Court of Criminal Appeal allows appeal, quashing conviction where prosecution failed to establish prima facie case for directed verdict.

THE COURT OF CRIMINAL APPEAL

173/08

Hardiman J

Budd J.

de Valera J.

BETWEEN:

P.J. CAREY (CONTRACTORS) LIMITED

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

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 The learned trial judge directed that Counts 4 and 5 be withdrawn from the jury.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:

“P.J. Carey (Contractors) Limited on the 9th December, 2002, being an employer at a place of work located at Ballymun

Road, Ballymun in the Count of the City of Dublin, did contravene s.6(1) of the Safety Health and Welfare at Work Act,

1989 as it relates to s.6(2)(d) of the said Act in that it failed to ensure, so far as was reasonably practicable the safety

health and welfare of its employees in that it failed to provide systems of work that was planned, organised, performed

and maintained so as to be as far as reasonably practicable safe and without risk to health”.

Factual context.

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:

(a) Failing to take into account the inherently unstable nature of the area to be excavated and the design of the

excavation.

(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.

In making his submission for a directed verdict, counsel for the Company referred the evidence of the prosecution witnesses who were

present at the site. These were Mr. Broderick, Mr. Halloran, Mr. McColgan, Mr. McElvaney and Mr. Guerin. He went through each of

the allegations particularised above, at pages 3 and 4 of the transcript for Day 6. In particular reference to Count No. 2 he said:

“Count No. 2 is a failure to provide the safe system of work [counsel referred to the statutory sections, cited above]. And

the allegation is that there was a failure to provide a safe system of work, and in particular, in respect of a four-metre

deep excavation, the accused failed in one, some, or all of the following. And again, I repeat my criticism of the multiple

choice, or notice for particulars system that has been engaged in.

(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.”

In respect of other aspects of the indictment, the learned trial judge granted a directed verdict of not guilty, as in relation to Count

3, which related to a failure to provide information, instruction, training and supervise the staff. He held that:

“All of the evidence in this case is to the effect that the defendant Company had done everything that was reasonably

practicable to inform, to instruct and to train and supervise their workers including Mr. Colton. The evidence would

suggest that Mr. Colton did, to the surprise of all, but in particular the excavator driver, enter the trench”. (Emphasis

added)

The reply to this application for a directed verdict by the prosecution can be simply summarised. As the learned judge put it (Day 6,

p.27):

“Mr. O’Briain, on behalf of the prosecution, says that in essence the facts speak for themselves. Work was undertaken,

the building or digging of the trench was unsatisfactory, was unsafe, because it collapsed…”. He makes the case that

expert witnesses, though helpful in the case, are not essential to it, and he points to the provisions of s.50 of the Act,

indicating that once a system has been prima facie illustrated on the evidence to be unsafe, the onus does shift to the

accused Company to satisfy the Court and the jury that what was done was [all that was] reasonably practicable in all of

the circumstances.”

A summary of the respective cases.

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.

Section 50.

However, the prosecution went somewhat further and relied upon Section 50 of the Act of 1989. This Section provides:

“In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a

duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best

practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable

or reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no

better practicable means than was in fact used to satisfy the duty or requirement”.

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 [1994] 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 50

Section 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 [2010] 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:

“The construction of a criminal statute requires the Court to presume that the core elements of an offence must be

proven beyond reasonable doubt; otherwise the accused must be acquitted. A special defence, beyond the core elements

of the offence, may carry a different burden; insanity and diminished responsibility or examples of such a defence which

casts a probability burden on the accused. Where, however, in relation to an element of the offence itself, as opposed to

a defence, burden is cast upon the accused, the necessary inference that the accused must discharge that burden on

the balance of probability is not easily made. The Court notes that bearing the burden of proving a defence as a

probability could have the effect that in respect of an element of the offence an accused person might raise a doubt

about his guilt but not establish it as a probability. This might lead to a situation where the charge was not proven as to

each element of the offence beyond reasonable doubt but nevertheless the accused could be convicted. That would not

be right.”

As the result of that reasoning, this Court held that the reverse onus provision contained in s.29 of the Misuse of Drugs Act, 1997,

(“in any such proceedings in which it is proved that the defendant had in his possession a controlled drug… it shall be a defence to

prove that he did not know that what he had in his possession was a controlled drug or that he was in possession of a controlled

drug”) operated merely to cast an evidential burden on the accused and not a legal burden. It was further held that that evidential

burden could be discharged by proving the existence of a reasonable doubt as to whether the accused knew that what he had in his

possession was a controlled drug.

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:

“It has not been adequately explained or explored in the evidence as to why a box of 5.1 metres in length was opted for,

with a height, or a depth, of 2.4 metres… consequently it made, in all, that trench in excess of eight metres… was to be

dug… I believe it is open to the jury to draw the conclusion that what occurred was inevitable… Mr. Hartnett’s explanation

is that, of course, every trench has to be unsupported for a time until the box gets in there, but it is also available to the

jury, in looking at the facts, that in a relatively smaller area… a trench box was put in a vertical way and I believe it

would be reasonably open to them to ask why something like that wasn’t done in the area [where the accident occurred]

… it hasn’t been explored or discussed in the evidence as to why ever the box south of the district heating system was

inserted in that vertical way, other than that it would seem to suggest because it was the only way it would fit. And why

something similar wasn’t fitted to the other side, again, is a question I believe reasonably open to a jury to consider”.

It appears to me that the foregoing passages envisage an obligation on the accused Company to explain certain things and suggests

the inadequacy of such explanation. But that is a misconstruction of the effect of s.50 which is merely to cast an evidential, and not

a legal or substantive burden on the defendant. I believe that this was an error of law by the learned trial judge and, that if this error

had not occurred, it would have been manifest that the accused Company was entitled to a direction.

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:

“This corresponds to s.40 of the United Kingdom Health and Safety at Work Act, 1974, and it provides for a shift in the

evidential burden on a defendant in circumstances where the defendant is charged with an offence where he is under a

duty to do something as far as is practicable or reasonably practicable or to use the best practicable means to do

something. Barrington considered this point at pp 129-130. Recommending that s.40 of the [English] Act be used as a

model, it stated that the prosecution should be obliged to establish first a prima facie case that, for example, a system

was unsafe. Then s.50 should come into operation, obliging the defendant to establish that in relation to the system in

place it was not reasonably practicable to have done more. Barrington argued that this shift in the evidential burden was

justified by the fact that the internal organisation of a place of work is ‘peculiarly within the employer’s province’. Thus,

while s.50 appears to displace the normal burden in a criminal trial, it may well not fall foul of Article 38.1 of the

Constitution by virtue of being confined to the evidential burden rather than the burden of proof…”. (Emphasis added)

I have no doubt that this commentary is supportive of the conclusion of this Court in Smyth. Section 50 does not come into play at

all until the prosecution establishes a prima facie case that a system of work was unsafe. This was not done here for the simple

reason that the prosecution evidence was, as both sides agreed, wholly favourable to the defendant. The prosecution then relied on

s.50 to cast an onus on to the defence which it (the prosecution) had failed to discharge itself. But this cannot be done: the Section

comes into play only after the prosecution have established a prima facie case.

Conclusion.

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.