DPP -v- PJ Carey (Contractors) Limited, [2011] IECCA 63 (2011)

Docket Number:173/08
Party Name:DPP, PJ Carey (Contractors) Limited
Judge:Hardiman J.
 
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THE COURT OF CRIMINAL APPEALHardiman J. 173/08Budd J.de Valera J.Between:P.J. CAREY (CONTRACTORS) LIMITEDApplicantandTHE DIRECTOR OF PUBLIC PROSECUTIONSRespondentJUDGMENT of Mr. Justice Hardiman delivered the 17thday 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 The learned trial judge directed that Counts 4 and 5 be withdrawn from the jury.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...

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