The Queen v David Walton Spencer
[2001] NZCA 118
•5 April 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA353/00 |
THE QUEEN
V
DAVID WALTON SPENCER
| Hearing: | 27 March 2001 |
| Coram: | Thomas J |
| Appearances: | H B Rennie QC and R S Scott for the Appellant D Boldt for the Crown |
| Judgment: | 5 April 2001 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
The course of the proceedings
David Spencer appeals against his conviction for manslaughter arising out of the tragic death of one of his co-workers. He contends, first, that the manslaughter proceedings, taken together with an earlier prosecution of his company, David Spencer Limited, under the Health and Safety in Employment Act 1992, amounted to an abuse of process and, second, that various errors occurred during the trial, particularly in the Judge’s directions to the jury. As will appear, we consider that a ground relating to the directions to the jury is made out. The appeal is allowed and conviction set aside on that account. There will not be a new trial. We do not reach a conclusion on the abuse of process ground.
Paul Rosson, a labourer employed by David Spencer Limited, was killed on 13 May 1998 by the collapse of a trench which was being excavated by his employer at Wellington Airport. The work was being done under a contract between the Wellington City Council and the company. Mr Spencer was in the trench with Mr Rosson at the time of the collapse. The police and the Occupational Safety and Health Service immediately began an investigation on a joint basis. They exchanged reports from engineers regarding the methods that might have been used to prevent the collapse.
On 16 October 1998, five months after the death, a Health and Safety Inspector laid an information against David Spencer Limited alleging that, in breach of ss6 and 50(a) of the Health and Safety in Employment Act, the company,
being an employer, failed to take all practicable steps to ensure the safety of an employee, namely Paul Kevin Rosson, while at work in that it failed to ensure Paul Kevin Rosson was not exposed to the hazard of the collapse of the face of an excavation.
David Spencer, as the sole director and major shareholder in his company, made the decision that the company would plead guilty and on 25 March 1999, about a further five months after the information was laid, a District Court Judge sentenced the company to pay a fine of $25,000, of which $17,000 was to go to Mr Rosson’s wife.
One week later, on 1 April 1999, the police laid an information against Mr Spencer alleging the crime of manslaughter. The information alleged that he
having made a trench which in the absence of precaution or care may endanger human life omitted without lawful excuse to take reasonable precautions and care to avoid such danger thereby causing the death of Paul Kevin Rosson … .
Following depositions, the appellant applied to a District Court Judge to stay the proceedings on the grounds of abuse of process. That application was refused (Police v Spencer [1999] DCR 1098) as was an application to the High Court for judicial review of that refusal (Spencer v Wellington District Court [2000] 3 NZLR 102). The manslaughter prosecution proceeded and, as indicated, the appellant was found guilty by the jury and was convicted. He was sentenced to eighty hours community service and to make reparation of $20,000 to Mr Rosson’s family - $10,000 to his widow and $5,000 to each of his parents.
We turn first to the grounds of appeal which relate to the trial itself.
The indictment
The ground of appeal relating to the indictment is that it charged the appellant, “having made a trench”, with certain failures. The argument is that the Crown should have alleged that there was an omission by the company, David Spencer Limited, to discharge its duty under s156 of the Crimes Act 1961 and not by David Spencer because it was for the company to ensure that that duty was met. While that submission has some technical force in terms of the contractual arrangements between the company and the City Council, it has no substantial merit at all. The reality was that Mr Spencer himself was actually responsible, with the authority of the company, for making the trench. It was he who in any real sense was in charge of making that trench. We can see no possible problem arising from the way the indictment was framed.
The Judge’s direction
Under s150A of the Crimes Act, as inserted in 1997 at the beginning of the long established set of provisions stating Duties Tending to the Preservation of Life, a person is criminally responsible for a breach of the duties “only if, in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”.
As Mr Rennie’s argument evolved in the course of the oral hearing of the appeal, he stressed the Judge’s failure to give appropriate emphasis to the requirement of a major departure by reference to the facts of this particular case. In addition to that complaint of failing sufficiently to tailor the direction to the facts, he also pointed to what he said was a critical error in the directions relating to the level of negligence required for conviction. The basis in the evidence for the submission was that none of those on the site, including the City Council engineers who visited frequently to ensure compliance of the work with the contract and the company’s own workers, noticed any danger that the excavation would collapse in the way it did.
In his summing up, the Judge referred to s150A and to its requirement that the failure has to be “to a major degree, not a minor slip, not a minor error, not mere carelessness or negligence, not want of reasonable care, but want of reasonable care to a major degree”. He then ran through four questions which were also asked in a flow chart provided to the jury :
1.Did the accused make a trench, which in the absence of precaution or care, might endanger human life?
If so:
2.Did he omit (without lawful excuse) to take reasonable precautions against, or use reasonable care, to avoid such danger?
If so:
3.Was such an omission to take reasonable precautions and/or use reasonable care, a major departure from the standard of care expected of a reasonable drainage contractor, or a foreman, in those circumstances.
(In that context “major” means gross negligence, or serious lack of care of a high degree).
If so:
4.Was the omission to perform such legal duty an operative cause of the death of the deceased?
A short time later in elaborating on the alleged failure to perform a legal duty, the Judge said that the jury had to decide whether the Crown had proved beyond reasonable doubt
that the accused was in charge of, or had under his control or had erected or made a dangerous thing. Was this trench, in this place, in these circumstances, this depth, a dangerous thing? Well that is a matter for you. Someone fell into it a number of days before, so you might think that intrinsically it is – but it is entirely a matter for you.
That comment about danger was criticised by Mr Rennie.
In elaborating on the major departure issue, the Judge said this:
What is reasonable must be judged in light of all the circumstances. It is for you to determine that. You must decide what is an appropriate standard of care for a senior foreman, man in charge on the site of a drainage company who is in charge of the site. What is reasonable is not to be judged in the light of hindsight. They talk about the wisdom of hindsight – it is actually not a wisdom, it is a folly. So don’t judge on hindsight. Rather you consider the consequences of breach of legal duty to take reasonable care only if the departure from the appropriate standard of care is major. That calls for a value judgment by you. You must bring your own value judgment to it. A high degree of negligence is required. That negligence capable of being fairly described as gross negligence, or negligence that shows such a disregard of life and safety as to be appropriately regarded as a serious crime and warranting punishment.
Next, the Judge commented on the expert evidence emphasising, in standard terms, that it was for the jury to make its own determination. At the end of his discussion of that evidence he reminded the jury again that criminal responsibility exists only if the departure from the appropriate standard of care is major. There then followed the summary of the Crown and defence cases.
In the summary of the Crown case this passage, which the appellant criticises, appears:
The Crown says this was a flagrant and major failure that caused the death. The Crown says on the side issues about the Wellington City Council’s role, well they say you can place what weight you think on Mr Nelson’s evidence and his visits. [Mr Nelson, as a City Council engineer, had visited the site on about 45 occasions to ensure the construction was complying with the design and in accordance with the delivery and specifications for the work.] I simply tell you this, his opinion is part of the evidence as a whole. The fact that one person is negligent does not absolve the negligence of another provided the ingredients of the crime are established but you will bear in mind the evidence of Mr Nelson, namely that he didn’t turn his mind to it. That is the Crown’s whole case in relation to Mr Spencer. It says he didn’t turn his mind to it and he should have as the boss on the site.
In his summary of the defence case the Judge returned to the incident involving someone falling into the trench but in a way which appears to contradict the reference to the incident that he had made a short time before (para [11]):
Mr Turkington [for Mr Spencer] said that no one suggested that the site was dangerous and that is true. There was a suggestion that a chap fell into it a few nights before but that had nothing to do with this situation. Nobody came along and said “hey look Mr Spencer you should have a battering or steel sides there if you guys are working in that trench” and Mr Turkington said that people who you might have expected to have said something didn’t. He says “why not?” Because it didn’t occur to them. You will bear that in mind. He refers you to the evidence of the engineers or other people who visited the site and who felt it was safe. As events turned out it wasn’t but that’s not the test. Mr Turkington said alarms didn’t ring even when Health and Safety Inspectors visited to look at the situation after the man fell into the trench. You will remember the evidence about that and that it had been covered over and so forth but those are all matters which are relevant to you in determining the degree of care and the reasonableness of the actions of the accused. But Mr Turkington says draw together all that evidence in judging firstly, what the standard of care was, and secondly, whether there was a major departure from it.
The summary also called attention to the defence argument that none of the workers and none of the visitors to the site, including engineers, mentioned any possible risk in the way that the excavation was being carried out.
The Judge returned to the question of a major departure when, in answer to a question from the jury, he repeated what he had said to them in summing up, as set out earlier (para [12], last four sentences), and elaborated on the word “major”:
“Major” is an ordinary English word. It can mean substantial or gross, or to a large degree. Contrast it with the word “minor”. To be a major departure from a standard of reasonable care there must be more than just simple carelessness, or simple negligence because otherwise the sanctions of the criminal law might apply to very many people in our community. It is uniquely your function as a jury to determine whether in the context of this case, and this evidence, whether the Crown has proven to the required standard that if there was a departure from what you think should have been reasonable care and that that departure is major, that is to a large degree substantial, very significant or gross.
The complaints in the end are two fold:
1. The failure of the Judge in the summing up to tailor the directions to the particular circumstances, in particular his failure to give any emphasis or indeed even to mention in his own directions (as opposed to his summaries of the contending cases) the evidence that those at the site and visiting the site were not aware of any danger.
2. The Judge’s failure when addressing the Crown case, in a comment which appears plainly to be a statement of his own position rather than the Crown’s, to emphasise the difference between ordinary negligence and the major departure that s150A calls for.
So far as the first complaint is concerned, it is of course true that the summary of the defence case did highlight the evidence of the lack of awareness of others. But that is merely in the summary of the defence case. The Judge does not relate his own direction (paras [12] and [17]) to that critical part of the defence case. This causes us real concern about a possible miscarriage of justice, a concern which is enhanced when taken with the second point. To recall the passage relevant to that point (para [14]), the Judge, speaking for himself and departing from his summarising of the Crown case, said that the fact that one person is negligent does not absolve the negligence of another provided that the ingredients of the crime are established. He went on “you will bear in mind the evidence of Mr Nelson namely that he didn’t turn his mind to it. That is the Crown’s whole case in relation to Mr Spencer. It says he didn’t turn his mind to it and he should have as the boss on the site.” The failure in that important comment to highlight again the requirement that the departure must be major does give rise, with the other matter, to a real danger of a miscarriage of justice. What is missing is that the Judge has not pointed out that the fact that negligence of persons on site may indicate that what the appellant also did negligently was not so far removed from ordinary standards as to constitute a major departure. If others could even negligently fail to detect the danger presented by the condition of the trench, that might have suggested to the jury that the appellant’s negligence did not amount to gross negligence.
Accordingly on this ground alone we allow the appeal and quash the conviction. In all the circumstances of the case we do not order a new trial. Given the processes that have been followed to date, the penalty that has already been imposed on Mr Spencer’s company and matters relating to abuse of process to which we now turn, we conclude that the criminal legal processes should now be brought to an end.
Abuse of process
The appellant’s complaint of abuse of process is essentially based on the timing of the steps. The manslaughter prosecution was not launched until after the OSH prosecution was finally disposed of on the basis of a guilty plea. This meant that Mr Spencer, on his own behalf and on behalf of the company, did not have the opportunity to make an overall assessment of his and its position in relation to two charges. Had the two charges been able to have been dealt with together there could have been no complaint. The likely course would have been for the OSH prosecution to have been held over until the manslaughter charge had been finally dealt with.
The guilty plea, decided by Mr Spencer, had possibly serious consequences for his defence of the later charge which he had had no reason at all to anticipate would be filed just a week after the earlier prosecution was disposed of. While it was true that the manslaughter charge required the Crown to establish further elements, it arose out of the same events as that to which his company had pleaded guilty. His difficulties were increased, it was said, by the provisions of s56 of the Health and Safety in Employment Act which provides that someone in Mr Spencer’s position is also liable to be convicted for the offence of which the company had been convicted. As well, because of the timing, he faced the problem which he would not otherwise have faced of deciding whether and if so how the guilty plea and conviction were to be referred to before the jury.
While the defendants were not identical in law, the reality was different. That reality was recognised by both the District Court and High Court Judges when they said, in rejecting the stay application and the related review application, that any fine imposed on the company would be relevant to the sentencing of Mr Spencer on the manslaughter charge were he convicted ([1999] DCR at 1098, [2000] 3 NZLR at 112 (paras 39 and 40(e))), and in the sentencing remarks themselves:
In the present case some further punishment of you, for the tragedy that occurred, is required. The fine that was punishment upon you through the fictional entity of your company is taken into account but some further punishment cannot be avoided by reason of the jury’s verdict. I take into account the fine fixed in the District Court, however, in fixing an appropriate sentence.
The Crown’s answer to those contentions is largely implicit in what has already been said. This was not a case of a bar in terms of double jeopardy for two reasons : the two defendants were different in law and the charges were different. While the timing of the laying of the manslaughter charge was unfortunate, that alone did not provide the basis for a complaint of abuse of process. It did not create any real prejudice.
Counsel helpfully referred us to a range of authorities relating to courts’ powers to prevent abuse of process. Given the position which we have reached on this appeal, we do not consider them in any detail. They generally begin with the proposition that courts have an inherent power to prevent abuse of process. This power is not constrained by the rules relating to double jeopardy. In the words of Lord Reid “there must always be a residual discretion to prevent anything which savours of abuse of process”; Connelly v Director of Public Prosecution [1964] AC 1254, 1296. The power does not extend to allowing a Court simply to substitute its view for that of a prosecutor about whether a prosecution should continue or not. But in terms of constitutional principle, the Court must be master and must have the last word, where to countenance the continuation of the prosecution would be contrary to the recognised purposes of the administration of justice (see eg Moevao v Department of Labour [1980] 1 NZLR 464, 482, and the cases referred to in the judgments in that case).
Mr Rennie also made a more specific argument about the sequencing and the escalation of the charges based on what Lord Devlin said in Connelly at 1359-60, as applied recently by the English Court of Appeal in R v Beedie [1998] QB 356. The prosecutor should have to show “special circumstances” before a later indictment should be allowed. As Mr Boldt pointed out for the Crown, Lord Devlin was contemplating a situation in which all the counts were indictable and could have been included in the one indictment. That point may be seen as rather formalistic and against it can be put what Lord Cockburn CJ referred to 140 years ago as “the well established principle … that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form” (The Queen v Elrington (1861) 1 B & S 688, 696; 121 ER 870). That was a case of an earlier summary prosecution followed by indictable proceedings. But the defendant was the same and the initial charge (of assault) had led to an acquittal.
The members of the Court consider that the arguments on both sides of the abuse of process issue are strong. Given the conclusion we have reached on the ground relating to the directions to the jury, we take the matter no further.
As indicated, the appeal is allowed and the conviction is set aside. There will not be a new trial.
Solicitors:
Crown Law Office, Wellington.
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