Inspector Jones v Dewcape Pty Ltd and Another

CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - application by way of notice of motion - application that proceedings by permanently stayed on ground of an abuse of process - alternative application that interim stay of proceedings be granted pending the final outcome of a coronial inquest - whether delay in filing of applications for order - whether evidence improperly investigated by prosecutor - whether evidence sufficient to launch the prosecutions under s 8(2), ss 8(2) and 26(1) and s 20(1) of the 2000 Act - grounds not made out - notice of motion dismissed.

Coroners Act 1980 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000

Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (Insp Ch'ng) (1999) 90 IR 432 Hawthorne (Dept of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 Haynes v CI&D Manufacturing Pty Limited (1994) 60 IR 149 Inspector Stewart v Siemans Dematic Pty Ltd (formerly Inspector Wolf v Port Kembla Copper Pty Limited [2006] NSWIRComm 341 CASES CITED: Jago v The District Court of New South Wales and others (1989) 168 CLR 23 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Mannesman Dematic Colby Pty Ltd) (No. 2) [2003] NSWIRComm 45 R v O'Meara [2001] NSWCCA 201 South Sydney Rugby League Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 WorkCover Authority (Inspector Patton) v Fletcher Construction Aust. Ltd (2002) 123 IR 121

Prosecutor: Mr M Cahill of counsel Solicitors: Criminal Law Division Legal Servies LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales

Defendants: Mr R Bonnici of counsel Solicitors: Miller Lewis Lawyers

Prosecutions under s 8, ss8 and 26(1) and s 20(1) of the Occupational Health and Safety Act 2000

1 This is an application by way of Notice of Motion filed on 16 May 2005 on behalf of two defendants in prosecutions brought under s 8(2) of the Occupational Health and Safety Act 2000 against Dewcape Pty Ltd (the first defendant) and under ss 8(2) and 26(1), in the alternative s 20(1), against Andrew Ishak (the second defendant). 2 Both prosecutions have not been set down for hearing although I understand that pleas of not guilty will be entered (but at this stage have not formally been entered) by both defendants to all the charges. 3 The charges concern an incident on 7 January 2003 when a truck upon which was mounted a concrete placing boom was parked in a driveway with its back extending outside the property across the footpath to the gutter line. To the left of the truck stood a tree approximately 9 metres in height. A combination of high voltage powerlines (11kV), low voltage mains and street lighting were slung along the street frontage between 7.2 metres and 9.5 metres above the footpath. Each set of wires passed directly over the back of the truck upon which the boom was mounted. The boom was 3950mm high when at rest. According to the evidence tendered on the application the safe working distance for electricity mains up to 132kV (132,000 volts) was 3 metres. 4 After deploying the boom, concrete was poured. As this was occurring a storm passed through the area. While the storm passed overhead and as the boom was being retracted (folded) it was apparently slewed by the operator into the foliage of the tree. A worker, Marcel Budwee who had been standing to the rear side of the boom was then seen lying on the ground. A post mortem conducted on 10 January 2003 revealed injuries to Mr Budwee consistent with electrocution. The first defendant was the head contractor at the time, retained to coordinate and supervise the construction of a two-storey residential premises on the property. The second defendant was employed by the first defendant to manage and supervise the construction on the property. Buddy Challita was the concrete placing boom operator, employed by a company, Mr Pump Pty Ltd. 5 The Notice of Motion seeks orders, including certain consequential orders in the following terms:

1. An Order that the proceedings against the Applicant, Dewcape Pty Ltd, pursuant to section 8(2) of the Occupational Health and Safety Act 2000 be permanently stayed on the basis that it constitutes an abuse of process.

2. An Order that the proceedings against the Applicant, Andrew Ishak pursuant to section 26(1) and in the alternative section 20(1) of the Occupational Health and Safety Act 2000 be permanently stayed on the basis that they constitute and (sic) abuse of process.

3. In the alternative, and if a permanent stay is not granted to the Applicants, then an Order that an interim stay of proceedings to the criminal prosecutions be allowed pending the final outcome of a coronial inquest into the matter. 6 The grounds and reasons set out in the Notice of Motion are numerous and many appear to overlap. During oral submissions, counsel for both defendants, Mr Bonnici informed the Court that there were three bases underlying the application. These were, first, that there is insufficient evidence contained in the brief of evidence upon which the prosecutor can make out the respective cases beyond reasonable doubt. (I should observe at this juncture that the brief of evidence was not tendered on the application although it was said to be relied upon by Mr Cahill, counsel for the prosecutor). A related basis which also emerged during oral submissions was an allegation made by the defendants that the inspector had failed to properly investigate the circumstances which gave rise to the charges. Secondly, it was asserted that the evidence of Mr Challita, the boom pump operator, will show that there is insufficient evidence upon which the prosecutor can proceed against the second defendant and that the available evidence has been improperly investigated. Thirdly, it was asserted that because of delay in the filing of the charges against both defendants, they have been "severely prejudiced". 7 A further issue raised by the defendants, which appears to bear some connection, at least insofar as the defendants maintain, to the three bases outlined above, concerns their contention that a failure to hold a coronial inquest into Mr Budwee's death also amounts to an abuse of process. The issue of the inquest is also said to have some relevance to the present application because, as I understand the assertion, the prosecutor was waiting for an inquest to be held in order to gather sufficient evidence which he did not otherwise have and which was necessary to launch the prosecutions. When, some two days prior to the expiration of the time within which charges could be filed no inquest had been held, the prosecutor only then made a decision to file the charges. 8 The grounds and reasons set out in the Notice of Motion are accompanied by an affidavit of Justin George Lewis, the defendants' solicitor. This affidavit purports to expand in some detail upon the grounds and reasons set out in the Notice of Motion, and it makes reference to some of the anticipated evidence in the substantive proceedings. 9 Distilling the precise grounds and reasons upon which the defendants allege that the proceedings constitute an abuse of process from these two documents reveals considerable overlap between the grounds said to give rise to an abuse of process. I propose therefore to consider the grounds set out in the Notice of Motion together where there is obvious overlap. 10 Grounds 1, 2, 5, 6 and 7 in the Notice of Motion appear to deal with the issue of delay. They are set out in full below:

1. A coronial inquest into the fatal accident of Marcel Budwee at 10 Stanley Street, Putney in the State of New South Wales on 8 January 2003 should have been held before any charges were laid against Andrew Ishak and or Dewcape Pty Limited.

2. The reason for prosecuting the Applicants does not appear to be based on the evidence, per se, or any recommendations, but on the fact that the Respondent realised that the limitation period of two years from the date of the accident had just days to run before it expired.

5. The police investigation into the matter indicated that as far as the Applicant is concerned there were no criminal charges to be laid.

6. Without a coronial inquest, which should have been mandatory in this case, and contrary to the recommendations and opinion of the police investigators involved, the Respondent unilaterally and without considered supporting evidence, decided to take out criminal prosecutions against the Applicants.

7. It was only after a Summons for Production was issued on behalf of the Applicants, that the police statements were supplied. 11 Mr Lewis in his affidavit relies on a letter from the WorkCover Authority of NSW dated 20 January 2005 as some support for the contention that proceedings were commenced by the prosecutor only to avoid the expiration of the two year limitation period and that this in turn gives rise to an abuse of process as well as "very unfair prejudice" to the defendants. The portion of the letter upon which particular reliance is placed states:

We note that an inquest is (sic) been held in the above matter and no inquest date has been set. The two-year time period from the date of the incident expired on the 8th of January 2005. In these circumstances, WorkCover has had to commence proceedings under the Act arising out of the incident. 12 The affidavit also relies on a report of Senior Constable Greg Winter, a police officer involved in the investigation of the death of Mr Budwee for the purposes of compiling a brief of evidence for the Coroner. Senior Constable Winter also gave evidence on the Notice of Motion. The report states:

Police are investigating the death of Marcel Budwee who died on a construction site at Putney on the 8th January 2003. Andrew Ishak was a foreman at that site when the accident occurred. Police have no interest in Ishsk (sic) at this point of time as far as criminal proceedings are concerned, but the matter is still listed in the Coroner's Court and will be mentioned in that court in May 2005. 13 The defendants seek to derive some support from Senior Constable Winter's statement that the second defendant is of "no interest", to the police, "at this point in time". 14 I will deal with this latter point first. Members of the NSW Police are not empowered to commence proceedings for offences under the 2000 Act: see s 106(1) of the Act. Under Part 5, Divisions 1 and 2 of the 2000 Act inspectors are appointed by WorkCover to investigate and prosecute offenders under the Act. The defendants have been charged under s 8(2), ss 8(2) and 26(1), and s 20(1) of the 2000 Act. Liability in relation to those alleged offences is not dependent upon the occurrence of injury or death, but whether at the relevant time there was some failure to ensure safety attributable to a defendant which resulted in or caused a risk to the safety of workers or other persons either at work or at an employer's place of work: Haynes v CI&D Manufacturing Pty Limited (1994) 60 IR 149 at 157. In State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 the Full Bench stated the relevant proposition at (120-121):

Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v The Broken Hill Proprietary Company Limited ((1988) unreported) to the effect that "it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety". 15 The compilation of evidence by the NSW Police in anticipation of a coronial inquest proceeds upon an entirely different set of considerations. The emphasis is on the cause of death, which is not an element of an offence under the 2000 Act: see Coroners Act 1980, s 13. 16 It was common ground during the hearing of the application that an inquest into the death Mr Budwee has not been held. Nor is the Coroner compelled in all cases to hold an inquest: see s 14, s 14B. More significantly there is nothing in the Coroners Act, the 2000 Act (or any other Act) which requires that an inquest be held before criminal proceedings may be commenced under the 2000 Act. 17 As to the alleged delay which the defendants contend resulted in a, "...hasty and not properly considered decision to prosecute", s 107(1) of the 2000 Act provides for the commencement of proceedings for an offence against s 8(2) and s 20(1) within a period of 2 years from the date of the alleged offences. The offences were alleged to have been committed on 8 January 2003. The charges were filed on 23 December 2004. It follows that the prosecutions were commenced within time. The circumstances therefore do not provide a basis for any complaint about delay. The defendants seek a permanent stay of the proceedings based on this "delay". A permanent stay however may only be ordered on the basis of delay "...in an extreme case", and the making of such an order will, "...accordingly be very rare": Jago v The District Court of New South Wales and others (1989) 168 CLR 23 at 34. In my opinion no such basis has been disclosed here. 18 A number of overlapping grounds and reasons relied upon by the defendants in the Notice of Motion appear to deal with the contention that because Mr Challita was "directly responsible" or "most accountable" for the safety of Mr Budwee that there must therefore be a reasonable doubt as to the liability of the defendants, in particular the second defendant, who, it is asserted, was not present at the time of the accident, having left the worksite. These grounds are extracted below:

3. The person directly responsible pursuant to the definition of the Occupational Health and Safety Act and who has been charged and pleaded guilty is Mr Buddy Challita, the boom pump operator and the person most accountable for the safety and wellbeing of the deceased, Mr Marcel Budwee.

4. The company that employed Mr Challita, Mr Pump Pty Limited, has also been charged and pleaded guilty to breaches of the said Act.

In all of the circumstances surrounding the incident and the "testimony" of the witnesses on the site, there is no doubt that the Applicant Andrew Ishak, at the time when the accident happened was not there and accordingly can not be held directly responsible; unless of course, as is not the allegation, it was criminally negligent of him to leave the site, even thought (sic) the concrete work had finished.

By the same token, be it the test of reasonable foreseeability or the non test of reasonable hindsight, on all the materials available in the Respondents and Police Briefs of Evidence, it cannot be reasonably suggested and certainly not beyond reasonable doubt that the Applicants were criminally responsible for the actions of Buddy Challita, the licensed boom operator, after the designated work on the site had finished and the Applicant Andrew Ishak was not there.

The person directly responsible for the deceased was the boom pump operator Mr Buddy Challita, particularly at that point of time when the incident happened.

17. From the evidence available, it appears that the deceased was probably wearing gloves and almost certainly safety boots while working on the site and in the process of the cement being poured; but after the Applicant Andrew Ishak had left the site, it seems the deceased, as was his usual custom, changed into sports shoes and was not wearing boots or gloves when assisting Mr Challita in the cleaning up process. This decision was made entirely by Challita and one which the Applicant Andrew Ishak had no say from the point of view of his responsibilities and in the case of his knowledge.

18. All of the above-mentioned matters indicate a lack of proper investigation by the Respondent before commencing such serious criminal proceedings against the Applicant Andrew Ishak, who after all, was merely a foreman on the site during the time that the concrete work was being conducted but cannot be strictly held criminally accountable for what Mr Challita did during the cleaning up process when he was not there. 19 The fact that Mr Challita might be "most accountable" or "directly responsible" for Mr Budwee's safety (which fact may or may not be established at some later time) does not discharge the defendants from their statutory obligations to ensure Mr Budwee's safety, or in the case of an offence alleged under s 20(1), to take reasonable care for Mr Budwee's safety. It is now commonplace that modern construction sites may accommodate a head or principal contractor, and other contractors and sub-contractors. The services of outsourced labour are often utilised at such sites for the performance of tasks. In such circumstances the responsibility to maintain a safe system of work cannot be transferred or delegated by, for example, the principal contractor to a contractor or some other party at the site: see Inspector Stewart v Siemans Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) (No. 2) [2003] NSWIRComm 45 at [42]; WorkCover Authority (Inspector Patton) v Fletcher Construction Aust. Ltd (2002) 123 IR 121 at [40] - [42]. 20 In addition, the fact that the second defendant had apparently left the site at the time of the accident does not, without more, absolve him from the obligation to ensure safety under the Act. The Act is concerned with the identification of a failure (to ensure safety) which results in a risk to the safety of persons at work or at the workplace. The occurrence of an injury or accident at the workplace is of evidentiary value only and is not one of the elements of the offences charged against the defendants and which must be proved by the prosecutor beyond reasonable doubt: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (Insp Ch'ng) (1999) 90 IR 432 at 452. 21 Nor do questions of criminal negligence or reasonable foreseeability have any relevance to the issue of liability under s 8(2) or s 20(1) of the Act. Nor does the prosecutor need to establish that the second defendant knew that Mr Budwee changed out of his work clothes and was wearing boots or gloves when he assisted Mr Challita in the cleaning up process. Knowledge (that an act was wrongful, for example) has no place in a statutory scheme where the offence is one of absolute liability: Hawthorne (Dept of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 at 129. Given the extent of the second defendant's statutory obligations, as earlier adverted to, the actions of Mr Budwee, if relied upon, do not necessarily assist the second defendant. 22 None of these matters are at all indicative of a lack of proper investigation by the prosecutor into the circumstances of the alleged offences. Nor do they, without wishing to pre-empt any findings on the evidence that may be made at some later stage, seem to bear any direct relevance to the elements of the alleged offences which the prosecutor is required to prove beyond reasonable doubt. 23 The remaining grounds appear to deal with the claim that the brief of evidence contains insufficient material upon which the prosecutor relies in order to make out the case or cases against the defendants beyond reasonable doubt. These remaining grounds are also extracted below:

8. From the evidence available, including the police statements, records of interview of the other relevant witnesses, the prosecution cannot make out its case to the criminal standard of beyond reasonable doubt and is doomed to failure.

The expert evidence from Energy Australia and Police Forensics and in turn the Respondent, as to how exactly the deceased was fatally injured is far from conclusive for the purposes of a criminal prosecution; apart from the assertion that Mr Marcel Budwee died of cardiac arrest and probably due to being electrocuted.

The reports of Energy Australia and other experts suggest that there was no evidence of arcing, a safety switch was not affected indicating no apparent surge of power or malfunctioning, and there appears to be no evidence of actual burning by touching on the top of the first boom which was the one erected. There was also no actual evidence that the power lines were even touched by the boom, as one would have expected.

The aspect of the trees being so high and in such close proximity to the power lines and any aspects of culpability and responsibility for the same, do not appear to have been canvassed in any way shape or form to date.

From the available evidence some form of storm activity at the time of the accident was occurring; yet no investigations appear to have taken place on these issues of the weather, lightning and the kind of storm it was.

As the actual cause of death was one of cardiac arrest the actual previous health of the deceased has neither been explored nor canvassed. 24 The anticipated expert evidence, or anticipated evidence as to the circumstances of Mr Budwee's death, are, as earlier indicated, not relevant to those matters which the prosecutor is required to prove beyond reasonable doubt, although this does not mean the circumstances of an injury or accident are without any evidentiary value. In Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 the Full Bench identified the elements of an offence under s 16(1) of the Occupational Health and Safety Act 1983, the predecessor section, in similar terms, to s 8(2) of the 2000 Act:

2. They were persons not employees exposed to risks to their health or safety;

3. The risk arose from the conduct of the defendant's undertaking;

4. The exposure to risk was at the defendant's place of work. 25 All of the matters relied upon by the defendants in order to substantiate their claim that the prosecutions were commenced with insufficient material to prove the offences therefore focus impermissibly on the accident instead of the risk to safety: South Sydney Rugby League Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 at [41] - [42]; Inspector Wolf v Port Kembla Copper Pty Limited [2006] NSWIRComm 341 at [21]. 26 It follows that none of the grounds and reasons set out in the defendants' Notice of Motion can successfully provide any basis upon which the proceedings may be permanently stayed in order to prevent an abuse of the Court's processes. Nor does the evidence or material relied upon in this application disclose any basis upon which an interim stay of the proceedings can be justified pending the outcome of a coronial inquest. No relevant prejudice to the defendants which might be suffered if the proceedings were to continue is apparent or has been made out: R v O'Meara [2001] NSWCCA 201 at [38]. 27 In any event as I earlier observed the decision to hold an inquest, except in some circumstances not relevant here, is within the discretion of the Coroner: see ss 14, 14B of the Coroners Act. Orders 28 I make the following Orders:

(1) The Notice of Motion filed by the defendants on 16 May 2005 is dismissed.

(2) Costs are reserved. _________________________

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