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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- PJ Carey (Contractors) Limited  IECCA 63 (18 October 2011)
Cite as:  IECCA 63,  1 IR 234
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Judgment Title: DPP -v- PJ Carey (Contractors) Limited
Composition of Court: Hardiman J., Budd J., deValera J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Outcome: Allow Appeal
THE COURT OF CRIMINAL APPEAL
Hardiman J. 173/08
de Valera J.
P.J. CAREY (CONTRACTORS) LIMITED
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Hardiman delivered the 17th day of October, 2011.
This is the applicant’s application for leave to appeal against its conviction on Count 2 of an indictment alleging a total of five offences contrary to the Safety Health and Welfare at Work Act, 1989.
The trial of the applicant commenced on the 28th April, 2008 before Judge McCartan and a jury. An application for directed verdicts of not guilty was made on the sixth day of the trial. The learned trial judge directed that Counts 4 and 5 be withdrawn from the jury. On the 7th May, 2008, the following day, the prosecution withdrew a further charge, Count 3. This left only Counts 1 and 2 for the consideration of the jury. The applicant was acquitted of Count 1 and convicted of Count 2.
Terms of Count 2.
Count 2 alleged that:
The Prosecution centred on the circumstances in which an employee of the defendant, Mr. Brendan Colton was unfortunately killed on the 9th December, 2002. It appeared to be common case that Mr. Colton was a very experienced pipe layer and was leading a gang of four men laying drainage pipes on the site in question. The trench into which the pipes were to be laid had been dug out using an excavator. Mr. Colton’s gang were engaged in dropping a trench box, being artificial walls connected one to the other inserted to support the sides of a trench, into the trench.
Central to the events which occurred was that Mr. Colton, for unknown reasons, entered the unsupported trench before the trench box was inserted. The trench then collapsed, burying Mr. Colton.
It was clearly established in the prosecution case that the “golden rule” on the site in question was that no person should enter an unprotected trench. It was equally common case that Mr. Colton had not long previously received a very stern reprimand for having been found in an unprotected trench. The site foreman said he would have been dismissed if he had again offended in this regard. It was further established that on the day in question, not long before the fatal incident occurred, Mr. Colton had received a further specific warning not to go into the trench until the trench box was in. This warning was given by Mr. Frank Guerin who was a prosecution witness at the trial.
Accordingly, it appeared to be plainly established that the proximate cause of Mr. Colton’s death was his own action in entering the trench before the box was inserted. All the relevant witnesses at the trial were people who were directly involved with the works and were physically present when the accident occurred. The only other witnesses called for the prosecution were people who had attended the scene in the aftermath of the accident. No expert evidence appeared to have been retained for the State. The only independent expert, Mr. Terry, an engineer, said that there was a strong health and safety ethos in the applicant company and that he was satisfied having heard the evidence and reviewed the applicant’s documentation that the system of work adopted was as far as reasonably practicable safe and without risk. No witness disputed this view, which was expressed as part of the prosecution case.
It will be clear from the terms of the charge which constituted Count 2 of the indictment that this count itself did not require proof of a fatality, nor proof that any fatality or injury was caused by the offence in question. Nevertheless, the judge permitted proof of the fatality and did so on the basis that “the fact that Mr. Colton entered the trench and the unfortunate result of that is probative in terms of the failure to ensure the safety of employees”. It is hard to see what, exactly, it is probative of.
But the learned trial judge seems to have come to that conclusion on the basis of his previous statement (Day 1 p.5) that Mr. Colton was in the trench “checking the level of the excavation”. There was in fact no evidence that Mr. Colton was in the trench for that purpose or any other specific purpose. This was later accepted by the prosecution.
Application for a Directed Verdict.
On the morning of the sixth day of the trial an application was made by defence counsel to withdraw the entire case from the jury on the basis that there was no case to answer. This is the nub of the present appeal. As indicated above, this application was successful in relation to two of the counts, a third was subsequently withdrawn by the prosecution and on a fourth count the Company was acquitted by the jury. Accordingly, the events of the trial will be viewed in the context of Count 2. In this regard, it should be recorded that the defence had complained since the beginning of the trial as to the extremely vague and unspecific nature of the case and the prosecution had, in answer to that, particularised the case further. Specifically, they had alleged that the accused Company had failed in some or all of the following respects:
(b) Providing a trench box which was inappropriately large and unsuitable for the purpose for which it was required.
(c) Failing to provide a smaller trench box or a trench sheeting or a combination of both.
(d) Excavating to an excessive length in an inherently unstable site.
(e) Failing to construct the trench in a manner which was safe from collapse.
(f) Failing to shore the trench adequately or at all.
(a) Failing to plan a system or work, taking account of the inherently unstable nature of the area to be excavated arising from the presence of services, infill and traffic. Now, the evidence is in exactly the contrary direction, because what has been established from the witnesses is that there is a Permit to Dig system in place on this building site; that that would not necessarily be a standard on building sites throughout this land. And what that meant on the evidence was that every morning, every, on the day prior to, and on the morning of an excavation, particular account was taken of any services that might be in the area. The evidence in this case is, not only were they located on a general map, but they were then physically located on the ground; they were then sprayed to mark them out; and they were then excavated to a certain level to identify them.
What else could have been done? There is no suggestion by the prosecution that any other system could have been engaged in. There is no expert to say it could be done otherwise. And I just ask, as a matter of common sense, what else could be done other than a daily consideration of dangers that might arise? Not only, I submit, was this matter up to standard, it was well beyond the standard of the industry on the evidence as presented by the prosecution.
It goes on to say, providing a trench/drag box, which was inappropriately large and unsuitable. All of the evidence from the prosecution witnesses was that the trench/drag box was appropriately sized and was suitable for the purpose for which it was required. There is no evidence to suggest that it was otherwise.
You look somewhat quizzical, Judge. I think that was the evidence. Mr. Broderick didn’t give any evidence of an expert nature, and no expert was called in relation to this. And could I just pause at this stage? The grave danger, here, is that the jury should be invited to become experts, and one would have in the back row, Mrs Mulumby, who was in favour of smaller trench boxes, and Mr O’Driscoll, in the front row, who was not in favour of smaller trench boxes. But this is a matter of expertise. This is a matter of standards. And no evidence has been tendered to suggest that this was below standard; the contrary is the case.
(c) Excavating to an excessive length in an inherently stable area -- unstable, that is meant to be -- no evidence to support that allegation. The contrary is the case.
(d) Failing to provide small trench boxes and/or trench sheeting, or a combination of both, having regard to the unstable nature of the area to be excavated, the presence and levels of various services. Again, no evidence to suggest that trench sheeting, and its use, would be appropriate. All of the prosecution witnesses, all of them, from digger drivers and dumper drivers, up to safety foremen, indicated that, in their view, the use of trench sheeting would be inappropriate and dangerous in conditions such as these. So that is where the prosecution evidence goes, and directly contradicts the particular served upon us.
(e) Permitting a situation to arise where a 2.4-metre trench box was to be used in a four-metre excavation. Again, similar to the previous one, no evidence to suggest that this was incorrect. All of the evidence suggests that this was the appropriate way of doing things.
(f) Excavating to an excessive length, having regard to the unstable nature of the area excavated, thereby leaving the sides of the excavation unstable. No evidence to support that.
(g) Planning to push a trench box/drag box a number of metres under low hanging services, in an unstable excavation. All of the evidence supports that as the appropriate system or method.
(h) Planning to push a trench box a number of metres under low hanging services, in circumstances where difficulty would arise in reducing the level of the trench box/drag box. Again, I think I make the same comments as I made in relation to the earlier particular.
(i) Failure to provide adequate equipment to dig within a trench box, or ensure same remained on site. There was a reference to a bucket and a small bucket, but in fact, one of the prosecution witnesses indicated that that trench bucket was on site, and some 30 feet away from the excavation. That was Mr McElvaney, I think.
(j) Causing or permitting a situation to come into existence whereby Brendan Colton was occasioned to enter the excavation to check the levels of the excavation while it was unsafe. A very serious allegation, mixed in and melded in, with the previous allegation. No evidence whatsoever to support it as an allegation. In fact, all of the evidence goes the other way. He was specifically forbidden to enter that trench. He was warned about it on the day. He was warned about it on induction. He was warned about it on toolbox tasks, toolbox talks, and indeed, risked dismissal on a previous occasion where he received a severe warning, and was removed from a trench where he had entered it. All of the evidence contradicts the allegation made.”
The defence application was based on the proposition that all of the evidence called from persons who were present at the time of the accident favoured the defence. No witness criticised the steps taken by the Company and some witnesses, as Mr. Hartnett pointed out, specifically endorsed it. No expert witness was called for the prosecution and the evidence of the defence expert, Mr. Terry, was consistent only with the Company’s innocence.
In response to this, insofar as it concerns the second count, the prosecution relied on res ipsa loquitur or, as the Judge said, “the facts speak for themselves”. I do not think that this clichéd phrase is remotely adequate to carry a serious criminal prosecution past an application for a direction. In any event, the offence is not complete merely on proof that the trench collapsed, an event about which there was no dispute anyway. It requires proof of a failure to provide a safe system of work and it is clearly the case that no witness said there had been such a failure, all relevant witnesses stood over the system actually in operation and the prosecution, which had every opportunity to call an expert to contradict them if it wished to do so, did not take that step. Accordingly if the prosecution case were limited to a simple statement that “the facts speak for themselves” I do not consider that any prima facie case would have been made out, but rather that the defendant were entitled to a directed verdict of not guilty at the close of the prosecution evidence. This is not at all surprising, for the prosecution evidence insofar as it consisted of persons who were on site at the time of the accident was uniformly favourable to the defence, and consistent only with the Company defendant’s innocence.
However, the prosecution went somewhat further and relied upon Section 50 of the Act of 1989. This Section provides:
Significance of the foregoing.
It appears to me that this Section is central to any argument whereby the prosecution might have been able to avoid a directed verdict of not guilty at the close of their evidence. This was because the evidence elicited by the prosecution from the witnesses who were present at the building site when the accident took place was all favourable to the defence. There was no evidence at all that the system of work was inadequate and ample evidence from witnesses all of whom were experienced in construction and at least two of whom were qualified engineers that it was quite adequate and that no alternative system, such as one involving the sheeting of the trenches, was needed or practicable.
The foregoing is relevant to the discussion of s.50 which follows. If, and to the extent that, there is an onus on the defendant to prove any matter, the manner in which that can be done is discussed in
DPP v. Hardy  2 IR 550. This was a case involving an offence contrary to the Explosive Substances Act, 1883, Section 4 which provided that the defendant might be convicted on proof of certain facts “… unless he can show that he made it, or had it in his possession, or under his control for a lawful object…”. The Supreme Court held that it was open to the defendant to discharge that onus “… in any one of a number of ways, such as by cross-examination, submissions, or by giving evidence…”.
Section 50Section 50 creates a reversed burden of proof, which is something not unknown in recent criminal statutes. It was discussed by this Court in
DPP v. Kieran Smyth  3 IR 668 in particular at pages 694 - 698. I would respectfully refer to the whole of that passage, without setting it out here. The Court referred to Article 38.1 of the Constitution and continued:
Having regard to the fact that the basis for the decision in Smyth was an analysis of the constitutional provision mentioned which I am satisfied is correct, I would interpret s.50 of the Act of 1989 in the same way, that is by casting an evidential burden only on to the accused. I would further hold, and indeed it is manifest, that that evidential burden has been discharged by the accused Company by the evidence of the prosecution, whether given in direct evidence or in cross examination.
Approach of the learned trial Judge.
It appears to me that, having referred to s.50 of the Act of 1989, the learned trial judge then misinterpreted its purport so as to cast a substantive onus of legal proof upon the defendant. Thus, at p.28 of the transcript for the 6th day of the trial, having referred to s.50, he said:
A supportive authority.
I have already indicated my willingness to follow the decision of this Court in Smyth. Since however that case related to the somewhat different area of possession of controlled drugs, and not withstanding that I am of the view that the principles are the same, I wish to refer to an academic commentary upon s.50 of the Act of 1989. This is by the learned editors of the Statutes Annotated who, having set out the terms of the statute as they are set out above, comment as follows:
The Court should have acceded to the application for a directed verdict. I would allow the appeal and set aside the conviction. In all the circumstances, and having regard to the nature of the evidence adduced at the trial, I would not order a retrial. None of the other points canvassed require to be addressed in view of this conclusion.