St Vincent's Care Services Ltd v The Queen - [2022] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0137

ST VINCENT’S CARE SERVICES PTY LTD (ACN 055 210 378)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF JUDGMENT:	2 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 186
JUDGMENT APPEALED FROM:	[2021] VCC 1035; [2021] VCC 1315 (Judge O’Connell)

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CRIMINAL LAW – Conviction – Appeal – One charge of failing to ensure that people other than employees were not exposed to risks to health and safety arising from the conduct of an undertaking – Residential care facility permitting residents to leave facility with having monitored ‘sign out/sign in’ register – Whether conviction unreasonable or unable to be supported – Prosecution failing to prove there was a risk to health and safety arising from applicant’s undertaking – Prosecution failing to prove that applicant failed to take a reasonably practicable measure that would have eliminated or reduced risk.

Occupational Health and Safety Act 2004, ss 20 and 23(1) – Criminal Procedure Act 2009, ss 276(1)(a) and 420F(2).

M v The Queen (1994) 181 CLR 487, Dansie v The Queen [2022] HCA 25, applied; R v Associated Octel Co Ltd [1996] 1 WLR 1543, DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, referred to.

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Counsel
Applicant:		Mr BW Walker SC with Mr RW O’Neill
Respondent		Mr PJ Doyle SC with Ms MJ Brown
Solicitors
Applicant:	Minter Ellison
Second Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
MACAULAY JA:

The applicant is the operator of an aged care facility known as St Vincent’s Care Werribee (‘the facility’). In February 2018, William Keating became a resident at the facility. At the time, he was 88 years of age and, according to his daughter, Jennifer Luckhurst, did not have dementia, ‘was really with it’, and was not being treated for any medical ailments.
At approximately 8.30 am on Saturday 10 March 2018, Mr Keating left the facility for a walk, taking a newspaper with him in the basket of his walker. At about 9.30 am, Ms Luckhurst and her husband arrived at the facility for the purpose of visiting Mr Keating. They discovered that he was not in his room and began searching for him. At around 11 am, Mr Keating was found about 100 metres from the facility, having fallen into an area under excavation. As a result of his fall, Mr Keating was badly injured and required hospitalisation.
On 30 July 2021, following a judge alone trial, a judge of the County Court found the applicant guilty of one charge of failing to ensure persons other than employees were not exposed to risks to their health and safety arising from the conduct of the applicant’s undertaking, contrary to s 23(1) of the Occupational Health and Safety Act 2004 (‘the OHS Act’).[1] On 14 September 2021, the applicant was sentenced to pay a fine…

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.

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Details

Case: [2022] VSCA 186
Decision Date: 2 September 2022

CaseChat Overview and Summary

St Vincent's Care Services Ltd was charged with an offence under section 20 of the Occupational Health and Safety Act 2004 for failing to ensure that non-employees were not exposed to health and safety risks arising from the conduct of an undertaking. The incident in question occurred at a residential care facility, where residents were permitted to leave the premises without signing out on a 'sign out/sign in' register. The Crown Court of Victoria heard the appeal against conviction, and the High Court of Australia was asked to determine the legality of the conviction. The central legal issues before the court were whether the conviction was unreasonable or unsupported and whether the prosecution had proven that there was a health and safety risk arising from the undertaking and that the applicant failed to take a reasonably practicable measure that would have eliminated or reduced the risk.

The court examined the applicable provisions of the Occupational Health and Safety Act 2004, particularly sections 20 and 23(1), and the Criminal Procedure Act 2009, specifically sections 276(1)(a) and 420F(2). The court referred to the principles established in M v The Queen (1994) 181 CLR 487, Dansie v The Queen [2022] HCA 25, and R v Associated Octel Co Ltd [1996] 1 WLR 1543, and considered the case of DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676. The court found that the prosecution had not proven the existence of a health and safety risk arising from the undertaking, nor had it demonstrated that the applicant failed to take a reasonably practicable measure to eliminate or reduce the risk. As a result, the court determined that the conviction was unreasonable and could not be supported.

Upon finding that the conviction was unreasonable and unsupported, the court quashed the conviction. The court did not consider it necessary to make any further orders. This decision underscores the importance of the prosecution proving the existence of a health and safety risk and that a reasonably practicable measure was not taken to eliminate or reduce that risk in cases involving breaches of occupational health and safety legislation.

Orders