SafeWork NSW v Kayrouz Constructions Pty Limited

[2020] NSWDC 77

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v Kayrouz Constructions Pty Limited [2020] NSWDC 77
Hearing dates:	20 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1)   Permit the defendant to rely upon the affidavit evidence already filed, subject to any specific objections to such evidence. (2)   Direct the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts by 4 May 2020. (3)   List the matter for directions before me at 9.30am on 11 May 2020 with a view to fixing a sentence hearing date.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business to ensure so far as was reasonably practicable the health and safety of workers– whether failure to comply with duty – whether failure exposed an individual to a risk of death or serious injury   SENTENCING – plea of guilty – plea to elements of offence – disputed facts – whether plea of guilty is an admission of all particulars of reasonably practicable measures pleaded in Summons – particulars pleaded in the alternative
Legislation Cited:	Work Health and Safety Act 2011 (NSW), ss 19, 32
Cases Cited:	Duffy v R [2009] NSWCCA 304 GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 R v O’Neill [1979] 2 NSWLR 582 Strbak v The Queen [2020] HCA 10
Category:	Procedural and other rulings
Parties:	SafeWork NSW (Prosecutor) Kayrouz Constructions Pty Limited (Defendant)
Representation:	Counsel: M Scott (Prosecutor) M Gerace (Defendant)   Solicitors: SafeWork NSW (Prosecutor) Sachs Gerace lawyers (Defendant)
File Number(s):	2018/294050

Judgment

1. On 21 November 2016 Mr Christopher Ilioglou was working as a plumber on a construction site in Kogarah. Kayrouz Constructions Pty Limited (Kayrouz) was the principal contractor. In the course of lifting lengths of copper pipe up to level 4 of the site Mr Ilioglou suffered serious injuries when the pipes came into contact with energised overhead power lines.

2. SafeWork NSW charged Kayrouz by a Summons filed on 24 September 2018 that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr Ilioglou, to a risk of death or serious injury contrary to s 32 of the Act.

Background

3. The matter came before this court nine times for directions before Kayrouz pleaded guilty on 11 November 2019. The matter was stood over from time to time as the parties were in negotiations concerning a possible Enforceable Undertaking. The notation made on the court file when the plea of guilty was entered is as follows:

“(1)   Defendant enters a plea of guilty.

(2)   Listed for sentence on 24.2.20 ….. with a half day estimate.

(3)   I grant liberty to apply.

NOTATION: Parties are in the process of settling the agreed facts.”

4. On 19 February 2020 the matter was listed before me. Counsel for the prosecutor informed the court that the parties had not been able to produce an Agreed Statement of Facts. He submitted that the defendant had served affidavit evidence which traversed some of the particulars of reasonably practicable measures pleaded in the Summons. Counsel for the prosecutor wanted the dispute between the parties brought to a head. He submitted that the defendant had entered an “unconditional plea” and could now not dispute any of the reasonably practicable measures particularised in the Summons. The position of the prosecutor is that the defendant’s affidavit evidence should not be admitted when it “traverses most, if not all, of the particulars of reasonably practicable measures that are enumerated in paragraph 10 of Annexure A of the Summons”. He also indicated that he was not in a position, so close to the sentence hearing, to call evidence on disputed factual matters, if the defendant was permitted to rely on the affidavit evidence.

5. To resolve the issue I vacated the sentence hearing fixed for 24 February 2020 and stood the matter over to 20 March 2020 for submissions on the status and effect of the defendant’s plea of guilty entered on 11 November 2019. Both counsel delivered helpful written submissions as directed.

The Summons

6. The Summons pleads a “Description of Offence” in the terms set out in par 2 above. It also says “Particulars attached as ‘Annexure A’”. Annexure A sets out the particulars of the offence under the following headings:

1. Particulars of the defendant’s duty under s 19(1) of the Act

2. Particulars of the risk to the workers

3. Particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act.

7. The opening words of par 10 of Annexure A are:

“The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Christopher Ilioglou, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to workers….”

8. Then follows seven subpars which plead the reasonably practicable measures which the prosecution says that Kayrouz failed to take e.g. failing to conduct a risk assessment; failing to prepare a Safe Work Method Statement; failing to provide adequate supervision.

9. It is important to note that the prosecution alleges that Kayrouz failed to take “one or more” of the pleaded measures. Thus had the plea been a plea of not guilty, Kayrouz could have been found guilty if it failed to take only one of the seven pleaded reasonably practicable measures. This was accepted by both counsel at the outset of oral submissions.

10. Counsel for the defendant indicated in oral submissions that the defendant acknowledged that it failed to take the reasonably practicable measures pleaded in subpars (c), (e) and (g) in par 10 of Annexure A to the Summons and thus there was no question of the court being asked to reject the plea of guilty, as the defendant accepted that it was guilty of each of the elements of the offence.

Consideration

11. A plea of guilty admits those matters which are the essence of the charge. It does not admit the non-essential ingredients of an offence:  R v O’Neill [1979] 2 NSWLR 582 at 588; Duffy v R [2009] NSWCCA 304 at [21]. In GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30], five members of the High Court said of fact finding following a plea of guilty:

“In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case.”

12. As counsel for the prosecutor submitted, the elements of the offence with which the defendant is charged are:

Element 1   The defendant was conducting a business or undertaking;

Element 2   The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of:

1. workers engaged by it or workers whose activities are influenced or directed by the defendant;

2. while the workers were at work in the business or undertaking;

Element 3   The defendant failed to comply with its health and safety duty; and

Element 4   The failure exposed an individual to a risk of death or serious injury.

13. A very recent example of a defendant admitting the elements of an offence, but contesting the level of their involvement in the commission of the offence is found in the decision of the High Court in Strbak v The Queen [2020] HCA 10. The defendant pleaded guilty to the manslaughter of her child. The prosecutor alleged that the defendant inflicted blunt force trauma to the victim, which caused his death. The prosecution’s alternative case was that the defendant omitted to provide the necessaries of life in that she failed to seek medical assistance for the child. The defendant contested that she inflicted the fatal injuries but acknowledged liability for manslaughter on the alternative basis. The sentence hearing took six days and was conducted with a schedule of agreed and contested facts.

14. In the present case the prosecutor has pleaded a case with allegations made in the alternative as to the reasonably practicable measures which Kayrouz should have taken. I see nothing unorthodox in Kayrouz pleading guilty to a breach of all four elements of s 19, but contesting whether it failed to take each and every one of the seven particularised failures. Kayrouz is admitting that it failed to comply with its health and safety duty (Element 3 above) and is admitting three of the ways in which the prosecutor alleges that it breached that health and safety duty. However it is contesting the other four factual ways in which the prosecution says that it breached its duty.

15. Obviously a finding as to the particular reasonably practicable measures that Kayrouz failed to take will affect the determination of the objective seriousness of the offence.

Orders

16. My orders are:

1. Permit the defendant to rely upon the affidavit evidence already filed, subject to any specific objections to such evidence.

2. Direct the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts by 4 May 2020.

3. List the matter for directions before me at 9.30am on 11 May 2020 with a view to fixing a sentence hearing date.

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Decision last updated: 03 April 2020