Seascape Constructions Pty Ltd v The Queen - [2022] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0244

SEASCAPE CONSTRUCTIONS PTY LTD (ACN 083 415 561)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, T FORREST and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2022
DATE OF ORDERS:	1 February 2022
DATE OF JUDGMENT:	10 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 29
JUDGMENT APPEALED FROM:	[2020] VCC 1132 (Judge Cannon)

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CRIMINAL LAW – Appeal – Conviction – Withdrawal of plea of guilty – Offences – Elements – Occupational health and safety – Duty of employer to non-employees – Compliance – Regulation prescribes how duty is to be performed – Non-compliance with regulation deemed to be breach of duty – Applicant charged with breach of duty – Alleged breach constituted by non-compliance with regulation – Elements of offence defined by terms of regulation, not terms of statutory duty – Erroneous ruling by judge excluded only available defence – Ruling caused applicant to plead guilty – Crown concession of miscarriage of justice – Leave to appeal granted – Appeal allowed – Conviction quashed – Retrial ordered – Glenister v Wayne Horne Earthmoving Pty Ltd [2018] VSC 390 approved – Occupational Health and Safety Act 2004 ss 23, 152, 158, Occupational Health and Safety Regulations 2017 regs 7, 327(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Flynn QC with Mr R W O’Neill	Ward & Co Legal Consultants
For the Respondent	Mr B Kissane QC with Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
T FORREST JA
SIFRIS JA:

Summary

The regulation of occupational health and safety in Victoria comprises three interlocking parts. The first part comprises the safety duties — the so-called ‘general duties’ — imposed on employers (and others) by the substantive provisions of the Occupational Health and Safety Act 2004 (the ‘Act’). The second part comprises the regulations made under s 158(1) of the Act. And the third part comprises the ‘compliance codes’ approved by the relevant Minister under s 149 of the Act.[1]
[1]See Breen Creighton and Peter Rozen, Health and Safety Law in Victoria (Federation Press, 3^rd Ed, 2017) ch 8.

This proceeding concerns the relationship between the general duties and the regulations, relevantly the Occupational Health and Safety Regulations 2017 (the ‘Regulations’). The provisions of the Act imposing the duties are expressed in deliberately broad terms, reflecting ‘the so-called performance-based approach to standard-setting’.[2] By contrast, many of the Regulations are specific and detailed, prescribing ‘the way in which duties or obligations imposed by this Act ... are performed’ and ‘regulating or prohibiting specified activities’.[3]
[2]Ibid [8.05].
[3]Act sub-ss 158(1)(a)–(b).

The general duties are linked with the Regulations in two distinct ways. First, s 152 of the Act provides that, where the Regulations make provision ‘for or with respect to a duty or obligation imposed by this Act’, compliance with the regulation is taken to be compliance with the Act ‘in relation to that duty or obligation’. This might be…

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 Seascape Constructions Pty Ltd v The Queen

Details

AGLC: Seascape Constructions Pty Ltd v The Queen [2022] VSCA 29
Case: [2022] VSCA 29
Decision Date: 10 March 2022

CaseChat Overview and Summary

Seascape Constructions Pty Ltd was charged with breaches of occupational health and safety laws following an incident at a construction site. The company appealed its conviction after initially pleading guilty, arguing that the judge's ruling had been incorrect and had led to the guilty plea. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The key legal issues revolved around the interpretation of the Occupational Health and Safety Act 2004 and the Occupational Health and Safety Regulations 2017, specifically how the duty of an employer to non-employees should be defined and enforced. The central question was whether non-compliance with a regulation prescribed by the Act should be deemed a breach of the statutory duty.

The Court of Appeal determined that the judge's ruling, which had excluded the only available defence, was erroneous. This mistake led the company to plead guilty to charges that, upon proper interpretation of the law, should not have resulted in a guilty plea. The Court found that the elements of the offence were defined by the terms of the regulation, not the statutory duty. Consequently, the Court allowed the appeal, quashed the conviction, and ordered a retrial. This decision was in line with the ruling in Glenister v Wayne Horne Earthmoving Pty Ltd [2018] VSC 390, which held that a company could be held liable for breaches of occupational health and safety laws. The Court emphasised that the statutory duty required compliance with regulations, and non-compliance was deemed a breach of that duty.

The Court of Appeal's decision underscores the importance of accurate legal interpretation in criminal cases, particularly concerning occupational health and safety laws. The ruling highlights the need for judges to carefully consider the implications of their rulings on the accused's ability to mount a proper defence. The outcome in this case ensures that the company will have the opportunity to address the charges with the correct legal framework in mind. The final orders of the Court of Appeal were that the conviction be quashed and a retrial be ordered, ensuring that the company's rights are fully vindicated in light of the legal errors identified.

Orders