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8
Court of Criminal Appeal 15 December 2015

REGINA v MOORE

[2015] NSWCCA 316

Also reported as (2015) 91 NSWLR 276
Homicide
CRIMINAL LAW PROCEDURE INTERLOCUTORY ORDERS JURISDICTION FOR GRANTING A STAY DUTY OF CARE DUTY OF CARE OF EMPLOYER TO EMPLOYEE

Citation: Regina v Moore [2015] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 15 December 2015
Judges: Bathurst CJ, Simpson JA (dissenting in part), Bellew J

Background

The respondent was an experienced bricklayer, the sole director, and a permanent employee of a small bricklaying company. The company engaged the deceased as an additional part-time bricklayer for a residential development in Bondi. In June 2003, the deceased was working on the construction of a kitchen dividing wall. When the wall reached ceiling height, it was freestanding, unbraced, and unsupported by any other structure. The wall collapsed and the deceased died from his injuries.

Over a decade later, the respondent was charged by indictment with involuntary manslaughter by criminal negligence. The Crown's case was that the respondent owed the deceased a duty of care, and that his failure to ensure the wall was braced or otherwise supported was a breach of that duty serious enough to constitute gross criminal negligence.

Before the Crown prosecutor had even finished his opening address at trial, the trial judge ruled that no duty of care capable of supporting the charge existed. The trial judge then permanently stayed the proceedings. The Director of Public Prosecutions appealed that decision to the Court of Criminal Appeal.

  • Whether the trial judge had jurisdiction to grant a permanent stay of proceedings on the basis that the Crown case was "foredoomed to fail"
  • Whether a statutory duty of care, arising under s 20 of the Occupational Health and Safety Act 2000 (NSW), could form the basis of a manslaughter charge
  • Whether a common law duty of care could arise between the respondent (as director and co-worker) and the deceased (as a fellow employee) in the circumstances
  • Whether the trial judge erred in staying the proceedings before the evidence was tested

Decision

The stay jurisdiction. The Court confirmed that a permanent stay of criminal proceedings is available only in extreme cases, including where the Crown case is foredoomed to fail. The test requires the prosecution case to be assessed at its highest, with all Crown witnesses accepted and all favourable inferences drawn. The Court's task was therefore to determine whether, on that elevated assessment, the Crown could establish a duty of care capable of grounding the charge.

The statutory duty. By majority (Bathurst CJ and Bellew J), the Court held that a breach of s 20 of the Occupational Health and Safety Act 2000 (NSW) was not capable of founding a manslaughter charge. The legislature, on a proper construction of the whole Act, intended the penalty provisions within that Act to be the exclusive consequence of a contravention. Several features of the Act supported this conclusion: s 20 could impose duties where none would exist at common law; prosecutions could only be brought by specified persons within a two-year limitation period; and later amendments introducing the offence of reckless contravention tended to confirm that an ordinary breach was not intended to carry manslaughter liability. Simpson JA dissented on this point, concluding that s 20 is capable of grounding a manslaughter charge and that whether the respondent's conduct met the requisite threshold was a question for the jury.

The common law duty. On this ground, the Court was unanimous. All three judges concluded that it was at least arguable that a common law duty of care existed between the respondent and the deceased. The fact that the respondent was a director of the company did not, by itself, impose or preclude such a duty. What mattered was whether, on the particular facts, a duty arose as between two individuals. The Court identified several factors capable of supporting that conclusion: the foreseeable risk of serious injury from an unbraced wall; the deceased's apparent unawareness of the danger; the respondent's assumed responsibility for site safety; the respondent's control over the site and the ability to direct that the wall be braced; and the low cost and inconvenience of doing so.

Outcome. Because the Crown case on common law duty of care was not foredoomed to fail, the trial judge erred in granting the stay. The Court acknowledged the significant passage of time since the 2003 incident and the need for fairness to the respondent, but weighed those considerations against the seriousness of the allegations. The majority concluded that the stay should be quashed and the proceedings allowed to continue.

Orders Made

  • The appeal was allowed.
  • The permanent stay of proceedings granted by the trial judge was quashed.
  • The application for a permanent stay was dismissed.

Key Takeaways

  • A permanent stay of criminal proceedings is available only in extreme cases where the prosecution is foredoomed to fail; the test is applied by taking the Crown case at its highest, accepting all Crown evidence and drawing all favourable inferences.
  • Involuntary manslaughter by criminal negligence requires the prosecution to establish a legal duty of care owed by the accused to the deceased, a gross breach of that duty, and causation; the existence of a duty is a question of law for the trial judge, not the jury.
  • By majority, the Court of Criminal Appeal held that a breach of s 20 of the Occupational Health and Safety Act 2000 (NSW) cannot, on a proper construction of that Act, give rise to liability for manslaughter, given the Act's self-contained enforcement scheme and limited prosecution regime.
  • A common law duty of care between an employee and a fellow employee is not precluded merely because the defendant is also a director of the employing corporation; the duty depends on the actual circumstances, including control over the site, assumption of responsibility for safety, and the vulnerability of the person at risk.
  • Where a novel duty of care is raised, any argument based on "salient features" requires clear articulation of the nature and scope of the duty claimed, with appropriate distinctions drawn between factual matters, value judgments, and legal policy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Occupational Health and Safety Act 2000 (NSW), s 20
- Occupational Health and Safety Act 1983 (NSW)
- Work Health and Safety Act 2011 (NSW)

Key Cases:
- Nydam v R [1977] VR 430
- Wilson v The Queen (1992) 174 CLR 313
- The Queen v Lavender (2005) 222 CLR 67
- Burns v The Queen [2012] HCA 35; 246 CLR 334
- R v Taktak (1988) 14 NSWLR 226
- Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424
- Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
- Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
- Brookfield Multiplex Ltd v Owners of Strata Plan No 61288 [2014] HCA 36; 88 ALJR 911
- Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16
- Australian Iron and Steel Ltd v Ryan [1957] HCA 25; 97 CLR 89
- Heaton v Western Australia [2013] WASCA 207; 234 A Crim R 409
- Barton v The Queen [1980] HCA 48; 147 CLR 75
- CSR Ltd v Wren (1997) 44 NSWLR 463
- English v Rogers [2005] NSWCA 327