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[2020] QCA 52
Court of Appeal (Qld)
2020-03-27
Morrison and Philippides JJA and Applegarth J
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52
PARTIES: IAN WILLIAMSON (applicant) v BETTERLAY BRICK AND BLOCK LAYING PTY LTD ACN 141 628 159 (respondent)
FILE NO/S: CA No 243 of 2018 / DC No 40 of 2017
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT: District Court at Beenleigh – Betterlay Brick and Block Laying Pty Ltd v Williamson [2018] QDC 172 (Richards DCJ)
DELIVERED ON: 27 March 2020
DELIVERED AT: Brisbane
HEARING DATE: 24 July 2019
JUDGES: Morrison and Philippides JJA and Applegarth J
ORDERS: The application for leave to appeal be granted.The appeal be allowed.The orders made in the Beenleigh District Court on 24 August 2018 be set aside and in lieu thereof, the appeal to the District Court be dismissed with costs.The orders of the magistrate made on 12 October 2017, being that the respondent was convicted and fined $35,000 and ordered to pay the costs of the prosecution be reinstated.The respondent pay the appellant’s costs of the appeal to the District Court and this appeal.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – where the respondent successfully appealed to the District Court against its conviction in the Magistrates Court on a complaint that alleged that it was a person that “had a health and safety duty” under the Work Health and Safety Act 2011 (Qld) (WHS Act) – where the appeal was allowed on the basis that the prosecution did not prove its case beyond reasonable doubt – where the applicant seeks leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) (DCA) – where the applicant has had the benefit of two judicial hearings before the Magistrates Court and the District Court – whether an appeal to the Court of Appeal is necessary to correct a substantial injustice – whether the applicant’s grounds of appeal concern issues of general importance in relation to the conduct of similar prosecutions under the WHS Act – whether leave to appeal should be granted / CRIMINAL LAW – PARTICULAR OFFENCES – WORKPLACE HEALTH AND SAFETY OFFENCES – where the respondent was engaged to carry out block laying work for a block wall at a construction site – where, properly built, the block wall would have been constructed by laying courses of besser blocks, with steel reinforcement or “droppers” placed vertically through the block wall and then core filled by concrete – where the respondent attended at the site on 28 November 2014 and failed to insert vertical steel reinforcement into the wall, as required by the applicable engineering specifications – where the respondent was found guilty in the Magistrates Court under s 33 of the WHS Act because it had a contractual responsibility to construct the walls according to engineering specifications and did not do all that was reasonably practicable to ensure that steel reinforcement was placed into the wall – where the conviction was overturned by the District Court, on the basis that the prosecution failed to prove its case beyond reasonable doubt, in that the offending conduct was not proved to have occurred on the date stated in the complaint, being 2 December 2014 – whether the complaint alleged a breach of duty after the wall was core filled – whether s 33 of the WHS Act creates a continuing offence – whether there was a breach of the duty pleaded as at 2 December 2014 –whether a single date was required to be pleaded and proven as an essential element of the offence under s 33 / District Court of Queensland Act 1967 (Qld), s 118 / Work Health and Safety Act 2011 (Qld), s 18, s 19(2), s 33, s 232 / Agius v The Queen (2011) 80 NSWLR 486; [2011] NSWCCA 119, cited / Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41, cited / Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, distinguished / Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58; [1922] ArgusLawRp 105, cited / Pearce v BHP Steel (AWI) Pty Ltd (1998) 8 Tas R 337, distinguished / Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited / Sloggett v Adams (1953) 70 WN (NSW) 206, cited / WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58, cited
COUNSEL: P C Callaghan SC, with B P Dighton, for the applicant / R A Perry QC, with A J Smith, for the respondent
SOLICITORS: Office of the Work Health Safety Prosecutor for the applicant / Herbert Smith Freehills for the respondent
MORRISON JA: I have had the advantage of reading the draft reasons of each of Philippides JA and Applegarth J. I agree with their Honours’ reasons save in one respect only, on a matter which arises in the reasons of Applegarth J. That is as to whether the Amended Complaint alleged a breach of duty after the brick wall was core filled. In respect of that matter I can state my reasons briefly.
The Amended Complaint relevantly alleged a complaint:
“… that on the 2nd day of December, 2014 at Beenleigh … BETTERLAY BRICK & BLOCK LAYING PTY LTD … being … a person who had a health and safety duty under section 19(2) of the Work Health and Safety Act 2011, being a person conducting a business or undertaking who must ensure, so far as is reasonably practicable, the health and safety of other persons is not put at risk from work carried out as a part of the conduct of the business or undertaking, failed to comply with the duty contrary to section 33 of the said Act.”
As can be seen, the breach of duty was alleged to have occurred on 2 December 2014. Particulars of that breach were then provided.
The “Hazard” was identified as being that “The core filled block wall … was required, pursuant to engineering specifications, to have steel reinforcement vertically placed before being core filled …”, and that the block wall was constructed and core filled without having the steel reinforcement vertically placed.
The “Risk” was identified as being that the wall might fail without warning if “steel reinforcement was not vertically placed, as required pursuant to the engineering specifications, in the core filled block wall”.
Then paragraph 7 of the Particulars identified the failure which constituted the breach, namely the failure to comply with the duty to ensure the safety of others on 2 December 2014. It was in these terms:
“7. Failures: BETTERLAY BRICK & BLOCKLAYING PTY LTD did not ensure, so far as was reasonably practicable, the health and safety of other persons in that it failed to ensure the block wall had steel reinforcement vertically placed, pursuant to the engineering specifications, before it was core filled.”
In my view, paragraph 7 did not add a temporal element contrary to that alleged in the body of the Amended Complaint. All it did was identify the state of affairs in much the same terms as were identified for the Hazard and Risk, namely the presence of a core filled block wall without steel reinforcement inserted. That state of affairs no doubt existed on the day when the block wall was core filled without steel being inserted. However, that state of affairs still existed as at 2 December 2014, as the block wall was still a core filled block wall which did not have reinforcement steel inserted.
In my view, the Amended Complaint alleged a failure as at 2 December 2014, being the continued state of affairs where the block wall was core filled without steel reinforcement. That did not allege a failure only as at 28 November 2014 when the wall was core filled, but the continued breach (failure to ensure the health and safety of others) as at 2 December 2014.
I agree with the orders proposed by Philippides JA.
PHILIPPIDES JA: This is an application under s 118 of the District Court of Queensland Act 1967 (Qld) (the DC Act), brought on behalf of Workplace Health and Safety Queensland, for leave to appeal against a decision of the District Court in its appellate jurisdiction setting aside the conviction of the respondent, Betterlay Brick and Block Laying Pty Ltd, on 12 October 2017 for an offence pursuant to s 33 of the Work Health and Safety Act 2011 (Qld) (the WHS Act).
Background
The respondent was charged on a complaint that alleged that, on 2 December 2014, it was a person that “had a health and safety duty” under s 19(2) of the WHS Act, “being a person conducting a business or undertaking who must ensure, so far as is reasonably practicable, the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking”, and that it failed to comply with that duty contrary to s 33 of the Act.
The charge arose in relation to block laying work undertaken by the respondent as a subcontractor of Mt Cotton Constructions Pty Ltd (MCC) at Trinity College, Beenleigh for the refurbishment of an auditorium. The work included constructing a block wall located at the end of the verandah slab of Music Room “A”. Workers from the respondent attended the site and laid the blockwork but did not immediately core fill the block wall. About a week later, on 28 November 2014, Mr Coonan, the sole director of the respondent, and one of his employees attended the site to finish other block walls and core fill the block wall that had not yet been core filled at Music Room “A”.1
On 2 December 2014, workers from Logan Steel Pty Ltd, which had been contracted by MCC to install steel beams, attended the site. In the process of attaching a steel beam to the block wall in question at Music Room “A”, the wall fell over onto an elevated platform and pinned an employee of MCC, who was positioned there.2
Evidence given at the summary trial before the magistrate indicated that, properly built, the block wall in question would have been constructed by laying courses of besser blocks, reinforced by steel “droppers”, placed vertically through the block wall and then core filled by concrete.3 An examination of the collapsed wall established that no vertical steel reinforcement was ever placed into the block wall.4
In finding the respondent guilty of the offence charged under s 33, the magistrate held that the respondent “had contractual responsibility to construct the walls and insert the steel and core fill pursuant to the engineering specifications”5 and “did not do all that was reasonably practicable to ensure the vertical steel had been placed into the wall that failed”.6 In particular, the respondent did not, so far as was reasonably practicable, ensure that vertical steel reinforcement was placed into the wall before it was core filled. The respondent was fined $35,000 and ordered to pay costs.
The decision of the primary judge
There was no contest before the primary judge (nor before this Court) that the respondent owed a health and safety duty pursuant to s 19(2) of the WHS Act, as the respondent was a “person conducting a business or undertaking” within the meaning of the WHS Act such that it was required to “ensure the health and safety of other persons from work carried out as part of conduct of the business or undertaking”.10
The primary judge summarised the particulars of the breach as being that the respondent:11
“… was required to have steel in reinforcement vertically placed in the block wall at the end of veranda slab to [music room “A”] before it was core filled to ensure sufficient structural adequacy, the risk was that the wall would fail and do so without warning to persons in nearby vicinity, and that the company did not ensure that there was steel reinforcement placed in the wall before it was core filled.”
“3.1 The effect of not providing vertical reinforcement in the 190 core filled block wall would be two-fold, the structural capacity of the wall in bending would be dramatically reduced and the wall would become a brittle no ductile structural element, meaning that, in the event of a failure, there would be no warning, the failure would be immediate.
3.2 In our opinion had the roof framing been successfully connected to the block wall the block wall would not have been structurally adequate, it would still be non-ductile structural element which is not permitted in the circumstances.”
The primary judge accepted that it was proved that the respondent had breached its duty, finding that the failure to comply with the s 19(2) duty was in failing to check that the steel reinforcement was in the wall before it was core filled,13 which it was reasonably practicable for the respondent to undertake by visual inspection.14
Notwithstanding that finding, her Honour disposed of the appeal on the basis that the failure to comply with that duty had occurred on 28 November 2014, when the wall was core filled without the insertion of steel reinforcement, and not on 2 December 2014 as alleged in the complaint and, accordingly, “the prosecution did not prove its case beyond reasonable doubt”.15
In finding that the failure to comply with its s 19(2) duty occurred on 28 November 2014 when the respondent “core filled the wall without taking notice of whether the steel reinforcement was present in the wall”16 and not on 2 December 2014 when the wall collapsed, her Honour rejected the applicant’s contention that the offence under s 33 should be interpreted as being of a continuing nature and instead reasoned:17
“The risk arises at the time that the wall is core filled. The risk may not be known until injury or collapse occurs but that does not means (sic) that the offence does not occur until this event. The incident that manifests the risk is no more than evidence that the risk was real. The risk, however, does not have to be manifested before a breach of the act occurs. The risk is there even if it [is] only a potential risk.”
Leave to appeal
While the Court’s discretion to grant leave pursuant to s 118(3) of the DC Act is unfettered, leave to appeal against a decision of the District Court in its appellate jurisdiction will not be given lightly. Given that the applicant has already had the benefit of two judicial hearings, more than mere error is ordinarily required to justify the granting of leave to appeal. Accordingly, the applicant must demonstrate that an appeal is “necessary to correct a substantial injustice and there [is] a reasonable argument that there was an error to be corrected”.19 Furthermore, in determining whether there is substantial injustice, the Court will generally consider “whether the issue is a matter of public or community importance; whether the case involves a question or principle of general importance; or whether the matter considers an important point of law”.20
The applicant contends that the construction of s 33 adopted by the primary judge has resulted in a substantial injustice. Her Honour’s interpretation fettered the scope and application of that section and, as a result, the respondent was absolved, incorrectly, of wrongdoing. Further, issues of general importance arise from the alleged error in that the interpretation adopted erroneously constricts the proper function of the statute.
The issues raised by the applicant’s proposed grounds of appeal concern issues of general and specific importance in relation to the conduct of similar prosecutions under the WHS Act. The question of the scope and extent of the application of s 33 is of clear importance in relation to the enforcement of the primary duty of care owed by businesses under the WHS Act and the circumstances in which prosecutions for breach of the duty can be brought. The question of the correct interpretation of the provision, including whether it constitutes a “continuing offence”, has broad implications for the enforcement of the obligations contained in the WHS Act, which is crucial to its objects of, inter alia, “protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work”.21
In those circumstances and having regard to the fact that, for the reasons that follow, error is established, there is a sufficient basis to warrant the granting of leave.
The proper construction and application of s 33 of the WHS Act
The appellant’s submissions
The appellant submitted that, while the primary judge correctly reasoned that the risk arose at the time that the wall was core filled without reinforcement, her Honour erred in concluding that the incident that manifested the risk was no more than evidence that the risk was real. The appellant submitted that, as a matter of statutory construction, the risk and duty for the purposes of s 33 were co‑extensive. The primary judge’s finding was erroneously premised on two propositions:(a)that the duty owed by the respondent did not continue beyond its breach on 28 November 2014, that is the offence under s 33 was not a continuing offence; and(b)that a single date was required to be pleaded and proven as an essential element of the offence.
Contrary to her Honour’s conclusion, the appellant submitted that s 19 and s 33 of the WHS Act evinced an intention to impose a “continuing duty”, which required persons conducting a business or undertaking to take reasonably practicable steps to minimise the risk of injury that their work might pose to others. It was argued that there was no logical basis to constrain those provisions by tethering the scope of the duty, and any breach of it, to a specific moment in time, rather than to the concept of “putting at risk”.
The appellant submitted that, while the construction of an offence as “continuing” is a matter that turns on the language of the provision in question, as stated in Jones v Lorne Saw Mills Pty Ltd,22 a statute “may indicate by its general terms that an offence is or may be a continuing one”. The language of s 33 indicated that the offence was a continuing one and recourse to s 232 of the WHS Act was immaterial and unnecessary. In advancing that submission, reliance was placed on a statement of Street CJ in Sloggett v Adams23 that was endorsed by the New South Wales Court of Criminal Appeal in Agius v The Queen:24
“The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis (1896) P. 251 at p. 254, by Sir Francis Jeune, who said: ‘The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue.’”
It was submitted that the respondent’s primary duty of care did not “expire” when the wall was core filled without any steel reinforcement, or otherwise upon completion of the wall, and as such that the significance of the date of 28 November 2014 “was no more than evidentiary, and not exculpatory”. While the respondent’s failure to comply with its primary duty of care began on 28 November 2014, after the wall was constructed and core filled without vertical steel reinforcement, the respondent continued to fail in that duty to the same extent, on the day the incident occurred. Nothing that occurred after 28 November 2014 alleviated the respondent of the duty imposed by law and non-compliance with that duty persisted on the day the wall collapsed.
The appellant contended that a further error arose from her Honour’s statement of one of the issues for determination as to whether “the complainant has established the elements of the offence charged in particular, whether the offence occurred on 2 December 2014 and whether the work done by the complainant caused the risk in question”.25 The appellant contended that this statement revealed an assumption that the prosecution was required to prove the date on which the offence occurred as an essential element of the offence. Referring to WGC v The Queen,26 the appellant contended that, on the proper construction of s 33, the date of the offending conduct was at most a particular rather than an element of the offence.
The respondent’s submissions
In contending that the primary judge was correct to hold that s 33 of the WHS Act did not constitute a continuing offence, the respondent argued that the duty imposed by s 19(2) was to take reasonably practicable steps to ensure the health and safety of other persons, which was to be addressed having regard to what risks arose from the work being carried out. It followed, it was said, that once all reasonably practicable steps to ensure the health and safety of others had been taken “or can no longer be taken” a relevant duty was no longer owed under the WHS Act. The contention was that, while the risk to health and safety may continue where reasonably practicable steps were not taken, “it is not the legal duty under the [WHS] Act that continues in those circumstances but, rather, the risk that a person’s health and safety may be affected by the breach of duty at some time in the future”.27 The respondent relied on Pearce v BHP Steel (AWI) Pty Ltd28 as supportive of that contention.
The respondent argued that, on the appellant’s approach to s 33 that “the offence continues while the risk remains”, the standard of care owed under the WHS Act would become one of absolute liability which was inconsistent with the notion of a duty of care.29
In the circumstances of the case, the primary judge correctly found that any breach occurred on 28 November 2014 (rather than 2 December 2014) since that was the last date that the appellant was on the site and failed to take reasonably practicable steps to prevent the risk of the wall collapsing. In that regard, it was said that, once the block walls were core filled on 28 November 2014 and the respondent left the site, it was “not reasonably practicable” for it “to take the very step that was alleged against it at trial of placing vertical steel reinforcement in the wall”.30
Alternatively, the respondent submitted that, if s 33 of the WHS Act did create a continuing offence, the offence as it was pleaded could not have occurred after 28 November 2014. This was because the complaint alleged a failure to ensure the insertion of steel reinforcement before the wall was core filled. Given that the wall was core filled on 28 November 2014, the obligation to insert the steel ended on that date, as the steel could no longer be inserted thereafter and, as such, that the “reasonably practicable step alleged not to have been taken (placing the steel), could no longer be taken”. The breach was not, as asserted by the appellant in its submissions, the failure to alert others as to the risk from not inserting the reinforcement.
Consideration
Statutory provisions and principles
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.”
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself… The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
“Failure to comply with health and safety duty—category 3
A person commits a category 3 offence if—
(a)the person has a health and safety duty; and
(b)the person fails to comply with that duty.”
“Primary duty of care
…
(2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.” (emphasis added)
“… reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—
(a)the likelihood of the hazard or the risk concerned occurring; and
(b)the degree of harm that might result from the hazard or the risk; and
(c)what the person concerned knows, or ought reasonably to know, about—
(i)the hazard or the risk; and
(ii)ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
Section 33 as a continuing offence
As previously mentioned, the appellant relied upon the passage of Street CJ in Sloggett,35 quoted in [32] above.
On a plain reading of the text of s 19(2) of the WHS Act, the primary duty of care imposed is “to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk” from work carried out as part of the conduct of the business or undertaking. Pursuant to s 33, a category 3 offence is committed where a person having a health and safety duty “fails to comply with that duty”.
The approach advocated by the respondent in its written submissions that appeared to assume a temporal limitation to the s 33 offence was modified in oral submissions, with senior counsel for the respondent accepting that while the offence under s 33 may give rise to a continuing offence, it did not do so in the circumstances of the present case.
There is, in my view, no doubt that s 33 of the WHS Act may give rise to a continuing offence. The conclusion that s 33 is to be interpreted as a “continuing offence”, in my view, is entirely consistent with the language of the section understood in the context of the stated purpose of the WHS Act.
On their face, neither the words in s 33 nor s 19(2) give rise to any temporal limitation, express or implied, confining the duration of the duty to a particular time. Further, no temporal limitation arises from a plain reading of the expression “reasonably practicable” in s 18. To the contrary, that expression is defined in s 18 to mean, in relation to a duty to ensure health and safety, that “which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety” (emphasis added).
The terminology of s 18 contemplates that what is reasonably practicable may require a consideration of what “was at the particular time” reasonably practicable and of what “is” reasonably practicable to ensure health and safety. The duty not to put the safety of others at risk includes looking beyond what was reasonably able to be done “at a particular time”, for example when the risk from work carried out is created. That is made evident from s 18(d) and (e) which envisage that what is reasonably practicable includes considering the ways “to eliminate or minimise the risk”.
The respondent’s submissions in contending for a generally restrictive interpretation of s 33 failed to consider the general purpose of the WHS Act and the mischief sought to be remedied. The main object of the legislation is to secure the health and safety of workers including by “protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work”. A restrictive interpretation of the nature of the duty imposed by s 19(2) would not promote the object of the legislation, which by s 18 contemplates that what is reasonably practicable requires that “all relevant matters”, including those listed in s 18, must be taken into account and weighed up. This includes the likelihood of risk, the degree of harm that might result from it, what is or ought to be known about the risk, ways of either minimising or eliminating it and the availability and suitability of ways to minimise or eliminate the risk. Further, what is reasonably practicable will also be dictated by an assessment which must be made of the extent of the risk and the available ways of eliminating or minimising the risk and the cost of such measures, including whether the cost is grossly disproportionate to the risk.
The offence charged in the present case
In the present case, the respondent had a duty to ensure, so far as reasonably practicable, that the health and safety of persons was not put at risk by its work in constructing the wall in question. It was not disputed that the risk to health and safety arose when, on 28 November 2014, the wall in question was core filled without steel reinforcement so that it was liable to fail without warning. However, the respondent’s duty to ensure to the extent reasonably practicable that the safety of others was not put at risk by the construction of the wall did not cease on that day. It continued to have a duty to ensure the safety of others was not put at risk from failing, to the extent reasonably practicable, to construct a structurally sound wall by inserting reinforcement.
The respondent’s argument that the pleaded breach only asserted the core filling of the wall before the steel reinforcing was inserted did not support its proposition that the breach was committed “once and for all” when that occurred; that is the wall was built without the requisite reinforcement.
I accept the appellant’s submission that the respondent’s duty did not “expire” or otherwise come to an end once the wall was core filled lacking any steel reinforcement, or once the wall was completed, or five days later when it collapsed. As a matter of statutory construction, interpreting the provision in the manner asserted by the respondent is not consistent with Parliament’s intent to ensure that workers are protected from risks that arise from work carried out by persons conducting businesses or undertakings (as that term is defined in the WHS Act). The respondent’s submission that, while the risk caused by the respondent’s breach continued as of 2 December 2014, it had no legal duty arising from it, pursuant to s 19(2), is without merit.
The argument is flawed in failing to comprehend that the alleged breach giving rise to the risk to safety that occurred on 28 November 2014 continued and remained operative as at 2 December 2014. When the wall collapsed, the respondent had continued to fail to ensure, so far as was reasonably practicable, that the safety of others was not put at risk from the work carried out in building the wall. The respondent’s breach of duty was its failure to ensure that steel reinforcement was inserted, thereby rendering the wall liable to collapse without warning as it did on 2 December 2014. That was a sufficient basis for contravention of s 33.
Lastly, I should also add that the respondent’s reliance on Pearce and Baiada Poultry Pty Ltd v The Queen36 is misconceived, as those decisions both concern entirely different statutory regimes which are not directly comparable to the provisions under consideration in this appeal.
The date of the offence as an element of s 33
Given that the offence charged against the respondent was a continuing offence, it is apparent that there was no defect in the complaint alleging that the primary duty under s 19(2) was breached on 2 December 2014 when the wall collapsed. Nor was it correct to find that the elements of the offence, including the breach as alleged, were not proved beyond reasonable doubt.
The primary judge erred in construing s 33 of the WHS Act and in finding that the prosecution had not proven the elements of the charged offence.
Orders
The application for leave to appeal be granted.
The appeal be allowed.
The orders made in the Beenleigh District Court on 24 August 2018 be set aside and in lieu thereof, the appeal to the District Court is dismissed with costs.
The orders of the magistrate made on 12 October 2017, being that the respondent was convicted and fined $35,000 and ordered to pay the costs of the prosecution be reinstated.
The respondent pay the appellant’s costs of the appeal to the District Court and this appeal.
APPLEGARTH J: I have had the advantage of reading the reasons for judgment of Philippides JA. I gratefully adopt her Honour’s summary of the facts, the parties’ submissions and the relevant statutory provisions and principles.
The application raises four substantial issues:
May s 33 of the WHS Act give rise to a continuing offence?
If so, what was the continuing failure to comply with the respondent’s s 19 duty alleged in this case?
Was that failure proved beyond reasonable doubt?
Does it matter if the failure did not occur on the date particularised in the complaint, 2 December 2014? In other words, is there any reason to depart from the general rule37 that the date of an offence is not a material fact that must be proven?
A continuing offence
I agree with Philippides JA that s 33 of the WHS Act may give rise to a continuing offence.38 As her Honour explains, the offence of failing to comply with the primary duty in s 19(2) may be committed for so long as a certain “state of affairs” continues.39
I would add that the conclusion that s 33 may give rise to a continuing offence is supported by the words of s 19(2). Section 19(2) imposes a duty to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk “from work carried out” as part of the conduct of the business or undertaking. The section does not say “from work that is being carried out”.
The risk “from work” may continue well after the work ends. The business that has done the work may have left the worksite. The duty may continue if, for example, the work has created a dangerous situation. Suppose the work consists of painting and sealing the floors of a confined space, and noxious fumes make it unsafe to enter that space for a substantial time until the fumes abate. The duty in s 19(2) may require a barrier to be erected and maintained around the area, and warnings to be given that the room should not be entered until it is safe to do so. The duty in s 19(2) may subsist after work ceases and, indeed, after the contract under which the work has been performed comes to an end.
Without limiting the duty in s 19(2), subsections 19(3)(f) and (g) impose a duty to ensure, so far as is reasonably practicable:
“(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.” (emphasis added)
What was the continuing failure to comply with the s 19 duty alleged in this case?
In this case, a continuing failure, and therefore a continuing offence, was alleged. The particulars of breach in the complaint identified the hazard. It was that the core filled block wall at the relevant place was required, pursuant to engineering specifications, to have steel reinforcement vertically placed before being core filled to ensure that it was of sufficient structural adequacy. The complaint alleged that the block wall was constructed without having the steel reinforcement vertically placed and was core filled before this occurred. The particulars identified the relevant risk if steel reinforcement was not vertically placed, as required, as being that the wall would be “structurally inadequate as it would be a non-ductile structural element that, if it failed, it would do so without warning posing a risk to persons in the near vicinity.” This risk materialised when the block wall failed during the course of subcontract workers attempting to attach a steel roof support beam.
Paragraphs 7 and 8 of the Particulars of Breach were as follows:
“7. Failures: BETTERLAY BRICK & BLOCKLAYING PTY. LTD. did not ensure, so far as was reasonably practicable, the health and safety of other persons in that it failed to ensure the block wall had steel reinforcement vertically placed, pursuant to the engineering specifications, before it was core filled.
8. Control measures BETTERLAY BRICK & BLOCKLAYING PTY. LTD. could have implemented were to ensure the block wall had steel reinforcement vertically placed, pursuant to the engineering specifications, before it was core filled.”
The Particulars of Breach indicate that the breach was a continuing one, occurring between the time the block wall was constructed and when it was core filled. The duty was a continuing one which required something to be done, namely ensuring that steel reinforcement was vertically placed, during a period of time, namely after the block wall was constructed and before it was core filled. The duty continued and there was a continuing breach of it.
The primary judge rejected the submission that the offence was a continuing offence on the basis of an interpretation of the Act.40 In my view, this conclusion did not flow from the terms of the Act or the particulars of breach. The primary judge adopted the view that the failure to comply with the Act “occurred on 28 November 2014 when the appellant core filled the wall without taking notice of whether the steel reinforcement was present in the wall.”41 This was one aspect of a continuing breach. The respondent was not charged simply on the basis of an act of core filling the wall without taking care to ascertain at that time whether steel reinforcement was present in it. It was charged with failing to ensure the wall had steel reinforcement in it “before it was core filled”. This failure occurred over a period of time, not simply when the wall came to be filled.
In short, the respondent was charged with a continuing offence and the primary judge erred in concluding otherwise. I agree with Philippides JA that the matter warrants the granting of leave to appeal.
Was the failure proven beyond reasonable doubt?
The primary judge’s findings of fact compelled the conclusion that the prosecution case had been proven beyond reasonable doubt. The respondent was under the duty imposed by s 19(2). There was a failure on its part to check that the steel reinforcement was in the wall.42 It was reasonably able to do so by simply looking into the wall to see if there was steel reinforcement before core filling occurred. As the primary judge observed, there was “a simple, cost effective and easy way of ensuring that the risk did not eventuate, namely visual inspection.”43
I conclude that the alleged breach of the duty under s 19(2) was proven beyond reasonable doubt.
I should add that s 33 may create a continuing offence where a party is alleged to have created and continued a dangerous situation. The hypothetical case of the room with noxious fumes that continues to pose a risk is an example. The facts of this case is another. The risk of injury arose after the block wall was constructed without having steel reinforcement placed in it. The risk continued for so long as the respondent failed to ensure that steel reinforcement was placed in it. The duty arose during this time. It did not arise simply at the precise time the wall came to be core filled on 28 November 2014.
The risk of injury continued after the wall was core filled, and that risk materialised because of the proven breach of duty.
It would have been possible to formulate the breach of duty as continuing beyond the time the wall was core filled. This was because allowing the wall to be core filled made it more difficult to simply ascertain whether steel reinforcement had been placed in it and tended to conceal the risk. The prosecution case might have been formulated on the basis that the respondent, having failed to ensure that steel reinforcement was placed in the wall before it was core filled, failed thereafter to perform its duty in other respects. Its ongoing failure after the wall was core filled might have consisted of a failure to warn others that it had not ensured that steel reinforcement had been placed, or failing to create barriers around the area until it could be ascertained whether steel reinforcement had been placed in the wall. However, the complaint was not formulated on the basis that the respondent breached its duty both by failing to ensure that reinforcement was placed in the wall before it was core filled, and thereafter in other respects.
I agree with Philippides JA that the respondent had a duty to ensure, so far as is reasonably practicable, that the health and safety of persons was not put at risk by its work in constructing the wall. I also agree that the respondent’s duty did not cease on 28 November 2014. The respondent’s duty did not “expire” or otherwise come to an end once the wall was core filled, lacking any steel reinforcement. However, in my view, the complaint did not allege, as it might have, that the respondent breached its duty after the wall was core filled.
Is there any reason to depart from the general rule that the date of an offence is not a material fact that must be proven?
The primary judge identified one of the issues as being whether the complainant had established “the elements of the offence charged in particular, whether the offence occurred on 2 December 2014 and whether the work done by the complainant caused the risk in question.”46 The primary judge concluded that there was clear evidence that the respondent breached its duty under the Act, but concluded that the breach “was not occasioned on 2 December 2014”.47 The primary judge found that the offence occurred on 28 November 2014 and, as a consequence, it followed that the prosecution did not prove its case beyond reasonable doubt.48
The applicant submits that the primary judge erred in assuming that the date particularised, 2 December 2014, was an essential element of the offence which the prosecution had to prove.
Generally, the date of an offence, whether specified in the formal document containing the charge or in separate particulars, is not treated as a material fact which the prosecution must prove beyond reasonable doubt.49 This rule was stated by Atkin J (as his Honour then was) in R v Dossi:50
“From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. ‘And althouth the day be alleged, yet if the jury finds him guilty on another day the verdict is good, but then in the verdict it is good to set down on what day it was done in respect of the relation of the felony; and the same law is in the case of an indictment’51 … Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual date specified in the indictment.”
An exception to the general rule exists where a statutory provision renders the specification of a date material.52 Also, the conduct of a trial may have the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date.53
The applicant submits that neither the statute nor the conduct of the case created a basis on which to require a particular date to be an essential element of the offence.
This is not a case in which the Act is of a kind that attracts the exception in Dossi so that the particularised date is treated as an essential element of the alleged offence, and the prosecution must prove the date strictly. The respondent does not make such a contention. This is not a case in which a statute makes an act criminal only when done within a certain time of some other act or event. It is not even a case in which the time for prosecution is governed by reference to the date of the offence.54
As for the second exception to the general rule in Dossi, the applicant submits that this was not a case where the date of the non-compliance with the duty, whether 28 November 2014 or 2 December 2014, carried any special significance.
In reply, the respondent submits that the trial proceeded solely on the basis of a single day on which the prosecution said the offending occurred and that the way in which the trial was conducted rendered the date a material particular.
This submission is unpersuasive. The prosecution case, as opened and as conducted, canvassed events leading up to and including 28 November 2014 when the respondent returned to the site to complete its contracted works. The prosecution case also necessarily canvassed events on 2 December 2014, including how the respondent, in failing to ensure steel reinforcement before the wall was filled, created a risk which materialised on 2 December 2014.
The respondent’s submissions do not point to any way in which the prosecution or the defence would have been conducted differently if the complaint had been particularised as having a date range up to and including 2 December 2014, or simply alleged a breach of duty on 28 November 2014. The respondent does not advance any sound basis to conclude that the evidence in the case would have been different or that the case would have been conducted differently.
There is nothing in the conduct of the trial which had the effect of rendering the date, 2 December 2014, an essential element of the alleged offence. The respondent has not established that there is any reason to depart from the general rule in .
Betterlay Brick and Block Laying Pty Ltd v Williamson [2018] QDC 172 (Reasons) at [5]. ↩
Reasons at [6]. ↩
AB at 21.1-36. ↩
Reasons at [7]. ↩
AB at 190.25-26. ↩
AB at 191.15-16. ↩
AB at 190.16-21. ↩
Reasons at [29]. ↩
Reasons at [25]. ↩
Reasons at [22]. ↩
Reasons at [13]. ↩
Reasons at [21]. ↩
Reasons at [23]. ↩
Reasons at [27]. ↩
Reasons at [29]. ↩
Williamson
Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52
(2011) 80 NSWLR 486
(2009) 239 CLR 27
(2012) 246 CLR 92
(1998) 8 Tas R 337
(1998) 194 CLR 355
(2007) 233 CLR 66
On appeal to the District Court, the conviction and order imposing the fine were set aside on the basis that the prosecution had failed to prove its case beyond reasonable doubt, in that, the relevant offending conduct was not proved to have occurred on 2 December 2014, being the date stated in the complaint.8 The applicant was ordered to pay the respondent’s costs of the summary trial and the District Court appeal.
The proposed ground of appeal that the applicant seeks to raise, if leave to appeal is granted, is that the primary judge erred in her interpretation and application of s 33 of the WHS Act in failing to find that the offence was a continuing offence.9
Lastly, while the respondent acknowledged the general rule of practice set out in WGC that generally the date of an offence is not a material fact which must be proven beyond reasonable doubt, the respondent submitted that that rule had no application in this matter, as the trial “proceeded solely on the basis of a single day on which the prosecution said the offending occurred. The way in which the trial was conducted rendered the date a material particular”.32
Moreover, the gravamen of the offence in s 33, of failing to comply with the primary duty in s 19(2), directed, as it is, to ensuring the health and safety of others, to the extent reasonably practicable, is not put at risk from work carried out, indicates that the offence is committed so long as that “state of affairs” continues (to adopt the expression of Street CJ in Sloggett).
The failure alleged in paragraph 7 of the particulars, quoted above, concluded with the words “before it was core filled”. This defined when the failure occurred. This is reinforced by the concluding words of paragraph 8 which contain the same temporal limitation.
The alleged breach was one that occurred in the period leading up to the time when the wall was core filled. I do not read the complaint as alleging that the breach continued after that time. The consequences of the respondent’s breach of duty continued. The risks it created continued. I agree that, “[w]hen the wall collapsed, the respondent had continued to fail to ensure, so far as was reasonably practicable, that the safety of others was not put at risk from the work carried out in building the wall.”45 However, the complaint did not allege a continuing failure, after the wall was core filled, to ensure that it had steel reinforcement in it. The pleaded breach was a failure to do this before the wall was core filled.
In summary, in my view, the complaint did not allege a failure that continued after the wall was core filled. It alleged that the respondent failed to ensure that steel reinforcement was vertically placed in the wall before it was core filled. That failure had consequences and created risks that continued after 28 November 2014. Its breach of duty rendered the wall liable to collapse without warning, as occurred on 2 December 2014. However, the alleged breach consisted of a failure which occurred up to and including 28 November 2014 when the wall was core filled.
The date on which the offence occurred was not an essential element of the alleged offence. Therefore it would not matter if the proven failure alleged in the particulars occurred prior to 2 December 2014. It was open for the Magistrate to find the respondent guilty of the offence charged even though, on the view which I take of the particulars of the complaint, the alleged offence was not proven to have been committed on 2 December 2014.
In my view the applicant has established an error insofar as the primary judge proceeded on the basis that the date particularised by the prosecution, 2 December 2014, was an essential element of the offence. This is an additional ground as to why leave to appeal should be granted and the appeal allowed.
I agree with the orders proposed by Philippides JA.
Reasons at [24]. ↩
Reasons at [25]. ↩
Reasons at [25]. ↩
The Thistle Company of Australia Pty Ltd v Bretz [2018] QCA 6 at [7] per Philippides JA (with whom Gotterson JA and Bond J agreed). See also: McDonald v Queensland Police Service [2017] QCA 255 at [39] per Bowskill J, with Fraser JA and Philippides JA agreeing (citations omitted). ↩
Clampett v Queensland Police Service [2016] QCA 345 at [9] per Philippides JA with whom Gotterson JA and Jackson J agreed (footnotes omitted). ↩
WHS Act, s 3(1)(a). ↩
[1923] VLR 58 at 65 as discussed in Joseph v Worthington [2018] VSCA 102 at [46]; Agius v The Queen (2011) 80 NSWLR 486 at [59]. ↩
(1953) 70 WN (NSW) 206 at 208. ↩
(2011) 80 NSWLR 486 at [59]. ↩
Reasons at [11]. ↩
(2007) 233 CLR 66. ↩
Respondent’s submissions at [10]. ↩
(1998) 8 Tas R 337 at 341. ↩
Respondent’s submissions at [13]. ↩
Respondent’s submissions at [15]. ↩
Respondent’s submissions at [19]. ↩
Respondent’s submissions at [29]. ↩
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ (citations omitted). ↩
(2009) 239 CLR 27 at [47] (citations omitted). ↩
(1953) 70 WN(NSW) 206 at 208; as cited in Agius v The Queen (2011) 80 NSWLR 486 at [59]. ↩
(2012) 246 CLR 92 at [15]. ↩
WGC v The Queen (2007) 233 CLR 66 at 80 [43], 109 [156] (“WGC”). ↩
Reasons of Philippides JA at [47]. ↩
Reasons of Philippides JA at [51]. ↩
Reasons at [25]. ↩
Reasons at [24]. ↩
Reasons at [22]. ↩
Reasons at [27]. ↩
Reasons of Philippides JA at [54]. ↩
Reasons of Philippides JA at [55]. ↩
Reasons at [11]. ↩
Reasons at [29]. ↩
Reasons at [29]. ↩
WGC at 80 [43], 109 [156]. ↩
(1918) 13 Cr App R 158 at 159-160. ↩
Coke, 1 Inst (1817), p 318. ↩
WGC at 81 [46]. ↩
WGC at 109 [157]. See the discussion in R v Stringer (2000) 116 A Crim R 198 at 202 [19] – [20] of situations in which the time of the offence has been stated to be of the essence. ↩
Section 232 of the Act permits proceedings for an offence to be taken by reference to either when the offence first comes to the notice of the WHS prosecutor or within one year after a coronial report was made or inquest ended. ↩