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HALIFAX CRANE HIRE PTY LTD -v- AYTON [2023] WASC 16 (2 February 2023)

Last Updated: 3 February 2023


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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : HALIFAX CRANE HIRE PTY LTD -v- AYTON [2023] WASC 16

CORAM : FORRESTER J

HEARD : 30 NOVEMBER 2022

DELIVERED : 2 FEBRUARY 2023

FILE NO/S : SJA 1049 of 2022

BETWEEN : HALIFAX CRANE HIRE PTY LTD

Appellant

AND

LEONA YVONNE AYTON

Respondent

FILE NO/S : SJA 1050 of 2022

BETWEEN : HALIFAX CRANE HIRE PTY LTD

Appellant

AND

LEONA YVONNE AYTON

Respondent

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For File No : SJA 1049 of 2022 & SJA 1050 of 2022

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE J ANDRETICH

File Number : BU 1935 of 2020


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Criminal law - Single judge appeal - Appeal against conviction - Whether the verdict of guilty was unreasonable and unsupported by the evidence - Failure to consider reg 1.4 of the Occupational Health and Safety Regulations 1996 in determining whether an offence had been committed against reg 4.54(8) - Whether substantial miscarriage of justice occurred

Criminal law - Appeal against sentence - Whether sentence imposed was manifestly excessive


Legislation:

Occupational Health and Safety Regulations 1996 (WA) (repealed)
Criminal Appeals Act 2004 (WA)

Result:

SJA 1049 of 2022
Leave to appeal refused on ground 1
Leave to appeal granted on ground 3
Appeal allowed
Matter remitted

SJA 1050 of 2020
Leave to appeal refused on all grounds
Appeal dismissed

Representation:

SJA 1049 of 2022

Counsel:

Appellant
:
K Kumar & I R Gregory
Respondent
:
T J Bishop


Solicitors:

Appellant
:
Shaddicks Lawyers Pty Ltd
Respondent
:
State Solicitor's Office (WA)


SJA 1050 of 2022

Counsel:

Appellant
:
K Kumar & I R Gregory
Respondent
:
T J Bishop


Solicitors:

Appellant
:
Shaddicks Lawyers Pty Ltd
Respondent
:
State Solicitor's Office (WA)


Case(s) referred to in decision(s):


Table of Contents




FORRESTER J:

Introduction
  1. On 13 March 2017, Mitchel Birkin tragically died at a property in Yarloop when a concrete panel fell on him. This matter arises out of the subsequent investigation into the circumstances of his death.
  2. The appellant supplied a crane to a builder operating at the Yarloop property. It was prosecuted for an offence alleging that it was required, but failed, to ensure that the mandated number of qualified and experienced workers were involved in the use of a crane which was being used at the property at the time Mr Birkin was killed.
  3. The appellant was convicted and ordered to pay a fine of $40,000, and to pay costs.
  4. The appellant appeals both its conviction and sentence.
The trial
  1. The appellant conducted a crane hire business which was contracted by Gran Designs Pty Ltd to provide a crane to a construction site in Yarloop for the purpose of lifting panels from a container into position. The directors of the appellant were Nicola DeMarte and his wife. The appellant sent a crane, a crane operator and a dogger, or 'dogman', to the construction site. The crane operator was an employee of the appellant. The dogger was Mitchel Birkin, also an employee of the appellant. No other qualified person was involved in the use of the crane. While the works were being conducted with the crane, a concrete panel fell, landing on Mr Birkin, causing his death.
  2. The appellant was charged with an offence contrary to reg 4.54(8) of the Occupational Health and Safety Regulations 1996 (WA) (repealed) (the Regulations) that:
On 13 March 2017 at Yarloop, being a responsible person in relation to a construction site at which a crane with a maximum rated capacity of greater than 60 tonnes, other than a vehicle loading crane, was being used, failed to ensure that at least the following persons were involved in the use of the crane: (a) one dogger and one rigger; or (b) 2 doggers; or (c) 2 riggers, each of whom had experience in the use of such a crane.
  1. It was not alleged by the prosecution that the appellant's conduct caused Mr Birkin's death.
  2. No particulars appear to have been provided by the prosecution as to the extent of the duty owed by the appellant or the manner in which it failed in complying with its duty.
  3. The trial took place over three days in February 2022.
  4. Much of the evidence at trial was directed to the question of whether the crane in question had a 'maximum rated capacity of greater than 60 tonnes' and thus whether reg 4.54(8) was applicable.
  5. However, the appellant also contended that, even if reg 4.54(8) did apply, the appellant had acted with 'appropriate due diligence to reasonably ensure compliance' with reg 4.54(8) and thus it had not failed in its duty under that regulation.[1]
  6. Finally, the appellant submitted that it was not criminally responsible for any failure to ensure compliance with the duty imposed by reg 4.54(8) by reason of an honest and reasonable but mistaken belief as to a matter of fact, pursuant to s 24 of the Criminal Code.
  7. Her Honour handed down her decision on 5 May 2022, finding the appellant guilty of the offence charged.
Grounds of appeal against conviction
  1. The appellant was granted leave to amend its grounds of appeal at the hearing of the appeal, that leave not being opposed by the respondent.
  2. Ground 2 was abandoned at the hearing of the appeal.[2] The remaining amended grounds were:
Ground 1
  1. The verdict of guilty was unreasonable and unsupported having regard to the incontrovertible evidence before the court that:
(1) The appellant's duty to ensure was limited to the extent it had control of the construction site, or could not (sic) reasonably be expected to have control having regard to the construction site and the work done or caused to be done by the appellant.

To this end, the appellant complied with its duty.

(2) The respondent did not negative the reasonable possibility that the appellant held an honest and reasonable but mistaken belief that the relevant number of crew would be involved in the use of the crane at all material times.
Ground 3
  1. The magistrate erred in law when finding that a failure to ensure contrary to reg 4.54(8) of the Regulations was an absolute duty cast upon a responsible person:
    (a) an element of reg 4.54(8) imposes a duty upon a responsible person to ensure relevant number (sic) of skilled persons work with a crane of a particular tonnage;
    (b) a failure to do so is an offence;
    (c) the duty however is limited by reg 1.4 when that responsible person is an employer in relation to the workplace in question to only be required to do what is in their control or what can reasonably expected to be in their control;
    (d) the learned magistrate entirely failed to consider reg 1.4 nor was it referred to by the respondent in its submissions as bearing upon the limitation of the duty to be considered.
Application to adduce additional evidence in an appeal
  1. The applicant applied for the affidavit of Ian Ross Gregory sworn on 21 October 2022 and annexures to be admitted as evidence on the appeal, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) (the CA Act). However, at the appeal the application was not pursued.
Legal framework
  1. The application for leave to appeal is made under div 2 of pt 2 of the CA Act. A decision to convict an accused after a trial is a decision which may be appealed.[3]
  2. Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[4] meaning that the ground is required to have a rational and logical prospect of succeeding.[5] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[6]
  3. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[7]
Ground 1 Unreasonable verdict - legal principles
  1. The principles which apply to a ground that a verdict is unreasonable and cannot be supported having regard to the evidence are well settled. In NYL v The State of Western Australia,[8] the Court of Appeal summarised those principles, derived from the decision of the High Court in M v The Queen:[9]
    1. The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
    2. The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
    3. That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
    4. In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
    5. A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
    6. If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
    7. The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial [63].
  2. The same principles apply by analogy to a trial before a magistrate.[10]
Matters in issue at trial
  1. The appellant was charged under reg 4.54(8), which stated:
If a crane with a maximum rated capacity of greater than 60 tonnes, other than a vehicle loading crane, is used at a construction site, a responsible person must ensure that the following persons are involved in the use of the crane —
(a) at least one crane operator who has experience in the use of such a crane;
(b) at least —
(i) one dogger and one rigger; or
(ii) 2 doggers; or
(iii) 2 riggers,
each of whom has experience in the use of such a crane.
  1. The terms 'dogger', 'rigger' and 'responsible person' were defined by reg 4.54(1).
  2. At the hearing of the appeal, it was conceded that, as an employer at the workplace, the appellant was a 'responsible person' within the meaning of reg 4.54, and that the appellant therefore had a duty pursuant to reg 4.54(8).[11]
  3. The term 'workplace' was relevantly defined by reg 1.10 as follows:
Unless the contrary intention appears, a reference in a provision of these regulations to a workplace if used in association with a reference to —
(a) an employer, is to be treated as limited to the workplace in respect of which that person is the employer;
(b) an employee, is to be treated as limited to the workplace at which that employee works ...
  1. It was common ground at the trial that the 'workplace' in this context was appropriately confined to the crane and the area in which it was being used.
  2. At the trial, there was no dispute that the appellant had ensured that a dogger experienced in the use of the crane was involved in the use of the crane. There was also no dispute that, as a matter of fact, there was no second dogger, or a rigger, who was experienced in the use of the crane, involved in the use of the crane. The principal issues were whether the crane in question had a maximum rated capacity of more than 60 tonne, and, if so, whether the appellant had 'failed to ensure' that a second dogger, or a rigger, was involved in the use of the crane such that it was liable under reg 4.54(8).
  3. Had the crane had a maximum rated capacity of between 10 and 60 tonnes, the requirement would have been only to send one dogger or one rigger who had experience in the use of the crane.[12]
  4. For the purposes of the appeal, the appellant conceded that the crane did have a maximum rated capacity of more than 60 tonnes. In relation to the remaining issue, whether the appellant had 'failed to ensure' that a second dogger, or a rigger, was involved in the use of the crane such that it was liable under reg 4.54(8), the relevant evidence is summarised below.
The evidence

Joseph Anthony

  1. Mr Anthony was a manager at WorkSafe Investigations and investigated the incident in which Mr Birkin was killed. He conducted two interviews with Mr DeMarte, who indicated he was authorised to act as the appellant's representative.

Interview of 12 July 2017[13]

  1. On 12 July 2017, WorkSafe Inspectors conducted an audio recorded interview with Mr DeMarte. In that interview, Mr DeMarte said that the company does very little 'dry hire' (hiring out the crane without labour). He said:
... we like to have control of the job. Unfortunately we don't have that opportunity ... yesterday I ... went out and done a lift study on a job, and I said to the person that we need two crane opera ... ah, two riggers from a large company and they said, 'No, you won't be supplying any riggers, we'll supply our own riggers, we'll supply our own riggers.' I says, 'Under ... under the Act, you must have two riggers with this size crane, that are fully aware ... of that crane,' and they said, 'Yep, we'll supply those sort of people.'

A lot of the times my guys refuse to do it because ... participate in that simply because these guys do not. They have riggers, safe work riggers, and you go out to a job, they know absolutely nothing about that crane, and consequently then we have issues with people trying to put counterweights on so I refuse to do those sorts of jobs.

....

I pretty well walk away. Unless I have ... I've got to have at least one rigger that is aware of the crane, totally aware of it, and if they want to supply a rigger that's got 75% of the ... the knowledge of that particular crane.[14]
  1. In relation to the job in question, he said:
On this particular day on the 13th of March, there was a number of jobs, and from 10.30 to 11, Grand Designs, 7 Lawley Road, Yarloop, 16‑metre reach, lift hollow panels rest of day, 55 tonne of dogman (sic), and it gives us the phone numbers. And that's basically that's all they've asked for. So basically they've got control of the job. We don't have any ... any control of it.

...

... the girls will then raise a job sheet with all the details. They'll have a job safety analysis. We don't have control of that site. Different to other sites when we're actually putting up panels, then we have control of that site, the whole site. In this case here we don't have control. We are only working for somebody else under their direction on a building site. So we then complete this. If they've got any other information they need completed they will ask.[15]

... I rang the operator a number of times during the course of the day, and at no stage did he say that he was having any issues onsite, he says, 'These guys don't really know a hell of a lot but just go nice and steady and we'll be here tomorrow ... I'm pretty sure we'll be here tomorrow.' So I thought that, as far as I'm concerned, he had it all under control.[16]
  1. The Inspectors referred Mr DeMarte to a document which they labelled ND9, which was at the job sheet filled out by staff in the office, part of which appears as:

  1. Mr DeMarte was asked why the word 'dogman' was circled and he answered:
Crane goes out with a dogman, that size crane.[17]
  1. When asked if that was standard, or just what the client orders, Mr DeMarte said:
... generally we try to send out dogman with them. Obviously that size crane, they have their own dogman and we send at least one person, like I said earlier, we send one person that, um ...[18]
  1. The Job Safety Analysis (JSA) was also part of ND9. That was a document created by the appellant, and filled out by the employees on site. Mr DeMarte described it as a form which:
[h]ighlights the safety issues, highlights the area of where the guys are setting the cranes up ... in regards to entry to the work, ah, is there any permits required and setting up the crane, it brings up all the hazards, so it makes all the guys aware onsite the hazards. Um, particularly with powerlines. The estimated ... estimated weight of the ... of the loads. Any critical radius, any unstable ground, the forms of communication.[19]
  1. There is nothing on that form regarding the size of the crane or the number of personnel required to be involved in the use of it.
  2. Mr DeMarte noted that the 55 tonne crane was ordered, but the '70 tonner went out there without counterweights'.[20]

Interview of 20 January 2020[21]

  1. Mr DeMarte was again interviewed on 20 January 2020. In relation to the job sheet which was part of ND9, he was asked whether any of the writing was his, and he said 'just change of cranes ... from a 55 to a 70.' When asked why he made the change, he said:
Ah, because the 55 probably wasn't available so that was the crane that was available. Mind you, that crane there was, um, is a 70-tonne crane, but at the time it wasn't geared for a 70-tonne crane, it's just that I call a 70 because it's ... has that capacity when it's got counterweights. When it doesn't have that counterweights, it just comes down to a 52 or 55 ... as per the load chart.[22]
  1. Again in reference to the form, Mr DeMarte said:
Crane and ... does that not say crane and dogman? Crane and a dogman. Doesn't say rigger, crane and a dogman, and that's what I take it from. A crane and a dogman, and they've got their own processes in place. You would expect that they would have ...

This is where WorkSafe has failed because they should have had their processes in place to ensure that when someone is called to go to the job, that they have those processes in place. We have no idea whether they've got ten riggers there onsite, and they just want a dogman to go with our crane because we would have said to them, 'We want our own dogman on a crane.'[23]
  1. Mr DeMarte was asked how he knew that a builder has all that expertise, and he said:
They don't operate cranes, but they have a duty of care. Everyone has a duty of care. Everyone should know, right, a builder should know what the process is, right, after all, he should have ... if he doesn't know, he should have contacted me. When he contacted Halifax Crane Hire, he should have said, 'No, oh, this is what I'm doing. I have no idea how to do it. Please, can someone come out and view the job?' That's what I would have expected.[24]

...

... if a person goes out to that job, safe systems of work is a work, that the crane driver is a competent crane operator, and I would have expected that crane operator, if he had any concerns. When I spoke to him, I would have expected him to tell me. Him to tell me because he's the one acting on our behalf. He should have told me that he's ... that he's unsure of it, that these builders have no idea or doesn't have the right lifting gear or anything. As far as I was concerned, he had all the ... all the lifting gear, everything was there, everything was provided.[25]

...

When my guys got there on the Monday, when Mr Brown got there on the Monday, and he wasn't competent, or he didn't think he had competent staff to do the job, he should have contacted me and said, 'I don't have competent staff to do this job. I need someone with a lot more that's got to run the whole job.' We're not just a taxi crane hire on this job. We've got to run this job.

Obviously, that's what he was doing and that's what the question's you've asking me, you and Gary asking me is what we expected of. But we ... we don't have control of the job. We're only there as a taxi crane hire. The guy's rung for a dogman and a crane. He does ... we're not running the job for him.[26]
  1. At no point in either record of interview did Mr DeMarte say that he was aware that Gran Designs were supplying a rigger, or that he was aware that he was required to ensure that there were at least two riggers, two doggers, or a rigger and a dogger involved in the use of the crane he sent to the construction site.

Nicole Maunders

  1. Nicole Maunders was an employee of the appellant who initially booked the hire of the crane by Gran Designs. She recalled the initial request was for a 55 tonne crane to lift what she wrote were 'airated concrete panels' of which the heaviest was three tonnes. A dogman was also requested.
  2. Ms Maunders was referred to the job sheet she filled out, specifically the same portion of ND9 referred to in the interviews of Mr DeMarte.
  3. Ms Maunders said that the crossing out of the 55T and the writing of the 70T was 'Nick's writing', referring to Mr DeMarte.[27]
  4. Ms Maunders also gave evidence that Mr Earle, a crane operator employed by the appellant, went to the site to check the job and afterwards wrote a note which she photocopied and attached to the job sheet. Mr Earle had written some details of the job on the note, as well as the words 'Send experienced crew'.[28] She said that Mr Earle also had a meeting of no less than 45 minutes with Mr DeMarte.[29] She said that if she had been told that the builder was supplying a dogger or rigger, that would have been recorded on the job sheet.[30]

Warren Earle

  1. Mr Earle was a crane operator employed by the appellant, authorised to operate cranes of up to 60 tonnes. On 10 March 2017, he went to Yarloop to assess the job for which the appellant's crane was being hired. He said the initial request was for a 25 tonne crane but that was not suitable. Mr Earle was told the system was new and they had a guy with experience on the ground. They did not really explain his experience.[31] They asked for a crane, its equipment and a dogman or dogman/rigger.[32]
  2. Mr Earle went back to the office and spoke to Mr DeMarte and Mr DeMarte told Mr Earle he was to do the job the following Monday using a 55 tonne crane.[33]
  3. Mr Earle said that there was discussion that there would be one person who would take charge of the site, 'the experienced guy'. Mr Earle thought he may have had rigging type experience, but the builder never said that the man was a rigger, just that he had done rigging type work.[34] Mr Earle believed he told Mr DeMarte that they had a guy with experience, and 'All we got to do is supply a rigger to hook them up and unhook them.'[35] He related to Mr DeMarte the best that he could remember, which he agreed included who the builder was providing.[36]
  4. Mr Earle said that when he had asked Mr DeMarte how they knew whether a rigger was licensed, Mr DeMarte had said that they were not really authorised to ask. On some sites, they could be confident they were licensed, but not with private housing and small builders.[37] That system had since changed so that licences were checked.[38]
  5. Mr Earle was not aware of the requirements of the regulations as to the number of riggers required to be supplied with particular cranes,[39] but if a person was not supplied or was not qualified, he would call Mr DeMarte. Mr Earle said he was not part of the decision to send a 70 tonne crane.[40]

Michael Brown

  1. Mr Brown was the crane operator who was sent to Yarloop with the 70 tonne crane and Mr Birkin on 13 March 2017. He had found out the night before that he was attending that job.[41] The next day, he found out that the relevant job was the second job of the day.[42] He did not recall being told there would be someone else on site[43] and he was not particularly expecting it.[44] He said he did not discuss that with Mr DeMarte,[45] but later said that it was possible Mr DeMarte mentioned a rigger being provided by the builder.[46]
  2. Mr Brown said that most of the time the appellant supplied the riggers and doggers, but at times the customer did. If the latter, that would nearly always be printed on the sheets.[47] He did not normally ask doggers and riggers at a site to show him their tickets and he did not recall any processes in place for that to occur.[48]
  3. When they started the job, there was one person already at the construction site who was the main one working with them with the crane, and Mr Brown was sure he was familiar with cranes. He was doing work which doggers and riggers do as part of their job.[49]
  4. Mr Brown was shown a Job Safety Analysis (JSA) form which he had completed that day.[50] That document contains no reference to the Regulations or the requirements of reg 4.54(8).

Nicola DeMarte

  1. Mr DeMarte gave evidence for the appellant.
  2. Regarding his discussion with Mr Earle, Mr DeMarte said that Mr Earle told him, 'You need an experienced guy'. As a result, Mr DeMarte said he would put Mr Brown there, because he was experienced with tilt panels. Mr DeMarte claimed that the decision to put in the 70 tonne crane was a decision made by both him and Mr Earle,[51] because the 55 tonne crane would not have been able to get into the site.[52] This was in contrast to what he had earlier said to the investigators; that the reason the crane changed to a 70 tonne crane was that 'the 55 probably wasn't available.'[53]
  3. Mr DeMarte said that Mr Earle had said that the builder had said:
... they had an experienced crew - had all their props and riggers to carry out the job. And they just wanted a dogman ...[54]
  1. Mr DeMarte gave evidence that it was quite regular for a client to provide a rigger. He said that the only reason a dogman was required was to take some other equipment to the site.[55]
  2. Mr DeMarte said the reason why Mr Earle was not involved in the job was that he did not have a licence to operate the 70 tonne crane and he was not experienced with tilt panels.[56]
  3. Mr DeMarte claimed that the builder had 'total control' of the site, and he was not in charge of the project.[57]
  4. In cross examination, Mr DeMarte did not agree that the maximum rated capacity of the crane provided was 70 tonne. He said that on the date in question, it had a maximum rated capacity of less than 40 tonne.[58] However, he said, this was not the reason he did not do anything to ensure that Gran Designs had a licensed dogger or rigger.[59]
  5. Mr DeMarte said that Mr Earle had asked for an experienced operator to be sent; there were riggers for the panels and the dogman was never going to be part of it.[60] He claimed that the job sheet explained what they needed to supply and said, 'Remember, they were in charge, not us.'[61] He denied seeing the note Mr Earle wrote saying, 'Send experienced crew.'[62] He later claimed he was told there was a 'crew of riggers' and a 'rigging team on site'.[63]
  6. Mr DeMarte agreed that he knew Mr Earle had not spoken to the rigger, only the builder. He agreed he had not himself sought assurance from the builder about who the rigger was, or asked to see a high risk rigger's ticket. He said Mr Earle told him that the person with rigging experience had experience with a 70 tonne crane.[64]
  7. Mr DeMarte accepted that even when the appellant did not have full control of the site, its employees had control of its cranes and how they were used. He said that he would like to think the appellant retained ultimate oversight of its employees and its cranes, but it did not always happen.[65]
  8. When asked if he had discussed the change in the crane size with the builder, Mr DeMarte said that he did not ring him, because he was not going to charge him any more money for the larger crane.[66]
Appellant's submissions in relation to ground 1
  1. The appellant's counsel relied on the appellant's written submissions, in which it was asserted that there must have been a reasonable doubt as to the elements that:
(1) the appellant failed to ensure having regard to the extent of any duty imposed on him to do so (sic);

(2) that the appellant did not hold an honest and reasonable but mistaken belief that the Builder was to provide a rigger with the expertise particular to those panels and that project.
  1. The submissions further cited Mr DeMarte's expertise in the industry and said:
Having been informed by the Builder onsite that there would be an experienced rigger, there was evidence upon which the Appellant could conclude:
(i) that the Builder adhered to the Regulations and the Code at the construction site, which relevantly requires as a minimum that the person in control of the project onsite prepares a Safe Work Method Statement which includes the stating and checking of the qualifications of personnel doing the work and the training required to do it safely;
(ii) his crane operator and his dogman would be working with a rigger provided by the Builder with the requisite experience in those particular panels; and
(iii) On the day the person supplied by the Builder performed the duties of a rigger in a competent manner.[67]
  1. The basis for the submission that there must have been a reasonable doubt as to the two matters in [69] was not further developed.
Respondent's submissions in relation to ground 1
  1. The respondent submitted that the evidence was capable of establishing the appellant's guilt.
Disposition of ground 1
  1. Whether there was evidence upon which the appellant could conclude the matters set out in [70(i) - (iii)] does not establish that the verdict was unreasonable or unsupported by the evidence. The question is whether the magistrate must have entertained a reasonable doubt about the appellant's guilt.
  2. It was not in dispute that the appellant ultimately determined the size of the crane to be supplied to Gran Designs, without consulting Gran Designs. The crane supplied by the appellant was a different size to the crane requested by Gran Designs, and a different regulation applied to it. There was no evidence the builder was ever informed of the size of the crane sent by the appellant. Accordingly, the appellant was in a unique position to know how many qualified personnel were required to be involved in the use of the crane.
  3. There was conflicting evidence as to whether Mr DeMarte was told that the builder had an 'experienced rigger' onsite. However, even on his own evidence, he acknowledged he did nothing other than rely on what he was told by Mr Earle.
  4. There were significant apparent inconsistencies in Mr DeMarte's evidence and his interviews with investigators. For example, he gave inconsistent accounts of how the 70 tonne crane came to be sent to the site. His statements as to the extent of the appellant's control (and that of its employees) regarding the use of the crane varied. It is also difficult to reconcile his insistence that the crane did not have a maximum rated capacity of more than 60 tonne with the appellant's case that it was aware of, and had complied with, its duty in relation to a crane of more than 60 tonne.
  5. It was not submitted on behalf of the appellant, and the transcript does not reveal any basis to conclude, that it was not open to her Honour to reject the evidence of Mr DeMarte, where inconsistent with the evidence of Mr Earle. Once that occurred, it was open to her Honour to find that the appellant had failed to take any steps to ensure that the requirements of reg 4.54(8) had been complied with.
  6. However, even if Mr DeMarte's evidence were not rejected, the issue of whether the appellant had failed to take sufficient steps to ensure that reg 4.54(8) had been complied with would have remained.
  7. Relevant to this issue was reg 1.4. Reg 1.4 provided that the appellant's duty related only to a matter over which, and the extent to which, the employer had control or could reasonably be expected to have control having regard to the workplace and the work done or caused to be done by the employer or his or her employee.
  8. In my view, it was open on the evidence for the magistrate to find that the appellant had control over the number of qualified people involved in the use of the crane, or could reasonably be expected to have such control, to a far greater extent than the appellant argued, and that the appellant failed to comply with its duty in this regard.
  9. The appellant also submitted as part of this ground that there must have been a reasonable doubt as to whether the prosecution had disproved honest and reasonable but mistaken belief on the part of the appellant as to whether the builder was to supply a qualified rigger.
  10. In my view, there was no room for the operation of s 24 of the Criminal Code in the prosecution of the appellant in this case. The combination of reg 4.54(8) and reg 1.4 had the effect of imposing a duty on the appellant to ensure the appropriate number of qualified personnel were involved in the use of the crane. That duty was limited to the extent the appellant had control, or could be reasonably be expected to have control, of that matter.
  11. Had Mr DeMarte had an honest and reasonable belief that the builder would have a qualified rigger on site, that would have been a factor in determining whether the prosecution had proved that the appellant had failed to comply with its duty. However, the existence of such a belief could not sensibly operate as an additional matter which the prosecution was required to disprove.
  12. Further, and in any event, it was open on the evidence for her Honour to find (as she did) that the prosecution had disproved that Mr DeMarte had an honest and reasonable but mistaken belief as to that matter.
  13. Having regard to the order I propose to make as a result of my findings on ground 3 and the lack of particulars supplied to date, it is not appropriate to go into detail as to the various steps which the evidence demonstrates the appellant could have taken in order to comply with the duty imposed on it by reg 4.54(8). However, I am satisfied that it was open on the evidence to convict the appellant.
  14. Ground 1 is dismissed.
Ground 3
  1. Ground 3 asserts that the magistrate erred in law in finding that a 'failure to ensure' contrary to reg 4.54(8) was 'an absolute duty' cast upon a responsible person.
  2. This ground, as expressed, was not developed in the appellant's written or oral submissions. However, to the extent that the appellant's complaint was that the magistrate treated the offence as an offence of absolute liability, in the sense that term is used by Dawson J in He Kaw Teh v R,[68] I have addressed this at [82] ‑ [84] above. Further, even if the magistrate was in error, no miscarriage of justice could arise, because her Honour found that, if the prosecution was required to negate honest and reasonable but mistaken belief, it had done so.[69]
  3. At the hearing of the appeal, the appellant clarified that the real complaint made by ground 3 was that, in determining that the appellant had 'failed to ensure' that the required number of qualified people were involved in the use of the crane, the magistrate had failed to consider reg 1.4 of the Regulations.[70] The respondent conceded that the magistrate had so failed, but argued that this did not give rise to a miscarriage of justice.[71]
  4. Reg 1.4 provided as follows:
Unless the contrary intention appears, where an employer has a duty under a provision of these regulations to do or not do something in relation to a workplace, the employer's duty —
(a) relates only to a matter over which, and the extent to which, the employer has control or can reasonably be expected to have control having regard to the workplace and the work done or caused to be done by the employer or his or her employee; and
(b) is limited to himself or herself and to any other person who is —
(i) his or her employee; or
(ii) any other person who may be affected wholly or in part as a result of the work done or caused to be done by the employer or his or her employee.
  1. The effect of reg 1.4 was to confine the appellant's duty to those matters over which, and the extent to which, it had control or could reasonably be expected to have control having regard to the workplace and the work done or caused to be done by the employer or his or her employee.
  2. In determining whether the appellant had failed to ensure that a second dogger or rigger with experience in the use of the crane was involved in the use of the crane, the magistrate found that the appellant (by whom her Honour meant the appellant's representative, Mr DeMarte) was not a credible witness, and said:
I have found that [Mr DeMarte] was not a credible witness, therefore, I reject any representations made by [Mr DeMarte] as to his recollection of events and the efforts he went to ensure that the second dogger or rigger with experience in the use of a Liebherr crane insofar as those representations contradict the evidence given by Mr Earle. I accept the submissions made by the prosecutor [and] incorporate those submissions into my decision. The prosecutor, therefore, has proved that element of the offence beyond reasonable doubt.[72]
  1. The submissions of the prosecution as to the requirement to 'ensure' were:
In this context, the duty to ensure means making certain that there are the required number of persons who hold a high risk work licence authorising the persons to do dogging work or rigging work involving cranes and who have experience in the crane being used.[73]
  1. The prosecution submissions summarised the evidence as to the conduct of the appellant and submitted:
The evidence establishes that [the appellant] never sought confirmation from Gran Designs Pty Ltd or at all that a licensed rigger or dogger with experience in 70 tonne cranes would be at the construction site and involved with the use of the Liebherr [crane].[74]

...

...the prosecution submits that the Court should find that [the appellant] did not satisfy its duty to ensure that a licenced rigger with experience in 70 tonne cranes was involved in the use of the crane that day. [The appellant] merely relied on a vague representation made by the builder to Mr Earle. These actions did not satisfy the appellant's duty to 'ensure'.[75]
  1. In a case in which one of the fundamental matters in dispute at the trial was whether the appellant had complied with its duty under reg 4.54(8), the nature and extent of that duty were of critical importance. Notwithstanding this, neither the prosecutor nor defence counsel directed the magistrate's attention to reg 1.4 and her Honour did not refer to it, or any of the concepts contained in it, in her reasons for decision.
  2. There were indications that the magistrate was conscious that the appellant's duty under reg 4.54(8) was limited. However, it was a fundamental step in the decision‑making process that there be a finding as to the existence and extent of the appellant's duty before consideration could be properly given as to whether the appellant had failed to meet that duty. In those circumstances, the fact that her Honour did not specifically address that issue is significant.
  3. In this case, it was necessary for her Honour to determine whether the number of qualified people involved in the use of the crane was a matter over which the appellant had control or could reasonably be expected to have control, and the extent of that control.
  4. Identifying the precise basis of the magistrate's findings in relation to this issue is complicated by her Honour's reference to incorporating the prosecution's submissions in her reasons for decision. As I have noted, those submissions did not refer to reg 1.4. Accordingly, it is impossible to reach any conclusion other than that the magistrate did not direct herself in accordance with reg 1.4, and thus failed to properly direct herself as to an element of the offence.
  5. Ground 3 has been made out.
Substantial miscarriage of justice?
  1. The ground of appeal having been made out, I am required to consider whether a substantial miscarriage of justice has occurred.
  2. At the hearing of the appeal, the appellant argued that the appeal should not be dismissed on the basis that there was no substantial miscarriage of justice.
  3. Following the hearing of the appeal, the appellant sought leave to file supplementary submissions on this issue. I granted that leave to the appellant, and also granted leave to the respondent to file supplementary submissions in response.
  4. In its supplementary submissions, the appellant submitted that, on appeal, the court 'ought not make any independent assessment of evidence received in a trial which has fundamentally departed from a trial according to law.'[76] It submitted that, in the absence of the parties being aware of reg 1.4, evidence relevant to the issue was not adduced.
  5. The respondent submitted in response that the error was not such a significant departure from the notion of a fair trial as to result in a substantial miscarriage of justice. It argued that reg 1.4 did not create an element of the offence. Further, the respondent submitted that the appellant has failed to establish that, while there was a 'material irregularity', it did not constitute a miscarriage of justice.
  6. There are two pathways to a determination that there has been no substantial miscarriage of justice. The first is that the error had no material effect on the verdict. The second is if the court is satisfied, on a review of the evidence, that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt.[77]
  7. As Hall J observed in Morgan v Cramer, the form of the proviso in s 14(2) of the CA Act needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for their decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect.[78]
  8. In this case, however, that assessment is complicated by the manner in which the magistrate's reasons were formulated in relation to this issue.
  9. In the circumstances of this case, having regard to the fundamental nature of reg 1.4 to the case of both the prosecution and the appellant, and the fact that the prosecution did not address the appellant's control (or reasonably expected control) of the workplace and the extent of that control, I am not satisfied that the magistrate's error had no material effect on the verdict. I therefore turn to consider whether the second pathway to applying the proviso is open.
  10. The prosecution case was, in my view, very strong. However, some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable.[79] That is, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.[80]
  11. In my view, contrary to the submission of the respondent, the failure to direct on reg 1.4 was a failure to direct as to an element of the offence. As in Baiada Poultry Pty Ltd v The Queen,[81] the appellant's case constituted a denial that the prosecution had proved that the appellant had failed to comply with its duty. It was a precondition to proof that the appellant had failed to comply with its duty that (a) the appellant had such a duty and, if so (b) the extent of that duty be established. As such, the provisions of reg 1.4 were required to be taken into account when considering an element of the offence.
  12. The omission to direct on an element of liability does not necessarily amount a substantial miscarriage of justice, or even legal error, if proof of the element was not a live issue in the trial. The question is always whether there has been a substantial miscarriage of justice, and resolution of that question depends on the particular misdirection and the context in which it occurred.[82]
  13. However, in this case, the issue of whether the appellant had failed to comply with its duty under reg 4.54(8) was one of the two planks of the appellant's case. In such circumstances, the fact that the limitations that reg 1.4 imposed on the appellant's duty were overlooked by both counsel and the magistrate meant that the appellant's case was never advanced in the proper framework.[83]
  14. The respondent argued that, given the appellant did not seek to adduce additional evidence regarding this element in the appeal, the reasonable inference is that 'there is no further evidence that the appellant can call in support of this ground'. However, this submission necessarily implies that the appellant bears an onus of proof, which it does not. Further, it fails to address the issue of whether the prosecution witnesses have relevant evidence to give on the matter.
  15. The respondent also submitted that the additional evidence which the appellant contended could have been adduced had reg 1.4 not been overlooked at the trial was:
... they do not address the issue of control under reg 1.4. Rather, they address the obligation to ensure and whether the threshold to ensure has been achieved.[84]
  1. This submission cannot be accepted. Reg 1.4 relates not only to the issue of control, but the extent of it. It is therefore fundamental to the issue of whether the threshold of the duty has been achieved.
  2. In my view, the fact that the parties were unaware of reg 1.4 and its relevance to the matters in issue at the trial had the consequence that the parties did not direct their minds to all of the matters which needed to be established at the trial, or to adducing all of the evidence which was relevant to proof of those matters. In those circumstances, it would not be appropriate for the court to assess, for the purposes of considering whether there was a substantial miscarriage of justice, whether the evidence proved the appellant's guilt beyond reasonable doubt.
  3. Accordingly, in this case, I am satisfied that there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.
Appeal against sentence
  1. Having regard to the outcome of the conviction appeal, it is unnecessary for me to deal with the appeal against sentence.
Conclusion
  1. Ground 3 has been made out. It cannot be concluded that no substantial miscarriage of justice has occurred. The appropriate orders are:
SJA 1049 of 2022: appeal against conviction

(1) Leave to appeal is refused on ground 1.

(2) Leave to appeal is granted on ground 3.

(3) The appeal is allowed.

(4) The matter is remitted to the Magistrates Court for retrial before a different magistrate.

SJA 1050 of 2022: appeal against sentence

(1) Leave to appeal is refused on all grounds.

(2) The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AT
Associate to the Honourable Justice Forrester

2 FEBRUARY 2023

[1] Transcript, Ayton v Halifax Crane Hire Pty Ltd, Magistrates Court of Western Australia, 7 February 2022, 17 (Transcript, 7 February 2022).
[2] ts 37.
[3] CA Act s 6(c) and s 7(1).
[4] CA Act s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] CA Act s 9(3).
[7] CA Act s 14(2).
[8] NYL v The State of Western Australia [2022] WASCA 41.
[9] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
[10] The State of Western Australia v Olive [2011] WASCA 25 [44].
[11] ts 36 - 37.
[12] Regulations reg 4.54(9).
[13] Exhibit 4, Record of Interview of Nick DeMarte on 12 July 2017 (Exhibit 4).
[14] Exhibit 4, 6 - 7.
[15] Exhibit 4, 10 - 11.
[16] Exhibit 4, 15.
[17] Exhibit 4, 39.
[18] Exhibit 4, 39.
[19] Exhibit 4, 40.
[20] Exhibit 4, 43.
[21] Exhibit 5, Record of Interview of Nick DeMarte on 20 January 2020 (Exhibit 5).
[22] Exhibit 5, 8.
[23] Exhibit 5, 41.
[24] Exhibit 5, 41.
[25] Exhibit 5, 59.
[26] Exhibit 5, 68.
[27] Transcript, 7 February 2022, 44.
[28] Transcript, 7 February 2022, 45 - 46; Exhibit 6.
[29] Transcript, 7 February 2022, 46, 49.
[30] Transcript, 7 February 2022, 51 - 52.
[31] Transcript, Ayton v Halifax Crane Hire Pty Ltd, Magistrates Court of Western Australia, 8 February 2022, 35 - 38 (Transcript, 8 February 2022).
[32] Transcript, 8 February 2022, 38, 39.
[33] Transcript, 8 February 2022, 42.
[34] Transcript, 8 February 2022, 44.
[35] Transcript, 8 February 2022, 44.
[36] Transcript, 8 February 2022, 50.
[37] Transcript, 8 February 2022, 45, 53.
[38] Transcript, 8 February 2022, 53 - 55.
[39] Transcript, 8 February 2022, 49.
[40] Transcript, 8 February 2022, 51 - 52.
[41] Transcript, 8 February 2022, 56.
[42] Transcript, 8 February 2022, 58.
[43] Transcript, 8 February 2022, 65.
[44] Transcript, 8 February 2022, 72.
[45] Transcript, 8 February 2022, 73.
[46] Transcript, 8 February 2022, 75.
[47] Transcript, 8 February 2022, 59.
[48] Transcript, 8 February 2022, 59 - 60.
[49] Transcript, 8 February 2022, 64 - 65, 76 - 77.
[50] Part of Exhibit 1.
[51] Transcript, Ayton v Halifax Crane Hire Pty Ltd, Magistrates Court of Western Australia, 9 February 2022, 42 - 43 (Transcript, 9 February 2022).
[52] Transcript, 9 February 2022, 71.
[53] Exhibit 5, 8.
[54] Transcript, 9 February 2022, 43, 46.
[55] Transcript, 9 February 2022, 47 - 48.
[56] Transcript, 9 February 2022, 54.
[57] Transcript, 9 February 2022, 59, 72.
[58] Transcript, 9 February 2022, 66 - 67.
[59] Transcript, 9 February 2022, 66 - 67.
[60] Transcript, 9 February 2022, 67.
[61] Transcript, 9 February 2022, 68.
[62] Transcript, 9 February 2022, 75.
[63] Transcript, 9 February 2022, 81.
[64] Transcript, 9 February 2022, 71.
[65] Transcript, 9 February 2022, 78.
[66] Transcript, 9 February 2022, 79 - 80.
[67] Appellant's submissions filed 21 October 2022 [33.h] ‑ [33.i].
[68] He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 [2].
[69] Transcript, Ayton v Halifax Crane Hire Pty Ltd, Magistrates Court of Western Australia, 5 May 2022, 15 (Transcript, 5 May 2022).
[70] The respondent had understood this to be the real complaint raised by the ground.
[71] Respondent's submissions filed 11 November 2022 [63].
[72] Transcript, 5 May 2022, 12 - 13.
[73] Prosecution submissions [137].
[74] Prosecution submissions [142].
[75] Prosecution submissions [146].
[76] Appellant's supplementary submissions filed 9 December 2022 [15].
[77] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44].
[78] Morgan v Cramer [2019] WASC 68 [45].
[79] Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 [38].
[80] Morgan v Cramer [2019] WASC 68 [45]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45].
[81] Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 [30] ‑ [32].
[82] Kalbasi v The State of Western Australia  [2018] HCA 7 ; (2018) 264 CLR 62 [57].
[83] Head v The State of Western Australia [2020] WASCA 21 [42].
[84] Respondent supplementary submissions filed 16 December 2022 [16.1].

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