REGINA v MOORE

BATHURST CJ: The respondent, Mr Wayne Moore (the respondent), an experienced bricklayer, was the sole director and permanent employee of KLA Bricklaying Pty Ltd (KLA).

By a contract dated 29 March 2003, KLA agreed to provide bricklaying services in respect of the construction of a residential apartment development at 6 Military Road, North Bondi (the development).

In respect of the development, KLA employed a part time bricklayer, Mr David Hands (the deceased), as an additional bricklayer.

On 12 June 2003, the deceased commenced working on the construction of a kitchen dividing wall, which, by 13 June 2003, was completed to a ceiling height. On that date, until 16 June 2003, it was a freestanding wall, neither braced, nor attached, nor supported, by any other part of the structure.

On 16 June 2003, the deceased was walking towards a toolbox he had left near the wall. The wall collapsed and fell on him, as a result of which he died.

By an indictment presented on 4 August 2014, the respondent was charged with unlawfully killing the deceased. The indictment relied on s 18(1)(b) of the Crimes Act 1900 (NSW), the charge being one of involuntary manslaughter. The Crown case was essentially that the respondent had a legal duty of care to the deceased and his omission to cause the wall to be braced or otherwise provide it with lateral support constituted gross criminal negligence. In the Crown case statement, the following particulars were given in regard to the duty of care and its content and standard:

The breach was particularised as follows:

Following the opening by the Crown to the jury, the trial judge inquired about the basis on which it was said that the respondent owed a duty of care to the deceased. Initially, it was suggested by the Crown that the source of the duty resided in the relationship of employer and employee. However, the Crown reformulated its case during argument on whether the respondent owing a duty to the deceased was a necessary prerequisite to a conviction for the offence. The primary judge described the duty, as reformulated, as follows:

Following argument on this issue, the trial judge concluded that there was no common law duty owed by the respondent to the deceased which could form the basis of the charge. As a consequence, on 8 September 2014, the trial judge granted a permanent stay of the proceedings.

The Director of Public Prosecutions (the appellant) has appealed against the grant of a stay pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW).

It was common ground between the parties that for liability for manslaughter of this nature to arise, the accused had to owe a duty to the deceased, which was breached in a gross fashion, meriting criminal punishment.

The parties agreed that the question of the existence of a duty of care was a question of law to be determined by the trial judge rather than the jury. That approach was correct: Burns v The Queen [2012] HCA 35; 246 CLR 334 at [20]; R v Troy Anthony Cameron (Court of Criminal Appeal (NSW), 27 September 1994, unrep) per Finlay J, Abadee and Simpson JJ agreeing; R v Evans (Gemma) (2009) 1 WLR 1999 at [39], [45]. As was pointed out in the latter case, there will be many instances where the existence of a duty is not in dispute. In more complex cases, however, it will be necessary to direct the jury that only if certain facts are found, but not otherwise, will a duty exist: Evans (Gemma) at [39], [45]; Burns at [20].

This division of the functions of judge and jury gives rise to particular difficulties in the present case. The argument before the trial judge took place prior to any evidence having being tested and in circumstances where, unsurprisingly, there was no agreed statement of facts, pleadings or any other document which set out the basis on which the Crown contended that the duty existed. It is necessary to consider the principles which should be applied where a stay is sought in circumstances such as those in the present case.

No submission was made to the trial judge that the course upon which he embarked was inappropriate. Further, once the trial judge had concluded that (on the balance) a duty of care did not arise, the parties accepted that the grant of a stay was the appropriate order.

For my part, I have some doubt about whether the course of action taken was appropriate. It has been frequently stated that a stay of criminal proceedings will only be granted in an extreme case: Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111; Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23 (Jago) at 34; The Queen v Glennon [1992] HCA 16; 173 CLR 592 at 605-606; Dupas v The Queen [2010] HCA 20; 241 CLR 237. However, the jurisdiction exists at least where the case in question can be said to be foredoomed to fail.

In Walton v Gardiner [1993] HCA 77; 177 CLR 378, the plurality, citing Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 128-130, made the following remarks (at 392-393):

Walton v Gardiner was a civil case, but the principle stated in it has been held to extend to criminal cases. In R v Smith (1995) 1 VR 10 (Smith), the Appeal Division of the Supreme Court of Victoria, in setting aside an order by the primary judge that proceedings be permanently stayed, emphasised the limited basis on which the discretion should be exercised. Brooking J summarised the position as follows at 14-16:

Eames J, agreeing with the formulation of the test by Brooking J, emphasised (at 41) “that it must be clear beyond argument that the Crown is unable to make out a case to answer, having regard to the evidence available to it”.

Byrne J reached a similar conclusion. His Honour made the following remarks (at 28-29):

The decision in Smith was reversed by the High Court on the basis that the Appeal Division had no jurisdiction to entertain the appeal: Smith v The Queen [1994] HCA 60; 181 CLR 338. However, it was not suggested that the principles applied by the Appeal Division were incorrect. The principles laid down in Smith have been applied subsequently on at least two occasions by the Court of Appeal in Victoria: Nelson (a Pseudonym) v Director of Public Prosecutions (Cth) [2014] VSCA 217; RJP v R [2014] VSCA 290.

In R v McGee [2008] SASC 328; 190 A Crim R 521, each of Doyle CJ (at [85]) and White J (at [291]) cited Smith with approval. Doyle CJ went on to state that when applying the test in question, the Court must consider the prosecution case at its best and highest, on the basis the Crown witnesses are accepted and all inferences favourable to the prosecution are drawn. He stated that the test was stricter than that applied in considering whether there was no case to answer: at [88]. White J expressed a similar conclusion (at [291]).

As was pointed out in the judgment of Byrne J in Smith, in the passage cited above, one reason for the test being a stringent one is that if it were not, the Court would be interfering with the discretion of the Director of Public Prosecutions to bring proceedings. A similar approach was taken by Doyle CJ in McGee. His Honour made the following remarks (at [87]):

In R v Petroulias (No 1) [2006] NSWSC 788; 177 A Crim R 153, Johnson J adopted a similar approach: at [71]-[78].

The approach is consistent with the fact that the grant of a permanent stay is an exceptional remedy. It is also in line with the public interest in serious allegations, of the nature of those made in the present case, being disposed of on the merits: Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 at [32].

The decision of the trial judge to grant a stay, in circumstances where he stated that many of the considerations relied upon by the Crown created an arguable case for concluding that the accused owed a duty of care, but on the balance, a duty did not exist, sits uneasily with the approach mandated by these authorities. It is true that the trial judge was determining a question of law, but, having regard to the way that the Crown put its case, the answer to the question depended to a significant extent on the facts relied on by the Crown. In these circumstances, the stringent test laid down in the authorities should have been applied.

However, no consideration was given to the matter by counsel for either party, either before the trial judge or on the hearing of the appeal. If only for that reason, it is necessary for this Court to consider the issue of whether, taking the Crown case at its highest and assuming that all of the evidence tendered before the judge on the hearing of the application will be admissible at the trial, any attempt to establish that the respondent owed a duty of care to the deceased was foredoomed to fail.

The trial judge made the following findings, which were not contested for the purpose of the appeal.

The trial judge also referred to the “Bricklayers Safety Plan” (Safety Plan), completed and signed by the respondent. He pointed out that the Safety Plan contained the following statement:

The trial judge also referred to the fact that the Safety Plan made provision for the nomination of a person responsible for occupational health and safety. He pointed to the fact that against the call for the nomination were the handwritten words, “as above”, stating that it was ambiguous as to whether this referred to the respondent or to KLA. It seems to me that, for the purpose of this application, it should be assumed in favour of the appellant that in signing this document, the respondent was referring to himself as the person responsible.

The trial judge also referred to the statement by the site foreman, Mr Didio, to the effect that he observed that the wall had not been braced and suggested to the respondent that a lintel bar be used to support the wall. In his statement, Mr Didio claimed that the accused said something to the effect of, “No, that’s fine. I have done heaps of them. It will be all right”. That statement was to be disputed at trial. However, for the purpose of this application, it should be assumed that the Crown will be able to establish that the conversation occurred.

The primary judge also referred to expert evidence which was proposed to be called by the Crown. This evidence was to the effect that the wall was “unstable”, “extremely vulnerable to overturning from wind load” and “teetering on the verge of collapse”.

A statement by the respondent was also tendered. The statement said that the respondent regarded the deceased as a highly competent bricklayer and that he thought that the deceased “had been laying bricks for about forty years”. He also stated that the wall in question, the internal kitchen wall, was built by the deceased.

In addition, a record of interview of the respondent by WorkCover NSW was relied upon. In the course of that interview, the respondent indicated that he was aware of the Masonry Structures Code, which stated that “Masonry under construction shall be braced or otherwise stabilized as necessary to resist wind or other lateral forces, in such a manner that the structural integrity of the member is not impaired”. The respondent was asked who he believed had the responsibility to ensure that bracing conforming with that clause was in place. He responded that he did not know, but said that if he thought it was needed, he would supply the bracing. However, he stated that he did not believe that the wall in question needed to be braced.

In the respondent’s Workcover NSW interview, he again stated that the wall was constructed by the deceased. He also stated, in answer to a question as to who had the responsibility to ensure that any temporary bracing was in place, that if he thought it was needed, he would have supplied the bracing. However, he also said that he did not really understand how the wall collapsed. He stated that he had been laying bricks for 25 years in the United Kingdom and Australia and this was the first time that he had seen a wall blown over or collapse three days after construction, in a reasonably sheltered area.

The trial judge made the findings to which I have referred in par [27] above. Referring to Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 (Andar), he pointed out that the duty of care for the health and safety of employees is primarily, if not exclusively, owed by the employer and in the case of a corporate employer, owed by the company itself and not its directors. He pointed out that absent sham, “the doctrine applies even in the case of a sole director/shareholder company”.

The trial judge identified the Crown case as asserting that the respondent owed a duty of care to the deceased which was, for all intents and purposes, co-extensive with the obligations owed to the deceased by his employer, KLA. He referred to the Crown’s reliance on the decision of the Ontario Supreme Court in Berger v Willowdale AMC (1983) 145 DLR (3d) 247 (Berger), in which Cory JA (as his Honour then was) found that the president and sole shareholder of a corporation, which was the employer of the appellant, was personally responsible for making the appellant’s workplace reasonably safe, the duty arising because the president was in control of the situation. The trial judge referred to the fact that the Crown relied on 12 matters, which it submitted made the present case analogous to Berger:

The trial judge stated that the approach reflected the “evaluative” or “salient features” approach to the imposition of a duty, outlined by Allsop P (as his Honour then was) in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 (Stavar) at [102]-[103] (sometimes described as a multifaceted approach).

The trial judge stated that many of the considerations relied upon by the Crown, when taken together with such of the additional factors outlined by the President in Stavar as applied, created an arguable case for concluding that the respondent owed a personal duty to the deceased. However, he stated that taking into account the comments in Burns that courts must be circumspect in identifying relations that give rise to a previously unrecognised obligation to act, he concluded that, on the balance, the respondent did not owe the duty contended for. He stated that two factors, in particular, pointed against the existence of such a duty. First, the fact that the Occupational Health and Safety Act 2000 (NSW), as then in force (the Act), governed the liability of the respondent by imposing liability directly on directors and managers to ensure the health, safety and welfare of employees. The second factor was that through principles of accessorial liability, the law already provided a means by which the respondent might conceivably be held accountable for breaches of any duties owed by KLA or for crimes committed by it.

The appellant (Crown) relied on three grounds of appeal, each of which essentially asserted that the duty in question arose in different ways.

It was first contended that the respondent was under a statutory duty as an employee, pursuant to s 20(1) of the Act, to take action that was necessary to ensure that the wall was properly stabilised. Further, the appellant submitted that the respondent had a duty, under s 20(2) of the Act, to take action in response to the inquiries by Mr Didio, the site foreman.

The appellant referred to the judgment of Yeldham J in R v Taktak (1988) 14 NSWLR 226 at 243-244, where his Honour cited with approval the remarks of the United States Court of Appeal, District of Columbia Circuit in Jones v United States of America 308 F 2d 307 (1962) (Jones), to the effect that liability for involuntary manslaughter could arise if a statute imposed a duty to care for another. The appellant submitted that the effect of the Act was to impose a relevant statutory duty sufficient to ground the offence of involuntary manslaughter.

It was not entirely clear whether this submission was maintained at the hearing. Ultimately, the position of the appellant appeared to be that s 20 of the Act, to use the expression of senior counsel for the appellant, “illuminates” the underlying duty.

The respondent submitted that s 20 of the Act was a statutory penalty provision and an alleged breach could not be used as a mechanism to found an allegation of criminal negligence for the purpose of a charge of manslaughter by criminal negligence. He pointed out that there was a two year limitation on the bringing of proceedings and, at the time the incident occurred, the only statutory penalty was a fine. He pointed out that subsequent to the events in question, s 32A of the Act was introduced, which created the offence of reckless breach of the duties imposed under Pt 2 of the Act (which included s 20) causing death, providing a maximum penalty of five years imprisonment. He submitted that even if the amendments were taken into account, it would be anomalous to rely on a contravention of s 20 to found a charge of involuntary manslaughter by criminal negligence.

The second basis on which it was said that a duty of care arose (encompassed in ground 2 of the grounds of appeal) was that “the Respondent had played a direct central causative part in the sequence of events which gave rise to the risk that the wall might collapse”. The appellant submitted that the respondent was in charge of the deceased and, at least after the conversation with Mr Didio, “suffered that there was created and continued the dangerous situation that the wall was built without proper lateral support and thereafter remained unsupported against collapse up to and including the day of the incident”.

Senior counsel for the appellant submitted that the duty arose when the wall became inherently unstable.

The respondent, in disputing that a duty could arise in this fashion, emphasised the need for circumspection in identifying categories and relationships that give rise to a previously unrecognised obligation to act. He pointed to the fact that cases which have held that a duty arose in this fashion have involved situations where the risk or danger arose as a result of acts done by the deceased.

Senior counsel for the respondent pointed out that simply being on site did not impose an obligation on the respondent to supervise or direct his fellow employees. He pointed to the fact that the deceased was a more experienced bricklayer than the respondent and that there was no evidence that the deceased took directions from the respondent.

The third basis upon which the appellant submitted that a duty arose was that “there was a novel common law duty of care owed by the Respondent as the director of KLA to the Deceased which could found liability for the offence of manslaughter by reason of criminal negligence”.

In that context, the appellant placed particular reliance on the various factors referred to by Allsop P as salient factors in Stavar. It submitted that the harm was “more than reasonably foreseeable” and the consequences “potentially fatal”. It submitted that the respondent had “complete control over the construction method that was to be employed in building the wall”.

The appellant submitted that the deceased was vulnerable in that he was “under the direct control of the Respondent in relation to both the required manner of construction of the wall and whether or not the wall was to be stabilised”. It also submitted that the deceased was “required to place a high degree of reliance on the Respondent”.

The appellant submitted that the respondent had assumed responsibility for site management and that there was proximity in the “physical, temporal or relational sense” between the deceased and the respondent, in particular by reason of the fact that the respondent had day-to-day supervision of the deceased.

The appellant referred again to the high risk of the wall collapsing and submitted that the respondent had “actual or constructive” knowledge of this. It submitted that there was no potential indeterminacy of liability, as the means of avoiding the harm were simple and there was no “imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests”.

The appellant also submitted that the result contended for was consistent with the result reached in other common law countries, referring in particular to Berger and Yuille v B&B Fisheries (Leigh) Ltd (1958) 2 Lloyd’s Rep 596 (Yuille).

The respondent submitted that the situation was not novel, in that it was made clear in Andar at [49] that the common law duty to take reasonable care for the safety of employees is imposed upon the employer, not on its individual directors. He submitted that Stavar was a case where an existing duty between employer and employees was extended to persons who might reasonably come into contact with asbestos residue arising from the employees’ work.

The respondent submitted that the imposition of the duty in question was inconsistent with the Act, which provided that the standard of care was that the employer ensure the safety of an employee – a higher standard of care than that required by the law of negligence. Further, the respondent submitted that the imposition of the duty in question was inconsistent with the principle that corporations and their directors were distinct legal entities.

In regard to the case of Berger, the respondent submitted that the result flowed from the two stage test propounded by the House of Lords in Anns v Merton London Borough Council (1978) AC 728 as a means of determining if a duty of care arises in novel cases, an approach which has been rejected in this country. The respondent submitted that the decision in Yuille depended on its own particular facts, stating that this was recognised in a subsequent decision of the United Kingdom Court of Appeal, The Anonity (1961) 2 Lloyd’s Rep 203. The respondent also disputed the existence of the salient factors identified by the appellant in its submissions. He submitted that the foreseeability of harm was not as obvious as contended for, stating that it did not appear to be apparent to the deceased, who was an experienced bricklayer. He pointed out that both he and the deceased were subject to the direction and supervision of Mr Didio, the site manager.

The respondent submitted that the deceased was not in a position of vulnerability, submitting that the deceased was “a more experienced bricklayer than the respondent”, who would have had a greater appreciation of the risk involved, particularly if the risk was obvious.

The respondent submitted that there was no evidence that he had assumed any responsibility to the deceased. He submitted that he and the deceased “worked with each other over many years” and were working under the supervision of Mr Didio. He submitted that both he and the deceased were employed by KLA and that the deceased had “autonomy to undertake his own unsupervised work on the site”.

The respondent submitted that the material before the trial judge showed that the respondent did not believe that the wall was required to be braced and denied that Mr Didio raised the issue with him. He submitted that if Mr Didio had had any concerns, he would not have permitted other builders to work immediately around the wall while in an unbraced state.

The respondent submitted that the imposition of a duty would give rise to potential indeterminacy of liability. He submitted that it would lead to uncertainty in regard to the circumstances in which a director or manager would become liable to provide a safe system of work for co-employees.

Section 18 of the Crimes Act 1900 (NSW) provides as follows:

The common law has long recognised the offence of involuntary manslaughter by criminal negligence. The history of the offence was summarised by Yeldham J in Taktak, with whom Loveday J agreed (Carruthers J generally agreeing). Amongst other citations, his Honour referred to Sir James Fitzjames Stephen, A History of the Criminal Law of England, (1883, MacMillan and Co), vol III at 10-11 to the following effect (at 236-237):

In dealing with circumstances in which the offence can be committed, Yeldham J, citing the decision of the United States Court of Appeals District of Columbia Circuit in Jones, said that there were four instances in which a failure to act may constitute a breach of a legal duty sufficient to give rise to the offence. The first was “where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid”: Taktak at 243-244. This passage was cited with approval by French CJ in Burns at [22].

It was common ground between the parties that the requisite elements of the offence in question were set out correctly by the Full Court of the Supreme Court of Victoria in Nydam v R [1977] VR 430. In a passage approved by the High Court in Wilson v The Queen [1992] HCA 31; 174 CLR 313 at 333; The Queen v Lavender [2005] HCA 37; 222 CLR 67 at [17]; King v The Queen [2012] HCA 24; 245 CLR 588 at [29] and Burns at [19], the Court in Nydam made the following remarks (at 445):

Although this passage refers to a negligent act, it was not disputed that the offence could arise from an omission. However, as French CJ pointed out in Burns at [21], “issues of duty of care and criminally negligent breach of duty arise most acutely in cases of involuntary manslaughter by omission”. In that context, both the plurality and Heydon J stated that “courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act”: Burns at [107], [128].

In Andar, the High Court made it clear that the common law duty to take reasonable care for the safety of employees is imposed solely on an employer, as distinct from its directors or employees. The Court made the following remarks:

As the plurality pointed out in that case, the consequence is that “a company may be charged with an offence as principal, and the director charged as an accessory, notwithstanding that the elements constituting both offences were committed by the director alone”: Andar at [46]; see also Hamilton v Whitehead [1988] HCA 65; 166 CLR 121.

This decision authoritatively establishes that the mere fact that a person is a director of a corporation does not found a duty to provide a safe system of work for the corporation’s employees. That would extend, in my opinion, to circumstances where the director was responsible for the implementation of those parts of the company’s activities which gave rise to a particular claim for breach of duty.

However, that does not mean that in all circumstances it is solely the employer who is responsible for providing a safe system of work or that the duty is limited to a person’s employees. In Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens v Brodribb), the High Court concluded that a duty to provide a safe system of work could be owed by a principal to independent contractors. Mason J described the reason for the imposition of the duty in the following terms (at 31):

Similarly, persons other than employers have been held, in particular circumstances, to owe a duty akin to the duty of an employer to provide a safe system of work. In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 (Crimmins), a majority of the High Court held that the respondent, which had various responsibilities for regulating the stevedoring industry, owed a common law duty to the appellant to take reasonable care to protect him from a reasonably foreseeable risk of injury arising from his employment by registered stevedores. The majority held that the duty arose as the respondent had knowledge of the special risks to which the members of the class, which included the appellant, were subject, was in a position to control and manage those risks, and the appellant was vulnerable to injury because of the casual and hazardous nature of his employment.

In that case, the Court emphasised the importance of the power to direct and control the activities of the person to whom the duty was said to be owed. McHugh J, with whom Gleeson CJ agreed, stated (at [107]) that “usually the very fact of the direction or control will itself be sufficient to found a duty”. He continued, “Where the person giving the direction or in control of another person’s freedom of action knows that there is a real risk of harm unless the direction is given … the case for imposing a duty is overwhelming”.

Hayne J, although in dissent as to the result, also emphasised the importance of the power to direct and control. His Honour made the following remarks at [276]-[277]:

A number of cases have held that where, as a matter of fact, control and direction over a person’s work activities is exercised by a person other than the employer, such that the relationship bears all of the features of an employer/employee relationship, a duty to provide a safe system of work, akin to that imposed on an employer, will be placed on the person who has such control: CSR Ltd v Wren (1997) 44 NSWLR 463 at 485; English v Rogers [2005] NSWCA 327 at [85]; TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 (Naidu).

It does not seem to me that, even applying the stringent test for granting a stay, the mere fact that the respondent was the sole director of KLA and presumably, in that capacity, had power to control how the work was carried out, would be sufficient to impose on him a duty to provide a safe system of work. The imposition of a duty solely on that basis, in my opinion, is contrary to what was decided in Andar and would be a significant extension of liability on companies’ officers who were in control of certain activities of the corporation. Further, I do not think that the evidence referred to above was sufficient to constitute the respondent a “surrogate employer” of the deceased (to adopt the expression used by Spigelman CJ in Naidu at [28]).

However, it does not seem to me that the effect of Andar is to preclude the imposition of a duty on an employee who is also a director to take reasonable steps to prevent harm being occasioned to fellow employees, regardless of the circumstances in which the duty is said to arise. Andar was dealing with the non-delegable duty of an employer to provide a safe system of work, not generally with circumstances in which an employee (whether or not a director of the employer) can owe a duty to his or her fellow employees. As discussed below at par [114], in the particular circumstances of the present case, the respondent’s control over the site may be a factor that would support the imposition of a duty of care.

As I have indicated, the authorities have made it clear that the breach of a statutory duty can form the basis of an offence of involuntary manslaughter by criminal negligence. I have referred to the judgment of Yeldham J in Taktak above. In Peter Gillies, Criminal Law (4th ed 1997, LBC Information Services) at 656-657, the learned author made the following remarks:

A similar view was expressed in Brent Fisse, Howard’s Criminal Law (5th ed 1990, Law Book Company) at 120-121, although the statutory provisions to which the learned author refers, on their face, indicate relatively clearly that the common law offence of manslaughter is only available for serious contraventions.

In Heaton v Western Australia [2013] WASCA 207; 234 A Crim R 409 (Heaton), the appellant was convicted of manslaughter. He had injected the deceased with heroin and, when she could not be awoken, did not seek to obtain medical assistance. His appeal was dismissed. The relevant breach of duty was a breach of s 262 of the Criminal Code (WA) (one of the statutes referred to in Howard’s Criminal Law) which was in the following terms:

The Code did not provide any separate penalty for that offence. The Code provided in s 268 that “[i]t is unlawful to kill any person unless such killing is authorised or justified or excused by law”. The Code also provided in s 280 that “[i]f a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter”.

In Macaree v The State of Western Australia [2011] WASCA 207 (Macaree), the appellant was convicted of manslaughter for contravention of a duty imposed by s 266 of the Criminal Code (WA). That provision, as relevant, was in the following terms:

In dismissing the appeal, the Court made the following remarks:

In each of these two cases, it was stated that to make good the charge of manslaughter, it was necessary to show that the degree of negligence was so serious that the trier of fact regarded it as deserving of punishment as a criminal offence: Heaton at [50]-[51]; Macaree at [48]-[49]; see also Callaghan v The Queen [1952] HCA 55; 87 CLR 115 at 124.

It was relatively clear that contraventions of the provisions in those cases which lead to death could found a prosecution for involuntary manslaughter. The provisions appeared in a Criminal Code and, although there was no specific penalty, a contravener was to be held liable for the consequences. The question which arises in the present case is whether a sufficiently serious contravention of s 20 of the Act could have the same consequences.

Section 20 was in the following terms:

The predecessor to s 20, s 19 of the Occupational Health and Safety Act 1983 (NSW), was in similar terms to s 20. The Second Reading Speech in respect of the 1983 Act, apart from stating that the general duties contained in it included a duty on employees for safe working practices and allowed for prosecution before magistrates and the imposition of fines up to $5,000, said little in relation to s 19. However, it was said that the object of the Bill was to bring to an end “the frightening effect of occupational injuries”.

The Second Reading Speech which introduced the legislation in question in the present case did not elaborate on these remarks.

The legislation in question in the present case was repealed and replaced by the Work Health and Safety Act 2011 (NSW).

It is well-established that an employee can be liable to a fellow employee for a negligent act which it was reasonably foreseeable would cause injury to that employee. Irrespective of whether such an act also contravened s 20, the negligent employee could be liable in manslaughter if a fellow employee died as a result of his or her negligence and the other elements of the offence were also made out.

However, s 20 may also impose a duty in circumstances where a duty would not be imposed by common law. This is particularly the case when what is alleged is a negligent omission. The question which arises is whether the legislature intended to limit an employee’s liability to the penalties contained in the Act, or also subject an employee to potential liability for manslaughter, if the other elements of that offence are established.

It seems to me that the question falls to be determined by a construction of the whole Act and the circumstances in which it was enacted, including the pre-existing law: Australian Iron and Steel Ltd v Ryan [1957] HCA 25; 97 CLR 89 at 98.

Section 32 of the Act stated that nothing in Pt 2 of the Act (which includes s 20) should be construed as conferring a civil right of action or a defence in civil proceedings. I should indicate that I do not regard s 32 as supporting the conclusion that a contravention of s 20 could not give rise to criminal liability for manslaughter. If anything, the express exclusion of civil liability, with no exclusion of criminal liability, tends to the contrary position.

However, s 20 of the Act provided its own penalty for contravention. The Act also provided for extensive powers of investigation, including, granting powers to inspectors to require a person to provide information or give evidence in relation to possible contraventions of the Act (s 62), removing the privilege against self-incrimination (s 65), and providing for protection only against direct use, rather than derivative use, of self-incriminating material (s 65).

Further, Pt 7 of the Act provided that prosecutions could only be instituted by a limited number of persons and were required to be commenced within 2 years of the date of the offence. That Part also empowered the Court to make extensive orders over and above the imposition of penalties.

Taking all of these matters into account, in circumstances where there was no correlative common law duty, I am of the opinion that the legislature did not intend for a contravention of the duty in s 20 to give rise to liability for manslaughter. To enable s 20 to do so would ignore the fact that the Act prescribed detailed remedies for breaches. Liability for manslaughter would, at least potentially, significantly enlarge the circumstances in which that crime could be committed. It is not to be assumed that this was intended by the legislature absent express words or necessary intendment.

Although it is not essential to my conclusion, I am fortified by the subsequent amendments to the Act, including the introduction of an offence of reckless contravention of Pt 2 (which includes s 20) in 2005. The section, introduced by the Occupational Health and Safety Amendment (Workplace Deaths) Bill 2005 (NSW), was in the following terms:

The Second Reading Speech in respect of the Bill included the following comments:

The amendment was thus introduced to provide more significant penalties for serious contraventions of Pt 2 of the Act. Although the penalties are less than the maximum penalty for manslaughter, the legislature determined that reckless conduct, as distinct from grossly negligent conduct, should be the touchstone for the offence.

In circumstances where it is necessary to consider whether the legislature intended for a consequence of s 20 to be that a gross breach constituted manslaughter, it seems to me to be legitimate to have regard to subsequent amendments in concluding that the legislature, when it originally enacted s 20, did not intend that result: Grain Elevators Board (Vict) v Dunmunkle Corporation [1946] HCA 13; 73 CLR 70 at 86; Hunter Resources Ltd v Melville [1988] HCA 5; 164 CLR 234. In the latter case, Dawson J made the following remarks (at 254-255):

Care must be taken in using amending legislation in this fashion. Amending legislation cannot be used as an aid to interpretation in respect of a provision which is unambiguous and care must also be taken to ensure that words in a later statute have not been inserted to remove possible doubt: Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203 at 212; R v Seiders; R v Somsri [2008] NSWCCA 187; 72 NSWLR 417 at [126]-[127]. Nevertheless, in the present case, the subsequent amendment does tend to confirm the view which I have reached that that the legislature did not intend that a contravention of s 20 of the Act would give rise to liability for manslaughter.

I do not think that the duty can arise on the basis suggested in the second ground of appeal, namely, that the respondent played a direct causative part in the sequence of events which gave rise to the risk that the wall might collapse.

In Burns, French CJ (at [23]) suggested that a duty of care may arise in these circumstances. However, the cases cited by his Honour in support of that proposition suggest that such a duty would only arise where it was the act of the accused or defendant which put the deceased in danger. R v Miller [1983] 2 AC 161 was a case where the appellant went to sleep in an unoccupied house. After lighting a cigarette, he fell asleep and inadvertently dropped the cigarette on the mattress. When he awoke, he observed that the mattress was smouldering, but did nothing to extinguish the fire. The house burnt down and the appellant was found guilty of arson. His conviction was upheld on the basis that when he became aware of the risk he had created, he did not try to prevent or reduce the risk of harm being done to the property: Miller at 177-178.

In the second case referred to by French CJ, Evans (Gemma), the appellant gave her half-sister some heroin. After injecting it, the half-sister complained of symptoms consistent with a heroin overdose and died. The appellant’s conviction for manslaughter was upheld on the basis that the appellant had created or contributed to the creation of a state of affairs which she knew or ought to have known was life threatening and failed to take any reasonable steps to save the deceased’s life: at [17]-[18], [31].

The third case cited by French CJ, Mitchell v Glasgow City Council [2009] 1 AC 874, was a civil claim by the widow of a secured tenant of a local authority who had been murdered by a fellow tenant. The authority was aware that the murderer had threatened to kill the deceased on numerous occasions. The authority was held not to owe a duty to protect the tenant. Although Lord Scott of Foscote (at [40]) cited the principle referred to by French CJ, it was held to have no application in that case.

In the present case, it was not suggested that the respondent was responsible for the construction of the wall or its design. In circumstances where his act did not cause the danger to arise, it does not seem to me that a duty could be imposed on this basis.

The duty contended for by the Crown was that, in the particular circumstances, the respondent was under a duty to the deceased to take reasonable care to avoid the risk to the deceased from the potential collapse of the wall.

In the well-known passage in his judgment in Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424, Brennan J emphasised (at 487) that “a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member”: see also Tame v New South Wales [2002] HCA 35; 211 CLR 317 (Tame) at [249]; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [43]-[44]; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [59]-[60]. Further, reasonable foreseeability of the damage suffered is a necessary, but not sufficient, condition for liability: see Crimmins at [72]; Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [42]; Tame at [45], [103].

In Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51, the Court explained the relevance of the reasonable foreseeability of the class of injuries suffered, in the following terms (at [45]):

In the present case, it seems to me that the Crown would be able to lead evidence which, if accepted by a jury, would demonstrate that the injury was reasonably foreseeable to a person in the position of the respondent. The trial judge reached a similar conclusion, without reference to the statement of Mr Didio (see par [27](2)-(3) above). If the Crown was able to prove that that statement was made, then its prospects of proving that the injury was reasonably foreseeable would be enhanced.

There remains of course the question of whether, in those circumstances, the relationship between the respondent and the deceased was such that a claim that the respondent owed a duty to the deceased was foredoomed to fail.

In Sullivan v Moody, the Court pointed out (at [50]) that the question of the existence of a duty involves “a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle”. In Stavar, Allsop P (at [102]) pointed out that “If … the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references [sic] to the ‘salient features’ or factors affecting the appropriateness of imputing a legal duty”. I agree, but would add that any legal reasoning should proceed by way of analogy from decided cases: Crimmins at [74]; Brookfield Multiplex Ltd v Owners of Strata Plan No 61288 [2014] HCA 36; 88 ALJR 911 (Brookfield Multiplex) at [24]-[25].

In the present case, as I have indicated, it would be open to the jury to find, as a matter of fact, that it was reasonably foreseeable that there was a danger that the wall would collapse. It would seem to me to follow from this that it was also open to the jury to conclude that it was reasonably foreseeable that such a collapse could cause serious injury or death to persons working in the near vicinity of the wall.

It would also be open to the jury to conclude that the deceased was vulnerable, in the sense described in cases such as Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [118]; Crimmins at [100] and Brookfield Multiplex at [130]. If the jury was satisfied that the deceased was unaware of the danger, which the respondent was aware of as a result of his conversation with Mr Didio, then it could be found that the deceased, by reason of his lack of knowledge of the risk, was not in a position to protect himself.

Further, it would be open to the jury to find that, by signing the safety plan, the respondent assumed responsibility for safety on the site. Although assumption of responsibility is not a determinative factor in the question of whether a duty exists, it remains a relevant factor to take into account: Stavar at [103].

Importantly, it would be open to the jury to find that the respondent had control over the site and the ability to direct that steps be taken to properly secure the wall. The importance of such a power to direct and control has been emphasised in a number of cases: Stevens v Brodribb at 31; Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 at 687-688. In Crimmins (at [107]) McHugh J, with whom Gleeson CJ agreed, emphasised the importance of the power to direct and control (see par [71] above).

Further, it would be open to the jury to find that the wall could be braced at very little cost or inconvenience: see Stavar at [103]. Finally, there is no question in the present case of any indeterminacy of liability. The only persons to whom the respondent would owe a duty were persons working near the site of the wall during the course of the construction.

In these circumstances, it seems to me that if a jury found these facts, it would be open to the judge to conclude that the respondent owed the duty contended for by the Crown. It cannot be said that such a contention is foredoomed to fail.

The trial judge emphasised two matters which influenced him in reaching a contrary conclusion. The first was that the Act governed the liability of the respondent. There is no doubt that the statutory obligations imposed on the respondent were relevant in considering whether or not a duty of care arises. However, as was pointed out in Sullivan v Moody at [60], the fact that the legislature imposes statutory obligations which constrain a person’s activities does not rule out the possibility of a duty of care arising. In the present case, s 32(b) of the Act makes it clear that the provisions dealing with the obligations of directors and employees do not affect any right of action in civil proceedings. While, as I have indicated, the relevant sections, of themselves, do not impose the duty said to be owed, they do not rule out the possibility of such a duty existing in the particular circumstances of the case.

The second factor which the trial judge said influenced him in his decision was that the law may otherwise provide a remedy, through the principle of accessorial liability, for both the criminal and civil wrongs of a corporation.

As I indicated earlier, a director can be criminally liable as an accessory when his or her acts cause the corporation to commit the principal offence. However, that does not seem to me to exclude the possibility of a director, employer or agent of a company owing a separate duty of care to a third party, if warranted by the particular circumstances of the case.

Further, to the extent that the trial judge suggested that the respondent could be civilly liable for the failure of KLA to provide a safe system of work, the proposition, in my opinion, is contrary to what the High Court said in Andar at [49]. It cannot be said that merely because the company acted through the respondent that the respondent was liable as a joint tortfeasor: O’Brien v Dawson [1942] HCA 8; 66 CLR 18 at 32. It may be that the respondent would be liable to KLA for a breach of duty owed by him to that company. However, that does not preclude the respondent also owing a duty to the deceased if the imposition of a duty was warranted in the particular circumstances.

It follows that a duty of care could arise if the following facts were established beyond reasonable doubt.

As it is possible that these facts could be established, it cannot be said that the Crown case is foredoomed to fail. In these circumstances, the appeal should be allowed.

I have reached the conclusion above with considerable reluctance. This is for a number of reasons. First, there has been inordinate delay in bringing this matter to a hearing. The alleged crime occurred on 16 June 2003. The police interviewed the respondent (apparently without caution) on 18 June 2003. The WorkCover NSW Investigator obtained a statement from him on 2 September 2003. Mr Didio was also interviewed in September 2003.

Thereafter, nothing appears to have been done until 8 December 2005, when Mr Didio was charged with manslaughter. He was discharged at committal. It should be noted that the charge was brought after the limitation period for the bringing of proceedings under s 107 of the Act had expired.

On 13 December 2005, the respondent returned to the United Kingdom. On 28 December 2005, an arrest warrant for the respondent was issued by the Waverley Local Court. Apparently, the respondent was discovered living in Wales in August 2009, but it was not until October 2012 that any formal request for extradition was made.

The delay, to say the least, is unfortunate. Although there is no right to a speedy trial (Jago), delay of this nature, at the very least, places a significant burden on the respondent in defending the charges.

Second, this case hardly seems to be a strong case of criminal negligence. Mr Didio, the site foreman, was discharged at committal. If one accepts that he had the communication, to which I have referred in par [30] above, it appears that he accepted what the respondent told him. The deceased, who was an experienced bricklayer, apparently did not perceive the danger. I have indicated above (par [34]) that the respondent stated that in his experience, what occurred was exceptional.

On this material, it is difficult to see how a jury could conclude that the respondent’s negligence was such that it warranted criminal punishment.

Third, it is not clear that the Crown proposes to rely on the respondent’s statement to the WorkCover NSW Investigator. As the respondent was not advised that he was entitled to object to answering questions on the basis that it might incriminate him, the statement would not be admissible if objection was taken: the Act s 65(2)(b).

Finally, irrespective of whether the offence of manslaughter is available in the circumstances of the present case, it seems to me to be highly undesirable to proceed with a common law offence when the statutory provisions are available, or, as a substitute for them when the limitation period has expired. This question was considered by Lord Rodger of Earlsfelly in R v Rimmington, R v Goldstein [2005] UKHL 63; [2006] 1 AC 459.. His Lordship made the following comments:

However, none of these matters were in issue in the present case. It was for the prosecution to consider whether it wished to proceed with a charge.

In the result, the orders I would make are as follows:

SIMPSON JA: Pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions (“the Director”) appeals against an order of the District Court, made on 8 August 2014, permanently staying an indictment that charged the respondent, Wayne Moore, with the manslaughter, on 16 June 2003, of David Hands.

Since, in a number of respects, I take a different view to that expressed by the Chief Justice, whose judgment I have read in draft, it is appropriate that I set out the relevant facts and circumstances.

The Crown alleged that the respondent was guilty of manslaughter by criminal negligence, constituted by his omission to do an act that he was under a legal obligation to do. The primary judge held that there was “no warrant to impute a duty on [the respondent] to act positively to ensure the safety of [Mr Hands]” and that there was “no common law duty on [the respondent] which relevantly founds his liability as a principal in respect of the offence charged”. In those circumstances, the Crown case could not succeed, and it was appropriate to grant a permanent stay of the indictment.

The issue for present determination is whether the evidence proposed to be adduced in the Crown case was such that, if accepted, it could found a conviction for manslaughter. Specifically, the issue concerns the existence (or otherwise) of a duty of care owed by the respondent to Mr Hands, and, if there is such a duty, the content of that duty.

The order was made in the very early stages of the trial of the respondent, before the Crown prosecutor had concluded his opening to the jury. That had the consequence that the issues were determined in the District Court, and must be determined in this Court, on the basis of the evidence that the Crown proposed to adduce, and on the assumption that that evidence would be accepted.

A stay of criminal proceedings is, as the Chief Justice has explained, an exceptional remedy, available (essentially) only where it can be seen that the prosecution cannot succeed.

The primary judge found that the prosecution could not succeed. If that view were correct, a stay was an appropriate remedy. If, however, that view were incorrect, a stay ought not to have been granted. The Director asserts that the view was incorrect. To determine whether it was incorrect, in the particular circumstances of the case, it is necessary to understand the offence of manslaughter by criminal negligence.

Consideration of the offence of manslaughter by criminal negligence cannot begin without the classic statement of the Full Court of the Supreme Court of Victoria in Nydam v R [1977] VR 430. Their Honours (Young CJ, McInerney and Crockett JJ) said:

Useful as the statement is, it does not touch upon that feature of the offence with which this appeal is concerned.

The offence of manslaughter by gross criminal negligence is derived from the tort of negligence, with an additional important element. The elements of the tort of negligence are:

It is necessary that there be identity between the act or omission constituting the breach of duty, and the act or omission that causes harm.

The important additional element necessary to constitute the criminal offence of manslaughter is:

It is only the first of these elements that calls for consideration in the present case. It will be observed that that element is framed in general terms, that of the existence of a duty of care. That also is how the first element was framed by French CJ in Burns (at [20]). The plurality, however, stated the obligation more narrowly. Their Honours framed the duty element of the offence in terms of an obligation to do a specific act (at [97]). That, no doubt, was because criminal liability does not attach to an omission to act, unless that omission is of an act that the accused person is under a legal obligation to do: see R v Taktak (1988) 14 NSWLR 226 at 236-237. Failure to do an act that the person may be seen to have a moral obligation to do is insufficient: Burns, at [97].

A conviction for manslaughter by criminal negligence constituted by an omission, or failure, to act can therefore be sustained only where the person accused was under a legal duty to act in a particular way - that is, to do the specific act the omission of which was the cause of death. Such a duty may arise:

There has also been recent discussion suggesting that, at least for the purposes of tort law, new or “novel” situations may arise in which a duty of care, not previously recognised, may be imputed: Caltex Refineries (QLD) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649. However, in Burns (in the context of criminal liability) the High Court urged “circumspection” in extending categories of relationships that give rise to a previously unrecognised obligation to act (at [107]).

In Burns at [20], citing Evans (Gemma) at [31], the Chief Justice held that whether, in a given set of circumstances, a duty of care exists is a question of law, to be decided by the judge. However, the existence (or otherwise) of a duty of care depends upon the existence of relevant facts, determination of which lies in the province of the jury. There may be practical difficulties in the application of this principle in a jury trial. At the point when it is necessary for a trial judge to decide whether a duty of care exists, he or she will not know what facts the jury has found. It would, of course, be possible to direct the jury, hypothetically, that IF a particular set of facts is found to exist, THEN a duty of care exists. That may be feasible if the determination depends upon one fact or even a limited number of facts: it becomes unworkable if the hypothesised factual basis for proposing the duty includes multiple facts. How many (or which, or which combination) of the postulated facts will suffice to establish the duty? Do the postulated facts (or any of them) have to be found beyond reasonable doubt? Does the jury have to be unanimous on the finding of the facts?

In part, these difficulties were recognised in Evans (Gemma), at [45]. It is of interest that, in Evans (Gemma), the court consistently, throughout the judgment, disjunctively coupled “a duty of care” with “a duty to act”. I take “a duty to act” to mean “to act in the particular respect, omission to do which was the cause of death”. This more closely approaches the manner in which the plurality in Burns expressed the duty, as a particular act that the accused person was under a legal obligation to do.

Nevertheless, difficult questions can arise. In Evans (Gemma) the Court of Appeal gave an illustration. It is undoubted that a doctor owes a patient a duty of care. It is not always so clear that a doctor/patient relationship exists. The Court of Appeal cited the circumstances where a doctor, on a social occasion, is asked a casual (medical) question.

Merely finding that a duty of care exists does not end the inquiry. The more apposite question is: what does the duty entail? This question is often entangled with the question that arises with respect to the second element - breach of the duty. A finding of breach of duty requires an appreciation of the boundaries of the duty. The question of breach is not answered only by reference to the nature of the relationship, but will frequently depend upon the facts alleged - and proved - by the prosecution. Whether the issue is approached, as by the Chief Justice in Burns, by reference to a generalised “duty of care” (in which case the key question is breach), or as by the plurality, by reference to an obligation to act in a particular way, the answer will depend upon findings of fact going outside the existence of the relationship asserted.

That does not necessarily mean that, in a proper case, the first element cannot be decided in advance of the evidence in the trial. More often, however, whether a duty of care is shown to exist, and, more importantly, what such a duty entails, will depend upon relevant findings of fact by the jury.

Where there are disputed issues of fact relevant to the existence or otherwise of a duty of care, or its content, a ruling as to that existence may only be made contingently.

These considerations make it plain that a ruling as to the existence of a duty to do a particular act can rarely (if ever) be made in advance of a jury determination of the facts.

The issues to be determined in this case will be clearer to the reader if I take time to set out certain relevant facts and circumstances in chronological order. I should emphasise that, so far as the following purports to be an account of the facts and circumstances of the alleged offence, it is drawn from material the Crown proposes to adduce in evidence. Although a good deal of it appears to be uncontroversial, what follows does not purport, and should not be taken, to be a statement of established fact. Some of the events recorded are drawn from a chronology which appears to have been provided as part of a Crown Case Statement. As no issue was taken with any of the content of the chronology, it may be relied upon for the purpose of understanding the history.

In 2003 the respondent was (and had been for many years) a qualified bricklayer. He was the sole director, and also an employee, of a company called KLA Bricklaying Pty Ltd (“KLA”). In 2003 KLA contracted with Innovative Property Developments (“Innovative”) to undertake bricklaying on a site at Military Road, North Bondi, where Innovative was carrying out construction work on a residential apartment development. For that purpose, KLA employed Mr Hands, who was also a qualified bricklayer. The respondent also performed bricklaying work. Also engaged on the site, as foreman, was a Rick Didio, a registered builder with significant experience.

The contract into which KLA entered with Innovative obliged KLA, and its agents and employees, inter alia, to observe all relevant occupational health and safety laws, and to ensure that no person, whether employed or not, was exposed to risk to health or safety, and that trade works were carried out on the site using a safety management system.

A short time after signing the contract on behalf of KLA, the respondent signed a “Bricklayer’s Safety Plan” that named KLA as “trade contractor”. Under the heading “Controls and Implementation” (and with respect to “Risk/Safety Issue”) the following appeared:

On 10 June 2003 the respondent, Mr Hands and a Martin Nolan commenced work on the site. On 12 June work began on an internal kitchen wall. The wall was freestanding, about 1095 mm in length by 3055 mm in height by 109 mm in depth, of bricks, with inbuilt flashing. It was intended that at a later date kitchen cupboards would be installed that would stabilise the wall. As at 12 June those cupboards had not been installed, and no bracing had been supplied to the wall to provide stabilisation.

At the end of the day Mr Didio checked the bricklaying work. He noticed that the kitchen wall was not braced to any other structure. He had a conversation with the respondent about bracing, suggesting the use of a lintel bar to provide support. The respondent declined, saying that he had performed similar constructions and that “that will be right”. (As the Chief Justice notes, that conversation is in issue. However, it is relevant for present purposes as it constitutes part of the evidence upon which the Crown seeks to rely.)

Over the next three days, more work on the site was performed by other sub-contractors.

At about 10.00am on Monday, 16 June, Mr Hands was working on the north side of the internal kitchen wall. The wall collapsed on him. He suffered severe injuries that resulted in his death.

On 18 June 2003 the respondent made a statement at the Waverley Police Station concerning the death of Mr Hands. He said that he, Mr Hands, and Mr Nolan had begun work on the site on 10 June. On or after 12 June, a Thursday, Mr Hands began building the internal kitchen wall, while the respondent worked on another wall nearby. He said:

On 2 September 2003 the respondent was interviewed by an Inspector of WorkCover NSW. There is no indication that any caution was administered to the respondent before this interview. He was expressly asked about the clause in the Bricklayers’ Safety Plan concerning stability, and whether he believed that the kitchen wall that collapsed was covered by the conditions of this clause. He said that he did not think so because:

On 8 December 2005 Mr Didio was charged with the manslaughter of Mr Hands. (He was discharged at committal on 1 September 2006.)

On 13 December 2005 the respondent, who is a citizen of the United Kingdom, left Australia for London on a way ticket. There is no suggestion in the evidence that, at the time he left Australia, he was aware of any proposal to charge him, or that he departed for the purpose of avoiding prosecution. On 28 December 2005 a warrant for his arrest was issued out of the Waverley Local Court. From 2007-2008 NSW Police initiated extradition proceedings against him. In August 2009 he was discovered living at an address in Wales. On 26 October 2012 NSW Police made a formal request for his extradition. He was arrested in August 2013. He waived his right to contest the extradition. He returned to Australia and on 4 August 2013 appeared before the Parramatta Local Court where he was granted conditional bail. He waived his right to a committal proceeding, and was formally committed for trial to the District Court. On 4 October 2013 he was arraigned in that court, and a trial was fixed to commence on 3 March 2014. On that date the trial was vacated. The reason or reasons for that do not appear in the materials before this Court. A new trial date was fixed, for 4 August 2014.

On that date, the respondent was again arraigned in the District Court and entered a plea of not guilty. A Crown Case Statement was provided to the trial judge. After an outline of the facts asserted by the Crown, and under the heading “Basis for Manslaughter” the following was stated:

Before the jury was empanelled, an application was made on behalf of the respondent for a stay of proceedings, apparently (other than the transcript, the relevant material was not before this Court) on the basis of the loss or destruction of evidentiary material, including transcript of proceedings in the Local Court (the committal proceedings of Mr Didio, which culminated in his discharge) and some exhibits. The application for stay was refused.

In support of the stay application, a bundle of evidentiary material was tendered. This included the Crown Case Statement, the Bricklayers’ Safety Plan, the WorkCover interview with the respondent, some witness statements and photographs, and the statement by the respondent. It is to be noted that this material was tendered for the purpose of the stay application. It did not purport to be the whole of the Crown case.

Importantly, in the Crown Case Statement reference was made to certain expert evidence on which the Crown proposed to rely. Although the expert report was not included, some extracts from it were. There were statements of opinion to the effect that, without stabilisation, the kitchen wall was “very unstable”, subject to “a line of relative weakness” as a result of a damp-proof course, “extremely vulnerable to overturning from wind load”, and “in a very unstable equilibrium”.

The stay having been refused, a jury was empanelled, and, after some introductory remarks by the trial judge, the Crown prosecutor commenced his opening. The opening included an assertion that Mr Hands was employed by KLA and not - as was stated in the Crown Case Statement - by the respondent). The Crown prosecutor did not proceed, at that point, to identify the basis on which it was said that the respondent owed Mr Hands a duty of care.

Before the Crown opening was complete, an adjournment was taken, and the jury released for the day. The trial judge then raised a question concerning the capacity of the evidence proposed to be led in the Crown case to prove the first of the essential elements of the offence, the existence of a duty of care owed by the respondent to Mr Hands. This was because the Crown case now was that Mr Hands had been employed, not by the respondent, but by KLA.

This prompted counsel for the respondent to make a further application, this time for a directed verdict of acquittal. He provided written submissions in support of the application. These were directed to, and challenged, the contention in the Crown Case Statement that the respondent was Mr Hands’ employer. If the respondent was not Mr Hands’ employer, then, the submission ran, he did not owe Mr Hands any relevant duty of care. Reliance was placed upon the decision of the High Court in Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 at [44]-[51] (see below).

Argument took place on the following day, during which it became apparent that the trial could not proceed and the jury was discharged.

On 6 August the Crown prosecutor provided written and oral submissions in response to those of the respondent. The written submissions contained the following:

It will be seen that there was a subtle - subtle, perhaps, but important - shift in the position taken by the Crown. The Crown maintained the position it had adopted in the opening, that it was KLA, and not the respondent, who was Mr Hands’ employer, and who therefore had the duty of an employer to take reasonable care for his safety. It now claimed that a duty of care on the respondent arose in three ways: first, his position as director of KLA imposed upon him a relevant duty of care; second, that, on fundamental principles of the law of negligence, the respondent (as a “neighbour”) owed Mr Hands a duty of care; third, that “as the person in charge” of KLA’s undertaking, he was under a duty of care.

Earlier in the submissions, under the heading “Duty of Care”, the Crown prosecutor had referred to the foundational case in the law of negligence: Donoghue v Stevenson [1932] AC 562.

After hearing further argument, the trial judge delivered judgment. He recorded the changing position of the Crown as follows:

His Honour reviewed the evidence and the competing positions of the parties, and concluded:

Having balanced these competing considerations, he concluded:

His Honour therefore held that there was:

He concluded:

The Director then filed the present appeal.

From the time the issue was raised by the trial judge during the course of the Crown’s opening to the jury, it was recognised by all that the critical issue concerned whether, on the Crown case taken at its highest, it could be said that the respondent owed Mr Hands a duty of care, and, if so, what was the content of that duty. On this question, as set out above, the Crown position varied from time to time. It was, initially, (as stated in the Crown Case Statement) that the respondent was the employer of Mr Hands and owed him the duty of care that all employers owe to employees.

The Crown retreated from that position, and sought to advance a case based on the proposition that the respondent’s relationship to Mr Hands was analogous to that of an employer, and, as the trial judge put it, was “for all relevant intents and purposes, coextensive with the company’s obligations” (AB 15).

There was also mention - not pursued - of a claim that the respondent owed Mr Hands a duty based on “the neighbour principle” stated in Donoghue v Stevenson.

On appeal, the Director has adopted a third position (see below).

In reciting this history, I do not intend any criticism of those involved. These are conceptually difficult issues, largely unexplored previously, and the question arose somewhat unexpectedly, by the intervention of the trial judge. No truly clear picture of what is required, or sufficient, to prove manslaughter by criminal negligence emerges from the authorities. But the history does have some significance, in my opinion, to the ultimate outcome of the appeal.

On appeal, the Crown proposed three alternative bases upon which the respondent could be held to have been under a relevant duty of care to Mr Hands. They are:

Before considering each of these sequentially, I make some general observations, some of which are repetitive of what I have said above. It will be recalled that whether a duty exists is one of law, to be decided by the judge. However, the answer to the question will, if not always, then frequently, depend upon factual findings that lie within the province of the jury. It is not sufficient to conclude that, by reason of the nature of their relationship, person A owes person B a duty of care. Even if, as in the case of doctor and patient, parent and child, or many others (including employer and employee) it can be said with certainty that a duty of care exists, the critical question is what is encompassed in the duty of care. Reverting to [97] of Burns, the question is whether the duty extends to a duty to do the act, omission of which causes death. Even in civil cases, that question will be answered by reference to evidence, sometimes of an expert character.

In this case, it seems to me, the trial judge was significantly influenced by the decision in Andar. Andar can be misunderstood, or at least taken to convey more than it in fact stands for. The common law duty with which that case was concerned was the duty to provide a safe system of work. In that context, the plurality said:

In both Andar and Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611, the injured employee was a director of the employer company. In each case the injury resulted from an unsafe system of work. Nevertheless, in each case, the High Court perceived (at least by implication) or did not exclude, a duty in the director, not as director, but as employee.

It has long been recognised, in the civil law, that one employee might be liable to another for injury resulting from a casual act of negligence, as distinct from injury resulting from an unsafe system of work, as to which the employer has a non-delegable duty. Liability for casual acts of negligence is consistent with what I have called the foundational case, Donoghue v Stevenson. It is that which has given rise to the doctrine of vicarious liability, by which an employer may be held to account for a casual act of negligence on the part of one employee that resulted in injury to another. The clear implication is that the employee responsible for the injury does have that liability, arising out of a duty of care in accordance with “the neighbour principle” stated in Donoghue v Stevenson.

This is to say no more than that the mere fact that KLA, as employer, owed a duty of care to Mr Hands to provide a safe system of work did not have the corollary that the respondent could not also owe Mr Hands a duty of care. Whether he did, and if so, what it entailed, will hinge upon the factual circumstances, not all of which were known at the time of the decision, and which were to be the subject of determination by a jury.

The sole basis upon which the Crown relied to establish that the respondent was under a relevant statutory duty to Mr Hands was s 20 of the OH&S Act. That section provided as follows:

The respondent’s first answer to the Crown’s proposition that, by reason of s 20 of the OH&S Act, he was under a relevant duty to Mr Hands was that “s 20 is a statutory penalty provision … limited to its terms …” [at par 14] and [at par 23]:

The respondent then proceeded to identify certain further provisions of the OH&S Act (one of which was enacted after the relevant events) which, he argued, pointed to a conclusion that the legislature did not intend s 20 to provide the basis for a prosecution for negligent manslaughter. The specific provisions identified were s 8 (specifying duties of employers); s 26 (extending criminal liability for corporate contraventions to directors and managers); s 107 (imposing time limits for prosecutions of offences under the OH&S Act). The later enacted provision was s 32A (creating an offence of reckless conduct causing death). Finally, the respondent pointed to s 42 of the Road Transport (Safety and Management) Act 1999 (NSW) (“the Road Transport Act”) (also now repealed) by way of analogy.

Put briefly, the arguments so put were as follows.

Section 8(1) of the OH&S Act expressly imposed on employers a duty to ensure the health, safety and welfare at work of all employees. Section 26(1) made directors and managers of corporations criminally liable for contraventions by a corporation of any provision of the OH&S Act or Regulations (subject to a statutory defence, not here relevant). Relevantly, therefore, for present purposes, if KLA failed to ensure the health, safety or welfare at work of Mr Hands, then, as a director (and, possibly, manager) of KLA, the respondent could, under s 26, have been prosecuted in respect of that contravention.

The respondent’s purpose in relying on these provisions was stated as follows:

Section 107 prescribed a time limit (subject to a presently irrelevant exception) of 2 years for the prosecution of offences against the OH&S Act (including s 20). The respondent argued that it is not open to the Crown to seek to found a charge of manslaughter on any alleged breach of the duty imposed by s 20, prosecution for which is subject to a 2 year time limit.

Section 32A was introduced into the OH&S Act with effect from 15 June 2005. It created, apparently for the first time, an offence of reckless conduct causing death at a workplace by a person who was, by reason of any provision of Pt 2 of the OH&S Act (which includes s 20) under a duty with respect to the health or safety of the person whose death was caused. A maximum penalty (with respect to an individual) of a fine, or imprisonment for 5 years, was prescribed.

The respondent sought to make two points arising out of s 32A. The first was that, to sustain a prosecution under the section, it was necessary that the Crown prove that the conduct was “reckless” - and that that is conduct that is more serious than the “negligent” conduct relevant to a prosecution for negligent manslaughter. Yet the maximum penalty for an offence under s 32A was imprisonment for 5 years, contrasted with the 25 year maximum that is prescribed in respect of the offence of manslaughter (Crimes Act 1900 (NSW), s 24). The second point sought to be made was that the enactment of s 32A was an indication that Parliament had not intended breaches of the s 20 duty to give rise to prosecutions for manslaughter.

Finally, by analogy, the respondent pointed to s 42(1)(a) of the Road Transport Act. Section 42(1)(a) created an offence of negligent driving causing death, and prescribed a maximum penalty of (for a first offence) imprisonment for 18 months and (in the case of a second or subsequent offence) imprisonment for 2 years (in each case, together with a fine).

The purpose of this exercise was to found a submission that the provision “could not of itself be used as a mechanism to constitute a prosecution for criminal negligence manslaughter”. It was submitted that “such a penalty section again does not create a duty”.

The respondent’s propositions can be disposed of serially.

Just what is meant by saying that s 20 was merely a “statutory penalty provision” that does not impose a duty is quite unclear to me. In plain language, the section did impose a duty. The duty was placed on employees to take reasonable care for the health and safety of others (including other employees) who were at their place of work, and who may have been affected by the act or omission (sub-s (1)); and to cooperate with the employer to enable compliance with legislative requirements imposed in the interests of health, safety and welfare.

The argument that s 8 imposes a higher standard of care than the common law standard (which is to take reasonable care for the safety of employees) may be correct, but is quite immaterial to whether a duty of care exists. The respondent’s argument in this respect in par 30 will be more appropriately directed to the fifth element of the offence of negligent manslaughter, an element which is not in issue in this appeal.

The argument based on s 107 is likewise immaterial. Section 107 imposed a time limit on prosecutions under (inter alia) s 20. It did not have the effect of nullifying the duty of care that was imposed by that section. Nor did s 107 (or s 20, or s 26) exclude reliance by the Crown on the same conduct as evidence of a more serious criminal offence than contravention of s 20 (whether within or outside the 2 year limitation period).

Section 32A is also irrelevant. That the legislature subsequently enacted legislation creating a specific offence says nothing about whether the same conduct might, prior to (or after) the enactment constitute a different criminal offence. That, also, is the answer to the respondent’s argument by analogy with s 42 of the Road Transport Act.

Underlying the respondent’s argument is a hidden, and false, premise. The premise is that, because the respondent could (within 2 years) have been prosecuted under s 20, the conduct that could have given rise to such a prosecution was unavailable for any other purpose of the criminal law. The argument does not depend upon the statutory time limit. If correct, it would also have operated to prevent prosecution of the respondent for manslaughter within the 2 year period. In other words, the creation of an offence of breach of the duty imposed by s 20 precluded prosecution for any other offence arising out of the same conduct, no matter how serious.

As I have said, the premise is false.

It is not unusual, in the criminal law, for the same conduct to be capable of giving rise to a number of different charges. Frequently, the charge selected will depend upon the consequences of the conduct. Driving whilst there is present in the blood the prescribed concentration of alcohol is one example. At its lowest level, it resulted in a charge under s 110(3) of the Road Transport Act 2013 (NSW), carrying only a monetary penalty. At its worst, where death results, it may constitute an offence against s 52A of the Crimes Act 1900 (NSW), carrying a maximum penalty of imprisonment for 10 years or, where committed in circumstances of aggravation, 14 years.

Section 42(2) of the Road Transport Act also created an offence of furious, reckless or dangerous driving, carrying a maximum penalty (for a first offence) of imprisonment for 9 months, or (in the case of a second or subsequent offence) of imprisonment for 12 months. Where death or grievous bodily harm resulted, however, a charge was also available under s 52A of the Crimes Act.

I return to s 20. By way of example, the following may be considered. An employee at a workplace assaults another, causing actual bodily harm. At the lowest level, that conduct is a contravention of s 20, and could, within the 2 year limitation period, have been prosecuted under that section. That that is so did not have the effect that it could not have been prosecuted under s 59 of the Crimes Act, carrying a maximum penalty of imprisonment for 5 years. If the assault was committed with intent to cause grievous bodily harm, and resulted in such harm, or in wounding, it could be prosecuted under s 33 of the Crimes Act, carrying a maximum penalty of imprisonment for 25 years.

Similarly, if the assault caused the death of the employee, there is no reason to suppose that the perpetrator could not have been charged with manslaughter by an unlawful and dangerous act. There is a range of other offences that could be constituted by the same conduct.

Once that is recognised, it can be seen that the time limit imposed by s 107 is a distraction. The issue is not whether, outside that time limit, the respondent might have been charged with a more serious offence than that created by s 20. It is not the offence created by s 20 that gives rise to the charge of manslaughter. It is the duty that is imposed by that section that founds the prosecution for manslaughter, by reason of its alleged breach, and its alleged consequences.

The issue for present determination is limited. It is whether, on the Crown evidence as it is understood (on the basis of the Crown Case Statement and materials referred to above) the respondent was under a statutory duty of care to Mr Hands, and, more specifically, whether that duty required him to take steps to brace the wall. The first question, in my opinion, is easily answered. By s 20, he was under a duty of care to Mr Hands. The second question is not so readily answered. That is because the answer will depend upon facts not yet established, and not known - specifically, facts which will emerge from expert evidence concerning the degree (if any) of danger posed by leaving the wall unstabilised, and the measures available to take precautions against that danger. There may be others. Whatever they are, it is the role of the jury to find the facts upon which the existence of the duty depends.

It follows from the above that, as to whether the Crown can establish that the respondent was under a relevant duty to Mr Hands (to act in a particular way by bracing the wall) I differ from the Chief Justice in a number of respects.

First, in my opinion, the Court is not in a position definitively to say whether or not such a duty existed. Second, the issue does not depend upon other provisions of the OH&S Act. Specifically, it does not depend upon powers and duties given to inspectors of WorkCover, nor the abrogation of the privilege (or right) against self-incrimination (although those matters might give rise to weighty evidentiary debates). Third, I do not agree ([95]) that to allow the prosecution to proceed would potentially enlarge the circumstances in which the crime of manslaughter could be committed. Once duty is established (if it is established) then the principles of negligent manslaughter outlined above will apply. Fourth, I do not agree that s 32A of the OH&S Act has any bearing on the question. So much follows from my reasoning above.

The Crown position in respect of a common law duty of care depended upon the evidence of the respondent’s involvement in building the kitchen wall, and his role as the person in charge of the bricklaying activities on the site. Effectively, he was responsible for the supervision of the bricklaying work, and, particularly for decision making in that respect.

The Crown submission, as expressed in Ground 2 of the grounds of appeal, was that:

For the purpose of analysis of this basis of asserted criminal liability, it is necessary to examine more closely the reasoning in Burns. The essential facts in Burns were that the appellant had supplied a prohibited drug (methadone) to a David Hay. Mr Hay consumed the methadone in the home of the appellant and her husband. (Although, at trial, the Crown contended that the appellant, or her husband, with whom she was acting in concert, had injected Mr Hay with the drug, or assisted him to inject the drug, and the Court of Criminal Appeal concluded that that had occurred, the High Court rejected that proposition and held that the evidence was not capable of supporting such a conclusion (the plurality at [91]-[94], the Chief Justice agreeing at [47]).

In the High Court, therefore, the decision proceeded on the basis that the appellant (and/or her husband) had supplied the drug to Mr Hay who administered it to himself. Having used the methadone, Mr Hay suffered an adverse reaction whilst still in the home of the appellant and her husband. After some futile attempts to activate Mr Hay, Mr Burns proposed calling an ambulance, a suggestion that Mr Hay rejected. Mr Hay then left the premises. He died a short distance away.

The High Court considered the question of manslaughter, both by unlawful and dangerous act, and by criminal negligence. As to the latter, both the Chief Justice and the plurality generally accepted the authorities from the United Kingdom, to the effect that a duty of care may arise “where a defendant has played a causative part in the sequence of events which have given rise to the risk of injury, such that a duty to take reasonable steps to avert or lessen the risk may arise” (French CJ, at [23]).

The Crown’s essential proposition is derived, first, from the judgment in Evans (Gemma) adopting principles stated in Mitchell v Glasgow City Council [2009] 1 AC 874. In Evans (Gemma), the Court of Appeal said:

The words in quotation marks were drawn from the speech of Lord Scott of Foscote in Mitchell (in which the House of Lords in Scotland had under consideration the existence of a duty of care said to give rise to civil liability). His Lordship said:

Adopting those observations for the purpose of criminal liability for an omission, at [31] in Evans (Gemma), the Court of Appeal said:

The passage was adopted by French CJ in Burns, who said, at [23]:

The facts in Evans (Gemma) bore considerable similarities to Burns, in that the appellant (and her mother) had supplied a drug (heroin) to the appellant’s younger half-sister, Carly, who self-injected. Carly suffered an adverse reaction, recognisable to the appellant as consistent with overdose, but the appellant took no action to seek medical attention. Importantly, both the appellant and her mother believed that they were responsible for Carly’s care.

Notwithstanding the factual parallels between Burns and Evans (Gemma), the cases had different outcomes. In Evans (Gemma), the Court of Appeal concluded that the appellant was “under a plain and obvious duty to take reasonable steps to assist or provide assistance for Carly”, which she failed to do. A contrary conclusion was reached in Burns.

The distinguishing feature in Burns appears to have been the absence of any relationship that gave rise to a duty of care. The mere fact that the appellant had supplied Mr Hay with the drug (in circumstances where the evidence did not exclude self-administration) and in circumstances where the evidence was that he had “rebuffed” the offer to call an ambulance, did not create a duty of care; in those circumstances, the appellant had not created the danger to which Mr Hay was exposed - it was Mr Hay himself who had done so by injecting the drug: per French CJ, [48], the plurality at [105].

It will be seen that there is a fine line distinguishing the two cases, each of which was ultimately decided on its own facts. For present purposes, the importance of both cases is the recognition that a duty to act so as to prevent or reduce the danger of injury or death might be attributed where the need for action is caused by the conduct of the accused person. In Evans (Gemma) the supply of heroin was accepted as the conduct that created the need for action; the duty arose because the appellant and her mother had acknowledged their responsibility for the care of Carly. In Burns, a different result was reached because Mr Hay, for whom the appellant had no responsibility other than any that emerged from her supply to him of methadone, had, by using the drug, himself created the danger.

The decision in Evans (Gemma) also drew upon an earlier decision of the House of Lords: R v Miller [1983] 2 AC 161; 2 WLR 539. Mr Miller lived in a “squat”. He lit a cigarette, and fell asleep. He woke to find that his mattress was smouldering. He left the room and went back to sleep in an adjoining room. He did nothing about the smouldering mattress. The house caught fire. Mr Miller was convicted of arson. Again, the obligation to act to avert a danger created by himself provided the basis of the decision that he was criminally liable for the omission.

The respondent sought to distinguish Miller by pointing out Mr Miller had initially taken all the steps that caused the danger of fire, and then failed to take the necessary steps to avert the danger. By contrast, on the Crown case against the respondent, it was Mr Hands who solely built the wall, and then, on his own initiative, put himself in its vicinity just before its collapse.

The respondent’s argument overlooks the important circumstance that, on the evidence, Mr Hands constructed the wall under the direction of the respondent, and that the respondent was responsible for decisions concerning the wall.

Returning to the various “additional features” mentioned in Mitchell as potentially giving rise to a duty of care, it may be seen that several are here applicable. These are:

Moreover, it is to be restated that the present question is confined to whether, on the Crown case as it is presently understood, the respondent was under a duty of care to Mr Hands, and, if so, whether that duty extended to ensuring that the wall was stabilised. Both parts of the question, but more particularly the latter, will depend upon findings of fact that the jury must make - findings that include analysis of the proposed expert evidence.

On the appeal, the Crown did not argue for a duty of care on the more general principles stated in Donoghue v Stevenson. It would therefore be inappropriate to reach any final conclusion in that respect. However, having regard to what I have said above, such an approach could not be excluded.

For the reasons given above, it is not open to doubt that, at least in some circumstances, co-employees may owe to one another duties of care on Donoghue v Stevenson principles. The key is, first, to identify the circumstances of the employment relationship that can be said to give rise to such a duty; and, second, where it is held that a duty exists, to ascertain the content of that duty.

On the evidence available in this case, I would have no hesitation in concluding that the respondent, in his capacity as a co-employee, owed Mr Hands a duty of care. Two circumstances that give to that conclusion are:

The far more difficult question is whether the duty extended to requiring the wall to be braced. No conclusion can be reached as to that in the absence of necessary factual findings, which will very likely depend upon the expert evidence.

In this respect, I agree with what the Chief Justice has said at [112]-[117], and [121].

Although the Crown relied on the “salient features” approach to determining whether a “novel duty of care” exists as set out in the judgment of Allsop P in Stavar, it made no attempt to identify what that novel duty was, or how it travelled beyond the common law principles to which I have referred.

Bearing in mind the circumspection urged by the High Court in Burns (at [107]), in expanding the foundations for the existence of a duty of care giving rise to criminal liability, I would reject this ground.

The Director has succeeded in establishing that the decision to order a stay of proceedings was flawed in fundamental respects. The question then arises as to what orders ought to be made by this Court. Ordinarily, the Director’s success would result in the setting aside of the order; whether the matter is to proceed to trial is for the determination of the Director. This Court should be slow to interfere with that process.

The doctrine of separation of powers has an important role to play in the administration of criminal justice. Ordinarily, a decision to prosecute for an offence lies exclusively within the area of jurisdiction of the executive branch of government: Barton v The Queen [1980] HCA 48; 147 CLR 75 at 91 (but see also at 94, 96 and 107); Maxwell v The Queen [1996] HCA 46; 184 CLR 501; Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 at [2]-[3] and [37] ff; R v Peters and Heffernan (1995) 83 A Crim R 142.

Occasionally, that principle comes into collision with the necessity for the judicial branch of government to act to protect its processes against misuse. A real question arises in the present case as to whether, if this prosecution is allowed to proceed, it would constitute misuse of the processes of the court.

It is for this reason that I have set out at some length the procedural history of this matter. The events in question occurred in 2003. No action was taken to charge the respondent until the warrant for his arrest was issued in December 2005. He has been prepared for trial twice. It was not until this appeal that the Crown case achieved its final formulation. This decision is not about whether a stay should be granted. It is about whether the discretion of this Court under s 5F of the Criminal Appeal Act should be exercised in favour of the Director, or in favour of the respondent. Fairness to the accused person is one of the relevant considerations. The Chief Justice has, at [123]-[130] set out a number of other considerations.

On balance, I have concluded that, notwithstanding that the Director has established that the decision to order a stay of the prosecution was erroneous at the time it was made, the appeal should be dismissed. I appreciate that this was not the subject of argument and the parties have not had an opportunity to be heard on the question.

Ordinarily, this would call for an opportunity to be afforded to the parties to put submissions as to the outcome of the appeal. However, the Chief Justice and Bellew J take a different view, and there have been long delays in this matter already, not least because of the complexity of the issues. Recognising, and notwithstanding that the Director may have had contrary submissions to put, and because this is a minority view, I would dismiss the appeal.

BELLEW J: I have had the advantage of reading, in draft, the judgments of the Chief Justice and Simpson JA. The facts are set out at length in each of those judgments and in these circumstances I will not recite them again.

It will be apparent from their Honours’ observations that the primary issue in the present case is whether there exists a proper basis upon which the respondent could be held to have owed a duty of care to the deceased. The Crown has submitted that such a duty arises on one or other of the following bases:

The provisions of s. 20, which are set in the judgment of the Chief Justice at [84], do not appear to have been drawn to the attention of the primary judge. The Crown submitted that each of ss. 20(1) and (2) imposed a statutory duty upon the respondent as an employee. That much is clear. However, the effect of the Crown’s submission was that this circumstance inevitably led to the conclusion that a contravention of either duty was capable of giving rise to liability on the part of the respondent for manslaughter.

In my view, that approach over simplifies the matter somewhat, and fails to consider whether the Parliament intended that this be the case. The Chief Justice has made reference (at [90]-[94]) to a number of provisions of the OH&S Act. I agree with the Chief Justice, for the reasons he has expressed, that those matters run contrary to a conclusion that the Parliament so intended. In particular in my view, there is nothing in the language of the statute which reflects such an intention.

The Chief Justice has also made reference, commencing at [95], to the subsequent enactment of s. 32A as a circumstance supporting such a conclusion. Even allowing for the cautious approach which must be taken in using amending legislation in this way (to which the Chief Justice referred at [99]), in my view the enactment of s. 32A would not have been necessary had the Parliament intended, in enacting s. 20, to enlarge the circumstances in which the crime of manslaughter could be committed.

For these reasons I agree with the Chief Justice in respect of the first ground.

Simpson JA has made reference to judgment of French CJ in Burns (at [23]) as well as the judgment of the plurality in that case (at [102]-[107]). Her Honour has also made reference to the judgment of the Court of Appeal in Evans (Gemma) (at 317). Those decisions postulate particular circumstances in which a duty of care may arise. Those circumstances include where a defendant has played a causative role in the sequence of events which have given rise to a risk of injury. The Crown argued that in the context of the present case, the relevant risk was a risk of collapse of the wall.

The Chief Justice has set out (commencing at [110]) a number of factors which may render it open to a jury to conclude that the respondent owed a duty of care to the deceased. I agree with the Chief Justice, for the reasons he has expressed, that those factors are capable of supporting such a conclusion.

It follows that I agree with the Chief Justice and Simpson JA that the appeal should be allowed on the basis of the second ground.

The Crown approached this issue by enumerating what were said to be various “salient features”, and submitting that such features gave rise to a duty of care. In my view, there are difficulties with that approach.

Firstly, there was no attempt made to draw any appropriate distinctions between those features which are factual, those which require value judgments and those which may require the application of legal policy: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [172] per Basten JA, Simpson J (as her Honour then was) agreeing. Further, and perhaps even more fundamentally, there was no clear articulation by the Crown of the nature and scope of the posited duty.

For these reasons, I agree with Simpson JA that Ground 3 should be rejected.

The remaining question is what orders are appropriate.

The circumstances giving rise to this matter date back to 2003. Both the Chief Justice and Simpson JA have set out the procedural history, which includes the fact that some years elapsed before the respondent was charged. That history, along with necessity to act with fairness towards a defendant in criminal proceedings, provides some support for exercising the discretion to dismiss the appeal. That said, those factors must be balanced against a range of others, not the least of which are the seriousness of the allegations, and the equally serious consequences which flowed from the incident.

In making these observations, I would prefer to express no view as to the strength or otherwise of the Crown case. On balance, having concluded that the decision of the primary judge was erroneous, I have come to the view that the order granting the stay should be quashed.

I therefore agree with orders proposed by the Chief Justice.