R v Irvine

[2009] VSCA 239

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:

1. I agree with Neave JA.

NEAVE JA:

1. 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…