Industrial Relations Commission of New South Wales in Court Session CITATION : Dowling v Bournelis & Bedrock Constructions (NSW)Pty Ltd [2003] NSWIRComm 88 APPELLANT Inspector Bruce Dowling PARTIES : RESPONDENTS Bedrock Constructions (NSW) Pty Ltd Mario Bournelis FILE NUMBER: IRC 4098 and 4099 of 2002 CORAM: Wright J President; Walton J Vice-President; Marks J CATCHWORDS : Occupational health and safety - Appeal from acquittal by C.I.M - Section 53 defence - Nature of the offence - Appealable error - Double jeopardy - Residual discretion - Leave granted - Appeals dismissed - Costs. LEGISLATION CITED : Occupational Health & Safety Act 1983 s15 s50 s53 Industrial Relations Act 1996 s181 s197A ABB Power Transmission Pty Ltd v WorkCover Authority of of NSW (Inspector Wilson) (Unreported CT 1215 of 1996 2 May 1997) WorkCover Authoritty of NSW (Inspector Patton) v Fletcher Constructions Aust Ltd [2002] NSWIRComm 316 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Allen Taylor (1999) 92 IR 394 R v Allpass (1993) 72 A Crim R 561 Vierow v Ridge Consolidated Pty Ltd (No 3) [2002] NSWIRComm 345 HEARING DATES: 12/11/2002 DATE OF JUDGMENT: 04/30/2003 APPELLANT Mr B G Docking of counsel SOLICITORS Moray & Agnew LEGAL REPRESENTATIVES: RESPONDENTS Mr W F Barry of counsel SOLICITOR John Ajaka JUDGMENT: INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President MARKS J Wednesday 30 April 2003 Matter No IRC 4098 of 2002 INSPECTOR BRUCE DOWLING V MARIO BOURNELIS Application by WorkCover Authority of New South Wales for leave to appeal and appeal against a decision of the Chief Industrial Magistrate given on 25 June 2002 in Matter No CIM 20304280/01/2 Matter No IRC 4099 of 2002 INSPECTOR BRUCE DOWLING V BEDROCK CONSTRUCTIONS (NSW) PTY LTD Application by WorkCover Authority of New South Wales for leave to appeal and appeal against decision of the Chief Industrial Magistrate given on 25 June 2002 in Matter No CIM 20304263/01/2 JUDGMENT OF THE COURT [2003] NSWIRComm 88 1 These appeal proceedings arise out of charges brought by the appellant, Inspector Dowling of the WorkCover Authority of New South Wales, against the respondents to the appeal, Bedrock Constructions (NSW) Pty Ltd ("Bedrock") and Mario Bournelis. The charges were brought by way of information and summons against each defendant which were ultimately heard before the Chief Industrial Magistrate. 2 Bedrock was charged with a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). The charge was that: "The defendant being an employer at a construction site located at 159 Kingsgrove Road, Kingsgrove in the state of New South Wales, on 2 August 2000, failed to ensure the health, safety and welfare at work of all its employees. Date of Offence : 2 August 2000 Full Offence Description: On 2 August 2000 at the said place, the defendant, being an employer, failed to ensure the health, safety and welfare at work of its employees, and in particular, Meng Wei Luan ("the worker") in that work was carried out at the said place involving the use of plant, to wit an extension ladder, from which the worker was installing a villaboard panel above a shop front window at a height of approximately two metres, when the said ladder slipped causing the worker to fall and sustain injury by reason that: 1. The defendant failed to provide and maintain a safe system with respect to the use of the said extension ladder in that: (a) it was not tied to a supporting structure; (b) no person was in attendance to hold the ladder at its base whilst the worker was aloft. 2. The defendant failed to provide and maintain a means of access to and egress from a place of work under its control, namely the area two metres above ground level where the worker was required to install the villaboard panel, that was safe and without risk in that the means provided, namely the said extension ladder, was not properly supported at all times. 3. The defendant failed to provide such information, instruction, training and supervision in relation to the said work involving the use of the said extension ladder as was necessary to ensure health and safety at work." 3 Mr Bournelis was charged with being a director of a corporation which contravened s 15(1) of the Act, such charge being brought under s 50(1) of that Act. The contravention under s 50(1) was that alleged against Bedrock which has been set out above. 4 Both proceedings were heard concurrently before the Chief Industrial Magistrate. Evidence was taken from a number of witnesses including the injured worker Mr Luan and Mr Bournelis. A number of records of interview and other documentation were tendered. 5 It was common ground that the incident occurred on the first day that Mr Luan was employed by Bedrock as a labourer at the particular site, being the site occupied by the Sara Lee Clothing Company which was being refurbished by Bedrock. There was no dispute that Mr Luan was injured when he fell from a ladder at the site and that the ladder was not tied or secured to prevent him from slipping. There was, however, considerable conflict between the evidence of Mr Luan and Mr Bournelis as to whether Mr Luan had been authorised or directed to perform work from the ladder and as to whether Mr Bournelis could have contemplated that Mr Luan would perform that work. It was the evidence of Mr Bournelis that during the course of the morning of 2 August 2000 he had instructed Mr Luan to carry out general cleaning work around the site and had told him to have lunch and then wait for him to return to the site. Mr Bournelis said that he showed Mr Luan, whose knowledge of English was limited, that both of them would be using a scaffold after lunch to fix some villaboard material to the side of a building. Mr Bournelis said he climbed the ladder to indicate with his tape measure where the villaboard was to be placed, that he explained what was involved in the job to Mr Luan by hand movements and by using slow clear language. He denied that he had asked Mr Luan to perform the work because it was not physically possible for one person to fix the villaboard material from a ladder at the necessary height. 6 In his evidence Mr Luan said that he was asked by Mr Bournelis to install the villaboard material after he had finished his cleaning work and that Mr Bournelis had told him to use the ladder for this purpose. 7 There was evidence led in the proceedings which caused the Chief Industrial Magistrate to have some doubt as to the version of what occurred given by Mr Luan. The Chief Industrial Magistrate, in reasons for decision published on 25 June 2002, concluded that he preferred the evidence of Mr Bournelis to that of Mr Luan where there was any inconsistency between them. 8 In his reasons for decision, his Worship approached the matter in the following way: "There is no doubt that the system of work adopted by Mr Luan on the day of the accident was an unsafe system of work. There were alternative systems of work that would have prevented the accident on this day, for example, the use of a mobile scaffold. However, the difficulty I have with this matter is the direct conflict of evidence between Mr Luan and Mr Bournelis. If I accept Mr Luan's evidence, then there is a clear breach of s 15(1) of the Act as the employer has failed to ensure the safety of his employee at the place of work. However, if I accept the evidence of Mr Bournelis, then the defendant has established a defence under s 53 of the Act. Section 53 provides that it shall be a defence to any proceedings against a person for an offence for the person to prove that: (a) It was not reasonably practicable for the person to comply with the provision of this Act, the breach of which constitutes the offence; or (b) The commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision." 9 His Worship then reviewed the conflicting evidence, concluding that he preferred that of Mr Bournelis to that of Mr Luan. His Worship then said: "I am satisfied to the civil standard that the first defendant has made out a defence under paragraph (b) of s 53 of the Act. Accordingly, the information against the first defendant must fail. Subsequently, the information against the second defendant relying on s 50(1) of the Act must also fail. For the above reasons, the informations are dismissed." 10 The appellant has sought leave to appeal against the decision of the Chief Industrial Magistrate. 11 An immediate difficulty is that, unfortunately, there is a paucity of reasoning in the reasons for decision and his Worship has failed to determine whether Bedrock was guilty of an offence under s 15(1) of the Act and, if so, in what manner. It is not permissible to consider a defence under s 53 in the absence of a finding that there has been an offence under a provision of the Act. Unless the offence is identified then it is impossible to determine whether or not it was reasonably practicable to comply with the provision of the Act the breach of which constitutes the offence and it is likewise not possible to determine whether the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable for the person to make provision. These observations are consistent with those contained within the decision of Full Bench of this Court in ABB Power Transmission Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT 1215 of 1996, 2 May 1997 at 7); see also WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 at [38]. 12 There are three ways in which it was alleged in the summons that the defendant had failed to comply with s 15(1). The first was in connection with the use of a ladder, the second was the failure to provide or maintain means of access to and egress from the place of work, and the third was a failure to provide information, instruction, training and supervision. In order to consider whether a defence is available under s 53 it would be necessary to apply the dual circumstances contained within that section to the manner in which the defendant had been held to have breached s 15(1). It would be necessary therefore to establish which of the three particulars contained within the summons, and the sub-category of the particulars, especially in relation to the ladder, were made out before the consideration of any statutory defence. 13 Accordingly, on its face, the decision of the Chief Industrial Magistrate contains appealable error. His Worship has purported to apply a defence under s 53 without having identified the manner in which the breach under s 15 (1) has occurred. Leave to appeal should therefore be granted. See Fletcher Constructions, at [4]. 14 However, in determining this appeal it is also necessary to have regard to the nature of the appeal and its statutory basis. The proceedings are brought under s 197A of the Industrial Relations Act 1996 which is in the following terms: 197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation (1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation. (2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. (3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law. (4) The appeal may be made by the Attorney General, the Minister, the Director of Public Prosecutions or the prosecutor in the proceedings in which the decision appealed against was made. (5) An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period. (6) Section 191 applies to an appeal under this section. (7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged). (8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence. (9) This section has effect despite anything to the contrary in section 196 or 197. (10) In this section: Occupational health and safety legislation means the Occupational Health and Safety Act 1983 , the regulations under that Act or the associated occupational health and safety legislation within the meaning of that Act. (11) This section does not apply to a decision made before the commencement of this section." 15 Whilst detailed submissions were not made as to the particular provisions of s 197A, it seems that the power of the Court to determine the matter is to be found in s 197A (7). That is, the appeal may either be dismissed or the decision appealed against set aside. If the decision is set aside the Full Bench is required to make a decision in the matter in accordance with law, including convicting and sentencing the respondent. The Court's powers as to the costs in the appeal, including those at first instance, may not be found entirely in s 197A (7) but also in s 181 of the Industrial Relations Act which relevantly provides plenary powers on that matter. 16 We have not had an opportunity of seeing the witnesses give evidence and are plainly not in the same position as was the Chief Industrial Magistrate to assess the nature and extent of any difficulties which Mr Luan may have with the English language. There may be no alternative but to adopt the conclusions of his Worship as to the assessment of the competing versions of the factual circumstances of the incident and his evaluation of the witnesses. However, as there has been no challenge to the implicit finding that the offence was proven we do not consider it appropriate to disturb it. Further, we consider that there was an appropriate basis, on the evidence, to make such a finding. In the circumstances we do not consider on the evidence that a defence under s 53 of the Act could have been made out by the respondents. Hence, prima facie the acquittal should be reversed and it would remain to consider the appropriate sentence to impose. 17 The defendants have, however, already been involved in lengthy proceedings, and there is a significant element of double jeopardy involved in an appeal against an acquittal: Vierow v Ridge Consolidated Pty Ltd (No 3) [2002] NSWIRComm 345 at [5]. We consider, having regard particularly to the circumstances of these matters, that we should exercise our residual discretion and not impose any sentence upon the respondents. Such an outcome is consistent with the approach to sentencing adopted in the general criminal law. The nature of double jeopardy was discussed by the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610. In their joint judgment McHugh, Hayne and Callinan JJ said at p 614: "The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be 'punished again for the same matter'. ( Wemyss v Hopkins (1875) LR 10 QB 378 at 381 per Blackburn J). Further, 'double jeopardy' is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment. If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States 355 US 184 at 187-188 (1957): 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. It also finds reflection in constitutional guarantees such as the 5th Amendment to the United State Constitution, which states in part: '[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.' It may be seen as a value which underpins and affects much of the criminal law. …" 18 Wright J, President referred to the principle of double jeopardy in the context of Crown appeals against sentence in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor (1999) 92 IR 392. Although his Honour was in dissent as to the ultimate outcome, there was no issue as to his Honour's observations concerning the principle of double jeopardy. His Honour adopted the approach of the Court of Criminal Appeal in R v Allpass (1993) 72 A Crim R 561 where the Court specifically referred to the over-riding discretion of an appellate court "which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process …". His Honour specifically referred to the significance of the circumstance of double jeopardy generated by a Crown appeal against sentence and the exercise of discretion which thus arose. This approach was also taken by the other members of the Court, Hungerford and Peterson JJ. Having regard to these principles, which we consider equally apply to the present proceedings, the Court should exercise its discretion not to disturb the orders at first instance acquitting the respondents. 19 However, in view of our conclusion otherwise that there was a proper basis for finding the offence proven at first instance we propose to reverse the Chief Industrial Magistrate's costs order at first instance. We shall not, however, order the appellant to pay the respondents' costs of the appeals. 20 Accordingly, the orders of the Court are as follows: 1. Leave to appeal is granted. 2. The appeals are upheld as to the Chief Industrial Magistrate's orders as to costs. 3. The respondents shall pay the appellant's costs of the proceedings at first instance. 4. The appeals are otherwise dismissed. 5. There shall be no order as to the costs of the appeals. _____________________ 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.