R v Moore

[2015] NSWCCA 316

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	REGINA v MOORE [2015] NSWCCA 316
Hearing dates:	29 April 2015
Date of orders:	15 December 2015
Decision date:	15 December 2015
Before:	Bathurst CJ at [1]; Simpson JA at [133]; Bellew J at [252]
Decision:	1. Appeal allowed. 2. Quash the stay granted by Whitford DCJ on 8 September 2014.
Catchwords:	CRIMINAL LAW – procedure – interlocutory orders – application for permanent stay of proceedings – jurisdiction for granting a stay - whether case was foredoomed to fail on the basis of no duty of care existing between the accused and the deceased CRIMINAL LAW – involuntary manslaughter by criminal negligence – duty of care – duty of care of employer to employee – duty of care of employee to fellow employee - statutory duty of care - novel duty of care - whether a duty of care could exist between the director and employee of a bricklaying company to protect against the collapse of a freestanding wall
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Code (WA) Occupational Health and Safety Act 1983 (NSW) Occupational Health and Safety Act 2000 (NSW) Occupational Health and Safety Amendment (Workplace Deaths) Bill 2005 (NSW) Road Transport Act 2013 (NSW) Road Transport (Safety and Management) Act 1999 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 Anns v Merton London Borough Council (1978) AC 728 Australian Iron and Steel Ltd v Ryan [1957] HCA 25; 97 CLR 89 Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111 Berger v Willowdale AMC (1983) 145 DLR (3d) 247 Brookfield Multiplex Ltd v Owners of Strata Plan No 61288 [2014] HCA 36; 88 ALJR 911 Burns v The Queen [2012] HCA 35; 246 CLR 334 Callaghan v The Queen [1952] HCA 55; 87 CLR 115 at 124 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 CSR Ltd v Wren (1997) 44 NSWLR 463 Deputy Federal Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd [1936] HCA 64; 57 CLR 610 Donoghue v Stevenson [1932] AC 562 Dupas v The Queen [2010] HCA 20; 241 CLR 237 English v Rogers [2005] NSWCA 327 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Grain Elevators Board (Vict) v Dunmunkle Corporation [1946] HCA 13; 73 CLR 70 Hamilton v Whitehead [1988] HCA 65; 166 CLR 121 Heaton v Western Australia [2013] WASCA 207; 234 A Crim R 409 Hunter Resources Ltd v Melville [1988] HCA 5; 164 CLR 234 Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23 Jones v United States of America 308 F 2d 307 (1962) Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295 King v The Queen [2012] HCA 24; 245 CLR 588 Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 Macaree v The State of Western Australia [2011] WASCA 207 Maxwell v The Queen [1996] HCA 46; 184 CLR 501 Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 Mitchell v Glasgow City Council [2009] 1 AC 874 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 Nelson (a Pseudonym) v Director of Public Prosecutions (Cth) [2014] VSCA 217 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 Nydam v R [1977] VR 430 O’Brien v Dawson [1942] HCA 8; 66 CLR 18 Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 R v Evans (Gemma) (2009) 1 WLR 1999 R v McGee [2008] SASC 328; 190 A Crim R 521 R v Miller [1983] 2 AC 161 R v Peters and Heffernan (1995) 83 A Crim R 142 R v Petroulias (No 1) [2006] NSWSC 788; 177 A Crim R 153 R v Rimmington, R v Goldstein [2005] UKHL 63; [2006] 1 AC 459 R v Seiders; R v Somsri [2008] NSWCCA 187; 72 NSWLR 417 R v Smith (1995) 1 VR 10 R v Taktak (1988) 14 NSWLR 226 R v Troy Anthony Cameron (Court of Criminal Appeal (NSW), 27 September 1994, unrep) RJP v R [2014] VSCA 290 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Smith v The Queen [1994] HCA 60; 181 CLR 338 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Tame v New South Wales [2002] HCA 35; 211 CLR 317 The Anonity (1961) 2 Lloyd’s Rep 203 The Queen v Glennon [1992] HCA 16; 173 CLR 592 The Queen v Lavender [2005] HCA 37; 222 CLR 67 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Walton v Gardiner [1993] HCA 77; 177 CLR 378 Wilson v The Queen [1992] HCA 31; 174 CLR 313 Yuille v B&B Fisheries (Leigh) Ltd (1958) 2 Lloyd’s Rep 596
Texts Cited:	Brent Fisse, Howard’s Criminal Law (5th ed 1990, Law Book Company) Sir James Fitzjames Stephen, A History of the Criminal Law of England, (1883, MacMillan and Co), vol III Peter Gillies, Criminal Law (4th ed 1997, LBC Information Services)
Category:	Principal judgment
Parties:	Crown (Appellant) Wayne Moore (Respondent)
Representation:	Counsel: P Ingram SC / H Baker (Appellant) K Ginges (Respondent) Solicitors: Director of Public Prosecutions (Appellant) John B Hajje and Associates (Respondent)
File Number(s):	2013/236949
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 08 September 2014 Before: Whitford J File Number(s): 2013/00236949

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Wayne Moore (the respondent) was an experienced bricklayer and the sole director and permanent employee of KLA Bricklaying Pty Ltd (KLA). In respect of a development in Bondi, KLA employed Mr David Hands (the deceased) as an additional part time bricklayer.

On 12 June 2003, the deceased commenced working on the construction of a kitchen dividing wall. On 16 June 2003, when the wall was freestanding and at a ceiling height, neither braced, nor attached, nor supported by any other structure, the wall collapsed on the deceased. The deceased died from the collapse.

By indictment presented in August 2014, the respondent was charged with involuntary manslaughter for unlawfully killing the deceased. The Crown case was essentially that the respondent owed a legal duty of care to the deceased and his omission to cause the wall to be braced or otherwise provide it with lateral support was a breach of that duty sufficiently serious to constitute gross criminal negligence.

Following argument on this issue at trial, and before the Crown prosecutor had concluded his opening to the jury, the trial judge ruled that there was no duty owed by the respondent to the deceased which could form the basis of the charge. As a consequence, in September 2014, the trial judge granted a permanent stay of proceedings. The Director of Public Prosecutions (the appellant) appealed against the grant of the stay.

The primary issue on appeal was whether, on the Crown case taken at its highest, there was a proper basis upon which the respondent could be held to have owed a duty of care to the deceased.

The Court held (Bathurst CJ, Simpson JA dissenting, Bellew J writing separately), allowing the appeal and dismissing the application for a stay of the proceedings:

1 Involuntary Manslaughter by Criminal Negligence

(i) In order for involuntary manslaughter by criminal negligence to arise, the accused must owe a duty of care to the deceased, i.e. a legal duty to act in a particular way, which was breached in a gross fashion, meriting criminal punishment: [11], [64] (Bathurst CJ); [140], [142]-[144] (Simpson JA).

Nydam v R [1977] VR 430; Wilson v The Queen [1992] HCA 31; 174 CLR 313; The Queen v Lavender [2005] HCA 37; 222 CLR 67; King v The Queen [2012] HCA 24; 245 CLR 588; Burns v The Queen [2012] HCA 35; 246 CLR 334; R v Taktak (1988) 14 NSWLR 226

2 The Functions of Judge and Jury

(i) The existence of a duty of care is a question of law to be determined by the trial judge rather than the jury. Where the existence of a duty is in dispute, it will be necessary to direct the jury that only if certain facts are found, but not otherwise, will a duty exist: [12] (Bathurst CJ); [148], [153], [190] (Simpson JA).

Burns v The Queen [2012] HCA 35; 246 CLR 334; R v Troy Anthony Cameron (Court of Criminal Appeal (NSW), 27 September 1994, unrep); R v Evans (Gemma) (2009) 1 WLR 1999

3 Whether there was a statutory duty of care based on s 20 of the Occupational Health and Safety Act 2000 (NSW) (‘the Act’)

(i) The breach of a statutory duty can form the basis of the offence of involuntary manslaughter by criminal negligence. However, the offence is only available for serious contraventions where the degree of negligence is so serious that the trier of fact would regard it as deserving of punishment as a criminal offence: [76], [82] (Bathurst CJ); [255] (Bellew J).

R v Taktak (1988) 14 NSWLR 226; Heaton v Western Australia [2013] WASCA 207; 234 A Crim R 409; Macaree v The State of Western Australia [2011] WASCA 207

(ii) The question in the present case is whether the legislature intended to limit an employee’s liability to the penalties contained in the Act or also subject an employee to potential liability for manslaughter. This question is to be determined by a construction of the whole Act and the circumstances in which it was enacted, including the pre-existing law: [89]-[90] (Bathurst CJ); [255], [257] (Bellew J).

Australian Iron and Steel Ltd v Ryan [1957] HCA 25; 97 CLR 89

(iii) The legislature did not intend for a contravention of s 20 to give rise to liability for manslaughter for the following reasons: s 20 may impose a duty where one would not be imposed at common law; s 20 provided its own penalty for contravention; the Act provided extensive powers of investigation; the Act provided that prosecutions could only be instituted by a limited number of persons; the Act required prosecutions to be commenced within 2 years of the offence; the Act empowered the Court to make orders over and above the imposition of penalties: [89], [92]-[94] (Bathurst CJ); [255], [257] (Bellew J).

(iv) In concluding that the legislature, when it originally enacted s 20, did not intend for a gross breach of the provision to constitute manslaughter, it is legitimate to have regard to subsequent amendments. However, amending legislation cannot be used as an aid to interpretation in respect of a provision which is unambiguous and care must be taken to ensure that words in a later statute have not been inserted to remove possible doubt. In the present case, subsequent amendments to the Act, introducing the offence of reckless contravention of Pt 2 (including s 20) tend to confirm that the legislature did not intend a breach of s 20 to give rise to liability for manslaughter: [95], [98], [99] (Bathurst CJ); [256], [257] (Bellew J).

Grain Elevators Board (Vict) v Dunmunkle Corporation [1946] HCA 13; 73 CLR 70; Hunter Resources Ltd v Melville [1988] HCA 5; 164 CLR 234; Deputy Federal Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd [1936] HCA 64; 57 CLR 610; Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295; Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203; R v Seiders; R v Somsri [2008] NSWCCA 187; 72 NSWLR 417

(v) (Simpson JA in dissent) The issue is first whether, on the Crown case, the respondent was under a statutory duty of care to the deceased and second, whether this duty required him to take steps to brace the wall. In answer to the first question, Section 20 of the Act imposes a duty that is capable of giving rise to a charge of manslaughter. The answer to the second question depends on the facts as they arise at the trial, to be determined by the jury: [218] (Simpson JA).

4 Whether there was a common law duty of care

(i) The mere fact that a person is a director of a corporation does not found a duty to provide a safe system of work for the corporation’s employees. The effect of Andar is not to preclude the imposition of a duty on an employee who is also a director to take reasonable steps to prevent harm to fellow employees, regardless of the circumstances in which the duty is said to arise: [68], [74]-[75] (Bathurst CJ); [193]-[194] (Simpson JA).

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424; Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1; CSR Ltd v Wren (1997) 44 NSWLR 463; English v Rogers [2005] NSWCA 327; TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471

(ii) It would be open to the trial judge to find that the respondent was under a duty to the deceased to take reasonable care to avoid the risk to the deceased from the potential collapse of the wall. A duty of care could arise if the following facts were established beyond reasonable doubt:

a That a reasonable person in the position of the appellant would foresee a risk of serious injury being occasioned to the deceased by reason of the wall not being braced.

b That the deceased was vulnerable in the sense that he was unaware of the danger presented by the unbraced wall.

c That the respondent had assumed responsibility for safety on the site.

d That the respondent had control over the site and the ability to direct that steps be taken to secure the wall.

That the wall could be braced at little cost or inconvenience.

[111]-[116], [121] (Bathurst CJ); [243] (Simpson JA); [259], [260] (Bellew J).

Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649; Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16; Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1; Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180; Brookfield Multiplex Ltd v Owners of Strata Plan No 61288 [2014] HCA 36; 88 ALJR 911

5 The Grant of a Stay

(i) A stay of criminal proceedings will only be granted in an extreme case. The jurisdiction exists at least where the Crown case can be said to be foredoomed to fail. When applying this test, the Court must consider the prosecution case at its highest, on the basis that the Crown witnesses are accepted and all inferences favourable to the prosecution are drawn. Therefore, the question in this case is whether, accepting the Crown case at its highest, any attempt to establish that the respondent owed a duty of care to the deceased was foredoomed to fail: [15]-[21], [26] (Bathurst CJ).

Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111; Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23; The Queen v Glennon [1992] HCA 16; 173 CLR 592; Dupas v The Queen [2010] HCA 20; 241 CLR 237; Walton v Gardiner [1993] HCA 77; 177 CLR 378; R v Smith (1995) 1 VR 10; Nelson (a Pseudonym) v Director of Public Prosecutions (Cth) [2014] VSCA 217; RJP v R [2014] VSCA 290; R v McGee [2008] SASC 328; 190 A Crim R 521

(ii) The procedural history of the matter reveals that there has been inordinate delay in bringing the matter to a hearing, it is not clear whether the Crown proposed to rely on the respondent’s statement to the WorkCover Investigator and it is highly undesirable to proceed with a common law offence when statutory provisions are available, or as a substitute for them when the limitation period has expired. However, as none of these matters were in issue, it is for the prosecution to consider whether it wishes to proceed with a charge. Thus, the appeal should be allowed and the stay should be quashed: [123]-[132] (Bathurst CJ).

R v Rimmington, R v Goldstein [2005] UKHL 63; [2006] 1 AC 459; Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23

(iii) The procedural history and necessity to act with fairness towards a defendant in criminal proceedings provides some support for exercising a discretion to dismiss the appeal. However, these factors must be balanced with others, including the seriousness of the allegations and consequences which flowed from the incident. Thus, on the balance, as the decision of the trial judge was erroneous, the appeal should be allowed and the order granting the stay should be quashed: [265]-[267] (Bellew J).

(iv) (Simpson JA in dissent) While ordinarily a decision to prosecute lies exclusively in the jurisdiction of the executive, occasionally that principle conflicts with the necessity for the judiciary to protect its processes against misuse. On balance, taking into account relevant considerations such as fairness to the accused, notwithstanding that the appellant has established that the decision to order a stay was erroneous at the time it was made, the appeal should be dismissed: [250] (Simpson JA).

Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111; Maxwell v The Queen [1996] HCA 46; 184 CLR 501; Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265; R v Peters and Heffernan (1995) 83 A Crim R 142

Judgment

1. BATHURST CJ: The respondent, Mr Wayne Moore (the respondent), an experienced bricklayer, was the sole director and permanent employee of KLA Bricklaying Pty Ltd (KLA).

2. By a contract dated 29 March 2003, KLA agreed to provide bricklaying services in respect of the construction of a residential apartment development at 6 Military Road, North Bondi (the development).

3. In respect of the development, KLA employed a part time bricklayer, Mr David Hands (the deceased), as an additional bricklayer.

4. On 12 June 2003, the deceased commenced working on the construction of a kitchen dividing wall, which, by 13 June 2003, was completed to a ceiling height. On that date, until 16 June 2003, it was a freestanding wall, neither braced, nor attached, nor supported, by any other part of the structure.

5. On 16 June 2003, the deceased was walking towards a toolbox he had left near the wall. The wall collapsed and fell on him, as a result of which he died.

6. By an indictment presented on 4 August 2014, the respondent was charged with unlawfully killing the deceased. The indictment relied on s 18(1)(b) of the Crimes Act 1900 (NSW), the charge being one of involuntary manslaughter. The Crown case was essentially that the respondent had a legal duty of care to the deceased and his omission to cause the wall to be braced or otherwise provide it with lateral support constituted gross criminal negligence. In the Crown case statement, the following particulars were given in regard to the duty of care and its content and standard:

“Duty of care

27.   The accused was the deceased’s employer. This relationship gives rise to the accused owing the deceased a legal duty of care.

Content & Standard of care

28.   The scope of the duty owed by the accused to the deceased was an obligation to take reasonable care to avoid exposing the deceased to an unnecessary risk of injury.

29.   The standard of care required of the accused was that of a reasonable employer in the position of the accused in 2003, who was exercising a fair and reasonable standard of care and competence in his employment of the deceased.”

7. The breach was particularised as follows:

“The breach of duty

30.   The accused breached his duty of care towards the deceased by omitting to act such that an internal brick wall at 6 Military Road, North Bondi (constructed in the kitchen of Apartment 1 of Lot 6 as depicted in part plan 1697) was left standing without adequate lateral support or adequate bracing or was otherwise inadequately supported such that it was at risk of collapse. This was a continuous course of neglect from Thursday 12 June 2003 to Monday 16 June 2003.”

8. Following the opening by the Crown to the jury, the trial judge inquired about the basis on which it was said that the respondent owed a duty of care to the deceased. Initially, it was suggested by the Crown that the source of the duty resided in the relationship of employer and employee. However, the Crown reformulated its case during argument on whether the respondent owing a duty to the deceased was a necessary prerequisite to a conviction for the offence. The primary judge described the duty, as reformulated, as follows:

“whatever the full scope of its content the duty allegedly personally owed by the accused to the deceased included a legal obligation to act so as to found liability for the omission relied upon, that is, the failure to ensure that the wall was left standing with adequate lateral support or bracing.”

9. Following argument on this issue, the trial judge concluded that there was no common law duty owed by the respondent to the deceased which could form the basis of the charge. As a consequence, on 8 September 2014, the trial judge granted a permanent stay of the proceedings.

10. The Director of Public Prosecutions (the appellant) has appealed against the grant of a stay pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW).

Some preliminary matters

11. It was common ground between the parties that for liability for manslaughter of this nature to arise, the accused had to owe a duty to the deceased, which was breached in a gross fashion, meriting criminal punishment.

12. The parties agreed that the question of the existence of a duty of care was a question of law to be determined by the trial judge rather than the jury. That approach was correct: Burns v The Queen [2012] HCA 35; 246 CLR 334 at [20]; R v Troy Anthony Cameron (Court of Criminal Appeal (NSW), 27 September 1994, unrep) per Finlay J, Abadee and Simpson JJ agreeing; R v Evans (Gemma) (2009) 1 WLR 1999 at [39], [45]. As was pointed out in the latter case, there will be many instances where the existence of a duty is not in dispute. In more complex cases, however, it will be necessary to direct the jury that only if certain facts are found, but not otherwise, will a duty exist: Evans (Gemma) at [39], [45]; Burns at [20].

13. This division of the functions of judge and jury gives rise to particular difficulties in the present case. The argument before the trial judge took place prior to any evidence having being tested and in circumstances where, unsurprisingly, there was no agreed statement of facts, pleadings or any other document which set out the basis on which the Crown contended that the duty existed. It is necessary to consider the principles which should be applied where a stay is sought in circumstances such as those in the present case.

The principles applicable to the grant of a stay

14. No submission was made to the trial judge that the course upon which he embarked was inappropriate. Further, once the trial judge had concluded that (on the balance) a duty of care did not arise, the parties accepted that the grant of a stay was the appropriate order.

15. For my part, I have some doubt about whether the course of action taken was appropriate. It has been frequently stated that a stay of criminal proceedings will only be granted in an extreme case: Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111; Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23 (Jago) at 34; The Queen v Glennon [1992] HCA 16; 173 CLR 592 at 605-606; Dupas v The Queen [2010] HCA 20; 241 CLR 237. However, the jurisdiction exists at least where the case in question can be said to be foredoomed to fail.

16. In Walton v Gardiner [1993] HCA 77; 177 CLR 378, the plurality, citing Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 128-130, made the following remarks (at 392-393):

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.”

17. Walton v Gardiner was a civil case, but the principle stated in it has been held to extend to criminal cases. In R v Smith (1995) 1 VR 10 (Smith), the Appeal Division of the Supreme Court of Victoria, in setting aside an order by the primary judge that proceedings be permanently stayed, emphasised the limited basis on which the discretion should be exercised. Brooking J summarised the position as follows at 14-16:

“It must now, it seems, be taken to be established, not only in the United Kingdom but also in Australia, that if civil or criminal proceedings are brought without reasonable grounds the prosecution of those proceedings is an abuse of process and may be stayed as such. Numerous expressions have been used.

So the cases speak of proceedings brought without reasonable grounds, groundless proceedings and manifestly groundless proceedings. In Barton v R (1980) 147 CLR 75 at 96-7, Gibbs ACJ and Mason J, in reasons concurred in by Stephen J at 103, and Aickin J at 109, spoke of criminal proceedings brought without reasonable grounds; the passage is cited in Jago v District Court of New South Wales (1989) 168 CLR 23, by Brennan J at 46, and Gaudron J. at 75. Some of the expressions used in relation to civil proceedings are collected by Barwick CJ in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125. Other examples might be given of expressions used from time to time. So in Shackleton v Swift [1913] 2 KB 304 at 312 Vaughan Williams LJ said that an action might be stayed if there was ‘plain reason why it must fail’. The decision of the High Court in Walton v Gardiner (1993) 177 CLR 378 shows that whether the proceedings are civil or criminal the test is the same when one is considering whether the proceedings are an abuse of process by reason of the fact that they cannot succeed. Civil or criminal proceedings are an abuse of process, not if it can be said of them only that they will very likely fail, but if it can be said of them that it is quite clear that they must inevitably fail. So it was laid down in Walton v Gardiner by Mason CJ, Deane and Dawson JJ at 393 that proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. This formulation does not differ in substance from that of Brennan J at 411 (‘proceedings which will inevitably and manifestly fail’).

With regard to civil proceedings, there has been some difference of approach on the sense in which a point must be unarguable so as to enable the view to be reached that the proceeding is doomed to failure. I entertain no doubt, however, that, putting the matter at its lowest from the point of view of the prosecution, criminal proceedings are not shown to be an abuse of process as brought without reasonable grounds merely because a judge concludes that the better view is that a case to answer has not been, or will not be, made out. At the very least it would have to be laid down, in favour of the prosecution, that if it was fairly arguable that a case to answer had been, or would be, made out, the criminal proceedings were not ‘manifestly groundless’ or ‘brought without reasonable cause" or "clearly foredoomed to fail’.

It is one thing to suggest that criminal proceedings are clearly doomed to failure because on the undisputed facts it is plain that some affirmative defence exists or even because it is plain that the Crown has no evidence whatever which might be said to go towards proving some essential element of the offence. It is another thing where the contention is only that the Crown will probably fail on the facts because the foundation of its case on the facts is ‘slender’, to use the word chosen by Dixon J in relation to civil proceedings in Cox v Journeaux (No. 2) at 720. Such a contention obviously cannot be advanced in order to show that civil or criminal proceedings should be stayed as an abuse of process. But what if the contention, as in the present case, is that the evidence which will be relied on by the Crown to prove some essential element of the crime is not sufficient to enable the jury to be satisfied beyond reasonable doubt? I know of no previous case, reported or unreported, in which it has even been argued by an applicant, let alone judicially determined, that a civil or criminal proceeding should be stayed as an abuse of process because it will not be possible for the plaintiff or prosecution to prove some fact essential to the judgment sought. There is to be found an example of an application for a stay of proceedings on an indictment based on the contentions that the delay was such that the trial would be unfair and an abuse of process and that in any event any conviction on the evidence available would be unsafe and unsatisfactory.

As to the second matter, the submission was that the credibility of the two most important Crown witnesses was such that it would not be proper for the jury to rely on any of their evidence. The court dismissed an appeal against the refusal of a stay and in doing so drew attention to the difficulty arising where a court was asked to rule, in advance of the trial, on whether the jury could rely upon the evidence of given witnesses: R v Knox (unreported, New South Wales Court of Criminal Appeal, 29 September 1989).

It may be - we need not decide this - that in a quite exceptional case, where it was plain beyond argument that there was no evidence available of some essential element of the crime, a trial judge, being satisfied of this at the outset, could properly determine that the prosecution should be stayed as an abuse of process. If such an application for a stay was made, it may be that the trial judge would have a discretion to decide whether to deal with the application on the merits or to conclude that the interests of justice would be better served by allowing the prosecution to proceed to the point at which a no case submission could be made. But the present is not at all that kind of case.”

18. Eames J, agreeing with the formulation of the test by Brooking J, emphasised (at 41) “that it must be clear beyond argument that the Crown is unable to make out a case to answer, having regard to the evidence available to it”.

19. Byrne J reached a similar conclusion. His Honour made the following remarks (at 28-29):

“To my mind, however, the no case test simpliciter is not the appropriate one for a case such as the present. It is evident from the expressions used in the passages quoted above from Walton v Gardiner that, for a successful stay application of the kind before us, the case must be not merely incapable of success but ‘clearly foredoomed to fail’; or in the words of Brennan J the vice is the institution of proceedings ‘which will inevitably and manifestly fail’. The intent of these emphasised words is indicated by the cases cited by the court in support of those passages: Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-1; Cox v Journeaux (No. 2) (1935) 52 CLR 713; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 84, 91-2; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125. These are all civil proceedings where it is emphasised by the court that the power should be exercised sparingly and only in a clear case. It is sufficient that I refer to the dictum of Dixon J in Cox v Journeaux (No. 2) at 720:

‘The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.’

The application of these principles to a criminal proceeding poses further difficulties. First, there are no pleadings properly so called. This means that the practice of determining the prospect of success of the prosecution with little or no reference to the available evidence cannot be adopted. Secondly, it cannot be ignored that the Crown in a criminal trial does not stand in exactly the same position as a plaintiff in civil litigation. The wisdom of a decision to prosecute or to prosecute for a specific offence is not, properly speaking, a matter for the court: Barton v R (1980) 147 CLR 75.

….

In my view, in a case such as the present, the power to order a permanent stay of a criminal proceeding before the court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice.

Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution. …”

20. The decision in Smith was reversed by the High Court on the basis that the Appeal Division had no jurisdiction to entertain the appeal: Smith v The Queen [1994] HCA 60; 181 CLR 338. However, it was not suggested that the principles applied by the Appeal Division were incorrect. The principles laid down in Smith have been applied subsequently on at least two occasions by the Court of Appeal in Victoria: Nelson (a Pseudonym) v Director of Public Prosecutions (Cth) [2014] VSCA 217; RJP v R [2014] VSCA 290.

21. In R v McGee [2008] SASC 328; 190 A Crim R 521, each of Doyle CJ (at [85]) and White J (at [291]) cited Smith with approval. Doyle CJ went on to state that when applying the test in question, the Court must consider the prosecution case at its best and highest, on the basis the Crown witnesses are accepted and all inferences favourable to the prosecution are drawn. He stated that the test was stricter than that applied in considering whether there was no case to answer: at [88]. White J expressed a similar conclusion (at [291]).

22. As was pointed out in the judgment of Byrne J in Smith, in the passage cited above, one reason for the test being a stringent one is that if it were not, the Court would be interfering with the discretion of the Director of Public Prosecutions to bring proceedings. A similar approach was taken by Doyle CJ in McGee. His Honour made the following remarks (at [87]):

“[87]   The reason why the test for a stay of proceedings on this basis must be a stringent one is apparent. If it were not, the Court would be interfering with the decision of the DPP to institute proceedings, and would begin to assume the role of a supervisory authority in relation to those decisions. It is for the DPP to decide whether a charge should be laid, and what charge should be laid. It is the function of the trial judge to preside over that trial, the jury returning its verdict on the charges (unless it is a trial by judge alone). The trial of a charge is not to be precluded because, in the opinion of the presiding judge, the case is a weak one, or even because in the opinion of the trial judge the case is likely to fail. As I said, the function of the Court is to hear the charge, unless there are truly exceptional circumstances that warrant the Court staying the proceedings at the outset.”

23. In R v Petroulias (No 1) [2006] NSWSC 788; 177 A Crim R 153, Johnson J adopted a similar approach: at [71]-[78].

24. The approach is consistent with the fact that the grant of a permanent stay is an exceptional remedy. It is also in line with the public interest in serious allegations, of the nature of those made in the present case, being disposed of on the merits: Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 at [32].

25. The decision of the trial judge to grant a stay, in circumstances where he stated that many of the considerations relied upon by the Crown created an arguable case for concluding that the accused owed a duty of care, but on the balance, a duty did not exist, sits uneasily with the approach mandated by these authorities. It is true that the trial judge was determining a question of law, but, having regard to the way that the Crown put its case, the answer to the question depended to a significant extent on the facts relied on by the Crown. In these circumstances, the stringent test laid down in the authorities should have been applied.

26. However, no consideration was given to the matter by counsel for either party, either before the trial judge or on the hearing of the appeal. If only for that reason, it is necessary for this Court to consider the issue of whether, taking the Crown case at its highest and assuming that all of the evidence tendered before the judge on the hearing of the application will be admissible at the trial, any attempt to establish that the respondent owed a duty of care to the deceased was foredoomed to fail.

The factual background

27. The trial judge made the following findings, which were not contested for the purpose of the appeal.

1. It would be open for a jury to find that the cause of the deceased’s death “was a failure to brace the freestanding wall so as to give it lateral support until such time as the other features of the development that would eventually give it stability were in place”.

2. It would be open for a jury to find that the respondent “was aware that the wall was unsupported. He likely would have been well aware of that from his own presence and activity on the site and his supervision of KLA’s other two employees”.

3. Having regard to his long experience as a bricklayer, it was also open for a jury to find that the respondent “knew or ought to have known that the wall, if left unsupported, posed a potential risk to the safety of workers on the site” or anyone visiting the site for any other reason.

4. It was open to the jury to find that the respondent “consciously and voluntarily, but without any intention of causing direct or grievous bodily harm, made the decision either that it was unnecessary to brace the freestanding wall or, at least, that it would not be done for whatever reason”.

28. The trial judge also referred to the “Bricklayers Safety Plan” (Safety Plan), completed and signed by the respondent. He pointed out that the Safety Plan contained the following statement:

“As we build the structure we will make sure that it remains stable and secure from collapse which may be caused by weather, wind, subsidence, construction loads, live loads and the premature removal of temporary bracing or temporary propping.”

29. The trial judge also referred to the fact that the Safety Plan made provision for the nomination of a person responsible for occupational health and safety. He pointed to the fact that against the call for the nomination were the handwritten words, “as above”, stating that it was ambiguous as to whether this referred to the respondent or to KLA. It seems to me that, for the purpose of this application, it should be assumed in favour of the appellant that in signing this document, the respondent was referring to himself as the person responsible.

30. The trial judge also referred to the statement by the site foreman, Mr Didio, to the effect that he observed that the wall had not been braced and suggested to the respondent that a lintel bar be used to support the wall. In his statement, Mr Didio claimed that the accused said something to the effect of, “No, that’s fine. I have done heaps of them. It will be all right”. That statement was to be disputed at trial. However, for the purpose of this application, it should be assumed that the Crown will be able to establish that the conversation occurred.

31. The primary judge also referred to expert evidence which was proposed to be called by the Crown. This evidence was to the effect that the wall was “unstable”, “extremely vulnerable to overturning from wind load” and “teetering on the verge of collapse”.

29. A statement by the respondent was also tendered. The statement said that the respondent regarded the deceased as a highly competent bricklayer and that he thought that the deceased “had been laying bricks for about forty years”. He also stated that the wall in question, the internal kitchen wall, was built by the deceased.

30. In addition, a record of interview of the respondent by WorkCover NSW was relied upon. In the course of that interview, the respondent indicated that he was aware of the Masonry Structures Code, which stated that “Masonry under construction shall be braced or otherwise stabilized as necessary to resist wind or other lateral forces, in such a manner that the structural integrity of the member is not impaired”. The respondent was asked who he believed had the responsibility to ensure that bracing conforming with that clause was in place. He responded that he did not know, but said that if he thought it was needed, he would supply the bracing. However, he stated that he did not believe that the wall in question needed to be braced.

31. In the respondent’s Workcover NSW interview, he again stated that the wall was constructed by the deceased. He also stated, in answer to a question as to who had the responsibility to ensure that any temporary bracing was in place, that if he thought it was needed, he would have supplied the bracing. However, he also said that he did not really understand how the wall collapsed. He stated that he had been laying bricks for 25 years in the United Kingdom and Australia and this was the first time that he had seen a wall blown over or collapse three days after construction, in a reasonably sheltered area.

The reasoning of the trial judge

35. The trial judge made the findings to which I have referred in par [27] above. Referring to Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 (Andar), he pointed out that the duty of care for the health and safety of employees is primarily, if not exclusively, owed by the employer and in the case of a corporate employer, owed by the company itself and not its directors. He pointed out that absent sham, “the doctrine applies even in the case of a sole director/shareholder company”.

36. The trial judge identified the Crown case as asserting that the respondent owed a duty of care to the deceased which was, for all intents and purposes, co-extensive with the obligations owed to the deceased by his employer, KLA. He referred to the Crown’s reliance on the decision of the Ontario Supreme Court in Berger v Willowdale AMC (1983) 145 DLR (3d) 247 (Berger), in which Cory JA (as his Honour then was) found that the president and sole shareholder of a corporation, which was the employer of the appellant, was personally responsible for making the appellant’s workplace reasonably safe, the duty arising because the president was in control of the situation. The trial judge referred to the fact that the Crown relied on 12 matters, which it submitted made the present case analogous to Berger:

“1.   The accused is the sole operator, director and owner of the company KLA.

2.   The accused had been a bricklayer since 1979.

3.   On 29 March 2003, the accused, as a director of KLA, signed a contract to lay bricks at the development.

4.   KLA had no permanent employees apart from the accused himself.

5.   KLA employed the deceased as a bricklayer and also employed a labourer to work on the development.

6.   The accused had known the deceased since 1988.

7.   The accused had direct daily dealings with the employees. He recruited them and worked alongside them on the development.

8.   The accused was on site making decisions concerning the business of KLA. He directed or influenced the work carried out by its employees on site, including the work of the deceased.

9.   Due to the geometry of the wall it was in a very unstable equilibrium. Its geometry and the presence of the damp proof course meant that the wall was teetering on the verge of collapse.

10.   The accused had management and control of KLA’s undertaking on site. The accused was directly approached by the site foreman, Mr Didio, concerning the stability of the wall. The Crown case is that Mr Didio raised the suggestion of using a lintel bar to support the wall and the accused allegedly responded in the way I have earlier outlined.

11.   The wall collapsed on Monday, 16 June 2003 when the accused was on site with the deceased.

Finally,

12.   The means by which the wall could have been stabilised or supported were available and would have been easy to erect. Other walls on the site were braced using simple systems.”

37. The trial judge stated that the approach reflected the “evaluative” or “salient features” approach to the imposition of a duty, outlined by Allsop P (as his Honour then was) in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 (Stavar) at [102]-[103] (sometimes described as a multifaceted approach).

38. The trial judge stated that many of the considerations relied upon by the Crown, when taken together with such of the additional factors outlined by the President in Stavar as applied, created an arguable case for concluding that the respondent owed a personal duty to the deceased. However, he stated that taking into account the comments in Burns that courts must be circumspect in identifying relations that give rise to a previously unrecognised obligation to act, he concluded that, on the balance, the respondent did not owe the duty contended for. He stated that two factors, in particular, pointed against the existence of such a duty. First, the fact that the Occupational Health and Safety Act 2000 (NSW), as then in force (the Act), governed the liability of the respondent by imposing liability directly on directors and managers to ensure the health, safety and welfare of employees. The second factor was that through principles of accessorial liability, the law already provided a means by which the respondent might conceivably be held accountable for breaches of any duties owed by KLA or for crimes committed by it.

The parties’ submissions

39. The appellant (Crown) relied on three grounds of appeal, each of which essentially asserted that the duty in question arose in different ways.

40. It was first contended that the respondent was under a statutory duty as an employee, pursuant to s 20(1) of the Act, to take action that was necessary to ensure that the wall was properly stabilised. Further, the appellant submitted that the respondent had a duty, under s 20(2) of the Act, to take action in response to the inquiries by Mr Didio, the site foreman.

41. The appellant referred to the judgment of Yeldham J in R v Taktak (1988) 14 NSWLR 226 at 243-244, where his Honour cited with approval the remarks of the United States Court of Appeal, District of Columbia Circuit in Jones v United States of America 308 F 2d 307 (1962) (Jones), to the effect that liability for involuntary manslaughter could arise if a statute imposed a duty to care for another. The appellant submitted that the effect of the Act was to impose a relevant statutory duty sufficient to ground the offence of involuntary manslaughter.

42. It was not entirely clear whether this submission was maintained at the hearing. Ultimately, the position of the appellant appeared to be that s 20 of the Act, to use the expression of senior counsel for the appellant, “illuminates” the underlying duty.

43. The respondent submitted that s 20 of the Act was a statutory penalty provision and an alleged breach could not be used as a mechanism to found an allegation of criminal negligence for the purpose of a charge of manslaughter by criminal negligence. He pointed out that there was a two year limitation on the bringing of proceedings and, at the time the incident occurred, the only statutory penalty was a fine. He pointed out that subsequent to the events in question, s 32A of the Act was introduced, which created the offence of reckless breach of the duties imposed under Pt 2 of the Act (which included s 20) causing death, providing a maximum penalty of five years imprisonment. He submitted that even if the amendments were taken into account, it would be anomalous to rely on a contravention of s 20 to found a charge of involuntary manslaughter by criminal negligence.

44. The second basis on which it was said that a duty of care arose (encompassed in ground 2 of the grounds of appeal) was that “the Respondent had played a direct central causative part in the sequence of events which gave rise to the risk that the wall might collapse”. The appellant submitted that the respondent was in charge of the deceased and, at least after the conversation with Mr Didio, “suffered that there was created and continued the dangerous situation that the wall was built without proper lateral support and thereafter remained unsupported against collapse up to and including the day of the incident”.

45. Senior counsel for the appellant submitted that the duty arose when the wall became inherently unstable.

46. The respondent, in disputing that a duty could arise in this fashion, emphasised the need for circumspection in identifying categories and relationships that give rise to a previously unrecognised obligation to act. He pointed to the fact that cases which have held that a duty arose in this fashion have involved situations where the risk or danger arose as a result of acts done by the deceased.

47. Senior counsel for the respondent pointed out that simply being on site did not impose an obligation on the respondent to supervise or direct his fellow employees. He pointed to the fact that the deceased was a more experienced bricklayer than the respondent and that there was no evidence that the deceased took directions from the respondent.

48. The third basis upon which the appellant submitted that a duty arose was that “there was a novel common law duty of care owed by the Respondent as the director of KLA to the Deceased which could found liability for the offence of manslaughter by reason of criminal negligence”.

49. In that context, the appellant placed particular reliance on the various factors referred to by Allsop P as salient factors in Stavar. It submitted that the harm was “more than reasonably foreseeable” and the consequences “potentially fatal”. It submitted that the respondent had “complete control over the construction method that was to be employed in building the wall”.

50. The appellant submitted that the deceased was vulnerable in that he was “under the direct control of the Respondent in relation to both the required manner of construction of the wall and whether or not the wall was to be stabilised”. It also submitted that the deceased was “required to place a high degree of reliance on the Respondent”.

51. The appellant submitted that the respondent had assumed responsibility for site management and that there was proximity in the “physical, temporal or relational sense” between the deceased and the respondent, in particular by reason of the fact that the respondent had day-to-day supervision of the deceased.

52. The appellant referred again to the high risk of the wall collapsing and submitted that the respondent had “actual or constructive” knowledge of this. It submitted that there was no potential indeterminacy of liability, as the means of avoiding the harm were simple and there was no “imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests”.

53. The appellant also submitted that the result contended for was consistent with the result reached in other common law countries, referring in particular to Berger and Yuille v B&B Fisheries (Leigh) Ltd (1958) 2 Lloyd’s Rep 596 (Yuille).

54. The respondent submitted that the situation was not novel, in that it was made clear in Andar at [49] that the common law duty to take reasonable care for the safety of employees is imposed upon the employer, not on its individual directors. He submitted that Stavar was a case where an existing duty between employer and employees was extended to persons who might reasonably come into contact with asbestos residue arising from the employees’ work.

55. The respondent submitted that the imposition of the duty in question was inconsistent with the Act, which provided that the standard of care was that the employer ensure the safety of an employee – a higher standard of care than that required by the law of negligence. Further, the respondent submitted that the imposition of the duty in question was inconsistent with the principle that corporations and their directors were distinct legal entities.

56. In regard to the case of Berger, the respondent submitted that the result flowed from the two stage test propounded by the House of Lords in Anns v Merton London Borough Council (1978) AC 728 as a means of determining if a duty of care arises in novel cases, an approach which has been rejected in this country. The respondent submitted that the decision in Yuille depended on its own particular facts, stating that this was recognised in a subsequent decision of the United Kingdom Court of Appeal, The Anonity (1961) 2 Lloyd’s Rep 203. The respondent also disputed the existence of the salient factors identified by the appellant in its submissions. He submitted that the foreseeability of harm was not as obvious as contended for, stating that it did not appear to be apparent to the deceased, who was an experienced bricklayer. He pointed out that both he and the deceased were subject to the direction and supervision of Mr Didio, the site manager.

57. The respondent submitted that the deceased was not in a position of vulnerability, submitting that the deceased was “a more experienced bricklayer than the respondent”, who would have had a greater appreciation of the risk involved, particularly if the risk was obvious.

58. The respondent submitted that there was no evidence that he had assumed any responsibility to the deceased. He submitted that he and the deceased “worked with each other over many years” and were working under the supervision of Mr Didio. He submitted that both he and the deceased were employed by KLA and that the deceased had “autonomy to undertake his own unsupervised work on the site”.

59. The respondent submitted that the material before the trial judge showed that the respondent did not believe that the wall was required to be braced and denied that Mr Didio raised the issue with him. He submitted that if Mr Didio had had any concerns, he would not have permitted other builders to work immediately around the wall while in an unbraced state.

60. The respondent submitted that the imposition of a duty would give rise to potential indeterminacy of liability. He submitted that it would lead to uncertainty in regard to the circumstances in which a director or manager would become liable to provide a safe system of work for co-employees.

Involuntary manslaughter by criminal negligence

61. Section 18 of the Crimes Act 1900 (NSW) provides as follows:

“18(1)(a)    Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

(b)   Every other punishable homicide shall be taken to be manslaughter.

(2)(a)   No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.

(b)   No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.”

62. The common law has long recognised the offence of involuntary manslaughter by criminal negligence. The history of the offence was summarised by Yeldham J in Taktak, with whom Loveday J agreed (Carruthers J generally agreeing). Amongst other citations, his Honour referred to Sir James Fitzjames Stephen, A History of the Criminal Law of England, (1883, MacMillan and Co), vol III at 10-11 to the following effect (at 236-237):

“… A number of people who stand round a shallow pond in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the pond, are no doubt, shameful cowards, but they can hardly be said to have killed the child.

Whether the word ‘killing’ is applied or not to homicides by omission is to a great extent a question of words. For legal purposes a perfectly distinct line on the subject is drawn. By the law of this country killing by omission is in no case criminal, unless the thing omitted is one which it is a legal duty to do. Hence, in order to ascertain what kinds of killing by omission are criminal, it is necessary, in the first place, to ascertain the duties which tend to the preservation of life. They are as follows:— A duty in certain cases to provide the necessaries of life; a duty to do dangerous acts in a careful manner, and to employ reasonable knowledge, skill, care, and caution therein; a duty to take proper precautions in dealing with dangerous things; and a duty to do any act undertaken to be done, by contract or otherwise, the omission of which would be dangerous to life. Illustrations of these duties are the duty of parents or guardians, and in some cases the duty of masters, to provide food, warmth, clothing, etc, for children; the duty of a surgeon to employ reasonable skill and care in performing an operation; the duty of the driver of a carriage to drive carefully; the duty of a person employed in a mine to keep the doors regulating the ventilation open or shut at proper times. To cause death by the omission of any such duty is homicide, but there is a distinction of a somewhat indefinite kind as to the case in which it is and is not unlawful in the sense of being criminal. In order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence. There must be more, but no one can say how much more, carelessness than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused. No rule exists in such cases. It is a matter of degree determined by the view the jury happen to take in each particular case.”

63. In dealing with circumstances in which the offence can be committed, Yeldham J, citing the decision of the United States Court of Appeals District of Columbia Circuit in Jones, said that there were four instances in which a failure to act may constitute a breach of a legal duty sufficient to give rise to the offence. The first was “where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid”: Taktak at 243-244. This passage was cited with approval by French CJ in Burns at [22].

64. It was common ground between the parties that the requisite elements of the offence in question were set out correctly by the Full Court of the Supreme Court of Victoria in Nydam v R [1977] VR 430. In a passage approved by the High Court in Wilson v The Queen [1992] HCA 31; 174 CLR 313 at 333; The Queen v Lavender [2005] HCA 37; 222 CLR 67 at [17]; King v The Queen [2012] HCA 24; 245 CLR 588 at [29] and Burns at [19], the Court in Nydam made the following remarks (at 445):

“In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.”

65. Although this passage refers to a negligent act, it was not disputed that the offence could arise from an omission. However, as French CJ pointed out in Burns at [21], “issues of duty of care and criminally negligent breach of duty arise most acutely in cases of involuntary manslaughter by omission”. In that context, both the plurality and Heydon J stated that “courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act”: Burns at [107], [128].

Whether a duty arose based on the fact that the respondent was a director of the company

66. In Andar, the High Court made it clear that the common law duty to take reasonable care for the safety of employees is imposed solely on an employer, as distinct from its directors or employees. The Court made the following remarks:

“[44]   Unlike the statutory duties construed in Ginty and its successors, the common law duty to take reasonable care for the safety of employees is imposed solely upon an employer. No equivalent duty was imposed upon Mr Wail in his capacity as employee. In such circumstances, questions such as ‘Whose fault was it?’ are apt to mislead. This is because any breach of duty committed by Andar was inherently different in scope and effect from any negligence of Mr Wail at the time of the accident. It must follow that the requirement of co-extensiveness necessary in order to take advantage of the reasoning evident in cases such as Ginty did not exist in the present case. In Nicol, in a passage with which we agree, Dawson J said:

‘[I]t does not seem to me that the duty of an employer and an employee in such regard can ever be co-extensive or co-terminous. The duty is that of the employer and even if the employee is entrusted with its performance it remains an independent obligation of the employer of a more comprehensive kind to ensure that reasonable care is taken.’

…

[49]   In this way, it is possible here to distinguish between the common law duties owed by Andar and those owed by Mr Wail in his personal capacity as director or employee. The common law duty to take reasonable care for the safety of employees is imposed directly upon Andar by virtue of its status as an employer. The duty is not imposed upon individual directors of a corporate employer. (The duties which directors have are different. For the most part, they are found in the applicable corporations law, and are owed to the company, not others.) To seek, as Andar does, to derive some significance from the circumstance that the board of the company is limited to two directors and that one of those directors (Mr Wail) ordinarily manages aspects of the delivery business is therefore to ignore the nature of the obligation relevantly imposed upon Andar by the common law.”

[internal citations omitted]

67. As the plurality pointed out in that case, the consequence is that “a company may be charged with an offence as principal, and the director charged as an accessory, notwithstanding that the elements constituting both offences were committed by the director alone”: Andar at [46]; see also Hamilton v Whitehead [1988] HCA 65; 166 CLR 121.

68. This decision authoritatively establishes that the mere fact that a person is a director of a corporation does not found a duty to provide a safe system of work for the corporation’s employees. That would extend, in my opinion, to circumstances where the director was responsible for the implementation of those parts of the company’s activities which gave rise to a particular claim for breach of duty.

69. However, that does not mean that in all circumstances it is solely the employer who is responsible for providing a safe system of work or that the duty is limited to a person’s employees. In Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens v Brodribb), the High Court concluded that a duty to provide a safe system of work could be owed by a principal to independent contractors. Mason J described the reason for the imposition of the duty in the following terms (at 31):

“… Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”

See also Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1.

70. Similarly, persons other than employers have been held, in particular circumstances, to owe a duty akin to the duty of an employer to provide a safe system of work. In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 (Crimmins), a majority of the High Court held that the respondent, which had various responsibilities for regulating the stevedoring industry, owed a common law duty to the appellant to take reasonable care to protect him from a reasonably foreseeable risk of injury arising from his employment by registered stevedores. The majority held that the duty arose as the respondent had knowledge of the special risks to which the members of the class, which included the appellant, were subject, was in a position to control and manage those risks, and the appellant was vulnerable to injury because of the casual and hazardous nature of his employment.

71. In that case, the Court emphasised the importance of the power to direct and control the activities of the person to whom the duty was said to be owed. McHugh J, with whom Gleeson CJ agreed, stated (at [107]) that “usually the very fact of the direction or control will itself be sufficient to found a duty”. He continued, “Where the person giving the direction or in control of another person’s freedom of action knows that there is a real risk of harm unless the direction is given … the case for imposing a duty is overwhelming”.

72. Hayne J, although in dissent as to the result, also emphasised the importance of the power to direct and control. His Honour made the following remarks at [276]-[277]:

“[276]   The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty ‘of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury’.

[277]   Both the power to direct and the power to control are important. As was said by Mason J in Kondis v State Transport Authority:

‘The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken’.”

[internal citations omitted]

73. A number of cases have held that where, as a matter of fact, control and direction over a person’s work activities is exercised by a person other than the employer, such that the relationship bears all of the features of an employer/employee relationship, a duty to provide a safe system of work, akin to that imposed on an employer, will be placed on the person who has such control: CSR Ltd v Wren (1997) 44 NSWLR 463 at 485; English v Rogers [2005] NSWCA 327 at [85]; TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 (Naidu).

74. It does not seem to me that, even applying the stringent test for granting a stay, the mere fact that the respondent was the sole director of KLA and presumably, in that capacity, had power to control how the work was carried out, would be sufficient to impose on him a duty to provide a safe system of work. The imposition of a duty solely on that basis, in my opinion, is contrary to what was decided in Andar and would be a significant extension of liability on companies’ officers who were in control of certain activities of the corporation. Further, I do not think that the evidence referred to above was sufficient to constitute the respondent a “surrogate employer” of the deceased (to adopt the expression used by Spigelman CJ in Naidu at [28]).

75. However, it does not seem to me that the effect of Andar is to preclude the imposition of a duty on an employee who is also a director to take reasonable steps to prevent harm being occasioned to fellow employees, regardless of the circumstances in which the duty is said to arise. Andar was dealing with the non-delegable duty of an employer to provide a safe system of work, not generally with circumstances in which an employee (whether or not a director of the employer) can owe a duty to his or her fellow employees. As discussed below at par [114], in the particular circumstances of the present case, the respondent’s control over the site may be a factor that would support the imposition of a duty of care.

Whether a duty arose based on s 20 of the Occupational Health and Safety Act

76. As I have indicated, the authorities have made it clear that the breach of a statutory duty can form the basis of an offence of involuntary manslaughter by criminal negligence. I have referred to the judgment of Yeldham J in Taktak above. In Peter Gillies, Criminal Law (4th ed 1997, LBC Information Services) at 656-657, the learned author made the following remarks:

“Thus, although manslaughter is usually defined in terms of the doing of an act causing death and, indeed, is usually committed by a person so acting, it can be committed by an omission to act. What must be established is that D was under a legally recognised duty, arising from the common law or from statute, to act in a certain way but omitted to do so, that as a result of this omission to act death resulted, and that by D’s omission to act D exhibited the culpability associated with one of the relevant heads of manslaughter. Thus, if negligent manslaughter is relied upon, as it usually is in the context of manslaughter by omission, it must be shown that D acted with any element of mens rea required by this type of manslaughter; or, if it does not require mens rea, that D’s omission to act exhibited the degree of negligence required by the doctrine of negligent manslaughter. In short, D’s behaviour will be exactly the same as manslaughter by commission, except that D’s conduct will consist of an omission.

The spectrum of legally recognised duties grounding liability for an omission is an open-ended one, given that such duties can arise from statute as well as the common law. Standard common law duties grounding liability for manslaughter by omission include that which is vested in the parent of a young and dependent child, or one in loco parentis, and that which is vested in the person who voluntarily assumes responsibility for the care of an adult who is physically or mentally incapable of caring for herself or himself.”

[internal citations omitted]

77. A similar view was expressed in Brent Fisse, Howard’s Criminal Law (5th ed 1990, Law Book Company) at 120-121, although the statutory provisions to which the learned author refers, on their face, indicate relatively clearly that the common law offence of manslaughter is only available for serious contraventions.

78. In Heaton v Western Australia [2013] WASCA 207; 234 A Crim R 409 (Heaton), the appellant was convicted of manslaughter. He had injected the deceased with heroin and, when she could not be awoken, did not seek to obtain medical assistance. His appeal was dismissed. The relevant breach of duty was a breach of s 262 of the Criminal Code (WA) (one of the statutes referred to in Howard’s Criminal Law) which was in the following terms:

“262   It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.”

79. The Code did not provide any separate penalty for that offence. The Code provided in s 268 that “[i]t is unlawful to kill any person unless such killing is authorised or justified or excused by law”. The Code also provided in s 280 that “[i]f a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter”.

80. In Macaree v The State of Western Australia [2011] WASCA 207 (Macaree), the appellant was convicted of manslaughter for contravention of a duty imposed by s 266 of the Criminal Code (WA). That provision, as relevant, was in the following terms:

“266(2)      It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, to have used reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.”

81. In dismissing the appeal, the Court made the following remarks:

“[26] The combined effect of these provisions is that a person may be criminally responsible for an act which occurs independently of the exercise of his or her will if the act is done in breach of the duty imposed by s 266 of the Criminal Code. If a person dies as a consequence of a breach of that duty, the person who committed the breach is held to have caused that death and thereby killed him or her. Such a killing would be unlawful unless authorised, justified or excused (bearing in mind that s 23A has no application). One of the elements of manslaughter is that the killing must be unlawful. Therefore, where the prosecution allege manslaughter by criminal negligence, a breach of the duty imposed by s 266 becomes an element of the offence: Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115, 119.”

82. In each of these two cases, it was stated that to make good the charge of manslaughter, it was necessary to show that the degree of negligence was so serious that the trier of fact regarded it as deserving of punishment as a criminal offence: Heaton at [50]-[51]; Macaree at [48]-[49]; see also Callaghan v The Queen [1952] HCA 55; 87 CLR 115 at 124.

83. It was relatively clear that contraventions of the provisions in those cases which lead to death could found a prosecution for involuntary manslaughter. The provisions appeared in a Criminal Code and, although there was no specific penalty, a contravener was to be held liable for the consequences. The question which arises in the present case is whether a sufficiently serious contravention of s 20 of the Act could have the same consequences.

84. Section 20 was in the following terms:

“20   Duties of employees

(1)   An employee must, while at work, take reasonable care for the health and safety or people who are at the employee’s place of work and who may be affected by the employee’s acts or omissions at work.

(2)   An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.

Maximum penalty:

(a)   in the case of a previous offender – 45 penalty units, or

(b)   in any other case – 30 penalty units.”

85. The predecessor to s 20, s 19 of the Occupational Health and Safety Act 1983 (NSW), was in similar terms to s 20. The Second Reading Speech in respect of the 1983 Act, apart from stating that the general duties contained in it included a duty on employees for safe working practices and allowed for prosecution before magistrates and the imposition of fines up to $5,000, said little in relation to s 19. However, it was said that the object of the Bill was to bring to an end “the frightening effect of occupational injuries”.

86. The Second Reading Speech which introduced the legislation in question in the present case did not elaborate on these remarks.

87. The legislation in question in the present case was repealed and replaced by the Work Health and Safety Act 2011 (NSW).

88. It is well-established that an employee can be liable to a fellow employee for a negligent act which it was reasonably foreseeable would cause injury to that employee. Irrespective of whether such an act also contravened s 20, the negligent employee could be liable in manslaughter if a fellow employee died as a result of his or her negligence and the other elements of the offence were also made out.

89. However, s 20 may also impose a duty in circumstances where a duty would not be imposed by common law. This is particularly the case when what is alleged is a negligent omission. The question which arises is whether the legislature intended to limit an employee’s liability to the penalties contained in the Act, or also subject an employee to potential liability for manslaughter, if the other elements of that offence are established.

90. It seems to me that the question falls to be determined by a construction of the whole Act and the circumstances in which it was enacted, including the pre-existing law: Australian Iron and Steel Ltd v Ryan [1957] HCA 25; 97 CLR 89 at 98.

91. Section 32 of the Act stated that nothing in Pt 2 of the Act (which includes s 20) should be construed as conferring a civil right of action or a defence in civil proceedings. I should indicate that I do not regard s 32 as supporting the conclusion that a contravention of s 20 could not give rise to criminal liability for manslaughter. If anything, the express exclusion of civil liability, with no exclusion of criminal liability, tends to the contrary position.

92. However, s 20 of the Act provided its own penalty for contravention. The Act also provided for extensive powers of investigation, including, granting powers to inspectors to require a person to provide information or give evidence in relation to possible contraventions of the Act (s 62), removing the privilege against self-incrimination (s 65), and providing for protection only against direct use, rather than derivative use, of self-incriminating material (s 65).

93. Further, Pt 7 of the Act provided that prosecutions could only be instituted by a limited number of persons and were required to be commenced within 2 years of the date of the offence. That Part also empowered the Court to make extensive orders over and above the imposition of penalties.

94. Taking all of these matters into account, in circumstances where there was no correlative common law duty, I am of the opinion that the legislature did not intend for a contravention of the duty in s 20 to give rise to liability for manslaughter. To enable s 20 to do so would ignore the fact that the Act prescribed detailed remedies for breaches. Liability for manslaughter would, at least potentially, significantly enlarge the circumstances in which that crime could be committed. It is not to be assumed that this was intended by the legislature absent express words or necessary intendment.

192. In both Andar and Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611, the injured employee was a director of the employer company. In each case the injury resulted from an unsafe system of work. Nevertheless, in each case, the High Court perceived (at least by implication) or did not exclude, a duty in the director, not as director, but as employee.

193. It has long been recognised, in the civil law, that one employee might be liable to another for injury resulting from a casual act of negligence, as distinct from injury resulting from an unsafe system of work, as to which the employer has a non-delegable duty. Liability for casual acts of negligence is consistent with what I have called the foundational case, Donoghue v Stevenson. It is that which has given rise to the doctrine of vicarious liability, by which an employer may be held to account for a casual act of negligence on the part of one employee that resulted in injury to another. The clear implication is that the employee responsible for the injury does have that liability, arising out of a duty of care in accordance with “the neighbour principle” stated in Donoghue v Stevenson.

194. This is to say no more than that the mere fact that KLA, as employer, owed a duty of care to Mr Hands to provide a safe system of work did not have the corollary that the respondent could not also owe Mr Hands a duty of care. Whether he did, and if so, what it entailed, will hinge upon the factual circumstances, not all of which were known at the time of the decision, and which were to be the subject of determination by a jury.

(i)  a statutory duty?

195. The sole basis upon which the Crown relied to establish that the respondent was under a relevant statutory duty to Mr Hands was s 20 of the OH&S Act. That section provided as follows:

“20 Duties of employees

(1)  An employee must, while at work, take reasonable care for the health and safety of people who are at the employee’s place of work and who may be affected by the employee’s acts or omissions at work.

(2)  An employee must, while at work, co-operate with his or her employer or other person so far as is reasonably necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.”

The suffix to the section, prescribing maximum penalties, made it plain that breach of the duty so imposed constituted a criminal offence, punishable by a monetary penalty.

196. The respondent’s first answer to the Crown’s proposition that, by reason of s 20 of the OH&S Act, he was under a relevant duty to Mr Hands was that “s 20 is a statutory penalty provision … limited to its terms …” [at par 14] and [at par 23]:

“It does not in any event create a duty as such but rather defines the terms of a duty that otherwise exists by reference to which an alleged breach could support a prosecution pursuant to the Act for the limited penalties provided therein.”

197. The respondent then proceeded to identify certain further provisions of the OH&S Act (one of which was enacted after the relevant events) which, he argued, pointed to a conclusion that the legislature did not intend s 20 to provide the basis for a prosecution for negligent manslaughter. The specific provisions identified were s 8 (specifying duties of employers); s 26 (extending criminal liability for corporate contraventions to directors and managers); s 107 (imposing time limits for prosecutions of offences under the OH&S Act). The later enacted provision was s 32A (creating an offence of reckless conduct causing death). Finally, the respondent pointed to s 42 of the Road Transport (Safety and Management) Act 1999 (NSW) (“the Road Transport Act”) (also now repealed) by way of analogy.

198. Put briefly, the arguments so put were as follows.

199. Section 8(1) of the OH&S Act expressly imposed on employers a duty to ensure the health, safety and welfare at work of all employees. Section 26(1) made directors and managers of corporations criminally liable for contraventions by a corporation of any provision of the OH&S Act or Regulations (subject to a statutory defence, not here relevant). Relevantly, therefore, for present purposes, if KLA failed to ensure the health, safety or welfare at work of Mr Hands, then, as a director (and, possibly, manager) of KLA, the respondent could, under s 26, have been prosecuted in respect of that contravention.

200. The respondent’s purpose in relying on these provisions was stated as follows:

“So far as ss 8 and 26 are concerned, it is submitted that s 8 places a much higher standard of care than the common law standard of care, and to the extent that the respondent owed such a duty as an employer (which is denied), then it is not the appropriate standard by which to measure the conduct constituting ‘such a great falling short’ of the standard.”

It will be appreciated that the last clause is a reference to the principles stated in Nydam.

201. Section 107 prescribed a time limit (subject to a presently irrelevant exception) of 2 years for the prosecution of offences against the OH&S Act (including s 20). The respondent argued that it is not open to the Crown to seek to found a charge of manslaughter on any alleged breach of the duty imposed by s 20, prosecution for which is subject to a 2 year time limit.

202. Section 32A was introduced into the OH&S Act with effect from 15 June 2005. It created, apparently for the first time, an offence of reckless conduct causing death at a workplace by a person who was, by reason of any provision of Pt 2 of the OH&S Act (which includes s 20) under a duty with respect to the health or safety of the person whose death was caused. A maximum penalty (with respect to an individual) of a fine, or imprisonment for 5 years, was prescribed.

203. The respondent sought to make two points arising out of s 32A. The first was that, to sustain a prosecution under the section, it was necessary that the Crown prove that the conduct was “reckless” - and that that is conduct that is more serious than the “negligent” conduct relevant to a prosecution for negligent manslaughter. Yet the maximum penalty for an offence under s 32A was imprisonment for 5 years, contrasted with the 25 year maximum that is prescribed in respect of the offence of manslaughter (Crimes Act 1900 (NSW), s 24). The second point sought to be made was that the enactment of s 32A was an indication that Parliament had not intended breaches of the s 20 duty to give rise to prosecutions for manslaughter.

204. Finally, by analogy, the respondent pointed to s 42(1)(a) of the Road Transport Act. Section 42(1)(a) created an offence of negligent driving causing death, and prescribed a maximum penalty of (for a first offence) imprisonment for 18 months and (in the case of a second or subsequent offence) imprisonment for 2 years (in each case, together with a fine).

205. The purpose of this exercise was to found a submission that the provision “could not of itself be used as a mechanism to constitute a prosecution for criminal negligence manslaughter”. It was submitted that “such a penalty section again does not create a duty”.

Resolution

206. The respondent’s propositions can be disposed of serially.

207. Just what is meant by saying that s 20 was merely a “statutory penalty provision” that does not impose a duty is quite unclear to me. In plain language, the section did impose a duty. The duty was placed on employees to take reasonable care for the health and safety of others (including other employees) who were at their place of work, and who may have been affected by the act or omission (sub-s (1)); and to cooperate with the employer to enable compliance with legislative requirements imposed in the interests of health, safety and welfare.

208. The argument that s 8 imposes a higher standard of care than the common law standard (which is to take reasonable care for the safety of employees) may be correct, but is quite immaterial to whether a duty of care exists. The respondent’s argument in this respect in par 30 will be more appropriately directed to the fifth element of the offence of negligent manslaughter, an element which is not in issue in this appeal.

209. The argument based on s 107 is likewise immaterial. Section 107 imposed a time limit on prosecutions under (inter alia) s 20. It did not have the effect of nullifying the duty of care that was imposed by that section. Nor did s 107 (or s 20, or s 26) exclude reliance by the Crown on the same conduct as evidence of a more serious criminal offence than contravention of s 20 (whether within or outside the 2 year limitation period).

210. Section 32A is also irrelevant. That the legislature subsequently enacted legislation creating a specific offence says nothing about whether the same conduct might, prior to (or after) the enactment constitute a different criminal offence. That, also, is the answer to the respondent’s argument by analogy with s 42 of the Road Transport Act.

211. Underlying the respondent’s argument is a hidden, and false, premise. The premise is that, because the respondent could (within 2 years) have been prosecuted under s 20, the conduct that could have given rise to such a prosecution was unavailable for any other purpose of the criminal law. The argument does not depend upon the statutory time limit. If correct, it would also have operated to prevent prosecution of the respondent for manslaughter within the 2 year period. In other words, the creation of an offence of breach of the duty imposed by s 20 precluded prosecution for any other offence arising out of the same conduct, no matter how serious.

212. As I have said, the premise is false.

213. It is not unusual, in the criminal law, for the same conduct to be capable of giving rise to a number of different charges. Frequently, the charge selected will depend upon the consequences of the conduct. Driving whilst there is present in the blood the prescribed concentration of alcohol is one example. At its lowest level, it resulted in a charge under s 110(3) of the Road Transport Act 2013 (NSW), carrying only a monetary penalty. At its worst, where death results, it may constitute an offence against s 52A of the Crimes Act 1900 (NSW), carrying a maximum penalty of imprisonment for 10 years or, where committed in circumstances of aggravation, 14 years.

214. Section 42(2) of the Road Transport Act also created an offence of furious, reckless or dangerous driving, carrying a maximum penalty (for a first offence) of imprisonment for 9 months, or (in the case of a second or subsequent offence) of imprisonment for 12 months. Where death or grievous bodily harm resulted, however, a charge was also available under s 52A of the Crimes Act.

215. I return to s 20. By way of example, the following may be considered. An employee at a workplace assaults another, causing actual bodily harm. At the lowest level, that conduct is a contravention of s 20, and could, within the 2 year limitation period, have been prosecuted under that section. That that is so did not have the effect that it could not have been prosecuted under s 59 of the Crimes Act, carrying a maximum penalty of imprisonment for 5 years. If the assault was committed with intent to cause grievous bodily harm, and resulted in such harm, or in wounding, it could be prosecuted under s 33 of the Crimes Act, carrying a maximum penalty of imprisonment for 25 years.

216. Similarly, if the assault caused the death of the employee, there is no reason to suppose that the perpetrator could not have been charged with manslaughter by an unlawful and dangerous act. There is a range of other offences that could be constituted by the same conduct.

217. Once that is recognised, it can be seen that the time limit imposed by s 107 is a distraction. The issue is not whether, outside that time limit, the respondent might have been charged with a more serious offence than that created by s 20. It is not the offence created by s 20 that gives rise to the charge of manslaughter. It is the duty that is imposed by that section that founds the prosecution for manslaughter, by reason of its alleged breach, and its alleged consequences.

218. The issue for present determination is limited. It is whether, on the Crown evidence as it is understood (on the basis of the Crown Case Statement and materials referred to above) the respondent was under a statutory duty of care to Mr Hands, and, more specifically, whether that duty required him to take steps to brace the wall. The first question, in my opinion, is easily answered. By s 20, he was under a duty of care to Mr Hands. The second question is not so readily answered. That is because the answer will depend upon facts not yet established, and not known - specifically, facts which will emerge from expert evidence concerning the degree (if any) of danger posed by leaving the wall unstabilised, and the measures available to take precautions against that danger. There may be others. Whatever they are, it is the role of the jury to find the facts upon which the existence of the duty depends.

219. It follows from the above that, as to whether the Crown can establish that the respondent was under a relevant duty to Mr Hands (to act in a particular way by bracing the wall) I differ from the Chief Justice in a number of respects.

220. First, in my opinion, the Court is not in a position definitively to say whether or not such a duty existed. Second, the issue does not depend upon other provisions of the OH&S Act. Specifically, it does not depend upon powers and duties given to inspectors of WorkCover, nor the abrogation of the privilege (or right) against self-incrimination (although those matters might give rise to weighty evidentiary debates). Third, I do not agree ([95]) that to allow the prosecution to proceed would potentially enlarge the circumstances in which the crime of manslaughter could be committed. Once duty is established (if it is established) then the principles of negligent manslaughter outlined above will apply. Fourth, I do not agree that s 32A of the OH&S Act has any bearing on the question. So much follows from my reasoning above.

(ii)  a common law duty of care?

221. The Crown position in respect of a common law duty of care depended upon the evidence of the respondent’s involvement in building the kitchen wall, and his role as the person in charge of the bricklaying activities on the site. Effectively, he was responsible for the supervision of the bricklaying work, and, particularly for decision making in that respect.

222. The Crown submission, as expressed in Ground 2 of the grounds of appeal, was that:

“… there was a common law duty of care which arose because the Respondent had played a direct central causative part in the sequence of events which gave rise to the risk that the wall might collapse, which the Respondent owed to the Deceased and which could found liability for the offence of manslaughter by reason of criminal negligence.”

223. For the purpose of analysis of this basis of asserted criminal liability, it is necessary to examine more closely the reasoning in Burns. The essential facts in Burns were that the appellant had supplied a prohibited drug (methadone) to a David Hay. Mr Hay consumed the methadone in the home of the appellant and her husband. (Although, at trial, the Crown contended that the appellant, or her husband, with whom she was acting in concert, had injected Mr Hay with the drug, or assisted him to inject the drug, and the Court of Criminal Appeal concluded that that had occurred, the High Court rejected that proposition and held that the evidence was not capable of supporting such a conclusion (the plurality at [91]-[94], the Chief Justice agreeing at [47]).

224. In the High Court, therefore, the decision proceeded on the basis that the appellant (and/or her husband) had supplied the drug to Mr Hay who administered it to himself. Having used the methadone, Mr Hay suffered an adverse reaction whilst still in the home of the appellant and her husband. After some futile attempts to activate Mr Hay, Mr Burns proposed calling an ambulance, a suggestion that Mr Hay rejected. Mr Hay then left the premises. He died a short distance away.

225. The High Court considered the question of manslaughter, both by unlawful and dangerous act, and by criminal negligence. As to the latter, both the Chief Justice and the plurality generally accepted the authorities from the United Kingdom, to the effect that a duty of care may arise “where a defendant has played a causative part in the sequence of events which have given rise to the risk of injury, such that a duty to take reasonable steps to avert or lessen the risk may arise” (French CJ, at [23]).

226. The Crown’s essential proposition is derived, first, from the judgment in Evans (Gemma) adopting principles stated in Mitchell v Glasgow City Council [2009] 1 AC 874. In Evans (Gemma), the Court of Appeal said:

“17  … In a variety of circumstances what may appear to be an omission to act may be converted into ‘a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard … from harm or injury’.”

227. The words in quotation marks were drawn from the speech of Lord Scott of Foscote in Mitchell (in which the House of Lords in Scotland had under consideration the existence of a duty of care said to give rise to civil liability). His Lordship said:

“The requisite additional feature that transforms what would otherwise be a mere omission, a breach at most of a moral obligation, into a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard, the person in question from harm or injury may take a wide variety of forms. Sometimes the additional feature may be found in the manner in which the victim came to be at risk of harm or injury. If a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise. Sometimes the additional feature may be found in the relationship between the victim and the defendant: (eg employee/employer or child/parent) … Sometimes the additional feature may be found in the assumption by the defendant of responsibility for the person at risk of injury … In each case where particular circumstances are relied on as constituting the requisite additional feature alleged to be sufficient to cast upon the defendant the duty to take steps that, if taken, would or might have avoided or lessened the injury to the victim, the question for the court will be whether the circumstances were indeed sufficient for that purpose or whether the case remains one of mere omission.” (internal citations omitted)

228. Adopting those observations for the purpose of criminal liability for an omission, at [31] in Evans (Gemma), the Court of Appeal said:

“In our judgment … for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise.”

229. The passage was adopted by French CJ in Burns, who said, at [23]:

“23  A duty of care may also arise where a defendant has played a causative part in the sequence of events which have given rise to the risk of injury, such that ‘a duty to take reasonable steps to avert or lessen the risk may arise.’”

and by the plurality at [102]-[107].

230. The facts in Evans (Gemma) bore considerable similarities to Burns, in that the appellant (and her mother) had supplied a drug (heroin) to the appellant’s younger half-sister, Carly, who self-injected. Carly suffered an adverse reaction, recognisable to the appellant as consistent with overdose, but the appellant took no action to seek medical attention. Importantly, both the appellant and her mother believed that they were responsible for Carly’s care.

231. Notwithstanding the factual parallels between Burns and Evans (Gemma), the cases had different outcomes. In Evans (Gemma), the Court of Appeal concluded that the appellant was “under a plain and obvious duty to take reasonable steps to assist or provide assistance for Carly”, which she failed to do. A contrary conclusion was reached in Burns.

230. The distinguishing feature in Burns appears to have been the absence of any relationship that gave rise to a duty of care. The mere fact that the appellant had supplied Mr Hay with the drug (in circumstances where the evidence did not exclude self-administration) and in circumstances where the evidence was that he had “rebuffed” the offer to call an ambulance, did not create a duty of care; in those circumstances, the appellant had not created the danger to which Mr Hay was exposed - it was Mr Hay himself who had done so by injecting the drug: per French CJ, [48], the plurality at [105].

231. It will be seen that there is a fine line distinguishing the two cases, each of which was ultimately decided on its own facts. For present purposes, the importance of both cases is the recognition that a duty to act so as to prevent or reduce the danger of injury or death might be attributed where the need for action is caused by the conduct of the accused person. In Evans (Gemma) the supply of heroin was accepted as the conduct that created the need for action; the duty arose because the appellant and her mother had acknowledged their responsibility for the care of Carly. In Burns, a different result was reached because Mr Hay, for whom the appellant had no responsibility other than any that emerged from her supply to him of methadone, had, by using the drug, himself created the danger.

232. The decision in Evans (Gemma) also drew upon an earlier decision of the House of Lords: R v Miller [1983] 2 AC 161; 2 WLR 539. Mr Miller lived in a “squat”. He lit a cigarette, and fell asleep. He woke to find that his mattress was smouldering. He left the room and went back to sleep in an adjoining room. He did nothing about the smouldering mattress. The house caught fire. Mr Miller was convicted of arson. Again, the obligation to act to avert a danger created by himself provided the basis of the decision that he was criminally liable for the omission.

233. The respondent sought to distinguish Miller by pointing out Mr Miller had initially taken all the steps that caused the danger of fire, and then failed to take the necessary steps to avert the danger. By contrast, on the Crown case against the respondent, it was Mr Hands who solely built the wall, and then, on his own initiative, put himself in its vicinity just before its collapse.

Resolution

236. The respondent’s argument overlooks the important circumstance that, on the evidence, Mr Hands constructed the wall under the direction of the respondent, and that the respondent was responsible for decisions concerning the wall.

237. Returning to the various “additional features” mentioned in Mitchell as potentially giving rise to a duty of care, it may be seen that several are here applicable. These are:

• the manner in which Mr Hands came to be injured;

• the respondent’s causative part in the train of events that led to the risk of injury;

• the relationship of employee/employer (although the respondent was not, in strict law, Mr Hands’ employer, he nevertheless stood in a quasi-employer position – as mentioned above, Andar, while affirming that the duty to provide a safe system of work lies on the employer, and is non-delegable, does not exclude the liability of others for casual acts of negligence).

238. Moreover, it is to be restated that the present question is confined to whether, on the Crown case as it is presently understood, the respondent was under a duty of care to Mr Hands, and, if so, whether that duty extended to ensuring that the wall was stabilised. Both parts of the question, but more particularly the latter, will depend upon findings of fact that the jury must make - findings that include analysis of the proposed expert evidence.

239. On the appeal, the Crown did not argue for a duty of care on the more general principles stated in Donoghue v Stevenson. It would therefore be inappropriate to reach any final conclusion in that respect. However, having regard to what I have said above, such an approach could not be excluded.

240. For the reasons given above, it is not open to doubt that, at least in some circumstances, co-employees may owe to one another duties of care on Donoghue v Stevenson principles. The key is, first, to identify the circumstances of the employment relationship that can be said to give rise to such a duty; and, second, where it is held that a duty exists, to ascertain the content of that duty.

241. On the evidence available in this case, I would have no hesitation in concluding that the respondent, in his capacity as a co-employee, owed Mr Hands a duty of care. Two circumstances that give to that conclusion are:

(i)  his authority over the manner in which Mr Hands performed his work;

(ii)  his decision-making role with respect to, inter alia, whether the wall was to be braced.

242. The far more difficult question is whether the duty extended to requiring the wall to be braced. No conclusion can be reached as to that in the absence of necessary factual findings, which will very likely depend upon the expert evidence.

243. In this respect, I agree with what the Chief Justice has said at [112]-[117], and [121].

(iii)  a novel duty of care?

244. Although the Crown relied on the “salient features” approach to determining whether a “novel duty of care” exists as set out in the judgment of Allsop P in Stavar, it made no attempt to identify what that novel duty was, or how it travelled beyond the common law principles to which I have referred.

245. Bearing in mind the circumspection urged by the High Court in Burns (at [107]), in expanding the foundations for the existence of a duty of care giving rise to criminal liability, I would reject this ground.

Orders

246. The Director has succeeded in establishing that the decision to order a stay of proceedings was flawed in fundamental respects. The question then arises as to what orders ought to be made by this Court. Ordinarily, the Director’s success would result in the setting aside of the order; whether the matter is to proceed to trial is for the determination of the Director. This Court should be slow to interfere with that process.

247. The doctrine of separation of powers has an important role to play in the administration of criminal justice. Ordinarily, a decision to prosecute for an offence lies exclusively within the area of jurisdiction of the executive branch of government: Barton v The Queen [1980] HCA 48; 147 CLR 75 at 91 (but see also at 94, 96 and 107); Maxwell v The Queen [1996] HCA 46; 184 CLR 501; Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 at [2]-[3] and [37] ff; R v Peters and Heffernan (1995) 83 A Crim R 142.

248. Occasionally, that principle comes into collision with the necessity for the judicial branch of government to act to protect its processes against misuse. A real question arises in the present case as to whether, if this prosecution is allowed to proceed, it would constitute misuse of the processes of the court.

249. It is for this reason that I have set out at some length the procedural history of this matter. The events in question occurred in 2003. No action was taken to charge the respondent until the warrant for his arrest was issued in December 2005. He has been prepared for trial twice. It was not until this appeal that the Crown case achieved its final formulation. This decision is not about whether a stay should be granted. It is about whether the discretion of this Court under s 5F of the Criminal Appeal Act should be exercised in favour of the Director, or in favour of the respondent. Fairness to the accused person is one of the relevant considerations. The Chief Justice has, at [123]-[130] set out a number of other considerations.

250. On balance, I have concluded that, notwithstanding that the Director has established that the decision to order a stay of the prosecution was erroneous at the time it was made, the appeal should be dismissed. I appreciate that this was not the subject of argument and the parties have not had an opportunity to be heard on the question.

251. Ordinarily, this would call for an opportunity to be afforded to the parties to put submissions as to the outcome of the appeal. However, the Chief Justice and Bellew J take a different view, and there have been long delays in this matter already, not least because of the complexity of the issues. Recognising, and notwithstanding that the Director may have had contrary submissions to put, and because this is a minority view, I would dismiss the appeal.

252. BELLEW J: I have had the advantage of reading, in draft, the judgments of the Chief Justice and Simpson JA. The facts are set out at length in each of those judgments and in these circumstances I will not recite them again.

253. It will be apparent from their Honours’ observations that the primary issue in the present case is whether there exists a proper basis upon which the respondent could be held to have owed a duty of care to the deceased. The Crown has submitted that such a duty arises on one or other of the following bases:

1. a duty imposed pursuant to s. 20(1) and/or (2) of the Occupational Health and Safety Act 2000 (NSW) (“the OH&S duty”)

2. a duty at common law (“the common law duty”); and

3. a novel duty to take reasonable care for the safety of the deceased (“the novel duty”).

The OH&S Duty

254. The provisions of s. 20, which are set in the judgment of the Chief Justice at [84], do not appear to have been drawn to the attention of the primary judge. The Crown submitted that each of ss. 20(1) and (2) imposed a statutory duty upon the respondent as an employee. That much is clear. However, the effect of the Crown’s submission was that this circumstance inevitably led to the conclusion that a contravention of either duty was capable of giving rise to liability on the part of the respondent for manslaughter.

255. In my view, that approach over simplifies the matter somewhat, and fails to consider whether the Parliament intended that this be the case. The Chief Justice has made reference (at [90]-[94]) to a number of provisions of the OH&S Act. I agree with the Chief Justice, for the reasons he has expressed, that those matters run contrary to a conclusion that the Parliament so intended. In particular in my view, there is nothing in the language of the statute which reflects such an intention.

256. The Chief Justice has also made reference, commencing at [95], to the subsequent enactment of s. 32A as a circumstance supporting such a conclusion. Even allowing for the cautious approach which must be taken in using amending legislation in this way (to which the Chief Justice referred at [99]), in my view the enactment of s. 32A would not have been necessary had the Parliament intended, in enacting s. 20, to enlarge the circumstances in which the crime of manslaughter could be committed.

257. For these reasons I agree with the Chief Justice in respect of the first ground.

The common law duty

258. Simpson JA has made reference to judgment of French CJ in Burns (at [23]) as well as the judgment of the plurality in that case (at [102]-[107]). Her Honour has also made reference to the judgment of the Court of Appeal in Evans (Gemma) (at 317). Those decisions postulate particular circumstances in which a duty of care may arise. Those circumstances include where a defendant has played a causative role in the sequence of events which have given rise to a risk of injury. The Crown argued that in the context of the present case, the relevant risk was a risk of collapse of the wall.

259. The Chief Justice has set out (commencing at [110]) a number of factors which may render it open to a jury to conclude that the respondent owed a duty of care to the deceased. I agree with the Chief Justice, for the reasons he has expressed, that those factors are capable of supporting such a conclusion.

260. It follows that I agree with the Chief Justice and Simpson JA that the appeal should be allowed on the basis of the second ground.

The novel duty

261. The Crown approached this issue by enumerating what were said to be various “salient features”, and submitting that such features gave rise to a duty of care. In my view, there are difficulties with that approach.

262. Firstly, there was no attempt made to draw any appropriate distinctions between those features which are factual, those which require value judgments and those which may require the application of legal policy: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [172] per Basten JA, Simpson J (as her Honour then was) agreeing. Further, and perhaps even more fundamentally, there was no clear articulation by the Crown of the nature and scope of the posited duty.

263. For these reasons, I agree with Simpson JA that Ground 3 should be rejected.

Orders

264. The remaining question is what orders are appropriate.

265. The circumstances giving rise to this matter date back to 2003. Both the Chief Justice and Simpson JA have set out the procedural history, which includes the fact that some years elapsed before the respondent was charged. That history, along with necessity to act with fairness towards a defendant in criminal proceedings, provides some support for exercising the discretion to dismiss the appeal. That said, those factors must be balanced against a range of others, not the least of which are the seriousness of the allegations, and the equally serious consequences which flowed from the incident.

266. In making these observations, I would prefer to express no view as to the strength or otherwise of the Crown case. On balance, having concluded that the decision of the primary judge was erroneous, I have come to the view that the order granting the stay should be quashed.

267. I therefore agree with orders proposed by the Chief Justice.

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Amendments

21 December 2015 - par [63] voluntary to voluntarily

par [65] Hayden to Heydon

par [101] 1 AC to 2 AC and respondent to appellant

par [228] others to other's

par [250] head to heard

Decision last updated: 21 December 2015