Baiada Poultry Pty Ltd v The Queen [2012] HCA 14

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

BAIADA POULTRY PTY LTD APPELLANT

AND

THE QUEEN RESPONDENT

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14

30 March 2012

M126/2011

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 18 February 2011 and, in its place, order that:

(a) leave to appeal to that Court be granted;

(b) the appeal to that Court be allowed;

(c) the conviction and sentence of the appellant, Baiada Poultry Pty Ltd, be quashed; and

(d) a new trial be had.

On appeal from the Supreme Court of Victoria

Representation

P G Priest QC with M J Croucher SC for the appellant (instructed by Norton Rose Australia)

D A Trapnell SC with K Argiropoulos for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Baiada Poultry Pty Ltd v The Queen

Criminal law – Appeal – Jury misdirection – Application of "proviso" – Appellant convicted of offence under Occupational Health and Safety Act 2004 (Vic) – Trial judge failed to direct jury that prosecution had to prove beyond reasonable doubt particular element of offence in issue – Whether appellate court able to conclude that no substantial miscarriage of justice occurred – Whether judicial "discretion" in applying proviso.

Words and phrases – "proviso", "substantial miscarriage of justice".

Crimes Act 1958 (Vic), s 568(1).

Occupational Health and Safety Act 2004 (Vic), s 21.

1. FRENCH CJ, GUMMOW, HAYNE AND CRENNAN JJ. The appellant was tried in the County Court of Victoria for failing, as an employer, "so far as is reasonably practicable, [to] provide and maintain for employees … a working environment that is safe and without risks to health"[1]. It is now accepted that the trial judge should have, but did not, direct the jury that the prosecution had to prove beyond reasonable doubt that the appellant's engagement of apparently skilled subcontractors to perform the work in the course of which fatal injury was inflicted did not discharge its obligation so far as was reasonably practicable to provide and maintain a safe working environment. 2. On appeal, the Court of Appeal of the Supreme Court of Victoria found[2] that the trial judge had made this error and that there was, accordingly, either "a wrong decision of any question of law or … on any ground … a miscarriage of justice"[3]. By majority, however, the Court of Appeal (Neave JA and Kyrou AJA, Nettle JA dissenting) concluded that "notwithstanding … the point raised in the appeal might be decided in favour of the appellant" the appeal should be dismissed, "no substantial miscarriage of justice [having] actually occurred". 3. The appellant now appeals to this Court and submits that the proviso was not engaged. That submission should be accepted. The appeal should be allowed, the orders of the Court of Appeal set aside and consequential orders made.