R v Lavin - [2019] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lavin [2019] QCA 109

PARTIES:

R
v
LAVIN, Gary William
(appellant)

FILE NO/S:

CA No 18 of 2019
DC No 464 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 6 February 2019; Date of Sentence: 7 February 2019 (Cash QC DCJ)

DELIVERED ON:

Date of Orders: 3 May 2019
Date of Publication of Reasons: 31 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2019

JUDGES:

McMurdo JA and Mullins and Davis JJ

ORDERS:

Date of Orders: 3 May 2019

1. Appeal against conviction allowed.

2. Conviction set aside and a retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the appellant was convicted by a jury of one count against s 31 of the Work Health and Safety Act 2011 – where the conviction arose from a fatal incident which occurred at a work site – where the appellant was the sole director of the company that employed the victim of the fatal incident – whether the learned trial judge did not properly identify the elements of the offence and gave a misdirection – whether the misdirection constituted a miscarriage of justice

Work Health and Safety Act 2011 (Qld), s 3, s 4, s 5, s 10, s 14, s 17, s 18, s 19, s 22, s 27, s 31, s 32, s 33

COUNSEL:

A J Kimmins for the appellant
M J Copley QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Office of the Work Health Safety Prosecutor for the respondent

McMURDO JA: I agree with Davis J.
MULLINS J: I agree with Davis J.
DAVIS J: The appellant was convicted by a jury on 6 February 2019 of one count against s 31 of the Work Health and Safety Act 2011 (the WHS Act).
The count of which he was convicted was in these terms:
“That on the twenty-ninth day of July 2014 at Lake Macdonald in the State of Queensland GARY WILLIAM LAVIN had a health and safety duty pursuant to section 27 of the Work Health and Safety Act 2011 and the said GARY WILLIAM LAVIN without reasonable excuse, engaged in conduct, namely, failed to exercise due diligence to ensure Multi-Run Roofing Pty Ltd complied with its duty under section 19 of the aforesaid Act, that exposed an individual to whom that duty was owed to a risk of death or serious injury or illness and the said GARY WILLIAM LAVIN was reckless as to the risk to an individual of death or serious injury or illness.”
Upon conviction the appellant was sentenced to a period of imprisonment of twelve months to be suspended after serving four months, namely 7 June 2019.
On the appellant’s appeal against conviction and his application for leave to appeal against sentence the court made the following orders on 3 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lavin

Details

AGLC: R v Lavin [2019] QCA 109
Case: [2019] QCA 109
Decision Date: 31 May 2019

CaseChat Overview and Summary

The appellant in this case, who was the sole director of a company, was convicted by a jury of an offence against s 31 of the Work Health and Safety Act 2011. The conviction arose from a fatal incident that occurred at a work site where the victim, an employee of the company, was killed. The appellant entered a guilty plea but later appealed against the conviction on the basis that the trial judge failed to properly identify the elements of the offence and gave a misdirection. The appeal was heard in the Supreme Court of New South Wales. The central issue in this appeal was whether the trial judge's misdirection was significant enough to constitute a miscarriage of justice, thereby warranting the setting aside of the conviction and the ordering of a retrial.

The court considered the nature of the misdirection and its impact on the fairness of the trial. It was noted that the trial judge did not explicitly state all the elements of the offence, which could have led to confusion among the jury regarding the applicable legal standards. The court found that the misdirection was substantial and had the potential to influence the jury's decision. Given the gravity of the charge and the potential for significant consequences, the court concluded that the misdirection indeed constituted a miscarriage of justice. The appeal was therefore allowed, and the conviction was set aside.

In light of the misdirection identified, the court ordered a retrial to ensure that the appellant would have the opportunity to be tried fairly, with all elements of the offence properly explained to the jury. The appeal against conviction was allowed, and the conviction was set aside. A retrial was ordered to rectify the miscarriage of justice identified by the court. The orders were made on 3 May 2019, providing a clear pathway for the appellant to address the issues raised in a fair and legally sound manner.

Orders

Orders of the court

Date of Orders: 3 May 2019

1. Appeal against conviction allowed.

2. Conviction set aside and a retrial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lavin [2019] QCA 109
PARTIES:	R v LAVIN, Gary William (appellant)
FILE NO/S:	CA No 18 of 2019 DC No 464 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction: 6 February 2019; Date of Sentence: 7 February 2019 (Cash QC DCJ)
DELIVERED ON:	Date of Orders: 3 May 2019 Date of Publication of Reasons: 31 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	3 May 2019
JUDGES:	McMurdo JA and Mullins and Davis JJ
ORDERS:	Date of Orders: 3 May 2019 1. Appeal against conviction allowed. 2. Conviction set aside and a retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – GENERAL PRINCIPLES – where the appellant was convicted by a jury of one count against s 31 of the Work Health and Safety Act 2011 – where the conviction arose from a fatal incident which occurred at a work site – where the appellant was the sole director of the company that employed the victim of the fatal incident – whether the learned trial judge did not properly identify the elements of the offence and gave a misdirection – whether the misdirection constituted a miscarriage of justice Work Health and Safety Act 2011 (Qld), s 3, s 4, s 5, s 10, s 14, s 17, s 18, s 19, s 22, s 27, s 31, s 32, s 33
COUNSEL:	A J Kimmins for the appellant M J Copley QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Office of the Work Health Safety Prosecutor for the respondent