Seascape Constructions Pty Ltd v The Queen
[2022] VSCA 29
•10 March 2022
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, 3rd 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 described as a mechanism of ‘deemed compliance’.[4]
[4]Under s 152, compliance with the provisions of a compliance code is likewise taken to be compliance with the Act.
Secondly, there are regulations which ‘set out the way in which’ one or more of the general duties is to be performed with respect to a particular activity. A regulation of that type is identified by an ‘Act compliance note’, the effect of which is defined by reg 7 in these terms:
Act compliance notes
If a note at the foot of a provision of these Regulations states ‘Act compliance’ followed by a reference to a section number, the regulation provision sets out the way in which a person's duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the regulation provision.
Note
A failure to comply with a duty or obligation under a section of the Act referred to in an ‘Act compliance’ note is an offence to which a penalty applies.
This might be described as a mechanism of ‘prescribed compliance’. That is, a person to whom such a regulation applies must — in order to discharge the general duty or duties applicable to that person — ensure that the relevant activity is carried out in the prescribed manner. (We will refer to such a regulation provision as a ‘prescribed compliance regulation’ and we will refer to the general duty provision(s) identified in the Act compliance note as ‘the parent provision(s)’.) This mechanism of prescribed compliance is of great importance to the regulatory scheme, as there are more than 200 regulations which contain an ‘Act compliance note’.[5]
[5]The regulations in question apply to a range of activities, including the following:
· physical hazards including manual handling, noise, prevention of falls, confined spaces, plant (machinery), high-risk work (using scaffolding, operation of tower cranes, forklift trucks and boilers);
· hazardous substances and materials; and
· hazardous industries including construction, major hazard facilities and mines.
The corollary of prescribed compliance is, of course, deemed breach. That is, since the only way for the duty-holder to discharge the general duty in connection with the relevant activity is to do what the relevant regulation requires, non-compliance with the regulation is — by definition — a breach of the general duty.[6]
[6]See Govic v Boral Australia Gypsum Ltd (2015) 47 VR 430, 471–2 [164]–[165] (Redlich, Osborn and Kyrou JJA); [2015] VSCA 130.
In the present case, the applicant (‘Seascape’) was charged with a deemed breach of the general duty imposed on it by s 23(1) of the Act. The charge (one of two on the indictment) alleged that Seascape had breached its duty under s 23(1) by contravening a prescribed compliance regulation, reg 327(1), which prescribes how ‘high risk construction work’ is to be performed and carries an ‘Act compliance note’ referring to ss 21, 23 and 24 of the Act.
The question which arose before the trial judge concerned the means of proving the deemed breach. The defence submitted that proof of the breach of duty required the prosecution to prove that Seascape had not complied with the requirements of the regulation. No reference to the terms of s 23(1) was required. The judge rejected that submission and adopted the prosecutor’s formulation of the elements of the offence, which incorporated one of the elements of s 23(1) and omitted the key element of the regulation. As will appear, that ruling left Seascape no alternative but to plead guilty to the deemed breach.
With respect to the judge, that formulation was erroneous. Where a duty-holder under the Act is alleged to have breached its duty by failing to comply with a prescribed compliance regulation, it is both necessary and sufficient for the prosecution to prove that there was non-compliance with the requirements of that regulation. If that non-compliance is proved, the charge of breach of duty is made out. No reference to the parent provision in the Act is necessary.
In the present case, there was a miscarriage of justice by reason of the fact that Seascape entered its plea of guilty as a direct result of the erroneous ruling. The Chief Crown Prosecutor properly conceded that this was so, and that the conviction could not stand. Accordingly, we granted leave to appeal, allowed the appeal, quashed the conviction and ordered a new trial. These are the reasons for the making of those orders.
Factual background
As already noted, Seascape was charged with breaching s 23(1) of the Act, which provides:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
In addition to the charge of deemed breach based on reg 327(1), there was an alternative charge alleging a direct breach of the general duty. That charge alleged that Seascape had failed to do what was ‘reasonably practicable’ to ensure that non-employees were not exposed to safety risks arising from the conduct of its undertaking. Because Seascape ultimately pleaded guilty to the deemed breach, the charge of direct breach was not pursued.
Regulation 327(1) provides as follows:
An employer … must not perform high risk construction work if there is a risk to the health or safety of any person arising from the work, unless—
(a)a safe work method statement is prepared for the work before the work commences; and
(b)the work is performed in accordance with the statement.
Note: Act compliance—sections 21, 23 and 24 (see regulation 7).
The charge of deemed breach was pleaded in these terms:
CHARGE 1: The Director of Public Prosecutions charges that SEASCAPE CONTRUCTIONS (ACN 083 415 561) at Kalkallo in Victoria on the 27th day of June 2017, pursuant to section 23(1) of the Occupational Health and Safety Act 2004 as an employer, failed to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of its undertaking as an employer, when, in contravention of regulation 327(1) of the Occupational Health and Safety Regulations 2017 (the Regulations) it failed to prepare, and ensure work was conducted in accordance with a safe work method statement before the commencement of high risk construction work.
Particulars:
1.Seascape Constructions Pty Ltd’s (‘Seascape’) undertaking as an employer included the construction of a two storey residential dwelling at Lot 10108 Toyon Road, Kalkallo (‘the Workplace’).
2.At all relevant times Seascape had management and control of the Workplace.
3.On 27 June 2017 Mario Mancini (‘Mancini’) and Wissam Taleb (‘Taleb’) were completing carpentry works at the Workplace including the laying of flooring sheets.
4.Persons laying flooring sheets were exposed to risks to their health and safety namely the risk of death or serious injury due to falling from a height of approximately 3.1 metres from an unprotected edge.
5.The laying of flooring sheets was ‘construction work’ within the meaning of regulation 321(1).
6.The laying of flooring sheets was ‘high risk construction work’ within the meaning of regulation 322(a) in that there was a risk of a person falling more than 2 metres.
7.Contrary to regulation 327(1) Seascape failed to ensure a safe work method statement (‘SWMS’):
a.had been prepared before the laying of flooring sheets commenced; and
b.the laying of flooring sheets was performed in accordance with such SWMS.
8.It was reasonably practicable for Seascape to ensure SWMS had been prepared before the work commenced and that work was performed in accordance with such SWMS.
9.Persons other than employees who were exposed to risks to their health and safety include Taleb and Mancini.
10.On 17 June 2017 the risk eventuated and Mancini fell from a height of 3.1 metres resulting in his death.
Statement of Offence – Failing to ensure that persons other than employees were not exposed to risks contrary to s 23(1) of the Occupational Health and Safety Act 2004.[7]
[7]Emphasis added.
The detailed particulars describe, sufficiently for present purposes, the factual circumstances giving rise to the alleged non-compliance with reg 327(1). Later in these reasons, we propose a different form of wording for such a charge.
In the course of pre-trial argument, the judge was asked to rule on the elements of the charge of deemed breach. Drawing on the terms of reg 327(1), the defence submitted a document listing the following elements:
(a)Seascape was an employer at the relevant time … ;
(b)Seascape performed high risk construction work, being work where there was a risk of a person falling more than two metres;
(c)the persons at risk of falling were not [Seascape’s] employees; and
(d)Seascape did not prepare a safe work method statement for that part of the work where there was a risk of a fall from a height of more than two metres; or
(e)Seascape did not perform the work in accordance with a safe work method statement prepared for that work.
There was no dispute regarding elements (a), (c), (d) or (e). As to element (b), however, the prosecutor submitted that it was not necessary to prove that Seascape had performed the high risk work. Instead, it was said, the relevant element should be expressed as follows:
Part of the conduct of the undertaking of the employer was work where there was a risk of a person falling more than two metres.
After hearing argument, the judge ruled that the prosecution’s formulation was correct and that she would direct the jury accordingly. The relevant part of the ruling said:
In my view, the submissions made by [defence counsel], although he has adopted the language of the relevant regulation — as [the prosecutor] has submitted — this may well lead to a situation where the very objectives of s 23 and more broadly the purpose of the Act, are completely denied and therefore, having regard to what the purposes of the Act are and the decision of McDonald J in Glenister v Wayne Horne Earthmoving … especially at [16], the draft elements that are set out by the prosecution seem to me to be entirely appropriate.[8]
[8]DPP v Seascape Constructions Pty Ltd (Ruling No 2) [2020] VCC 86, [2]. The decision in Glenister v Wayne Horne Earthmoving Pty Ltd [2018] VSC 390 (’Glenister’) is considered below.
The judge subsequently provided the parties with a draft of what she proposed to say to the jury about the elements of the deemed breach. Consistently with the ruling she had made, the draft reflected what the prosecution had put forward. The judge’s draft read as follows:
Elements in relation to Charge 1.
1. The accused company was an employer.
And
2. Part of the conduct of the undertaking of the employer was work, namely the installation of floorboards on the upper level of the building (‘that task’), where there was a risk of a person falling more than 2 metres.
And
3. The person/s at risk of falling were not the Accused’s employees
And,
Either:
4a). There was no safe work method statement (SWMS) for that part of the work where there was a risk of a fall from a height of more than 2 metres
Or
4b). The work was not conducted in accordance with a SWMS prepared for that task.
As can be seen from the terms of reg 327(1), the obligation is imposed on the employer to ‘perform’ the relevant work in the prescribed manner. At an early stage in pre-trial argument, defence counsel had informed the judge that there would be an issue about who had performed the work and, accordingly, about who had the obligation to prepare the safe work method statement (‘SWMS’). Counsel submitted that:
The subcontractors had to prepare their own safe work method statement and it’s the obligation upon them because the regulation talks about people who carry out the work. This work wasn’t being carried out by Seascape, it was being carried out by the carpenters.
The prosecutor acknowledged that it would be a question for the jury whether the ‘subcontracting dispose[d] of the obligations’. Her submission was that:
[I]f it were to be argued that it was not Seascape itself doing the relevant work but rather its sub-contracting party then there may be an attempt to avoid liability in that way.
The prosecutor further submitted that, in interpreting the regulation, the judge should have regard to the language of s 23(1) itself and, in particular, to the phrase ‘risks … arising from the conduct of the undertaking of the employer’. According to the submission, it was Seascape’s conduct of its undertaking which ‘enlivened’ the obligation under reg 327(1). It was evidently for that reason that the prosecutor’s formulation of the elements of the offence made no reference to the work having been performed by Seascape itself but referred instead to the work having been ‘part of the conduct of the undertaking of the employer’.
Consideration
The combined effect of regs 7 and 327(1) was that, in relation to the performance of high risk construction work, any applicable duty under the sections of the Act listed in the ‘Act compliance note’ (ss 21, 23 and 24) had to be performed in the manner set out in the regulation. In identifying the elements of the deemed breach of duty, therefore, there was simply no occasion to have regard to the language of s 23(1) itself. Because a breach of the regulation was a breach of the general duty, the words of the regulation effectively stood in place of the words of the parent provision.
Accordingly, where an employer is charged with a deemed breach of s 23(1) on the basis of non-compliance with a prescribed compliance regulation, no question arises about the nature or scope of the employer’s ‘undertaking’ or about what was ‘reasonably practicable’ in the circumstances. The only question is whether there has been non-compliance with the requirements of the relevant regulation. In the present case, the critical issue — given what defence counsel had said — was whether the prosecution could prove that Seascape had performed the relevant work, and had done so without having prepared (or otherwise not in compliance with) an SWMS.
What we have said about the effect of reg 7 and the ‘Act compliance note’ accords with what was said by Gageler J in Deal v Father Pius Kodakkathanath (‘Deal’).[9]Although the High Court was there concerned with a different prescribed compliance regulation and a different parent provision (s 21 of the Act), the analysis applies with equal force here. His Honour said:
The context of ss 20, 21 and 158(1)(a) and reg 1.1.7 explains the focus of regs 3.1.1, 3.1.2 and 3.1.3: on a particular category of workplace activity, and on exposure to a particular category of workplace risk. The activity and the risk together define the matters in relation to which those regulations prescribe the manner in which an employer's main duty under s 21 is to be performed.
…
The context therefore makes plain that the purpose of regs 3.1.1, 3.1.2 and 3.1.3 is to prescribe how an employer must perform the main duty imposed by s 21 in relation to the particular matter of the risk of a musculoskeletal disorder causally related to hazardous manual handling.[10]
[9](2016) 258 CLR 281; [2016] HCA 31.
[10]Ibid 304 [65], 305 [68].
In Glenister,[11] McDonald J was also concerned with ‘high risk construction work’, but the events in question were governed by the predecessor of reg 327(1) under the 2007 Regulations (reg 5.1.9). The applicable parent provision was s 21. After citing Deal, his Honour said:
The High Court’s approach to the construction of reg 3.1.2 and s 21 applies equally to the construction of reg 5.1.9 and s 21. Regulation 5.1.9 prescribes the mode of compliance of an employer with the duty imposed under s 21 in relation to the performance of high risk construction work where there is a risk to the health and safety of any person arising from the work. Regulation 5.1.9 requires a SWMS to be prepared for the work before the work commences. Further, the work is to be performed in accordance with the SWMS. If there is a risk to health and safety arising from the work, an employer who fails to comply with either of these requirements will breach the duty imposed by s 21 to provide and maintain, so far as reasonably practicable, a working environment that is safe and without risk to health. It is not necessary for the prosecution to establish in proof of the alleged breach of s 21 how the failure to prepare and implement a SWMS would have reduced or eliminated the risk to health and safety so far as reasonably practicable.[12]
[11][2018] VSC 390.
[12]Ibid [16] (emphasis added).
In our respectful opinion, this analysis was entirely correct. Applied to the present case, it should have resulted in an acceptance of the defence formulation of the elements of the offence. Had that occurred, the prosecution would have been required to allege, and prove, that Seascape performed the high risk construction work.
Withdrawal of the plea of guilty
As indicated earlier, the Chief Crown Prosecutor conceded that the plea of guilty had been entered as a direct result of the judge’s ruling and that, in the circumstances, the conviction must be set aside. That concession having been readily made once at the conclusion of argument on the elements of the offence, it was unnecessary for us to hear submissions on the withdrawal of the plea of guilty.
It is sufficient, therefore, for us to say that the concession was both scrupulously fair and entirely appropriate. There is a firm foundation in the authorities, both in this State and elsewhere, for the proposition that there can be a successful appeal against conviction in circumstances such as these. That is, a person who pleads guilty as a direct result of a judge having ruled that he/she may not rely on a proposed defence may on appeal contend that the ruling was erroneous, that the plea was therefore ‘tainted’ and that there has as a result been a miscarriage of justice.[13]
[13]See, eg, Mirzazadeh v The Queen [2016] NSWCCA 65 [73], [80] (Hoeben CJ at CL). See also R v Vasic (2005) 11 VR 380, 388 [26] (Vincent JA), 388 [28] (Cummins AJA); [2005] VSCA 38.
In the present case, there was uncontested affidavit evidence from a director of Seascape that, following the judge’s ruling, he had been advised that it would be futile for the company to seek to defend the charge of deemed breach. On that basis, he had given instructions for the plea of guilty to be entered.
Since the erroneous exclusion of the ‘performance’ element of reg 327(1) prevented Seascape from relying on its only defence, it would have been unjust for Seascape to be held to its plea of guilty. There having thus been a substantial miscarriage of justice, the conviction had to be quashed.
Rewording the charge
As can be seen,[14] the charge of deemed breach was expressed in the language of s 23(1). Seascape’s offence was said to be its alleged failure ‘to ensure, so far as was reasonably practicable, that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of its undertaking’. This failure was alleged to have occurred ‘when, in contravention of reg 327(1) … it failed to prepare, and ensure work was conducted in accordance with, a safe work method statement before the commencement of high risk construction work’.
[14]See para 14 above.
In our view, it is unnecessary and undesirable for a charge of deemed breach to recite the terms of the parent provision. It is unnecessary because no proof is required of a breach of any of the requirements of that provision. It is undesirable because inclusion of the language of the parent provision is liable to suggest, misleadingly, that such proof is required.
This may explain the erroneous inclusion (in the particulars of the charge against Seascape) of allegations that Seascape’s undertaking included the work in question, and that compliance with the requirements of reg 327(1) ‘was reasonably practicable’. As we have said, no question arose either of the scope of Seascape’s undertaking or of whether the prescribed safety measures were reasonably practicable.
It would have been sufficient, in our view, if the charge had identified the offence as a breach of s 23(1) and had then identified the acts and omissions on the part of Seascape alleged to have constituted its non-compliance with the requirements of reg 327(1). This is how the relevant part of the charge would have read:
[Seascape] … as an employer, contravened s 23(1) of the Occupational Health and Safety Act 2004 by performing high risk construction work in breach of the requirements of regulation 327(1) of the Occupational Health and Safety Regulations2017, in that it performed the work without having first prepared a safe work method statement and/or without ensuring that the work was performed in accordance with a safe work method statement.
In our view, a charge in that form would satisfy the requirement (in sub-cl 1(a) of sch 1 to the Criminal Procedure Act2009) that a charge ‘must state the offence that the accused is alleged to have committed’. The charge would also accord with the intent of cl 3 of that schedule, which relevantly provides as follows:
3 Statutory offence
(1) In this clause—
statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.
(2)For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it—
(a) identifies the provision creating the offence; and
(b)describes the offence in the words of the provision creating it, or in similar words.
Sub-clause (2) is, of course, permissive rather than prescriptive. But, in our view, the formulation we have proposed serves the intended purpose of the sub-clause, by identifying the provision creating the offence (s 23(1)) and then describing the offence in the words of the relevant provision, breach of which is said to constitute the offence (reg 327(1)).
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