Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal

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1 Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal Friday, 5 May 2017 Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary R v Tracey Riddell (CACD) - criminal law - dangerous driving - whether self-defence available - defence available where responsive force used - here, defence precluded on the facts - unduly harsh to return appellant to prison - resentenced, sentence suspended Darren Turk deceased (by Jasmine Botting) v The Queen (CACD) - criminal law - death of accused during trial - whether judge enjoyed a discretion to continue the trial to take verdicts - convictions recorded against deceased - convictions a nullity - trial ends with death of accused Pickering v The Queen (HCA) - criminal law - manslaughter - act reasonably necessary to resist violence - whether appellant charged with manslaughter entitled to Code protection (s31(1)(c)) - whether grievous bodily harm is an element of the offence of manslaughter - appeal allowed - conviction quashed, new trial ordered Duffy v R (NSWCCA) - criminal law - joint criminal enterprise - participation and presence - appropriate directions - whether mere presence is sufficient - requirement for agreement and some act -directions adequate-appeal dismissed Dickson v R (NSWCCA) - criminal law - joint criminal enterprise - whether presence at the commission of the crime is required - participation in some act furthering the agreement sufficient - appeal dismissed Severino v R (NSWCCA) - criminal law - aggravated dangerous driving causing death - whether applicant was the driver - representations by accused to witnesses including police - Page 1

2 whether excluded under Evidence Act or LEPRA - representations admissible - leave refused DPP v Asling (VSC) - criminal law - murder - contract killing - sentencing principles considered and applied - prior record of violence with limited prosects of rehabilitation - life imprisonment, NPP 27 years The Queen v Sawyer-Thompson (VSC) - criminal law - defensive homicide - vulnerable accused suffering from Post-Traumatic Stress Disorder, drug and alcohol dependent, ordered by boyfriend to kill third party - offences extremely serious - sentence of 10 years, NPP 7 years imposed Bouch v The Queen (VSCA) - criminal law - dangerous driving causing death - directions - whether error to include merits criminal punishment - whether judge erred in directing jury as to how to consider statutory alternative offences - errors identified - no substantial miscarriage of justice - appeal dismissed DPP v Acme Storage Pty Ltd (a Pseudonym) (VSCA) - criminal law - OH & S offence - prejudicing an employee who raises safety concerns - elements of offence - case stated procedure - necessity to raise questions of law early - hypothetical questions not to be considered - necessity to identify facts with precision - questions answered Summaries With Link (Five Minute Read) R v Tracey Riddell [2017] EWCA Crim 413 Court of Appeal (Criminal Division) Davis LJ, McGowan J, Judge Kinch QC (sitting as a judge of the CACD) Criminal law - dangerous driving - appellant was collected by a mini-cab driven by the complainant - she was driven to Dagenham, where the cab waited for her to return with payment for the fare - the appellant did not return and the complainant saw her leaving in another vehicle - he followed her and forced her to stop - he got out of his car and the appellant was then seen edging her vehicle into his legs - he then jumped onto the bonnet of the car and the appellant drove off - the complainant fell and was injured (cut finger & bruising) - the appellant asserted that she had paid the fare and that she had not recognised the complainant as her min-cab driver - the appellant was charged with 3 offences, including dangerous driving - she was convicted and sentenced to 10 months imprisonment and disqualified for 3 years - the appellant appealed - leave to appeal the conviction and sentence was granted, with bail - the issue on appeal was whether the trial judge should have directed the jury that self-defence was available to the appellant on the count of dangerous driving - held: the defence of necessity and duress discussed - R v Z [2005] 2 AC 467 referred to - defence of duress of circumstances and self-defence considered - in cases of duress, the yardstick is essentially objective, requiring both the belief as to the threatened force and the response, to be reasonable - for self-defence, Page 2

3 the response must be reasonable and proportionate by reference to the circumstances the accused subjectively and genuinely believed himself to be subjected to (see s76 Criminal Justice and Immigration Act 2008 (UK)) - authorities on self-defence considered - there is a clear distinction between self-defence and the defence of duress of circumstances - selfdefence does not require the relevant belief to be reasonable - conventionally self-defence ordinarily arises where a person uses force in order to meet actual or perceived force or the threat of force - there is no reason, in principle, to deny altogether the availability of the defence simply because the charge is one of dangerous driving (or careless driving) - while such a charge does not of itself convey the use of force, the alleged facts relating to the driving charge may be such that force was indeed applied in response to threatened or actual force - in the vast majority of dangerous driving cases, self-defence simply cannot arise because no force as such is being used at all by the driver to meet any actual or threatened force - but there may be cases where the alleged dangerous driving does involve the use of force - the present case was one such case where the use of responsive force was involved in the alleged dangerous driving - here no challenge was made to the judge s directions and on the evidence what the appellant did was not justified - the conviction was not unsafe - the appellant having served 7 weeks before being released on bail, returning her to prison would have been unduly harsh - sentence quashed and 6 months imposed, suspended for 18 months, with 18 months disqualification [Editor s note: Judgment delivered by Davis LJ]. Tracey Riddell Darren Turk deceased (by Jasmine Botting) v The Queen [2017] EWCA Crim 391 Court of Appeal (Criminal Division) Sir Brian Leveson P (QBD), Jay & Garnham JJ Criminal law - historical sexual assaults - accused was employed as Head of Care at a school for boys with specific learning disabilities such as Asperger s Syndrome and autism - in 2016, he stood trial for offences of rape, indecency and indecent assaults alleged to have been committed on boys under his care during the period 1996 to at the end of the trial, the jury, in a note to the judge, indicated that it had reached verdicts on some counts and the judge adjourned the trial overnight without taking any verdicts - the next day, the judge was informed that the accused had taken his life - the judge then invited the jury to return any unanimous verdicts it had reached - the jury returned guilty verdicts on 10 counts and the jury was then discharged - the accused s mother sought permission for leave to appeal the verdicts under s44a Criminal Appeal Act 1963 (UK) - the issue on appeal was whether the judge was entitled to proceed as he did, or whether the verdicts were a nullity - held: while there is no authority on point, a criminal trial commences when the jury are sworn and the accused is put in their charge (see ex parte Guardian Newspapers [1999] 1 Cr App R 284, 288E) - the trial continues until verdicts have been returned or the jury has been discharged (R v Gorman (1987) 85 Cr App R 121, 124) - verdicts must be delivered in open court, so that here, the note provided to the judge had no effect and it is the verdict that constitutes the conviction for the purposes of the Criminal Appeal Act (see R v Robinson (1974) 60 Cr App R 108, 113; R v Drew (1985) 81 Cr App R 190, 195) - prior to s44a Criminal Appeal Act 1968 permitting the family or personal representative of Page 3

4 a deceased accused to pursue an appeal, there was no power to do so (see R v Jefferies (1968) 52 Cr App R 654; R v Kearley No 2 (1994) 99 Cr App R 335) - a bright line rule is important - in order to preserve the bright line that criminal prosecutions are not pursued against those who have died, there is no discretion as to the course of action to be taken - as soon as a judge learns that an accused has died, the judge s duty is to take no further step in the case against the accused, save for receiving proof of death, whereupon the indictment, as far as it concerns that accused, must be declared of no effect - here, the verdicts were irregular as the judge did not enjoy any discretion in the matter and could not continue simply because he thought that obtaining the verdicts was a justified course - the verdicts were wrongfully returned and were set aside as a nullify with the convictions annulled pursuant to the inherent power of the Court (R v Booth, Wood & Molland [1999] 1 Cr App R 457) - death of the accused brings any criminal prosecution of that accused to an end [Editor s note: Judgment delivered by Sir Brian Leveson P s11 Civil Evidence Act 1968 (UK) provides for the admissibility of criminal convictions in civil proceedings]. Darren Turk Pickering v The Queen [2017] HCA 17 High Court of Australia Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ Criminal law - manslaughter - appellant and deceased were best friends - on the night in question they had been drinking with a group in a hotel - later the deceased became angry and the appellant, who had armed himself, pulled out a knife to ward the deceased off - there was suddenly a struggle and the deceased was on top of the appellant, with the appellant s knife in him - the deceased died - the appellant was acquitted of his murder, but convicted of manslaughter - an appeal to the Court of Appeal failed and by special leave the appellant appealed to the High Court, arguing that the trial judge erred in failing to leave to the jury the possible application of s31(1)(c) Criminal Code 1899 (Qld) - s31(1)(c) provides that a person is not criminally responsible for an act or omission when the act is reasonably necessary to resist actual and unlawful violence threatened - s31(2), however, provides that the protection does not extend to an act or omission constituting murder, or an offence of which grievous bodily harm or an intention to cause such harm, is an element - held: s31(1) provides exculpation, in specified circumstances, to a person who would otherwise be criminally responsible under the Code for an act or omission - the Court of Appeal accepted that s31 (1)(c) was fairly raised on the evidence unless it was excluded by s31(2), however, no directions were given by the judge on the provisions - the jury was not directed to consider whether the prosecution had negatived the possibility that the appellant s act of stabbing was an act which came within s31(1)(c) - the Court of Appeal also found that there was a reasonable possibility that the trial judge s failure to direct the jury on s31(1)(c) may have affected the verdict, but that Court concluded that the appellant s case fell within s31(2) - considering the proper construction of s31(2): the definition of an offence determines its elements (Kaporonovski v The Queen (1973) 133 CLR 209, 217) - manslaughter is defined by s303 Code, and unlawful killing refers to causing death without authorisation, justification or excuse (ss291, 293 Code) - Page 4

5 critically, however, grievous bodily harm is not an element of manslaughter - the offence referred to in s31(1) & s31(2) is the offence charged, or a lesser included offence for which the accused might be convicted - properly construed, s31(2) provides that if, but for s31(1), the offence charged (or a lesser included offence) is murder or one of which grievous bodily harm is an element, the accused cannot be excused under s31(1)(c) from the act constituting the offence - a person charged with manslaughter is not to be denied the benefit of s31(1)(c) because the injury inflicted amounts to grievous bodily harm - accordingly, the trial judge erred in failing to leave to the jury the possible application of s31(1)(c) Code - appeal allowed, conviction quashed, new trial ordered [Editor s note: Gageler, Gordon & Edelman JJ agreeing with Kiefel CJ & Nettle J]. Pickering Duffy v R [2017] NSWCCA 77 Court of Criminal Appeal of New South Wales Basten JA, Latham & Campbell JJ Criminal law - joint criminal enterprise - applicant spent the evening with 3 women (Ayers, Evans and Evans sister) - they were then joined by 2 others and the group travelled to Picton, where they consumed methamphetamine, speed, marijuana and alcohol in significant quantities - while the applicant and Ayers were having sex, Evans and her sister interrupted them - Evans put a belt around Ayers neck and strangled her - the applicant was tried for Ayer s murder, but was convicted of manslaughter - it was common ground that the applicant was in the room while Ayers was strangled, but took no step to assist her, but when Ayers went limp, he did not seek to obtain medical assistance for her and after her death he dug her grave - on the manslaughter count the appellant was sentenced to 12 years, NPP 8 years - the Crown case on manslaughter was put on the basis that the applicant held the belt at one stage and, in the alternative, that he was part of a joint criminal enterprise with Evans which included the unlawful and dangerous act which resulted in Ayers death - the principal ground of appeal challenged the judge s direction on joint criminal enterprise liability, arguing that the direction was inadequate on the issues of agreement and participation - held: principles regarding joint criminal enterprise identified (McAuliffe v The Queen (1995) 183 CLR 108, 113; Miller v The Queen (2016) 90 ALJR 918, [4]) - where the accused does not do the act which constitutes the crime, some act is still required - presence at the scene will be sufficient, if pursuant to a common purpose, because willingness to assist if necessary may be inferred - however, mere presence, absent a common purpose, will not suffice - a common purpose may arise by way of a tacit understanding immediately prior to the crime being committed - the scope of the liability of the non-active participant will depend upon his or her state of mind, which may also be defined as the scope of the agreement - here, the question was what the applicant s expectation and assent covered - if it was only an assault, not intended to cause really serious injury or death which was objectively probable, the offence was manslaughter and not murder - the directions given were not inadequate - ground not made out (other conviction and severity appeal grounds dismissed) - appeal dismissed [Editor s note: Latham J & Campbell agreeing with Basten JA. For directions see [12], [18] - [21]. For sentence see R v Duffy (No 7) [2015] NSWSC 1321]. Page 5

6 Duffy Dickson v R [2017] NSWCCA 78 Court of Criminal Appeal of New South Wales Bathurst CJ, Johnson & Fullerton JJ Criminal law - Joint criminal enterprise - participation - applicant charged with 5 counts: three counts of aggravated break, enter & steal, one of stealing a motor vehicle, and one of stealing a trailer - while the applicant was tried alone, it was alleged that the offences were committed with other co-offenders - the applicant was convicted and sentenced to 4 years, NPP 2 years 3 months - on appeal, the applicant argued that the verdicts were unreasonable and that the judge erred in not directing the jury that it must have been satisfied that the applicant was present when each offence was committed - held: applicant submitted that the trial judge s directions were apt to lead the jury into the error that participation and liability could be satisfied by the fact of joining into the identified agreement without more - no objection on this ground having been taken at trial, the applicant required leave to argue this ground (r4 Criminal Appeal Rules (NSW)) - held: it is well-established that a person will not be responsible for a crime committed by another as the result of the principle of joint criminal enterprise merely because the person is a party to an agreement to commit a criminal offence which was subsequently committed by one of the other parties to the agreement - to be liable, the person must participate in the commission of the offence (Osland v The Queen (1998) 197 CLR 316; Gillard v the Queen (2003) 219 CLR 1) - the issue is whether presence at the time of the commission of the offence is necessary for a person to be liable under the doctrine - however, the principle is not so confined and a person can be liable under it, if it can be shown that he or she entered into an agreement or understanding to commit a crime and participated in some way in furthering its execution - presence at the commission of the crime is sufficient but it is not necessary - authorities referred to and considered - the question was therefore whether the directions were adequate to convey to the jury that it was necessary for them to be satisfied beyond reasonable doubt that the applicant participated in the enterprise - the directions had to be considered in the context of the Crown and Defence cases - after consideration, the directions made it sufficiently clear that the applicant could only be liable if, in addition to entering onto the agreement, he participated in the agreed criminal activity - ground not made out - after considering the evidence, the circumstantial evidence established beyond reasonable doubt the applicant s guilt on each count - appeal dismissed [Editor s note: Johnson & Fullerton JJ agreeing with Bathurst CJ]. Dickson Severino v R [2017] NSWCCA 80 Court of Criminal Appeal of New South Wales Payne JA, Campbell & Wilson JJ Criminal law - applicant, who had been drinking and was intoxicated, was driving his car at an estimated 105km/h in a 90km/h speed zone when he lost control and the vehicle rolled - a passenger in the car, who was also intoxicated, was thrown from the vehicle and sustained Page 6

7 injuries which resulted in her death - the applicant was charged with one count of aggravated dangerous driving casing death (s52a(2) Crimes Act 1900 (NSW)) - the sole issue at trial was whether the applicant had been the driver of the vehicle - at the scene he had spoken to several people, including police officers, and the prosecution sought to rely upon his statements (the representations) as admissions - the applicant s blood alcohol reading at the time of the crash was agreed to have been grams per 100 millilitres - the deceased s reading was grams per 100 millilitres - the applicant did not give evidence at trial - held: (1) admission to police & s85 Evidence Act 1995 (NSW) - no miscarriage of justice was shown - while the circumstances to be taken into account included the applicant s level of intoxication, the circumstances in which the admissions were made as a whole persuaded the Court that the Crown had demonstrated that it was unlikely that the truth of the admissions had been adversely affected - the admissions were admissible; (2) representations to the police & s138 Evidence Act inferring that the applicant would not have been permitted to leave the crash scene, so that he was deemed to have been under arrest (s139(5)(b) Evidence Act 1995), the applicant was subject to questioning for the purposes of s139 - the Crown referred to ss11 & 14(1) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ( LEPRA ) - subject to s201 LEPRA, it was permissible for the police officers to have asked the applicant all but 2 of the questions they put to him - those questions went to matters specifically addressed in ss11 & 14(1) and s177 Road Transport Act 2013 (NSW) - the extent to which the police complied with s201 LEPRA (as it existed at the relevant time) was controversial - while the issue was not argued at trial, the Court proceeded upon the basis that here had been a breach of s201(1) & (2A) LEPRA and that the admissions made to the police were accordingly improperly obtained within ss138 & 139 Evidence Act 1995 as s201(1) and (2A) LEPRA had not been complied with - however, the correct exercise of the discretion under s138(1)(b) Evidence Act 1995 was to admit them; (3) s137 Evidence Act 1995 & police evidence - none of the representations were liable to be excluded pursuant to s 137; (4) r4 Criminal Appeal Rules (NSW) & leave - the relevant authorities regarding the effect of Rule 4 are summarised in ARS v R [2011] NSWCCA 266, [148] - here, the applicant s very experienced counsel did not object to the admission of the evidence and there was a rational bias for that decision as it was admissible - leave to appeal refused. Severino DPP v Asling [2017] VSC 191 Supreme Court of Victoria Kaye JA Criminal law - murder - sentence - contract killing - joint criminal enterprise - accused and Blewitt, now deceased, contracted with Williams to murder the deceased for $150,000 - the accused escaped detection for 12 years - sentence: the concept of contract killing is utterly abhorrent to the fundamental values of a civilised and decent society - the killing was carried out in a cold blooded and heartless manner in a suburban street outside the deceased s home where his wife and son were present - the accused s prior record demonstrated that he had a proclivity to engage in violent and dangerous offending using loaded firearms - as a result of his Page 7

8 conviction for making a threat to kill, he was to be regarded as a serious violent offender (Part 2A Sentencing Act 1991 (Vic)) - accordingly, the protection of the community was a principal purpose for which the sentence was to be imposed - the principle of denunciation was also important and the sentence imposed was required to reflect the revulsion of the community as to the type of conduct in which he engaged and the court s and community s condemnation of the manner in which he flagrantly flouted our society s basic human values - considering the relevance of general deterrence, the sentence had to be of sufficient severity to make it plain to any person who undertakes to kill another for reward that they can expect no mercy from the courts - his rehabilitation prospects were poor, requiring specific deterrence to be given appropriate weight - the offending fell within the upper range of objective seriousness - life imprisonment imposed - NPP 27 years. Asling The Queen v Sawyer-Thompson [2016] VSC 767 Supreme Court of Victoria Croucher J Criminal law - defensive homicide - sentence - accused, who was aged 19 and easily led, had low intelligence and suffered from post-traumatic stress disorder (PTSD), depression and anxiety - she was in a relationship with one Mifsud and had been subjected to serious violence and humiliation by him - in June 2014 Mifsud had attempted to kill the victim, Nankervis and when he was unable to do so, instructed the accused to do it for him - the accused, in a drugaddled state of terror and submission, decided to do so and taking a mattock and knife stuck and stabbed Nankervis, inflicting 70 separate injuries upon, causing his death - she was then charged with Nankervis murder and at first sought to rely upon the defence of duress - this defence was abandoned however when it became clear that she had intentionally killed Nankervis in the belief that it was necessary to do so to defend her immediate family from being killed - the prosecution then accepted her plea of guilty to defensive homicide - sentence: the Court was satisfied, on the balance of probabilities, that Mifsud subjected the accused to cruel, humiliating and violent acts - the offence was very close to the worst, if not within the worst, category of defensive homicide - it was not the accused s idea as it was driven by Mifsud; the accused was vulnerable and she was suffering from the effects of PTSD - objectively this was a very grave example of the offence - it fell within the upper end of the range of objective seriousness and would be far worse, but for the mitigating factors - the accused had suffered sexual abuse as a child at the hands of different perpetrators - she began drinking alcohol in her mid-teens and smoking marijuana regularly from 17 - Mifsud introduced her to amphetamines and LSD - she made admissions to the police and entered a plea of guilty - significantly, she entered a plea in circumstances where the defences of duress, self-defence or defence of another, which were available to her, might have succeeded and resulted in a complete acquittal - the Court was satisfied that the accused s account of Mifsud s involvement and his ill-treatment of her was full and frank and that her undertaking to assist the authorities reflected contrition and a genuine desire to bring an offender to justice - the Court was satisfied she was genuinely sorry - her youth was a relevant factor in sentencing and the delay taken in finalising Page 8

9 the matter was relevant as having added to her anxiety and providing her with the opportunity, which she had taken, of undertaking courses while on remand - she had reasonable prosects of rehabilitation - the extreme and disturbing violence employed by the accused invoked the sentencing principles of general deterrence, just punishment and protection of the community - specific deterrence was, however, of less weight - the principle of parsimony (s5(3) Sentencing Act 1991 (Vic)) was applied - sentence of 10 years, NPP 7 years imposed [Editor s note: The defence of defensive homicide applied in Victoria from 23 November 2005 to 31 October 2014; see Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic)]. Sawyer-Thompson Bouch v The Queen [2017] VSCA 86 Court of Appeal of Victoria Redlich, Weinberg, Whelan, Priest & Ferguson JJA Criminal law - culpable driving causing death - appellant was tailgating a Toyota vehicle when he overtook it on the passenger side, pulled in front and heavily braked, causing the Toyota to collide with the rear of his vehicle and a truck which was following to collide with the rear of the Toyota - as a result of the collision, a number of people were injured and one child was killed - appellant was charged with culpable driving causing death by gross negligence (s318(2)(b) Crimes Act 1958 (Vic) ( offence of CDCD )) and negligently causing serious injury (s24 Crimes Act 1958 ( offence of NDCSI )) - on arraignment, the appellant pleaded not guilty to both counts, but guilty to the statutory alternate charges of dangerous driving causing death (s319(1) Crimes Act 1958 ( DDCD )) and dangerous driving causing serious injury (s319(1a) Crimes Act 1958 ( DDCSI )) - the appellant was convicted of CDCD and NDCSI and sentenced to a total effective term of 8 years 6 months, NPP 6 years - by leave, the appellant appealed the convictions - held: (1) merited criminal punishment - applying King v The Queen (2012) 245 CLR 588 and R v De Zilwa (2002) 5 VR 408 it is a misdirection to include as an element of the offence of CDCD that the jury must be satisfied that the driving in question merited criminal punishment - jury directions in Victoria should continue to apply the decision of R v De Zilwa, save for the excision of any refence to meriting, or deserving, criminal punishment, or any such equivalent - in instructing the jury in this case that they had to be satisfied that the appellant s driving merited criminal punishment the trial judge misdirected them - this misdirection did not give rise to a substantial miscarriage of justice for 2 reasons (i) it created an additional bar to conviction; (ii) conviction for CDCD was inevitable; (2) jury deliberations - applying Stanton v R (2003) 198 ALR 41, [35], jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient - three recent decisions considered (Medici v The Queen (2013) 39 VR 350; Smith v The Queen (2013) 39 VR 336; Vo v The Queen (2013) 39 VR 543) - the relevant statutory provisions governing alternative verdicts on charges of CDCD considered (s422a(1) Crimes Act 1958) - see also Part III div 19 Crimes Act 1958 & s239 Criminal Procedure Act 2009 (Vic) - referring to King v The Queen (2012) 245 CLR 588, these provisions should not be construed as abrogating the general rule formulated in Stanton - considering the judge s directions regarding DDCD: it was incorrect to assume that because the appellant had pleaded guilty in the presence of the jury to Page 9

10 the lesser offence of DDCD, that that lesser offence could have no relevance in their deliberations until such time, if at all, they unanimously determined that the appellant was not guilty of CDCD - the jury was entitled to take into account the elements of the lesser alterative offence (DDCD) as well as the appellant s acknowledgment of guilt, when considering what finding they should make with regard to the more serious offence - under the general rule in Stanton, the jury is always entitled to commence its deliberations by considering not just the primary offence, but also any lesser alternative and to determine how, if at all, the deliberations on that lesser charge may bear upon the verdict on the more serious charge - the judge may, indeed must, direct the sequence of the jury s verdicts, but not the sequence of their deliberations - as a conviction on CDCD was inevitable, no substantial miscarriage of justice occurred - appeal dismissed [Editor s note: Dismissing the appeal - Redlich & Weinberg JJA disagreeing with Priest JA with respect to ground 4 (directions on alterative charges); Whelan & Ferguson JJA agreeing with Redlich & Weinberg JJA, except with respect to ground 4]. Bouch DPP v Acme Storage Pty Ltd (a Pseudonym) [2017] VSCA 90 Court of Appeal of Victoria Maxwell P, Weinberg & Priest JJA Criminal law - OH & S offence - Acme was charged with 7 offences of discrimination against an employee (s76(2) Occupational Health & Safety Act 2004 (Vic) ( OHSA ) - it was alleged that an employee at one of Acme s work sites had raised an issue about lifting heavy goods and that Acme s operations manager had responded by saying that he had had enough and that the employees had better watch their jobs - the Crown argued that the employees had raised a safety issue and that Acme s response constituted a threat to alter the position of each employee to his detriment in breach of s76 - prior to trial, questions of law were reserved by way of a stated case - held: (1) stated case - the stated case was unsatisfactory, several of the questions reserved dealing with matters that were not in dispute, and one raising a purely hypothetical question - further, the facts were not stated such that they were identified with precision - this was unsatisfactory - reserved questions of law are not to be answered in the abstract, but must be determined by refence to the facts of the particular proceeding (DPP (Cth) v JM (2013) 250 CLR 135, [34]) - since few of the relevant facts will have been admitted or agreed before trial, the case must be stated by reference to the assertions of fact which the prosecution will seek to make good at trial - it is the responsibility of the parties to ensure that the stated case is in proper form and that only those questions which need to be answered are reserved - the questions need to be tightly formulated - further, it is the responsibility of practitioners to raise questions of law promptly before trial (ss199 & 200 Criminal Procedure Act 2009 (Vic)) - here, due to the delay in hearing the matter which had already occurred, the Court undertook the task of identifying the relevant facts; (2) ss76 & 77 OHSA - the gist of the s76 offence is that an employer acts, or threatens to act, adversely to the interests of an employee because that employee has raised an issue or concern about health or safety - it is a question of fact whether an employee has raised an issue or concern about health or safety - the jury must determine whether what the employee did is properly to be described as raising an issue Page 10

11 or concern about health or safety - s76(2)(d) does not require affirmative proof of the employee s state of mind, less still of the existence of a belief held on reasonable grounds - the mere fact that the concern is raised as part of, or in connection with, the pursuit of other industrial objectives does not necessarily mean that a breach of the section could not be established - threat is to be given its ordinary and natural meaning - what must be proved is that the accused intentionally made a declaration of an intention or determination to inflict punishment, pain or loss on someone and it is immaterial whether the person making the threat intends to carry it out - it will be a question of fact to be determined by the jury whether the person acting on behalf of Acme did threaten to alter the position of the employees to their detriment - if the declaration is proved to have been made, it is immaterial whether the threat was communicated to the party to be subject to it, or to a third party - detriment is an ordinary, everyday word and thus a matter for the jury - s77 imposes a reverse onus with respect to proof of the reason for the conduct of the employer - questions answered accordingly. Acme Storage Pty Ltd (a Pseudonym) Page 11

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