Criminal law - Leave to appeal - Onus of proof - Construction of regulations - Additional evidence - Turns on own facts

Criminal Appeals Act 2004 (WA), s 27

Occupational Safety and Health Act 1984 (WA), s 3, s 22(1), s 22(5)

Occupational Safety and Health Regulations 1996 (WA), reg 3.17

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444

White v The Queen [2006] WASCA 62

Beamish v The Queen [2005] WASCA 62

Christie v The Queen [2005] WASCA 55

Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119

R v Australian Char Pty Ltd [1993] 3 VR 834

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

2 ROBERTS-SMITH JA: I have read the reasons to be published by McLure JA. I agree with her Honour's reasons and having nothing to add.

3 McLURE JA: The appellant applies for leave to appeal from the decision of Barker J made on 23 July 2004 dismissing the appellant's application for leave to appeal from two convictions for breaching the Occupational Safety and Health Act 1984 (WA) ("the Act") and the Occupational Safety and Health Regulations 1996 (WA) ("the Regulations") respectively.

4 The parties agreed that the appeal was governed by the Criminal Appeals Act 2004 (WA) and that the leave of the Court of Appeal was required for each ground of appeal under s 27 of the Criminal Appeals Act. The parties also agreed that in the event leave was granted, this Court should hear and determine the appeal.

5 The counts on which the appellant was convicted by Mr G Cicchini SM on 23 April 2004 provide that:

1. "On the 18th day of June 2001 at Leederville [the appellant] being a person who had control of a workplace, namely 67 Ruislip Street, Leederville, where persons who were not his employees worked, failed to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards and, by that failure, caused serious harm to a person; contrary to Sections 22(1)(a) and 22(5) of the [Act]."

2. "On the 18th day of June 2001 at Leederville [the appellant] being the main contractor at a workplace, namely 67 Ruislip Street, Leederville, failed to ensure that the workplace and other areas ancillary to it were maintained in such a clean condition as was necessary to avoid hazards to persons at the workplace; contrary to Regulation 3.17(1)(a) of the [Regulations], made under the [Act]."

6 The facts and findings made by the learned Magistrate are as follows. The appellant was the "owner builder" of a two-storey residence in the

course of construction on land owned by him at 67 Ruislip Street, West Leederville. By 18 June 2001 the major structural aspects of the residence had been completed but lockup stage had not been reached. Remaining work included the tiling of the portico, garage and skillion roofs on the lower storey section of the residence.

7 The appellant contracted with Bristile Clay Tiles for the supply and installation of roof tiles on the residence. Bristile subcontracted the installation to Dowthwaite Holdings Pty Ltd ("Dowthwaite"). It was arranged that the roofs on the lower storey section would be tiled on 18 June 2001. Two roof tilers employed by Dowthwaite, Nigel Barley and Joshua Brentnall, arrived on site around 9 am. External access to the lower section roofs was not possible because ladders and other relevant equipment had yet to arrive on site. They accessed the lower storey roofs by using the residence's internal staircase.

8 On the day of the accident there were wooden planks across the top of the stairwell with scaffold resting on top of the planks. One of Dowthwaite's employees removed some of the planks to gain access to the first floor landing. At some stage Mr Brentnall decided to move the scaffold which comprised two "A-frames" with cross members. He sought Mr Barley's assistance. Mr Barley dragged one of the A-frames a short distance before stepping back into an unguarded void. He fell 3.1 metres onto the concrete floor of the entrance below. Mr Barley suffered serious injuries that rendered him a paraplegic.

9 The learned Magistrate found that the appellant placed the planks in the stairwell to provide a base for the scaffold and the scaffold was there to provide a platform from which the appellant could work on the ceilings. He also found that, given the appellant's lack of experience in building two-storey premises, there was no reason for him to believe that the roof tilers would not use the inside of the premises. He further found that there was also no reason to believe that the roof tilers, having accessed a roof, would not then access the upper storey of the building to move from one roof to another.

10 The appellant gave evidence that on the day of the accident there was a sign adjacent to the flight of stairs going up from the ground floor saying "Danger - Don't Enter". None of the prosecution witnesses were cross-examined in relation to the existence of such a sign on the date of the accident. The Magistrate positively rejected the appellant's evidence on this and other issues. On the subject of access to the upper floor the Magistrate concluded as follows:

"Accepting that the stairwell was substantially planked out, can it be said that the upper floor was completely blocked off from the ground floor? The answer is no. The evidence overwhelmingly dictates that the upper floor could still be accessed. The presence of the planks did not prevent accessibility ... Indeed it would not have prevented others from accessing the upper storey by way of ladder as the [appellant] himself had previously done. Furthermore it is quite apparent that the upper floor would have been accessible to tilers even in the event of them having accessed the roofs externally by the use of a ladder.

Inspector Green gave qualified evidence that if the second storey of the premises were completely blocked off from the bottom storey there would be no necessity for the void to have been guarded ... However his view in that regard only has force to the extent that the planking out completely prevented access. In this instance the planking out did not constitute an impenetrable barrier. Access could be achieved by simply moving a plank or two. The planking out was not such that it was immovable or impenetrable ... In those circumstances the [appellant] and others could, and did in fact have easy access to the upper floor."

11 In relation to count 2 the Magistrate accepted the evidence of Inspector Green that there were bricks, ceiling materials, scaffolding and other materials cluttering up each of the rooms of the residence. The garage was so full of rubble it was difficult to negotiate through the carport to the doorway at the rear. According to Inspector Green the amount of rubbish around the site impacted adversely on the ability of workmen at the site to work safely. He rejected a suggestion that although the site was dirty there was nothing dangerous about it. Photographs of the site were tendered. The Magistrate noted that they spoke for themselves and supported the testimony given by, inter alia, Inspector Green.

12 At the hearing before Barker J the appellant applied for leave to add a further ground of appeal based on fresh (or new) evidence, being a diary entry for 18 June 2001 of Mr Neville Stone, a Bristile supervisor, and a typed transcript of a record of interview of Mr Stone conducted by Worksafe. Barker J refused leave to appeal on the basis that the grounds of appeal from the Magistrate's decision were not fairly arguable and he was not satisfied on the material before him that the additional evidence was either fresh or new.

The statutory framework and grounds of appeal

13 Section 22 of the Act materially provides:

"22. Duties of persons who have control of workplaces

(1) A person that has, to any extent, control of -

(a) a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or

(b) the means of access to and egress from a workplace,

shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.

...

(5) A person who contravenes subsection (1) and by that contravention causes the death of, or serious harm to, any person commits an offence and is liable to a fine of $200 000."

14 "[W]orkplace" is defined in s 3 of the Act to mean:

" ... a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self-employed persons work or are likely to be in the course of their work."

15 "[P]racticable" is defined in s 3 of the Act to mean:

" ... reasonably practicable having regard, where the context permits, to -

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

(b) the state of knowledge about -

(i) the injury or harm to health referred to in paragraph (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health; and

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii) ... "

16 Regulation 3.17 of the Regulations materially provides:

(1) A person who, at a workplace, is an employer, the main contractor, a self-employed person or a person having control of the workplace must ensure that -

(a) the workplace and other areas ancillary to the workplace are maintained in such clean condition as is necessary to avoid hazards to persons at the workplace;

(b) where practicable, rubbish and debris are removed by mechanical means; and

(c) ... "

17 The grounds of appeal are in the following terms:

1. Barker J erred in law in determining that in respect of count 1 the learned Magistrate correctly found that the appellant had failed to take all practical measures so as not to expose workers to hazards.

(i) the learned Magistrate erred in considering the questions of whether the barrier was "impenetrable" or "insufficient" as being determinative of the commission of the offence.

(ii) the learned Magistrate erred in reversing the onus of proof in relation to the charge by asking the question "could it be said that he had taken all practicable measures so as not to expose workers to hazard" rather than considering whether the prosecution had proved that he had not done so.

(iii) the learned Magistrate erred in effectively construing the word "practicable" as meaning "possible" for the purposes of the section.

2. Barker J erred in law in holding that the learned Magistrate correctly held that count 2 was established by the mere existence of a "tripping hazard".

3. Barker J erred in law in holding that the diary entry for Monday 18 June 2001 and transcript of interview dated 21 June 2001 did not constitute "fresh or new evidence".

Particulars

(a) Barker J erred in law in holding that the diary note was inadmissible;

(b) Barker J erred in law in holding that the diary note was irrelevant, when the contents of the said note materially cast doubt as to the nature and sequence of events as testified to at the trial by a number of witnesses;

(c) Barker J erred in law in holding that the record of interview would not have been of assistance to the defence insofar as to canvassed matters which had been the subject of evidence from a number of other witnesses in the hearing, when the record of interview supported the appellant's defence in that:

(i) in relation to count 1, the method by which tiles should have been transported to the second floor was by ladder or elevator; and

(ii) in relation to count 2, the cleanliness of the premises was not such as to constitute a safety hazard.

18 I start with ground 1(b) which deals with the onus of proof. The appellant relies on three statements in the Magistrate's reasons for the submission that he reversed the onus of proof. The statements are:

(i) "Can Mr Saliba be believed on the issue of the sign being present";

(ii) "Accepting that the stairwell was substantially planked out, can it be said that the upper floor was completely blocked off from the ground floor"; and

(iii) "[C]ould it be said that he had taken all practical measures so as not to expose workers to hazard".

19 It is not appropriate to consider these statements out of their broader context. The Magistrate expressly addressed himself to the onus of proof. He correctly noted that:

"The Prosecution bears the onus of proving each complaint beyond reasonable doubt. It must also negative beyond reasonable doubt any defence raised by the [appellant] or which is open on the evidence.

The [appellant] does not have any legal burden resting upon him. Even as is the case in this matter where I have found, for the reasons previously given, that the [appellant] is not credible on critical issues, it still remains the case that the Prosecution must satisfy the Court that each of the elements of each count have been made out. It is not sufficient for the Prosecution to rely on the [appellant's] lack of credibility alone to substantiate the charges. Further it is not a case of my accepting one version or the other. The Prosecution must, with respect to each charge, prove beyond reasonable doubt each and every element of each charge."

20 Further, the Magistrate identified each of the elements the prosecution had to prove in order to establish a breach of s 22(1)(a) of the Act and identified the relevant live issue as whether "[t]here were practicable measures the [appellant] failed to take to ensure that persons working at the workplace were not exposed to the hazard".

21 In order to determine whether the prosecution had established this element, the Magistrate had to make findings of primary fact concerning the state of, and measures in place in, the residence on the day of the accident. That required him to make a finding as to whether on the morning of the accident a warning sign was at the base of the stairs and whether the upper floor was, as contended for by the appellant, inaccessible from the ground floor. The first two statements address these matters and provide no foundation for the claimed reversal of onus. The appellant contends that by the third statement the Magistrate was really asking whether the appellant had established that he had complied with his duty. There is no foundation for that suggestion, particularly when the third statement is considered in the context of the reasons as a whole.

22 Ground 1(b) has no reasonable prospect of succeeding (Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473) in which event leave to appeal on that ground is refused.

23 Grounds 1(a) and (c) can be dealt with together. In essence the submission is that the Magistrate applied the wrong test in determining whether there was a breach of s 22(1)(a) of the Act by requiring the appellant to have taken all possible steps or all conceivable means to remove the hazard and/or the risk of injury.

24 The basis for this submission is the Magistrate's finding that the planks and scaffold over the stairwell did not constitute an impenetrable barrier to the upper storey and were insufficient. These findings are in the context of the Magistrate dealing with the appellant's defence which was to the effect that the planks and scaffold rendered the upper floor inaccessible. As the Magistrate noted, that was demonstrably not so. The planks could be, and were on the morning of the accident, easily removed. Moreover, he noted that access to the upper level could be achieved by ways other than the internal stairs. Having rejected the appellant's factual submission, the Magistrate went on to consider the question in issue. He correctly noted a defendant was not under an absolute duty to ensure workers were not exposed to a hazard and that consideration of practicability required a weighing up exercise. The Magistrate then correctly identified the relevant hazard as being the unguarded edge of the Juliet balcony on the first floor of the residence and concluded "[i]t was practicable for the [appellant] to have provided edge protection to the Juliet balcony because he had done so before the accident and then immediately following the accident". Grounds 1(a) and (c) have no reasonable prospect of succeeding and leave to appeal is refused.

25 The appellant conceded it was open to the Magistrate to find that the workplace was not in a clean condition at the relevant time. Inspector Green gave evidence, accepted by the Magistrate, that the unclean condition of the site constituted a tripping hazard.

26 The appellant's submission was to the effect that the condition of the workplace was not such as to be capable of constituting a hazard for the purposes of reg 3.17(1)(a) of the Regulations. He contended that something in the nature of a latent, hidden or silent danger would need to be demonstrated before it could constitute a relevant hazard. There is no arguable basis in the language or purpose of the Regulations for that contention. The word "hazard" is not defined in the Regulations but is defined in s 3 of the Act to mean:

" ... in relation to a person, means anything that may result in -

(a) injury to the person; or

(b) harm to the health of the person ... "

27 That definition accords with the ordinary everyday meaning of the word and is equally applicable to reg 3.17(1)(a). It is clear a tripping hazard may result in injury to persons at the workplace. Moreover, there is no reason in principle to exclude apparent or visible hazards, particularly in a situation where people at the workplace are performing tasks that have the potential to divert attention from apparent hazards. Ground 2 has no reasonable prospect of succeeding and leave to appeal is refused.

28 Fresh evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. New evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered. The availability of fresh evidence at the time of trial will involve a miscarriage of justice if the Court considers there is a significant possibility that the Magistrate, acting reasonably, would have acquitted the appellant if the new evidence had been before him at trial: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 399; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 273, 275 and 302.

29 In relation to new evidence, there will be a miscarriage of justice only if the appellant establishes that he should not have been convicted: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 675 - 676 per Mason J.

30 The appellant's application to amend the grounds of appeal to refer to the additional evidence was accompanied by an affidavit of Justin Smith, a solicitor employed by the appellant's solicitors. As appears from his affidavit, the solicitors representing the appellant on the charges the subject of this application, also acted for the appellant in District Court proceedings between Mr Barley (plaintiff), the appellant (first defendant), Dowthwaite (second defendant) and Bristile (third party). Bristile was joined as a third party in September 2003. Mr Smith swears that the appellant's solicitors first became aware of the documents in question (Mr Stone's diary note and the transcript of his record of interview with Worksafe) on 5 May 2004 after they had been discovered by Bristile in the District Court proceedings. That was some months after the appellant had been convicted of the offences the subject of this application.

31 The diary note is largely indecipherable and the appellant did not in oral or written submissions rely on any part of its content in support of this ground. As to the record of interview, it discloses that Mr Stone was employed by Bristile as a supervisor and was at the workplace on 18 June 2001 before and then again after the accident. Mr Stone said he did not give the builder (the appellant) any instructions on his first visit. He was asked whether he gave the builder any instructions at the second visit and there was the following exchange:

"A. Yes, to raise the scaffold at the rear skillion roof because it was over 3 metres in height so that a safety rail would come 1 metre above the gutter line.

Q. How would you have expected the roof tilers to cover the front portico roof, that is, to get the tiles onto that small roof?

A. Carry them up a ladder or use an elevator.

Q. Do you assess the site for cleanliness and ability for the roof tilers to walk and move their gear around the site before they start?

A. Sometimes, yep.

Q. Did you think that safe access and egress was not a problem at this site?

A. For the area they were working, no."

32 Both documents came into existence in June 2001. The trial of these charges did not commence until October 2003. It is clear from the Magistrate's findings the appellant and his solicitors knew or ought to have known that the appellant contracted with Bristile to supply and install the tiles and that Mr Stone provided instructions to the appellant concerning safety aspects on site. In those circumstances, the additional evidence can only properly be characterised as new rather than fresh evidence. Moreover, notwithstanding the ambiguity in the questions and answers in the record of interview, the record was not supplemented by what Mr Stone would say on relevant issues.

33 During the course of oral submissions, senior counsel for the appellant suggested the respondent had a duty of disclosure which he had breached. That submission can only relate to the record of interview. I will assume for present purposes, without deciding, that the respondent breached a duty of disclosure in which event the issue of substantial miscarriage of justice arises: see White v The Queen [2006] WASCA 62. The test of substantial miscarriage of justice under Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 (at [43]) is whether it is possible to conclude that the relevant material would, or at least should, have no effect on the verdict that was returned.

34 In my assessment, the additional evidence is at best of marginal relevance and is incapable of arguably affecting the verdict. I start with how the roof tilers would get the tiles onto the portico roof. First, Mr Stone's expectations are of no assistance in light of the Magistrate's finding that, given the appellant's lack of experience in building two-storey premises, there was no reason for him to believe that the roof tilers would not use the internal site of the premises to access the roof. Secondly, the Magistrate found there was no reason to believe the roof tilers, after having accessed a roof using other means such as a ladder, would not use the upper storey of the building to move from one roof to another (ie from the portico roof to the garage or skillion roof).

35 As to the cleanliness of the site, Mr Stone's response was confined to on-site access and egress prior to the commencement of tiling work. He does not address the state of the interior of the residence. Further, Mr Stone provided an opinion without identifying the facts on which that opinion was based. The Magistrate had the benefit of photographs on those matters which provided objective confirmation of the evidence of Inspector Green. There is no arguable case that the additional material would or could affect the verdict. Therefore, leave to appeal on ground 3 is refused. It follows that the application for leave must be dismissed.

• The statutory framework and grounds of appeal
• Ground 1
• Ground 2
• Ground 3