SafeWork NSW v Kayrouz Constructions Pty Limited

District Court of NSW|2020-03-20

Solicitors: SafeWork NSW (Prosecutor) Sachs Gerace lawyers (Defendant) File Number(s): 2018/294050

Judgment

On 21 November 2016 Mr Christopher Ilioglou was working as a plumber on a construction site in Kogarah. Kayrouz Constructions Pty Limited (Kayrouz) was the principal contractor. In the course of lifting lengths of copper pipe up to level 4 of the site Mr Ilioglou suffered serious injuries when the pipes came into contact with energised overhead power lines.
SafeWork NSW charged Kayrouz by a Summons filed on 24 September 2018 that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr Ilioglou, to a risk of death or serious injury contrary to s 32 of the Act.

The Summons

The Summons pleads a "Description of Offence" in the terms set out in par 2 above. It also says "Particulars attached as 'Annexure A'". Annexure A sets out the particulars of the offence under the following headings: 1. Particulars of the defendant's duty under s 19(1) of the Act 2. Particulars of the risk to the workers 3. Particulars of the defendant's failure to comply with the duty under s 19(1) of the Act.
The opening words of par 10 of Annexure A are: "The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Christopher Ilioglou, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to workers…."
Then follows seven subpars which plead the reasonably practicable measures which the prosecution says that Kayrouz failed to take e.g. failing to conduct a risk assessment; failing to prepare a Safe Work Method Statement; failing to provide adequate supervision.
It is important to note that the prosecution alleges that Kayrouz failed to take "one or more" of the pleaded measures. Thus had the plea been a plea of not guilty, Kayrouz could have been found guilty if it failed to take only one of the seven pleaded reasonably practicable measures. This was accepted by both counsel at the outset of oral submissions.
Counsel for the defendant indicated in oral submissions that the defendant acknowledged that it failed to take the reasonably practicable measures pleaded in subpars (c), (e) and (g) in par 10 of Annexure A to the Summons and thus there was no question of the court being asked to reject the plea of guilty, as the defendant accepted that it was guilty of each of the elements of the offence.

Consideration

A plea of guilty admits those matters which are the essence of the charge. It does not admit the non-essential ingredients of an offence: R v O'Neill [1979] 2 NSWLR 582 at 588; Duffy v R [2009] NSWCCA 304 at [21]. In GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30], five members of the High Court said of fact finding following a plea of guilty: "In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case."
As counsel for the prosecutor submitted, the elements of the offence with which the defendant is charged are: Element 1 The defendant was conducting a business or undertaking; Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of: 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; 2. while the workers were at work in the business or undertaking; Element 3 The defendant failed to comply with its health and safety duty; and Element 4 The failure exposed an individual to a risk of death or serious injury.
A very recent example of a defendant admitting the elements of an offence, but contesting the level of their involvement in the commission of the offence is found in the decision of the High Court in Strbak v The Queen [2020] HCA 10. The defendant pleaded guilty to the manslaughter of her child. The prosecutor alleged that the defendant inflicted blunt force trauma to the victim, which caused his death. The prosecution's alternative case was that the defendant omitted to provide the necessaries of life in that she failed to seek medical assistance for the child. The defendant contested that she inflicted the fatal injuries but acknowledged liability for manslaughter on the alternative basis. The sentence hearing took six days and was conducted with a schedule of agreed and contested facts.
In the present case the prosecutor has pleaded a case with allegations made in the alternative as to the reasonably practicable measures which Kayrouz should have taken. I see nothing unorthodox in Kayrouz pleading guilty to a breach of all four elements of s 19, but contesting whether it failed to take each and every one of the seven particularised failures. Kayrouz is admitting that it failed to comply with its health and safety duty (Element 3 above) and is admitting three of the ways in which the prosecutor alleges that it breached that health and safety duty. However it is contesting the other four factual ways in which the prosecution says that it breached its duty.
Obviously a finding as to the particular reasonably practicable measures that Kayrouz failed to take will affect the determination of the objective seriousness of the offence.

Orders

My orders are: 1. Permit the defendant to rely upon the affidavit evidence already filed, subject to any specific objections to such evidence. 2. Direct the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts by 4 May 2020. 3. List the matter for directions before me at 9.30am on 11 May 2020 with a view to fixing a sentence hearing date.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2020

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