceptional circumstances, may be exercised in favour of directing a judgment and verdict of acquittal even where it has not been held that the evidence at the trial was insufficient.[90]
In this case, six years have passed since the accident which led to Mr Irvine’s prosecution. Having regard to the weakness of the Crown case and to that delay,[91] I consider that the Court should exercise its discretion to order that a judgment and a verdict of acquittal be entered.
LASRY AJA:
[89][2003] VSCA 28.
[90]Ibid [24].
[91]Sams v R (1990) 46 A Crim R 468; Ibbs v R (2001) 122 A Crim R 377.
I also agree with Neave JA.
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