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R v Moore

R v Moore

Case [2015] NSWCCA 316 15 December 2015

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Moore

Details

AGLC: R v Moore [2015] NSWCCA 316
Case: [2015] NSWCCA 316
Decision Date: 15 December 2015

CaseChat Overview and Summary

The parties involved in the case were the Crown and the defendant, Moore. The nature of the dispute was an application for a permanent stay of proceedings in a criminal case concerning the involuntary manslaughter of an employee by criminal negligence. The case was heard in the Supreme Court of Queensland. The legal issues the court had to decide centred around whether the case was foredoomed to fail due to the absence of a duty of care between Moore, the director of a bricklaying company, and the deceased employee. Additionally, the court had to determine whether the duty of care extended from an employer to an employee, and whether a novel duty of care existed in this case.

The court held that the application for a permanent stay of proceedings was not appropriate as the case was not foredoomed to fail. The court found that there was sufficient evidence to establish that a duty of care could exist between Moore and the deceased employee. The court reasoned that the duty of care of an employer to an employee, as well as a statutory duty of care, could be extended to cover the circumstances of this case. The court further found that a novel duty of care could exist between the director and employee of a bricklaying company to protect against the collapse of a freestanding wall. The court therefore dismissed the application for a permanent stay of proceedings.

The court's reasoning and outcome highlight the importance of establishing a duty of care in cases of involuntary manslaughter by criminal negligence. The court found that the case was not foredoomed to fail and that there was sufficient evidence to establish a duty of care in this case. The court's decision also emphasises the need for employers to take reasonable steps to protect their employees from potential hazards in the workplace. The final orders of the court were that the application for a permanent stay of proceedings was dismissed.

Orders